Harvard Law Review Harvard Law Review Harvard Law Review

Reproductive Justice

Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade

The full text of this Article may be found by clicking on the PDF link to the left.

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.,

1×1. 139 S. Ct. 1780 (2019) (per curiam). The Court reached a decision in Box without oral argument. As such, the case may be considered part of the Court’s “shadow docket.” The shadow docket refers to “emergency orders and summary decisions that are outside the high court’s main docket of argued cases and decisions.” Mark Walsh, The Supreme Court’s “Shadow Docket” Is Drawing Increasing Scrutiny, ABAJ. (Aug. 20, 2020, 9:20 AM), https://www.abajournal.com/web/article/scotus-shadow-docket-draws-increasing-scrutiny [https://perma.cc/F778-EKGU]. Recently, scholars have noted the challenges that dispositions from the shadow docket present in terms of transparency and predictability. See generally Stephen I. Vladeck, Essay, The Solicitor General and the Shadow Docket, 133 HARV. L. REV. 123 (2019) (discussing these challenges vis-Ă -vis the interaction between the Office of the Solicitor General and the Court); William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & LIBERTY 1 (2015) (arguing that the shadow docket presents difficulties in terms of transparency).

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,”

2×2. Box, 139 S. Ct. at 1783 (Thomas, J., concurring); Ind. Code § 16-34-2-1.1(a)(1)(K) (2019).

and one that prescribed particular protocols for the disposal of fetal remains.

3×3. Ind. Code § 16-41-16-7.6 (2019); 410 Ind. Admin. Code § 35-2-1 (2019).

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.

4×4. Box, 139 S. Ct. at 1781.

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.

5×5. Id. at 1783 (Thomas, J., concurring).

As Justice Thomas explained, the law, and others like it,

6×6. As Justice Thomas detailed in his concurrence, a number of states have taken steps to enact similar prohibitions on race, sex, and disability-selective abortions. See id. at 1783 n.2 (citing Ariz. Rev. Stat. Ann. § 13-3603.02 (2018) (sex and race); Ark. Code Ann. § 20-16-1904 (2018) (sex); Kan. Stat. Ann. § 65-6726 (2017) (sex); La. Stat. Ann. § 40:1061.1.2 (2019) (genetic abnormality); N.C. Gen. Stat. § 90-21.121 (2017) (sex); N.D. Cent. Code Ann. § 14-02.1-04.1 (West 2017) (sex and genetic abnormality); Ohio Rev. Code Ann. § 2919.10 (West 2018) (Down syndrome); Okla. Stat. tit. 63, § 1-731.2(B) (2016) (sex); 18 Pa. Cons. Stat. § 3204(c) (2015) (sex); S.D. Codified Laws § 34-23A-64 (2018) (sex)).

promoted the state’s “compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”

7×7. Box, 139 S. Ct. at 1783.

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.

8×8. See Eli Rosenberg, Clarence Thomas Tried to Link Abortion to Eugenics. Seven Historians Told the Post He’s Wrong., Wash. Post (May 30, 2019, 9:50 PM), https://www.washingtonpost.com/history/2019/05/31/clarence-thomas-tried-link-abortion-eugenics-seven-historians-told-post-hes-wrong [https://perma.cc/5DNR-PJT5]; Imani Gandy, When It Comes to Birth Control and Eugenics, Clarence Thomas Gets It All Wrong, Rewire (May 29, 2019, 5:11 PM), https://rewire.news/ablc/2019/05/29/when-it-comes-to-birth-control-and-eugenics-clarence-thomas-gets-it-all-wrong [https://perma.cc/3HZ3-689B]; Lydia O’Connor, What Justice Clarence Thomas Gets Wrong About Eugenics and Abortion, Huffington Post (May 29, 2019, 5:50 PM), https://www.huffpost.com/entry/clarence-thomas-eugenics-abortion_n_5ced6c87e4b0356205a07182 [https://perma.cc/6AHJ-MS5U].

Thus, while he concurred in the Court’s judgment to deny certiorari, conceding that “further percolation”

9×9. Box, 139 S. Ct. at 1784 (Thomas, J., concurring).

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.”

10×10. Id.

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.

11×11. See, e.g., Mary Ziegler, Essay, Bad Effects: The Misuses of History in Box v. Planned Parenthood, 105 Cornell L. Rev. Online 165, 196–202 (2020) (critiquing the historical arguments in Justice Thomas’s Box concurrence and arguing that “it is wrong to equate the population-control and abortion-rights movement — or to argue that eugenicists dominated the movement for population control,” id. at 200); Samuel R. Bagenstos, Disability and Reproductive Justice, 14 Harv. L. & Pol’y Rev. 273, 276 (2020) (“When Justice Thomas and others seek to weaponize disability rights against abortion, they distort or disregard the full history of eugenics.”); Adam Cohen, Clarence Thomas Knows Nothing of My Work, The Atlantic (May 29, 2019), https://theatlantic.com/ideas/archive/2019/05/clarence-thomas-used-my-book-argue-against-abortion/590455 [https://perma.cc/8835-64ZU] (explaining that “Thomas used the history of eugenics misleadingly, and in ways that could dangerously distort the debate over abortion”); Rosenberg, supra note 8 (“The Washington Post spoke to seven scholars of the eugenics movement; all of them said that Thomas’s use of this history was deeply flawed.”); Joanna L. Grossman & Lawrence M. Friedman, Junk Science, Junk Law: Eugenics and the Struggle over Abortion Rights, Justia: Verdict (June 25, 2019), https://verdict.justia.com/2019/06/25/junk-science-junk-law-eugenics-and-the-struggle-over-abortion-rights [https://perma.cc/3JUS-THGA] (“But if eugenics rested on junk science, Thomas’ opinion — and the eugenics label — might be said to rest on junk history, and to end up in what might be called junk law.”); Dorothy Roberts Argues that Justice Clarence Thomas’s Box v. Planned Parenthood Concurrence Distorts History, Penn. L. (June 6, 2019), https://www.law.upenn.edu/live/news/9138-dorothy-roberts-argues-that-justice-clarence [https://perma.cc/84BX-ELVP]; Michael C. Dorf, Clarence Thomas’s Misplaced Anti-Eugenics Concurrence in the Indiana Abortion Case, Dorf on Law (May 28, 2019), http://dorfonlaw.org/2019/05/clarence-thomass-misplaced-anti.html [https://perma.cc/7KFF-S3QK]; Alexandra Minna Stern, Opinion, Clarence Thomas’ Linking Abortion to Eugenics Is as Inaccurate as It Is Dangerous, Newsweek (May 31, 2019, 12:02 PM), https://www.newsweek.com/clarence-thomas-abortion-eugenics-dangerous-opinion-1440717 [https://perma.cc/DE5J-TQ2K]; Gandy, supra note 8; O’Connor, supra note 8.

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,12×12. 410 U.S. 113 (1973). 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.

Although Roe has been widely critiqued over the years, it has never been formally overruled. The doctrine of stare decisis, which demands fidelity to past decisions on the same, or similar, issues, has been the chief impediment to overruling Roe.

13×13. See Melissa Murray, The Supreme Court, 2019 Term — Comment: The Symbiosis of Abortion and Precedent, 134 Harv. L. Rev. 308, 311 (2020).

Under the Supreme Court’s stare decisis jurisprudence, a past decision cannot be overruled simply because a majority of the current Court disagrees with it.

14×14. See Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014) (citing Dickerson v. United States, 530 U.S. 428, 443 (2000)).

Instead, a “special justification” is required to overrule.

15×15. Id.

Thus, in order to override the demands of precedent and dislodge Roe, which has been repeatedly reaffirmed by the Court,

16×16. See Murray, supra note 13, at 310.

some “special justification” must be proffered.

17×17. Halliburton, 573 U.S. at 266.

Under the logic of the Box concurrence, that special justification is race. In this way, Justice Thomas’s Box concurrence constructs a narrative that associates abortion with eugenics and racial injustice, such that when the Court next confronts Roe, it may, as it famously did in Brown v. Board of Education,18×18. 347 U.S. 483 (1954). circumvent the demands of stare decisis and overrule its most controversial precedent in the name of racial justice.

Accordingly, where other efforts to discredit Roe have failed, Justice Thomas’s Box concurrence plants the seeds for a potentially more successful strategy. Rather than insisting that Roe is wrongly decided, those intent on overruling it need only argue that the Roe Court failed to fully appreciate the racial dynamics and underpinnings of abortion. In this regard, the Box concurrence provides a roadmap to lower courts and abortion opponents to challenge Roe on the grounds that the abortion right allegedly is rooted in racial injustice and results in disproportionate impacts on minority groups.

If this strategy is successful, it will have implications that reverberate beyond Roe and abortion rights. By 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 contested precedents. But it also provides the Court with an opportunity to articulate new precedents that may affirm and entrench the Court’s preferred conception of race and racial harm. This is particularly meaningful when one considers that the Court’s race jurisprudence is replete with contested narratives about the nature of race and racial liability. 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.

This Article proceeds in four Parts. Part I lays a contextual foundation for a critique of the Box concurrence by providing a full and nuanced account of the role that race has played on both sides of the abortion debate. As it explains, from slavery to the present, race has been inextricably intertwined in discussions of reproductive rights. With this in mind, this Part counters the thin historical account that Justice Thomas provides in the Box concurrence with a more robust and nuanced discussion of the history of abortion criminalization, the birth control movement, and the association of reproductive rights with Black genocide. In charting the intersection of race and reproductive rights, this Part considers the emergence of the reproductive justice movement and the co-optation of reproductive justice themes by those opposed to abortion rights. It concludes by locating the Box concurrence and its racialized critique of abortion within this trajectory.

Part II focuses on the Box concurrence’s immediate goal — providing a defense of trait-selection abortion restrictions. By characterizing abortion as a “tool of modern-day eugenics,”19×19. Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1783 (2019) (Thomas, J., concurring). the concurrence augments the existing defense of trait-selection laws as antidiscrimination measures that do not trigger the heightened constitutional scrutiny that generally attends restrictions on the abortion right, or, more troublingly, that fall outside of the scope of traditional abortion jurisprudence.

Parts III and IV pivot to the heart of the argument — that the aspirations for the Box concurrence are not limited to simply defending trait-selection laws. Instead, the racialized critique of abortion rights lays a foundation for discrediting — and eventually overruling — Roe v. Wade. As Part III explains, the effort to overrule Roe v. Wade and the abortion right has been stymied by the force of stare decisis.

20×20. See Murray, supra note 13, at 310.

However, in the Court’s history, the prospect of correcting racial wrongs has served as a predicate for reconsidering — and overruling — past precedents. To support this claim, this Part considers Brown v. Board of Education and Loving v. Virginia,21×21. 388 U.S. 1 (1967). in which the Court overruled two earlier precedents in the interest of promoting racial equality. To underscore that the interest in overruling in order to correct racial wrongs is not confined to the Court’s past, this Part also discusses Ramos v. Louisiana,22×22. 140 S. Ct. 1390 (2020). a case from the most recent Supreme Court term, in which the Court overruled a 1972 precedent in part because the earlier decision was inattentive to the challenged policy’s “racist origins.”

23×23. Id. at 1405.

Part IV considers the broader implications of this strategy for issues of reproductive justice and racial justice. The Article then briefly concludes.


* Frederick I. and Grace Stokes Professor of Law, New York University School of Law. For helpful suggestions and feedback, I’m grateful to Susan Frelich Appleton, Rabia Belt, Devon Carbado, Guy-Uriel Charles, Erwin Chemerinsky, Katherine Franke, José Edwin Argueta Funes, Michele Goodwin, Stephen Lee, Leah Litman, Serena Mayeri, Caitlin Millat, Joy Milligan, Jamelia Morgan, Erin Murphy, Douglas NeJaime, Shaun Ossei-Owusu, Alice Ristroph, Rachel Rebouché, Judge Carlton Reeves, Laura Rosenbury, Bertrall Ross, Deborah Tuerkheimer, Carol Sanger, Reva Siegel, Fred Smith, Karen Tani, and Kendall Thomas. I presented this paper at Columbia Law School’s Barbara Aronstein Black Lectures on Women and Law. I am grateful for the helpful feedback I received there, as well as the comments received at the Family Law Scholars and Teachers Conference, the Lutie A. Lytle Black Women Law Faculty Workshop, and faculty workshops at Rutgers, George Washington University, the University of Colorado, the University of Pennsylvania, UC Irvine, Northwestern, Temple, Stanford, Berkeley, the University of Florida, NYU, and Vanderbilt. Alon Handler and Hilarie Meyers provided outstanding research assistance. All errors are my own.