Editor’s note: The following article is an op-ed, and the views expressed are the author’s own. Read more opinions on theGrio.
This week, in a leaked draft of the opinion in Dobbs v. Jackson Women’s Health, authored by Justice Samuel Alito, the Supreme Court is set to overturn Roe v. Wade and Planned Parenthood v. Casey. The opinion challenges the use of the rights to privacy, liberty and autonomy based on the 14th Amendment on the premise that abortion was not found or even contemplated in the original text of the Constitution.
There is another aspect of this opinion—which should be noted is only a draft and is subject to change in the final version—that is especially troubling to the rights of Black women. In footnote 41, Justice Alito gives a passing acknowledgment of an argument Justice Clarence Thomas has dog-whistled for years: Abortion is a form of eugenics designed to stem the growth of the Black population.
Footnote 41 states, in part: “Other amicus briefs present arguments about the motives of proponents of liberal access to abortion. They note that some such supporters have been motivated by a desire to suppress the size of the African American population….And it is beyond dispute that Roe has had that demographic effect. A highly disproportionate percentage of aborted fetuses are black….For our part, we do not question the motives of either those who have supported and those who have opposed laws restricting abortion.”
Three years ago, in Box v. Planned Parenthood of Indiana and Kentucky, Justice Thomas’ concurrence first brought the eugenics argument to the forefront, as noted by Professor Melissa Murray in her article, “Race-ing Roe.” Box is a 7-2 decision—joined by two pro-choice justices, Breyer and Kagan—that upheld an Indiana law requiring proper disposal of fetal remains by abortion providers. Given the bipartisan nature of the outcome in Box, it would otherwise be insignificant. But, when Justice Thomas speaks, it is usually to coach those who share his extreme beliefs on how to structure future challenges. In footnote 41 and in the amicus briefs cited by Justice Alito, it is evident that his coaching worked. Eugenics and the duty of Black women to sacrifice to preserve the Black race are long-standing, problematic arguments that have now come to the mainstream.
In Justice Thomas’ Box concurrence, he tells a one-sided, out-of-context story about the history of birth control and reproductive rights in America by primarily citing statements by Margaret Sanger. Eugenics is the pseudo-science of improving the human population through controlled and selective breeding. The practice fell out of favor following its adoption by Nazi Germany as a justification for genocide. Thomas argues that because abortion and birth control could be manipulated for this purpose, the state’s compelling interest to prevent eugenics should supersede an individual woman’s right to choose.
Notably, Thomas could have used his argument to end state-mandated sterilization of the “unfit”—as the court has held in the past that these laws are constitutional because the state has a compelling interest to protect the state from the unfit. Instead of using his position to declare forced sterilization unconstitutional, he used it to advocate for additional state interference with the rights of individuals to make their own decisions about reproduction. In Thomas’ world, the state can both sterilize the incompetent while denying other women the right to choose because they may be doing so for the same reason a state chooses to sterilize.
It is evident that Alito’s passing reference has nothing to do with a concern for the lives of Black women. There are many amicus briefs filed in the Dobbs case, including one by Howard University School of Law Human and Civil Rights Clinic that highlights the disproportionate impact that a 15-week abortion ban has on Black women in Mississippi due, in part, to the current infant and maternal mortality crisis. The history of state medical and legal regulation of Black women’s reproduction proves that it is state action, not Black women’s autonomy, that has been the source of eugenics.
Black women have faced a legacy of reproductive control, from forced reproduction during enslavement to sexual terrorism during Reconstruction to the movements for compulsory sterilization at the turn of the 20th century to the modern era featuring disproportionate access to birth control and other forms of reproductive freedom. When combined with the failures of the health care system that result in disproportionate infant and maternal mortality rates, the state laws restricting access to abortion operate as a death sentence for some Black women. Yet, this reality is completely disregarded in Thomas’ concurrence in Box and Alito’s footnote in Dobbs. Instead, Thomas and Alito choose to deliberately disregard Black women’s reality in exchange for false declarations of the protection of Black life.
As Professor Murray explains in “Race-ing Roe,” Thomas has some unexpected bedfellows in his attempt to deny Black women the right to choose. While historical evidence shows that Black women were interested in family planning services for economic reasons and, in some cases, to simply avoid the long-standing disparities in infant and maternal mortality, many Black male leaders agreed with the sentiments of Marcus Garvey, who viewed birth control as “race suicide.” Groups from Garvey’s Pan-Africanist movement to the Black Panthers and Nation of Islam advocated that Black women be fruitful and multiply for the purposes of overwhelming the white power structure, bringing forth soldiers in the crusade for Black freedom, and erasing the losses of slavery and Jim Crow. For some groups, there was no distinction between state-sponsored sterilization and access to birth control and abortion. Regardless of the motivation, both measures had a negative impact on the Black population. The rights and opinions of Black women were not up for consideration.
In Dobbs, Alito’s 98-page screed that admonishes women to vote and denies the sanctity of any right not explicitly in the Constitution, he states that he is not getting into the motives. He is simply pointing out the grave errors of jurists past. Yet, instead of choosing from the numerous other amicus briefs on motives, he chooses to directly give a nod to Thomas’ efforts in aligning eugenics with Black liberation movements. While no other justice joined Thomas’ concurrence in Box, Alito’s footnote within the Dobbs decision gives it greater weight. One is left to wonder how else eugenics can be used to undo the fundamental rights of Black mothers. We need only to look at the outcomes of pre-existing statutes on fetal protection that subject Black mothers disproportionately to drug testing and Black children to the child welfare system to know where this reasoning ends.
In Box, Thomas signaled to state legislators that a broader human rights appeal would be necessary to bring the other conservative members of the court over to his side. In Dobbs, we see that Alito heard the call. The changing composition of the Supreme Court allowed Alito to finally undo nearly 50 years of precedent with a nod to Thomas’ right to life arguments founded in eugenics. While we do not know how far this argument will go, as with most things, we can assume that Black women will disproportionately suffer the consequences.
Carliss Chatman is an associate professor of law at Washington and Lee University School of Law and the host of Getting Common on Voice America Network. She is the author of Companies are People Too, a children’s book illustrated by Winsome Reed, and co-author of Business Enterprises: An Experiential Approach with Carla Reyes. Professor Chatman’s scholarship focuses on comparative personhood, corporate governance, business culture, entrepreneurship, and ethics. She teaches an array of business and commercial law courses, including ethics skills courses that focus on entrepreneurs and start-ups, mergers and acquisitions and deal financing.
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