Supremes Decline Anti-Dismemberment Law

Thomas: ‘Our abortion jurisprudence has spiraled out of control’

Associate Justice Clarence Thomas / Getty Images
June 28, 2019

Justice Clarence Thomas joined his colleagues in declining Alabama's attempt to enforce a law banning dismemberment abortions, but decried jurisprudence that he says "has spiraled out of control."

On Friday, the Supreme Court denied Alabama's petition for appeal after federal courts blocked a 2016 law that would have banned late-term abortions, in which the baby is dismembered in the womb. The 11th Circuit Court of Appeals had noted that the procedure was indeed dismemberment, but the three-judge panel said it was bound by Supreme Court precedent established in Planned Parenthood v. Casey (1992) that prohibits any law placing an "undue burden" on abortion access. Because of the popularity of the dismemberment practice known as dilation and evacuation, outlawing the procedure would hinder abortion access.

Justice Thomas published a concurring opinion agreeing that the case should be denied a hearing before the Supreme Court. While agreeing on procedural grounds, he took aim at the legal "aberration" and dubious reasoning that has cemented abortion as a constitutional right.

"The more developed the child, the more likely an abortion will involve dismembering it," Thomas said. "The notion that anything in the Constitution prevents States from passing laws prohibiting the dismembering of a living child is implausible."

Friday's opinion was not the first time that Thomas has rebuked past and current justices over the issue of abortion. In May, the Court declined to hear a case involving an Indiana law that would have abolished discriminatory abortions performed because of the race, sex, or mental capacity of a baby. Thomas called such abortions a "tool of modern-day eugenics" in a concurring opinion.

"Each of the immutable characteristics protected by this law can be known relatively early in a pregnancy, and the law prevents them from becoming the sole criterion for deciding whether the child will live or die," Thomas wrote in Box v. Planned Parenthood of Indiana and Kentucky Inc. "This law and other laws like it promote a State's compelling interest in preventing abortion from becoming a tool of modern-day eugenics."

Thomas extended his criticism of the "undue burden" standard in Friday's opinion in Harris v. West Alabama Women's Health Center.

"This case serves as a stark reminder that our abortion jurisprudence has spiraled out of control," Thomas wrote. "None of these decisions is supported by the text of the Constitution.… Although this case does not present the opportunity to address our demonstrably erroneous 'undue burden' standard, we cannot continue blinking the reality of what this Court has wrought."

Pro-life activists praised Thomas for speaking candidly on the issue. Terry Schilling, executive director of the American Principles Project, called the notion that the undue burden standard could be justified by the Constitution "ridiculous."

"In a setting where we've grown used to hearing euphemism and legal jargon, it is refreshing to see Justice Thomas call out dismemberment abortion for what it is: the gruesome killing of a living child," Schilling said. "Hopefully, the Court will soon dispense with this truly 'demonstrably erroneous' precedent once and for all."

Despite Friday's denial, Alabama could soon play a role in challenging the "undue burden" standard and the jurisprudence that emerged after the Supreme Court struck down all state abortion laws in 1973's Roe v. Wade. The state has passed the most comprehensive limits on abortion in the country and is already facing federal suits that could propel it before the Supreme Court in the coming years.