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As purple states line as much as prohibit — and even criminalize — abortion, the essential query might be, What counts as an abortion?
Past that, the draft opinion within the pending abortion case supplies a path for difficult the constitutionality of all contraception. In a footnote, Justice Alito highlights an argument linking abortion with eugenics. The argument is most carefully related to Justice Clarence Thomas, who in a 2019 concurrence argued that abortion restrictions may very well be the state’s try to stop abortion from turning into “a software of eugenic manipulation.” Justice Thomas’s argument hinged, partly, on the connection between Margaret Sanger, the founding father of Deliberate Parenthood and the trendy contraception motion, and the eugenics motion.
Justice Alito’s choice to incorporate that footnote in his draft opinion is puzzling — by the draft opinion’s logic, overruling Roe is a perform of textualism and originalism, not eugenics. Maybe it was merely a collegial nod to Justice Thomas, who has diligently husbanded the eugenics argument and seen it flourish in decrease courtroom rulings on abortion.
Or, extra ominously, maybe the footnote is meant to protect — in an important Supreme Court docket choice in a era — the view that the trendy contraception motion is irrevocably tainted by its previous associations with eugenics and racial injustice. In any case, the courtroom has overruled previous precedents with a purpose to treatment a racial injustice.
Because the draft opinion acknowledges, the courtroom in Brown v. Board of Schooling overruled Plessy v. Ferguson with a purpose to appropriate the injustices of Jim Crow. What higher method to destabilize, and lay a basis for overruling, the fitting to contraception than to foster and domesticate the notion that it originated in a racist effort to stamp out Black copy?
To cite Justice Antonin Scalia, “it takes actual cheek” for Justice Alito to insist that the draft opinion’s logic may be confined to abortion and doesn’t implicate every other rights. The doc, if finalized, is not going to merely lay waste to nearly 50 years’ value of precedent — it’s going to present a blueprint for going even additional. The satan, in any case, is within the particulars.
Melissa Murray is a professor of legislation at New York College and a co-host of the “Strict Scrutiny” podcast.
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