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Justice Clarence Thomas: ‘Our abortion jurisprudence has spiraled out of control’


"None of these decisions is supported by the text of the Constitution."

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In a short, yet scathing, opinion issued Friday morning, Justice Clarence Thomas called on the Supreme Court to address its previous precedent on the issue of abortion, writing that things had "spiraled out of control."

Writing alone in an opinion concurring with the court's decision not to address a lower court's decision blocking Alabama's 2016 dismemberment abortion ban, Thomas explained that while the "case does not present the opportunity to address" what he called the "demonstrably erroneous 'undue burden' standard," that he and his colleagues "cannot continue blinking the reality of what this Court has wrought," referring to past abortion rulings.

Thomas' ruling explained that the operating precedent for the court's decision to let the case stand was the "undue burden" standard set by the court in the 1992 case of Planned Parenthood v. Casey.

"The notion that anything in the Constitution prevents States from passing laws prohibiting the dismembering of a living child is implausible," Thomas wrote on Friday. "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.''"

Despite the facts that led to the denial of the petition in this case, however, Thomas also said that the court is going to have to address its abortion precedents at some point in the future.

"This case serves as a stark reminder that our abortion jurisprudence has spiraled out of control," Thomas remarked in the concurrence.

"Earlier this Term, we were confronted with lower court decisions requiring States to allow abortions based solely on the race, sex, or disability of the child," Thomas noted, pointing to an earlier case in which his concurring option delved into the historic connection between eugenics and abortion.

"Today, we are confronted with decisions requiring States to allow abortion via live dismemberment," Thomas continued. "None of these decisions is supported by the text of the Constitution."

In another recent opinion, Thomas also called on the court to reevaluate the level of deference it gives to its own past decisions, saying that the current standard "does not comport with our judicial duty under Article III [of the Constitution]" and "elevates demonstrably erroneous decisions ... over the text of the Constitution and other duly enacted federal law."

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