In two opinions issued late in the Supreme Court’s term just ended in which he “concurred” that the full Court should not hear the cases, Justice Clarence Thomas decried the current state of the Court’s abortion precedent, railing that “we cannot continue blinking the reality of what this Court has wrought.” What it has wrought, according to Justice Thomas, is a jurisprudential jumble that has “spiraled out of control” and is “made up of whole cloth,” completely untethered to the text of the Constitution, not to mention inconsistent with precedent in other fields.
Harris v. West Alabama Women’s Center (No. 18-837, June 28, 2019), presented the Court with an Alabama statute that had prohibited, not all abortions, but abortions by the grisly process of dismemberment of the unborn child while still in the womb. Box v. Planned Parenthood (No. 18–483, May 28, 2019) involved an Indiana statute that prohibited abortions because of the race, sex, or disability of the child. In both cases, the lower courts had found the statutes inconsistent with the Court’s abortion cases, and the states requested the Supreme Court to review and uphold the laws. The Court did not do so, but Justice Thomas in his concurring opinions left no doubt where he stood. His opinion in Box is a tour de force, focusing on the disability prong of the Indiana law and demonstrating the link between the eugenics movement that reached its climax in Nazi Germany and the abortion movement. He could have also pointed out in support of his thesis that, when courts strike down a statute prohibiting racial discrimination under the Fourteenth Amendment, the main purpose of which was to prevent racial discrimination, something is clearly out of whack. And as if an another example was needed, on cue, Justice Ginsburg in her solo Box opinion, dissenting to the Court’s per curiam decision upholding of the part of Indiana’s law that required aborted fetal remains to be treated with the dignity of human remains, claimed that a woman who is carrying a child she wishes to abort is “not a ‘mother.’”
The interesting question is why Justice Thomas decided to write these two concurrences when he agreed in the denials of review. Obviously, he would have granted review if he had been able to act by himself. After all, in another concurring opinion this past term, in Timbs v. Indiana (No. 17-1091, Feb. 20, 2019), he identified Roe v. Wade and Dred Scott as two of “the Court’s most notoriously incorrect decisions.” But it takes another four of his colleagues to join him if they want to overrule Roe or to scale back its progeny in a major way. Perhaps he wrote solely because of how deeply he feels about the subject. But perhaps he wrote because he senses the tide on the Court changing and wants to help push that change along by continuing to point out the human cost that the Court has unleashed.