The issue is an Indiana abortion case, Box v. Planned Parenthood. In 2016 the state passed a law banning so-called selective abortions—based on race, gender or disability—and requiring that a baby’s remains be cremated or buried after the procedure is finished. The law was challenged, and the Seventh U.S. Circuit Court of Appeals found both provisions unconstitutional.
Last week’s Supreme Court ruling only partially settled the matter. It upheld the state requirement on the disposal of fetal remains but declined to consider the constitutionality of laws that prohibit what he termed “eugenic” abortions. Sooner or later, writes Justice Thomas, the court will have to take up the issue. “Having created a constitutional right to an abortion, this Court is duty bound to address its scope.”
Those words come at the end of Justice Thomas’s concurrence, which amounts to a 20-page summary of the eugenics movement in the U.S., how it found common cause with abortion-rights activists, and the ramifications of this alliance. Margaret Sanger, feminist icon and founder of Planned Parenthood, opposed abortion but thought birth control—including forced sterilization—should be used to prevent “unfit” people from reproducing.
Sanger was especially concerned about black people having children. She campaigned for birth control in black communities and set up a clinic in Harlem in 1930. “Support for eugenics waned considerably by the 1940s as Americans became familiar with the eugenics of the Nazis,” Justice Thomas explains. But “even after World War II, future Planned Parenthood President Alan Guttmacher and other abortion advocates endorsed abortion for eugenic reasons and promoted it as a means of controlling the population and improving its quality.”
Whether or not today’s abortion-rights advocates share the views of yesterday’s eugenicists, technology has made the elimination of fetuses with unwanted characteristics disturbingly commonplace. Abortion rates for babies diagnosed in utero with Down syndrome are close to 100% in some European countries. Sex-selective abortions in India have resulted in some 50 million more men than women in the country.
And eight decades after Margaret Sanger set up her birth-control clinic in Harlem, Justice Thomas writes, “there are areas of New York City in which black children are more likely to be aborted than they are to be born alive—and are up to eight times more likely to be aborted than white children in the same area.” Pro-choice advocates cite black poverty and discrimination to explain high black abortion rates, but other low-income minorities, such as Hispanics, terminate pregnancies at far lower rates than blacks.
This isn’t the first time Justice Thomas has used a concurrence or a dissent to lay out the relevant racial history of a case. And whenever he does so it’s a public service.
By Jason L. Riley