Bench Memos

Law & the Courts

Historians Misread Justice Thomas’s Box Concurrence?

This Washington Post article presents seven historians of the eugenics movement who criticize Justice Thomas’s account, in his concurring opinion in Box v. Planned Parenthood, of the historical link between abortion and eugenics. But it seems to me that they are mistaking Thomas’s account of that link.

According to the article, the historians say that “leading eugenicists and organizations of the day were largely opposed to abortion and birth control.” (My emphasis.) That proposition is entirely compatible with Thomas’s statement that “some eugenicists believed that abortion should be legal for the very purpose of promoting eugenics.” (My underlining; Thomas’s italics.) Thomas supports his statement with citations. (I quote the passage in full here.) Do any of Thomas’s critics believe that his citations don’t support his statement?

More broadly, Thomas’s argument that “[f]rom the beginning, birth control and abortion were promoted as means of effectuating eugenics” is much more a statement about the role of eugenic thinking among early advocates of abortion and birth-control than it is a statement about the role of abortion and birth control in the eugenics movement. The article doesn’t indicate that the historians who criticize him are paying attention to that distinction.

The article further states that “many of the historians were quick to point out that abortion—a personal choice by an individual—differed significantly from the state-mandated programs foisted involuntarily on others by eugenicists.” But Thomas doesn’t contend otherwise. He argues, rather, that “abortion has proved to be a disturbingly effective tool for implementing the discriminatory preferences that undergird eugenics.” Further, one can recognize that government-enforced eugenics present a special evil and be concerned at the same time about the aggregate eugenic consequences of individual choices. (I discuss the latter more fully in point 2 of this post.)

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