June 17, 2024
The Farce of Griswold v. Connecticut
The Supreme Court invented a constitutional ‘right to privacy’ out of thin air — and an epidemic of abortion came not long after.
The Supreme Court invented a constitutional ‘right to privacy’ out of thin air — and an epidemic of abortion came not long after.

Justice Thomas’s May 28th concurring opinion in the case of Box v. Planned Parenthood, expressing concern about the eugenic roots and implications of “sex-, race-, and disability-selective abortions,” has inspired strong reactions on both ends of the spectrum. To Daily Wire editor-at-large Josh Hammer, it proves that “Clarence Thomas is the single greatest living American.” To Bess Levin of Vanity Fair, Thomas is “insane” and living in an “alternate universe.”

The opinion’s most heated critics, including Levin, are taking issue particularly with Thomas’s inclusion of contraception, rather than just abortion, in his examination of the intertwined histories of eugenics and the so-called reproductive-rights movement. From the beginning of that section:

The foundations for legalizing abortion in America were laid during the early 20th-century birth-control movement. That movement developed alongside the American eugenics movement. And significantly, Planned Parenthood founder Margaret Sanger recognized the eugenic potential of her cause. She emphasized and embraced the notion that birth control “opens the way to the eugenist.” Sanger, Birth Control and Racial Betterment, Birth Control Rev., Feb. 1919, p. 12 (Racial Betterment). As a means of reducing the “ever increasing, unceasingly spawning class of human beings who never should have been born at all,” Sanger argued that “Birth Control . . . is really the greatest and most truly eugenic method” of “human generation.” M. Sanger, Pivot of Civilization 187, 189 (1922) (Pivot of Civilization). In her view, birth control had been “accepted by the most clear thinking and far seeing of the Eugenists themselves as the most constructive and necessary of the means to racial health.

Thomas is quite clear that he is not equating the moral status of contraception with the evil of abortion. Nonetheless, his detractors do raise an important point: Thomas uses the term “birth control” 36 times throughout his 20-page opinion — though, to be fair, this is only half as many as the 72 appearances of “abortion.” He may not be equating it to abortion (he isn’t), but he is certainly saying something about birth control. Critics are concerned that he might be hinting at a desire to overturn Griswold v. Connecticut, the landmark 1965 Supreme Court ruling that declared laws prohibiting birth control unconstitutional. Pro-choice writer Asha Dahya warned: “When they scream ‘Roe,’ they whisper ‘Griswold.’”

Let’s hope so.