After half a century of unremitting assaults—years spent defunding abortion care, restricting abortion access, and terrorizing women and their doctors—the religious right has achieved its first major judicial breakthrough: the overturning of Roe v. Wade. Among a volley of first-term decisions by the ultraconservative Supreme Court supermajority installed by President Donald Trump, Dobbs v. Jackson Women’s Health Organization must be seen as part of an unfolding judicial counterrevolution.
The electoral pushback against the decision has been impressive, and no doubt stronger than Republicans had anticipated. In ballot initiatives in Kansas, Kentucky, California, Michigan, and Vermont, voters have either rejected proposed abortion bans or reaffirmed existing protections. Yet the Dobbs decision is unlikely to be the Supreme Court’s last word on the matter.
For decades, religious conservatives have wanted to overturn Roe and return abortion laws to state legislatures. But they have never seen this as the be-all and end-all of their struggle. For the right-to-life movement that emerged in the 1970s, the reversion of authority to states is a stepping stone on the road to a higher goal: a federal prohibition on abortion that would overrule the ability of any state to legalize the practice. The recognition of fetal personhood is a key plank in this agenda.
In the years leading up to the Roe decision in 1973, as legal historian Mary Ziegler recounts in Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment, anti-abortion activists called on state and federal courts to recognize the civil rights of the unborn. They appealed to the Declaration of Independence, with its affirmation of an unalienable right to life, and to the Fourteenth Amendment (the Reconstruction-era amendment that reaffirmed and clarified the rights enumerated in the Declaration) to argue that the unborn deserved equal protection and due process like any other minority. In several instances, they cited as precedent the 1954 Brown v. Board of Education decision outlawing segregation, hoping to convince the courts that fetuses, like African Americans under Jim Crow, were natural persons unjustly deprived of their full rights to life.
Their efforts were unceremoniously rebuffed by Justice Harry A. Blackmun, author of the majority opinion in Roe, who argued that fetal personhood was nowhere to be found in the Constitution and that, in any case, the Court had no authority to rule on a matter that was unresolved among religious scholars and biologists. Crucially, however, Blackmun acknowledged that if the concept of “person” could somehow be construed to apply to the unborn, then no one could legitimately deny due process and equal protection rights to fetuses—and the case for abortion rights would “collapse.”
In the wake of Roe, anti-abortion activists remained hopeful they could work through Congress and the states to secure a constitutional amendment that would establish the personhood of the fetus once and for all. Their hopes faded in 1983, when the most promising of such proposals died in Congress. At this point, they resorted to less direct ways of inserting the concept of fetal personhood into law. Beginning in the mid-1980s and accelerating after the Planned Parenthood v. Casey decision of 1992, anti-abortion activists fought for fetal homicide laws, late-term abortion bans, fetal pain legislation, and state edicts compelling women to view ultrasound images of fetuses before abortion.
In adopting these more incremental measures, religious conservatives were conceding tactical defeat. Yet they never lost sight of the strategic endgame. Such legal changes were designed to turn the idea of fetal personhood into common sense; an accumulation of minor laws could be invoked as precedent at the right time. With a 6–3 conservative supermajority and a Republican Party moved far to the right, that time has clearly arrived. Anti-abortion activists are now returning to their original goal: “the recognition of fetal personhood and the criminalization of abortion,” Ziegler writes, in all states.
In preparing the ground for this challenge, anti-abortion activists have revived the race-based arguments that they first tried out in the 1970s. Feminist legal scholars Melissa Murray and Jeannie Suk Gersen have pointed to a recent spate of “anti-eugenic” state laws as a likely prompt to future Supreme Court assaults on abortion and a springboard for the recognition of fetal personhood.
A number of states have passed laws banning abortions that are motivated by a presumed intent to discriminate against the fetus on the grounds of race, sex, or disability. In 2016, the Indiana state legislature passed HEA 1337, a particularly draconian version of these “trait selection anti-discrimination laws.” The law was framed as a belated response to Indiana’s early-twentieth-century history of state-enforced eugenics. Just nine years prior, the legislature had issued an official apology for its “role in the eugenics movement in this country and the injustices done under eugenic laws.” Recognizing that the state’s eugenic laws had “targeted the most vulnerable among us, including the poor and racial minorities,” the Indiana General Assembly “urge[d] the citizens of Indiana to become familiar with the history of the eugenics movement” and “repudiate the many laws passed in the name of eugenics and reject any such laws in the future.” In signing HEA 1337 into law, then Governor Mike Pence self-consciously reprised this language, affirming that “a society can be judged by how it deals with its most vulnerable—the aged, the infirm, the disabled and the unborn.”
The federal appeals court subsequently invalidated the law as unconstitutional on the grounds that it imposed an “undue burden” on a woman’s right to abortion. The Supreme Court declined to take up the case, with the Box v. Planned Parenthood decision in 2019 postponing consideration of the issue until other courts of appeals had weighed in on similar laws from other states. Significantly, however, Supreme Court Justice Clarence Thomas took the occasion to pen a lengthy reflection on abortion, race, and eugenics in a concurring opinion. While agreeing with the Court that the case law was not yet ready for review, Thomas thought the issue significant enough to warrant a detailed solo opinion, in which he laid out why he thought such laws should ultimately be legitimated.
At stake in “this law and other laws,” he wrote, is nothing less than a “State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” In what followed, Thomas rehearsed a refrain that has been perfected by the right-to-life movement since the 1970s. Making indiscriminate use of the historical scholarship, he drew a logical chain of equivalence from Margaret Sanger’s eugenicist arguments in favor of voluntary birth control to early-twentieth-century state sterilization laws, and from there to Roe, without once acknowledging the existence of feminist (much less black feminist) defenses of abortion as a right to bodily autonomy.
Thomas’s position was anticipated by future Supreme Court Justice Amy Coney Barrett, who, in her capacity as a judge of the U.S. Federal Court of Appeals for the Seventh Circuit, contested the court’s refusal to consider the “validity of an anti-eugenics law.” The idea that abortion constitutes a form of eugenics has since been reaffirmed by Pence. In a speech before the 2022 National Pro-Life Summit, the former vice president proclaimed that abortion “is being used as a tool of eugenics for the elimination of children of the wrong sex or race or those suffering with disability.” He continued with the requisite reference to “Margaret Sanger, the founder of Planned Parenthood,” who “once wrote that eugenics, in her words, was . . . ‘the most adequate and thorough avenue in the solution of racial, political and social problems.’” Today, Pence concluded, “Planned Parenthood shamelessly builds on Margaret Sanger’s legacy.”
That religious conservatives frame the defense of the unborn as an anti-eugenics crusade sometimes comes as a surprise to feminists, who in recent decades have developed their own critique of first-generation white feminism and its eugenicist legacies. The anti-abortion argument is not so easily dismissed as a cynical misreading of history (although it is also that), since American Catholics were among the first to target the eugenics movement from a self-consciously leftist point of view. The idea that voluntary abortion was equivalent to eugenics was the glue that united improbable allies in the 1960s and ’70s: black nationalists and Catholics, on the one hand, and evangelicals, fundamentalists, and Catholics on the other. It circulates in today’s right-to-life movement with barely a trace of its origins on the (economically progressive and socially conservative) Catholic left. The spirit of the “progressive” anti-abortion movement lives on, however, in the work of self-declared Catholic and socialist feminists, pro-life liberals, and certain strands of feminist anti-racism.
If we are to follow feminist legal scholar Jeannie Suk Gersen, religious conservatives currently see “anti-eugenic” state laws as the most promising avenue for installing legal recognition of fetal personhood and passing a federal ban on abortion. The stakes could not be higher. Yet much of the feminist left is ill-equipped to deal with this threat. A popular literature on capitalist healthcare indiscriminately brandishes the term “eugenics” as if it were equivalent to biomedical racism in all its historical forms (unfortunately, racism is much more polymorphous than this), while a well-worn critique of early-twentieth-century feminist eugenics routinely fails to address the equally important phenomenon of anti-feminist anti-eugenics during the same period.
If we are to have any hope of confronting the threat posed by the current Supreme Court, it is imperative that we grasp the roots and logic of the social conservative critique of eugenics and ask ourselves what differentiates it from our own.
In his illuminating study “The Partisan Trajectory of the American Pro-Life Movement,” the scholar Daniel K. Williams notes that we routinely forget the movement’s origins in Catholic social welfare and civil rights activism, thanks in large part to its subsequent domination by free market–oriented evangelicals. The anti-abortion movement, he claims, began as a “liberal” cause. More accurately, we could say it emerged from the combination of social conservatism and redistributive economics espoused by Catholics (and many other New Deal Democrats) at mid-century.
As impoverished migrants hailing from Europe’s economic margins, American Catholics had been allies of the New Deal Democrats and were active in the campaign to institute a family wage in the early twentieth century. Indeed, in the United States, Catholic social doctrine played a significant but often unacknowledged role in popularizing the idea that each male worker should earn enough to provide for himself, his wife, and his children.
The term “right to life,” which we now associate with the anti-abortion movement of the 1970s, was first coined by the Catholic social philosopher John Ryan as a defense of the male breadwinner family wage. Drawing on the Thomist natural law tradition and the social doctrine of Pope Leo XIII, Ryan posited that every male worker, however poor and whatever his ethnic origin, had a right to a “living wage” by virtue of the sanctity of human life. The same argument undergirded Ryan’s defense of the large family and his strident opposition to any form of “unnatural” birth control, which he understood as both a perversion of natural law and a form of race suicide.
Catholics were the most vocal opponents of Sanger’s movement to liberalize birth control in the 1920s and began campaigning against the eugenics movement in the 1930s, when coercive population control measures very often targeted fellow Catholics from the fringes of Europe. So entangled were the issues of social welfare and the protection of the fetus in their minds that when the American Medical Association endorsed the legalization of birth control in 1937, one Catholic cleric warned that the degradation of unborn life would lead to a general backlash against workers’ rights.
The flourishing eugenics movement of the 1920s and ’30s was enduringly discredited by the full revelation of Nazi atrocities in the wake of the Second World War. At this point, American Catholics sought to have the rights of the unborn enshrined in the founding documents of human rights law. Although their campaign was only partially successful—the unborn were recognized in the United Nations General Assembly’s Declaration of the Rights of the Child in 1959, but not in the 1948 Universal Declaration of Human Rights—Catholics continued to weave together social welfare, the Holocaust, and the human rights of the unborn over the following decades. By the end of the century, the equation of genocide and abortion was a staple of right-to-life discourse.
The universalist pronatalism espoused by Catholics made their critique of eugenics remarkably adaptable to different times and circumstances. In the 1960s, when black nationalist leaders organized their own campaigns against federal family planning clinics in poor neighborhoods, they were often joined by Catholic progressives who saw the defense of unborn black life as a natural extension of their civil rights work. A new generation of black activists, from Malcolm X to the Black Panthers to a number of more reformist civil rights leaders, were convinced that federal funding of birth control, which became available in 1965 under the auspices of President Lyndon B. Johnson’s Office of Economic Opportunity, was a plot to exterminate the black race. Whether inspired by the religious conservatism of the Nation of Islam or the revolutionary Marxism of the Black Panthers, black nationalists understood the reproduction of race as foundational to their project and saw women as an instrument to this end (“man’s field to produce his nation,” in the words of Elijah Muhammad).
They had good reason to be suspicious of government-funded family planning: the resurgence of overpopulation theories in the 1960s, often couched in the language of environmental limits to growth, occurred just at the moment when black liberation and anti-imperialist movements were gaining ground across the world. The population lobby was beset by conflict during this period, as Planned Parenthood and other foundations sought to distance themselves from the increasingly authoritarian and racist positions of the nascent environmental movement’s latter-day Malthusians.
Critics who suspected the motives behind federal family planning programs were vindicated when it was revealed in the early 1970s that a number of black women and girls had been sterilized without their consent in Department of Health, Education, and Welfare–funded clinics across the South. Nevertheless, African-American women, including prominent members of the Black Panthers, had their own reasons for welcoming the state-funded provision of birth control and abortion, as recounted by feminist scholars Jennifer Nelson and Dorothy Roberts. Even while black feminists forged an expanded notion of reproductive justice, which demanded both freedom from state coercion and the right to refuse childbearing, they often found themselves accused of collaborating with the eugenic state. As designated bearers of the future black nation and its revolutionary foot soldiers, women in charge of their own reproductive decisions were just as threatening to black nationalists as neo-Malthusian advocates of population control.
During this period, black nationalists borrowed heavily from the Catholic anti-eugenic repertoire to couch their arguments against government-funded family planning and women’s liberation alike. The Black Panthers’ denunciations of abortion as genocide during this period more often referred to the Holocaust than the black American experience of slavery; for their part, the many Catholic clergymen who fought alongside black nationalists in opposing free birth control clinics expanded their vocabulary to include the themes of black genocide and slavery. Catholics who had cast the defense of the unborn as an extension of the fight for workers’ rights and universal welfare in the 1930s, and who had gone on to compare birth control to the Holocaust, now configured the pro-life cause as a resurgence of the abolitionist movement and the defining civil rights issue of the time.
The abortion-as-eugenics framework also proved useful in brokering the improbable alliance between evangelicals, fundamentalists, and Catholics that occurred during the 1970s. American Protestants, as is now well known, had little interest in abortion as a theological issue prior to the emergence of second-wave feminism. But as they began to understand abortion as an instrument of women’s liberation from the family, they embraced the Catholic right-to-life movement as their own.
Abortion in this view was more than a perversion of natural law; it was also a symbol of the multiple threats to the family that abounded in American culture. As the fundamentalist preacher Jerry Falwell explained, “in another context we would be shedding blood,” but “our commitment to the family has brought those of us of differing views and backgrounds together to fight a just cause . . . to fight for the family.” Fundamentalists had spent many years raging against the threat of “socialized medicine” and the totalitarian control of family life it portended. This fear could easily be translated into the anti-eugenic language of American Catholics, offering a useful bridge between communities of faith that often shared little else in terms of economic politics.
It was during this period that religious conservatives resurrected the figure of Margaret Sanger as the villain of the ecumenical right-to-life movement. Catholics had been harsh critics of Sanger in the 1920s and ’30s, but she had barely appeared in Catholic denunciations of the abortion “holocaust” for much of the postwar period. She only returned from the grave in the mid-1970s, when she came to serve the ideological interests of evangelicals and fundamentalists too.
Sanger was indeed an ambivalent figure. A lifelong campaigner for women’s rights, she gradually abandoned her anarchist and socialist convictions in favor of a distinctly feminist version of eugenics. Frustrated with the lack of interest in women’s reproductive autonomy among feminists and labor activists, Sanger turned to the science of eugenics at the same time that she launched herself into a campaign to liberalize birth control laws and provide free clinics to working-class women. As historians Mary Ziegler and Linda Gordon have argued, Sanger was outraged that middle- and upper-class women had ready access to birth control while working-class women, who bore the brunt of Comstock anti-obscenity laws, were condemned to continuous unwanted pregnancies and early deaths.
In her writings on birth control, Sanger fulsomely adopted the eugenic language of racial purification to advance arguments that most eugenicists strenuously rejected. The pervasiveness of male-inspired sexual morality, she argued, had condemned women to a state of sexual ignorance, which ultimately led to racial degeneration. While embracing the eugenicists’ language of racial uplift as her own, Sanger argued (against the eugenicist mainstream) that this goal could be achieved only if women were granted full legal and sexual equality.
During the 1920s, she made overtures to eugenicists to conscript them for the birth control cause and published several anti-immigrant and racist texts in her journal, the Birth Control Review. The official eugenic movement, however, clung to the idea that unconstrained female sexuality was itself a form of racial degeneracy and, in a general meeting held in 1925, cast a resounding vote against the liberalization of birth control laws. By 1930, Sanger and the eugenic movement had parted ways. The science of eugenics itself would soon be utterly discredited.
For religious conservatives, Sanger’s embrace of eugenics was more than a historical footnote: as the founder of Planned Parenthood, she was the through line that led from the state-enforced eugenic laws of the 1910s and 1920s to the involuntary sterilizations of black women in the 1960s and 1970s and the Roe decision of 1973. This history proved to them that legal abortion (and the feminism that demanded it) was an irredeemably racist project. The story is complicated by the fact that Sanger was resolutely opposed to both abortion and state sterilization laws. But if religious conservatives fudge the details when it comes to Sanger’s stance on abortion, they willfully misrepresent the history of the modern, interdenominational right-to-life movement, which was much more directly prompted by the feminist threat to reproduction as such than the eugenic politics of selective reproduction.
Evangelicals and fundamentalists only embraced the Catholic “right to life” campaign against abortion when it became associated with the feminist demand for sexual freedom and bodily autonomy. Catholics, by contrast, have always fought against the eugenic and feminist threats to the natural family with equal ferocity, discerning no clear difference between the state’s coercive control of women’s childbearing and women’s own power to terminate their pregnancies. In the period after Roe, Catholic activists turned most of their attention to curbing women’s right to voluntary termination of pregnancy. Yet in public representations of their politics, religious conservatives have consistently muted their desire to curtail women’s bodily freedoms, instead presenting themselves wherever possible as crusaders against racist eugenics. To this end, they have brandished the figure of Sanger as evidence that feminism and state-enforced eugenics are one and the same thing.
In light of this history, it becomes easier to understand the consensus between Justice Clarence Thomas (a former black nationalist and errant Catholic) on the one hand, and Mike Pence (a self-described evangelical Catholic) and Amy Coney Barrett (a Catholic charismatic) on the other. The alliance of black nationalists and Catholic priests in the 1960s left an indelible mark on the rhetoric of the right-to-life movement, convincing many religious conservatives that the plight of the unborn was inseparable from the struggle against racial genocide. Never before, however, have exponents of this view been so well-represented in the Supreme Court, and never before has the Court been so closely aligned with the ultraconservative religious faction of the Republican right.
In recent public lectures, Thomas has invoked his personal trajectory as a former student radical and lapsed Catholic to make a biographical case for the alliance between Catholic conservatism and black nationalism. Raised out of maternal poverty by a Catholic grandfather and placed in a local Catholic school, a young Thomas embraced the teachings of the Church as a theological answer to the oppression of black people in the Jim Crow South. Thomas credits the nuns at school for teaching him that as a “child of God there [was] no force on this earth that [could] make [him] any less than a man of equal dignity and equal worth.” This truth was “repeatedly restated and echoed throughout the segregated world of our youth,” Thomas recalls, and “reinforced our proper roles as equal citizens, not the perversely distorted and reduced role offered us by Jim Crow.”
It was the conviction that God “transcends all law”—including the white-supremacist laws of the U.S. government—that led Thomas to choose the priesthood as his original vocation. A brief stint as the only black student in a Southern seminary was cut short, however, when he was forced to reckon with the assassination of Martin Luther King Jr. in 1968 and the contemptuous attitudes he encountered among his fellow students.
At this point, Thomas moved north to enroll in the College of the Holy Cross, an integrating liberal arts institution in Massachusetts, where he threw himself into the student black power movement. Thomas became a voracious reader of Malcolm X and stood out even among other black radicals for his uncompromising views on racial separatism and the immorality of interracial relationships. In retrospect, he recalls his younger self as clear-sighted in his assessment of American racism but hopelessly destructive in the solutions he found.
Over the next decade, Thomas experienced a series of abrupt political and personal epiphanies. By 1980, he had ceased to be a Democrat and was openly supportive of Ronald Reagan, who appointed him chair of the Equal Employment Opportunity Commission. In 1991, he was nominated to the Supreme Court by President George H.W. Bush—a position he took up after the sexual harassment charges laid against him by former employee Anita Hill were dismissed. At some point in the 1990s, Thomas returned to Catholicism, after “twenty-five years in the wilderness away from the Church.”
None of this involved a simple break with the black nationalism of his student years, however. The political theorist Corey Robin convincingly argues that Thomas remains a black nationalist to this day, even as he has moved from the radical left to the radical right. As a Republican, Thomas clings to the most conservative elements of the black power movement: its fealty to racial purity and male domination. At the same time, he has gradually replaced the revolutionary left principles of economic self-determination and mutual aid (variously espoused by Malcolm X and the Black Panthers) with the neoliberal ones of personal, familial, and communal responsibility (associated most notably with Louis Farrakhan).
In the process, I suggest, Thomas also found a new way of reconciling the warring parties in his personal philosophy: Catholicism and black nationalism. With his return to the Church, Thomas retrieved his early intuition that racial equality was ordained by Catholic natural law. Instead of elevating God’s law above human law, however, he now believed that natural law was compatible with, and indeed mandated by, the founding texts of the U.S. Constitution.
This reconciliation had already been attempted by the Catholic legal scholars in the 1970s who sought to gain recognition of fetal personhood by appealing to a constitutional “right to life” embedded in the Declaration of Independence and the Fourteenth Amendment. Thomas, however, claims to have received the same revealed wisdom on the basis of his personal journey back to the Church. Studying the Declaration of Independence in the mid-1980s, he recalls, felt “like a return to familiar ground. . . . The Declaration captured what I had been taught to venerate as a child but had cynically rejected as a young man. All men are created equal, endowed by their creator with certain unalienable rights.” As “I rediscovered the God-given principles of the Declaration and our founding,” he continues, “I eventually returned to the Church, which had been teaching the same truths for millennia.”
In his recent opinion on the subject of eugenics, Thomas extended this Catholic reading of the rights of man from the Declaration of Independence to the Fourteenth Amendment, and from the black man raised in the Jim Crow South to the fetus. The progression is compelling—even unavoidable—for someone who has accepted the Catholic teaching that universal personhood is located in the figure of the unborn child. If the Constitution is to fulfill its promise of “equal protection” of all life, stripped of racial predicates, then the ultimate test lies in its willingness to protect black life from the moment of conception.
The point of recent trait-selection anti-abortion laws is to put the Supreme Court to the test on this issue. In passing these laws, state legislators are asking a leading question, and no doubt hoping that the matter will make it all the way to an ultraconservative Court. In providing state legislators with their desired answer—that prenatal screening does indeed have eugenic potential—Thomas is not only impugning the specific practice of genetic testing but also making a much more momentous argument about the status of the fetus. By framing the issue of trait selection in terms of Fourteenth Amendment rights to equal protection, Thomas is assuming that the status of the fetus has already been resolved and is beyond debate.
“What is really at stake,” Jeannie Suk Gersen writes, “is an idea of fetal personhood.” In effect, “if the right to be free of discrimination on the basis of race, sex, or disability can be made relevant to a fetus, then fetuses are figured as entities with anti-discrimination rights—like people. This move imbues the fetus with rights that the pregnant person—and, by extension, the abortion provider—might violate.” While claiming to weigh in on the discrete practice of prenatal genetic screening, Thomas is laying the groundwork for the federal prohibition of abortion and the criminalization of aborting women as murderers.
It is not hard to find evidence for that ambition in the Dobbs decision. Written by Justice Samuel Alito, the text of the decision brims with comparisons between Roe, fetal non-personhood, and the status of African Americans under slavery and segregation. Throughout the opinion, Alito goes out of his way to represent the fetus as a natural person who has been subject to a long and egregious history of persecution.
Countering the argument that Roe should be left in place on the basis of stare decisis—the doctrine that advises judges to err on the side of precedent when urged to reconsider established law—Alito invokes the 1896 decision Plessy v. Ferguson, which justified segregation on the principle of “separate but equal.” Roe was “egregiously wrong and on a collision course with the Constitution from the day it was decided,” he writes, just like Plessy. The Court was justified in overturning Roe for the same reason it was right to overrule segregation in Brown v. Board of Education: at key moments in its history, the Supreme Court has no ethical option but to depart from precedent. By implication, Alito is suggesting that anyone who recognizes the civil rights of African Americans should be prepared to extend those rights to fetuses.
The equation is spelled out explicitly in a footnote in which Alito considers Thomas’s concurrent opinion on anti-black eugenics in Box v. Planned Parenthood. While claiming, disingenuously, to have no interest in questioning the “motives of those who have . . . opposed laws restricting abortion,” Alito nevertheless declares it “beyond dispute that Roe has had [the] demographic effect” of suppressing the size of the African-American population. In another passage outlining the legitimate grounds on which a state might restrict abortion, he refers to both the recognition of fetal personhood (“life at all stages of development”) and the “prevention of discrimination on the basis of race, sex or disability.” Clearly, Alito is laying the foundations for a case in which the validation of state laws claiming to protect the fetus from eugenic discrimination is taken to its logical conclusion: the recognition of full fetal personhood.
At the same time that he proposes race discrimination as a reason for banning abortion, Alito dismisses out of hand any suggestion that banning abortion might constitute a form of sex discrimination. In response to longstanding feminist arguments that the right to abortion might be grounded in the Fourteenth Amendment’s equal protection clause as it relates to women, he bluntly retorts that the “State’s regulation of abortion is not a sex-based classification and is thus not subject to the heightened scrutiny that applies to such classifications.” (At several points, Alito compares the “misuse” of the Fourteenth Amendment’s substantive due process clause in Roe to the “disastrous” use of the same clause in Dred Scott, the 1857 decision to exclude African Americans from citizenship in federal territories.)
In his defense, he cites the 1974 Geduldig v. Aiello case, infamous in feminist legal scholarship for deploying a concept of abstract (sex-neutral) personhood as a reason to deny the charge of sex discrimination against women. In the case, the Supreme Court ruled that pregnant women were not owed coverage under the state of California’s disability insurance program because pregnancy was not an experience particular to women: the relevant distinction, the Court argued, was not between women and men but between “pregnant women and non-pregnant persons.” In other words, while the raced (or sexed or ability-based) particularity of the fetus is sufficient to render it vulnerable to discrimination and hence worthy of equal protection, the sexed specificity of the female body during pregnancy does not distinguish it from the abstract, universal, presumptively male person, thereby invalidating any claim to equal protection on the grounds of sexed embodiment. (However well-intentioned, the widespread adoption of the movement term “pregnant person” by feminist legal scholars risks obscuring and thereby repeating this sleight of hand. Despite the claims of legal conservatives, anti-abortion laws do not target the abstract legal person or universal subject of rights; they marshal sexed bodies into the unfree labor of reproduction and therefore actively assign femaleness, independently of and sometimes in spite of gender identification. In this instance at least, trans men and nonbinary people fall under the hammer of laws designed to discipline women.)
Alito’s message is clear. When rights come into conflict, the personhood of the fetus must take precedence over that of women. The modern religious right’s obsession with abortion reflects the enduring assumption that female bodies are literal bearers of the father’s name and biological essence across generations. For those who see the defense of lineage as the overarching horizon of their politics, the sexual freedom of women will always be problematic, since it endows them with the unique ability to undermine the proper ends of reproduction—or refuse it altogether. The modern religious right sees the unborn child as a promissory note for the future of the race. This future can only be perfectly secured if female bodies are conscripted into the labor of reproduction, their legal personhood made subservient to that of the unborn child.
The patriarchal logic of racial reproduction is clear enough when it comes to hegemonic formations of race such as white nationalism. But leftists often shy away from the fact that the subordination of women is intrinsic to the project of racial reproduction, hegemonic or not. Any politics that sets out to defend the integrity of the race—conceived of as an order of reproduction or genealogical lineage—will inevitably regard women with suspicion, since any freedom they have to withdraw their reproductive labor places the future of the race in their hands.
Anti-racism need not take this reproductivist form, but when it does, it is just as implacable in its enforcement of patriarchal imperatives as the majoritarian race. The black nationalism espoused by Thomas takes this form. As noted by Robin, Thomas’s nationalism was always biological rather than territorial. In his travels from left to right, Thomas has never stopped seeing the reproduction of (the black) race as the horizon and endgame of his politics. As secretary of the Black Students Union at Holy Cross, he subscribed to the idea that “the Black Man wants . . . the right to perpetuate his race.” He never abandoned the belief that “the salvation of our race” depends on “the strength and the will of black men.”
This enduring commitment to the ends of racial reproduction explains why Thomas was vehemently opposed to interracial marriage well into the 1980s (right up until he met his second wife, Virginia Lamp Thomas, in 1986) and why he has always advocated for the merits of institutional segregation. Notwithstanding the charge that he has abandoned community in favor of individualism, Thomas has always taken equality to mean an equality of and between the races (but not necessarily within races). This is a position that can be comfortably accommodated within Catholic universalism.
Catholicism has proven historically useful in bringing together people of different denominational, ethnic, and racial provenance precisely because it offers a universalist philosophy of life under which singular claims to reproductive lineage can be housed and momentarily reconciled. With its elevation of life as such over particular forms of life, Catholicism distils the abstract kernel of genealogical law common to all nationalisms—territorial, racial, or cultural—and proclaims their equality in the eyes of God.
But for the same reason it recognizes the equality of all forms of reproductive life, Catholicism must deny equal personhood to women. As a bodily instrument of reproduction, a woman’s right to life must always be conditional on her willingness to obey this higher imperative. The figure of the unborn child is that imperative in iconic form.
While this iconography was once unique to Catholics, it has now become the lingua franca of the religious right. Catholic natural law is inclusive and abstract enough that it can unite sworn enemies around a shared defense of the unborn, before releasing them back into a postnatal world of implacable racial enmities and enduring black oppression. In the 1970s, it created an improbable coalition of Catholics and Protestants, modernizing evangelicals and nostalgic fundamentalists, white Christians and black nationalists. Today, oddly enough, it is a language shared by white supremacist Christian Reconstructionists and an African-American Supreme Court justice, who agree on little else but the need for reproductive purity.
Melinda Cooper is Professor in the Research School of Social Sciences at the Australian National University. She is the author of Family Values: Between Neoliberalism and the New Social Conservatism (Zone Books, 2017). Her new book Counter-revolution is forthcoming with Zone Books.