Professor Melissa Murray on Clarence Thomas, Roe v. Wade, Race & Eugenics
by W. Bernell Brooks lll on 05/07/22
Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade
by Melissa Murray
APR 12, 2021
134 Harv. L. Rev. 2025 [Harvard Law Review]
Amidst a raft of major Supreme Court decisions, a relatively quiet concurrence has planted the seeds for what may precipitate a major transformation in American constitutional law. Writing for himself in Box v. Planned Parenthood, Justice Thomas chided the Court for declining to review a decision invalidating an Indiana law that prohibited abortions undertaken “solely because of the child’s race, sex, diagnosis of Down syndrome, disability, or related characteristics.” Arguing that the challenged law was merely Indiana’s modest attempt to prevent “abortion from becoming a tool of modern-day eugenics,” Justice Thomas proceeded to elaborate a misleading history in which he associated abortion with eugenics, racism, and a broader campaign to improve the human race by limiting Black reproduction.
While many decried his selective and inaccurate invocation of the history of eugenics, Justice Thomas’s ambitions for the concurrence likely went beyond the historical record. Indeed, in drafting the concurrence, Justice Thomas may have been less concerned with history than with the future — and specifically the future of abortion rights and the jurisprudence of race. As this Article explains, the concurrence’s misleading association of abortion and eugenics may well serve two purposes. First, it justifies trait-selection laws, an increasingly popular type of abortion restriction, on the ground that such measures serve the state’s interest in eliminating various forms of discrimination. But more importantly, and less obviously, by associating abortion with eugenic racism, the concurrence lays a foundation for discrediting — and overruling — Roe v. Wade on the alleged ground that the abortion right is rooted in, and tainted by, an effort to selectively target Black reproduction.
Under the principle of stare decisis, a past decision, like Roe v. Wade, cannot be overruled simply because a majority of the current Court disagrees with it. Instead, a “special justification” is required. Justice Thomas’s association of abortion with eugenics constructs the case that racial injustice is the “special justification” that warrants overruling Roe. In this regard, the Box concurrence builds on past decisions, like Brown v. Board of Education, as well as more recent cases, like Ramos v. Louisiana, in which the Court overruled past precedents, in part, to correct racial wrongs.
If undertaken, the Box concurrence’s latent strategy will be devastating to abortion rights, but as this Article explains, its deleterious impact goes beyond eviscerating Roe v. Wade. Under the concurrence’s logic, race may serve dual purposes in shaping the Court’s jurisprudence. As an initial matter, race — and the prospect of redressing racial injustice — furnishes the Court with a potent justification for reconsidering settled precedent. But it also provides the Court with an opportunity to articulate new law that affirms and entrenches the Court’s preferred conception of race and racial harm. In this regard, the Box concurrence is not merely an invitation to recast abortion as an issue of racial injustice; it is an invitation to entirely reconceptualize the meaning of race, racial injury, and racism.
INTRODUCTION
In May 2019, the Supreme Court issued a per curiam decision in Box v. Planned Parenthood of Indiana and Kentucky, Inc., a challenge to two Indiana abortion restrictions — one that “makes it illegal for an abortion provider to perform an abortion in Indiana when the provider knows that the mother is seeking the abortion solely because of the child’s race, sex, diagnosis of Down syndrome, disability, or related characteristics,” and one that prescribed particular protocols for the disposal of fetal remains.
The Court’s disposition of the two challenges was not necessarily noteworthy. It granted certiorari in the challenge to the fetal disposal restriction, while denying certiorari as to the challenge to the trait-selection prohibition.
