Clarence Thomas Tears Apart Supreme Court’s Abortion Jurisprudence

The Supreme Court yesterday struck down Texas’ law HB 2, enacted in 2013, which required abortionists in Texas to have admitting privileges at a hospital within 30 miles of their clinic. The law also required abortion facilities to meet the same health standards as ambulatory surgical centers. The law also restricted abortions to 20 weeks.

The eight Supreme Court justices reversed the Fifth Circuit Court of Appeals decision on Whole Woman’s Health v. Hellerstedt (formerly Whole Woman’s Health v. Cole), 5-3.

Justice Stephen Breyer, writing the majority decision, said:

We conclude that neither of these provisions confers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, Casey, supra, at 878 (plurality opinion), and each violates the Federal Constitution. Amdt. 14, §1.

Justices Clarence Thomas, Samuel Alito and John Roberts dissented. Thomas, in his dissent, torn apart the majority opinion. Below are ten points he made that rebukes the Supreme Court’s abortion jurisprudence.

1. The Supreme Court bends the rules when it comes to abortion.

Thomas pointed out in his dissent that the Supreme Court’s history of quashing any dissent to abortion. Quoting the late Justice Antonin Scalia, Thomas wrote:

Today the Court strikes down two state statutory provisions in all of their applications, at the behest of abortion clinics and doctors. That decision exemplifies the Court’s troubling tendency “to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.”

2. It is “jurisprudence oddity” to allow third-party standing, but it is prevalent in abortion cases.

Thomas noted that the case was a “jurisprudence oddity.”

Ordinarily, plaintiffs cannot file suits to vindicate the constitutional rights of others. But the Court employs a different approach to rights that it favors. So in this case and many others, the Court has erroneously allowed doctors and clinics to vicariously vindicate the putative constitutional right of women seeking abortions.

3. “Common sense” inferences are not evidence.

Thomas pointed out that the majority actually lacked evidence based on how they have allowed abortion providers third-party standing.

the Court’s permissive approach to third-party standing encourages litigation that deprives us of the information needed to resolve that issue. Our precedents encourage abortion providers to sue—and our cases then relieve them of any obligation to prove what burdens women actually face. I find it astonishing that the majority can discover an “undue burden” on women’s access to abortion for “those [women] for whom [Texas’ law] is an actual rather than an irrelevant restriction,” ante, at 39 (internal quotation marks omitted), without identifying how many women fit this description; their proximity to open clinics; or their preferences as to where they obtain abortions, and from whom. “[C]ommonsense inference[s]” that such a burden exists, ante, at 36, are no substitute for actual evidence. There should be no surer sign that our jurisprudence has gone off the rails than this: After creating a constitutional right to abortion because it “involve[s] the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy,” Casey, supra, at 851 (majority opinion), the Court has created special rules that cede its enforcement to others. (emphasis mine)

4. He is opposed to the Court’s decisions on abortion.

“I remain fundamentally opposed to the Court’s abortion jurisprudence.”

5. The Court makes the “undue burden” standard invented for abortion cases even more broad.

He writes:

All we know is that an undue burden now has little to do with whether the law, in a “real sense, deprive[s] women of the ultimate decision,”… and more to do with the loss of “individualized attention, serious conversation, and emotional support.”

6. The Supreme Court’s ruling will mystify lower courts.

“After disregarding significant aspects of the Court’s prior jurisprudence, the majority applies the undue-burden standard in a way that will surely mystify lower courts for years to come,” Thomas wrote.

7. The Court has made it difficult for states to pass pro-life legislation.

And the majority seriously burdens States, which must guess at how much more compelling their interests must be to pass muster and what “commonsense inferences” of an undue burden this Court will identify next.

8. The Court is operating outside of the Constitution.

Thomas points out the larger problem of this case that has broader implications. “As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat,” he wrote.

He notes that the Constitution does not allow for what they are doing.

The Constitution does not prescribe tiers of scrutiny. The three basic tiers— “rational basis,” intermediate, and strict scrutiny—“are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case.” (quoting late Justice Rehnquist)…

…But the problem now goes beyond that. If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result.

9. Court should drop the pretense it is impartial.

“The Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case,” Thomas wrote.

10. The Supreme Court invented a “right to abortion,” and consider it a preferred Constitutional right.

Thomas writes:

The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting, or not—and if not, the judiciary has no business creating ad hoc exceptions so that others can assert rights that seem especially important to vindicate. A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment. Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.