Justice Thomas recently wrote a 20 page concurrence to a decision about an abortion law. Someday, this exposition will be renowned as the most extensive, inside-out examination of the genetic fallacy in history. Every textbook will cite it, eventually. To hasten its ascendance, I will make these observations on the Justice’s writing.
First some background. The law at issue is one which restricts abortion in a number of ways, only one of which really got the Judge going.
“This statute makes it illegal for an abortion provider to perform an abortion in Indiana when the provider knows that the mother is seeking the abortion solely because of the child’s race, sex, diagnosis of Down syndrome, disability, or related characteristics. §§16–34–4–1 to 16–34–4–8; see §16–34– 4–1(b) (excluding “lethal fetal anomal[ies]” from the definition of disability).”
We’ll get back to the “child” verbiage. What’s the upshot of this provision, the one which provoked such logorrhea from Thomas?
“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.2”
Wow, that is a big claim, and it is going to need a lot of support. But what he brings is: “Eugenicists are bad. Things Eugenicists like are bad. This is the sort of thing Eugenicists like, so it is bad.”
On the surface, his argument is just bad, mundane, and not even original. But he is a supreme court justice, so he digs deeper, and we get to see all the sub-strata of the genetic fallacy, and so why it, like all informal fallacies, merits its label.
The first purpose of the genetic fallacy is to shut down one’s opponents. By nature, it contains an accusation of guilt by association, not only for the position which it seeks to defame but for any advocates of that position as well.
Quite a bit of Thomas’ concurrence enumerates the deplorable sayings of Galton, Sanger, Stoddard, etc.. These are people to be reviled and feared. Galton originated the notion of social Darwinism – the survival of the fittest. Thomas provides this example of Stoddard’s toxicity:
Stoddard feared that without “artificial barriers,” the races “will increasingly mingle, and the inevitable result will be the supplanting or absorption of the higher by the lower types.”
But, wait a minute. If the higher types and lower types can’t keep it straight, then how are they ‘types’ at all? This kind of contradiction permeates eugenics, especially when it comes to the use of birth control to advance the cause. If a woman chooses to use birth control to give her children a better economic heritage, or to spare her child a brief and impoverished existence, she would seem to have met the superior-type criteria. Which brings us to the real problem with eugenics: It inevitably classifies on phenotype, with an assumption that the genotype follows. Furthermore, even their assessment of phenotype is hopelessly crude, because it includes social status as big part of the phenotype’s constitution. The blond hair and blue eyes come with a 3-piece suit.
It turns out that the eugenicists are just a bunch of crackpots who don’t really understand genetics, not the scary, evil geniuses referenced in Thomas’ argument. And that’s one problem with the genetic fallacy in general. To taint a position, the associated villains must have some potency to their poison – they must be right to some extent, or at least attractive – yet they must also be wrong, to discredit the position, and repugnant. In the end, you can’t have it both ways.
But the Justice does not stop in the upper layers of the genetic fallacy; he is digging for gold. Underlying every good deployment of this fallacy, there is a slippery slope argument as well. Usually the slippery slope remains implied. It risks being overlooked, in that case. Justice Thomas is not about to let that happen.
If “the masses” were given “practical education in Birth Control”—for which there was “almost universal demand”—then the “Eugenic educator” could use “Birth Control propaganda” to “direct a thorough education in Eugenics” and influence the reproductive decisions of the unfit. Propaganda 5. In this way, “the campaign for Birth Control [was] not merely of eugenic value, but [was] practically identical in ideal with the final aims of Eugenics.”
If you thought Sanger was bad, just wait. She was merely the vanguard. who aimed to soften us all up for the real assault.
And with today’s prenatal screening tests and other technologies, abortion can easily be used to eliminate children with unwanted characteristics. Indeed, the individualized nature of abortion gives it even more eugenic potential than birth control, which simply reduces the chance of conceiving any child. As petitioners and several amicus curiae briefs point out, moreover, abortion has proved to be a disturbingly effective tool for implementing the discriminatory preferences that undergird eugenics.
We are looking down a black diamond run. The last bit, however, brings us to the deeper reasons for rejecting genetic fallacies. In the course of his exposition, Justice Thomas reveals a profound misunderstanding of fetal anomalies, prenatal testing, and worst of all, Freakonomics (he must not have listened very carefully to the episode referenced on page 17). The genetic fallacy generally serves to smooth over such rough spots for its user. For Justice Thomas, it is a smoke bomb which he hopes will cover him while he slips past the implications of words like “child” tossed in to refer to – what? Does he mean zygote, blastocyst, embryo, fetus? What are the physiologic correlates of childhood? Or is it possession of a soul, and if so, just what the hell is a soul, and by what means do we know of it? He concludes:
Although the Court declines to wade into these issues today, we cannot avoid them forever. Having created the constitutional right to an abortion, this Court is dutybound to address its scope.
Indeed, you can’t hide forever.