Last month, in an unsigned, per curiam opinion, Box v. Planned Parenthood, the Supreme Court considered whether two provisions of a new anti-abortion law in Indiana were constitutional. Indiana has been passing laws to restrict access to abortion—at least in part in the hopes of getting the Supreme Court to overrule Roe v. Wade. This plan did not work in Box,but the case did provoke a concurrence from Justice Clarence Thomas that lays out a curious argument against abortion.
The Indiana law had two basic provisions. One dealt with treatment of fetal remains. The other forbade doctors from knowingly performing abortions, where the point was sex or race selection, or avoiding the birth of a disabled child. The trial court had granted summary judgment to the abortion providers who challenged these provisions—invalidating them on constitutional grounds. The U.S. Court of Appeals for the Seventh Circuit affirmed. The State of Indiana asked the Supreme Court to hear the case. Rather than its usual process of granting review and then considering the case on the merits after full briefing and oral argument, the Supreme Court issued the unsigned majority opinion in which it (i) granted review and upheld the provision on the disposition of fetal remains and (ii) denied review of the ruling on the selective abortion bans.
The Ruling in Box v. Planned Parenthood
The Court refused to consider the constitutionality of the selective-abortion ban, following its “ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.” One of the primary reasons for the Court to grant review (as it considers only a tiny fraction of the cases in which a review petition has been filed) is to resolve a split among federal appellate courts. The Court also might grant review if the underlying issue is especially important. That could have motivated the Court to grant review here, but perhaps it is signaling that it is not quite ready to overturn Roe and its progeny (which recognized a constitutional right to terminate a pregnancy), even though it is widely believed that the Court as currently composed is very likely to take that step in the near future. There is no question that under existing law, this selective-abortion provision of Indiana law is unconstitutional (despite Justice Thomas’s insistence in a concurrence that the validity of such a ban is an open question). If the Court granted review, it would have to either admit that or overrule some of its prior decisions.
On the disposition of fetal remains, the Court upheld the provision, and turned aside the constitutional challenge, in just a few paragraphs. In most states, fetal tissue and other byproducts of abortion are treated like other forms of medical waste. The Indiana law is curious because it disallows this practice in the name of “dignified” disposition of remains but allows simultaneous cremation of multiple sets of fetal remains (not allowed for human remains) and states that the law does not affect a woman’s right “to determine the final disposition of the aborted fetus.” It thus does not mandate a particular treatment of remains, but forbids the most common one.
Under Roe v. Wade and Planned Parenthood v. Casey, a state can regulate abortion before viability as long as it does not impose an undue burden on a woman’s right to terminate a pregnancy. After viability, it can restrict abortion if it maintains an exception to preserve the life or health of the mother. (Key precedents are discussed here, here, and here.) Restricting treatment of fetal remains might well impose an undue burden on a woman’s right to terminate a pregnancy by imposing costs and obstacles on providers that force them to close or reduce service. A federal court in Texas has enjoined a Texas law regulating the treatment of fetal remains for exactly this reason. (The law and ruling are explained in detail here.)
In the Indiana case, the Court cited a precedent from 1983, Akron v. Akron Center for Reproductive Health, Inc., in which the Court said that states have a “legitimate interest in proper disposal of fetal remains.” The Court noted that Planned Parenthood had never argued that the Indiana law imposed an “undue burden” on abortion rights; therefore, it considered only whether the law could survive the more deferential standard of review known as rational basis review. Justice Ginsburg dissented from this part of the opinion.
Justice Thomas’s Concurring Opinion: Wrongheaded, but Not Irrelevant
The truth is that nothing in the per curiamopinion is that interesting or important, at least as measured against a landscape in which the fight over abortion is fast, furious, and piqued. The most noteworthy component of Box v. Planned Parenthood is a concurrence written by Justice Thomas, in which he reiterates his opposition to abortion and previews his plan to overturn Roe v. Wade, but thinly disguises his motivation in a long treatise comparing race-, sex-and disability-selective abortions to eugenics.
Justice Thomas did not disagree with the Court’s decision to punt on the second issue, but he made it crystal clear that he was heartily in favor of the statute. To Thomas, the state had a “compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” The key point in his concurrence was to tie abortion rights to the eugenics movement of the late 19th and early 20th centuries. He argued that states should have the power to restrict abortions motivated by the sex, race, or health of the fetus in order to avoid letting abortion become “a tool of eugenic manipulation.”
Eugenicists thought we could (and should) use selective breeding to improve the human species. Farmers, after all, had been producing better cows, sheep, and horses, by carefully controlling their breeding. The idea was to induce the best folks to have babies (this never got off the ground), and at the same time prevent the worst folks from reproducing. This second prong did result in action. The eugenics movement claimed a more or less scientific basis: Darwin, and the theory of evolution; and Gregor Mendel, the monk whose experiments with pea plants laid the basis for the laws of genetic inheritance. Whether these two honorary godfathers would have approved of the eugenics movement is, however, extremely doubtful.
Francis Galton is, in a way, the true father of the eugenics movement. He published a book on hereditary genius in 1869. In this book, he argued that great ability—you could call it genius—ran in families. This meant, in other words, that this trait could be handed down from parent to child. But if genius could be inherited, wouldn’t the opposite also be true? Did idiocy, crime, and perversion (to use the common words of the day) also run in families? If so, then perhaps something could be done about it. The negative prong of eugenic policy, as a matter of fact, was more promising than the positive one. After all, in a free society, you could hardly force brilliant people to have baby after baby. But government could discourage abortion—that might help. Laws against abortion flourished in the late 19th century. There may well be a connection with the eugenics movement. Middle- and upper-class women had low birth rates. In other words, they were not doing their share. Immigrants and “undesirables” on the other hand were breeding like rabbits. This was the worst possible arrangement, eugenically speaking.
What passed for science worked to show that crime and delinquency were inherited. In 1874, the New York Prison Association sent R.I. Dugdale on a tour of county jails in New York state. Dugdale was astonished to discover, on his tour, a whole family of criminals and other deviants who were related to each other by blood and descent. He published a book about this family, the “Jukes” (a made-up name). They had a “long lineage, reaching back to the early colonists.” The Jukes were good-for-nothings generation after generation and were “despised by the reputable community.” The message of Dugdale’s book was plain: crime, pauperism, and indecency were passed on from parents to children. In 1912, Henry H. Goddard followed up this study with his own findings; his book concerned a family he called the “Kallikaks” (another made-up name). In the same year, Estabrook and Davenport found yet another one of these dreadful families, the “Nams”; and there were other examples as well.
Goddard’s book was, perhaps, the most notable example of this weird literature. Goddard, writing about the “Kallikaks,” had discovered what he considered a kind of “natural experiment in heredity.” During the Revolutionary period, according to Goddard, Martin Kallikak, Sr., a man from a “good family,” met a “feeble-minded girl,” and she bore him a son. Of some 480 descendants of this union, 143 were feeble-minded, 43 were normal (the status of the rest was unknown). But there were 33 prostitutes, 24 alcoholics, 3 epileptics, and 8 who kept houses of ill-fame. Martin Kallikak, after this fling with an unsuitable woman, married a decent girl, from a good family. Their descendants were “respectable citizens, men and women prominent in every phase of social life.” The lesson from this “natural experiment” was obvious: heredity determined how Martin’s descendants would turn out; his original sin bore poisoned fruit for generations to come. Goddard’s methodology was, to say the least, slip-shod. Today, the whole thing seems like a classic example of junk science.
But the eugenicists, and, no doubt, millions of ordinary people, believed in the lessons revealed by the Jukes and the Kallikaks. Sterilization of the unit might be part of the answer. An Indiana law, enacted in 1907, allowed the state to sterilize inmates of institutions for “confirmed criminals, idiots, rapists and imbeciles,” if a “committee of experts” agreed that “procreation” was “inadvisable.” California followed in 1909; if the record and behavior of prisoner showed that the man was a “moral and sexual pervert,” he could be sterilized. California eventually became the national champion in carrying out this dubious enterprise. Between 1921 and 1940, the state hospitals in California sterilized thousands of boys and girls under 21. Many other states adopted statutes along the lines of Indiana and California.
The eugenics movement fed on another branch of junk science: racial science. “Science” seemed to demonstrate that some races were superior to other races. White people, it was claimed, were more intelligent, on the whole, than black people. Eugenics is not responsible for Adolf Hitler, or the Ku Klux Klan of the 1920s; but it is certainly not blameless. Some state courts struck down sterilization statutes. But the United States Supreme Court gave its blessing, in the notorious case of Buck v. Bell (1927). The state of Virginia wanted to sterilize Carrie Buck, a poor white woman, who was said to be feeble-minded, the daughter of a feeble-minded woman, and the unwed mother of a little girl, presumably also of weak intelligence. Oliver Wendell Holmes, Jr., wrote an opinion upholding the statute, on both procedural and substantive grounds. In a famous line, he declared that “three generations of imbeciles are enough.” In point of fact, none of the Bucks were “imbeciles;” the little girl (who died young) was considered “bright” by her teachers; mother and grandmother were simply poor and uneducated. Today, the case is considered a monstrous miscarriage of justice.
Thomas recounts some of this history in his concurrence. Many eugenicists, he states (correctly) were racists; they believed that “the distinction between the fit and the unfit could be drawn along racial lines.” The junk science also produced very restrictive and biased immigration laws, a cluster of restrictions on marriage, in addition to with the sterilization laws. But the history of abortion, birth control, population control, and eugenics is complicated, and Justice Thomas’s treatment of it seems wildly off kilter.
Why the Abortion-Eugenics Analogy Breaks Down
History (according to Thomas) justifies the Indiana law, because “abortion is an act rife with the potential for eugenic manipulation.” And racism, as well. Margaret Sanger, the godmother of birth control, was attracted to eugenic ideas. She campaigned, Thomas tells us, “for birth control in black communities.” Abortion advocates, he claims, sailed dangerously close to the shores of “eugenic infanticide.” Thomas also asserts that some “black groups” have seen family planning “as a euphemism for race genocide.” He cites a study that shows that the abortion rate among black women is “nearly 3.5 times the ratio for white women.” In some parts of New York City, black children “are more likely to be aborted than they are to be born alive;” in short, the burden of “family planning” falls heavily on black people. In Thomas’s opinion, to strike down the Indiana statute would “constitutionalize the views of the 20th-century eugenics movement.”
Thomas is not the only anti-abortion figure to bring the eugenics movement into the argument. Frank Easterbrook, dissenting in the Seventh Circuit’s ruling in Box described the Indiana statute as an “anti-eugenics law.” No doubt we have not heard the last of the eugenics analogy, in the abortion debates. But if eugenics rested on junk science, Thomas’ opinion—and the eugenics label—might be said to rest on junk history, and to end up in what might be called junk law.
Rational people could no doubt defend the Indiana statute; but to call it an “anti-eugenics law” seems seriously misplaced. Eugenics was and is junk science, with no real basis in scientific research. And it resulted in some very bad law. Carrie Buck, a poor and uneducated white woman in Virginia, did not ask to be sterilized, did not want to be sterilized. She had no choice. But the women who go to Planned Parenthood have made a personal (and sometimes difficult) decision to terminate a pregnancy voluntarily. No government is forcing them. The difference between the eugenics movement and Roe v. Wade, which emphasizes and protects personal autonomy and dignity, is an absolute chasm.
It is, in a way, astonishing that Thomas treats the Indiana law as if it was meant to help minority women. Or women in general. In some parts of the world, to be sure (Asia, notably), abortion is used to get rid of unwanted girls. China’s one-child policy (only recently loosened) put pressure on families to make sure their one and only child would be a boy. This is much less of a problem in the United States. Thomas also mentions, obviously with disapproval, that most women choose to abort Down syndrome babies (100% of the time in Iceland, apparently). The Indiana statute would force women to carry babies with disabilities to term. But it is precisely poor women who would suffer the most from the Indiana policy; it is precisely poor women who have the least resources to deal with the problems of raising children with severe disabilities. The Indiana statute of course makes no attempt to help these women. Thomas clucks over the high rate of abortion in poor black communities, which presumably is a form of “eugenics:” does he understand, or even want to understand, why these women want to end their pregnancies? Race prejudice is indeed one of the villains in the piece. But the immediate problem is the poverty and misery these women face; the lack of resources and lack of state support for healthy pregnancy or childhood or families at all, for that matter. And, ironically in the light of Thomas’s opinion, they also suffer from lack of access to family planning and contraceptive advice—which Planned Parenthood, the defendant in the case, is eager to provide. Thomas is unlikely to be a strong backer of social and government programs to solve the problems these women and their families face. Is he willing to give more support to Planned Parenthood? Obviously not.
Thomas claims to speak for minorities but is tone-deaf to the realities of some of their lives. His arguments turn reality topsy-turvy. Eugenicswas racist; modern privacy law is not. Reproductive rights allow women to exercise some control over the timing and number of children—and that, in turn, helps them to participate fully in all aspects of civil society. A woman’s right to decide whether to carry a pregnancy to term is the very opposite of the old eugenics laws that allowed the state to sterilize women against their will and tried to force or encourage others to bear children against their will. This brand of state compulsion is precisely what Roe has tried to do away with. The Supreme Court’s abortion precedents help ensure that women have the power to make those decisions for themselves. To make reproductive rights turn on wealth and resources—aggravated by the Hyde Amendment, which prohibits government spending on abortion in most circumstances—is the real villain of the era.
Justice Thomas’s warped reading of history is not useful or should not be useful to those who oppose abortion rights. It is curiously twisted. Oddly, too, he mentions the (controversial) study that correlates legalized abortion with a decrease in the crime rate. The study came to praise Roe v. Wade, not to bury it; but to Thomas it is an “echo” of the “views articulated by the eugenicists.” His reading of history is curiously backwards. Thanks in part to eugenics, state legislatures a century ago and more passed many restrictions on abortions. The Indiana statute can be called many things; but the label of “anti-eugenic” is one that definitely does not fit.