On Wednesday, the U.S. Court of Appeals for the 6th Circuit upheld an Ohio law that prohibits doctors from performing an abortion if they know the reason is because the fetus has been diagnosed with Down syndrome. The 9–7 decision seems to defy the Supreme Court’s decisions in Roe v. Wade and Planned Parenthood v. Casey, which found a constitutional right to terminate a pregnancy before viability. Yet the court’s conservative judges claimed that those precedents did not necessarily apply here, because Ohio was not simply regulating abortion; the state claimed to be combatting eugenics by protecting disabled fetuses from discrimination. The Supreme Court has never squarely confronted these “trait-selection” laws, which often forbid abortions because of race or sex as well; while these bans have cropped up around the country in recent years, courts have consistently ruled that they are foreclosed by precedent. The 6th Circuit’s conservative majority, by contrast, made a bet that today’s SCOTUS will weaken or overturn Roe and Casey to uphold Ohio’s statute—and, perhaps, overturn the constitutional right to abortion in the process.
To get around precedent, the 6th Circuit drew heavily from Justice Clarence Thomas’ 2019 solo opinion in Box v. Planned Parenthood, which decried abortion as a “tool of modern-day eugenics.” A lower court’s heavy reliance on a lone concurring opinion may seem odd. But, in an article published in the Harvard Law Review just two days before the 6th Circuit’s ruling, New York University law professor Melissa Murray presciently anticipated Thomas’ impact on anti-abortion jurisprudence. By tethering abortion to the eugenics movement, Murray wrote, Thomas had not just provided a justification for “trait-selection laws,” but laid the groundwork for overruling Roe and Casey on the grounds that they are tainted by discrimination. I spoke with Murray on Thursday about her article, the 6th Circuit’s decision, and the impact of Thomas’ Box concurrence on the future of abortion rights. Our conversation has been edited condensed for clarity.
Mark Joseph Stern: Let’s start with Thomas’ concurrence in Box. What was his argument?
Melissa Murray: Justice Thomas’ concurrence in Box provided a defense of trait-selection laws that really called into question Roe and Casey because it framed these laws as anti-discrimination or anti-eugenics measures, and suggested that Casey and Roe had nothing to say about them. Then there was all of this discussion about race. Justice Thomas was leaning into this racialized history of eugenics and specifically associating the history of abortion with the history of birth control and the movement that Margaret Sanger led in the 1920s and 1930s, which in recent years has been criticized for its affiliations with the eugenics movement.
That got my attention because the history of birth control is quite distinct from the history of abortion regulations. And in fact, the racialized politics of abortion regulation run the other way. There’s significant historical research that the effort to regulate and restrict abortion after the Civil War was fueled by anxiety that Black women and immigrant women were outpacing their white sisters in reproduction. Abortion restrictions were fueled by the fear that white women were using abortion and, as a consequence, were not having as many children, and the white race was about to be overwhelmed by African Americans and immigrants. This was demographic anxiety about the changing complexion of the United States and the diminution in the white birthrate. Thomas tried to graft the history of abortion onto the history of birth control, but they are not the same thing. I don’t think it’s fair or accurate to conflate them.
You write that another recent case, Ramos v. Louisiana, intersects with Box to turbocharge Thomas’ argument. Can you explain that?
Ramos is a case that challenged Louisiana’s policy of allowing criminal convictions to proceed from a nonunanimous jury verdict. It’s not the first time the court had taken up that question; they had done so before in 1972. Now the court was dealing with this question again, and this time there is all this historical evidence that the nonunanimous jury rule was steeped in the post-Reconstruction effort to diffuse the power of Black jurors and to entrench white supremacy throughout the South. So, there is very clear racial residue around it. In striking down nonunanimous jury rule, the court noted how steeped this was in this history of white supremacy.
Ramos was a really significant development when paired with Thomas’ Box concurrence. It laid out a path for not simply upholding these trait-selection laws, but also for using a challenge to a trait-selection law as a vehicle for revisiting Roe and ultimately dismantling and overruling Roe on the ground that it perpetuates racial injustice. And in his Box concurrence, Thomas also talks about the disability aspect—the idea is that abortion could have eugenic potential because it could keep certain parts of the population who are deemed unfit from reproducing in the future. It could be African Americans you believe to be unfit, or those with disability. He specifically invokes the example of Iceland, where through abortion—which is state-facilitated and subsidized—they’ve basically rooted out all incidents of Down syndrome.
That brings us to the 6th Circuit’s decision, which upheld a law banning abortions because of Down syndrome. How did the majority draw from Thomas’ Box opinion?
Thomas’ Box concurrence essentially invited more litigation on the question of abortion and eugenics, and he’s getting what he solicits in an opinion like this. He seeded this narrative and now you’re seeing it take root and flower. In the 6th Circuit decision, the majority and almost all of the concurrences cited Thomas’ opinion in Box. Judges John Bush and Richard Griffin’s concurrences really leaned into this idea that abortion has eugenic potential. And specifically, this idea that when women seek an abortion for the purpose of avoiding having a child with Down syndrome, they’re basically engaging in a kind of modern-day eugenics program that is undifferentiated from state-sponsored sterilization programs. The 6th Circuit concurrences say there is nothing distinguishable about a state program of sterilization abuse and the individual choice to terminate a pregnancy. The two are coextensive and indistinguishable according to these concurrences.
Judge Julia Smith Gibbons, in her dissent, argues that this is apples to oranges. There’s a real difference between a state sterilizing the “feeble-minded” in Buck v. Bell and an individual woman’s decision to terminate a pregnancy because of a fetal anomaly or diagnosis. But that’s not the language of the Box concurrence, nor is it the language of the 6th Circuit concurrences. They’re very much like, “this is eugenics, and if it can be deployed here to avoid the prospect of Down syndrome, it can also be deployed in these other ways potentially to deracinate entire scores of the population.”
You call Thomas’ history, which obviously influenced the 6th Circuit’s decision, “masculinist.” What do you mean by that?
Black men are the ones who historically have been making this claim about abortion and family planning being tools of state-sponsored genocide. These were arguments that Pan-Africanists like Marcus Garvey made in the 1920s and 1930s. Those same arguments were reprised by the Nation of Islam and Black Panthers and Black Nationalists in the 1960s and 1970s. They were primarily invoked by the men within those movements, and the women in those movements often registered their objections. They would say: The state-sponsored genocide we’re concerned about is not abortion or contraception but the fact that Mississippi and North Carolina are maintaining entire systems of state-sponsored sterilization that are bringing Black women into their ambit. We’re worried about the conditions in which women of color are raising their children. We’re worried about state violence against Black and brown children. We don’t see abortion and contraception as the genocide.
Thomas has coopted the masculinist narrative but completely sidelined the feminist objections being raised alongside the arguments in the 1960s and 1970s. He has really limited and cherry-picked the people whose voices he wants to highlight.
Do you think the 6th Circuit did, too?
In her dissent from the 6th Circuit decision, Judge Karen Nelson Moore takes her colleagues in the majority to task for this. She essentially says: “You want to be historians? Well, historians use primary sources. Maybe you should cite one of those. I’m going to cite some primary sources. It’s really easy to do. Can you even find a primary source for this?” And lo and behold, they don’t.
What are the odds that the Supreme Court itself uses this bad history to hobble or overrule Roe and Casey?
First you need a case that gets to the Supreme Court. And I think the 6th Circuit may just have done that. Now there is a circuit split on the question of whether these trait-selection laws are unconstitutional under Casey. That may truly provide a vehicle for getting a case to the court. And once it gets to the court, it opens up a larger question about whether Roe continues to be good law. And if you have this narrative that’s been raised repeatedly in those concurrences in the 6th Circuit that abortion has eugenic potential. Once you’ve credited that idea, you can begin to line up the arguments against Roe. In light of Ramos, I think there’s an opening to think about whether Roe is rooted in this earlier history of eugenics and the possibility of deracination and is part of a genocidal plot. And suddenly you’re in business.
As you point out in your article, Amy Coney Barrett joined an opinion suggesting trait-selection bans are constitutional while serving on the court of appeals. Do you think the stars are aligning for abortion opponents with this case?
I think one of the reasons why so many were keen to have Barrett on the court was to replace Justice Ruth Ginsburg with a woman who has pro-life sensibilities in the event there was an opportunity to overrule Roe. Then it wouldn’t look like all the conservative men were striking down Roe with all the women in dissent. Now you have a woman with conservative sensibilities who is very clearly skeptical of abortion rights. I think that was a big part of her appeal as a nominee and as a prospective justice. I think the time is right. She’s in the right place. The rest of the court is in the right place. I don’t know what else stands in the way.