Supreme Court Justice Clarence Thomas filed a blistering opinion dissenting from a Monday decision to strike down a Louisiana law that required abortion doctors to obtain admitting privileges at a nearby hospital, calling the court's record on abortion "grievously wrong."
The pitched dissent made clear that Thomas is ready to tear down the court's protections for abortion completely in his most explicit comments yet that precedents all the way back to Roe v. Wade should fall.
"The plurality and [Chief Justice John Roberts] ultimately cast aside this jurisdictional barrier to conclude that Louisiana’s law is unconstitutional under our precedents," Justice Clarence Thomas 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."
He added, lower in the opinion: "The plurality and [Roberts] claim that the Court’s judgment is dictated by 'our precedents,' particularly Whole Woman’s Health... 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."
Thomas further called Roe v. Wade "farcical," said the Supreme Court's "abortion jurisprudence remains in a state of utter entropy," and said the court "can reconcile neither Roe nor its progeny with the text of our Constitution," so "those decisions should be overruled."
Justices Samuel Alito, Brett Kavanaugh and Neil Gorsuch all sided with Thomas in saying that the Louisiana law, which required doctors performing abortions to obtain admitting privileges at nearby hospitals, should be allowed to stand. Critics said that it was highly difficult for doctors to get such privileges and the law would result in fewer abortion doctors in the state, therefore limiting women's access to abortion. Supporters said it increased safety for women getting abortions, making it easier for them to be seen in an emergency room in the case of complications.
But Alito, Kavanaugh and Gorsuch kept their analyses more limited to the issue at hand and did not directly challenge Roe v. Wade.
"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 an opinion that savaged the reasoning of both the plurality of liberal justices and Roberts, who wrote a concurring opinion that rounded out the 5-4 majority needed to reach a result in the case. But Gorsuch stayed away from Roe.
"In truth, Roe v. Wade... is not even at issue here," he said. "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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