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Erasing Roe: 
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Erasing Roe: The Abortion Wars 
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.

​What was noteworthy, however, was that one member of the Court, Justice Thomas, wrote separately to share his views regarding the constitutionality of the Indiana trait-selection statute.

As Justice Thomas explained, the law, and others like it, promoted the state’s “compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”

To this end, Justice Thomas proceeded to elaborate a misleading and incomplete history in which he associated abortion with eugenics and the rise of the modern birth control movement.

Thus, while he concurred in the Court’s judgment to deny certiorari, conceding that “further percolation” may assist the Court’s future review of such laws, he nonetheless maintained that the day was coming when the Court would “need to confront the constitutionality of laws like Indiana’s.”

To be sure, no other member of the Court joined Justice Thomas’s concurrence. And many commentators and scholars decried his selective and misleading invocation of the history of eugenics.

But in drafting his concurrence, it seems Justice Thomas was not concerned with setting straight the historical record. Instead, his ambitions for this concurrence likely were focused on issues closer to the Court’s present docket.

This Article contextualizes Justice Thomas’s Box concurrence and elaborates the way in which his opinion may, in tandem with other recent decisions, provide a roadmap for upholding trait-selection abortion restrictions, overruling Roe v. Wade,

and reconceptualizing the Court’s understanding of racial injury. As the Article explains, the Box concurrence trades, perhaps ironically, on the success of the reproductive justice movement, which has surfaced the myriad ways in which race, class, and other forms of marginalization shape women’s experiences with, and the state’s efforts to regulate, reproduction. But rather than surfacing race as a means of promoting greater reproductive autonomy and access in service of Roe v. Wade, as the reproductive justice movement does, the Box concurrence integrates racial injustice into the history of abortion for the purpose of destabilizing abortion rights.

Read more...
Professor Melissa Murray, New York University Law School
Professor Melissa Murray on Clarence Thomas, Roe, Race, and Eugenics 
​Feature Forum
Erasing Roe: 
A Black Commons Forum
Welcome to the launch of the 'Erasing Roe' forum.  Every two weeks we will post articles that probe and provide deeper analysis of the political, ethical, and moral issues surrounding abortion and women's rights to exercise choice and autonomy over their own bodies.  

We open our forum with Professor Melissa
Murray's analysis of an opinion written by 
Supreme Court Justice Clarence Thomas
in May 2019, in which the Supreme Court issued a per curiam decision in Box v. 
Planned Parenthood of Indiana and
Kentucky, Inc.  Of particular interest to New Black Nationalists is Murray's analysis of Thomas arguing to ban abortion to prevent its use as a tool of modern-day eugenics.   
 @VeseyRepublic
New Black Nationalist Network
Other Melissa Murray Articles: 

The Symbiosis of Abortion and Precedent
November 10, 2020, 134 Harv. L. Rev. 308

Marriage as Punishment'
October 31, 2011, Columbia Law Review