Justice Thomas: “Nothing in the Constitution
Prohibits Passing Laws Prohibiting Dismemberment of a Living
News by Steven Ertelt June 28, 2019, Washington DC
Supreme Court Justice Clarence Thomas issued
another powerful opinion Friday after
the high court rejected a case about protecting unborn babies
from brutal dismemberment abortions.
Thomas said the Supreme Court precedent on
abortion has “spiraled out of control” to the point where even
laws that ban dismemberment abortions and sex-selection
abortions are being struck down, according
He wrote the opinion in response
justices’ decision not to hear an Alabama case about banning
dismemberment abortions. The 11th Circuit
Court of Appeals ruled against the law in 2018, citing Supreme
Court precedent, and, on Friday, the high court refused to hear
an appeal of that decision, according
The Alabama law bans brutal dismemberment abortions that tear
nearly fully formed babies limb from limb while their hearts are
still beating. Alabama
lawmakers enacted the Unborn Child Protection from Dismemberment
Act in 2016, but two abortion businesses and the ACLU sued
to stop it.
“The notion that anything in the Constitution prevents States
from passing laws prohibiting the dismembering of a living child
is implausible,” Thomas wrote. “But under the ‘undue burden’
standard adopted by this Court, a restriction on abortion —even
one limited to prohibiting gruesome methods — is
unconstitutional if ‘the ‘purpose or effect’ of the provision is
to ‘place a substantial obstacle in the path of a woman seeking
an abortion before the fetus attains viability.’”
on the support of readers like you to combat the pro-abortion
… Thomas explained that while the “case does not present the
opportunity to address” what he called the “demonstrably
erroneous ‘undue burden’ standard,” that he and his
colleagues “cannot continue blinking the reality of what
this Court has wrought,” referring to past abortion rulings.
Thomas’ ruling explained that the operating precedent for
the court’s decision to let the case stand was the “undue
burden” standard set by the court in the 1992 case of
Planned Parenthood v. Casey.
He suggested that it is time for the high court to reconsider
“Earlier this Term, we were confronted with lower court
decisions requiring States to allow abortions based solely on
the race, sex, or disability of the child,” Thomas wrote about
an Indiana case that the court also rejected in May.
“Today, we are confronted with decisions requiring States
to allow abortion via live dismemberment,” Thomas continued.
“None of these decisions is supported by the text of the
“This case serves as a stark reminder that our abortion
jurisprudence has spiraled out of control,” he wrote.
Pro-life advocates have expressed strong hopes that the high
court would consider abortion cases because a majority of the
justices have been nominated by conservative presidents. Thomas,
however, has been the lone vocal advocate for reconsidering the
abortion precedent so far.
CNN Supreme Court analyst Steve Vladeck said Thomas has been
sending strong messages to the other justices in his recent
“Justice Thomas … [suggested] that in an appropriate future
case, the court should revisit the entire ‘undue burden’
framework, which, in essence, would mean revisiting whether the
Constitution has anything to say about how states limit access
to abortions,” Vladeck said.
“That would obviously be an enormously controversial case, and
Thomas is effectively saying he’d like to see it happen sooner
rather than later,” he added.
After the ruling came out Friday, abortion activists noted that
the Supreme Court will have plenty more chances to consider the
issue in the months to come.
“While we are pleased to see the end of this particular case, we
know that it is nowhere near the end of efforts to undermine
access to abortion,” said ACLU attorney Andrew Beck in a
statement. “Politicians are lining up to do just what Alabama
did — ask the courts to review laws that push abortion out of
reach and harm women’s health, with the hope of the getting the
Supreme Court to undermine, or even overturn, a woman’s right to
Dozens of cases about abortion are making their way through the
courts right now in America. Whether the other justices will
listen to Thomas and take up one of those cases remains to be
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