June 29, 2020 3:05 pm
Categories: JoshWho News Washington Examiner

Roe v. Wade, a landmark Supreme Court case that led to the creation of a constitutional right to an abortion, is without basis in the Constitution and must be overruled, conservative Associate Justice Clarence Thomas argued.

Thomas, nominated by former President George H.W. Bush, issued a scathing rebuke on Monday of the Supreme Court’s decision in June Medical Services v. Russo to strike down a Louisiana law pertaining to abortion. Within his 20-page dissent, Thomas categorized the right to an abortion as an erroneous precedent grounded in a “legal fiction” of substantive due process.

“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,” Thomas wrote. “As the origins of this jurisprudence readily demonstrate, the putative right to abortion is a creation that should be undone.”

In 1965, the Supreme Court first recognized a “right to privacy” in Griswold v. Connecticut, where a 7-2 ruling determined that married couples have a right to privacy against state policies that restricted contraceptives. The high court acknowledged that the Constitution had no explicit protection for the right to privacy, but rather various amendments to the Constitution provided inferred rights known as “penumbras.”

“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,” Thomas wrote. “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.”

“By ‘exalting a phrase … used in discussing grounds for tort relief, to the level of a constitutional rule,’ the Court arrogated to itself the ‘power to invalidate any legislative act which [it] finds irrational, unreasonable, or offensive’ as an impermissible ‘interference with ‘privacy,’” Thomas said.

In the case of 1973 case Roe v. Wade, the right to an abortion was an extension of the right to privacy the high court detailed in 1965, using substantive due process as justification protected by the 14th Amendment of the Constitution. Substantive due process, as a legal doctrine, advocates that the 14th Amendment protects some rights not related to procedure, a concept Thomas fully rejects as “grievously wrong for many reasons.”

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

“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,” Thomas wrote.

Thomas criticized Chief Justice John Roberts, who was nominated to the high court by President George W. Bush, for claiming to adhere to stare decisis, or precedent, while ruling with the Supreme Court’s liberal plurality. Stare decisis, a Latin term that roughly translates “to stand by things decided,” is a legal doctrine often used by the court to give deference to previous decisions rather than overruling them.

“THE CHIEF JUSTICE advocates for a Burkean approach to the law that favors adherence to ‘the general bank and capital of nations and of ages,'” Thomas acknowledged.

“More importantly, we exceed our constitutional authority whenever we ‘apply 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,” Thomas asserted. “Because we lack jurisdiction and our abortion jurisprudence finds no basis in the Constitution, I respectfully dissent.”

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