Bench Memos

Law & the Courts

Eugenics, Abortion, and Adam Cohen’s Empty Criticism of Justice Thomas

In his 20-page concurring opinion yesterday in Box v. Planned Parenthood , Justice 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.” Thomas traced the ugly history of eugenics in this country and documented the enthusiasm of some eugenicists for legalizing abortion. He also argued that “abortion has proved to be a disturbingly effective tool for implementing the discriminatory preferences that undergird eugenics.” In support of that argument, he cited the very high rate of abortion of children diagnosed with Down syndrome, the widespread practice of sex-selective abortions in Asia, and the “considerable racial disparity” between abortion rates among blacks and whites in this country.

On the Atlantic’s website, Adam Cohen, author of the book Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck, has an essay purporting to criticize Justice Thomas’s use of his book. But Cohen’s essay is just another in the sorry genre of “you properly cited my work in the course of an argument I don’t agree with.” It turns out that it is Cohen, not Thomas, who fails to fairly present the work of the other.

Cohen’s title and subtitle set forth three propositions, none of which his essay supports: “Clarence Thomas Knows Nothing of My Work: The justice used my book to tie abortion to eugenics. But his rendition of the history is incorrect.”

By my count, Thomas cites Cohen’s book for a dozen or so propositions, none of which “tie abortion to eugenics”: for the coinage of the term eugenics; for the role that inheritance plays in eugenic understanding of abilities; for the foundation of eugenics in social Darwinism; for the “‘intellectual craze’” that eugenics had become in the 1920s, “particularly among progressives, professionals, and intellectual elites”; for the “prominent positions” that eugenicists held in major universities; for the role of eugenic arguments in support of the Immigration Act of 1924; for the supposed qualities of dysgenic individuals; and for the marriage bars and forced-sterilization laws adopted by states.

Cohen does not take issue with any of Thomas’s actual citations of his book.

Cohen instead contends that Thomas “relied on a kind of historical guilt-by-association,” supposedly “suggest[ing]” that “abortion is inseparable from America’s history of eugenics. He further contends that Thomas “cited real history that is not particularly relevant to abortion.”

But Cohen badly misrepresents the history that Thomas provides. By Thomas’s account, “Many eugenicists … supported legalizing abortion” in order to prevent “unfit” people “from being born in the first place,” and “abortion advocates—including future Planned Parenthood President Alan Guttmacher—endorsed the use of abortion for eugenic reasons.” (Slip op. at 3.) He documents that some eugenicists “were enthusiastic” about the possibility of using abortion as a method of eugenics and “believed that abortion should be legal for the very purpose of promoting eugenics.” (Slip op. at 13; see id. at 13-15.) Cohen does not even acknowledge, much less dispute, this history in Thomas’s opinion.

The only point on which Cohen actually disagrees with Thomas is semantic: over whether voluntary abortion has the potential to become (in Thomas’s words) “a tool of eugenic manipulation.” As Cohen puts it, a woman “who has an abortion because the child will be born with a severe disability is not acting eugenically—she is not trying to uplift the human race.”

Cohen’s semantic objection is worthy of consideration. But that consideration ought to include Thomas’s weighty evidence (e.g., Down syndrome abortions) that individual abortion decisions can collectively have a eugenic impact—that they can “be a disturbingly effective tool for implementing the discriminatory preferences that undergird eugenics.” But Cohen doesn’t even inform his readers of Thomas’s evidence or of what he is actually arguing. Further, there is plenty of room to interpose here the usual progressive concern about whether such individual decisions are subject to subtle biases and coercion. (Yes, there is a flipping of the usual left-right valence here. In the context, say, of the racial composition of schools, those on the left typically refer to racially imbalanced schools as segregated even when the racial imbalance results from voluntary choices of parents, and those on the right typically reject that label.)

In sum, Justice Thomas made proper use of Cohen’s book, but Cohen failed to present his readers an accurate account of Thomas’s opinion.

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