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Dorothy Roberts argues that Justice Clarence Thomas’s Box v. Planned Parenthood concurrence distorts history

June 06, 2019

The United States Supreme Court recently handed down its decision in Box v. Planned Parenthood of Indiana and Kentucky, Inc., on appeal from the U.S. Court of a Appeals for the Seventh Circuit. In the decision, the Court upheld part of a state law that requires abortion providers to bury or cremate fetal remains, but declined to reinstate a different part of the same law that banned abortions sought on the basis of fetal sex or disability. In a concurring opinion, Associate Justice Clarence Thomas argued that the law furthered the state’s “compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” Penn Law’s Dorothy Roberts shares her thoughts on Justice Thomas’s concurrence:

“Justice Clarence Thomas’s concurrence in Box v. Planned Parenthood of Indiana and Kentucky shamefully distorts the history of eugenics to justify denying the right to abortion. Justice Thomas argued that states are constitutionally permitted to ban abortions sought because of the race, sex, or disability of a fetus to further their “compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” As I have argued elsewhere, we should condemn eugenics, past and present, that intervenes in reproduction based on the myth that social inequalities result from inherited traits. But eugenics laws passed in the early 20thcentury relied on coerced sterilization, not abortion, to regulate devalued populations. Such laws are actually similar to today’s abortion bans: both seek to control reproductive decision making for repressive political ends. Thus, if you oppose eugenic birth control, you should also oppose abortion bans as forms of reproductive oppression.

It is also important to place Justice Thomas’s misguided eugenics argument in the context of a nationwide billboard campaign by antiabortion organizations claiming that abortions sought by black women are a form of racial genocide. One billboard displayed the image of a six-year old African American girl beneath the words: “The most dangerous place for an African American is in the womb.” Far from grasping the dangers of the eugenics era, the abortion-as-black-genocide argument promotes its racist ideology, recalling eugenicist rhetoric advocating sterilization of women deemed unfit to bear children. It demonizes black women for their reproductive decisions while diverting attention from the structural causes of racial disparities in abortion rates. As I argue in my book Killing the Black Body: Race, Reproduction, and the Meaning of Liberty, reproductive justice requires ending coercive birth control policies and abortion restrictions, as well as creating more humane and equitable social conditions that allow for true freedom to make childbearing decisions.”

- Dorothy Roberts, George A. Weiss University Professor of Law and Sociology, Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights