• Show Notes

On Monday, April 12, the Harvard Law Review published my article, “Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade,” which focuses on a relatively obscure solo concurrence that Justice Clarence Thomas issued in a 2019 case called Box v. Planned Parenthood of Indiana and Kentucky. The case was a challenge to an Indiana “reason ban” that made it “illegal for an abortion provider to perform an abortion in Indiana when the provider knows that the mother is seeking the abortion solely because of the child’s race, sex, diagnosis of Down syndrome, disability, or related characteristics.” Although the full Court put off determining the constitutionality of reason bans, Justice Clarence Thomas, writing for himself alone, shared his views of such laws.

As he explained, reason bans, which have proliferated across the country in recent years, promoted the state’s “compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” Thomas then proceeded to elaborate a misleading and incomplete history in which he associated abortion with eugenics, Planned Parenthood founder Margaret Sanger, and the rise of the modern birth control movement. Sanger, he argued, was an unrepentant eugenicist who saw expanded contraceptive access as necessary to ensure that only the most fit in society reproduced. Sanger’s efforts to locate birth control clinics in Black neighborhoods, Thomas maintained, was part of a eugenical effort to impede—and indeed, stamp out—Black reproduction. Today, Thomas suggested, the residue of Sanger’s eugenic plot is evident in the disproportionate rates of abortion among Black women. 

When it was first announced, the concurrence received little attention, but I suspected that it would be a game-changer. I was right. In a stunning example of “life imitating law review,” just a day after my article was published, the full U.S. Court of Appeals for the Sixth Circuit issued a 9-7 ruling allowing an Ohio reason ban to take effect. In doing so, the majority opinion and all but one of the concurrences, cited the Box concurrence, parroting Thomas’ position that reason bans were merely the state’s modest attempt to ensure that abortion did not fulfill its “eugenic potential to eliminate unwanted traits or characteristics.” And the concurrences also reiterated the view that Roe v. Wade and Planned Parenthood v. Casey, the two Supreme Court decisions that lay out the scope and substance of the abortion right, do not extend to circumstances where the challenged abortion law is intended to prevent discrimination on the basis of race, sex, or disability. Critically, the Sixth Circuit’s decision not only calls into question Roe and Casey, it also conflicts with the decisions of other federal courts of appeals, creating a circuit split that likely will bring the abortion debate to the high court once again.

And if the Court takes up the abortion question, Justice Thomas’ effort to link abortion with eugenics and racism will play a pivotal role in shaping the Court’s deliberations. As the Sixth Circuit’s decision makes clear, the concurrence provides a defense of reason bans on the ground that these abortion restrictions serve as fetal anti-discrimination protections, and thus are outside of the scope of existing abortion precedents.