Contributor Post Created with Sketch. Justice Thomas’s Blistering Dissent on Monday’s Abortion Ruling

 

In a 5-4 decision, the Supreme Court struck down a Louisiana abortion law requiring doctors who provide abortions to have admitting privileges at a hospital within 30 miles of their clinic. Chief Justice Roberts again sided with the left in Monday’s ruling on June Medical Services v. Russo. (PDF here.)

Associate Justice Clarence Thomas offered a blistering dissent not only against this decision but the entirety of abortion jurisprudence since Roe v. Wade was decided. Below are excerpts from Justice Thomas’s remarks.

Today a majority of the Court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without jurisdiction. As is often the case with legal challenges to abortion regulations, this suit was brought by abortionists and abortion clinics. Their sole claim before this Court is that Louisiana’s law violates the purported substantive due process right of a woman to abort her unborn child. But they concede that this right does not belong to them, and they seek to vindicate no private rights of their own. Under a proper understanding of Article III, these plaintiffs lack standing to invoke our jurisdiction.

Despite the fact that we granted Louisiana’s petition specifically to address whether “abortion providers [can] be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients,” a majority of the Court all but ignores the question. The plurality and the Chief Justice ultimately cast aside this jurisdictional barrier to conclude that Louisiana’s law is unconstitutional under our precedents. But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled. Because we have neither jurisdiction nor constitutional authority to declare Louisiana’s duly enacted law unconstitutional, I respectfully dissent.

…[T]oday’s decision is wrong for a far simpler reason: The Constitution does not constrain the States’ ability to regulate or even prohibit abortion. This Court created the right to abortion based on an amorphous, unwritten right to privacy, which it grounded in the “legal fiction” of substantive due process. As the origins of this jurisprudence readily demonstrate, the putative right to abortion is a creation that should be undone.

The Court first conceived a free-floating constitutional right to privacy in Griswold v. Connecticut. In that case, the Court declared unconstitutional a state law prohibiting the use of contraceptives, finding that it violated a married couple’s “right of privacy.” The Court explained that this right could be found in the “penumbras” of five different Amendments to the Constitution—the First, Third, Fourth, Fifth, and Ninth. Rather than explain what free speech or the quartering of troops had to do with contraception, the Court simply declared that these rights had created “zones of privacy” with their “penumbras,” which were “formed by emanations from those guarantees that help give them life and substance.” This reasoning is as mystifying as it is baseless.

…Just eight years later, the Court utilized its newfound power in Roe v. Wade. There, the Court struck down a Texas law restricting abortion as a violation of a woman’s constitutional “right of privacy,” which it grounded in the “concept of personal liberty” purportedly protected by the Due Process Clause of the Fourteenth Amendment. The Court began its legal analysis by openly acknowledging that the Constitution’s text does not “mention any right of privacy.” The Court nevertheless concluded that it need not bother with our founding document’s text, because the Court’s prior decisions—chief among them Griswold—had already divined such a right from constitutional penumbras. Without any legal explanation, the Court simply concluded that this unwritten right to privacy was “broad enough to encompass a woman’s [abortion] decision.”

Roe is grievously wrong for many reasons, but the most fundamental is that its core holding—that the Constitution protects a woman’s right to abort her unborn child—finds no support in the text of the Fourteenth Amendment. Roe suggests that the Due Process Clause’s reference to “liberty” could provide a textual basis for its novel privacy right. But that Clause does not guarantee liberty qua liberty. Rather, it expressly contemplates the deprivation of liberty and requires only that such deprivations occur through “due process of law.”

…Others claim that the original understanding of this Clause requires that “statutes that purported to empower the other branches to deprive persons of rights without adequate procedural guarantees [be] subject to judicial review.” But, whatever the precise requirements of the Due Process Clause, “the notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.”

More specifically, the idea that the Framers of the Fourteenth Amendment understood the Due Process Clause to protect a right to abortion is farcical. In 1868, when the Fourteenth Amendment was ratified, a majority of the States and numerous Territories had laws on the books that limited (and in many cases nearly prohibited) abortion. It would no doubt shock the public at that time to learn that one of the new constitutional Amendments contained hidden within the interstices of its text a right to abortion. The fact that it took this Court over a century to find that right all but proves that it was more than hidden—it simply was not (and is not) there.

Despite the readily apparent illegitimacy of Roe, “the Court has doggedly adhered to [its core holding] again and again, often to disastrous ends.” In doing so, the Court has repeatedly invoked stare decisis. And today, a majority of the Court insists that this doctrine compels its result.

The Court’s current “formulation of the stare decisis standard does not comport with our judicial duty under Article III,” which requires us to faithfully interpret the Constitution. Rather, when our prior decisions clearly conflict with the text of the Constitution, we are required to “privilege [the] text over our own precedents.” Because Roe and its progeny are premised on a “demonstrably erroneous interpretation of the Constitution,” we should not apply them here.

Even under the Chief Justice’s approach to stare decisis, continued adherence to these precedents cannot be justified. Stare decisis is “not an inexorable command,” and this Court has recently overruled a number of poorly reasoned precedents that have proved themselves to be unworkable.

Moreover, the fact that no five Justices can agree on the proper interpretation of our precedents today evinces that our abortion jurisprudence remains in a state of utter entropy. Since the Court decided Roe, Members of this Court have decried the unworkability of our abortion case law and repeatedly called for course corrections of varying degrees.

The Chief Justice advocates for a Burkean approach to the law that favors adherence to “‘the general bank and capital of nations and of ages.’” But such adherence to precedent was conspicuously absent when the Court broke new ground with its decisions in Griswold and Roe. And no one could seriously claim that these revolutionary decisions—or Whole Woman’s Health, decided just four Terms ago—are part of the “inheritance from our forefathers,” fidelity to which demonstrates “reverence to antiquity.”

More importantly, we exceed our constitutional authority whenever we “appl[y] demonstrably erroneous precedent instead of the relevant law’s text.” Because we can reconcile neither Roe nor its progeny with the text of our Constitution, those decisions should be overruled.

Published in Law
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  1. Fritz Member

    G-d bless Justice Thomas.

    I well remember my con law professor, in my first term of law school (1974), decrying the utter fatuousness of Griswold and Roe for their shameless invocation of “penumbras” and “emanations”. And yet, here we are.

    • #1
    • June 29, 2020, at 4:06 PM PDT
    • 18 likes
  2. Jim McConnell Member
    Jim McConnell Joined in the first year of Ricochet Ricochet Charter Member

    Wow! Justice Thomas explained that so clearly that even Chief Justice Roberts should be able to understand it.

    • #2
    • June 29, 2020, at 4:07 PM PDT
    • 24 likes
  3. DudleyDoright49 Coolidge

    Justice Thomas is a blessed Justice indeed. A brilliant man and beacon to us all. Have you noticed that since Roe v. Wade was handed down, our culture has sunk lower and lower? When a people kill their children in mass, there is no hope for that nation. We must turn this culture around to save our nation, and Roe v. Wade would be a great place to start.

    • #3
    • June 29, 2020, at 4:25 PM PDT
    • 11 likes
  4. Valiuth Member
    Valiuth Joined in the first year of Ricochet Ricochet Charter Member

    DudleyDoright49 (View Comment):

    Justice Thomas is a blessed Justice indeed. A brilliant man and beacon to us all. Have you noticed that since Roe v. Wade was handed down, our culture has sunk lower and lower? When a people kill their children in mass, there is no hope for that nation. We must turn this culture around to save our nation, and Roe v. Wade would be a great place to start.

    You can not change the law until you change the people, or rather the people’s minds at least to a large enough degree to have real political will behind the change. Abortion was found in the Constitution because in the 1970’s the overall cultural and political opinion was fine if not adamant that such a thing be found. Looking for a judge to undo this before there is real broad cultural change a foot is a fools errand. I believe the last 40 years of Pro-Life activity have demonstrated this. 

    • #4
    • June 29, 2020, at 4:32 PM PDT
    • 8 likes
  5. Jim Kearney Contributor

    Jon Gabriel, Ed.: Monday’s ruling on June Medical Services v. Russo. (PDF here.)

    The various opinions make interesting reading. Thanks for posting the PDF link. Here’s the scotusblog.org summary:

    https://www.scotusblog.com/2020/06/opinion-analysis-with-roberts-providing-the-fifth-vote-court-strikes-down-louisiana-abortion-law/

    I’m not a lawyer. To my reading it appears that although Justice Thomas wasn’t alone on the issue of standing (whether a clinic or an individual woman should have brought the suit) not one justice openly concurred with his view that Roe itself should be overturned.

    • #5
    • June 29, 2020, at 4:52 PM PDT
    • 3 likes
    • This comment has been edited.
  6. James Gawron Thatcher
    James Gawron Joined in the first year of Ricochet Ricochet Charter Member

    Jon,

    Thomas should have been Chief Justice. Roberts should have been a hippy-dippy 9th-grade social studies teacher.

    Regards,

    Jim

    • #6
    • June 29, 2020, at 6:19 PM PDT
    • 7 likes
  7. Bruce Caward Thatcher
    Bruce Caward Joined in the first year of Ricochet Ricochet Charter Member

    James Gawron (View Comment):

    Jon,

    Thomas should have been Chief Justice. Roberts should have been a hippy-dippy 9th-grade social studies teacher.

    Regards,

    Jim

    Thomas would have been a show stopper – and maybe a game-changer – as Chief Justice.

    • #7
    • June 29, 2020, at 6:36 PM PDT
    • 7 likes
  8. GeezerBob Coolidge

    Roberts is a squish.

    Thomas is far and away the best justice on the court and I hope to be able to tell him so someday.

    • #8
    • June 29, 2020, at 6:49 PM PDT
    • 3 likes
  9. Western Chauvinist Member
    Western Chauvinist Joined in the first year of Ricochet Ricochet Charter Member

    God bless the man. I don’t know if any justice or judge has strung so many truths together before, but I doubt anyone has done it so forcefully. He’s a national treasure.

    • #9
    • June 29, 2020, at 8:50 PM PDT
    • 5 likes
  10. Songwriter Member
    Songwriter Joined in the first year of Ricochet Ricochet Charter Member

    Valiuth (View Comment):

    DudleyDoright49 (View Comment):

    Justice Thomas is a blessed Justice indeed. A brilliant man and beacon to us all. Have you noticed that since Roe v. Wade was handed down, our culture has sunk lower and lower? When a people kill their children in mass, there is no hope for that nation. We must turn this culture around to save our nation, and Roe v. Wade would be a great place to start.

    You can not change the law until you change the people, or rather the people’s minds at least to a large enough degree to have real political will behind the change. Abortion was found in the Constitution because in the 1970’s the overall cultural and political opinion was fine if not adamant that such a thing be found. Looking for a judge to undo this before there is real broad cultural change a foot is a fools errand. I believe the last 40 years of Pro-Life activity have demonstrated this.

    You make a good point – regarding the reality that the attitudes of the country were changing toward abortion. Still, if the SP can invent “rights” to satisfy the folks clamoring for abortion, they can invent rights for any group noisy enough, or annoying enough, to gain a political foothold. In doing this, they have set a horrible precedent that is ripe with the potential for abuse. Rather than make bad law with their decisions, the SP should tell the states and the Congress to pass the laws according to the will of the people, and stop looking for invisible rights in the Constitution.

    • #10
    • June 30, 2020, at 7:02 AM PDT
    • 2 likes
  11. OmegaPaladin Moderator

    Valiuth (View Comment):

    DudleyDoright49 (View Comment):

    Justice Thomas is a blessed Justice indeed. A brilliant man and beacon to us all. Have you noticed that since Roe v. Wade was handed down, our culture has sunk lower and lower? When a people kill their children in mass, there is no hope for that nation. We must turn this culture around to save our nation, and Roe v. Wade would be a great place to start.

    You can not change the law until you change the people, or rather the people’s minds at least to a large enough degree to have real political will behind the change. Abortion was found in the Constitution because in the 1970’s the overall cultural and political opinion was fine if not adamant that such a thing be found. Looking for a judge to undo this before there is real broad cultural change a foot is a fools errand. I believe the last 40 years of Pro-Life activity have demonstrated this.

    There is cultural support for abortion. There is not massive cultural support for unrestricted abortion up to the time of birth. Roe v. Wade has now established abortion as a right more protected than the right to bear arms or the right to freely practice your religion, which are actually in the Constitution. Look at the case – the law did not ban abortion, it required that doctors who perform abortion meet the same standards as other outpatient surgical centers. Abortion is given special treatment. A minor can get an abortion without their parents being notified – if you performed any other elective surgery on minor without parental or guardian consent, you could lose your license.

    Abortion can terminate a fully viable, full-term baby. Outside of abortion, that would be murder in many jurisdictions. Legally, I’m not sure a “post-birth abortion” murder prosecution could survive the Supreme Court.

    This is the problem with inventing rights in the courtroom as opposed to passing legislation. Roe is now carved in stone like holy writ, immune from regulation.

    • #11
    • June 30, 2020, at 9:19 AM PDT
    • 6 likes
  12. Manny Member

    Justice Clearance Thomas is the giant of the Supreme Court.

    Chief Justice John Roberts is the wimp of the Supreme Court.

    The contrast is palpable. Why is it that the Liberal Justices always hang together? They never seem to contradict each other.

    • #12
    • June 30, 2020, at 10:22 AM PDT
    • 2 likes
  13. Ole Summers Member

    Thomas has always written the best, most informative opinions delivered by the Court, even in the Age of Scalia who was certainly great 

    • #13
    • June 30, 2020, at 10:36 AM PDT
    • 4 likes
  14. Manny Member

    Valiuth (View Comment):
    Abortion was found in the Constitution because in the 1970’s the overall cultural and political opinion was fine if not adamant that such a thing be found. Looking for a judge to undo this before there is real broad cultural change a foot is a fools errand. I believe the last 40 years of Pro-Life activity have demonstrated this. 

    I don’t agree with that. The constitution still says what it says. There are lots of things that the culture would like to do but the constitution has prevented it. Like eliminating gun ownership for one.

    • #14
    • June 30, 2020, at 12:50 PM PDT
    • 3 likes
  15. Manny Member

    OmegaPaladin (View Comment):

    Valiuth (View Comment):

    DudleyDoright49 (View Comment):

    Justice Thomas is a blessed Justice indeed. A brilliant man and beacon to us all. Have you noticed that since Roe v. Wade was handed down, our culture has sunk lower and lower? When a people kill their children in mass, there is no hope for that nation. We must turn this culture around to save our nation, and Roe v. Wade would be a great place to start.

    You can not change the law until you change the people, or rather the people’s minds at least to a large enough degree to have real political will behind the change. Abortion was found in the Constitution because in the 1970’s the overall cultural and political opinion was fine if not adamant that such a thing be found. Looking for a judge to undo this before there is real broad cultural change a foot is a fools errand. I believe the last 40 years of Pro-Life activity have demonstrated this.

    There is cultural support for abortion. There is not massive cultural support for unrestricted abortion up to the time of birth. Roe v. Wade has now established abortion as a right more protected than the right to bear arms or the right to freely practice your religion, which are actually in the Constitution. Look at the case – the law did not ban abortion, it required that doctors who perform abortion meet the same standards as other outpatient surgical centers. Abortion is given special treatment. A minor can get an abortion without their parents being notified – if you performed any other elective surgery on minor without parental or guardian consent, you could lose your license.

    Abortion can terminate a fully viable, full-term baby. Outside of abortion, that would be murder in many jurisdictions. Legally, I’m not sure a “post-birth abortion” murder prosecution could survive the Supreme Court.

    This is the problem with inventing rights in the courtroom as opposed to passing legislation. Roe is now carved in stone like holy writ, immune from regulation.

    Absolutely spot on. There is strong cultural support for limitations to abortion.

    • #15
    • June 30, 2020, at 12:52 PM PDT
    • 4 likes