FacebookTwitterGoogle+RedditEmail

Justice Thomas’s Abortion Dissent Tolerates Discrimination

On Monday morning, the US Supreme Court made its first significant ruling on abortion since its 2007 decision on the Partial-Birth Abortion Ban Act, supporting clinics’ rights to litigate against state regulations that have no medical basis. Though the resolution is to be celebrated by liberals as a victory for abortion accessibility, Justice Clarence Thomas’s dissent should leave the left wary of future decisions protecting states’ rights to target politically unfavorable constituents in a more conservative court.

Thomas argues that the SCOTUS majority should not have been able to rule on the case because it is the women’s rights that are being infringed, not the plaintiffs’—the doctors’—rights. He says, “when the wrong party litigates a case, we end up resolving disputes that make for bad law,” thereby refusing to acknowledge doctors as legitimate plaintiffs for patients, even when they had a substantial stake in the case as practitioners of abortion procedures.

Such superficial legal ploys are entirely representative of the remainder of his dissent. He believes that today’s law has given precedent for the SCOTUS to apply different degrees of scrutiny selectively to determine the constitutionality of other laws, thereby allowing the courts to write law from the bench regardless of whether their logic is consistent with the Constitution. His standard for states’ rights to discriminate is remarkably poor: he says that the nonexistent medical utility of abortion regulations should not be considered in determining states’ enforcement of unconstitutional “undue burdens” placed on abortion. He goes even further, saying that in the event of disagreement between the medical community, courts, and states, the states have the responsibility to mediate the disputes.

These standards demonstrate astounding indifference to the realities faced by everyday women. Because of the relevant 2013 US Court of Appeals ruling, the number of abortion clinics in Texas halved, vastly extending the distances required for women to travel for an abortion. Vast populations of impoverished women have undoubtedly had their access to abortion substantially constrained by these restrictions, especially considering how 47% of Americans have trouble finding $400 for an emergency.

Any individual who faces the realities of the middle class recognizes that our finances significantly constrict our access to taxing activities like abortion. Yet Thomas refuses to acknowledge abortion regulations as a burden, for they do not directly restrict patients’ rights.

The medical community does not even see any merit in Texas’s restrictions: the mortality rate of abortions is miniscule—0.6 per 100,000 procedures, which is less than childbirth mortality of 8.8 per 100,000 procedures. According to UC San Francisco, abortions result in far fewer minor complications than routine procedures like wisdom tooth removals and tonsillectomies and only require blood transfusions 0.23% of the time.

By accepting deference to states’ regulations despite the dearth of medical utility associated with these abortion restrictions, Thomas has essentially argued that states may, and perhaps should, use pseudoscience as a ruse to enact legislation violating the rights of others. He endorses the world in which the state, and maybe doctors themselves, are forced to be complicit in proliferating lies on science so long as the legislature desires to do so. Even with near-universal disapproval of Texas’s regulations in the scientific community, where the marginal benefit of the laws is zero beyond conservative politics, an “undue burden” does not seem to constitute anything less than an outright prohibition.

Conservatives’ consistent inability to acknowledge the role of systemic, though indirect, restrictions on rights shallowly conceals their culture war beneath the pretense of strict constructionism. As long as justices like Clarence Thomas remain on the bench, liberals cannot remain politically complacent on the state level and rely solely on the courts and Congress to fight on women’s behalf. It is clear that conservative judges like Thomas are willing to permit subterfuge in the sciences and rely on indirect consequences, like the severe financial strain on patients as abortion clinics are closed, to shape societies to fit their politics.

Anhvinh Doanvo is a 2016 finalist for the US Department of State’s Graduate Thomas R. Pickering Foreign Affairs Fellowship and an MSPPM candidate at Carnegie Mellon University.
More articles by:

January 21, 2019
W. T. Whitney
New US Economic Attack Against Cuba, Long Threatened, May Hit Soon
Jérôme Duval
Macronist Repression Against the People in Yellow Vests
Dean Baker
The Next Recession: What It Could Look Like
Eric Mann
All Hail the Revolutionary King: Martin Luther King and the Black Revolutionary Tradition
Binoy Kampmark
Spy Theories and the White House: Donald Trump as Russian Agent
Edward Curtin
We Need a Martin Luther King Day of Truth
Bill Fried
Jeff Sessions and the Federalists
Ed Corcoran
Central America Needs a Marshall Plan
Colin Todhunter
Complaint Lodged with European Ombudsman: Regulatory Authorities Colluding with Agrochemicals Industry
Manuel E. Yepe
The US War Against the Weak
Weekend Edition
January 18, 2019
Friday - Sunday
Melvin Goodman
Star Wars Revisited: One More Nightmare From Trump
John Davis
“Weather Terrorism:” a National Emergency
Jeffrey St. Clair
Roaming Charges: Sometimes an Establishment Hack is Just What You Need
Joshua Frank
Montana Public Schools Block Pro-LGBTQ Websites
Louisa Willcox
Sky Bears, Earth Bears: Finding and Losing True North
Robert Fisk
Bernie Sanders, Israel and the Middle East
Robert Fantina
Pompeo, the U.S. and Iran
David Rosen
The Biden Band-Aid: Will Democrats Contain the Insurgency?
Nick Pemberton
Human Trafficking Should Be Illegal
Steve Early - Suzanne Gordon
Did Donald Get The Memo? Trump’s VA Secretary Denounces ‘Veteran as Victim’ Stereotyping
Andrew Levine
The Tulsi Gabbard Factor
John W. Whitehead
The Danger Within: Border Patrol is Turning America into a Constitution-Free Zone
Dana E. Abizaid
Kafka’s Grave: a Pilgrimage in Prague
Rebecca Lee
Punishment Through Humiliation: Justice For Sexual Assault Survivors
Dahr Jamail
A Planet in Crisis: The Heat’s On Us
John Feffer
Trump Punts on Syria: The Forever War is Far From Over
Dave Lindorff
Shut Down the War Machine!
Glenn Sacks
LA Teachers’ Strike: Student Voices of the Los Angeles Education Revolt  
Mark Ashwill
The Metamorphosis of International Students Into Honorary US Nationalists: a View from Viet Nam
Ramzy Baroud
The Moral Travesty of Israel Seeking Arab, Iranian Money for its Alleged Nakba
Ron Jacobs
Allen Ginsberg Takes a Trip
Jake Johnston
Haiti by the Numbers
Binoy Kampmark
No-Confidence Survivor: Theresa May and Brexit
Victor Grossman
Red Flowers for Rosa and Karl
Cesar Chelala
President Donald Trump’s “Magical Realism”
Christopher Brauchli
An Education in Fraud
Paul Bentley
The Death Penalty for Canada’s Foreign Policy?
David Swanson
Top 10 Reasons Not to Love NATO
Louis Proyect
Breaking the Left’s Gay Taboo
Kani Xulam
A Saudi Teen and Freedom’s Shining Moment
Ralph Nader
Bar Barr or Regret this Dictatorial Attorney General
Jessicah Pierre
A Dream Deferred: MLK’s Dream of Economic Justice is Far From Reality
Edward J. Martin
Glossip v. Gross, the Eighth Amendment and the Torture Court of the United States
Chuck Collins
Shutdown Expands the Ranks of the “Underwater Nation”
Paul Edwards
War Whores
FacebookTwitterGoogle+RedditEmail