Amicus

Why Clarence Thomas Is Trying to Bring Eugenics Into the Abortion Debate

The justices know the project of overturning Roe is unpopular. This is a trial balloon.

Clarence Thomas in a suit.
Supreme Court Associate Justice Clarence Thomas arrives for the ceremonial swearing-in of Associate Justice Brett Kavanaugh in the East Room of the White House on Oct. 8, 2018.
Chip Somodevilla/Getty Images

When Justice Clarence Thomas wrote a 20-page concurrence to the Indiana abortion law case in early June, Adam Cohen’s phone started blowing up. In making an argument linking abortion rights to eugenics, Thomas repeatedly cited Cohen’s book, Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck—incorrectly. Cohen joined Dahlia Lithwick to explain what Thomas might be doing in trying to tie abortion access to eugenics.

A transcript of their discussion, which has been condensed and edited for clarity, is below.

Dahlia Lithwick: In Box v. Planned Parenthood, Clarence Thomas, in a 20-page concurring opinion, pretty much rocked the culture wars with a discussion comparing essentially abortion to eugenics. It was a pretty stunning new turn in the abortion debate. In his concurrence, Justice Thomas cited a book written by Adam Cohen. The book is Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck. It was an extraordinary tale of a very dark time in American history, a time when this country allowed for the sterilization of people deemed to be inferior. Adam Cohen was actually pretty surprised to see his book cited by Thomas, and he wrote about that in a piece in the Atlantic last week.

Can you start [with Carrie Buck] and we’ll work our way to Clarence Thomas?

Adam Cohen: Sure. This woman, Carrie Buck, young woman, she had been taken in sort of as a foster child of a family, working a little bit as a maid. She had been taken from her poor single mother, and she was raped by a nephew of the family, and then there’s a question of what to do. She’s a pregnant woman that there’s really no place for.

Back in those days, one option was to declare her feeble-minded, which is what they did, and to send her off to a colony for epileptics and feeble-minded in Virginia, which is what they did. Sounds very strange, but there actually were these colonies around the country and there were laws in Virginia but also in the majority of states saying that if you were held to be feeble-minded or had other qualities that they said were unfit, you could actually be eugenically sterilized.

This is the plan. They send her off there, and she unfortunately gets there just as Virginia has passed one of these eugenic sterilization laws, and the lawyer for the colony doesn’t really want to start sterilizing people until he’s sure that it’s legally acceptable. He actually wants a test case, even a test case to go to the Supreme Court. They choose Carrie Buck, newly arrived, to be the center of this case. They decide to sterilize her.

They give her a lawyer, and the lawyer’s actually one of their friends, someone who had been on the board of the colony, and they try to get this case decided with, ideally for them, a ruling saying that Virginia’s new eugenic sterilization law is constitutional. That becomes the case. It goes all the way up to the Supreme Court. You know, it’s hard to imagine now, but this was a case about whether this woman who had been just rather arbitrarily declared to be feeble-minded could be sterilized by the state because her genes would infect the gene pool.

The Supreme Court 8 to 1 says yes, and that decision was written by the esteemed Justice Oliver Wendell Holmes. This wasn’t just a decision that said, “Well, we’re not going to intrude on the right of states,” or anything like that. This was a rousing, clarion call saying, “Yeah, Virginia should sterilize her, and we need to sterilize more of these people. There’s a tide of unfit people are coming and are going to overwhelm the country, we need more eugenics.” That’s kind of the Carrie Buck story.

It’s easy to look back and just say, What monsters. They were wrong, like you say. But these were our heroes just completely cavalierly accepting basic eugenic predicates. How is it that genteel, well-educated, civil society was all in accord, apparently, that we could go around sterilizing people that we deemed lesser, on I think admittedly flimsy evidence?

Absolutely. It’s a fascinating story. It’s a fascinating moment for all of us to reflect, because it’s just as you say. The idea of eugenics came from England. It was actually first invented by a half cousin of Charles Darwin, and it sort of came out of that scientific moment when people were discovering evolution. Well, maybe the eugenicists said, man could take a role in this and actually help to make the race evolve in a better way.

It came out of science and, oddly enough, out of progressive thinking. Because progressives, we all believe in technology and science and using these things to make a better society. It just so happens back then they were thinking, Well, we can make a better society by making better people. It was a pre–World War II, pre-Holocaust world where people weren’t really thinking about the darker sides of genetic thinking.

In Virginia, where Carrie Buck was, the University of Virginia was a big center of it, and the man who ran the colony for epileptics and feeble-minded was actually a progressive-minded doctor who had come to the conclusion that there wasn’t much to be done about epilepsy, which was a big focus of the colony, so he thought, you know, we have this ability to use science, to use genetics to just breed these things out of humanity. Sounds odd now, but the people who were doing this had progressive and sort of “humane” ideas in mind.

The ones who opposed it, oddly enough, it’s the flip of the abortion issue. It was the Catholic Church, because the Catholic Church believed that you don’t judge people by these bodily attributes, you judge them by their souls, so what you got is when state legislatures around the country were debating eugenic sterilization laws, the Catholic Church was very often the most visible group that was opposing it. Nuns and priests and lay Catholics would show up and oppose it.

In New Jersey, one of the groups that was very much arguing for it was the League of Women Voters. Those were the types of people you got, the progressives, the settlement house workers, the graduates of Vassar.

Do you think, as you’re talking about Harvard and again thinking on Justice Thomas’ concurrence, is part of the allure of linking abortion to eugenics a way of tweaking Harvard and liberals? A way of saying, “Boy, you guys thought you were super progressive and you were working toward the betterment of mankind. You were wrong there and you’re wrong again”?

Absolutely. You know, Justice Thomas is a serious Catholic. The Catholics were right, and yes, [Thomas could be saying] “All you people who have been looking down on me and holding hearings about whether I sexually harassed Anita Hill and who don’t like it when I come to visit your law schools now, you guys were behind the eugenics movement, and hey, coincidentally, you’re now behind abortion. I’m going to tar you with this brush.” I think that’s a brilliant insight.

Can you tell us a little bit about what we now know about Carrie Buck in the rearview mirror? Was she indeed feeble-minded?

No. It’s such a sad story on every level, but one of them is, as I say, her real problem was that she was born poor and she was being raised by a single mother. She had to go into this foster care situation where she was raped. No, there was nothing wrong with her mentally, and because these feeble-mindedness hearings—they didn’t really know what feeble-mindedness was, and it was just done very quickly. If they wanted you sent away because you were pregnant, they could do that. There weren’t elaborate tests. In the end of her life, you know, she actually lived into the early 1980s. People who knew her said she was not feeble-minded. She just got caught up in something.

I think that it’s hard not to tether that conversation about poverty and just not having resources to the conversation that Justice Thomas wants to have about abortion. Again, I think there’s a throughline there because he’s holding out his concern as concern for poor black mothers who are being treated to a second round of eugenics. Again, I think the parallels, at least initially, are pretty striking. Right?

Right, and I think he’s very clever at using these things in just the way you are saying. But in fact, as we know, it’s always the poor folks who get disadvantaged by both things. In the eugenics era, it was absolutely poor women who were most likely to be sterilized. They used to call it a Mississippi appendectomy. We’re going to find a situation where wealthy women will by and large be able to have their abortion needs met, but it’s going to be the poor women who really get screwed over by the court if they continue down this path.

One other piece from your book that I think will help at least set the table for the conversation about what happened in Box v. Planned Parenthood is, how did we as a society come to realize we were wrong about eugenics? You mentioned the Holocaust, but it seems like there was a pretty quick pivot from saying, “Everybody should do this, and all the states should get on board” to “Oh, my God, that was embarrassing.” I wonder, I mean, there aren’t a ton of things about which we change our minds that quickly. Tell us how we came to realize the error of our ways in this country.

The big fervor behind it was really the 1910s and 1920s. Indiana starts us off with the first eugenics sterilization law in 1907, it really picks up steam in the ’20s, and slows down a little bit during the Great Depression just because the country was worrying about other things, but it is exactly as you say. One of the real villains of my book is a guy named Harry Laughlin who ran the Eugenics Record Office that I mentioned. He was very close to the Nazi scientists. He corresponded with them, he actually accepted an honorary degree from the University of Heidelberg in 1938—that was after they had purged all their Jewish faculty. He seemed like he was very sympathetic to the Nazis.

This was all moving along apace, but yeah, once we enter the war and we’re actually as a country committed to defeating Nazism, that’s the first step. Then, of course, when we learn about the atrocities of the Holocaust. In that era is when Laughlin loses his funding and the Eugenics Record Office has to close up shop. He sort of moves back to rural Missouri, where he came from, in disgrace, and that was because foundations were seeing what was going on in Germany, and they didn’t want to fund this anymore. Then, yes, after the war, it is very much discredited. Although it’s worth noting that it wasn’t entirely eliminated, and incredibly enough, the last eugenic sterilization under one of these state laws occurred in I think it was Oregon in 1982. It trails off, but into the ’70s they were still doing a number of eugenic sterilizations.

Briefly just talk about the facts, or what the dispute is in Box v. Planned Parenthood. It’s two abortion restrictions that come out of Indiana, under Mike Pence.

Yeah, two provisions. One was about a prohibition on doing discriminatory abortions, so based on gender, race, or disability. The other was a requirement that fetal remains be given funerary rights, like a child. The court allowed that funerary rights provision to continue. As you said, it was deemed to be somewhat mild, the New York Times called it a compromise, but it does say a lot about where we are in abortion right now, that we now don’t really blink when a state says to a woman, “You need to let them give your fetal remains a funeral just like it was a child,” so there might be another $1,000 tacked onto your bill. It feels like we’re going pretty far down the slope.

But you get invoked on this other question, of people having selective abortions to maybe get rid of girls.

Right, right. I’m minding my own business, having lunch with a friend, I walk out, and I of course look at Twitter. There it is, like, someone has tweeted that my book is all over Clarence Thomas’ concurring opinion. It’s such a strange concurring opinion. There’s absolutely no need for it. It’s not like this was a case where eugenics was briefed or like the Indiana Legislature was talking a lot about eugenics. It’s like a comet coming out of nowhere—Clarence Thomas is writing 20 pages about the eugenics of the situation.

I got pulled into this because he does rely on my book a lot. I mean, he has a lot of facts in there that are historically accurate, but the picture he paints of eugenics and, in particular, tying it to abortion is just completely inaccurate. What it is is an attempt to work backwards from “Wouldn’t it be nice if we could now slander abortion as being about eugenics, so let’s work back and say that this is what the eugenics movement of the early 20th century was about.” But … that’s not what it was about.

One of the things he does, and I think this a little bit gets missed in the media coverage, is he’s not just linking eugenics to abortion, but he’s actually linking it to birth control. Right? I mean, that’s the almost subversive part of this, is that he’s also saying that birth control is somehow adjacent to those questions. That’s staggering too.

It is staggering, absolutely. It’s also a little more complicated because he’s actually on somewhat firmer ground there. I wouldn’t say firm ground, but there’s a little bit more to that because you can say that Margaret Sanger, who was the founder of Planned Parenthood, the main advocate for birth control, she was a eugenicist. Now, defenders of Margaret Sanger say it was really a strategic alliance. She wanted the support of the eugenics movement because her real passion was birth control, and her reason for that was not mainly eugenic—it was that she wanted women to have more choices. But there’s enough bad stuff in Margaret Sanger’s past that I think we can’t completely say that eugenics wasn’t part of the birth control movement. We can say that abortion was never involved at all. Abortion was illegal across the country at that time.

That’s the part I think that you really hammer in your article: This has nothing to do with how they thought about abortion. I’m not clear on why that connection gets made.

It’s a connection he wants to make because he would like to tar abortion with the same brush. I think Thomas had a particular plan in mind by writing this. I think that we’re at a moment in abortion jurisprudence right now, a moment with Kavanaugh there that could go either way. We’re on the precipice. There may be five votes to overturn Roe v. Wade, and I know a lot of smart people say, “Well, they’re not going to rush into that,” but, you know, sometimes they rush into things. Look at Citizens United where people are like, “Wow, this wasn’t even briefed in the lower courts, and no one was talking about striking down all limits on corporate spending.” They do it all very quickly. Look at how quickly the Voting Rights Act was eviscerated.

But I also think that the dilemma for the court is that they know that striking down Roe v. Wade would not be very popular. They know that there’s a lot of support for abortion rights. They also know that the “pro-life movement” has not really persuaded most of the country that abortion is really about killing a human being. I think that this is Thomas’ attempt to get a second argument going. That second argument is a more P.C. argument. It’s saying, let’s think about abortion not only as stopping a beating heart, but let’s think of it as a eugenic movement, a somewhat racist movement. Let’s sort of tie it to the ideas of Nazis and all that. I think this is about branding, about branding abortion in a new, negative way. It’s sort of a trial balloon. None of the other justices signed his concurrence, but I think they’re getting this out there as a way to maybe give some cover if they decide to get radical quickly on abortion.

I should have asked you this when we were talking about the Indiana statute, but I’ll ask it now. Is there a ton of evidence that people are choosing to abort babies based on race or gender or the classifications that the Indiana statute invokes?

That’s a great question. It’s really crucial to what Clarence Thomas got wrong. The first thing he got wrong was just the history. This is not what the eugenics movement was about. But the other thing is he doesn’t really understand what eugenics is as a movement. The eugenics movement of the 20th century and eugenics more broadly is about saying the government is going to tell people who can reproduce and who can’t reproduce, in order to uplift the gene pool. That is the idea, that’s a campaign, a movement with a goal.

That’s not what women are doing in Indiana. If you get a test back and it says that the fetus that you’re carrying is going to die in its first year and have a terrible, painful one year of life, when you make that choice about whether or not to continue the pregnancy—and it is the woman’s choice, if she decides not to—she’s not thinking about, I really want to do this for the gene pool. I want the United States gene pool to be stronger. No, she’s deciding about her life and the life of the fetus as she thinks about it. This is not eugenics. This is individual women making a choice, and it’s wrong to say it’s eugenics.

I think that’s so important. A lot of the critiques—I mean, there’s been a tremendous amount of criticism of Thomas’ logic, and I think a lot of them make this point that you just made now, but let’s just say it again, which is this is not about autonomy. Eugenics movement said you have no autonomy. The state is taking away your autonomy. In that sense, it’s exactly upside-down from what it purports to be, which is an autonomy-affording thing to say we’re going to take away a woman’s right to have an abortion because we’re worried about eugenics. Where in fact, that’s what’s lost—her choice is now gone.

Exactly. The throughline between these two is controlling women. The eugenics movement wanted to control women and tell them which ones were fit to reproduce. The abortion laws want to control women and tell them that they have to bring a child to term. That’s the connection. As you say, it’s the opposite of the connection that Thomas is making.