Justice Alito, Abortion and Eugenics

United States Supreme Court Building, Washington, D.C. Original image from Carol M. Highsmith’s America, Library of Congress collection. Digitally enhanced by rawpixel. by Carol M Highsmith is licensed under CC-CC0 1.0

The Supreme Court is planning to overturn Roe v. Wade (1973). Politico first reported on the opinion by Justice Alito, provoking a firestorm of outrage online and among the political establishment. President Biden released a statement denouncing the case and Democrats in the Senate announced plans to codify Roe in statutory law. While it is unlikely that such efforts will change much, Alito’s legal framing and argument require a response. And while I plan to respond in full to the argument later this Saturday, it is especially important that one part of this argument is addressed immediately. Namely, the argument by Justice Alito that abortion activists seek to reduce African American births in a thinly-veiled accusation of eugenics.

In a rebuke of Roe v. Wade (1973), Alito attempts to call out what he sees as the racism of the pro-choice movement, writing:

“Other amicus briefs present arguments about the motives of proponents of liberal access to abortion. They note that some such supporters have been motivated by a desire to suppress the size of the African American population.”

Justice Alito in Dobbs v. Jackson Women’s Health Organization (2022)-Draft Opinion

Keen readers may have noticed the underlying casualness with which Justice Alito implies that pro-choice advocates support eugenics, but it is even worse than being merely casual and indirect. Instead of highlighting this position in a direct or even open manner, Alito subjects this accusation, a serious one at that, to a footnote.

I am not kidding.

Throughout his 98-page argument as to why Roe should be overturned, Alito does not mention African Americans a single time beyond this thinly-veiled accusation of eugenics and genocide. Not once!

Screenshot of Justice Alito’s footnote (Alito, 2022, pp. 30).

While it is not new for pro-lifers to accuse pro-choice activists of supporting eugenics, and by extension genocide, hearing a Supreme Court justice casually make the accusation, even if he veils it behind someone else’s legal argumentation, is galling.

It is not a new concept in public affairs. Multiple figures have accused pro-choice activists of genocide due to the rate at which black women seek abortion compared to white women. Jesse Lee Peterson and his infamous Brotherhood Organization of a New Destiny, made similar arguments in a protest vigil, saying:

“Every day … over 1,500 black babies are murdered inside the black woman’s womb,” said Rev. Jesse Lee Peterson, of Brotherhood Organization of a New Destiny (BOND). “This is a race issue.”

Jesse Lee Peterson at protest vigil in Kelley Beaucar Vlahos, “Pastors Accuse Planned Parenthood for ‘Genocide’ on Blacks,” Fox News (Fox News, March 25, 2015), accessed May 5, 2022, https://www.foxnews.com/story/pastors-accuse-planned-parenthood-for-genocide-on-blacks.

A fellow Loras alumnus of mine has made similar arguments, as well.

The argument by Justice Alito and others is largely based on criticism of Margaret Sanger, the founder of Planned Parenthood, a birth control advocate, and a feminist from the 20th century. Though Sanger has been lauded for her support of women’s bodily autonomy, Sanger has also been criticized for her views on eugenics, and rightly so.

However, much of the use of Sanger’s history with eugenics and anachronistic fails to adequately address the motivations of the modern feminists and pro-choicers while simultaneously presupposing Sanger’s opinions are representative of the modern movement.

In just one example, Justice Alito points to an amicus brief submitted by supporters of the petitioners which argues, among other things, that the continued presence of planned parenthood centers in black communities amounts to the “hushed killer of Black life that has silenced millions of George Floyds…” This brief also points to the higher incidence of abortion among black Americans as evidence of supposed continued eugenics, writing:

“According to the Centers for Diesease Control’s most recent data, Black women accounted for 33.6 percent of all abortions in 2018, even though they account for 13 percent of women in the United States.”

Staver et al., “Brief for Amici Curia African American, Hispanic, Roman Catholic and Protestant Religious and Civil Organizations and Leaders Supporting Petitioners,” in the case of Dobbs v. Jackson (2022), pg. 18.

The amicus brief further supports this argument:

“The racial disparity in abortions is largely intentional. A study based on 2010 census data shows that eight out of ten planned parenthood clinics are within walking distance distance of predominately Black or Hispanic neigborhoods.”

Staver et al., “Brief for Amici Curia African American, Hispanic, Roman Catholic and Protestant Religious and Civil Organizations and Leaders Supporting Petitioners,” in the case of Dobbs v. Jackson (2022), pg. 19

This, of course, is nonsense. The prevalence of abortion facilities in minority communities, particularly black communities, is not surprising. Nor is it evidence of malice on the part of Planned Parenthood itself. Rather, it is more heavily correlated with the need for services and disparities in income and quality of maternal care.

As the Court itself is aware, black women are some of the main beneficiaries of pro-choice legislation and rulings like Roe. In a country that sees black women over 40 dying nearly 8 times the rate of white women in the same group, the idea that voluntary access to abortion is inherently malicious to black people is asinine. Black women are three times as likely in pregnancy compared to their white counterparts. That alone distinguishes abortion from the forced sterilizations that pro-life activists have attempted to connect it to, and they know it.

Justice Alito himself was perfectly aware of the benefits that black women have seen significant improvement as a result of Roe and abortion access. Despite attempting to claim that empirical issues surrounding abortion are “hard for anyone — and in particular, for a court — to assess,” Alito had that information right in front of him via an amicus brief submitted to the Court by 154 researchers. That briefing showed that abortion access reduced maternal mortality among black women by up to 48 percent.

Far from the massive attempt to enforce eugenics on the black community that the right wishes it to be, abortion access saves lives and it is disingenuous to compare modern-day abortion services to the crimes of the past. And Justice Alito knows better.

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