Supreme Court Justice Clarence Thomas agreed with a majority of his colleagues on Tuesday that they should wait for more legal analysis before they rule on the idea of banning abortions based on a fetus’s race, disability or gender. The high court’s reigning conservative voice still used the opportunity to stoke fears that abortion is already a tool used worldwide to eradicate undesirable people.
In his 20-page concurring opinion, Thomas argued that “abortion is an act rife with the potential for eugenic manipulation,” which is the practice of trying to improve the human population by eliminating “inferior” genetic traits.
“Technological advances have only heightened the eugenic potential for abortion, as abortion can now be used to eliminate children with unwanted characteristics, such as a particular sex or disability,” Thomas wrote, mentioning eugenics more than 100 times throughout his opinion.
His view stands in stark contrast to that of many reproductive rights and medical groups, who argue that policing a woman’s reason for having the procedure not only infringes on her constitutional rights, but also paves the way for even more restrictive legislation around women’s bodies.
“[A] growing body of evidence suggests that eugenic goals are already being realized through abortion.”
- Supreme Court Justice Clarence Thomas
To give the justice his due, support for eugenics has historically been at the heart of horrors like the Holocaust and forced sterilization laws. Thomas, however, insisted that the fight against eugenics via abortion is a pressing problem today.
″[A] growing body of evidence suggests that eugenic goals are already being realized through abortion,” he wrote before launching into a history of comments made by abortion advocates over the last 100 years ago to make his case.
But there’s a glaring problem with his thinking: We now have decades of evidence in the U.S. to show that women are perfectly capable of using birth control and abortion to plan their lives without becoming agents of a genetic cleansing conspiracy. Moreover, the evidence Thomas cites lacks important context.
What he gets wrong about race and abortions
In one of his more head-scratching claims, Thomas painted a picture of the modern abortion rights movement as a threat to black America.
“The reported nationwide abortion ratio — the number of abortions per 1,000 live births — among black women is nearly 3.5 times the ratio for white women,” he wrote. And he pointed to concerns raised by the NAACP and other black groups in the 1960s that Planned Parenthood had taken a “‘ghetto approach’ to distributing its services.”
It’s true that black women in the U.S. have a higher rate of abortion than some other demographics. But that’s because widespread inequality in health care access leaves many black women with less exposure to sex education, birth control and other tools to prevent unwanted pregnancies in the first place. Planned Parenthood has said it’s well aware of the problem and that its members work on outreach in minority communities.
Thomas’ suggestion also ignored the disturbing rates of maternal mortality among black women ― yet another consequence of health care inequalities. In a floor debate over Missouri’s strict new abortion ban earlier this month, state Rep. Cora Faith Walker (D) spoke out against the disproportionate risks that black women like her faced.
“The likelihood of me dying in childbirth is four times higher,” she said through tears. “It’s not hyperbole, it’s reality.”
Thomas, meanwhile, opposed the Affordable Care Act when it came before the Supreme Court in 2015.
What he gets wrong about disabilities and abortion
Thomas presented a pretty shocking data point about abortion rates abroad: In Iceland, the abortion rate for children diagnosed with Down syndrome in utero approaches 100%,” he wrote, citing conservative commentator George Will.
Several U.S. media outlets have repeated that statistic. But David S. Cohen, a law professor at Drexel University and co-author of “Living in the Crosshairs: The Untold Stories of Anti-Abortion Terrorism,” tweeted a response to Thomas’ opinion on Tuesday with some important context.
Cohen noted that, according to the chief physician at the maternity ward of Iceland’s National University Hospital, the near 100% figure actually reflects a smaller pool of pregnant women who had chosen to undergo second-step testing for Down syndrome, not all women who undergo the preliminary testing. In other words, Cohen wrote, “[A]lmost 100% of Icelandic women who decide to have an abortion because of a DS diagnosis do, in fact, have an abortion.”
In any case, advocates say that focusing on disabilities-related abortions doesn’t really help people with disabilities.
“I can love my child with Down syndrome and still be pro-choice,” Emily Chesnut, the Ohio mother of a daughter with that disorder, told HuffPost last year. At the time, her state was involved in a court battle over a law that made it a felony to perform an abortion on any woman seeking the procedure for reasons related to Down syndrome.
“If they really cared about making the community better for my daughter, they’d provide more funding for programs that help her,” Chesnut said. “They’d help improve inclusion in schools. They’d help educate parents that Down syndrome doesn’t have to be scary.”
Major advocacy groups like the National Down Syndrome Society did not take a position on the Ohio law and instead emphasized they wanted to end the spread of misinformation about people with that diagnosis.
It’s true, as Thomas wrote extensively in his opinion, that the founders of the reproductive rights movement spoke positively of eugenics in the 1920s, discussing birth control as a way to remove traits they considered undesirable. And as the justice noted, the Supreme Court infamously reached an 8-1 decision in 1927 upholding a Virginia law permitting forced sterilization. But society has evolved and a mainstream thought from decades ago proves nothing about the modern abortion movement.
What he gets wrong about sex-selective abortion
Once again, Thomas pulled a disturbing data point to argue that abortion can be a eugenic tool for those who prefer baby boys over baby girls.
“In Asia, widespread sex-selective abortions have led to as many as 160 million ‘missing’ women — more than the entire female population of the United States,” the justice wrote.
“No one combating sex selection in China or India now argues that the appropriate reaction to decades of violating women’s rights is to swing in the other direction and violate them further.”
- Mara Hvistendahl
For that statistic, Thomas cited journalist Mara Hvistendahl, whose 2011 book “Unnatural Selection” explores the consequences of sex-selective abortions.
But Hvistendahl has spoken out against anti-abortion legislators highlighting the use of sex-selective abortion in Asia to justify restrictions on the procedure in the U.S. The desire for sons over daughters is rooted in pervasive sexism, her book said, and thus it is the status of women that must be dealt with.
“No one combating sex selection in China or India now argues that the appropriate reaction to decades of violating women’s rights is to swing in the other direction and violate them further,” Hvistendahl wrote in a 2011 Salon article objecting to her research being used to argue against abortion. “Just as a woman should not be forced to abort a wanted pregnancy, she should not be forced to carry an unwanted pregnancy to term.”