State Abortion Bans Based on Sex, Disability or Race Aren’t Remedies Against Eugenics

In his 2019 opinion in Box v Planned Parenthood, Justice Clarence Thomas wrote an impassioned concurrence describing abortions based on sex, disability or race as a form of ‘modern-day eugenics’. He defended the challenged Indiana reason-based abortion ban as a necessary antidote to these practices. Inspired by this concurrence, state legislatures have increasingly enacted similar bills and statutes allegedly as a prophylactic to ‘eugenics’, its underlying discrimination, and the racial disparities eugenics caused. A new study published by the Journal of Law and Biosciences by George Washington University professor of law and founding director of the Health Law Initiative, Sonia M. Suter, finds that the motivation behind such bans is performative and backers are using concerns about eugenics to restrict reproductive rights. Her research finds that reason-based abortion bans actually harm the very groups impacted by the eugenics movements—minorities, women, people with disabilities, the LGBTQ+ community, and immigrants.

Sonia M. Suter

In “Why reason-based abortion bans are not a remedy against eugenics: an empirical study”, Suter challenges the allegedly anti-eugenic promise of abortion bans based on sex, disability or race by examining whether states with such laws have anti-eugenic legislative policies outside the context of abortion. The paper looked at three areas that can have eugenic-like or anti-eugenic effects by comparing states with and without abortion bans that also have laws that concern sterilization, conjugal visits, incest, assisted reproductive technology, substance use during pregnancy, prenatal information laws, and bans on wrongful birth and life claims, as well as laws that influence U.S. population through immigration and incarceration. Her analysis also looked at state’s infant mortality rates and gender pay gaps.

Suter wrote that “by exploring eugenics concerns in the terms offered to justify reason-based abortion bans, one sees how empty those stated concerns are when RBA-ban states largely fail to address them across several areas unrelated to abortion…. In short, the ‘anti-eugenics’ project of reason-based abortion bans has helped make eugenics more possible today than ever.”

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