Justice Thomas: “Nothing in the Constitution Prohibits Passing Laws Prohibiting Dismemberment of a Living Child”

National   Steven Ertelt   Jun 28, 2019   |   3:35PM    Washington, DC

Supreme Court Justice Clarence Thomas issued another powerful opinion Friday after the high court rejected a case about protecting unborn babies from brutal dismemberment abortions.

Thomas said the Supreme Court precedent on abortion has “spiraled out of control” to the point where even laws that ban dismemberment abortions and sex-selection abortions are being struck down, according The Blaze.

He wrote the opinion in response to the justices’ decision not to hear an Alabama case about banning dismemberment abortions. The 11th Circuit Court of Appeals ruled against the law in 2018, citing Supreme Court precedent, and, on Friday, the high court refused to hear an appeal of that decision, according to Politico.

The Alabama law bans brutal dismemberment abortions that tear nearly fully formed babies limb from limb while their hearts are still beating. Alabama lawmakers enacted the Unborn Child Protection from Dismemberment Act in 2016, but two abortion businesses and the ACLU sued to stop it.

“The notion that anything in the Constitution prevents States from passing laws prohibiting the dismembering of a living child is implausible,” Thomas wrote. “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.’”

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… 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.

He suggested that it is time for the high court to reconsider that precedent.

“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 wrote about an Indiana case that the court also rejected in May.

“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.

“This case serves as a stark reminder that our abortion jurisprudence has spiraled out of control,” he wrote.

Pro-life advocates have expressed strong hopes that the high court would consider abortion cases because a majority of the justices have been nominated by conservative presidents. Thomas, however, has been the lone vocal advocate for reconsidering the abortion precedent so far.

CNN Supreme Court analyst Steve Vladeck said Thomas has been sending strong messages to the other justices in his recent opinions.

“Justice Thomas … [suggested] that in an appropriate future case, the court should revisit the entire ‘undue burden’ framework, which, in essence, would mean revisiting whether the Constitution has anything to say about how states limit access to abortions,” Vladeck said.

“That would obviously be an enormously controversial case, and Thomas is effectively saying he’d like to see it happen sooner rather than later,” he added.

After the ruling came out Friday, abortion activists noted that the Supreme Court will have plenty more chances to consider the issue in the months to come.

“While we are pleased to see the end of this particular case, we know that it is nowhere near the end of efforts to undermine access to abortion,” said ACLU attorney Andrew Beck in a statement. “Politicians are lining up to do just what Alabama did — ask the courts to review laws that push abortion out of reach and harm women’s health, with the hope of the getting the Supreme Court to undermine, or even overturn, a woman’s right to abortion.”

Dozens of cases about abortion are making their way through the courts right now in America. Whether the other justices will listen to Thomas and take up one of those cases remains to be seen.