Scholars rip apart Clarence Thomas’ new anti-abortion screed: "A gross misuse of historical facts"

“Linking the pro-choice movement to racism . . . He’s a bad man,” Georgia State law professor Eric Segall says

Published May 31, 2019 10:19AM (EDT)

Supreme Court Associate Justice Clarence Thomas (AP/Salon)
Supreme Court Associate Justice Clarence Thomas (AP/Salon)

This article originally appeared on AlterNet.

In that latest sign that at least that the Supreme Court conservative is eager to start tearing down abortion rights, Justice Clarence Thomas issued a decision this week trying to link the pro-choice movement to eugenics.

He drafted a concurrence in the case of Box v. Planned Parenthood of Indiana and Kentucky, where the Supreme Court upheld Indiana’s fetal remains disposal law and declined to review the state’s law banning abortions on the basis of race, sex, or disability, which the Seventh Circuit had struck down. In the opinion, he argued that there was a strong historical connection between abortion and the eugenics movement. To support this claim, he cited Planned Parenthood founder Margaret Sanger and her defense of eugenic aims.

But scholars are rounding rejecting Thomas’s historical claims and legal arguments.

The Washington Post reported that it spoke to seven scholars of the eugenics movement, and none of them believed Thomas got his facts right. That included two scholars who Thomas even cited in the opinion.

Author Adam Cohen wrote in The Atlantic:

In making his argument, Thomas cited my book Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck repeatedly. (He also cited an article I wrote about Harvard’s ties to eugenics). I don’t want to appear ungrateful: It’s an honor to be relied on by the highest court in the land, and these days, nonfiction authors appreciate just being read at all. But Thomas used the history of eugenics misleadingly, and in ways that could dangerously distort the debate over abortion.

“Thomas is guilty of a gross misuse of historical facts, and especially in the U.S. context,” Philippa Levine, a history professor at the University of Texas at Austin, told the Post.

In his opinion, Thomas argued that Sanger’s advocacy for birth control was tied to eugenic visions of “improving stock” of the human gene pool, which he claimed continue to taint the movement of people who defend abortion rights now. But legal scholarMichael Dorf of Cornell University explained on his blog how weak this reasoning is:

[A]s Justice Thomas acknowledges, Sanger opposed abortion. Thomas’s argument thus goes like this: 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.” If some people could or did make arguments for legal abortion based on eugenics, we should reject those arguments, but we still need to evaluate other, untainted, arguments . . .

Justice Thomas starts and ends there, but in between he works himself into a lather about abortion in general. His argument really does appear to be one of guilt by association. Justice Thomas argues that because some people once favored a legal right to abortion for a bad reason, it should be banned today. To Clarence Thomas, all fetuses are Socrates.

University of Michigan history professor Alexandra Minna Stern turned the argument on its head in her comments to the Post, saying that the anti-abortion movement has more in common with eugenics than pro-choice advocacy.

“That’s the through-line that I see, in terms of state-mandated reproductive control,” she said.

“I’ve been criticizing Justice Thomas in essays, articles and books for years and received negative feedback from many. But he is just awful,” said Georgia State law professor Eric Segall. “Linking the pro-choice movement to racism and the rest of his tasteless, odious dicta in today’s opinion is just more data. He’s a bad man.”

By Cody Fenwick

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