The Racial and Reproductive Justice of Thurgood Marshall

Thurgood Marshall, 1967. Photo: National Archives and Records Administration

On January 21, 2017, the day after the inauguration of Donald Trump as America’s 45th president, almost half a million people descended on Washington, D.C., in what the Washington Post called “likely the largest single-day demonstration in recorded U.S. history.” The Women’s March was held to protest the election of a highly unpopular president, who had been exposed in the months leading up to the election as someone who insulted the appearance and intelligence of women, boasted of his aggressive sexual advances toward others, and vowed to nominate a Supreme Court judge who would roll back women’s access to abortion. In D.C., and at solidarity marches around the nation and the world, people arrived for a massive show of support for women’s rights and reproductive justice.

Thurgood Marshall was a “great champion of intersecting struggles against racism and sexism.”

Actor Chadwick Boseman, who was on the set of Marvel Studios’ Black Panther, a movie based on the first black superhero featured in mainstream comics, took a break from filming that morning to tweet, “Shooting Black Panther on a Saturday. But my heart is at the Women’s March.” It was a fitting sentiment for an actor who had also been cast to star in Marshall, the recently released biopic about the late Supreme Court Justice Thurgood Marshall.

While Marshall was known foremost for his role in important civil rights cases like Brown v. Board of Education, as well as for becoming the first black U.S. Supreme Court justice some 50 years ago this month, he was also an influential figure in the history of reproductive justice. While the biopic focuses on his early career, when he handled a 1941 case involving a black defendant facing racially charged allegations and a prejudiced criminal justice system, it was not until more than three decades after that case — and more than five years after his swearing in to the Supreme Court — that Marshall became a fixture in the history of abortion rights in the U.S.

On October 11, 1972, Marshall was among the seven justices of the Supreme Court who heard oral arguments for the landmark case Roe v. Wade, which challenged an anti-abortion statute in Texas and would decide the fate of abortion access nationally. Attorneys Linda Coffee and Sarah Weddington, recent graduates of the University of Texas Law School, had brought suit against the state of Texas on behalf of Dallas-area resident Norma L. McCorvey (named in court documents as “Jane Roe” to protect her identity), who was unable to obtain an abortion in a safe, clinical setting because of the Texas statute. Also prohibitive was the financial toll of traveling to a state where abortion was legal.

Scene from the Tucson Women’s March, which drew close to 15,000 protesters. Photo: Anna C.

At the time Roe v. Wade was brought to trial, most states criminalized or severely restricted abortion. However, signs of change were appearing in the early 1970s, as repeals and reforms started loosening restrictions and a handful of states saw the legalization of abortion. Joining that tide, the United States District Court for the Northern District of Texas had ruled in favor of McCorvey in 1970. Her case, though, would be headed to the U.S. Supreme Court when Texas appealed the decision.

Arguments before the Supreme Court began on December 13, 1971, but since two justices had recently retired from the bench, Justice Harry Blackmun, who was known for his careful and methodical approach to his work, proposed that the case be reargued later in front of a full bench. The case thus went before the court again in the fall of 1972, and Justice Blackmun wrote the majority opinion the following year, on January 22, 1973. The court concluded that access to abortion was guaranteed by a woman’s right to privacy, as defined under the Due Process Clause of the 14th Amendment. Abortion restrictions, in Texas and throughout the nation, were thus ruled unconstitutional.

Justice Marshall was part of the seven-member majority behind Justice Blackmun’s opinion in Roe. Marshall’s past experience serving as an advocate for black people who were struggling with poverty had made him supportive of abortion rights. He had heard stories in Harlem and Brooklyn about black women who were driven by legal barriers and financial constraints to obtain dangerous abortions from poorly trained, illicit providers. Many suffered injuries, some of them fatal. Marshall offers a glimpse into the difficult financial lives of his clients, dramatized when his defendant tells him he can’t afford a lawyer (before Marshall replies that he and his partner will represent him for free).

More than just siding with the majority in the case, Marshall in fact pushed Blackmun to write a more liberal opinion in Roe. The initial draft of that opinion protected abortion during the first three months of pregnancy, but as Marshall wrote in a memo to Blackmun, “Given the difficulties which many women may have in believing that they are pregnant and in deciding to seek an abortion, I fear that the earlier date may not in practice serve the interests of these women.” Marshall successfully advocated for protection of abortion until the point of a fetus’ viability outside the mother’s body.

Marshall continued to hold his commitment to reproductive rights in later cases that came before the Supreme Court. In Maher v. Roe, which was decided in 1977, the court was asked to decide whether two indigent women should have Medicaid coverage for abortions that were not deemed medically necessary. Though the court decided that a state is not obligated to cover non-therapeutic abortions through Medicaid, Marshall was one of the justices who sided with the two women and issued a dissenting opinion.

The question of Medicaid coverage for abortions was again before the Supreme Court in 1980, in the case Harris v. McRae. Like Maher v. Roe before it, Harris was brought before the court by indigent pregnant women, as well as a health care organization and a women’s services division of the United Methodist Church. Once again, the court upheld the exclusion of Medicaid coverage for abortion. Marshall, however, authored the dissenting opinion, arguing that “for women eligible for Medicaid — poor women — denial of a Medicaid-funded abortion is equivalent to denial of a legal abortion altogether.”

Through five more cases during his tenure on the Supreme Court, Marshall remained committed to abortion access, in City of Akron v. Akron Center for Reproductive Health (1982), Planned Parenthood Association of Kansas City, Missouri, Inc. v. Ashcroft (1983), Thornburgh v. American College of Obstetricians and Gynecologists (1985), Webster v. Reproductive Health Services (1989), and Rust v. Sullivan (1991).

Marshall’s support for women’s rights extended to other legal issues as well. Legal scholar Vicki Lens from Columbia University, in an analysis of gender discrimination cases between 1971 and 2002, concluded that Marshall had actually voted in favor of women’s equality more consistently than his colleagues Sandra Day O’Connor and Ruth Bader Ginsburg.

Writing in the Harvard Women’s Law Journal, Randall Kennedy described Marshall as a “great champion of intersecting struggles against racism and sexism.” In a sex discrimination case that came before the Supreme Court in 1981, he confronted the issue with the same fervor he had when it came to racial discrimination, railing against “ancient canards about the proper role of women.” In that spirit, throughout his career he hired a large number of women as attorneys and law clerks.

When Marshall announced his retirement in 1991, the nomination process for his replacement, under the aegis of an anti-abortion president, was one of the most contentious in U.S. history. George H.W. Bush nominated Clarence Thomas, a candidate who questioned legal protections for access to contraceptives, and who faced accusations of sexual harassment from his colleague, law professor Anita Hill. The National Abortion Rights Action League (NARAL) and other groups spoke out against Thomas’ record, which stood in stark contrast to that of the outgoing Thurgood Marshall.

When a journalist asked Marshall who should replace him on the Supreme Court, he replied, “Me.” It was a sentiment that was widely shared as Thomas’ nomination was confirmed on October 15, 1991. Marshall passed away on January 24, 1993, survived by his wife and two adult sons.

Commenting on the figure he was playing, Chadwick Boseman told the Huffington Post, “He pushed the envelope to make sure that we were equal.” For Thurgood Marshall, that commitment to equality meant a mission of exercising “strict judicial scrutiny” toward all “classifications based upon sex, like [those] based upon race, alienage, or national origin.”