As red states line up to ban — and even criminalize — abortion, the crucial question will be: What counts as an abortion?
Beyond that, the draft opinion in the pending abortion case provides an avenue for challenging the constitutionality of everything contraception. In a footnote, Judge Alito puts forward an argument linking abortion to eugenics. The argument is most closely associated with Justice Clarence Thomas, who in a 2019 settlement argued that abortion restrictions could be the state’s attempt to prevent abortion from becoming “a tool of eugenic manipulation. Judge Thomas’ argument hinged, in part, on the relationship between Margaret Sanger, the founder of Planned Parenthood and the modern birth control movement, and the eugenics movement.
Justice Alito’s decision to include this footnote in his draft opinion is baffling – according to the logic of the draft opinion, Roe’s cancellation is a function of textualism and originalism, not eugenics. Perhaps it was simply a collegiate nod to Judge Thomas, who diligently handled the eugenics argument and saw it flourish in lower court rulings on abortion.
Or, more ominously, perhaps the footnote is meant to preserve — in the most important Supreme Court decision in a generation — the view that the modern birth control movement is irrevocably tainted by its past associations with eugenics and racial injustice. After all, the court overruled past precedents in order to remedy a racial injustice.
As the draft notice acknowledges, the court in Brown v. Board of Education overruled Plessy v. Ferguson to correct the injustices of Jim Crow. What better way to destabilize and lay the groundwork for a rejection of the right to contraception than to encourage and cultivate the idea that it was born out of a racist effort to eradicate black reproduction?
To quote Judge Antonin Scalia, “it takes real nerve” for Judge Alito to insist that the logic of the draft opinion can be limited to abortion and does not imply any other right. The document, if finalized, will not only spoil nearly 50 years of precedent – it will provide a blueprint for going even further. The devil, after all, is in the details.
Melissa Murray is a law professor at New York University and co-host of the “Strict Scrutiny” podcast.