Supreme Court Justice Clarence Thomas put forward a big opinion disagreeing with a decision Monday to repeal a Louisiana law requiring abortion doctors to obtain admission privileges at a nearby hospital and qualified the court record on abortion as “seriously wrong”.
The sharp disagreement made it clear that Thomas is ready to completely tear down the court’s protections for abortion in his more explicit comments, but that the precedents all the way back to Roe v. Wade should fall.
“The plurality and [Chief Justice John Roberts] Ultimately, drop this jurisdictional barrier to conclude that Louisiana law is unconstitutional under our precedents, “Judge Clarence Thomas wrote in a dissent.” But those decisions created the right to abortion out of thin air, without a shred of support for the text of the Constitution. Our abortion records are seriously wrong and should be expunged. “
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He added, further down the opinion: “The plurality and [Roberts] they claim that the Court’s judgment is dictated by “our precedents”, in particular Whole Health’s Health … For the detailed reasons explained by [Alito]This is not true … But today’s decision is incorrect for a much simpler reason: the Constitution does not restrict the ability of States to regulate or even prohibit abortion. This Court created the right to abortion based on an amorphous, unwritten right to privacy, which was based on the ‘legal fiction’ of substantive due process. “
Thomas also called Roe v. Wade “absurd” said that the “Supreme Court’s jurisprudence on abortion remains in a state of absolute entropy”, and said that the court “cannot reconcile either Roe or her progeny with the text of our Constitution”, then “Those decisions must be annulled.”
Justices Samuel Alito, Brett Kavanaugh and Neil Gorsuch sided with Thomas, saying that Louisiana law, which required abortion doctors to obtain admission privileges at nearby hospitals, had to remain standing. Critics said it was very difficult for doctors to obtain such privileges and that the law would result in fewer abortion doctors in the state, limiting women’s access to abortion. Supporters said it increases the safety of women who undergo abortions, making it easier to care in an emergency room for complications.
But Alito, Kavanaugh and Gorsuch kept their analyzes more limited to the subject at hand and did not directly challenge Roe v. Wade.
“The judiciary is limited by a series of rules … Today’s decision not only ignores one of these rules. It is ignored one after another,” Gorsuch said in an opinion that devastated the reasoning of the plurality of the liberal judges and Roberts, who wrote a concurring opinion that completed the majority of 5-4 necessary to reach a result in the case. But Gorsuch stayed away from Roe.
“Truly, Roe v. Wade … isn’t even in question here,” he said. “The real question we face relates to our willingness to follow the traditional restrictions of the judicial process when an abortion-related case enters the courtroom.”
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Roberts seemed suspicious of abortion clinics’ arguments against Louisiana law during oral arguments earlier this year. He and Kavanaugh both wondered if state law would be an “undue burden” on a woman’s right if few or no doctors were having trouble obtaining admission privileges.
Roberts also filed a dissenting opinion in a similar case just a few years ago. But he said he was bound by a precedent in his concurrent opinion Monday, in which he joined the final conclusion of the plurality of liberal judges to repeal the Louisiana law.
“The legal doctrine of stare decisis requires us, in the absence of special circumstances, to treat similar cases equally,” wrote Roberts. “Louisiana law imposes a burden on access to abortion as severe as that imposed by Texas law, for the same reasons. Therefore, Louisiana law cannot be sustained under our precedents.”
Thomas seemed to have a shot at that deference to the Roberts precedent.
“More importantly, we exceed our constitutional authority every time we apply[y] “The demonstrably wrong precedent rather than the text of the relevant law,” said Thomas. “Because we cannot reconcile either Roe or her progeny with the text of our Constitution, those decisions should be overturned.”
Thomas, who has been on the bench longer than any other practicing judge, had commented in various opinions that seemed to set the stage for a frontal assault on Roe v. Wade.
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“When faced with a demonstrably wrong precedent, my rule is simple: we must not follow it,” he wrote in a case last year about criminal law. Thomas added that the precedent “may remain relevant when it is not demonstrably wrong.”
And earlier this year, Thomas rated Roe v. Wade of “wrong” in a concurring opinion on a case involving non-unanimous jury verdicts.
“The irrationality of this interpretation is underlined by the Court’s struggle to find a ‘guiding principle to distinguish’ fundamental ‘rights that justify the protection of non-fundamental rights that do not’ … as well as its many incorrect decisions based on this theory, “Thomas said, including Roe v. Wade in the quote in the text for that line.
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In two other cases he also rated “incorrect” along with Roe: Obergefell v. Hodges, which required all states to recognize gay marriage, and Dred Scott v. Sandford, who in 1857 ruled that blacks could not be American citizens and was a major contributing factor to the Civil War.
Thomas, on Monday, also addressed another element of the Louisiana case: a controversy over whether abortion clinics that defied Louisiana law even had the right to sue.
“As is often the case with legal challenges to abortion regulations, this lawsuit was brought by abortionists and abortion clinics,” said Thomas. “Their only claim before this Court is that Louisiana law violates a woman’s alleged substantive due process right to abort his unborn child. But they acknowledge that this right does not belong to them and seek to claim any private right of their own. According to a Adequate understanding of Article III, these claimants lack standing to invoke our jurisdiction. “
Bill Mears, Shannon Bream and Gregg Re of Fox News contributed to this report.