Updated at 8:45 a.m. on December 1, 2021.
Of all the arguments that animate the anti-abortion cause, two stand out as particularly far-fetched: that banning abortion protects women's health and shields African Americans from genocide. Yet for years, these arguments have driven debates over state laws, served as justifications for court decisions upholding those laws, and even appeared on billboards warning women in predominantly Black communities not to kill their babies. Three years ago, Mississippi lawmakers prohibited almost all abortions after 15 weeks of pregnancy to save women, they said, from serious "medical, emotional, and psychological" damage.
It has taken a federal judge to call out these claims for what they surely are: "pure gaslighting."
Tomorrow, the U.S. Supreme Court will hear arguments in Dobbs v. Jackson Women's Health Organization, likely the most consequential abortion case in three decades. The case began as a challenge to the Mississippi abortion ban, and in 2018 landed before Carlton Reeves, an African American judge whose legal opinions--especially this one--are rich in history and disarmingly honest. Reeves struck down the law, as precedents like the 1973 landmark abortion decision, Roe v. Wade, compelled him to do, but then lambasted the Mississippi legislature for trying to justify the ban with reasons that he believed were transparently dishonest.
"Its leaders are proud to challenge Roe," he wrote, "but choose not to lift a finger to address the tragedies lurking on the other side of the delivery room." I spoke with Reeves recently, and his opinions out of court are as candid as the ones he delivers from chambers and the bench. "Judges are heroes," he told me. "But for them I would not be in the position that I am or had the experiences that I did. They have the capacity to breathe life into our rights."
Almost any opinion on abortion would have attracted national attention, yet Reeves's opinion has stirred a striking amount of controversy at every step of the Dobbs case's journey. It has drawn an appeals-court rebuke as "deeply disquieting" and a legal brief from 18 states urging the Supreme Court to "condemn" the judge's "rhetoric." That rhetoric, though, has put before the justices issues that could shape the outcome of Dobbs, the fate of Roe, the response of states to the Supreme Court's ruling, and the struggle between judges and legislators to determine the law of the land.
Under current law, Dobbs is an easy case. In Roe and, almost two decades later, Planned Parenthood v. Casey, the Court ruled that states cannot ban abortions before "viability" of the fetus--about 23 to 24 weeks--making Mississippi's 15-week cutoff clearly unconstitutional. Reeves ruled as much and then asked an obvious question: "So, why are we here?"
Rejecting sophistry from the state's legislators that the ban wasn't really a "ban," Reeves revealed the truth as he saw it: The state passed a law "it knew was unconstitutional to endorse a decades-long campaign ... to ask the Supreme Court to overturn Roe v. Wade." He then scolded the lawmakers for pretending to care about women's health and the well-being of the unborn and people of color while having the nation's highest infant-mortality rate, tolerating "alarming" poverty and maternal-death rates, and curtailing health-care programs such as Medicaid. He accused legislators of perpetuating "the old Mississippi," the one that didn't allow women to serve on juries until 1968, the one that systematically sterilized Black women--getting a "Mississippi appendectomy," it was called--and the one that, in 1984, became the last state to guarantee women the right to vote. He recounted Mississippi's long history of denying its citizens' constitutional rights with segregated schools, prohibitions on same-sex marriage, and a "secret intelligence arm" that enforced racial discrimination. Far from helping women and minorities, Reeves wrote, the state still seemed "bent on controlling" them.
Few federal judges, if any, have ever said such things, not in an opinion and not with that kind of scathing bluntness. That Reeves said them--that he drew on Mississippi's heartbreaking history to call out its hypocrisy--is at once remarkable and unsurprising. He has done it time and again, in striking down Mississippi's gay-marriage ban, in explaining why a Black man could not sue cops over a horrific traffic stop, in sentencing white teenagers who drove their pickup over a gay African American until he was dead. He does it because of who he is and where he is from.
Born in 1964, Reeves grew up in Yazoo City, Mississippi, a Delta town where the cops were called on his father for objecting when a white grocer insulted his mother. To see a Saturday-afternoon movie, he had to mount urine-scented balcony stairs, because only white kids could afford the extra 50 cents for the cushioned seats below. "In Yazoo, you knew your place," he told me. As a student in the first integrated public-school class in Mississippi, Reeves did well by any measure, but nonetheless suffered what he sees as racial abuse, including being whacked with a paddle 25 times by a white school administrator, who Reeves says falsely accused him of giving a girl the finger. "That man beat hell out of me," Reeves said, adding that the memory still brings tears to his eyes, "and I have never come to forgive him for that."
With three sisters--one now a banker, another a correctional officer, a third an executive assistant--and a mother who washed and folded laundry at the Yazoo Motel to support her seven children, Reeves developed deep respect for the strength of women and all that they endure. In 2010, he became the second African American appointed a federal judge in Mississippi, taking the seat once held by Harold Cox, who referred to Black people in his courtroom as "baboons" and "chimpanzees." Reeves told me he felt an obligation to the people accustomed to seeing court as a "hostile place, foreign soil," and, with him, expected a very different face of justice.
"I want to be speaking to the general public," said Reeves, now a 57-year-old man of powerful bulk, broad grins, and soft hellos. "They have been taught a false narrative for generations, on same-sex marriage, on race, on the issues that affect the broader community." Recounting history, he says, is one way to help Mississippians understand the truth.
On abortion, he has provoked morality-fueled indignation. Although the U.S. Court of Appeals for the Fifth Circuit affirmed his decision, James Ho, among the court's most outspoken and conservative judges, took offense at Reeves's criticism of the anti-abortion movement's claims to protect women and Black people. Ho cited surveys, articles, and legal briefs ostensibly proving that many if not most women have long viewed abortion as "women's oppression" and an "injustice against female life." He then relied heavily on a 2019 concurring opinion, by Justice Clarence Thomas, that condemned abortion as a "tool of modern-day eugenics," used throughout American history to draw "the distinction between the fit and the unfit ... along racial lines." History, Ho concluded, haunts abortion-rights proponents "with the taint of racism."
The judge largely missed Reeves's point--Mississippi can't credibly proclaim a desire to help women and African Americans when it hinders them in so many ways--and Ho's history was off as well.
The pro-women argument began as a public-relations ploy. Escalating attacks on abortion clinics in the 1980s and early 1990s earned abortion opponents a reputation as violently hostile to women at a time of rising gender equality. As the Yale law professor Reva Siegel explains in a recent article, the 1992 Casey decision, much more than Roe, stressed protecting women as equal citizens, a perspective reinforced by Bill Clinton's election several months later as the first clearly pro-choice president. The anti-abortion movement's (uniformly male) leaders saw the problem, did some market research, and concluded, "We've got to go out and sing from the housetops about what we're doing--how compassionate we are to women, how we are helping women--not just babies, but also women," the anti-abortion activist Jack Willke wrote in 1997. What followed, according to Siegel, was a raft of studies, books, and talking points about how abortion supposedly led to trauma, sterility, and cancer and why the health, welfare, and happiness of women and the unborn are inextricably linked. Amid intense lobbying, many conservative lawmakers got the message, using pro-women claims to justify enacting laws like Mississippi's.
The history of abortions and eugenics is a bit more complicated. Tracing it back to the nation's earliest days, Melissa Murray, a law professor at NYU, recounts in a 2021 article how both sides of the abortion debate have at some point used race to support their positions. When Congress banned importing slaves in 1807, slaveholders tried to preserve their workforce by prohibiting abortions. After the Civil War, anxious that birth rates were dropping for white people but rising for immigrants and people of color, many states declared abortion a crime. This effort to keep America white--in essence, to "improve" its stock--grew in the early 1900s along with interest in eugenics.
Meanwhile, feminists began demanding control over when they became pregnant, with Margaret Sanger leading the push for accessible birth control. Yet, according to Murray, Sanger's calls for contraception as a way to ensure enjoyable sex offended the more chaste feminist mainstream, pushing her to ally with the popular eugenics movement to save her campaign. Critics of abortion--later including Justice Thomas--claimed that the connection was proof of abortion's use as a eugenics tool, but in fact Sanger opposed abortion and never thought of it that way.
Yet suspicion that contraception led to "race suicide," as the 1930s Black nationalist Marcus Garvey called it, took hold in the 1960s and '70s among groups like the Black Panthers and the Nation of Islam, which opposed abortion and contraception as threats to Black survival. That stance put these male-dominated organizations at odds with female members and other Black women, who were far more concerned about access to birth control and abortion while facing the prospect of raising children under sometimes impossible conditions. Justice Thomas--and Judge Ho--see an abortion rate among Black people that is nearly three times as high as that of white people as evidence of eugenics rather than a reflection of life under those conditions.
With his opinion's errant history and incendiary judgments, Ho drew even more attention to Reeves's criticisms, increasing the chances that they and the backlash against them will factor into the outcome of Dobbs, the reaction of the states, and the power of federal judges. We may know better after tomorrow what the justices are thinking, but here's how things might play out.
The Supreme Court said it will focus on one issue: Can states ban abortions before viability? The betting among many experts is that the Court will decide they can--maybe drawing a clear but somewhat arbitrary line (as many European countries have done) at, say, Mississippi's 15 weeks--but otherwise technically preserving Casey and Roe. That would probably mean a state could regulate abortions after 15 weeks, as long as it did not put an "undue burden" on women's ability to end their pregnancies. But how to determine when a burden is undue?
A 2016 Supreme Court decision, Whole Women's Health v. Hellerstedt, said judges must examine and balance the actual benefits of an abortion regulation--not just take the state's word for it--against the obstacles it creates for women. An unjustifiable regulation would never fly, nor would one that essentially blocked abortion. In a 2020 decision, the Court struck down a regulation almost identical to the one considered in Hellerstedt. But in a concurring opinion, Chief Justice John Roberts joined dissenting justices in saying that judges should essentially take a state's word for it--or risk wading into politics, the realm of legislatures. So even a bogus rule might pass muster if it didn't ban abortions. But Reeves's opinion raises the counterargument, highlighting the dangers to democracy if judges stand aside while legislators deceive voters and make law on the basis of nonsense. Don't be surprised if the issue comes up in oral arguments.
There's also a chance that the Supreme Court will overturn Roe--as Mississippi has asked it to do--if not in Dobbs, then in another case soon. As Murray argues, one way to do it would be through the eugenics argument championed by Thomas. The Court doesn't erase time-honored precedents just because most justices think they're improper--and plenty of justices have said that Roe was wrongly decided. The Court needs what Murray calls a "special justification," and for the right to abortion, that could be racial discrimination. Race provided a reason for overruling precedent in landmark decisions such as Brown v. Board of Education and, just last year, Ramos v. Louisiana, which declared non-unanimous juries in criminal cases unconstitutional. The argument that abortion is rooted in racist eugenics has been cited in several briefs filed in the Dobbs case, and might sway this Court, with its 6-3 conservative majority. Thomas could well air it during tomorrow's arguments.
If Reeves is right, though--if phony justifications should not carry the day in challenges to state laws--surely the same holds true for attempts to overturn constitutional rights. Mississippi lawmakers, Clarence Thomas, and their anti-abortion allies have done enough damage by encouraging Americans to question their sense of reality about abortion. It would be truly alarming if the Supreme Court were to fall for that kind of gaslighting too.
This article originally stated that during Reeves's boyhood, he was falsely accused of giving a white girl the finger. The girl was Black.