Bench Memos

Law & the Courts

Contra Michael Dorf on Justice Thomas’s Box Concurrence—Part 1

Law professor Michael Dorf offers several criticisms of Justice Thomas’s concurring opinion in Box v. Planned Parenthood, in which Thomas argued that Indiana’s law barring abortions sought solely because of the child’s race, sex, diagnosis of Down syndrome, or non-lethal disabilities “promote[s] a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” Let’s consider them:

1. Much like Adam Cohen, whose inaccurate account of Thomas’s argument I addressed yesterday, Dorf contends that Thomas is making an argument of “guilt by association” that “goes like this”:

[Margaret] Sanger favored birth control on grounds of eugenics; she also opposed abortion; but the eugenics-based arguments she used in favor of legal birth control apply “with even greater force to abortion”; therefore, abortion is a form of eugenics. This has all the logic of the syllogism in Love and Death that culminates in the conclusion that “all men are Socrates.”

I don’t see how Thomas’s argument can fairly be read this way. Rather than again present my own summary of his argument, I will quote Thomas’s argument at length (with my underlining):

Although Sanger was undoubtedly correct in recognizing a moral difference between birth control and abortion, the eugenic arguments that she made in support of birth control apply with even greater force to abortion. Others were well aware that abortion could be used as a “metho[d] of eugenics,” 6 H. Ellis, Studies in the Psychology of Sex 617 (1910), and they were enthusiastic about that possibility. Indeed, some eugenicists believed that abortion should be legal for the very purpose of promoting eugenics. See Harris, Abortion in Soviet Russia: Has the Time Come To Legalize It Elsewhere? 25 Eugenics Rev. 22 (1933) (“[W]e are being increasingly compelled to consider legalized abortion as well as birth control and sterilization as possible means of influencing the fitness and happiness and quality of the race”); Aims and Objects of the Eugenics Society, 26 Eugenics Rev. 135 (1934) (“The Society advocates the provision of legalized facilities for voluntarily terminating pregnancy in cases of persons for whom sterilization is regarded as appropriate”). Support for abortion can therefore be found throughout the literature on eugenics. E.g., Population Control: Dr. Binnie Dunlop’s Address to the Eugenics Society, 25 Eugenics Rev. 251 (1934) (lamenting “the relatively high birth-rate of the poorest third of the population” and “the serious rate of racial deterioration which it implied,” and arguing that “this birth-rate . . . would fall rapidly if artificial abortion were made legal”); Williams, The Legalization of Medical Abortion, 56 Eugenics Rev. 24–25 (1964) (“I need hardly stress the eugenic argument for extending family planning”— including “voluntary sterilization” and “abortion”—to “all groups, not merely to those who are the most intelligent and socially responsible”).

Abortion advocates were sometimes candid about abortion’s eugenic possibilities. In 1959, for example, [Planned Parenthood president Alan] Guttmacher explicitly endorsed eugenic reasons for abortion. A. Guttmacher, Babies by Choice or by Chance 186–188 (1959). He explained that “the quality of the parents must be taken into account,” including “[f]eeblemindedness,” and believed that “it should be permissible to abort any pregnancy . . . in which there is a strong probability of an abnormal or malformed infant.” Id., at 198. He added that the question whether to allow abortion must be “separated from emotional, moral and religious concepts” and “must have as its focus normal, healthy infants born into homes peopled with parents who have healthy bodies and minds.” Id., at 221. Similarly, legal scholar Glanville Williams wrote that he was open to the possibility of eugenic infanticide, at least in some situations, explaining that “an eugenic killing by a mother, exactly paralleled by the bitch that kills her misshapen puppies, cannot confidently be pronounced immoral.” G. Williams, Sanctity of Life and the Criminal Law 20 (1957)….

But public aversion to eugenics after World War II also led many to avoid explicit references to that term. The American Eugenics Society, for example, changed the name of its scholarly publication from “Eugenics Quarterly” to “Social Biology.” See D. Paul, Controlling Human Heredity: 1865 to the Present, p. 125 (1995). In explaining the name change, the journal’s editor stated that it had become evident that eugenic goals could be achieved “for reasons other than eugenics.” Ibid. For example, “[b]irth control and abortion are turning out to be great eugenic advances of our time. If they had been advanced for eugenic reasons it would have retarded or stopped their acceptance.” Ibid. But whether they used the term “eugenics” or not, abortion advocates echoed the arguments of early 20th-century eugenicists by describing abortion as a way to achieve “population control” and to improve the “quality” of the population. One journal declared that “abortion is the one mode of population limitation which has demonstrated the speedy impact which it can make upon a national problem.” Notes of the Quarter: The Personal and the Universal, 53 Eugenics Rev. 186 (1962). Planned Parenthood’s leaders echoed these themes. When exulting over “‘fantastic . . . progress’” in expanding abortion, for example, Guttmacher stated that “‘the realization of the population problem has been responsible’ for the change in attitudes. ‘We’re now concerned more with the quality of population than the quantity.’” Abortion Reforms Termed “Fantastic,” Hartford Courant, Mar. 21, 1970, p. 16.

In short, Thomas was plainly not making the “guilt by association” argument that Dorf alleges. Instead, he was showing that eugenic thinking has indeed played a significant role in the thinking of some leading advocates of abortion. Is that ugly reality really contestable? Recall that in an unguarded moment, Ruth Bader Ginsburg spoke openly (point 2 here) of her perception in the 1970s that Medicaid funding of abortion would address the “concern about population growth and particularly growth in populations that we don’t want to have too many of.”

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