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Supreme Court Justice Clarence Thomas authored a stinging dissent Monday to the high court ruling against a Louisiana law requiring doctors performing abortions to obtain admitting privileges at nearby hospitals.
Chief Justice John Roberts aligned with the four liberal jurists — again — in the 5-4 court ruling, with Thomas calling the court’s record on abortion “grievously wrong,” Fox News reported.
Thomas, who was joined by Justices Samuel Alito, Brett Kavanaugh and Neil Gorsuch in saying the law should stand, denounced the “right” to an abortion, as prescribed in Roe v. Wade, as being created “out of whole cloth.”
“The plurality and [Chief Justice John Roberts] ultimately cast aside this jurisdictional barrier to conclude that Louisiana’s law is unconstitutional under our precedents,” the jurist wrote in a dissent. “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.”
“The plurality and [Roberts] claim that the Court’s judgment is dictated by ‘our precedents,’ particularly Whole Woman’s Health…,” Thomas added. “For the detailed reasons explained by [Alito], this is not true… But today’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.”
He also questioned the controversial issue of whether the abortion clinics challenging Louisiana’s law had standing to even sue.
“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,” Thomas wrote. “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.”
There’s no mistaking how Thomas feels about Roe v. Wade, with Fox News saying he appears to be laying “the framework for a full-frontal assault on Roe v. Wade.”
In fact, the conservative jurist called the decision “farcical” in Monday’s opinion, and said the Supreme Court’s “abortion jurisprudence remains in a state of utter entropy.”
Thomas said “those decisions should be overruled” because the court “can reconcile neither Roe nor its progeny with the text of our Constitution.”
As the article noted, he called Roe v. Wade “incorrect” earlier this year in a concurring opinion on a case about non-unanimous jury verdicts.
“The unreasonableness of this interpretation is underscored by the Court’s struggle to find a ‘guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfundamental rights that do not,’ … as well as its many incorrect decisions based on this theory,” Thomas said, including Roe v. Wade in the in-text citation to that line.
Alito, Kavanaugh and Gorsuch did not directly challenge Roe v. Wade in their take on Monday’s ruling.
“The judicial power is constrained by an array of rules… Today’s decision doesn’t just overlook one of these rules. It overlooks one after another,” Gorsuch said.
“In truth, Roe v. Wade… is not even at issue here,” he suggested. “The real question we face concerns our willingness to follow the traditional constraints of the judicial process when a case touching on abortion enters the courtroom.”
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