What does Clarence Thomas’s opinion today about abortion tell us about his jurisprudence?

by Corey Robin on May 28, 2019

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 but 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, it is very much in keeping with Thomas’s overall approach to constitutional questions. 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 take constitutional matters that left and right disagree about but nevertheless argue about on similar 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 all 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. 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 the black man—and with him, the black community—down. 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; this time, it’s the fetus.

 

{ 40 comments }

1

BruceJ 05.28.19 at 6:36 pm

Except Margaret Sanger’s supposed racist bent is a lie, entirely constructed on a deliberate misreading of one of her letters.

What does it say about Thomas’ so-called “jurisprudence” when he relies on lies and propaganda to reach his conclusions?

2

David Wood 05.28.19 at 11:33 pm

It says he’s a wingnut

3

Ruby 05.29.19 at 2:18 am

How can it be racist to permit majority group women (lets say white in the US) have abortions?

4

Matt 05.29.19 at 2:40 am

Without denying (or affirming) the larger proposition about Thomas’s approach, it is perhaps worth noting that this sort of discussion and claims – that abortion and birth control are primarily “eugenic” in a bad way, and that they are racist – is pretty common among more “sophisticated” right-wing anti abortion Catholics. It’s commonly brought up, and taken to be clearly right, on the conservative Catholic legal scholars blog “Mirror of Justice”, for example. So, while it would be surprising if Thomas wasn’t adding his own twist to this, the basic idea is one that has a lot of currency among conservative Catholic anti abortion activists, regardless of their own race. (To my mind, it seems like a clear intellectual dodge, a way to try to claim that, in opposing abortion, they are not just trying to impose their own controversial moral and religious views, but to base them on “neutral” ideas. That’s good in principle – but fails in practice here, pretty clearly, I think.)

5

Dr. Hilarius 05.29.19 at 3:00 am

Not having the benefit of your book yet I can’t address your argument that there is more to Thomas than trolling. To me, trolling seems to be a significant factor in Thomas’ opinions.

He has to know that his characterizations of Sanger and pro-choice supporters are long debunked falsehoods. He also has to know that accusations of racism are effective in dividing liberals while advancing himself as a poster child for conservatives looking for deniability of their own racism. Thomas was very successful in characterizing his confirmation process as a “high-tech lynching;” white senators scarcely knew how to respond.

An attorney of my acquaintance went to law school with Thomas. This lawyer is very conservative and strongly supported Thomas’ nomination to the Supreme Court. He said that Thomas would frustrate liberal expectations. In support of this he mentioned that Thomas had presented himself as something of a black nationalist at Yale. At times Thomas dressed in bib overalls, something that strikes me as an act of trolling. The Thomas of today comes across as an angry, unhappy man determined to make perceived enemies unhappy. A pretty sad legacy to strive for.

6

John Quiggin 05.29.19 at 7:05 am

A question for any legal scholars. It’s widely accepted that the Republican majority on the SC will sooner or later declare that Roe vs Wade was wrongly decided. But doesn’t that mean that a lot of decisions in which they personally concurred (like this one) were also wrong?

I can see how some kind of (rightwing) living constitution jurisprudence might justify this kind of move in principle (Roe vs Wade was good law in the permissive environment in which it was decided, but society has changed for the better since then). Or, judges could simply admit that they were wrong and have changed their minds. But presumably neither of these moves is available to the Republican majority.

7

Matt 05.29.19 at 7:13 am

He has to know that his characterizations of Sanger and pro-choice supporters are long debunked falsehoods.,

Again, without wishing to deny the theory that Thomas is (at least in part) trolling, I’ll note again that this “theory” is very common among right-wing Catholic anti abortion discussions, and is usually accepted at face value, at least insofar as I can see. I would be very surprised if Thomas isn’t much more conversant with and sympathetic to those discussions than ones undermining this account. That he’s very plausibly intellectually negligent for thinking this is beside the point.

8

Orange Watch 05.29.19 at 11:31 am

JQ@6:

IANALS, but the way forward for them looks to be twofold. First, it is important to remember that despite loud pretense and stylings very much to the contrary, the Originalist school of jurisprudence is a Living Constitutionalist school in all ways but rhetoric. Keeping this (obvious-to-anyone-actually-paying-attention) fact in mind, we can move to the actual linchpin: SCOTUS is on a case-to-case basis a small-c conservative organization, which tries to rule as narrowly as possible right up until it doesn’t. The sitting justices* who concurred with pro-choice-affirming decisions can cling to this, as anything that did not outright cite Roe v Wade or precedents likewise outright citing it likely concurred only on decisions that incidentally favored abortion access (like this one); if the Court stopped short of actually revisiting the issue, the justices can cling to the decision not to do so as providing intellectual cover for their concurrence. This is a familiar Originalist bit of legerdemain; not-quite-affirmations pivot into rejections easily so long as the core legal issues were not revisited. The more important tale of precedent likely lies safely out of sight in the countless cases where cert was not granted, who may well include a number quite closely mirroring whatever the eventual Roe-buster case ends up being.

*A third point invites itself from the second: how many abortion-related cases did Alito, Thomas, and Roberts actually concur on? The same question exists for Gorsuch and Kavanaugh, but obviously their shorter tenure has given them far fewer cases needing examined.

9

Chris 05.29.19 at 12:12 pm

RE: Hilarius (5) and Matt (7): Sanger’s racism has been debunked. She WAS, at least, eugenics curious. What Thomas did in his opinion was put contraception and eugenics on the same continuum and imply that since Sanger was so firmly pro-contraception, we can assume that’s how she also felt about eugenics. It’s not a move in good faith, but a willingness to acknowledge the negatives aspects of Sanger’s intellectual legacy (not all of the bad stuff has been debunked) would help blunt such a move.

RE: John (6): There’s not much any conservative justice will have to contradict themselves on. This case reversed a lower court holding and re-instituted Indiana law RE: disposing of fetal remains post-abortion. It’s a pro-life decision in that it requires abortion providers to treat fetuses the way you would any person who has died. What’s noteworthy here is that Planned Parenthood used a much more permissive (for Indiana) standard (rational basis) to challenge the law than what if often used in abortion cases (undue burden).

I think Roe won’t be visibly overturned at least until after 2020. Until then, the Court can continue to do what they’ve done: consistently find more and more restrictive measures to not have imposed an undue burden on women seeking an abortion.

If/when they do overtly overturn Roe, they will just say that that standard has proved unworkable. None of the five justices who vote to overturn it will be guilty of much hypocrisy (at least not superficially or according to the rules of the game)…in the past they only tried to work with “undue burden” as a precedent (a more abortion-restrictive one than Roe). The standard itself was the handiwork of Kennedy, O’Connor and Souter.

10

Matt 05.29.19 at 1:16 pm

Following up again, here’s an eager acceptance of Thomas’s dissent on the conservative Catholic legal scholar blog, Mirror of Justice:

https://mirrorofjustice.blogs.com/mirrorofjustice/2019/05/justice-thomass-important-reminder-re-abortion-and-eugenics.html

Thomas’s “reasoning” is easily accepted, without question, because it’s widely taken to be true, and obviously so, in that particular crowd.

11

William Timberman 05.29.19 at 1:34 pm

I’m rarely as advanced in my analysis of what motivates individual right-wingers as Corey is. As a consequence it often happens that neither my experience nor my instincts resonate with his conclusions — invariably a sign that I need a rethink.

In this case, my first take was that the perpetual smirk on Mitch McConnell’s face is there for a reason. For him, it doesn’t seem to matter what motivates any of the grifters, stumblebums, men with severe Daddy issues, cop groupies, and strict constructionist tinkerers he packs onto the Federal bench(es). His only concern is that each and every one contributes to reversing the outcome of the Civil War and the New Deal, restoring the missionary position to its former sacred glory, and putting the fear of an Angry White God back into Yankees and Libruls in general.

My question is whether we should even bother investigating the agency of individuals who’ve spent their whole lives doing whatever it took to be noticed by their betters. They’re so pathetically eager to be useful to someone or something bigger than themselves…maybe we should just ignore them and focus on analyzing whatever it is that does find them useful.

Corey’s answer to that question is plain enough, and despite my own prejudices, I have to concede that he’s right. In the end, political agendas are not forces of nature, they’re creations of men, and as such, understanding them is really only possible if we can identify the feedback loops between the individuals and the collective dedicated to advancing them.

12

marcel proust 05.29.19 at 3:59 pm

One of Thomas’s most consistent moves in his jurisprudence is to take constitutional matters that left and right disagree about but nevertheless argue about on similar 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 all 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.

Has he ever had to vote on a case involving an elephant? It kills me to have to admit it, but he may have been a Jew in a previous lifetime.

13

Leo Casey 05.29.19 at 5:28 pm

John Quiggin @6:
Before called to his divine reward, Antonin Scalia was clearly prepared to overturn a 40 year precedent, Abood, to rule against public sector unions in the Friedrichs case. (With Gorsuch on the court, the same issues was revisited in Janus, and decided against unions.) While all of the right wing members of the court were prepared to ditch the precedent, Scalia had actually written a majority opinion upholding it while on the Federal bench, with an argument on why it was constitutional. Don’t underestimate the willingness of the right wing SCOTUS justices to abandon all jurisprudence and principle to get to their desired result.

14

John Quiggin 05.30.19 at 3:11 am

Thanks for these useful comments.

A second question: The focus on the SC seems to start from the presumption, supported by long experience, that the Federal Congress will never pass legislation protecting abortion rights nationally, so that Roe vs Wade is all that matters. But that presumption seems a lot less safe now. If the Democrats win the Presidency House, and Senate* in 2020 (odds against this, but still possible) a decision overturning Roe vs Wade would almost certainly result in such legislation.

Supposing this happens, is there any potential basis for the Court to rule it unconstitutional?

* With a margin big enough to cover one or two defections.

15

J-D 05.30.19 at 4:28 am

John Quiggin

Supposing this happens, is there any potential basis for the Court to rule it unconstitutional?

I don’t know, but the question which springs to my mind is whether there is any potential basis for the Court to rule in favour of the constitutionality of such legislation. Do you suppose that it might be deemed an exercise of the power of the Congress to spend money for the general welfare, or to regulate commerce among the States, or what?

16

Matt 05.30.19 at 11:07 am

That’s a good point, J-D. It’s possible that a good deal of protection and help could be worked into federal health care legislation, but that wouldn’t help in states that refuse it, which some would likely do.

while due process and equal protection grounds for requiring a right to abortion are plausible enough, If anything, I’d think a ruling that abortion violates the right to due process and equal protection of the unborn is currently more likely, given the content of the court.

17

mpowell 05.30.19 at 1:29 pm

I suppose there is some aspect of trolling to Thomas’s jurisprudence, but I think that it is more accurate to simply imagine how a very clever, selfish, narcissist black man with a giant chip on his shoulder in the US would approach race, and one possibility is Clarence Thomas. Everything is about race because everything is about him. Yes, he spends a lot of time lying to advance his arguments, but he’s not faking his completely self-absorbed worldview – that’s his honest perspective.

18

WLGR 05.30.19 at 3:21 pm

The obvious objection here is to Thomas’ troll-like slipperiness in using the term “family planning” to encompass both “planning” by individuals of the terms of their own reproductive labor, as well as “planning” by the eugenically-minded state of the collective reproductive labor of its entire subject population, sort of like using the term “labor negotiations” interchangeably to describe a worker negotiating with their boss and a boss negotiating with their workers.

The more thorough objection is that Thomas’ bid to pair contraception/abortion with eugenics depends on not just playing up if not fabricating any hint of racism within reproductive rights circles, but also downplaying if not erasing the deep and abiding racism of its anti-reproductive rights opposition. In particular, the wave of anti-abortion and anti-contraception “Comstock laws” in the mid to late 19th century US (the laws against which Sanger and her ilk were resisting) was part of a general wave of anti-immigrant nativist fervor among the US ruling elites of the era, seeking to combat the “demographic threat” of nonwhite/immigrant birthrates by conscripting white Anglo-Saxon Protestant women into pumping out as many white babies as possible. Aside from the cases where modern elites can still be seen openly fretting about nonwhite/immigrant demographic threats in explicitly 19th century eugenicist-style terms, the most obvious enduring ideological legacy of this is the West’s racially-contingent valorization of “traditional” motherhood, which finds its ne plus ultra in the Nazi commendation known as the “Mother’s Cross” awarded to master-race women in gold, silver, or bronze versions according to the number of master-race babies produced. (Compare this to the socialist bloc custom of International Working Women’s Day, which unlike its deeply problematic US counterpart “Mother’s Day,” makes no inherent distinction for housework or reproductive labor over any other type of labor a woman might perform.)

Along those lines, the bit about Anita Hill as a female threat to the implicitly masculinized figure of “blackness” strikes an especially resonant chord with the anti-abortion stance of the antebellum US slaveowner elite, for whom black women’s struggle for reproductive freedom amounted to a slowdown strike on the assembly line for the production of new slaves. I suppose Thomas’ position would imply that a slaveowner trying to force an enslaved woman to use her body to produce a new slave for him (possibly even by raping her himself) is thereby taking a stand against racism, whereas an enslaved woman trying to refuse that reproductive slave labor through contraception or abortion is thereby guilty of racist eugenics.

19

Ebenezer Scrooge 05.30.19 at 4:37 pm

JQ@14:
Sure. Family law is a matter that, by tradition, has been left to the states. And why not call abortion regulation “family law”? The conservative wing could constitutionalize this tradition, I suppose, since family law is not commerce. The Commerce Clause used to be almost infinitely expansive, but the Supreme Court has recently carved out a few exceptions, and the right wing will be eager to create more.
I’m sure that the Federalists have something more plausible cooked up, but in light of Shelby County, this quick kludge is good enough for government work. Shelby County was the case that overturned the Voting Rights Act, despite the Fifteenth Amendment’s almost pellucid authorization of it.

20

Stephen 05.30.19 at 6:26 pm

William Timberman@11: of Mitch McConnell, current Senate Majority Leader, not a man of whom I know very much (sorry, I am not an USAian)

“His only concern is that each and every one contributes to reversing the outcome of the Civil War and the New Deal, restoring the missionary position to its former sacred glory”.

Now, if even remotely true, that is terrifying. Reversing the outcome of the Civil War: does that mean restoring slavery in the ex-Confederacy, the main outcome of that bloody but necessary war? Reversing the outcome of the New Deal: what exactly could that mean? Restoring the missionary position to its former sacred glory: well as far as I know, the position that Shakespeare describes as “making the beast with two backs” has been pleasurably known for some time, but in my limited personal experience, enthusiasm for other positions is not restricted to ladies supporting American Republicans.

Could William Timberman please explain?

21

stephen 05.30.19 at 6:29 pm

For supporting read opposing. Confused about positions, by happy memories

22

Patrick 05.31.19 at 12:47 am

Random comments.

1. I don’t think Thomas is trolling. The argument he’s making is fairly common in pro life circles, and is a fairly straight forward application of critical theory style reasoning. Which is to say, bad reasoning, but, not uniquely bad when conservatives do it. And if other (smarter) people make these bad arguments sincerely, I don’t see why I should assume Thomas doesn’t.

2. I do think a lot of white people who make the “abortion is black genocide” argument are doing something akin to trolling- they’re barely committed to the argument and just hope that it will manipulate the right target audience, either by shaming white pro choice people into not disputing it, or by convincing black people. But I don’t see that as particularly different to the way that their entire public persona is a bit trollish- their real beliefs are a combination of “ensoulment is real and happens at conception” and “we don’t really understand reproduction but we have an intuition that it is sacred and feel like abortion cheapens it.” And because they know those arguments won’t fly in the public sphere, they use a variety of Rawlsian public reason style arguments as cover. But they’re not really committed to them, and the result is a bit troll-y.

3. I think that makes convincing people or debating people about abortion very difficult, and a lot like dealing with religion. Religious people are often very, very committed to bad apologetics, because they feel like if the apologetic falls apart then their beliefs, which they hold for entirely different reasons, will be vulnerable. They’ll defend bad apologetics to the bitter end… and then the moment someone offers them a more tenable apologetic they’ll throw the old one on the scrap heap. Debating religion requires understanding that religious people are committed to the conclusion, not the reasoning, but they defend the reasoning because they know that’s how things are supposed to work. I think a lot of pro life arguments- nearly and possibly literally all of them- fulfill the same role.

4. The relevant question on Constitutionality is whether a provision can be identified which authorizes federal abortion protections, AND whether that provision can still be used after the Supreme Court invalidates or more likely interprets into Roe v Wade into irrelevance. For example, its possible that a 14th or 15th amendment basis for protecting abortion rights would be effectively invalidated by a ruling invalidating Roe v Wade.

5. But to a certain degree the Constitution is Calvinball, so, throw something at the wall and see if it sticks. I mean, immigration isn’t in the Constitution and no one cares because everyone figures we need it so its like general welfare or whatever. Conservatives think that the phrase “executive power” has to be interpreted in light of the British monarchy even though the Constitution was drafted explicitly to reject monarchism. Just craft a system for providing abortion access, claim that it preempts state regulation, and see what happens. Most likely what happens is that it gets repealed in four years, but whatever, you can reinstate it four years later.

23

faustusnotes 05.31.19 at 1:43 am

I’m working now on the theory that all of American politics is better understood in terms of activist misogyny. That is, unlike most of the rest of the white west, or even the Anglosphere, American politics is driven by an active attempt by men (and a lot of women) to bring about an openly and explicitly misogynist political order. Not passively so (like in many rich countries where men have to be dragged forward by feminists because they have vested interests) but actively so, as in they hate women and are actively pushing for a social order in which women are extinguished politically. As always, Mcsweeney’s summarize it nicely.

I think once you accept this, all the other arguments that US politicians put forward – that they’re pro life, or that they’re concerned about eugenics, or whatever – are just irrelevant. Thomas, like most American politicians, is working actively for the subjugation of women. He doesn’t believe any of this shit, really. He just hates women.

24

faustusnotes 05.31.19 at 4:33 am

John Quiggin at 14 asked, if the congress passes legislation legalizing abortion,

Supposing this happens, is there any potential basis for the Court to rule it unconstitutional?

When Obamacare was passed with majorities in both houses, the AEI went shopping around the USA for a couple of idiots willing to apply to the Supreme Court with standing to oppose it. Their goal was to completely undo the entire legislation, and they were unlucky that the SC was delicately balanced, and so it only rewrote a part of the legislation (the Medicaid expansion) on a legal basis that is generally accepted to have been bullshit.

It will take the anti-choice right five seconds to find a man with “standing” to oppose legalization of abortion (on the grounds that he wants his baby), and it will take the SC about an hour to rule the law infringes on his constitutional right to be a daddy (or some other shit they make up out of thin air).

The left cannot make laws in America while the Supreme Court is stacked against them. This has been seen time and time again. Before they can pass any major laws of that kind, they need to impeach all the conservative judges, or pack the court.

25

Sebastian H 05.31.19 at 5:47 am

John Q, if Congress passes a law much like Sweden’s (very liberal early abortions very restricted abortions after 18 weeks, a standard that would be too restrictive under current Supreme Court rulings) abortion as a political issue could be dead in the US because that is what about 65-70% of the population wants. But Democrats seem hellbent on elective abortions at all stages, which is about what 15% of the population wants. The reason a federal law isn’t likely is because you’d have to actually draw the line, and the line activists want to draw is unpopular. That’s the whole reason why the anti democratic Court route has been preferred.

26

John Quiggin 05.31.19 at 12:29 pm

@25 If you add the two groups you mention you get 80-85 per cent, which seems too high, given near-uniform Republican opposition. My impression is that a majority of those with a view are at or near one of the extremes, which explains why it hasn’t been resolved by a legislative compromise

27

JHW 05.31.19 at 1:09 pm

@25: Very few people want “elective abortions at all stages.” Hardly any abortions happen post-viability (the cut-off line under Planned Parenthood v. Casey) and they are essentially never elective; typically they are wanted pregnancies where something has gone badly wrong. The liberal abortion law New York just passed only permits such abortions to protect the pregnant person’s health, but even without a legal restriction, such abortions are difficult and very expensive and as long as the fetus is healthy and delivery poses no health risk to the pregnant person, it is cheaper, safer, and easier to simply induce labor and deliver the fetus. So clearly not “all stages.”

What about the difference between the “elective” abortion cutoff in Sweden (18 weeks) and the viability line in the US (generally regarded as 24 weeks)? Well, if the US had universal health care, and access to abortion was covered under universal health care, and state governments and aggressive activist groups stopped taking steps to make it more difficult and inconvenient to access an abortion, then very few people would seek “elective” abortions after 18 weeks. Instead, while the vast majority of non-medically-indicated abortions happen earlier, there are some people who seek them later because it takes them a long time to get judicial permission (for minors), or to scrounge up the necessary cash (since Medicaid and other public insurance provision doesn’t cover it), or to travel the distance necessary to get to an abortion clinic, especially where there is a state-mandated counseling/waiting period.

28

William Timberman 05.31.19 at 2:40 pm

Stephen @ 20 (05.30.19 at 6:26 pm)

Could William Timberman please explain?

A difficult thing to do in a comments thread without abusing the patience of both the host and other commenters, but I’ll give it a bash.

Most of what’s confusing you, I suspect, is that my take on McConnell’s motivations was less judicious than is usual in CT comments threads. I find it impossible, though, to discuss a man like our Senate Majority Leader without making snarky cultural allusions which probably obscure as much as they reveal to people like yourself, who weren’t raised in that culture. (Note to self: remember the conditions under which your poetic license was originally granted. Metaphors save time, but only at the risk of ambiguity.) Mea culpa.

White Southern politicians, and the White Southern political agenda, have plagued U.S. society since before there even was a U.S. In my opinion, Mitch McConnell is as devoted to that political history, and that agenda, as Roy Moore is. The fact that he smirks instead of raging should fool no one who’s on the other side of the slow-motion Civil War the Republicans under his tutelage have finally succeeded in re-igniting.

And what does this agenda comprise? No, it no longer includes the re-introduction of slavery. It does, however, include racism, misogyny, homophobia, authoritarianism, a phony reverence for evangelical Protestantism, antipathy to the demands of free labor and the needs of the poor, an allergy to any economic theories to the left of Herbert Hoover’s, and an exaltation of automatic firearms in the hands of morons, sadists and psychopaths.

McConnell is smart enough to realize that he needs allies to complete this re-Dixification of the U.S., and he’s dedicated enough to nurture them in places where most of us wouldn’t think to look. (This is probably why Brett Kavanaugh is on the Supreme Court, and Roy Moore isn’t.) In the long run, the South may not actually rise again. In the short run, though, Mitch McConnell has earned the right to smirk.

29

WLGR 05.31.19 at 3:50 pm

Patrick, your points 2 and 3 are especially important given the history I alluded to above, since back in its late 19th-century iteration, the underlying racist motivations of US anti-abortionism were often far more out in the open than they generally are today. The agenda goes something like: (1) our basic commitment to eugenics is that “superior” populations should outbreed “inferior” populations, (2) a general problem with modern liberal/cosmopolitan culture is that it disproportionately emboldens the women of “superior” populations to reject their eugenically necessary role as breeding cows, (3) the specific danger of abortion and contraception is their potential to empower the aforementioned women to unilaterally make good on this rejection, (4) anti-abortion and anti-contraception ideology in any and all forms, from religious to nationalist to eco-primitivist to whatever other ideology might stick when we throw it against the wall, are thus purely instrumental means to confine the aforementioned women in their breeding-cow role, again, for purposes of eugenics.

Nowadays it can be hard to find these kinds of racist motivations discussed so openly outside of hardcore far-right rhetoric about “the great replacement” or “white genocide” or similar, but if you read a book like Jenny Brown’s Birth Strike or Melinda Cooper’s Family Values, it’s still perfectly clear that the ideological boundaries between fringe white nationalist demographic panic, respectable elite-encouraged social conservative anti-feminism, and neoliberal economic concern with managing various population pools of available surplus labor, are all differences of degree, not type. And yes, plenty of left-ish people have a habit of talking about issues like “intersectionality,” “identity,” or “culture” in ways that neglect the importance of such connections, which per your first point, is exactly what enables a canny right-winger like Thomas to pick up their own mode of reasoning and run wild with it.

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Sebastian H 05.31.19 at 4:29 pm

John Q, I’m not entirely sure what you mean but from my impression of it, I think you’re getting it backwards. The people who defend elective abortions at all stages are the most extreme of the pro-choicers. I’m not sure why you would add them to the people who want to restrict 2nd trimester abortions. That stance is currently (though in my mind ridiculously as it represents almost 2/3rds of the population) coded as “pro-life”. That stance includes a very large percentage of Pro-life Republicans. Are you maybe thinking it should be coded as prochoice, so you were thinking it must exclude most Republicans?

I think (though again I’m totally open to correction) what you are trying to do is separate out the extreme pro lifers from the rest of the group that wants to limit 2nd trimester abortions. (Though again this is rough, because all the broad polling uses the relatively stupid Supreme Court trimester system while indications are pretty strong that people put it at more like 16-20 weeks but let’s put that aside for the moment). You would want to go the opposite way if you wanted to do that. You would want to look at the total % of people who DONT support most 1st trimester abortions. I don’t have the polls in front of me but I think that is around 30%. This illustrates how much the abortion debate is run by the extremes. The extreme pro life position (which isn’t even the majority of the pro life positions) gets 30%. The extreme pro choice position (which isn’t even 1/3 of the pro choice position if you code people who want 1st trimester abortions to be legal as pro choice) gets 15%. Yet those are the two positions that get enough big party talk to make it sound like not holding them means you can’t be a good representative of the party.

All of this would be resolvable if we hadn’t stupidly Constitutionalized the issue, because we made the position that a huge majority supports (making 16-20 weeks the line where abortions become mostly illegal without a big and governmentally checked exception) illegal without a Supreme Court revolution. It’s also an area of HUGE echo chamber effects on the left where people constantly talk about a 15% position as if it is a great rallying cry (with the right making a slightly less stupid mistake in thinking that a 30% position with huge backlash effects from the majority is a great idea).

That’s the reason there hasn’t been a federal legislative solution. The law that almost 2/3 of the population would support is currently illegal.

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LFC 05.31.19 at 5:01 pm

faustusnotes @23

A lot of US Sup Ct decisions don’t have any direct connection to gender-related issues, so you need some other explanation if you want to try to summarize Thomas’s time on the court in its totality. Even a casual reader of Thomas’s opinions over the years will realize that he does have a particular view of the Constitution and constitutional adjudication. I happen to think his view is both wrong and not always consistent, but he does have a distinct approach. (Whether Corey’s analysis of it is right is something I don’t think I shd address, not having read CR’s forthcoming bk.) Anyway, attributing *everything* to misogyny, whether Thomas’s Sup Ct opinions or right-wing politics or whatever, is clearly, istm, an exaggeration at best.

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Pro Bono 05.31.19 at 5:46 pm

Thomas is a textualist to whom words mean just what he chooses them to mean. So that he can describe the Indiana law banning abortion consequent to diagnosis of a Down syndrome fetus as “prohibiting eugenics”.

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Saurs 06.01.19 at 8:26 am

Nothing gets more “anti-eugenics” than consigning (with laser-like precision, even) black women to death in a country whose institutional racism ensures that those same black women lack rudimentary access to healthcare in general, including pre- and post-natal care. As others have said, that Thomas’s nominal “anti-racist” impulses translate into functional misogynoir is neither novel nor a bug. The cruelty’s the point, as is the exercise of naked power, which is why Hill was an easy and obvious target and and later served as a highly successful ceremonial offering for dudes on both sides of the aisle eager to attack a common enemy, women and their liberation.

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J-D 06.01.19 at 9:26 am

Patrick

But to a certain degree the Constitution is Calvinball, so, throw something at the wall and see if it sticks. I mean, immigration isn’t in the Constitution and no one cares because everyone figures we need it so its like general welfare or whatever.

To say that the Constitution is Calvinball ‘to a degree’ is to acknowledge that it’s not Calvinball. It’s plain that in practice the Constitution means what the judges say it means, but it’s misleading to say so without adding that for over two centuries it has been equally true in practice that the judges have behaved as if the text of the Constitution restricts the judgements they can give, leaving them with a degree of freedom to interpret, indeed, but not a completely unrestricted freedom.

In the case of immigration, for example, the judges have not justified decisions that the US Congress has the power to pass laws to regulate by reference to the general welfare ‘or whatever’: they have justified those decisions on the basis that the Constitution grants Congress the power to make laws regulating commerce with foreign nations and, further, that the word ‘commerce’, as used in that context, includes immigration. That word is there in the text: you can’t decide to take the text seriously without facing the possibility of having to decide what’s included in ‘commerce’ and what isn’t. I admit, readily, that when the judges have said that it does include immigration, they have been influenced not only by the text but also by other considerations; however, I reserve the right to suspect that anybody who argues that it does not include immigration is also influenced by extra-textual considerations.

Matt

That’s a good point, J-D. It’s possible that a good deal of protection and help could be worked into federal health care legislation, but that wouldn’t help in states that refuse it, which some would likely do.

To me it’s interesting to compare this with the situation in my own country. The Australian Constitution gives the Commonwealth the power to make conditional financial grants to the States, and it has used that power to have an effect in areas in which the Constitution does not directly grant it any power: Commonwealth legislation makes money available to the States on condition that they do X, Y, and Z, and X, Y, and Z get done because the Commonwealth wants them done, even though the Commonwealth has no power to legislate directly for X, Y, and Z. Perhaps I should say that the Commonwealth asserts no power to legislate directly for X, Y, and Z. (For decades the Commonwealth made grants for university education statutorily described as conditional grants to the States, but effectively flowing to the universities themselves, the States acting, as it was described, as ‘postboxes’; then the Commonwealth decided that its explicitly granted constitutional power to provide benefits to students included the power to make grants directly to universities, on the legal theory that university funding benefits students, and that therefore it had no need to use the States as postboxes, and the relevant legislation was varied accordingly.)

Now, US judges have long showed willing to interpret very broadly the power granted to Congress to spend money ‘for the general welfare’, much as Australian judges have the power for the Commownealth to make conditional grants to the States; so, yes, I can easily imagine the US Congress to legislate for the expenditure of money in the States subject to conditions relating to the way those States use their legislative power to affect the availability of pregnancy terminations services. But, as you point out, it’s hard to figure the way around the predictable unwillingness of some States to meet the conditions, to the extent of being prepared to refuse even generous bribes (which is in effect what they would be).

Exploring the Australian comparison a little further: in Australia, restrictions on abortion have been progressively relaxed by a mixtue of legislative and judicial action, but that action, both legislative and judicial, has been at the level of the States (and self-governing Territories). (I don’t know what part the Commonwealth has played, legislative or judicially, in relation to non-self-governing territories, but outside that it certainly hasn’t been involved.) The relevant difference between Australia and the US is that Australia has no equivalent to the Fourteenth Amendment to the US Constitution, which explicitly restricts the legislative power of the States. Being part of the Federal Constitution, it falls to the Federal courts to interpret those restrictions. That’s how the Supreme Court comes to be involved in what is primarily and originally a State matter: the Fourteenth Amendment gives the Federal judiciary an opening to become involved. However (circling back to my original point), the Fourteenth Amendment does not give the other two branches of the Federal government any such opening: at least, not in any way that I can figure.

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Layman 06.01.19 at 12:18 pm

William Timberman: “No, it no longer includes the re-introduction of slavery.”

Sorry, but I think this is too kind. I have no doubt that the end-stage of the politics pursued by McConnell and his ilk is, indeed, the restoration of slavery. It’s more or less inherent in their view of race, wealth and the proper role of government.

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Patrick 06.01.19 at 1:48 pm

WLGR- I think you’re kind of outlining the fundamental gap here between me and a certain ascendant aspect of the left.

What you just wrote reads to me like the ravings of a conservative who’s trying to “explain” that due to the hidden historical connections between beliefs and ideas and people that he’s eager to outline for you, liberalism is a hybrid outgrowth of nazism and marxism and therefore seemingly simple ideas like environmental protections are, once you peel back reality and uncover the hidden truths of the world, infected with the same sinfulness and tendency to lead to genocide of their intellectual forbears.

There are two ways to react to that conservative. One is to agree with him that you really can peel back reality and uncover its secret nature, but, to claim he did it wrong. Its usually easy to make a prima facie case for this, because what he’s doing is intrinsically intellectual weak. What’s harder to do is to explain why your reality peeling is better than his.

The other response is to realize that ideas and beliefs and human populations fundamentally do not work that way, and that he’s offering a crazy man’s basement wall string diagram as evidence of conclusions that, if they were real, would be properly supported by modern empirical data.

For example, we might notice that modern empirical data tends to show 1) very little gender gap on abortion opinion, 2) that women who are pro life are more fervently pro life than pro life men, and 3) that pro life AND pro choice men have a tendency to be motivated more by partisanship than pro life and pro choice women. None of these things are well explained by your Glen Beck diagram there. More likely, modern abortion opinion is best explained by 1) two popular and contradictory sets of moral intuitions about pregnancy, held primarily by women, and 2) men’s desire to use this issue as a partisan bludgeon.

J-D: Eh… I mean, you’re talking about a constitution that explicitly gives congress the power to regulate “commerce” between the states, but was interpreted as protecting “freedom of movement” without explicitly saying so AND in spite of a specific grant of power to regulate commerce between states in an environment where “commerce” apparently includes volitional human movement… I mean literally the exact same word “commerce” as you’re describing in the exact same clause, not even a reuse of the same word in a different clause…

Looks like Calvinball to me.

I get that it provides SOME constraint, and I get that judges SOMEtimes issue rulings they don’t agree with because they feel constrained by the text. But the Constitution massively underdetermines modern Constitutional law.

It probably has to be that way. Its a really old document that has rarely been updated. And updating it would create a massive national crisis, because we’d be doing it with a nation where half the population is enthrall to modern conservatism, which is a brutally nihilistic enterprise.

But it is that way, and I don’t see a problem saying so.

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William Timberman 06.01.19 at 10:40 pm

Layman @ 35 (06.01.19 at 12:18 pm)

Metaphorically speaking, you’re not wrong. My favorite recent take on the subject is from an AOC tweet dated yesterday:

Any job that pays $2.13 an hour is not a job. It’s indentured servitude.

True dat. And we haven’t even mentioned the national disgrace of mass incarceration, or the de facto if not de jure license to execute insufficiently subservient people of color we’ve handed out wholesale to police departments across the country. It’s hard to argue with anyone who sees the difference between what we’ve got as a difference in degree rather than a difference in kind. Either way, we’ve got a lot to answer for, and that’s a fact.

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William Timberman 06.01.19 at 10:43 pm

….a difference between what we’ve got and slavery as a difference in degree…

(Talk about burying the lede….)

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J-D 06.02.19 at 1:23 am

Patrick

It’s well known that judges hearing the same case disagree about the interpretation of the law; it’s well known that decisions by judges in inferior courts are overturned by judges in appellate courts; and it’s well known that decisions in earlier cases are overturned in later cases: so it should be obvious that the constitutional text underdetermines judges’ rulings. But Calvinball is never played with the same rules twice: that’s not true of the law.

J-D: Eh… I mean, you’re talking about a constitution that explicitly gives congress the power to regulate “commerce” between the states, but was interpreted as protecting “freedom of movement” without explicitly saying so AND in spite of a specific grant of power to regulate commerce between states in an environment where “commerce” apparently includes volitional human movement… I mean literally the exact same word “commerce” as you’re describing in the exact same clause, not even a reuse of the same word in a different clause…

But if you look at the court decisions finding a right to freedom of movement, you don’t find that they’re based on saying that the power of Congress to make laws regulating ‘commerce’ between States does not include the movement of people; rather, the decisions are based on a separate provision of the Constitution which guarantees citizens of each State the ‘privileges and immunities’ of citizens in other States. Movement of people between States is treated differently from movement of people in and out of the country because there’s no parallel provision guaranteeing similar privileges and immunities for people from outside the country. That phrase, ‘privileges and immunities’, is there in the text: you can’t decide to take the text seriously without facing the possibility of having to decide what’s included in ‘privileges and immunities’ and what isn’t. I admit, readily, that when the judges have said that it does include the rights to enter and leave a State, they have been influenced not only by the text but also by other considerations; however, I reserve the right to suspect that anybody who argues that it does not include the rights to enter and leave a State is also influenced by extra-textual considerations. As things stand, the constitutional position, as defined by past court decisions, is that the Congressional power to regulate commerce includes a power to regulate movement of people; but that this power does not extend to regulating the movement of citizens between States, because that would violate privileges or immunities guaranteed to them by the Constitution. I’m not defending that particular position: but it’s not accurate to suggest that the courts have arrived at it by interpreting the same occurrence of the same word in the same place to mean two different things.

If Congress (let’s say, some hypothetical future Congress) legislated to protect access to pregnancy termination services, and if the legislation was challenged in court, I would expect the judges to decide the case according to what they thought was right; but I would also expect them to relate their decisions to the text of the Constitution; and therefore I would expect the lawyers who argued the case, on both sides, to advance legal theories in favour of their desired results in terms of the text of the Constitution; therefore, working backwards, I would not expect any hypothetical Congress even to attempt such legislation unless they had first come up with a legal theory to defend its constitutionality. But I cannot imagine any legal argument from the text of the Constitution to the constitutionality of such legislation. The fact that I can’t imagine one doesn’t mean none is possible, not at all, I know that well! But I observe no evidence that anybody else commenting here is able to imagine such an argument.

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Eric 06.02.19 at 5:06 am

So if Thomas sees all in terms of racism, does that include his marriage?

Also, I listened to the confirmation hearings & Anita Hill in 1991, and Thomas came off as an ordinary lying creep, but the real villain of the show was Joe Biden.

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