Numbering serially from my Part 1 post:
2. Also much like Adam Cohen, Michael Dorf argues that “eugenics cannot be an individual project” and that Justice Thomas misuses the term eugenic when he applies it to “an individual decision by an individual woman to have an abortion.”
As I indicated in my response to Cohen, I think that the semantic objection is both worthy of consideration and not really responsive to Thomas’s argument. Like Cohen, Dorf does not inform his readers of Thomas’s weighty evidence that individual abortion decisions can collectively have a eugenic impact. For example, “In Iceland, the abortion rate for children diagnosed with Down syndrome in utero approaches 100%.” Dorf also ignores the possibility that there might be weighty systemic biases that influence individual abortion decisions.
More broadly, the eugenics movement tried to harness the voluntary actions of individuals. As Cohen explains in his book Imbeciles (p. 3), “[w]omen’s clubs filled their agendas with lectures on … arranging eugenic marriages”; clergymen “competed in national eugenic sermon contests” to address the responsibility of churches for “improving the human stock”; and “mass-market magazines urged their readers to do their part to breed superior human beings.”
In short, Dorf’s observation that an individual abortion decision “can have no more than a marginal impact on the composition of the overall human gene pool” does not establish that Thomas is wrong to state that “abortion is an act rife with the potential for eugenic manipulation.”
3. Like Justice Ginsburg, Dorf objects to what he sees as Thomas’s “tendentious language.”
In a footnote, Thomas addresses a lower-court judge’s “suggestion that regulating the disposition of an aborted child’s body might impose an ‘undue burden’ on the mother’s right to abort that (already aborted) child.” In her own footnote response, Ginsburg asserts that “a woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother’.”
Dorf (unlike Ginsburg) objects that Thomas “refers to the abortion of a ‘child,’ without distinguishing early from late abortions.” But where exactly would Dorf draw the line? And what better term would he use for the living human being that is on the early side of that line?
We often use the term child in a special way in the context of the mother-child relationship. If you ask a 70-year-old woman how many children she has and she answers “None,” you would be very surprised to learn that she has two adult sons and two adult daughters.
Dorf’s misreading of Thomas’s argument about the history of eugenic support for abortion (the subject of my Part 1 post) seems designed to set up his inapt joke that “To Clarence Thomas, all fetuses are Socrates.” Among the things that Dorf misses is that Socrates was his mother’s child when he was a fetus.
On Ginsburg’s insistence that “a woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother’”: I’ll first refer the reader to Adam White’s fine tweet thread exploring Ginsburg’s apparent “postmodern” notion that motherhood is a “state of mind,” as well as to Princeton professor Robert P. George’s metaphysical reflections on the matter.
I’ll add, in Ginsburg’s defense, that her assertion might depend on the meaning of “is.” Perhaps Ginsburg is saying that a woman who has aborted her child is no longer a mother because her child no longer exists. (In sympathy for those mothers who have had all their children predecease them, I’d prefer “once a mother, always a mother.”)
But if that’s not what Ginsburg means, I’ll note that the Court’s decisions in both Roe v. Wade and Planned Parenthood v. Casey frequently refer to the pregnant woman seeking abortion as the mother. (E.g.: “the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.) So I don’t see how Ginsburg and Dorf can find Thomas’s use of the term mother objectionable.
4. Citing a book by a colleague of his, Dorf contends that sex-selective abortion doesn’t happen in this country. But he doesn’t acknowledge, much less address, Thomas’s evidence to the contrary:
[R]ecent evidence suggests that sex-selective abortions of girls are common among certain populations in the United States as well. See Almond & Sun, Son-Biased Sex Ratios in 2010 U. S. Census and 2011–2013 U. S. Natality Data, 176 Soc. Sci. & Med. 21 (2017) (concluding that Chinese and AsianIndian families in the United States “show a tendency to sex-select boys”); Almond & Edlund, Son-Biased Sex Ratios in the 2000 United States Census, 105 Proc. Nat. Acad. of Sci. 5681 (2008) (similar).