73 Am. U. L. Rev. 449 (2024).

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Abstract

America’s notorious eugenics case Buck v. Bell is being resurrected as anticanon in abortion jurisprudence. Buck became one of the Court’s worst decisions by upholding eugenic practices, but these recent anticanonical citations also prove harmful by misidentifying eugenics. This Article joins critics of this misuse of “eugenics” labeling and warns that the rhetorical use of Buck in abortion cases has dangerous implications for reproductive medicine. It draws on Buck as the leading precedent for eugenics under the law and demonstrates that selective-abortion cases are distinguishable because of two failures of the Buck Court: the failure to recognize state interference with reproductive choices and a failure to engage with the underlying science. When judges misidentify eugenics today, they do so by recreating these same mistakes in their decisions. If these mistakes are ignored, the only remaining meaning of eugenics will be that some element of selection occurs after fertilization but before birth.

Defining eugenics as selection goes too far and implicates a host of other factual settings well-engrained in society and reproductive medicine. These medical procedures are already being met with mixed reception in tort law—despite having secured reception in medicine and society—and a eugenics label would feed courts’ rejection of these claims. Moreover, the reasoning underlying those courts’ rejection reflects the same two failures underlying Buck and the misapplication of the eugenics label in selective-abortion cases. Therefore, a better analysis of these two factors in each context, selective-abortions and torts, can lead to better resolutions in both cases. 

This Article does not purport to take a normative stance on abortion, but it instead aims to relocate the debate surrounding selective abortions away from eugenics and into conversation with medical negligence through the courts’ own inclination to draw on Buck v. Bell. It concludes by looking to Dobbs and the opportunity that decision provides for judges to either reevaluate the rhetoric employed in reproduction law or continue the mistakes of the past.

* Judicial Law Clerk, the Hon. Eli Richardson, United States District Court for the Middle District of Tennessee. J.D., Vanderbilt Law School.