Footnote buried in leaked abortion opinion invokes 'modern-day eugenics'

A protestor supporting abortion rights holds a sign next to an anti-abortion protestor outside the U.S. Supreme Court, following the leaked opinion suggesting the possibility of overturning the Roe v. Wade abortion rights decision, in Washington, U.S., May 5, 2022. REUTERS/Evelyn Hockstein

(Reuters) - On Monday, the first-ever major leak of a U.S. Supreme Court decision appeared to confirm many Americans’ fear that the court's conservative justices will soon eliminate women’s rights to abortion and reproductive health, upending a half-century old precedent along the way.

The draft opinion by Justice Samuel Alito, joined by four other Republican appointees, concludes that the landmark 1973 ruling in Roe v. Wade was “egregiously wrong from the start.”

Expectedly, the opinion has been hailed by conservatives and drawn harsh criticism from liberals, including women’s rights and racial justice organizations.

Research has shown that women are more likely to die during or after childbirth than from complications of an abortion, and that state laws restricting access to abortion contribute to rising rates of pregnancy-related deaths.

Moreover, U.S. maternal mortality rates are three to four times higher for Black women than for white or Hispanic women, Reuters reported in December 2019.

Abortion legalization in the 1970s “led to a 9.6 percent increase in Black women’s college graduation rate and that abortion access resulted in a 6.9 percent” rise in Black women’s labor market participation rate -- three times higher than the rate for women generally, according to a brief in the Supreme Court case by 18 civil and women's rights groups, including the NAACP Legal Defense and Educational Fund and the League of Women Voters.

The conservative justices’ draft opinion doesn’t meaningfully engage any of these pro-abortion policy considerations, even as it relies in large part on the religious and ethical position that the right to abortion destroys potential life.

Alito’s only consideration of racial disparities is a nod to an ahistorical argument – initially made by Justice Clarence Thomas – that links the right to abortion to the historic eugenics movement, and racist campaigns to limit Black reproduction. Put briefly, the idea is that abortion restrictions are desirable, especially for minorities, because of past attempts by eugenicists and other racist ideologues to artificially limit the Black American population.

The conservative justices’ draft opinion essentially turns a blind eye to actual evidence of grave, racially disparate harms caused by lack of access to maternal healthcare and focuses instead on a fringe argument that seeks to reframe opposition to abortion as racial justice.

In a footnote on page 30, Alito cites arguments made by Thomas in a separate concurring opinion in May 2019, and in a brief filed by a small group of evangelical leaders and conservative organizations, including Alveda King, a Black anti-abortion activist and niece of Martin Luther King Jr. (PBS reported on the movement in this 2017 documentary).

Thomas’ concurrence in Box v. Planned Parenthood reached the remarkable conclusion that the modern birth control movement “developed alongside the American eugenics movement," and that some proponents have been motivated by a desire to suppress the size of the African American population.

It "is beyond dispute that Roe has had that demographic effect," Alito said. "A highly disproportionate percentage of aborted fetuses are black."

Thomas pointed out – correctly -- that the founder of Planned Parenthood, Margaret Sanger, was a fervent eugenicist. In Thomas’ view, restrictions on abortion can therefore be justified by the public’s “interest in preventing abortion from becoming a tool of modern-day eugenics.”

No other justices signed on to Thomas’ opinion. More importantly, although he ultimately conceded that the movement to legalize contraception was distinct from the movement to legalize abortion, Thomas nonetheless maintained that there is a risk the arguments for contraception would support a modern eugenics movement, New York University School of Law professor Melissa Murray wrote in a 2021 law review article, Race-ing Roe.

Seven scholars of the eugenics movement who spoke with the Washington Post in May 2019 said that Thomas' ruling was "deeply flawed," and “distorts history in the service of ideology.”

Ayah Nuriddin, a historian who focuses on eugenics and racial justice, told me that Thomas’ arguments inaccurately conflates the histories of the abortion movement and the eugenics movement. Nuriddin is a postdoctoral fellow at Princeton University.

“Almost all of the architects of the eugenics movement were actually much more interested in marriage laws, and things like involuntary institutionalization or sterilization,” Nuriddin said.

And, although it may seem counterintuitive, many Black Americans living during the eugenics movement saw utility in some of its political ideas -- as a way to “reclaim and vindicate Black womanhood in periods when Black women were targeted by horrific sexual violence,” Nuriddin said.

The Student Nonviolent Coordinating Committee argued during the 1960s that forced sterilization was akin to racial genocide, but members also advocated for Black women’s freedom to choose to use birth control, Murray wrote in Race-ing Roe.

Similarly, “other voices in the Black community explicitly countered Black nationalist opposition to abortion and reproductive rights,” while advocating for broader access to family planning resources, including Martin Luther King Jr., and Shirley Chisholm (who repudiated the Black genocide argument as “male rhetoric, for male ears”), according to Murray.

“This is the complex history Thomas and the court isn’t engaging with,” Nuriddin said.

Thomas’ analysis also fails to grapple with some realities of the present.

According to 2021 surveys by the Pew Research Center, 67% of Black adults supported a right to legal abortion in all or most cases, and 64% of Black Protestants were also in favor.

What's more, modern-day pro-choice laws are quite different from the involuntary, state-mandated programs advocated by eugenicists in the past.

Why, then, would the conservative majority approvingly cite an ahistoric argument about potential Black genocide, aided-and-abetted by women's right to have an abortion, with roots in the Black nationalist movement?

Nuriddin told me that the “fiction about eugenics and planned parenthood is a strategic tool to get Black folks to oppose Roe v. Wade."

“Ironically, when we try to govern who has access to reproductive health and restrict the right to abortion, the same people who were already the targets of the eugenics movement are the people who are going to be harmed," Nuriddin said.

Our Standards: The Thomson Reuters Trust Principles.

Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias.

Thomson Reuters

Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com