Cornell Law Review

Justice Clarence Thomas’s concurrence in Box v. Planned Parenthood of Indiana and Kentucky sparked considerable controversy.^{11. 39 S. Ct. 1780, 1782 (2019).} Offering a lengthy historical narrative about the relationship between abortion and eugenics, Thomas argued that one part of a disputed Indiana law, a measure banning abortion in cases of race, sex, or disability selection, addressed a grave present-day problem. This Essay identifies deeper stakes in Box, exploring how Thomas’s concurrence reflects the evolving uses of history in abortion jurisprudence— approaches based not the original intent or original public meaning of the Fourteenth Amendment but on the motives of those seeking and exercising a right and the effects of any precedent protecting that right. This style of argument figures centrally in certain justices’ reasoning about the application of stare decisis to both Roe v. Wade^{22. 410 U.S. 113 (1973).} and Planned Parenthood v. Casey.^{33. 505 U.S. 833 (1992).} But as Box and its predecessors show, this form of historical argument is deeply problematic, radically oversimplifying both historical arguments about causation and the motives, goals, and divisions defining social movement lawyering. As the Essay shows, Box may become known for more than an incendiary concurrence. Instead, the misuses of history may play a central role in the future of abortion jurisprudence, discouraging popular engagement and muddying an already divisive issue.

The Court’s decision in Box v. Planned Parenthood of Indiana and Kentucky sparked considerable controversy for saying so little.^{44. 139 S. Ct. 1780 (2019). For some of the controversy surrounding Box, see Eli Rosenberg, Clarence Thomas Tried to Link Abortion to Eugenics. Seven Historians Told The Post He’s Wrong, WASH. POST, (May 30, 2019, 9:50 PM), https://www.washingtonpost.com/history/2019/05/31/clarence-thomas- tried-link-abortion-eugenics-seven-historians-told-post-hes- wrong/?utmterm=.68c4682dff4c [https://perma.cc/BE4D-TA9W]; Alexandra Minna Stern, Clarence Thomas’ Linking Abortion to Eugenics Is as Inaccurate as it Is Dangerous, NEWSWEEK, (May 31, 2019, 12:02 PM), https://www.newsweek.com/clarence-thomas-abortion-eugenics-dangerous- opinion-1440717 [https://perma.cc/ZDT6-5U64].} Box involved two provisions of an Indiana law passed during Vice President Mike Pence’s time as governor of Indiana.^{55. See Box, 139 S. Ct. at 1781–82.} The Court upheld a measure regulating the disposal of fetal remains.^{66. See id. at 1782–83.} Reasoning that the provision did not directly deal with abortion, the Court applied rational basis review to the Indiana law and upheld it.^{77. See id. at 1782.} The Court did not weigh in on the constitutionality of a second provision forbidding any doctor from knowingly performing an abortion in cases of race, sex, or disability selection.^{88. Id.} In a lengthy concurrence, Justice Thomas told a troubling story about the shadow cast by eugenic legal reformers over the movement for abortion rights—and over contemporary women choosing abortion.^{99. See id. at 1782–93 (Thomas, J., concurring).}

Justice Thomas’s concurrence reflects the evolving uses of history in abortion jurisprudence. It comes as no surprise that Thomas, a self-described originalist, views historic context as crucial.^{1010. See, e.g., Brian Lipshutz, Justice Thomas and the Originalist Turn in Administrative Law, 125 YALE L.J. F. 94, 94–100 (2015).} But in abortion cases like Box, Thomas and other self-professed originalists do not focus on the original intent or original public meaning of the Fourteenth Amendment. Instead, as Box shows, the Court’s conservatives enlist historical stories as part of their analysis of stare decisis. Box illuminates just one example of how the justices use historical narratives to question the motives of those seeking and exercising rights. Box also illuminates how these claims factor into larger consequentialist claims about specific judicial precedents. In this way, Thomas’s Box concurrence is far more than an incendiary comment on a law that the Court has yet to fully consider. It exposes a broader line of argument for transforming abortion jurisprudence—one centered not on original purpose or original meaning but on consequentialist claims about the real-world effects of a decision or the motives of those who sought it out. This Essay explores the fundamental flaws inherent in this line of historical argument.

To read more, click here: Bad Effects: The Misuses of History in Box v. Planned Parenthood.