• February 7, 2023

The Thomas court: Roe skeptic seizes moment during Supreme Court abortion hearing

 The Thomas court: Roe skeptic seizes moment during Supreme Court abortion hearing

Associate Justice Clarence Thomas sits with other Supreme Court judges for a new group photograph, Tuesday, Sept. 29, 2009, at the Supreme Court in Washington. (Charles Dharapak/AP)

Clarence Thomas is the only current justice who was on the bench when the Supreme Court reaffirmed its previous precedent legalizing abortion. Thomas dissented in 1992, his first year on the court. Now he’s a leading member among the court’s conservative bloc that could uphold the constitutionality of Mississippi’s 15-week abortion ban and, by extension, overturn Roe v. Wade.

Thomas on Wednesday asked a series of sharp questions as the Supreme Court considered Dobbs v. Jackson Women’s Health Organization. That’s his prerogative as the most senior Supreme Court justice, having been nominated in 1991 by President George H.W. Bush and confirmed by the Senate.

Thomas, part of the present 6-3 conservative majority court, has repeatedly called for overruling Roe v. Wade, issued in 1973, and Planned Parenthood v. Casey, issued “19 years later — the two cases that established and reaffirmed the rights of women to undergo legal abortion procedures.

During Wednesday’s arguments over Dobbs,Thomas questioned U.S. Solicitor General Elizabeth Prelogar on how the Constitution permits elective abortions.

“What is confusing is that if we were talking about the Second Amendment, I know exactly what we’re talking about. If we’re talking about the Fourth Amendment, I know what we’re talking about because it’s written, it’s there. What specifically is the right here that we’re talking about?” Thomas asked.

“I think that the court in those other contexts, with respect to those other amendments, has had to articulate what the text means and the bounds of the Constitutional guarantees,” Prelogar replied, later affirming she was referring to “the right of a woman, prior to viability, to control whether to continue with a pregnancy.”


While the majority of justices raised substantial doubts regarding the jurisprudence behind Roe, Thomas has historically been a critic of the landmark case as he notably voted to overturn it when the court considered Casey. Thomas also wrote a sharp dissent in 2000 when the court struck down Nebraska’s ban on “partial-birth abortion.”

The exchange between Thomas and the solicitor general boils down to “fundamentally different approaches to constitutional interpretation,” according to Jennifer Mascott, an assistant professor of law at Antonin Scalia Law School at George Mason University and a former law clerk to Thomas.

“I think Justice Thomas’s point is something more fundamental, that if you look at the clause of the 14th Amendment — that has been claimed as a mantle for an asserted abortion right — it’s the due process clause and says, ‘Nor shall any state deprive any person of life, liberty or property without due process of law,'” Mascott told the Washington Examiner. “And there’s no specific substantive right listed there at all.”

Thomas has been lauded by conservative political leaders over his jurisprudence regarding abortion.

“Take his jurisprudence on unborn life,” Senate Minority Leader Mitch McConnell said during a keynote speech in October, celebrating the justice’s third decade on the bench of the highest court. “Every time without fail, Justice Thomas writes a separate, concise opinion to cut through the 50-year tangle of made-up tests and shifting standards and calmly reminds everybody that the whole house of cards lacks a constitutional foundation.”

For Thomas, the chance to hear the case of Dobbs serves as a pinnacle moment to influence Supreme Court abortion decisions at a time when the court has been fortified by a strong conservative majority. Thomas has suggested the Mississippi-based case presents an opportunity to reexamine Roe and Casey, a view shared by other members of the court’s somewhat shifting conservative bloc, which can include Chief Justice John Roberts, along with Justices Samuel Alito, Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh.


“Our abortion precedents are grievously wrong and should be overruled,” Thomas wrote in his dissenting opinion in a 2020 decision that blocked a Louisiana abortion law critics said would close nearly every abortion procedure clinic in the state. “The Constitution does not constrain the States’ ability to regulate or even prohibit abortion.”

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