Walter M. Weber, ACLJ
The U.S. Supreme Court today issued a decision (pp. 9-34) that upheld an Indiana law requiring the humane disposition of aborted babies. While the Court simultaneously declined to review a separate Indiana law that forbade abortions based on the unborn child’s race, sex, or disability, Justice Clarence Thomas wrote a concurring opinion that powerfully reveals the ugly eugenics movement in the United States and its connection to abortion as a eugenic tool.
The American Center for Law and Justice (ACLJ) had filed a friend-of-the-court brief urging the Supreme Court to review an abortion case out of Indiana. The ACLJ had filed the amicus brief on behalf of itself and parents from 44 families who gave birth to a child with a disability. The case is Box v. Planned Parenthood of Indiana and Kentucky (PPINK) No. 18-483. (There is a separate petition with the same name addressing an Indiana informed consent law. That petition, No. 18-1019, is still pending.)
The state of Indiana had asked the Supreme Court to hear the case. Both the federal district court in Indiana, and then the U.S. Court of Appeals for the Seventh Circuit, held that the challenged provisions were unconstitutional and in conflict with Roe v. Wade, the 1973 Supreme Court decision declaring a right to abortion. Here’s what happened:
Respect for human remains
As the Supreme Court explained, the first challenged statute “excluded fetal remains from the definition of infectious and pathological waste” – i.e., as we phrased it in our amicus brief, abortionists could not “treat the bodies of dead unborn children as just so much ‘medical trash.’” The lower court somehow found this to violate the Supreme Court’s abortion cases, but the Supreme Court strongly disagreed:
This Court has already acknowledged that a State has a “legitimate interest in proper disposal of fetal remains.” . . . The Seventh Circuit clearly erred in failing to recognize that interest as a permissible basis for Indiana’s disposition law.
Even Justices Breyer and Kagan, who are generally sympathetic to pro-abortion legal claims, joined the Court’s 7-2 majority in reversing the lower court on this issue. (Only Justices Ginsburg and Sotomayor voted to deny review of this law.) This aspect of the case should have been easy for the Court – and it was.
Ban on eugenic abortions
Turning to the ban on aborting babies because of their race, sex, or disabilities, the Supreme Court decided not to review the Indiana law, noting that this was the first time the issue had reached a federal appeals court. (The Supreme Court generally prefers to let multiple lower courts rule on an issue before it steps in to resolve the matter.) Nevertheless, there was a very bright spot even on this question: Justice Thomas’s 20-page concurrence. In that opinion, Justice Thomas documented at length the link between Margaret Sanger, Planned Parenthood, the eugenics movement, and the use of abortion as a eugenic tool.
Eugenics, which literally means “good genes,” refers to the “purification” of the human race by the elimination of those deemed “inferior” or “defective.” As Justice Thomas explained, a leading figure of eugenics
described eugenics as “the science of improving stock” through “all influences that tend in however remote a degree to give to the more suitable races or strains of blood a better chance of prevailing speedily over the less suitable than they otherwise would have.” F. Galton, Inquiries Into Human Faculty and Its Development 25, n. 1 (1883).
Justice Thomas’s opinion deserves reading in full, but his key thesis is as follows:
The foundations for legalizing abortion in America were laid during the early 20th-century birth-control movement. That movement developed alongside the American eugenics movement. And significantly, Planned Parenthood founder Margaret Sanger recognized the eugenic potential of her cause.
There are key three points here. Let’s look at them in turn.
First, Margaret Sanger was a hardcore eugenicist (also called “eugenist” in early writings) with clear racist sentiments.
She emphasized and embraced the notion that birth control “opens the way to the eugenist.” Sanger, Birth Control and Racial Betterment, Birth Control Rev., Feb. 1919, p. 12 (Racial Betterment). As a means of reducing the “ever increasing, unceasingly spawning class of human beings who never should have been born at all,” Sanger argued that “Birth Control . . . is really the greatest and most truly eugenic method” of “human generation.” M. Sanger, Pivot of Civilization 187, 189 (1922). In her view, birth control had been “accepted by the most clear thinking and far seeing of the Eugenists themselves as the most constructive and necessary of the means to racial health.” Id., at 189.
As Justice Thomas documented, eugenics was “a ‘full-fledged intellectual craze’ in the United States, particularly among progressives, professionals, and intellectual elites.” Indeed, “[a]lthough eugenics was widely embraced, Harvard was ‘more central to American eugenics than any other university.’” And many prominent eugenicists of the early 1900s were blatantly racist white supremacists. Indeed, eugenicist Lothrop Stoddard titled his best seller “The Rising Tide of Color: The Threat Against White World Supremacy”. (Stoddard worked closely with Margaret Sanger.)
Of course, Justice Thomas explained, “[a]lthough race was relevant, eugenicists did not define a person’s ‘fitness’ exclusively by race. A typical list of dysgenic individuals would also include some combination of the ‘feeble-minded,’ ‘insane,’ ‘criminalistic,’ ‘deformed,’ ‘crippled,’ ‘epileptic,’ ‘inebriate,’ ‘diseased,’ ‘blind,’ ‘deaf,’ and ‘dependent (including orphans and paupers).’” And the Supreme Court itself “threw its prestige behind the eugenics movement in its 1927 decision upholding the constitutionality of Virginia’s forced-sterilization law, Buck v. Bell, 274 U. S. 200.”
As Justice Thomas documented, Margaret Sanger “agreed with eugenicists that ‘the unbalance between the birth rate of the “unfit” and the “fit”’ was ‘the greatest present menace to civilization.’” Sanger believed “frequent reproduction among ‘the majority of wage workers’ would lead to ‘the contributing of morons, feeble-minded, insane and various criminal types to the already tremendous social burden constituted by these unfit.’” In practice, that translated for Sanger into a particular focus on black people: “in 1939, Sanger initiated the ‘Negro Project,’ an effort to promote birth control in poor, Southern black communities.”
In a report titled “Birth Control and the Negro,” Sanger and her coauthors identified blacks as “‘the great problem of the South’”—“the group with ‘the greatest economic, health, and social problems’”—and developed a birth-control program geared toward this population. . . . She later emphasized that black ministers should be involved in the program, noting, “‘We do not want word to go out that we want to exterminate the Negro population, and the minister is the man who can straighten out that idea if it ever occurs to any of their more rebellious members.’” Ibid.
Second, according to Justice Thomas, Planned Parenthood, the organization which Sanger founded (originally called the American Birth Control League), furthered Sanger’s eugenic aims. A successor president of the organization, Alan Guttmacher,
explicitly endorsed eugenic reasons for abortion. A. Guttmacher, Babies by Choice or by Chance 186–188 (1959). He explained that “the quality of the parents must be taken into account,” including “[f]eeble-mindedness,” and believed that “it should be permissible to abort any pregnancy . . . in which there is a strong probability of an abnormal or malformed infant.” . . . He added that the question whether to allow abortion . . . “must have as its focus normal, healthy infants born into homes peopled with parents who have healthy bodies and minds.” . . . Guttmacher stated that “. . . ‘We’re now concerned more with the quality of population than the quantity.’”
Third, Justice Thomas explained, abortion is now a tool for the furtherance of eugenic goals:
abortion can easily be used to eliminate children with unwanted characteristics. Indeed, the individualized nature of abortion gives it even more eugenic potential than birth control, which simply reduces the chance of conceiving any child. As petitioners and several amicus curiae briefs point out, moreover, abortion has proved to be a disturbingly effective tool for implementing the discriminatory preferences that undergird eugenics. . . . Eight decades after Sanger’s “Negro Project,” abortion in the United States is also marked by a considerable racial disparity. 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.
The Indiana law that banned abortions based on race, sex, or disability was a response to the eugenic use of abortion. While it is unfortunate that, for now, the Supreme Court has allowed a lower court ruling against the statute to stand, Justice Thomas’s devastating quotation of the eugenicists’ own words – and Margaret Sanger’s appalling embrace of the same mentality – shines a powerful spotlight on a very chilling aspect of the abortion movement and its flagship business, Planned Parenthood
Used with the permission of the American Center for Law and Justice.
Walter M. Weber is Senior Counsel for the ACLJ in the Washington, D.C. office. A highly regarded legal writer, Weber received his bachelor’s degree from Princeton University and his law degree from Yale Law School. Weber emphasizes First Amendment law and has written briefs in many landmark cases at the Supreme Court including NOW v. Scheidler, Lamb’s Chapel v. Center Moriches School District and Bray v. Alexandria Women’s Health Clinic. Weber has argued more than a dozen times in appeals before federal and state courts. Prior to joining the ACLJ, Weber served as a staff attorney with the Catholic League for Religious and Civil Rights