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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.
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