The U.S. Supreme Court struck down a Louisiana pro-life law Monday in a much-anticipated abortion case, and the four dissenting justices didn’t mince words in criticizing the majority’s position.
“Today a majority of the Court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without jurisdiction,” Justice Clarence Thomas wrote.
The court, in a 5-4 ruling, overturned a Louisiana law that required abortion doctors to acquire admitting privileges at a hospital within 30 miles of the clinic. The goal of the law, supporters said, was to protect the health of a woman if the procedure didn’t go as planned.
Thomas criticized the court’s abortion opinions from the past five decades and argued Roe v. Wade, handed down in 1973, should be overturned.
“Roe is grievously wrong for many reasons, but the most fundamental is that its core holding – that the Constitution protects a woman’s right to abort her unborn child – finds no support in the text of the Fourteenth Amendment,” Thomas wrote.
The “right to abortion,” he wrote, was “created out of whole cloth, without a shred of support from the Constitution’s text.” Roe and its subsequent cases, he argued, “should be overruled."
“The idea that the Framers of the Fourteenth Amendment understood the Due Process Clause to protect a right to abortion is farcical,” Thomas wrote. “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.
“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. 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 wrote.
Meanwhile, Thomas and Justices Samuel Alito and Neil Gorsuch also argued the Louisiana abortion clinic that brought the case should not have been allowed to file suit because it was a third party (a legal doctrine known as “standing”). The clinic lacked standing, they argued, because it was defending the rights of women who were not a party in the lawsuit. Such a case could have only been filed by a woman or group of women, they argued. (Justice Brett Kavanaugh, in his own dissent, also questioned whether the clinic had standing to sue.)
Clinics, Alito argued, had a financial interest to see the law overturned.
“This case features a blatant conflict of interest between an abortion provider and its patients,” Alito wrote in an opinion joined by Gorsuch. “Like any other regulated entity, an abortion provider has a financial interest in avoiding burdensome regulations such as Act 620’s admitting privileges requirement. Applying for privileges takes time and energy, and maintaining privileges may impose additional burdens. Women seeking abortions, on the other hand, have an interest in the preservation of regulations that protect their health. The conflict inherent in such a situation is glaring.”
Gorsuch, in his own dissenting opinion, argued the law would have benefited women because abortions “carry inherent risks including uterine perforation, hemorrhage, cervical laceration, infection, retained fetal body parts, and missed ectopic pregnancy.” He was quoting a doctor who had given testimony to the legislature.
“Unsurprisingly, those risks are minimized when the physician providing the abortion is competent,” Gorsuch wrote. “Yet, unlike hospitals which undertake rigorous credentialing processes, Louisiana’s abortion clinics historically have done little to ensure provider competence.”
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Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, the Leaf-Chronicle, the Toronto Star and the Knoxville News-Sentinel.