I’ve been getting a lot of queries about Clarence Thomas’s concurring opinion in Box v. Planned Parenthood of Indiana and Kentucky. Briefly, Thomas spends all but a few paragraphs of his twenty-page opinion outlining what he sees as the eugenicist dimensions of abortion and birth control. This, as many have noted, is a new turn in Thomas’s abortion jurisprudence. Thomas essentially argues here that abortion is the way that women select and de-select the kinds of children they’re going to have.

What’s more, while much of the discussion on the right in this regard focuses on how considerations of the sex of the fetus or the presence of Down syndrome may influence the decision to have an abortion, Thomas focuses overwhelmingly on questions of race. Indeed, he spends an inordinate amount of time in his opinion rehearsing the role of racism in Margaret Sanger’s birth control movement. He discusses her work in Harlem and among African Americans in the South, as well as the connections between Nazism and eugenics. From there he goes to abortion. Reading Thomas, one comes away with the sense that abortion has nothing to do with the autonomy or equality of women, as the left argues. Nor is it, as the conventional right would have it, about the life of the fetus. It is instead a racist practice to control the size of the black population. The same goes for birth control.

At one point in the opinion, Thomas makes a point of noting the NAACP’s concerns during the 1960s about the racist dimensions of the birth control movement:

Some black groups saw “‘family planning’ as a euphemism for race genocide” and believed that “black people [were] taking the brunt of the ‘planning’” under Planned Parenthood’s “ghetto approach” to distributing its services. Dempsey, Dr. Guttmacher Is the Evangelist of Birth Control, N. Y. Times Magazine, Feb. 9, 1969, p. 82. “The Pittsburgh branch of the National Association for the Advancement of Colored People,” for example, “criticized family planners as bent on trying to keep the Negro birth rate as low as possible.” Kaplan, Abortion and Sterilization Win Support of Planned Parenthood, N. Y. Times, Nov. 14, 1968, p. L50, col. 1.

At another point in his opinion, Thomas slyly mentions that the majority opinion in Roe v. Wade cites the work of an extraordinarily influential and renowned British legal scholar who, according to Thomas, flirted with eugenics:

Similarly, legal scholar Glanville Williams wrote that he was open to the possibility of eugenic infanticide, at least in some situations, explaining that “an eugenic killing by a mother, exactly paralleled by the bitch that kills her misshapen puppies, cannot confidently be pronounced immoral.” G. Williams, Sanctity of Life and the Criminal Law 20 (1957). The Court cited Williams’ book for a different proposition in Roe v. Wade, 410 U. S. 113, 130, n. 9 (1973).

By the time the opinion is over, it seems like abortion and birth control are simply a Nazi-style mode of racial management of the demographics of a population.

However extreme this opinion may be (though it is in keeping with some of the rhetoric found in the anti-abortion movement), it is very much in keeping with Thomas’s overall approach to constitutional questions, about an entire array of non-abortion-related matters. I have a book about Clarence Thomas, The Enigma of Clarence Thomas, coming out on September 24, and I don’t want to give too much of it away, so let me just say this: One of Thomas’s most consistent moves in his jurisprudence is to do what he does in this case. That is, take constitutional matters that left and right disagree about but nevertheless argue about on similar and familiar terms—Thomas consistently takes these matters and transforms them into questions of race. He does this with the Establishment Clause: where both sides are debating questions of religion, he makes it about race. He does the same with the Takings Clause: where both sides are debating questions of eminent domain, he makes it about race. He does this with campaign finance: where both sides are debating speech and the First Amendment, he makes it about race. In each instance, he takes the topic at hand and says, nope, this is really about race. And goes from there.

What’s more, as I show in the book, this isn’t just a ruse or a way of trolling the left. It’s not just a simple playing of the race card or opportunism. It’s, well, you’ll have to read the book. Which, as I said, is out on September 24 and which you can pre-order now.

There’s also a lengthy footnote in Thomas’s opinion in Box, where he compares the thinking underlying eugenics to that which underlies disparate impact, a doctrine that falls under the Equal Protection Clause of the Fourteenth Amendment. He cites the work of the conservative black economist Thomas Sowell. I think Thomas’s jurisprudence on disparate impact, as well as the impact and influence of Sowell upon Thomas, has been radically misunderstood. But again, I don’t want to give away too much of the book here. So…

Update (2 pm)

My wife Laura, who works in the reproductive rights movement, just made an excellent point about the parallel between Thomas’s opinion and the Anita Hill controversy. During the Senate confirmation hearings, when Hill accused Thomas of sexual harassment, there was a struggle in the commentary that boiled down to this question: Who gets to be black? Thomas and his supporters presented him as the embattled voice of the black community; Hill was depicted as a treacherous woman in alliance with liberal groups, trying to bring down the black man—and with him, the black community. Thomas was black; Hill was a woman: that was the way the controversy played out, at least on one side. This was one of the many explosive insights at the heart of Kimberlé Crenshaw’s pioneering article “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color.”

Fast-forward to Thomas’s opinion in Box v. Planned Parenthood. Studies show that black women are far more likely to get an abortion than other women. Support for abortion among black women is among the highest of any demographic group. And as Jamila Taylor argued, because black women are more likely to live in states with restrictive abortion laws, they have a lot more to lose from Thomas-inspired or Thomas-inflected opinions. So who gets to be black here? Once again, in Thomas’s world, it’s not black women. Back then, it was the black man; this time, it’s the fetus.