Abortion, Eugenics and Personhood in the Supreme Court

Fertility and Sterility, Forthcoming

San Diego Legal Studies Paper No. 19-405

4 Pages Posted: 3 Sep 2019 Last revised: 5 Sep 2019

See all articles by Dov Fox

Dov Fox

University of San Diego: School of Law

Date Written: 2019


U.S. Supreme Court Justice Clarence Thomas ushered a dark new front in the abortion wars on May 28, 2019, defending sweeping restrictions as a bulwark against “eugenic manipulation.” It’s a shrewd rhetorical move: The specter of eugenics provokes shame and revulsion, whereas 58% of Americans would allow abortion in all or most cases. But the equivalence that Justice Thomas draws between these practices is false and pernicious. It threatens to dangerously distort the national debate over abortion. Indiana is one of eight states to outlaw abortions based on fetal particulars like biological sex or genetic anomaly. Yet all of these states leave prospective parents free to pick and choose among those same offspring traits in all kinds of other ways that many do all the time—like testing embryos for serious disease and opting to match a sperm or egg donor’s ethnicity. This discrepancy makes it look disingenuous at best for Justice Thomas to suggest that “this law and other laws like it” reflect fears about “controlling the population and improving its quality.” If that were true, then restrictions on selection wouldn’t focus on fetuses and pregnancies alone, and exempt every other prevailing method of genetic influence.

When hopeful parents screen for debilitating ailments, and opt to end an otherwise wanted pregnancy, they aren’t trying to weed out people with disabilities from the next generation, or to propagate a superior race. Most are making heart-rending decisions about whether their family unit has the expected wherewithal they'd need to care for a child with potentially serious medical needs. This is a far cry from America's shameful eugenics past. Justice Thomas urges the Court to act soon to let states criminalize selective abortion. Anything less, he warned, “would constitutionalize the views of the 20th-century eugenics movement.” He invites his colleagues to chart a dangerous new course at a time when reproductive rights are under threat as never before. Justice Thomas supposes that fetuses qualify as constitutional persons with equal rights against discriminatory treatment. This gesture toward personhood reveals that laws like Indiana’s aren’t really about eugenics. They’re about the moral status of unborn life and the ability of a woman to terminate her pregnancy in the United States.

Keywords: fetal personhood, abortion, eugenics, undue burden, selective procreation, race, sex, disability

JEL Classification: K00, K10

Suggested Citation

Fox, Dov, Abortion, Eugenics and Personhood in the Supreme Court (2019). Fertility and Sterility, Forthcoming, San Diego Legal Studies Paper No. 19-405, Available at SSRN: https://ssrn.com/abstract=3447419 or http://dx.doi.org/10.2139/ssrn.3447419

Dov Fox (Contact Author)

University of San Diego: School of Law ( email )

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San Diego, CA 92110
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(619) 260-4600 (Phone)

HOME PAGE: https://www.sandiego.edu/law/about/directory/biography.php?profile_id=3332

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