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Thomas and Alito Are Appropriating Racial Justice to Push a Radical Agenda
Just a day after the Supreme Court issued a radical decision on gun rights, it officially declared Roe v. Wade a dead letter. In all of the tumult surrounding the decision in Dobbs v. Jackson Women’s Health Organization, even eagle-eyed Court watchers would have been forgiven for overlooking one curious detail. After all, it was overlooked when it appeared in the draft opinion that was leaked in May. Nestled among Justice Samuel Alito’s arguments laying waste to nearly 50 years of abortion precedent lurked an unassuming footnote documenting a narrative advanced in amicus briefs submitted to the high court. These “friend of the court” briefs, Justice Alito explained, “present[ed] arguments about the motives” of those favoring “liberal access to abortion,” namely “that some such supporters have been motivated by a desire to suppress the size of the African American population.”
According to Alito, claiming abortion is a tool of racial genocide is not beyond the pale. “[It] is beyond dispute that Roe has had that demographic effect.” After all, he noted “[a] highly disproportionate percentage of aborted fetuses are black.” As further support for the view that abortion has functioned as a tool of eugenics, Alito cited Justice Clarence Thomas’s separate opinion in 2019’s Box v. Planned Parenthood of Indiana and Kentucky, a challenge to an Indiana law that prohibited abortion where undertaken for reasons of race or sex selection or because of the diagnosis of a fetal anomaly. The Court declined to review the law, deferring the question of the constitutionality of such “reason bans” to another day. While Justice Thomas agreed with the decision to decline review, he nonetheless wrote separately to emphasize that the day was coming when the Court would have “to confront the constitutionality of laws like Indiana’s,” which, in his view, merely reflected a “compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”
According to Alito, claiming abortion is a tool of racial genocide is not beyond the pale. “[It] is beyond dispute that Roe has had that demographic effect.” After all, he noted “[a] highly disproportionate percentage of aborted fetuses are black.” As further support for the view that abortion has functioned as a tool of eugenics, Alito cited Justice Clarence Thomas’s separate opinion in 2019’s Box v. Planned Parenthood of Indiana and Kentucky, a challenge to an Indiana law that prohibited abortion where undertaken for reasons of race or sex selection or because of the diagnosis of a fetal anomaly. The Court declined to review the law, deferring the question of the constitutionality of such “reason bans” to another day. While Justice Thomas agreed with the decision to decline review, he nonetheless wrote separately to emphasize that the day was coming when the Court would have “to confront the constitutionality of laws like Indiana’s,” which, in his view, merely reflected a “compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”
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