What Thomas’s opinion about abortion today tells us about his jurisprudence as a whole

I’ve been getting a lot of queries about Clarence Thomas’s concurring opinion in Box v. Planned Parenthood of Indiana and Kentucky. Briefly, Thomas spends all but a few paragraphs of his twenty-page opinion outlining what he sees as the eugenicist dimensions of abortion and birth control. This, as many have noted, is a new turn in Thomas’s abortion jurisprudence. Thomas essentially argues here that abortion is the way that women select and de-select the kinds of children they’re going to have.

What’s more, while much of the discussion on the right in this regard focuses on how considerations of the sex of the fetus or the presence of Down syndrome may influence the decision to have an abortion, Thomas focuses overwhelmingly on questions of race. Indeed, he spends an inordinate amount of time in his opinion rehearsing the role of racism in Margaret Sanger’s birth control movement. He discusses her work in Harlem and among African Americans in the South, as well as the connections between Nazism and eugenics. From there he goes to abortion. Reading Thomas, one comes away with the sense that abortion has nothing to do with the autonomy or equality of women, as the left argues. Nor is it, as the conventional right would have it, about the life of the fetus. It is instead a racist practice to control the size of the black population. The same goes for birth control.

At one point in the opinion, Thomas makes a point of noting the NAACP’s concerns during the 1960s about the racist dimensions of the birth control movement:

Some black groups saw “‘family planning’ as a euphemism for race genocide” and believed that “black people [were] taking the brunt of the ‘planning’” under Planned Parenthood’s “ghetto approach” to distributing its services. Dempsey, Dr. Guttmacher Is the Evangelist of Birth Control, N. Y. Times Magazine, Feb. 9, 1969, p. 82. “The Pittsburgh branch of the National Association for the Advancement of Colored People,” for example, “criticized family planners as bent on trying to keep the Negro birth rate as low as possible.” Kaplan, Abortion and Sterilization Win Support of Planned Parenthood, N. Y. Times, Nov. 14, 1968, p. L50, col. 1.

At another point in his opinion, Thomas slyly mentions that the majority opinion in Roe v. Wade cites the work of an extraordinarily influential and renowned British legal scholar who, according to Thomas, flirted with eugenics:

Similarly, legal scholar Glanville Williams wrote that he was open to the possibility of eugenic infanticide, at least in some situations, explaining that “an eugenic killing by a mother, exactly paralleled by the bitch that kills her misshapen puppies, cannot confidently be pronounced immoral.” G. Williams, Sanctity of Life and the Criminal Law 20 (1957). The Court cited Williams’ book for a different proposition in Roe v. Wade, 410 U. S. 113, 130, n. 9 (1973).

By the time the opinion is over, it seems like abortion and birth control are simply a Nazi-style mode of racial management of the demographics of a population.

However extreme this opinion may be (though it is in keeping with some of the rhetoric found in the anti-abortion movement), it is very much in keeping with Thomas’s overall approach to constitutional questions, about an entire array of non-abortion-related matters. I have a book about Clarence Thomas, The Enigma of Clarence Thomas, coming out on September 24, and I don’t want to give too much of it away, so let me just say this: One of Thomas’s most consistent moves in his jurisprudence is to do what he does in this case. That is, take constitutional matters that left and right disagree about but nevertheless argue about on similar and familiar terms—Thomas consistently takes these matters and transforms them into questions of race. He does this with the Establishment Clause: where both sides are debating questions of religion, he makes it about race. He does the same with the Takings Clause: where both sides are debating questions of eminent domain, he makes it about race. He does this with campaign finance: where both sides are debating speech and the First Amendment, he makes it about race. In each instance, he takes the topic at hand and says, nope, this is really about race. And goes from there.

What’s more, as I show in the book, this isn’t just a ruse or a way of trolling the left. It’s not just a simple playing of the race card or opportunism. It’s, well, you’ll have to read the book. Which, as I said, is out on September 24 and which you can pre-order now.

There’s also a lengthy footnote in Thomas’s opinion in Box, where he compares the thinking underlying eugenics to that which underlies disparate impact, a doctrine that falls under the Equal Protection Clause of the Fourteenth Amendment. He cites the work of the conservative black economist Thomas Sowell. I think Thomas’s jurisprudence on disparate impact, as well as the impact and influence of Sowell upon Thomas, has been radically misunderstood. But again, I don’t want to give away too much of the book here. So…

Update (2 pm)

My wife Laura, who works in the reproductive rights movement, just made an excellent point about the parallel between Thomas’s opinion and the Anita Hill controversy. During the Senate confirmation hearings, when Hill accused Thomas of sexual harassment, there was a struggle in the commentary that boiled down to this question: Who gets to be black? Thomas and his supporters presented him as the embattled voice of the black community; Hill was depicted as a treacherous woman in alliance with liberal groups, trying to bring down the black man—and with him, the black community. Thomas was black; Hill was a woman: that was the way the controversy played out, at least on one side. This was one of the many explosive insights at the heart of Kimberlé Crenshaw’s pioneering article “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color.”

Fast-forward to Thomas’s opinion in Box v. Planned Parenthood. Studies show that black women are far more likely to get an abortion than other women. Support for abortion among black women is among the highest of any demographic group. And as Jamila Taylor argued, because black women are more likely to live in states with restrictive abortion laws, they have a lot more to lose from Thomas-inspired or Thomas-inflected opinions. So who gets to be black here? Once again, in Thomas’s world, it’s not black women. Back then, it was the black man; this time, it’s the fetus.



  1. John Briggs May 28, 2019 at 2:34 pm | #

    Clear and sensible. Thanks for this

  2. jonnybutter May 28, 2019 at 4:34 pm | #

    Frustrating that it takes so many months to release a book! I know it’s not as if its moment will have passed by the end of Sept., but..geez. The political air is so dense around us every day, and zeroing in on Thomas seems so canny. I guess they can’t release the ebook early, but they should!

    BTW, this is a fine, horrifying, clarifying article by Sandra Newman about the ubiquity of infanticide in human (and animal) history, mainly among poor people – which she re-upped after the recent AL abortion law was signed.

  3. Chris Morlock May 28, 2019 at 4:57 pm | #

    The post 1960’s created Left Identitarian politics and now the Left is stuck having to deal with the failure of intersectionality and an implosion of these varying social philosophies. I have been saying “I told you so” all my life so it’s nothing new. When I first read articles by Patricia Hill Collins in the mid nineties in college I said to myself that this sounded wrong on some fundamental levels, I was told to shut up and stop being a racist. When I chose to comment on reproductive rights in a purely economic and Marxist analysis, I was told that wasn’t valid.

    Now those same people have seen the first domino fall in the end of Roe V Wade and it was done through the lens of identity politics. More to come I am sure.

    The most ironic thing is that Thomas uses Leftist justifications in this reasoning and this makes Liberals heads explode. Similar to the effect Trump has on the same people. There is in fact a eugenics angle in terms of who gets abortions in the USA- even one of genocide. For a neo-liberal that embraces the “market” this is an un-surmountable obstacle. For a socialist, it’s as simple as accepting the economic racism which causes it.

  4. D'juan Eastman (@Djuaneastman) May 28, 2019 at 7:30 pm | #

    1) Thomas, it is my believe, believes what he says from a religious perspective and a mindset that God has put him in his place. In that context he’s very destructive in his zealotry because he has a kind of hierarchical mindset that was described derisively by Malcolm X in the speech with a telling name that compares slave hands that worked in the field to those that worked in the house. He is destructive because of some uncomfortable truths about race, talking about race, and who gets to explain race more freely and with greatest effect in the United States. In general, conversations about race are uncomfortable unless they are ones that affirm the way things are and can be used in service to maintaining the economic religion of the US. Abortion falls into the identity or tribalism part of Republicanism. Denial of the history of inequality and/or its effects in the US presently also falls into that same identity, but this is a good example of how tactical that public belief is because this is another instance of it being masterfully weaponized. As an in-group, republicans are allowed to enforce false realities into political language. Their identity politics aren’t checked because effective ideas from people who are more in line with the mainstream of differing minority groups make liberal and conservative members of the in-group uncomfortable. So, they are socially censored from political discourse. You can say them, but you’ll be fired after the inevitable conservative backlash and the liberals will not fight that fight as a passive aggressive assist. It’s unlikely the person speaking that view will regain their social standing, even when the critique is blatantly in bad faith and outright bigots are leading the charge. Ilham Omar is an easy example, as there is more of a fight building from the ground up and the optics make it embarrassingly transparent. The talented Dr. Marc Lemont Hill is a more appropriate example, as the pattern is born our clearly in the event that followed his UN speech regarding Israeli internal politics.

  5. D'juan Eastman (@Djuaneastman) May 28, 2019 at 7:31 pm | #

    2) Justice Thomas gets to speak about racism and frame the narrative he wishes to put forth, dog whistle the daft tribal meme that liberals are the more dangerous racist and “African Americans” like myself are somehow ignorant of this fact even though no one believes it because of that social censorship. We can all roll our eyes, but it’s much more problematic to respond to it while identifying exactly how offensive his statement is. It would be a neat trick if it wasn’t so common and so tragic. The rare person who has transcended racism is boxing with their hands behind their back, as they want to call him out for behavior that has a negative name that is common on “African American” internet sites but would be taken as offensive and bigoted if used in any forum that is likely to enter the mainstream political debate. If the person happens to be white, they are deemed racist due to this social convention that is absurd. If they are black, they are playing the race-card, demeaning him as a black man, making everyone uncomfortable, and endanger of not being able to have the rare platform they have to be able to speak effectively when living children are being murdered and the Clarence Thomas squad is out in full force. I’d argue that the “African American” speaker is under a great deal more pressure to pick his/her words carefully at that point. For some I’ve seen I’d even imagine it is terrifying because I honestly feel that they fully understand the responsibility that is placed on their shoulders. Feeling as if they have failed every time another murder happens on video similar to the way they feel for their own children.

  6. D'juan Eastman (@Djuaneastman) May 28, 2019 at 7:32 pm | #

    3) This is why I led with my frustration with pretending that Republicans have principles, as you only know to play that game if you understand why it works or truly care and think you’re right. One would be hard pressed to defend the statement that a sizable number of Republicans loses a great deal of sleep thinking about lives and opportunities of “African American” children. Especially considering this is the party that passed laws to make it easier to run down people protesting DOJ verified inequalities that are resulting in murders to protect windows before and after Heather Heyer’s murder. They also killed the DOJ investigations that kept exposing these inequalities, which obviously are steps that will make the problem worse or keep the situation the same. Arguably, that is legal racial violence.
    Justice Thomas is not working with any concern about that disparity, even though his opinion is an extremely uncommon one in the community he is speaking for, sincerely or disingenuously. He is aided by the cultural acceptance of White Identity Politics in black face. The resulting laws will reflect the preferences of conservative white people. And “African Americans” like myself are left to post memes of Ice Cube with “today is a good day” when Paris Dennard gets fired for unrelated reasons and says something to the effect of his termination was the result of his race. Everyone has a knowing laugh, but no one better say it. Freedom.

  7. John Jackson May 29, 2019 at 1:04 pm | #

    Thomas tells a very misleading story about eugenics in this opinion. See here: https://altrightorigins.com/2019/05/28/clarence-thomas-eugenics/

  8. Roquentin May 31, 2019 at 3:25 pm | #

    Your book on Thomas sounds good and if it sounds like I think it does, you’re using him to get at something much greater. On a gut level, I’m starting to see where he is coming from. It’s the same kind of cynicism that animates much of rural white America, ironically, who tend to see liberalism as crude manipulation by elites first and foremost. Not coincidentally, that’s why he tends to be on their team politically. He may do it for different reasons, that liberal identitarianism is a white man(or woman’s) game, but that distrust is the same. It makes so much sense, at least in hindsight. Thomas thinks all all these liberal issues are just window dressing for the same people pulling the strings he can’t stand.

    Shortly after moving to NYC, I shared an office with a black kid from the Bronx who was in the seminary. He was fairly conservative politically. We actually got along well, surprisingly. I remember him being surprised I was so casual in agreeing with him about the hidden racial motivations behind what went on in the office. This essay about Thomas makes me think of him a little. I remember realizing that black people were the only other demographic in the city that was primarily Protestant, and I had more in common with them culturally than I did with most white people in that regard. Or that I came to the city from small town America, the same as many of them or their parents did from the rural South. Life will always surprise you with who you end up siding with.

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