Matthew Kacsmaryk’s Eugenic Fallacy

The equation of abortion with genocide or eugenics is a misogynistic claim to shame and blame those who choose abortion.

There are two different ways to have a medication abortion and end a pregnancy: using two different medicines, mifepristone and misoprostol, or using only misoprostol. (Anna Moneymaker / Getty Images)

Much critical ink has been spilled over both the scientific and the legal inaccuracies in Judge Matthew Kacsmaryk’s opinion in Alliance for Hippocratic Physicians v. FDA, in which he attempted to reverse the FDA’s 2000 approval of mifepristone. With its liberal use of language such as “chemical abortion,” “unborn child”/”human” and “abortionist,” the opinion also reads like a page from an anti-abortion playbook. 

As I wrote last month, Kacsmaryk’s use of the term “post-aborted women,” aligns him with the “pro-woman/pro-life” anti-abortion fabrication, which claims abortion is inherently traumatic because it subverts God’s plan for women. This semantical choice was not simply a rhetorical flourish, but rather one that Kacsmaryk imbued with legal significance. Specifically, he vested the “pro-life” plaintiff physicians to speak for this class of women, on the grounds that the “deeply traumatizing” nature of abortion renders them incapable of speaking for themselves.

Another pernicious fallacy in Kacsmaryk’s opinion that has not gotten much coverage: that an individual’s decision to abort is saturated with eugenic meaning. This claim is so outlandish that it might not seem worthy of our consideration—but this would be a mistake, particularly given that the Court in Dobbs v. Jackson Women’s Health revealed itself to be sympathetic to the idea that support for abortion rights has eugenic implications.

Ignoring the structural reasons as to why, as the Court puts it, a “highly disproportionate percentage of aborted fetuses are Black,” it approvingly cited an amicus brief claiming that this disproportionality is instead attributable to the fact that “proponents of liberal access to abortion … have been motivated by a desire to suppress the size of the African American population.”

Denouncing this specious linkage, Trust Black Women makes clear that the equation of abortion with Black genocide is instead a “misogynistic claim to shame-and-blame [Black] women who choose abortion” through the use of a “ginned up ‘conspiracy theory’ that places Black women as the ‘destroyers’ of the Black family through abortion.”

It is somewhat of a challenge to make sense out of what Kacsmaryk seems to be saying about the connection between abortion and eugenics. As a starting point, he apparently believes that children fall into one of two—presumably co-equal—categories:

  • “unborn,” which means they are at risk of being aborted, or
  • “unaborted” (yes, he uses this word), which means they have made it safely out of the womb into the world of the actually born.

According to this schema, if a pregnant person chooses abortion in order to protect the wellbeing of their “unaborted” children, as an expert witness for the FDA testified is often the case, Kacsmaryk, quoting Justice Clarence Thomas, claims that sacrificing an unborn child for the benefit of an unaborted one amounts to the use of a “disturbingly effective tool for implementing the discriminatory preferences that undergird eugenics.”

Abortion-rights activists rallied outside the U.S. Supreme Court on April 14, after the Court temporarily preserved access to mifepristone, a widely used abortion pill, in an 11th-hour ruling preventing lower court restrictions on the drug from coming into force. (Probal Rashid / LightRocket via Getty Images)

Kacsmaryk apparently believes that an individual’s decision to terminate a pregnancy in order to promote the wellbeing of one’s existing children is akin to the early 20th-century state-sanctioned movement to “eliminate children with unwanted characteristics” through the enactment of involuntary sterilization laws aimed at preventing the “unfit” from reproducing. Not only does this equation locate a pregnant person’s “unborn child” on the same moral plane as their “nonaborted children”—it falsely suggests that abortion was a tool of the eugenicists.

But Kacsmaryk does not stop here. Seeking to pack as much clout as possible into his one short eugenically focused paragraph, he stressed that although these eugenic ideals were “once fashionable … they hold less purchase after the conflict, carnage and causalities of the last century revealed the bloody consequences of Social Darwinism by would be Übermenschen.” This certainly requires some unpacking.

According to, the philosopher Nietzsche’s idea of the Übermensch, or Superman, became a “cornerstone of Nazi ideology [that] certain races—the Aryan, Germanic race, specifically—were entitled to rule, dominate, lord over and enjoy the fruits of this world more than others. Combined with Darwin’s idea of the Survival of the Fittest, the Übermensch philosophy became a license to conquer, kill and enslave all the non-Germanic races…”

Although noting that eugenical thinking now “hold[s] less purchase” due to its revealed “bloody consequences,” Kacsmaryk appallingly seems to suggest that it has instead migrated to the realm of individual abortion decision-making. In so doing, he implicitly embraces the widely denounced view advanced by some in the anti-abortion movement that, as the targeted casualty of a genocidal act, the “aborted baby” is comparable to a victim of the Nazi Holocaust. 

While Kacsmaryk’s order reversing the FDA’s approval of mifepristone has been stayed pending appeal by the Supreme Court, it remains to be seen what, if anything, is left standing of his opinion once there is a final ruling on the merits of the case. And while we are unlikely to see express references to either Social Darwinism or the Übermensch—as evidenced by its decision in Dobbs—the Court certainly appears sympathetic to the idea that abortion has been put to use for nefarious eugenical purposes, such as a “desire to suppress the size of the African American population.”

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Shoshanna Ehrlich is a professor of women’s, gender and sexuality studies at the University of Massachusetts Boston. Her books include Who Decides: The Abortion Rights of Teens and the co-authored Abortion Regret: The New Attack on Reproductive Freedom. She is currently collaborating with the Planned Parenthood League of Massachusetts’ ASPIRE Center for Sexual and Reproductive Health on a minors’ abortion rights and access project.