Chief Justice John Roberts provoked the anger of conservatives this week when he sided with the Supreme Court’s liberal members to strike down a Louisiana law that required abortion doctors to have hospital admitting privileges.
While many liberals in the media praised Roberts, fellow Justice Clarence Thomas wasn’t impressed. And not only does he think that this ruling was flawed, Thomas argues that the 1973 Roe v. Wade decision needs to go as well.
“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,” the Washington Examiner quoted Thomas as saying. “As the origins of this jurisprudence readily demonstrate, the putative right to abortion is a creation that should be undone.”
Thomas: “This reasoning is as mystifying as it is baseless.”
“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,” the associate justice explained.
“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.”
“By ‘exalting a phrase … used in discussing grounds for tort relief, to the level of a constitutional rule,’ the Court arrogated to itself the ‘power to invalidate any legislative act which [it] finds irrational, unreasonable, or offensive’ as an impermissible ‘interference with ‘privacy,’” Thomas continued.
Thomas next turned to the original intent, stating, “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,” he pointed out.
“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.”
Simply not there
“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,” Thomas insisted.
He next took a shot at Roberts, writing, “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. More importantly, we exceed our constitutional authority whenever we ‘apply 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,” Thomas concluded. “Because we lack jurisdiction and our abortion jurisprudence finds no basis in the Constitution, I respectfully dissent.” Justices Brett Kavanaugh, Samuel Alito, and Neil Gorsuch joined Thomas in dissenting on the Louisiana law ruling.