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    Overruling Roe

    In a recent dissenting opinion, Justice Clarence Thomas explains how the so-called right to abortion was invented ‘out of whole cloth’

    9/1/2020
    Justice Clarence Thomas, currently the longest-serving member of the Supreme Court, is pictured in 2007. Photo by James Leynse/Contributor/Getty Images

    On June 29, the U.S. Supreme Court issued a 5-4 decision in June Medical Services v. Russo, striking down a Louisiana law requiring abortion doctors to have admitting privileges at a nearby hospital. The law in question was very similar to one in Texas that the Court declared unconstitutional in a 2016 case.

    In June Medical Services v. Russo, four of the same justices again argued that the law created an “undue burden” on a woman’s right to have an abortion. Chief Justice John Roberts disagreed with this reasoning in 2016 (and still does). However, he voted to overturn the law, arguing that the Court’s 2016 ruling established a legal precedent (stare decisis).

    Four justices, including Justice Clarence Thomas, disagreed. In his dissent, Thomas argued more broadly that the court’s abortion precedents are “grievously wrong,” and that Roe v. Wade, the Supreme Court case which made abortion legal in 1973, should be overturned.

    The following excerpt is drawn from his judicial opinion.

    Today a majority of the Court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without jurisdiction. … The plurality and the Chief Justice ultimately cast aside this jurisdictional barrier to conclude that Louisiana’s law is unconstitutional under our precedents. But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled. Because we have neither jurisdiction nor constitutional authority to declare Louisiana’s duly enacted law unconstitutional, I respectfully dissent. …

    The Constitution does not constrain the States’ ability to regulate or even prohibit abortion. This Court created the right to abortion based on an amorphous, unwritten right to privacy, which it grounded in the “legal fiction” of substantive due process. As the origins of this jurisprudence readily demonstrate, the putative right to abortion is a creation that should be undone.

    The Court first conceived a free-floating constitutional right to privacy in Griswold v. Connecticut (1965). In that case, the Court declared unconstitutional a state law prohibiting the use of contraceptives, finding that it violated a married couple’s “right of privacy.” The Court explained that this right could be found in the “penumbras” of five different Amendments to the Constitution — the First, Third, Fourth, Fifth, and Ninth. Rather than explain what free speech or the quartering of troops had to do with contraception, the Court simply declared that these rights had created “zones of privacy” with their “penumbras,” which were “formed by emanations from those guarantees that help give them life and substance.” This reasoning is as mystifying as it is baseless. …

    Tens of thousands of people make their way down Constitution Avenue during the 2019 March for Life in Washington, D.C. Each January, participants gather on the National Mall and march to the U.S. Supreme Court Building in peaceful protest of the 1973 <i>Roe v. Wade</i> decision. Photo by Nick Crettier

    Just eight years later, the Court utilized its newfound power in Roe v. Wade. There, the Court struck down a Texas law restricting abortion as a violation of a woman’s constitutional “right of privacy,” which it grounded in the “concept of personal liberty” purportedly protected by the Due Process Clause of the Fourteenth Amendment. The Court began its legal analysis by openly acknowledging that the Constitution’s text does not “mention any right of privacy.” The Court nevertheless concluded that it need not bother with our founding document’s text, because the Court’s prior decisions — chief among them Griswold — had already divined such a right from constitutional penumbras. Without any legal explanation, the Court simply concluded that this unwritten right to privacy was “broad enough to encompass a woman’s [abortion] decision.”

    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. …

    More specifically, the idea that the Framers of the Fourteenth Amendment understood the Due Process Clause to protect a right to abortion is farcical. 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. …

    Moreover, the fact that no five Justices can agree on the proper interpretation of our precedents today evinces that our abortion jurisprudence remains in a state of utter entropy. Since the Court decided Roe, Members of this Court have decried the unworkability of our abortion case law and repeatedly called for course corrections of varying degrees. They serve as further evidence that this Court’s abortion jurisprudence has failed to deliver the “‘principled and intelligible’” development of the law that stare decisis purports to secure. …

    More importantly, we exceed our constitutional authority whenever we “appl[y] demonstrably erroneous precedent instead of the relevant law’s text.” Because we can reconcile neither Roe nor its progeny with the text of our Constitution, those decisions should be overruled.

    *****

    JUSTICE CLARENCE THOMAS is the longest-serving justice among the current members of the Supreme Court. He was nominated by President George H.W. Bush and confirmed by the U.S. Senate in 1990.

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