The Supreme Court announced on Tuesday that it would not hear a case seeking to reinstate a trolly anti-abortion law targeting sex, race, and disability-selective abortions signed by former Indiana Gov. Mike Pence (R).
Justice Clarence Thomas didn’t disagree with the decision not to take up this issue, but he did see it as the perfect opportunity to publish a 20-page rant claiming that the “use of abortion to achieve eugenic goals is not merely hypothetical.”
Such a response is not surprising — Justice Thomas’ has not hid his disdain for Roe v. Wade in his past opinions. What is surprising, however, is that Thomas devotes much of his concurring opinion in Box v. Planned Parenthood to an extended attack on early supporters of birth control. The implication is that contraception, and not just abortion, may need to be banned in order to prevent some kind of racial eugenics.
“The foundations for legalizing abortion in America were laid during the early 20th-century birth control movement,” which, according to Thomas “developed alongside the American eugenics movement.”
Planned Parenthood founder Margaret Sanger recognized the eugenic potential of her cause. She emphasized and embraced the notion that birth control “opens the way to the eugenist.” As a means of reducing the “ever increasing, unceasingly spawning class of human beings who never should have been born at all,” Sanger argued that “Birth Control . . . is really the greatest and most truly eugenic method” of “human generation.” In her view, birth control had been “accepted by the most clear thinking and far seeing of the Eugenists themselves as the most constructive and necessary of the means to racial health.”
The rest of Thomas’ opinion largely consists of a brief history of eugenics, followed by a series of quotes from Sanger and other early Planned Parenthood executives that seem supportive of the goals of the eugenics movement. “Abortion,” Thomas concludes, “is an act rife with the potential for eugenic manipulation” — adding that “from the beginning, birth control and abortion were promoted as means of effectuating eugenics.”
The strong implication is that a state would be justified in banning — or, at least, harshly regulating — birth control in order to combat eugenics.
It’s hard to know where to begin with this claim. As Thomas notes, eugenics — the idea that undesirable human traits could be eliminated through selective breeding or other manipulation of who gets to reproduce — was quite popular in the United States a century ago. In 1927, the Supreme Court handed down an 8-1 decision, joined by the court’s progressive wing and nearly all of its conservatives, upholding a Virginia forced sterilization law that is now widely viewed as monstrous.
So it’s not surprising that Margaret Sanger may have supported eugenics during her time. Support for eugenics was a mainstream view in her era.
But what does that have to do with today? Today, eugenics is widely viewed as discredited. There’s a reason why Thomas can invoke it as a horrific evil in his opinion. Nearly everyone agrees with him!
Meanwhile, nearly all of today’s women who have ever had sexual intercourse — 99% of those aged 15-44 — have used at least one contraceptive method in their lifetime. And 88% “have used a highly effective, reversible method such as birth control pills, an injectable method, a contraceptive patch, or an intrauterine device.”
Thomas is famous for popularizing “originalism,” the idea that the only legitimate way to read the Constitution is to read each word as it was originally understood at the time of its framing. He is a man obsessed with history, and often reads history in bizarre ways to justify equally bizarre legal conclusions. Thomas, for example, once relied on 17th century parenting guides to argue that high school students should be stripped of their First Amendment rights.
But sometimes it’s also useful to look at the world that we live in now.
Whatever Sanger might have believed in the 1920s, birth control is ubiquitous and eugenics is reviled. The crisis that Thomas imagines — a crisis where family planning is used to eradicate black babies, or something like that — has not manifested. Today’s Americans are fully capable of using birth control in a responsible, non-eugenic manner.
The fact that a famous person said something nearly a century ago that we now view is monstrous is proof that many people believed awful things in the past. But it is not a reason to restrict birth control.