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The most thought-provoking article you’ll read on the Indiana abortion ruling

Box v. Planned Parenthood of Indiana

In 2016 Indiana passed a law relating to abortion practices. One part of the law dictated how fetal remains must be disposed of (not through regular hospital waste) and another part banned “selective abortions” based on fetal disability, race or sex. If a woman chose to have an abortion because the fetus would have an unwanted disability, race or sex, the law would outlaw the abortion.

Indiana’s law did not fare well in the courts. It came to the Supreme Court after both parts of the law were struck by the Seventh Circuit. In a part-order, part-ruling on Tuesday, the Supreme Court Justices allowed the fetal remains part of the law to proceed and declined to address the selective abortion part of the law (in effect keeping the law off the books).

For the most part, the Justices avoided discussing the merits of the selective abortion ban. That is, except for Justice Thomas, who wrote a lengthy concurrence explaining his dislike for abortions based on characteristics of the fetus.

Fetal Characteristics

Indiana chose a strange set of abortions to group into its abortion ban. It’s very common and to many people not blameworthy to forego having a child with Down Syndrome. It’s less common, at least in the U.S., to have an abortion because you don’t get the sex you wanted. And then there’s race. How many people choose to have an abortion because of the baby’s race?

Justice Thomas’ opinion pulls these fetal characteristics together by outlining the history of a movement popular in the early 1900’s, the eugenics movement. The opinion is thought-provoking and not the ordinary argument against abortion. This report analyzes his connection between selective abortions and eugenics.


If you knew the founder of Planned Parenthood was a proponent of “eugenics,” you’re ahead of most people. Eugenics was a movement starting in the late 1800’s and continuing into the 1930’s that advocated for betterment of the human race. Not specific races (based on color or origin), but the human race.

Eugenicists encouraged smart people to procreate and discouraged reproduction of “the ‘unfit’ — including criminals, alcoholics, psychotics, the retarded, paupers, and those in poor physical health.” To the end of human betterment, eugenicists encouraged family planning and education about human reproduction. They advocated for extreme measures to keep the “unfit” from procreating, like “sterilizing the mentally ill and restricting foreign immigration.” The eugenics movement fell out of favor when the Nazis used the term to justify the atrocities of World War II.

Thomas’ concurrence

Justice Thomas believes selective abortion is a continuation of eugenics, and he wrote at length in a concurrence in Box v. Planned Parenthood to make the connection. After reading the opinion, you may wonder if Indiana lawmakers targeted Thomas’ eugenics argument by creating the law it did.

Here is an introductory excerpt from Thomas’ opinion.

This case highlights the fact that abortion is an act rife with the potential for eugenic manipulation. From the beginning, birth control and abortion were promoted as means of effectuating eugenics. Planned Parenthood founder Margaret Sanger was particularly open about the fact that birth control could be used for eugenic purposes. These arguments about the eugenic potential for birth control apply with even greater force to abortion, which can be used to target specific children with unwanted characteristics. Even after World War II, future Planned Parenthood President Alan Guttmacher and other abortion advocates endorsed abortion for eugenic reasons and promoted it as a means of controlling the population and improving its quality. As explained below, a growing body of evidence suggests that eugenic goals are already being realized through abortion.

Thomas dedicates several pages to highlight the statements of Planned Parenthood founder Margaret Sanger and other abortion advocates that ring tones of the eugenics movement.

As an advocate of Birth Control,” Sanger attempted to fill the gap by showing that birth control had “eugenic and civilizational value.” In her view, birth-control advocates and eugenicists were “seeking a single end”—“to assist the race toward the elimination of the unfit.” But Sanger believed that the focus should be “upon stopping not only the reproduction of the unfit but upon stopping all reproduction when there is not economic means of providing proper care for those who are born in health.

Justice Thomas referenced a few of Sanger’s articles throughout the discussion. It did come as a surprise that Sanger advocated for some of the more atrocious practices of eugenics like sterilization. Some of her comments on race sound racist, and she might well have been. It was the 1930’s. Eugenics clearly was focused on “racial betterment,” and Thomas highlighted how Sanger may have been racist as well (although he does finally note: “Sanger’s motives are immaterial to the point relevant here”).

Eugenics and Racial Betterment

The eugenics movement used the term “racial betterment” to mean bettering the human race, but the connotation today indicates a preference for one human race over another. Under the banner of racial betterment, Sanger did take her birth control advocacy to black communities. And she did say that people in poor communities should use birth control more than people who can afford to keep children out of poverty.

When Sanger went to Harlem to educate people on birth control in the 1930’s, was she being racist? Possibly. It’s a claim that Planned Parenthood defends against. In Planned Parenthood’s view, Sanger advocated for education and choice. She went to minority communities pushing family planning education to raise the health and economic standards of the communities — not to prevent minority babies from being born. However, coupled with the eugenics movement’s hostility toward immigration, it’s not hard to imagine a dose of racism was involved.

Back to Thomas’ concurrence

The history of the eugenics movement and Sanger’s involvement in it gave Thomas an appealing argument line in the Indiana case. What is the connection between eugenics’ discriminatory underpinnings and selective abortion that Indiana tried to outlaw?

Selecting what types of people should exist by using genetics sounds like a dangerous path, especially in light of advancing technology that could bring about “designer babies.” But that’s not the same as having an abortion to avoid having a special needs child, right? And — on what seems an entirely different note — is our society having abortions to discriminate against certain races or against the female sex?

Justice Thomas provided some facts in his concurrence. It is actually very common in Western nations for people to choose abortions in cases of Down Syndrome. Thomas reported that in Iceland, for example, the abortion rate of fetuses with Down Syndrome nears 100% and in the U.S. it’s around two-thirds. As for abortion as a means of sex- and race-discrimination, the evidence from the U.S. is not clear. Historically, people have chosen male babies over female babies. In places such as Asia and India, for example, even more recently there certainly is evidence of sex-selective abortions. The only U.S.-based evidence of sex-selective abortions Thomas reported was specific to Chinese and Asian-Indian families.

As for race-selective abortions in the U.S., Justice Thomas provides evidence that even he notes might not be causally relevant. Thomas reports that the abortion rate among black women is 3.5 times higher than the abortion rate among white women. But the cause is unclear. Is the abortion disparity caused by black women deciding they do not want their babies because of the babies’ race? It seems unlikely. The presumption must be that external pressure is convincing black women to have abortions. Indeed, Thomas said, “insofar as abortion is viewed as a method of ‘family planning,’ black people do indeed ‘tak[e] the brunt of the ‘planning.’” But the Indiana law bans abortions based on the woman’s choice, which is different.

The infographic: Reproductive control over population

Eugenics’ reproductive control issues were justified as a public good: to control the population and to address resource scarcity. The means of doing so incorporated a higher-order judgement on what types of people should exist. We do not support such higher-order control over genetics today. Thomas argues selective abortions are about the same thing. Are they? And are they as bad?

Let’s examine what other reproductive control methods have existed.

Population control efforts have taken many shapes and forms over time and in various parts of the world. China implemented the famous one-child policy in the late 1970s which provided financial incentives for families who had only one child. The policy also implemented birth control advocacy and the more severe impositions of forced sterilization and abortion. Iran, even after the 1979 Revolution, ran a very successful family planning program, offering contraception and education to women.

The infographic outlines various family planning and population control efforts on a spectrum. It starts with the issue: an unsustainable population.

Society has attempted in various ways to control reproduction because the Earth, or a given country, has limited resources. Controlling an unsustainable population may be innocent and educational, and it may be race- or characteristic-discriminatory. Thus, no policy effort in this realm is free of scrutiny. The infographic lists them as they start before conception and then carry on into society.

At the far end of the spectrum is genocide. Genocide is an effort to control the racial, political or cultural characteristics of the population by exterminating whole groups. Genocide is considered the “crime of all crimes.” It is inherently bad.

Here are the stages of societal control over reproduction and population that the infographic outlines.

Pre-conception efforts

Non-imposing population control. Education and information about family planning and contraception fall into this category. The government or other groups can inform people about family planning and let them make their own choices. Positive incentives may be non-imposing too, depending on the circumstances.

Historical eugenics. These are the policies that Justice Thomas warned against in his Box v. Planned Parenthood concurrence. The discriminatory aspects of eugenics methods are problematic. Eugenicists judged the types of people that should procreate, preferring that people with lower intellect and with less money don’t have offspring, and neither should criminals. Eugenics was also wrong to engage in forced sterilization and any other imposed forms of birth control.

Post-conception efforts

Abortion. Now we enter the after-conception phase. Forced abortions are wrong in the same way that forced sterilizations are (or worse). But we are talking about abortions by individual choice. Of course, that’s the choice of the mother, not the fetus. We’ve entered a different discussion all together at this point. Abortions-by-choice are not imposing population control from above; they are permitting people to make decisions out of necessity or convenience.

The Indiana law, however, picks out a small set of abortions to outlaw: those made not for-no-reason-at-all, but because of the genetic traits of the fetus. Are these selective abortions like selective sterilization and other selective birth control practices of eugenics?

The difference is choice. Eugenics imposed birth control methods from the top, from society; or by the government. A society like that would contain the traits that the powerful desired. That’s why it would be dangerous for minority races.

Abortion-by-mother’s-choice does not contain the same dangers, except to the extent that all mothers agree to avoid certain genetic traits. Like Down Syndrome, as the statistics show. Race discrimination, though, just doesn’t follow in the same way. Justice Thomas mentioned that black women in the U.S. are having abortions at a higher rate than white women. Societal pressure, then, would be the problem (assuming that is the cause). Not selective abortions. If black communities have faced societal pressure to have abortions and it actually goes against their preferences, then the societal pressure is the problem. But the selective abortion law wouldn’t resolve that anyway. Presumably, women are still not saying “I’m having an abortion because I don’t prefer the race of the fetus.”

Non-reproductive population control

After birth, population control takes a different form. The methods we use to control people with unwanted characteristics after they are born are imprisonment and other criminal punishments. These certainly are not immune to race- and character-judgements.

Children born without adequate resources experience higher rates of poverty and higher rates of crime. A disproportionate percentage of people convicted of crimes in the United States are racial minorities. The percentage of minorities that face incarceration in the United States is much higher than the percentage of white people.

Thus, in our country, poverty and criminality are tied to race. Not inherently. Criminality is not genetic. But poverty is often inherited. However it happens, our criminal justice system is imprisoning the same groups of people that the eugenics movement would have encouraged not to procreate. So if we aren’t prohibiting people who commit crimes from having offspring who commit crimes (although people usually don’t procreate while in prison), then we address the same unwanted characteristics by imprisoning people. And our system hasn’t figured out how to not make it about race.

The same goes for the death penalty. “Black people make up 13 percent of the population, but they make up 42 percent of death row and 35 percent of those executed” (NAACP). Now it’s easier to see how we end up at genocide.


At the extreme end of the punish-once-they’re-out philosophy is genocide. If genocide is a far cry from modern day criminal punishments, then selective abortions is much much farther. The eugenics movement was blamed for being too Nazi-like, but it was the societal push (the external influence) that gave the resemblance. Selective abortions — the ones Indiana sought to outlaw — do not result from external pressure. Among the methods on this spectrum, it’s the ones being imposed from the top that most resemble genocide. Forced sterilization of the past and criminal punishment of the present.

Perhaps now it’s easier to see why the other Justices didn’t sign on to Thomas’ concurrence.

The most thought-provoking article you’ll read on the Indiana abortion ruling

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About the Author

Mariam Morshedi

Mariam Morshedi

Mariam Morshedi is the Founder and Executive Director of Subscript Law. Before starting Subscript Law, she practiced civil rights law for AARP Foundation, where she litigated housing, consumer and disability rights issues.

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