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SCOTUS abortion ruling is 'worse than you think' — but Justice Thomas offers hope to pro-life advocates


'It's not truly 5-4. On the core of the abortion right, it's more like 8-1'

Win McNamee/Getty Images

Supreme Court Chief Justice John Roberts once again sided with the court's liberal justices in a significant abortion ruling Monday, where, in a 5-4 decision, the high court struck down a Louisiana law that would have required abortion doctors to obtain admitting privileges at nearby hospitals.

But for pro-life advocates, the ruling was even worse in the wider fight against abortion, according to conservative attorney David French.

French explained:

The SCOTUS abortion decision is worse than you think. It's not truly 5-4. On the core of the abortion right, it's more like 8-1. Only Thomas clearly attacks Roe/Casey. The other dissenters say this, essentially "apply Casey."

This means, in plain English, that even the dissenters would likely strike down the Louisiana law if the plaintiffs could show that their access to abortion was "substantially impaired." In other words, the law would be upheld only if it didn't do much about abortion at all!

It is true that the Supreme Court was not asked to address the merits of Planned Parenthood v. Casey, a landmark 1992 case that reaffirmed abortion rights, French went on to explain, but that still does not negate the court's current perspective toward abortion as represented by Monday's ruling.

"It's true that Louisiana didn't ask the court to overrule Casey. Perhaps another justice agrees with Thomas. All we know is what they just said, and what they just said indicates that the core abortion right is at least as secure as it was in 1992, when Casey was decided," French said.

However, pro-life advocates do have some hope — in the form of Justice Clarence Thomas.

Thomas wrote a scathing dissenting opinion on Monday in which he said the court's majority based its ruling solely on Supreme Court precedent, a legal doctrine known as stare decisis.

"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," Thomas wrote.

He later wrote, "[W]e 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."

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