As red states line up to prohibit — and even criminalize — abortion, the crucial question will be, What counts as an abortion?
The draft opinion in the pending abortion case offers a way to challenge the constitutionality of the case. All contraception. Justice Alito points out in a footnote an argument linking abortion to eugenics. The argument is most closely associated with Justice Clarence Thomas, who in a 2019 concurrence argued that abortion restrictions could be the state’s attempt to prevent abortion from becoming “a tool of eugenic manipulation.” Justice Thomas’s argument The relationship between Margaret Sanger (the founder of Planned Parenthood) and the modern birthcontrol movement and the eugenics movement was a key factor.
Justice Alito’s decision to include that footnote in his draft opinion is puzzling — by the draft opinion’s logic, overruling Roe is a function of textualism and originalism, not eugenics. It could have been a collegial nod towards Justice Thomas, who has meticulously managed the eugenics argument to see it flourish in lower court decisions on abortion.
Or, more ominously, perhaps the footnote is intended to preserve — in the most important Supreme Court decision in a generation — the view that the modern birth control movement is irrevocably tainted by its past associations with eugenics and racial injustice. To remedy a racial inequity, the court has overruled previous precedents.
The draft opinion acknowledges that Brown v. Board of Education was overruled by Plessy V. Ferguson to correct Jim Crow injustices. How better to destabilize and lay the foundation for overruling the right to contraception than to encourage and cultivate the idea that it originated in a racist effort by Blacks to eradicate Black reproduction?
To quote Justice Antonin Scalia, “it takes real cheek” for Justice Alito to insist that the draft opinion’s logic can be confined to abortion and does not implicate any other rights. The document, if finalized, will not simply lay waste to almost 50 years’ worth of precedent — it will provide a blueprint for going even further. The devil is in the details.
Melissa Murray is a professor of law at New York University and a co-host of the “Strict Scrutiny” podcast.
Source: NY Times