In Tuesday’s ruling on Indiana’s abortion law, Justice Clarence Thomas took the national debate over the right to choose to a dark new place: eugenics. His 20-page concurring opinion included an extensive discussion of the eugenics movement of the early 20th century. Thomas argued that as the justices consider abortion going forward, they should pay more attention to its potential to become a “tool of eugenic manipulation.”
In making his argument, Thomas cited my book Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck repeatedly. (He also cited an article I wrote about Harvard’s ties to eugenics). I don’t want to appear ungrateful: It’s an honor to be relied on by the highest court in the land, and these days, nonfiction authors appreciate just being read at all. But Thomas used the history of eugenics misleadingly, and in ways that could dangerously distort the debate over abortion.
Thomas’s opinion came as an addendum to a decision that sidestepped the most difficult issues raised by the Indiana law. Although the Court upheld Indiana’s requirement that abortion providers bury or cremate fetal remains, it refused to reinstate another part of the law that banned abortions solely because of the sex or disability of the fetus. The New York Times reported that the decision was “an apparent compromise.” It says a lot about where abortion law is today that upholding a law requiring a woman to allow her aborted fetus to be given the funerary rites of a dead child—and possibly to pay a hefty bill for it—now counts as a “compromise.”