Professor Melissa Murray on Clarence Thomas, Roe v. Wade, Race & Eugenics : The Hand Grenade

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.


HomeBlogThe Fanon ArgumentsThe Vesey RepublicDenmark Vesey's NotebookHispanic White Nationalists & J-6 Coup


​      What's Next for the Black Left?             March 20, 2020
Coronavirus Warning Tragic Reality                      April 1, 2020  
Click Below to View Archives

April 2021 - February 2022


Fanon's Quarrel With Negritude
January 28, 2022

The Origins of Fanon's Philosophy
December 12, 2021

Trump Coup Watch 2024
October 17, 2021

The New Apartheid: A Book Forum
August 12, 2021

NBN Supports Afro-Cuban Inspired Revolt
July 21, 2021

South Africa & ANC: Up for Grabs
July 21, 2021 

Street Justice for George Floyd
April 20, 2021


2021 NBN Action Plan
Feb. 10, 2021

Cori Bush VS​. M  Taylor-Greene
Jan. 31, 2021

The Civil War Between Whites
Jan. 17, 2021

Why Trump's Coup Succeeded
Jan. 7, 2021

2020: Great Year for Black Liberation
Jan. 1, 2021  

Free Grandmaster Jay 
December 12, 2020

Trump's Fall - Step Up the Struggle
Nov 7, 2020​

Standing With SARS Movement
October 15, 2020

Feb-September 2020 Archive


29,946 Black COVID-19 Deaths
July 29, 2020

BLM Bristol: Letter on Jen Reid Statue 
July 18, 2020 

Floyd & Brooks: Cell Phone Justice             June 17, 2020 

      Remember the Tulsa Massacre             June 14, 2020 

     China Targets African Students                May 26, 2020   

      17,155 Black Lives Lost to COVID            May 11, 2020

Black Feminism & Afrofuturism
April 17, 2020

   Coronavirus Warning Tragic Reality           April 1, 2020 

       ​What's Next for the Black Left?           March 20, 2020

​Black People Versus Bloomberg           February 21, 2020

​ 
BLM 2.0
What We Believe
​Contact Us
​Reparations
​Fanon Forum
​Afrofuturism
South Africa Project
​The Hand Grenade Blog:
Blog of the New Black Nationalist Movement
 W. Bernell Brooks lll, Editor
Black Nationalist - Fanonist - Womanist