By: Sophie Staires

In Planned Parenthood of Southeastern Pennsylvania v. Casey, Justices O’Connor, Kennedy and Souter authored the majority opinion, in which they said “If indeed the woman’s interest in deciding whether to bear and beget a child had not been recognized as in Roe, the State might as readily restrict a woman’s right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control, or eugenics, for example.”[1] Now that Roe and Casey have been overturned by Dobbs v. Jackson Women’s Health Organization, it is worth taking another look at this idea put forth in Casey and considering exactly what has been lost by overturning it.

Many expected that Casey would bring an end to Roe, but instead, the Casey court famously upheld the central holding of Roe, while refining the trimester framework to an “undue burden” analysis.[2]  In the Dobbs opinion, Alito harps on the fact that even though the Casey court upheld Roe, it did so despite questions about the reasoning, and despite conflicting personal or religious ideals.[3] While the Casey court undoubtedly took issue with some aspects of the Roe opinion, this only demonstrated the Court’s commitment to stare decisis, and its conviction that the privacy rights recognized in Roe must be protected.

Now, consider what the majority speculated in this brief, almost throw-away line from Casey: that without the protection of Roe, “the State might as readily restrict a woman’s right to choose to carry a pregnancy to term as to terminate it.”[4] While this might initially seem like an outrageous concern, remember that the U.S. has a long and troubling and not-so-distant history with controlling the population through eugenics laws.

The first eugenics law in the United States was passed in 1907 in Indiana.[5] It allowed for involuntary sterilization of men who were criminals, rapists, or otherwise considered “sexually deviant.”[6] But by the 1930’s, women were the primary victims of such laws. The laws targeted women of color, sometimes with mental or physical disabilities, as well as women who were seen as promiscuous.[7] In 1927, the Supreme Court heard the case of Buck v. Bell and upheld involuntary sterilization of “imbeciles.”[8]

The ideology behind eugenics programs was focused on preserving some sort of racial “purity.”[9] Legislators reasoned that certain traits and disabilities should not be passed down, lest we see more and more people dependent on the government for services. If this topic of “racial purity” sounds familiar, it is because the Nazi party saw what the U.S. was doing and took notes.[10] While going to war against the Nazis, the U.S. was forced to take a closer look at its own policies, and eventually sterilization laws were repealed. However, the forcible sterilization of targeted groups of women continued. In 1973, sisters Minnie Lee and Mary Alice Relf (ages 12 and 14) were taken to a federally funded clinic where they were sterilized against their will, without the informed consent of their parents.[11] When they brought their case to the D.C. District Court, it attracted a lot of attention and began to uncover more involuntary sterilizations—the ongoing practice of eugenics programs begun decades earlier. Between the years 1973 and 1976 alone, Indian Health Services sterilized almost 3,500 Native women without their consent, according to the 1976 U.S. General Accounting Office.[12] A separate study found that IHS had singled out full-blooded Natives for sterilization.[13]

As recently as 2013 the Center for Investigative Reporting found that physicians working for the California Department of Corrections had sterilized nearly 150 female inmates (between 2006 and 2010).[14] The report said that prison staff had coerced or pressured women who they thought likely to be repeat offenders into getting sterilized. In 2017 a judge in Tennessee was reprimanded after promising reduced sentences to incarcerated men and women who would agree to sterilization operations.[15]

So why are we talking about eugenics programs aimed at sterilization in the wake of Dobbs? Because of what the Casey court recognized, and the Dobbs court would have us forget: this is an issue of control, particularly over certain groups. The question is not about whether there is a constitutional right to get an abortion, nor is it about the welfare of babies. Ultimately the question is: may the government dictate whether an individual reproduces, or are there certain spheres which belong only to us, in which we are free to make decisions? Is there a difference between the authority to determine who must have a baby, and who must not? In their unwavering quest to see Roe overturned, the Right may have just handed state courts the authority to not only mandate births but forbid them.  

Sophie is currently a 2L at Arizona State University’s Sandra Day O’Connor College of Law. She is primarily interested in issues affecting indigenous communities, including criminal justice, jurisdictional schemes, environmental issues, and economic development. Her personal interests include sipping wine, cooking, and backpacking with her husband and their dog.

[1] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 859 (1992).

[2] Id. at 874.

[3] Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2245 (2022) (noting that the Casey court did not attempt to defend the “unfocused analysis” of Roe.)

[4] Casey, 505 U.S. at 859.

[5] Linda Villarosa, The Long Shadow of Eugenics in America, The New York Times Magazine, Jun. 12, 2022, at 30.

[6] Id.

[7] Id.

[8] Buck v. Bell, 274 U.S. 200 (1927).

[9] Villarosa, supra.

[10] ‘Imbeciles’ Explores the Legacy of Eugenics in America, National Public Radio, (Last visited Feb. 11, 2023).

[11] Villarosa, supra.

[12] 1976: Government Admits Unauthorized Sterilization of Indian Women, Native Voices, (Last visited Feb. 11, 2023).

[13] Id.

[14] Corey G. Johnson, Female Inmates Sterilized in California Prisons Without Approval, Reveal News, (Jul. 7, 2013),

[15] Kalhan Rosenblatt, Tennessee Judge Who Offered Sentence Reductions for Vasectomies Changes Course, NBC News, (Jul. 28, 2107, 7:48AM),