Indiana’s “fetal burial” law, signed by then-governor Mike Pence, has always been a bit of a Trojan Horse. The law did two things: A) It changed the manner in which fetal remains were disposed of and B) it banned abortions “solely” due to the future race, sex, or disability of the cells. Everybody gets excited about the first part, because forcing a woman to dispose of an aborted fetus as if it were a child gives the right wing the sick pleasure they derive from shaming women who exercise personal control over their own bodies. But it’s the second part that brings the real attack upon a woman’s right to choose. The race/sex/disability ban is a way of making a woman’s choice invalid, if her choice offends our sensibilities. If you can get people to say “a woman has a right to choose, unless I don’t like the choice,” then you’ve basically won your battle to superimpose state control over a woman’s body.

The Seventh Circuit blocked Indiana’s law as to both provisions. Today, in Box v. Planned Parenthood, the Supreme Court weighed in. In a three-page, unsigned per curiam opinion, the Court largely punted. The Court reversed the Seventh Circuit, finding a rational basis for Indiana to regulate what is done with fetal remains, without ruling on whether the law placed an “undue burden” on women who get abortions, and thus not further vitiating the law as expressed in Planned Parenthood v. Casey. On the more important second question, the Court declined to review, thus leaving the Seventh Circuit’s ban in place.

It could have been worse. And, as if to prove just how “worse” things could be, Justice Clarence Thomas wrote a 20-page concurrence advancing the belief that both abortion and even birth control are really decentralized eugenics plots. He essentially argues that giving a woman any kind of reproductive control over her own body means the Nazis win.

I wish I were exaggerating Thomas’s opinion:

Each of the immutable characteristics protected by this law can be known relatively early in a pregnancy, and the law prevents them from becoming the sole criterion for deciding whether the child will live or die. Put differently, this law and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics. The use of abortion to achieve eugenic goals is not merely hypothetical. 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… Given the potential for abortion to become a tool of eugenic manipulation, the Court will soon need to confront the constitutionality of laws like Indiana’s.

Every single reproductive choice could be called “eugenics” based on Thomas’s facile logic here. That includes every choice that results in actually having children. My wife choosing to have children with me as opposed to a smarter and more athletic man is her practicing “eugenics.” The late Justice Antonin Scalia choosing to have nine children, presumably all of whom were infected by his genetic predilection to disrespect the rights of non-Scalias, was his personal crusade to alter the human gene pool. LeBron James refusing to impregnate every woman who is willing deprives all of us of next-level pocket passes, and we’ll be sorry we didn’t keep him and Maya Moore chained to a bed in the Ministry of Love when we must defeat the aliens to save the planet.

The Court need not confront the dangers of eugenic manipulation, if it simply respects women as autonomous beings. Eugenics, in its most dystopian horror, is the state usurpation of individual reproductive choice for the state’s own goals. If the state wants more “smart” people or more “strong” people and it takes reproductive decision-making out of the intensely private sphere and makes it a matter of public concern, then we have a problem. Not for nothing, but the reason why every eugenics program has failed is precisely because the state cannot impose itself on the millions of private choices necessary to effect even the smallest impact on the gene pool. Eugenics programs are frustrated not because people don’t have children, but because they do.

Thomas’s argument against birth control is even more wrong than usual. Thomas suggests that the mere availability of birth control is a plot to keep poor black babies from being born.

Some believe that the United States is already experiencing the eugenic effects of abortion. According to one economist, “Roe v. Wade help[ed] trigger, a generation later, the greatest crime drop in recorded history.” S.Levitt & S. Dubner, Freakonomics 6 (2005); see id., at 136–144 (elaborating on this theory). On this view, “it turns out that not all children are born equal” in terms of criminal propensity. Id., at 6. And legalized abortion meant that the children of “poor, unmarried, and teenage mothers” who were “much more likely than average to become criminals” “weren’t being born.” Ibid. (emphasis deleted). Whether accurate or not, these observations echo the views articulated by the eugenicists and by Sanger decades earlier: “Birth Control of itself . . . will make a better race” and tend “toward the elimination of the unfit.” Racial Betterment 11–12.

You gotta love it when a Supreme Court justice quotes an unsupported theory, waves it away with “whether accurate or not,” and then supports the conclusion of the theory based on questionable accuracy. The problem, as always, is that instead of trying to uplift potential mothers and make it economically and professionally easier for them to have children, conservatives are only interested in forcing women, including black and brown women, to bear pregnancies against their will. Thomas and his ilk dislike abortion and birth control because it amplifies the free will of women. We have a word for when the state impresses a person’s body into service and labor without her choice or recompense. That word is “slavery.”

And I say that as a person who is disquieted by the notion of “cosmetic” abortions. Thomas brings up the experience of some countries where the abortion of would-be women reaches nearly epidemic proportions. But the solution to that problem is not state control over a woman’s body, as Thomas would like to impose. The solution is MORE autonomous control and decision-making for women, not less. The societies that Thomas is worried about are cultures that don’t do a great job at respecting the choices of women and the value of women. The goal of the state should be to create a society where all people — women, minorities, the disabled, whatever — are treated equally and have an equal chance at success and happiness. Working towards such a society demands that women are treated as fully functional humans and not mere incubators in service of the state. If you do that, then the jackass husband who “wants a male heir” with his child allotment can’t enforce his retrograde views upon the rest of society.

It is Thomas, with his surety that he knows what is best for women more than women do, that brings us down the path of eugenics. Only by giving in to the state control over reproductive choice, as Thomas would have us, can we be in a situation where men in robes get to decide what phenotypes are to be promoted and which ones should be discarded.

There is no anti-abortion or anti-birth control argument that survives treating women as autonomous beings with ultimate control over their own bodies. Every time you try to take that choice away, you end up in a place where judges and politicians are dictating which cellular globules are promoted, instead of individual humans. That’s always the bad place.

Thomas doesn’t want to stop women from engaging in genetic manipulation. He wants to accrue the power of genetic manipulation unto himself. We can’t let him, or his conservative cabal, have it.

Box v. Planned Parenthood [SCOTUSblog]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.