Justice Clarence Thomas’ Long And Labyrinthine Opinion On Abortion This Week Should Be Setting Off Way More Alarm Bells Than It Is…
Since the Constitution says nothing about abortion, where is a Justice to turn?
We held off on writing about this for a few days, even though we found Justice Thomas’ opinion when we first read it to be disturbing, and also borderline obsessive. But we are not lawyers, so we wanted to make sure he’s actually saying what we think he’s saying, and it’s not just some legalese. And each time we read it, it convinced us more that we were reading it correctly, and so here we are…
First of all, Justice Thomas’ concurring opinion was the product of a compromise within the Court on Box v. Planned Parenthood, which means an Indiana law that was overturned by a lower court, won’t be one of the cases it hears, at least not right away. The decision upholds part of that Indiana law, that requires fetal remains to be buried or cremated. But it does not allow immediate implementation of a second part of that law that would expressly forbid abortion on the basis of sex, race, or disability (such as finding a fetus has Down syndrome).
Anyway, Thomas and other Justices indicated they were leaving it stand not because they thought the decision was necessarily the right one, but because they wanted to wait until other, similar cases reached the court. So the fact that they didn’t overturn the lower court decision right now, probably doesn’t matter much.
In his concurring opinion (which we’ve linked to in full here), Justice Thomas says allowing abortion on the basis of sex, race, or disability, is tantamount to deciding who’s born and who’s not on the basis of eugenics. Since the Indiana law is expressly about whether that state “may prohibit the knowing provision of sex-, race-, and disability- selective abortions by abortion providers”, that viewpoint also might not be a surprise.
Thomas does not specifically define “eugenics”, so we’ll give you a dictionary definition here:
“The study of or belief in the possibility of improving the qualities of the human species or a human population, especially by such means as discouraging reproduction by persons having genetic defects or presumed to have inheritable undesirable traits (negative eugenics) or encouraging reproduction by persons presumed to have inheritable desirable traits (positive eugenics).”
Instead, Thomas jumps right in with this:
“The use of abortion to achieve eugenic goals is not merely hypothetical. The foundations for legalizing abortion in America were laid during the early 20th-century birth control movement….And significantly, Planned Parenthood founder Margaret Sanger recognized the eugenic potential of her cause. She emphasized and embraced the notion that birth control ‘opens the way to the eugenist’…. As a means of reducing the ‘ever increasing, un-ceasingly spawning class of human beings who never should have been born at all.’”
Justice Thomas admits Sanger was not talking about abortion here “at least not directly”, but then goes on to assert it doesn’t really matter because:
“Sanger’s arguments about the eugenic value of birth control in securing ‘the elimination of the unfit’, apply with even greater force to abortion.”
So what is surprising, and concerning, is that Thomas’ 20-page long opinion (which he apparently felt compelled to make when he didn’t have to say anything), is mostly an historical treatise asserting that abortion rights in the U.S. (and also even access to birth control), are rooted in a well-organized scheme to promote eugenics. Allowing a bunch of elites (he uses that word) to decide who gets born and who doesn’t, based on what they determine is a child’s potential value to society. Thomas incessantly quotes Sanger, who was a very un-PC individual, and often spoke of the societal benefits of birth control. She also died more than 50 years ago. Thomas also quotes “Freakonomics” and its assertion that a drop in crime in the U.S. is attributable to Roe v. Wade, because so many individuals who would’ve been criminals were instead aborted. He presents that as evidence elites to this day continue to cheer for eugenics much as Sanger did. He also mentions Nazis.
Thomas argues after World War II, eugenics morphed into the term “family planning”, but was pursued just as eagerly by its proponents.
President Trump long ago predicted this Supreme Court, which he’s had a strong hand in building, would overturn Roe v. Wade, and the leave the decision on whether to allow abortions or not to individual states. But what Justice Thomas appears to be postulating would go way beyond that.
“Having created the constitutional right to an abortion, this Court is dutybound to address its scope.”
That seems like way more than leaving it up to individual states to us. Of course, the Supreme Court can’t make laws, but it can determine what kinds of laws can be made. (Roe v. Wade isn’t a law, but its Constitutionality has affected to the ability to pass, or not, many laws).
Thomas says the Supreme Court has been “zealous in vindicating the rights of people even potentially subjected to race, sex, and disability discrimination”. (Unless of course you’re LGBTQ and someone has objections to your lifestyle. Then the court isn’t so resolute).
But what rights are we talking about here? Would barring access to abortion be discriminatory to women? Or would it prevent discrimination by elites who — if you buy into Thomas’ assertion — have perpetrated a more than century old scheme of producing if not a superior race, a more “desirably” composed society?
Meaning if you believe this is mostly all about eugenics, as Justice Thomas appears to, then you at least partly delegitimatize abortion as a women’s rights issue.
We’d bet that if you asked women who are seeking abortions why, virtually none of them would say it’s for the purpose of ensuring the purity of a certain race or weeding out people who would not contribute positively to society. Which means in order to endorse or even follow Thomas’ reasoning, you’d have to believe there is some kind of unseen hand that’s the real power behind America’s pro-choice movement, dedicated to racial and other kinds of purity, ridding the country of — dare we say — deplorables, and employing abortion as the most effective measure of achieving those goals.
So question is, will the other Conservative Justices buy into Thomas’ thesis? We’re sure to find that out before too long.