Abortion, eugenics and personhood in the Supreme Court
Dov Fox, JD, LLM, DPhil
University of San Diego School of Law, Center for Health Law Policy & Bioethics
University of San Diego, San Diego, CA.
U.S. Supreme Court Justice Clarence Thomas ushered a dark new front in the abortion wars on May 28, 2019, defending sweeping restrictions as a bulwark against “eugenic manipulation.” His polemic came in a twenty-page opinion on questions unrelated to the majority’s three-page ruling on the constitutionality of a two-part Indiana abortion law. By a vote of 7-2, the Supreme Court upheld the first requirement: that any clinician or facility that ends a pregnancy must bury or cremate the fetal remains, thereby making that medical procedure more costly and less accessible. The Court declined to rule on the other part of the law, which bans any abortion—even at the earliest stages of pregnancy—if the reason for terminating is fetal sex, race, or disability. The lower court had struck down that second provision as an “undue burden” on the right to abortion. The Supreme Court declined any view about the merits of that decision below, thereby letting the invalidation stand. Justice Thomas nonetheless defended the selective abortion ban as necessary to “promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”
It’s a shrewd rhetorical move: The specter of eugenics provokes shame and revulsion, whereas 58% of Americans would allow abortion in all or most cases. But the equivalence between these practices is false and pernicious. It threatens to dangerously distort the national debate over abortion. Indiana is one of eight states to outlaw abortions based on fetal particulars like biological sex or genetic anomaly. Yet all of these states leave prospective parents free to pick and choose among those same offspring traits in all kinds of other ways that many do all the time—like testing embryos for serious disease and opting to match a sperm or egg donor’s ethnicity. This discrepancy makes it look disingenuous at best for Justice Thomas to suggest that “this law and other laws like it” reflect fears about “controlling the population and improving its quality.” If that were true, then restrictions on selection wouldn’t focus on fetuses and pregnancies alone, and exempt every other prevailing method of genetic influence.
Justice Thomas claims that “today’s prenatal screening tests and other technologies” make abortion a “disturbingly effective tool” to “eliminate children with unwanted characteristics.” To back this up, he cites “widespread sex-selective abortions,” higher termination rates “among black women,” and the two-thirds of pregnancies that Americans end after a diagnosis of Down syndrome. This evidence doesn’t support any ties to eugenics. African-American women turn to abortion more often because they are more likely to experience unplanned pregnancy. They’re not trying—or being exploited—to keep black children from being born. Likewise, sex selection is a problem in India and China, but not in the U.S., where the ratio of newborn boys and girls is even and stable.
Among the fetus-specific reasons that the Indiana provision targets, only abortion to avoid disability happens with any frequency in the United States. It’s not just conservatives who worry about the incidence of this practice. Disability-rights advocates share concern about decisions rooted in incomplete or bad information about life with those conditions. Disability-selective abortion is deeply divisive and hurtful to many. But that doesn’t make this practice “eugenic,” at least not in the pejorative and historically resonant sense in which Justice Thomas invokes that term. Nazi horrors perverted most any association with the eugenic core of controlled breeding for human betterment, whether to enhance ostensibly positive traits, or to diminish ones regarded as negative. When hopeful parents screen for debilitating ailments, and opt to end an otherwise-wanted pregnancy, they aren’t trying to weed out people with disabilities from the next generation, or to propagate a superior race. Most are making heart-rending decisions about whether their family unit has the wherewithal and fortitude that they expect they’d need to care for a child with potentially serious medical needs.
This is a far cry from our eugenics past. Justice Thomas is right that “the early 20th century birth-control movement…developed alongside American eugenics.” But eugenic appeal swept across the ideological spectrum during this era, and certainly didn’t spare opponents of reproductive rights. Abortion bans were in fact designed to keep native-born white women from ending their pregnancies, amidst fear that immigrants were having more children. Besides, as even Justice Thomas recognizes, “the preferred solution for many classes of dysgenic individuals” was to forcibly sterilize them, not make them terminate their pregnancies. Abortion today bears little resemblance to eugenic sterilization. The most obvious difference is that abortion empowers individuals to make reproductive decisions, where eugenics denied people that choice. Thirty-three states imposed blueprints for what sorts of people there should be and shouldn’t—no sick, poor, or disfavored: from “indigents” and “epileptics” to “paupers” and “perverts.” Nowadays, it’s up to individuals to make decisions for themselves, whether it’s the woman in an abusive relationship, the high school students not yet ready to have children, or the parents of three, struggling to make ends meet. They’re making decisions based on their own circumstances and personal values.
Justice Thomas closed his opinion by urging the Court to act soon to let states criminalize selective abortion. Anything less, he warned, “would constitutionalize the views of the 20th-century eugenics movement.” Justice Thomas invites his colleagues to chart a dangerous new course at a time when reproductive rights are under threat as never before. His gesture toward personhood supposes that fetuses are protected against discrimination like people are. Yet not a single Supreme Court opinion—not even a concurring or dissenting one, let alone a majority opinion—has ever said that fetuses qualify as constitutional persons with equal rights against discriminatory treatment. Laws like Indiana’s aren’t really about eugenics at all. They’re about the moral status of unborn life and the ability of a woman to terminate her pregnancy in the United States. Will abortion remain what Justice Ruth Bader Ginsburg made clear is a “constitutionally protected right”? Or will that reproductive freedom become what Justice Thomas called a “supposed” right, that is no longer?
 Box v. Planned Parenthood of Indiana and Kentucky, available at https://www.supremecourt.gov/opinions/18pdf/18-483_3d9g.pdf.
 Pew Research, 5 facts about the abortion debate in America (June 6, 2019), https://www.pewresearch.org/fact-tank/2019/06/06/facts-about-abortion-debate-in-america/
 The World Factbook—Field Listing: Sex Ratio, Cent. Intelligence Agency, https://www.ciagov/library/publications/the- world-factbook/fields/2018html.
 Jenna Jerman, Rachel K. Jones, & Tsuyoshi Onda. Characteristics of U.S. Abortion Patients in 2014 and Changes Since 2008, Guttmacher Inst. (May 2016), https://www.guttmacher.org/report/characteristics-us-abortion-patients-2014#2-3a.
 Dov Fox, The Illiberality of Liberal Eugenics, 20 Ratio 1, 2 (2007); Dov Fox, Selective Procreation in Public and Private Law, 64 UCLA L. Rev. Disc. 294, 311 (2016).