A chart showing simple Mendelian inheritance from “Preventive Medicine and Hygiene” (1917).

Today the U.S. Supreme Court issued an opinion in Box v. Planned Parenthood. The issues of the case can be found here. I want to focus on the concurring opinion by Justice Clarence Thomas. Thomas has long wanted to overturn Griswold v. Connecticut, a landmark 1965 case in which laws prohibiting the sale of contraceptives were declared unconstitutional. Griswold was an important case to establish a right to privacy, something Thomas simply does not think exists.  What is new about Thomas’s concurrence in Box is that he is using the history of eugenics to do so.  A really bad and dishonest history.

I’ve argued elsewhere in this space that we need to treat the history of eugenics with care. Before World War II, the word “eugenics” was ubiquitous: it could mean anything from compulsory sterilization to better prenatal care for infants. Since World War II, for obvious reasons, it has become a “devil term” used to forestall debate since it now marks genocide and little else. Few things show this better than Thomas’s opinion.

Reading Thomas’s opinion you would think that abortion and birth control lead, almost inevitably, to a eugenic nightmare. He warns us that we must be very cautious given:

The fact that abortion is an act rife with the potential for eugenic manipulation. From the beginning, birth control and abortion were promoted as means of effectuating eugenics. Planned Parenthood founder Margaret Sanger was particularly open about the fact that birth control could be used for eugenic purposes. These arguments about the eugenic potential for birth control apply with even greater force to abortion, which can be used to target specific children with unwanted characteristics.

You’ll note how easily Thomas slides from abortion to birth control, since both have a “potential for eugenic manipulation.” It seems that Thomas is against both, not because they are necessarily evil, but because they have a potential for eugenics. Just what other factors need to be in place for them to do so Thomas does not say. It is worth exploring what is missing from Thomas’s account that might lead to such abuse.

A founding document of the American Eugenics Society was The Eugenics Catechism (1926) and can serve as a useful lens on Thomas’s thought. As the Catechism made clear eugenics could be divided into two types: negative eugenics (discouraging the breeding of undesirables) and positive eugenics (encouraging the breeding of the desirable).  The three negative eugenics measures recommended were sterilization, immigration restriction, and segregation. We often think of these as “eugenic” measures–Thomas certainly does–but all of these measures existed before the eugenics movement.

The biologists were late-comers to the legalized compulsory sterilization which had been instituted before eugenics really took off, the eugenicists merely offered to give further rationale to a pre-existing institution. Eugenicists certainly spoke out against immigration restriction, but their voices were only some of those that feared the immigrants from eastern and southern Europe targeted by the 1924 act mentioned by Thomas. The kind of “segregation” advocated by eugenicists did not refer to anti-miscegenation laws, since those had been on the books long before the eugenics craze, but institutionalizing the “feebleminded” so they could not procreate. In other words, most of the institutions we label as “eugenic” existed long before the eugenic movement and eugenicists simply tied their agenda to these institutions. This is not to minimize the evils or harms caused by eugenics, but simply to note that these institutions and social practices existed before any eugenic rationale for them did.

Thomas turns the eugenicist argument on its head: now that eugenics is a devil term, he attaches it to social practices of which he disapproves, but it not at all clear that those practices are eugenic in nature. Take his concerns about rates of abortion for fetuses diagnosed with Down syndrome. He notes the rates of such fetuses which are aborted in different countries around the world. Now, however you feel about this, one thing must be made absolutely clear: such abortions cannot be considered eugenic. Eugenics is a population-level concept, the idea was to move the average for the population upwards for some desirable trait that is heritable. Eugenics taught that we must be concerned with future generations; to protect them from genetic defects while we can. Down syndrome, as a rule,  is not a heritable trait, but a developmental one:

Most cases of Down syndrome are not inherited. When the condition is caused by trisomy 21, the chromosomal abnormality occurs as a random event during the formation of reproductive cells in a parent. The abnormality usually occurs in egg cells, but it occasionally occurs in sperm cells. An error in cell division called nondisjunction results in a reproductive cell with an abnormal number of chromosomes. For example, an egg or sperm cell may gain an extra copy of chromosome 21. If one of these atypical reproductive cells contributes to the genetic makeup of a child, the child will have an extra chromosome 21 in each of the body’s cells.

If a mother makes the difficult decision when faced with the fact that she is carrying a fetus with Down’s syndrome, that decision is not eugenic in nature. It is an intensely personal decision and one that Thomas would take away from her because “eugenics” is such a scary word that even the potential that abortion could lead to “eugenics” is enough to ban it:

Given the potential for abortion to become a tool of eugenic manipulation, the Court will soon need to confront the constitutionality of laws like Indiana’s….Put differently, this law and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.

That last line is nonsensical: the State has a compelling interest to prevent modern-day eugenics, by which he means compulsion by the State. Clearly the State could allow abortion and simply, not implement eugenic programs. Thomas, in his dishonest history of eugenics, does not realize that the problem with eugenics was not the technology of birth control or abortion. Indeed, the eugenicists of the AES were decidedly ambivalent over whether or not birth control (and, following Thomas’s logic, abortion) was eugenic or not:

Q. Is eugenics birth control?

A. No, not in the sense in which the term is commonly used. The conception of fewer inferiors is eugenic, but such birth control as reduces the conception of superiors is opposed to eugenics.

The problem with eugenics was not its relationship to the technology of preventing reproduction. Half a million American men get sterilized each year and are generally quite happy about it. Nor was it the dream of making happier and healthier children down the line; who can object to happy, healthy children? The problem with compulsory sterilization is not the sterilization, it is the compulsion. Thomas wants to rid the world of birth control and abortion because they, somehow, could be used for compulsoryh eugenics. He keeps the compulsion, however, by taking choice away from women and men. The problem with eugenics is that it abrogated to the state the power to control some of the most intimate decisions in our lives. Thomas has no problems with the state keeping that power. In this, his thinking is perfectly in line with the eugenicists he purportedly opposes. 

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