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Analysis Law and Policy

The Latest Supreme Court Decision on Abortion Is Good News, but Don’t Get Too Comfortable

Jessica Mason Pieklo

On the final day of the Court's term, Justice Clarence Thomas made it clear that abortion rights are in the conservative justice's crosshairs.

The U.S. Supreme Court on Friday rejected an attempt by Alabama lawmakers to revive a state ban on the most common form of second-trimester abortion. The decision is good news—to a point.

Alabama’s law is patently unconstitutional, the 11th U.S. Circuit Court of Appeals was right to keep it blocked, and there was simply no reason for the Roberts Court to take the case. The Court’s term comes to a close without a major abortion rights case on the docket for next fall. That is also good news.

But, like all things related to abortion rights and the Roberts Court, the good news has a big caveat—because as Justice Clarence Thomas made clear Friday, it’s not a question of if the Court will be taking up a significant challenge to abortion rights. It’s when.

And when that time comes, Thomas wants to be the justice in charge of writing the opinion to overturn Planned Parenthood v. Casey—and maybe even Roe v. Wade along with it.

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“This case serves as a stark reminder that our abortion jurisprudence has spiraled out of control,” Thomas wrote in his concurring opinion Friday in Harris v. West Alabama Women’s Center. “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,” he continued later.

How exactly has abortion jurisprudence spiraled out of control as far as Justice Thomas is concerned? Let’s explore.

Harris v. West Alabama Women’s Center involves a challenge to SB 363, an Alabama law that targets dilation and evacuation (D and E) procedures. The law, passed in 2016, prohibits a physician from performing a “dismemberment abortion”—the preferred anti-choice term for D and E abortions—unless it is necessary to prevent serious health risk to the pregnant person. SB 363 subjects physicians to up to two years in prison for violations and contains no exceptions for cases of rape, incest, or fetal anomaly.

Alabama lawmakers claim SB 363 isn’t a pre-viability ban because there exists alternative, riskier procedures that physicians can use in order to be compliant with the law. The lower court rejected those arguments, as did the conservative 11th Circuit.

As I wrote in April, Harris v. West Alabama Women’s Center didn’t present the Court with the traditional avenues for the Supreme Court to take the case. There is no split, for example, among the federal appeals courts as to the constitutionality of measures like SB 363. They all agree these kinds of abortion restrictions are unconstitutional.

But in asking the Roberts Court to review, Harris gave anti-choice advocates the opportunity to make their “dismemberment” arguments in briefs to the conservative justices. Like the anti-choice community’s previous success in banning so-called partial-birth abortions—the medically unsupported term for dilation and extraction abortions—propaganda, not science, drives the campaign against D and E abortions.

Thomas’ concurrence shows that the campaign is working. “Dismembering a child alive is—in respondents’ words— ‘the most commonly used second-trimester abortion method,’” Thomas writes. “Put differently, the more developed the child, the more likely an abortion will involve dismembering it.”

To be clear, Justice Thomas’ opposition to abortion rights is long-standing and well-known. If any justice on the Roberts Court is going to be receptive to these kinds of tactics and arguments, it is Thomas. So by that measure, his call Friday to revisit abortion rights jurisprudence should be expected. But that’s not a reason to take it any less seriously. It’s a clear message to the appellate courts that if given the opportunity to upend abortion rights, Thomas will be the justice to make that happen.

In May, Thomas signaled the same thing in his majority opinion in Franchise Board of California v. Hyatt, a case having nothing at all to do with abortion rights but everything to do with the overturning Court precedent. Thomas’ opinion acts as a roadmap for how the Court will overturn abortion rights when given the chance.

Thomas then followed up with a concurring opinion in Box v. Planned Parenthood of Indiana and Kentucky. That case involved challenges to Indiana’s requirement that health professionals bury or cremate fetal tissue from miscarriages and abortion, and Indiana’s prohibition on pre-viability abortions based on the race, sex, or possible disability of the fetus. The Court in a per curiam opinion held the former was constitutional, but the latter was not. Justice Thomas used the occasion to declare war on reproductive rights writ large, equating modern-day family planning methods with eugenics and again directly challenging the veracity of reproductive privacy law.

These are the “stark reminders” of abortion rights law that has “spiraled out of control” and requires remedy by the Roberts Court, according to Justice Thomas.

And while the Court’s term ended without a major abortion rights case on its docket, that may be temporary. The Court is still sitting on a petition from Indiana looking to revive that state’s mandatory ultrasound and delay law, as well as a clinic-shutdown case from Louisiana meant to test the strength and durability of the 2016 abortion rights victory in Whole Woman’s Health v. Hellerstedt. A recent decision by the D.C. Circuit Court of Appeals declaring unconstitutional the Trump administration’s policy of blocking abortion access for undocumented minors in its custody could land before the Roberts Court next term.

The firewall from the federal judiciary that has prevented the most extreme abortion bans from taking effect may also be temporary. President Trump has appointed nearly 40 federal appellate court judges, almost all of whom are white, male, radically conservative, and on the record as vehemently anti-abortion. It is only a matter of time before those judicial appointments exert their influence over abortion rights jurisprudence. The decision by the 11th Circuit that kept Alabama’s D and E ban blocked can hardly be described as an embrace of abortion rights, for example. The first paragraph of the opinion calls into question the legitimacy of abortion rights jurisprudence. Yet bound by precedent, the 11th Circuit correctly ruled that Alabama’s law could not stand.

How long until a Trump appointee decides he is no longer bound by precedent and rules to uphold one of the dozens of blatantly unconstitutional abortion restrictions around the country? How long until a Trump appointee, or an entire panel of them, gives Justice Thomas the opportunity to “address” the “demonstrable error” of the undue burden standard? My guess is that time is getting close. When that case arrives, it’ll be Justice Thomas driving its outcome, just as he’s signaled this entire term. And the results will be a disaster for reproductive rights.

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