The Supreme Court declined on Friday to hear a case on a 2016 Alabama law prohibiting so-called “dismemberment abortions,” meaning the law will remain off the books thanks to a lower court ruling that the legislation put an “undue burden” on access to abortions, a precedent established in 1992 by the court’s decision on Planned Parenthood v. Casey.
But Justice Clarence Thomas has long maintained that the “undue burden” standard has no basis in the Constitution, and now, Thomas is warning his fellow justices that this case shows the consequences of their past decisions on abortion have “spiraled out of control.”
Spiraling out of control
The 11th Circuit Court of Appeals, whose decision will stand now that the Supreme Court has declined to hear the case, ruled in August that dismemberment abortions “cannot be prohibited because there are no alternatives that would not present an ‘unsurmountable obstacle’ to women” seeking abortions, according to National Review.
Of course, “the more developed the child, the more likely an abortion will involve dismembering it,” Thomas writes. Indeed, dismemberment abortions are the most popular form of second-trimester abortions, according to National Review.
But while precedent backs up the logic of 11th Circuit’s three-judge panel, according to Thomas, it would be “implausible” to think that the Constitution would protect such a gruesome procedure.
“The notion that anything in the Constitution prevents States from passing laws prohibiting the dismembering of a living child is implausible,” Thomas wrote in a concurring opinion. “But under the ‘undue burden’ standard adopted by this court, a restriction on abortion — even one limited to prohibiting gruesome methods — is unconstitutional if ‘the purpose or effect of the provision is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.'”
Thomas went on to write that while this case, Harris v. West Alabama Women’s Center, wouldn’t have allowed the court to reverse that precedent, it may soon be time to consider doing so.
“This case serves as a stark reminder that our abortion jurisprudence has spiraled out of control,” Thomas wrote. “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.”
Changing the game
Luckily for Thomas, it looks like the Supreme Court will have plenty of chances to rule on abortion cases in the near future. The topic has been in headlines in recent weeks as several states have adopted new legislation on it, with some heavily restricting the procedure and others loosening the reins and allowing abortions to take place right up until — and perhaps even after — birth.
These cases could give the newly conservative-leaning court the chance to overturn Roe v. Wade, the 1973 decision that made access to abortion a right. Conservative legal scholars, joined by Thomas himself, have said that Roe v. Wade should never have been made law of the land because abortion should be an issue left to the states under the Constitution.
But some pro-abortion advocates have warned that women’s health would be at risk if abortion were criminalized. They don’t want to see conditions revert back to a time when some women died after getting illegal abortions from unqualified physicians.
Still, it’s been more than 45 years since the Supreme Court issued its ruling on Roe v. Wade. When the case was first decided, ultrasounds were rare and antibiotics were new, and it was unclear when exactly a fetus was viable or how it developed.
Given how far science has come since then, a reconsideration on the topic makes perfect sense. And with numerous cases on abortion making their way through the courts right now, it may only be a matter of time before that day is upon us.
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