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Excerpted From: Melissa Murray, Abortion, Sterilization, and the Universe of Reproductive Rights, 63 William and Mary Law Review 1599 (April 2022) (228 Footnotes) (Full Document)


MelissaMurrayOn April 13, 2021, an en banc panel of the United States Court of Appeals for the Sixth Circuit issued a ruling allowing an Ohio abortion restriction to take effect. The challenged restriction bars doctors from performing abortions on women who choose to end their pregnancies because the fetus has Down syndrome. Similar trait-selection laws, colloquially known as “reason bans,” have been enacted around the country, including at the federal level have been successfully challenged and invalidated under the Supreme Court's long-standing abortion precedents, Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. But the Sixth Circuit's 9-7 ruling departed from the logic of these other cases, concluding that “there is no absolute or per se right to an abortion based on the stage of the pregnancy.” The conflict between the Sixth Circuit's ruling and the other federal courts of appeals presents a circuit split that could bring the constitutional status of reason bans--and the abortion right more generally--to the Supreme Court's doorstep once again.

Although it would not be the first time the high court has confronted the charged question of abortion, in this iteration, the terms of the debate would be starkly different from earlier abortion challenges. Whereas the conflict over abortion rights has long been framed in terms of women's autonomy and equality, the Sixth Circuit's decision upholding the challenged reason ban frames abortion in terms of eugenics and discrimination. In its decision allowing the Ohio reason ban to take effect, a majority of the full Sixth Circuit credited the State's interest in “protect [ing] the Down syndrome community--both born and unborn--from ... discriminatory abortions.” A flurry of concurring opinions went even further, characterizing the challenged abortion law as “an anti-eugenics statute” aimed at preventing “physicians from knowingly engaging in the practice of eugenics,” and noting the associations between eugenics and the Holocaust.

To be sure, in characterizing reason bans as “antidiscrimination” measures, the judges of the Sixth Circuit were not writing on a blank slate. Both the majority and the concurrences cited Justice Thomas's concurring opinion in Box v. Planned Parenthood of Indiana and Kentucky. In Box, the high court, in a per curiam opinion, declined to take up a challenge to a similar Indiana reason ban. Although Justice Thomas agreed that the Court's decision to defer review of the challenged law would allow “further percolation” of the issue, he nonetheless observed that the time was coming when the Court would be forced “to confront the constitutionality of laws like Indiana's.” And then, in a surprising turn, Justice Thomas continued, crafting a concurring opinion in which he associated abortion with eugenics and credited reason bans with “promot[ing] a State's compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”

To underscore abortion's “eugenic” possibilities, Justice Thomas looked to history--and specifically, the association between Margaret Sanger, the founder of the modern birth control movement, and the eugenics movement. As he explained, in the 1920s and 1930s, Sanger and the birth control movement she spearheaded joined forces with the eugenics movement to champion contraception as a means of limiting reproduction among “the unfit.” More importantly, because “the distinction between the fit and the unfit could be drawn along racial lines,” Justice Thomas intimated that Sanger and the eugenicists were operating strategically, targeting the Black community for family planning measures, siting birth control clinics in Black neighborhoods, and enlisting Black clergy in their efforts to market birth control to Black women.

Some scholars have objected to the characterization of Sanger and her work as racist, noting that Sanger's interest in “voluntary motherhood” and contraceptive access for all women was at odds with the eugenicists' interest in encouraging reproduction among the most “fit”--generally assumed to be middle-and upper-class whites. Still, as Justice Thomas notes, the eugenics movement was undergirded by a racialized logic, and that logic had legs, informing federal immigration policy and state-level laws, including laws prohibiting miscegenation and interracial marriage. Indeed, in Buck v. Bell, the Supreme Court “threw its prestige behind the eugenics movement ... upholding the constitutionality of Virginia's forced-sterilization law” and “g[iving] the eugenics movement added legitimacy and considerable momentum.”

It is not altogether surprising that in considering the contemporary prospect of eugenics, Justice Thomas would invoke the specter of Buck v. Bell. The 1927 decision, and its callous observation that “[t]hree generations of imbeciles are enough,” stands as an unfortunate monument to the pervasive pull of eugenics in early twentieth century policy making.

What is perhaps more surprising is that, even as he cited Buck v. Bell, Justice Thomas's concern about the contemporary manifestation of eugenics--and its racial dynamics--remained stubbornly focused on abortion and contraception, the twin pillars of reproductive rights. In his telling, abortion and contraception have the eugenic potential to deracinate minority communities--a potential genocide facilitated by the state's misguided recognition of constitutional rights to choose an abortion and to use contraception.

Critically, state-endorsed sterilization programs, of the sort upheld in Buck v. Bell, are mentioned only in passing in Justice Thomas's narrative--a vestige of an unfortunate past when the Court and the country were in the thrall of eugenicists. The reader is left to assume that state-sponsored sterilization programs, like public support for eugenics, “waned considerably by the 1940s as Americans became familiar with the eugenics of the Nazis and scientific literature undermined the assumptions on which the eugenics movement was built.”

But is this narrative correct? As this Article argues, Justice Thomas's effort to graft the history of the eugenics movement to the history of abortion and the history of racial injustice is problematic along multiple dimensions. As an initial matter, Justice Thomas's account is only a partial rendering of the history of eugenics in the United States. It overlooks the fact that neither the eugenics movement nor Margaret Sanger was preoccupied with endorsing abortion as a means of reproductive control. Nor was the eugenics movement unduly focused on the reproductive capacities of racial minorities. Instead, the eugenics movement was focused on improving and purifying the white race. Indeed, the eugenics movement's interest in abortion and contraception was principally focused on limiting middle and upper class white women's access to these vehicles of reproductive freedom on the ground that the reproduction of these constituencies was necessary for the future of the white race. To the extent that eugenicists were interested in limiting reproduction, their interest was directed toward those individuals who possessed traits deemed unsuitable for the propagation of the white race. And meaningfully, the principal vehicle of their efforts to regulate reproduction among the “unfit” was not contraception or abortion, but rather, sterilization.

This is all to say that in attempting to root abortion and contraception in a history of racial injustice, Justice Thomas neglects the eugenics movement's preoccupation with purifying the white race and its profound appetite for sterilization as the preferred vehicle of reproductive control. Moreover, his conclusion that abortion and contraception are rife with the “eugenic potential” to deracinate marginalized minority groups neglects a more recent history--one that emerged in the wake of the Civil Rights Movement and the expansion of the welfare state--in which sterilization was deployed explicitly for the purpose of limiting the reproductive capacities of those deemed sexually immoral or unduly dependent on the state, usually poor women of color. In this regard, Justice Thomas's narrative not only equates state-sponsored reproductive abuses with an individual's decision to terminate or avoid pregnancy, but also overlooks--and indeed, further obscures--the significant history of racialized sterilization abuse in the United States.

This Article proceeds in four parts. Part I supplements the history undergirding Justice Thomas's Box concurrence. Building on Justice Thomas's invocation of Buck v. Bell, the 1927 case in which the United States Supreme Court upheld Virginia's eugenics-informed sterilization statute, this Part sheds light on the principal aims of the eugenics movement: improving and purifying the white race. As this Part explains, state-sponsored sterilization programs were rooted in the eugenics movement's interest in limiting reproduction to the “fittest” in society. Critically, during this period, the targets of eugenics-inflected reproductive policies were not non-whites, but more often poor whites, like Carrie Buck, the petitioner in Buck v. Bell, who were viewed as degrading and debasing the white race with their undesirable genes.

As Part II observes, the eugenics movement's allure waned in the 1940s and 1950s, as its scientific credentials were challenged and it became increasingly associated with the genocidal acts of the Third Reich. Still, as that Part explains, despite waning interest in eugenics, the state interest in sterilization did not abate. Instead, the impulse toward sterilization proceeded under a new rationale--the desire to prevent the morally lax and sexually incontinent from accessing public assistance benefits and overwhelming the state's limited resources. And critically, those targeted for sterilization were no longer the genetically unfit, but rather those whose sexual immorality and dependence on the state threatened to overwhelm the public fisc. In this regard, at the same time the Civil Rights Movement was dismantling de jure segregation and Jim Crow, and the welfare state was expanding to include minorities, southern states were quietly repurposing their state sterilization programs to limit reproduction among those who were unduly dependent--or were assumed to become dependent--on the public fisc. Unsurprisingly, these efforts assumed a decidedly racialized cast as Black women and women of color were disproportionately represented among those targeted for sterilization.

To illustrate the impact of state sterilization abuse during this period and to provide a counterpoint to Buck v. Bell and the eugenicist focus on racial purity, Part III considers Cox v. Stanton, a 1970s sterilization challenge brought by Ruth Bader Ginsburg and the ACLU's Women's Rights Project. Specifically, that Part recounts the tragic story of Nial Cox, who was involuntarily sterilized by the state of North Carolina when she was a teenager. In challenging North Carolina's sterilization program, Ginsburg and the ACLU acknowledged the program's origins in the eugenics movement, but critically, underscored the degree to which this iteration of state-sponsored sterilization had evolved to target minority women because of race, class, and welfare dependence. As Part III argues, the tragedy of Nial Cox was no anomaly. During the 1960s and 1970s, there were numerous episodes of state-sponsored sterilization abuse.

With Part IV, the Article comes full circle, returning to Justice Thomas's concurrence in Box v. Planned Parenthood of Indiana and Kentucky. As that Part explains, Thomas's association of abortion with eugenics seeks to locate abortion within the landscape of racial injustices that targets communities of color, and the Black community, in particular. But to the extent this narrative undergirds the view that reproductive rights are rooted in racial injustice, the argument falls wide of the mark. As an initial matter, this narrative overlooks a broad history in which the eugenic interest in reproduction was largely directed at promoting white purity and white supremacy. And, in associating contemporary state support for reproductive rights with the racialized harms of eugenics, this narrative conveniently overlooks the more recent history of targeted sterilization abuse of minority communities.

As Part IV maintains, these oversights have significant consequences. Not only does this neglected history suggest a more complicated relationship between reproductive rights and racial injustice than Justice Thomas's narrative allows, but it also makes clear that the conventional understanding of “reproductive rights” is unduly limited to the narrow constitutional protections that exist for abortion and contraception. The broader history of state-sponsored sterilization abuse--from the eugenics movement to the present day--makes clear that access to abortion and contraception does not exhaust the full range of reproductive rights concerns. We should understand sterilization abuse--and indeed, any method of reproductive control that seeks to strip individuals of the choice to procreate--as an imposition on reproductive freedom.

Critically, centering sterilization abuse alongside abortion and contraception as part of the landscape of reproductive rights concerns highlights the strong correlation between race and socioeconomic status and vulnerability to reproductive control. In this regard, reorienting the landscape of reproductive rights to include sterilization abuse emphasizes the degree to which the extant discourse of reproductive rights may focus unduly on the rights of those who enjoy race and class privilege while overlooking persistent impositions on the reproductive rights of marginalized communities. A brief conclusion follows.

[. . .]

In September 2020, a consortium of advocacy groups filed a complaint with the Inspector General of the Department of Homeland Security, condemning the treatment of Immigration and Customs Enforcement (ICE) detainees at the Irwin County Detention Center (ICDC) in Georgia. According to the complaint, one of the facility's nurses, Dawn Wooten, had raised concerns “regarding the rate at which hysterectomies are performed on immigrant women under ICE custody at ICDC.” According to Wooten, “a lot of women [at ICDC] go through a hysterectomy.” Although Wooten acknowledged that some conditions might be severe enough to warrant a hysterectomy or tubal ligation, the sheer number of women who were sterilized at ICDC was alarming-- “everybody's uterus cannot be that bad.”

And critically, it was not simply the high rates of hysterectomies that concerned Wooten; it was also that basic protocols around informed consent were not being followed. As Wooten explained, “[t]hese immigrant women, I don't think they really, totally, all the way understand [sterilization] is what's going to happen depending on who explains it to them.”

The prospect of the mass sterilization of immigrant women in federal custody sparked outrage across the country--at least for a moment. Barely a week after the story of the ICE sterilizations broke, Justice Ginsburg passed away, and eight days later, Seventh Circuit Judge Barrett was nominated to take Justice Ginsburg's place at the high court.

Predictably, the news cycle surrounding Barrett's nomination focused on the likely impact of her appointment on the Court and its jurisprudence-- particularly, its abortion jurisprudence. Barrett, as a conservative Catholic, it was assumed, would be skeptical of reproductive rights and would likely cast a vote to dismantle Roe v. Wade.

It is perhaps ironic, though not entirely unsurprising, that one of the most glaring episodes of coercive sterilization in recent history should be completely overshadowed by the changed composition of the Supreme Court and the fate of abortion rights. As this Article makes clear, even as members of the Court have injected elements of race into the reproductive rights debate, they have failed to locate sterilization abuse in the discussion, focusing narrowly on more traditional reproductive rights fare--abortion and contraception. But as the events of September 2020 make clear, sterilization abuse, as much as abortion rights, is part of the landscape of reproductive control that exists to this day in the United States. The failure to acknowledge and grapple with this reality disserves the concept of reproductive rights and the many women whose lives are irrevocably shaped by the state's efforts to regulate reproduction.

Frederick I. and Grace Stokes Professor of Law, NYU School of Law.

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