Justice Clarence Thomas sparked harsh rebuke last week after claiming that abortion rights can be traced back to the 20th century eugenics movement. He made the comments in a 20-page opinion after the Supreme Court declined last week to take up a provision of an Indiana law that bars abortions based on the sex, race or disability of the fetus. The decision keeps in place a lower court injunction on the measure. But Justice Thomas indicated that he supports the law, writing in his opinion, “Enshrining a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement.” To make his case, Justice Thomas cited a book by Adam Cohen titled “Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck.” We speak with Adam Cohen, who has since refuted the justice’s claims. In a piece for The Atlantic titled “Clarence Thomas Knows Nothing of My Work,” Cohen writes, “Thomas is absolutely right that we need to remember our eugenics past and make sure that we do not make the same mistakes again. He is absolutely wrong that individual women making independent decisions about their pregnancies are the eugenicists of our time.”
AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, as we turn now to the ongoing assault on abortion rights across the country. Last week in Missouri, a judge granted a temporary restraining order to Planned Parenthood Friday, allowing the state’s only abortion clinic to remain open despite health department officials refusing to renew its license. The ruling came down just hours before the clinic’s license was scheduled to expire. It’s just one step in the fight to save Missouri’s Planned Parenthood. The next hearing is scheduled for tomorrow. Missouri legislators recently passed an eight-week abortion ban, and the state is one of dozens where abortion rights are under threat.
Also last week, Louisiana became the fifth state to ban abortions after six weeks, without exceptions for rape or incest. The ban will only go into effect if Mississippi’s six-week abortion ban is upheld. A federal judge temporarily blocked the law last week. Kentucky, Ohio and Georgia have also recently moved to outlaw abortions after six weeks. Alabama has passed a near-total ban on abortions.
As these states tighten anti-choice legislation, others are fighting to strengthen access to reproductive rights. The Vermont Legislature has approved a new bill that would prohibit the government from interfering with the right to get abortions. A dozen other states have their own legislation in the works to guarantee the right to abortion.
Both sides are preparing for a challenge to Roe v. Wade, the landmark 1973 Supreme Court ruling that recognizes the constitutional right to an abortion. All of this comes as the Supreme Court declined last week to take up a provision of an Indiana law that bars abortions based on the sex, race or disability of the fetus. The decision keeps in place a lower court injunction on the measure.
But Justice Clarence Thomas indicated, in a 20-page opinion, that he supports the law, writing, quote, “Enshrining a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement,” unquote. To make his case, Justice Thomas cited a book by Adam Cohen titled Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck.
Justice Thomas’s opinion has been widely discredited, including by the author of the very book he cites in his opinion. In an article for The Atlantic headlined “Clarence Thomas Knows Nothing of My Work,” Adam Cohen writes, quote, “Thomas is absolutely right that we need to remember our eugenics past and make sure that we do not make the same mistakes again. He is absolutely wrong that individual women making independent decisions about their pregnancies are the eugenicists of our time.”
Adam Cohen joins us here in our New York studio.
Adam, welcome back to Democracy Now!
ADAM COHEN: Great to be here, Amy.
AMY GOODMAN: So, talk about reading Justice Thomas’s decision and realizing he’s quoting you.
ADAM COHEN: OK. On one level, you have to be a little flattered, right? The highest court in the land, when they want to write about a subject, cites your book, you know, a dozen more times. That’s nice. But when you read the substance of what Thomas was saying, very concerning, very disturbing, because his history is not right, and there’s a real ideological agenda behind how he’s using the history.
AMY GOODMAN: Explain.
ADAM COHEN: Sure, OK. So, we have not, generally, in the Supreme Court, talked about abortion in eugenics terms. There have been many other ways of discussing whether abortion should be constitutional or not. Clarence Thomas is making a bold foray here in saying, “Let’s start using this eugenic lens. And, in fact, let’s go back in history to the eugenics movement of the 20th century,” which was a very big deal, not so well known. But in the 1910s and 1920s, more than half of American states adopted eugenic sterilization laws that allowed the state to choose certain kinds of people that they deemed feebleminded or otherwise unfit to reproduce, and to forcibly sterilize them. So that was a very big deal.
Clarence Thomas is trying to connect that movement to abortion and say abortion is bad for the same reasons the eugenics movement was wrong. The only problem is, the eugenics movement of the 20th century was never about abortion. Abortion was always illegal. The leaders of the eugenics movement said, “We don’t support abortion.” They were supporting this other thing: forced sterilization.
So, his history is wrong. And he’s using it to try to come up, I think, with another argument against abortion. The anti-abortion forces have really failed to convince a majority of Americans that abortion is killing a person, so I think they want another argument and, you might even say, a more PC argument. “Let’s not think of it that way,” they’re saying. “Let’s think of it as being kind of like racism, kind of like eugenics, like a bad thing.” But the problem is, that’s not really what abortion is about.
AMY GOODMAN: So, explain where Clarence Thomas is coming from. You’re also writing a book on the Supreme Court. And did what he say surprise you?
ADAM COHEN: It did, because, as I say, it’s not really the way in which the debate has been framed. It’s really fresh and new and somewhat radical. And it’s also just wrong in thinking about abortion, because when you strip away the history, which you have to do because the history is all wrong, abortion is not an act of eugenics.
Eugenics is a very specific thing. It’s the government saying, “We’re not going to let certain people, who we deem to be unfit, reproduce, because we want to lift up the gene pool and make the gene pool of future generations more fit and better.”
That’s not what abortion is about. When a woman in Indiana decides—she’s pregnant, she takes a test, finds out there’s something about the fetus that is going to produce a very sick baby, maybe a baby that will die in its first year, after, you know, terrible pain and a bad life—if she decides not to bring that baby to term and to give birth, that’s not a eugenics decision. That’s a woman making a personal decision about what she wants to do with her life. The government is not telling her to do that. So, he’s really twisting everything here.
AMY GOODMAN: Do you think he understands the distinction?
ADAM COHEN: I think he does. But, you know, you can see why, from a propaganda purpose, this is good branding, right? If you can say about abortion, “Hey, abortion doesn’t just stop a beating heart,” as they—you know, the movement likes to say—”it’s also a way of trying to change our gene pool in a way that ordinary people might say, 'Well, that's not really the right thing to do,” I think it’s a good branding thing. It’s just not true.
AMY GOODMAN: The Supreme Court did allow to stand the fetal remains portion of the bill, the fetal remains burial portion of the bill.
ADAM COHEN: That’s correct. And this ruling was widely hailed as a compromise: “Oh, isn’t that nice that they—there’s one part of the Indiana law that’s not going to stand and another that is.” But it’s very strange that we’ve gotten to a point in the abortion movement that this is considered a compromise, because what the law requires is really that every fetus have a burial, kind of like a baby would have a burial, which, you know, many, many women may not want that to be done to the fetal remains. And also, they may be charged for it by the abortion provider. They might pay a thousand dollars or more for this thing. So, it’s hard to see that as a compromise. Really, we’re seeing abortion rights really eroding, and this is another example of that.
AMY GOODMAN: Have you written to the justice to say he misquoted you?
ADAM COHEN: No, I haven’t. But I’m hoping that he reads The Atlantic and that he’ll see it there.
AMY GOODMAN: So, Adam Cohen, you are writing a book on the Supreme Court. You also focus on precedent-setting cases. And I wanted to ask you about where you think the Supreme Court is headed when it comes to abortion. Last year, Judge Brett Kavanaugh appeared before the Senate Judiciary Committee, and he was asked about Roe v. Wade in his confirmation hearing.
JUDGE BRETT KAVANAUGH: One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992.
AMY GOODMAN: So, that was Brett Kavanaugh before he became a Supreme Court justice. Of course, he was approved. It is officially the Roberts Court; some call it now the Kavanaugh Court. What does it mean, what he said? And where do you see the Supreme Court going right now?
ADAM COHEN: Yeah. Well, first of all, I don’t think we can give a lot of credence to what people say at confirmation hearings. They tend to say what they think the Senate wants to hear, in order to get themselves confirmed. Chief Justice Roberts himself famously said at his confirmation hearing, “I see my role as a judge as being an umpire just calling balls and strikes.” And then, you know, look at the kind of decisions we’ve been getting in the last few years. So, I don’t think we can say from that that Kavanaugh wouldn’t vote to overturn Roe v. Wade.
And the thing is that for really a long time we’ve had one justice in the middle, a swing justice—it was O’Connor, and then it was Kennedy—who, although conservative, has not been willing to pull the trigger and overturn Roe v. Wade. The question is now: Do we have one of those swing justices, or, with the recent appointments of Kavanaugh and Gorsuch, do we now have five justices who would all actually overturn it? We just don’t know the answer.
AMY GOODMAN: And what about Roberts, Chief Justice Roberts, where you think he would stand? Many were surprised when Obamacare, when the Affordable Care Act, came before the Supreme Court, that he actually voted for it, even though he had expressed criticism of it.
ADAM COHEN: He did, and that made people think maybe he’s a potential swing. But that is a very different kind of issue, and that was one where maybe he was trying to act a little bit more like an umpire. But on abortion, it could be different. He’s very religious. When he went to Harvard as an undergraduate, he went to mass every Sunday. His wife has been active in anti-abortion causes. So, he may just feel, if this is a real sort of heart issue for him—we just don’t know if he’s been waiting all these years to overturn Roe v. Wade.
AMY GOODMAN: Before you go, I wanted to ask you about Angela Merkel. Angela Merkel, the German chancellor, was at Harvard University this past week giving a major graduation address and took an apparent swipe at President Trump and his policies during her keynote commencement address. Merkel, who received an honorary degree from Harvard, took aim at Trump’s protectionism, trade wars and his efforts to expand the wall along the U.S.-Mexico border.
CHANCELLOR ANGELA MERKEL: That’s why I want to leave this wish with you: Tear down walls of ignorance and narrow-mindedness, for nothing has to stay as it is.
AMY GOODMAN: The German chancellor did not mention Trump by name but compared his wall-building efforts to the Berlin Wall, that restricted her movements as she grew up in East Germany. You were at your Harvard commencement—your Harvard graduation reunion. You were there?
ADAM COHEN: I was there in the audience, yes. And she was very well received. It was a beautiful speech. And she did begin, as you said, by really this personal story of, as a young woman growing up on the other side of the Berlin Wall, how every day when she entered the workforce, she would go to the laboratory where she was working, and she could just see the wall, and she knew that on the other side of it was freedom. Every day she saw this personal barrier in her own life. So she used that to, as you say, then launch this other idea that walls, in general—the walls we have now, the walls we’re thinking about building—are dangerous. And it really was a plea for globalism and mutual understanding across borders. And it was very well received. She was really quite the star of the day.
AMY GOODMAN: She didn’t mention Trump by name?
ADAM COHEN: No, but there were moments, with this and with some other sort of veiled references, that people sort of knew she seemed to be talking about Trump. But, no, she did not.
AMY GOODMAN: Well, Adam Cohen, thank you so much for being with us, journalist, lawyer, co-editor of TheNationalBookReview.com, author of a number of books, most recently, Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck. We’ll link to his recent piece for The Atlantic headlined “Clarence Thomas Knows Nothing of My Work.” Adam Cohen is writing a book about the last 50 years of the Supreme Court.
When we come back, President Trump is considering presidential pardons for American military members convicted of war crimes. Stay with us.