Clarence Thomas’ abortion dissent is right-wing dogma masquerading as law

Yesterday, the US Supreme Court (SCOTUS) made its first significant ruling on abortion since its 2007 decision on the Partial-Birth Abortion Ban Act.

The 5-3 ruling, with conservative Justice Kennedy joining the court’s 4 liberals, struck down state limits on abortion that allegedly benefited women’s health. The court found that the state law “burden[ed] a woman’s right to choose,” without providing sufficient medical benefits in return. In other words, the state law was meant to undermine a woman’s right to an abortion, not to protect anyone’s health.

Though this most recent decision is to be celebrated as a victory for abortion accessibility, the left should take note of Justice Clarence Thomas’s dissent. It’s right-wing dogma masquerading as constitutional law.

Clarence Thomas. Rob Crandall / Shutterstock.com

Clarence Thomas. Rob Crandall / Shutterstock.com

Thomas argues that the SCOTUS majority should not have accepted the case because it is the women-patients rights that are arguably being infringed, not the plaintiff-doctors working in the clinics. He adds, “when the wrong party litigates a case, we end up resolving disputes that make for bad law.” Thomas refuses to acknowledge the doctors as legitimate plaintiffs on behalf of their patients, even when those same doctors have a substantial stake in the case as practitioners of abortion procedures.

Such superficial legal ploys are representative of the remainder of his dissent. Thomas believes that today’s law has given precedent for the court to apply different and logically inconsistent degrees of scrutiny in determining the constitutionality of other policies. The majority he says, has chosen to apply an abnormally low standard in identifying “undue burdens” to prop up women’s right to abortions and legislate from the bench. His judicial philosophy is extraordinarily permissive for states infringing on this constitutional right. He says that the alleged benefits (or lack thereof) of abortion regulations should not be taken into account when determining whether such regulations put an “undue burden” on the right to choose. Thomas then goes even further, saying that in the event of disagreement between the medical community, courts, and states, the states have the responsibility to mediate.

Thomas demonstrates an astounding indifference to the realities faced by women today. Because of a 2013 US Court of Appeals ruling, the number of abortion clinics in Texas halved, vastly extending the distances required for women to travel for an abortion. Impoverished women have had their access to abortion substantially constrained by these restrictions, especially considering how 47% of Americans have trouble finding even an extra $400 to pay for an emergency.

Our finances significantly restrict our access to activities like abortion. Yet Thomas refuses to acknowledge abortion regulations as a burden.

The medical community sees no merit in Texas’ restrictions: The mortality rate for women undergoing abortions is minuscule—0.6 per 100,000 procedures, which is less than childbirth mortality of 8.8 per 100,000 procedures. According to UC San Francisco, abortions result in far fewer minor complications than routine procedures like wisdom tooth removals and tonsillectomies, and only require blood transfusions 0.23% of the time.

By accepting deference to state regulations, despite the dearth of evidence showing that these restrictions are medically necessary, Thomas has essentially argued that states may, and perhaps should, use pseudoscience as a ruse to enact legislation that violates the rights of others. Thomas endorses a world in which the state, and perhaps doctors themselves, are forced to be complicit in the proliferation of lies.

Clarence Thomas makes clear that conservatives are continuing their thinly-veiled culture war, against women and more, under the guise of the law.


Anhvinh Doanvo is an MSPPM candidate at Carnegie Mellon University. He has written for numerous publications including The Hill, Georgetown Public Policy Review, and Baltimore Sun. He is one of forty 2016 finalists for the Thomas R. Pickering Foreign Affairs Fellowship, which funds twenty US citizens' graduate education annually and places them in the American Foreign Service of the Department of State. You can follow him on Twitter at twitter.com/anhvinhdoanvo or Facebook at Facebook.com/AnhvinhD.

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