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 /

Clarence Thomas. Rob Crandall /

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 or Facebook at

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19 Responses to “Clarence Thomas’ abortion dissent is right-wing dogma masquerading as law”

  1. Houndentenor says:

    I remember his confirmation hearings. There was never any logic to any of his positions. Some bribes, but no logic.

  2. Layla Menandez says:

    Like most things that come from the right, lies and fabrications. If the GOP and their supporters didn’t lie and manipulate the facts, nobody making under $100K a year would vote for them.

    How about giving Obama credit for once? The economy is rolling. Health care is cheaper (still nothing compared to my $25/month car insurance from Insurance Panda or my $11/month renters insurance .. but progress is being made!!). Bin Laden is caught. Useless wars have ended.

    When are people going to stay out of other people’s lives. Mind your own business! Abortion and Marriage equality are private matters and no one’s business but the people involved!

  3. woodroad34 says:

    His reasonings are sophistic and definitely not sophisticated. A glib tongue does not make a well-reasoned argument–in fact it probably shows how shallow and incompetent the person is.

  4. DoverBill says:

    What an absolutely, disgusting excuses for a member of the human race.

  5. dcinsider says:

    Dream on unfortunately. The “false equivalency” journalism of today is an embarrassment to the profession.

  6. Quilla says:


    Just watch.

  7. rmthunter says:

    “Thomas has essentially argued that states may, and perhaps should, use
    pseudoscience as a ruse to enact legislation that violates the rights of

    This is just an extension of Alito’s contention in Hobby Lobby that the plaintiff’s belief that the contraceptives in question were abortifacients outweighed the fact that they’re not.

  8. RepubAnon says:

    I expect if states passes regulations requiring gun stores to, say, require a 72 hour waiting period, drug testing, fingerprinting and DNA samples of each customer, and required each gun store to remodel with armored doors and blast-resistant walls – Justice Thomas would find that those stores had standing to file suit to challenge those laws.

    Funny how filling out a one-page form is an undue burden for folks opposed to abortion, yet mandatory ultrasounds, etc. are not an undue burden for those seeking abortions.

  9. Nicholas A Kocal says:

    Of course Thomas has no problem ruling in favor of right wing suits even when the people bring the suit have NO LEGAL STANDING.

  10. sam says:

    I particularly like the fallacy that doctors have no stake in this, as if the penalties for violating the “laws” at issue aren’t directly regulating the doctors themselves and medical facilities and *not* women in these specific cases, and the fact that every anti-abortion nutcase, when confronted with questions about who gets “punished” always wants to throw doctors in jail (or worse) but women are treated like helpless victims (at least until recent shifts in rhetoric).

  11. 4Catz in Metro Detroit says:

    He will do anything and say damn near anything to justify his wife’s fat political salaries.

  12. sam says:

    I heard her – it took all my willpower not to smash my radio. (Oh, also it’s the Susan B Anthony List).

  13. BeccaM says:

    It seems to me at the core of Thomas’ dissent is his desire to toss out the case on a technicality (wrong plaintiff, therefore no standing) so that the whole issue can be ignored until there are more misogynistic justices on the court.

  14. SkippyFlipjack says:

    I don’t get how his logic is supposed to work. (I mean, I get that he just doesn’t like abortion or precedent, but he still has to pretend like he’s making sense.) In Planned Parenthood v. Casey the Supreme Court set the standard by which abortion laws would be measured — they couldn’t impose an “undue burden” on women seeking an abortion. Since nearly any such laws would govern health providers and not women themselves, does Thomas find this to be a completely meaningless standard? Of course clinics have standing to challenge laws which represent undue burdens to providing of abortion services. What a turd.

    An article I read made the interesting point that Thomas was trying to say that the phrase “undue burden” was actually two unrelated standards. Apparently he argued that those two things weren’t meant to be measured against one another, so there was no concept of whether a burden should be weighed against necessity. To normal people, a law requiring a woman to fill out an extra form is not an “undue burden” regardless of the justification, but she were required to purchase and wear a full-body wetsuit for the examination we’d want to know what the justification was. Thomas wanted to split these ideas so he could argue whether something was a “burden” in isolation. It’s like people who argue that voter ID laws are no big deal because they just require getting a (sometimes free) ID. Sure, not that big a burden — but with zero justification. Clearly, completely not what the majority in Planned Parenthood v. Casey intended and Thomas knows it. Again — what a turd.

  15. BeccaM says:

    Funny how there almost never is. Or if there is, the interviewers (I can’t call them journalists anymore) present both sides as if both are legitimate. Even when one of the sides is making assertions known to be false.

    “It’s about protecting women’s health and that of their unborn children.”

    “No, the requirements you are imposing in bill after bill, year after year, are intended only to regulate reproductive services clinics out of existence, and your own leaders are on record as confirming that. The result in your state has been a marked increase in unplanned pregnancies, self-induced abortions, and a rise in infant mortality rates. Given your unwavering opposition to the ACA and funding for SNAP, Medicaid and medical services for low-income families, one could far more reasonably assume your intent is that of forced pregnancies alone and all other considerations are irrelevant. Do you have any comments to make which are not easily refuted?”

  16. emjayay says:

    That’s an ancient photo of Thomas.

  17. Badgerite says:

    Oh. Snap!

  18. emjayay says:

    On npr news this morning some woman from Clara Barton Something was going on about concern for womens health re abortions and mentioned deaths and infertility and was not challenged.

  19. dcinsider says:

    That works out well since Clarence Thomas is a right wing politician masquerading as a Supreme Court justice.

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