Editor’s Note: Be aware of the graphic description of abortion contained in the court decisions quoted below:
Lawmakers are restricting abortion in a number of states this year with the intent of provoking lawsuits that will reach the Supreme Court and overturn the 1973 Roe v. Wade ruling establishing a right to abortion.
That’s because President Trump has appointed two justices who have shifted the court to the right.
In addition, there is considerable scientific evidence of the personhood of the unborn that was not available in 1973. Even the author of the majority opinion in Roe, Associate Justice Harry Blackmun, admitted that if the personhood of the unborn where to be established, the premise of the ruling would collapse.
But the justices in recent months have sidestepped the issue several times. On Friday, one member chastised his colleagues for their avoidance.
“This case serves as a stark reminder that our abortion jurisprudence has spiraled out of control,” wrote Justice Clarence Thomas.
He was talking about a complaint against the 2016 Alabama law on the dismemberment of unborn children, which the lower courts struck down because of Supreme Court precedent. The Supreme Court declined to take up the case.
“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. … Today we are confronted with decisions requiring states to allow abortion via live dismemberment,” Thomas wrote.
“None of these decisions is supported by the text of the Constitution.”
Thomas quoted from the court of appeals, which said: “In this type of abortion the unborn child dies the way anyone else would if dismembered alive. It bleeds to death as it is torn limb from limb. It can, however, survive for a time while its limbs are being torn off … at the end of the abortion – after the larger pieces of the unborn child have been torn off with forceps and the remaining pieces sucked out with a vacuum – the abortionist is left with a tray full of pieces.”
Thomas explained the Alabama law did not prohibit abortion, but “it does prevent abortion providers from purposefully ‘dismember[ing] a living unborn child and extract[ing] him or her one piece at a time from the uterus through use of clamps, grasping forceps, tongs, scissors, or similar instruments’ that ‘slice, crush, or grasp … a portion of the unborn child’s body to cut or rip it off.'”
Thomas said: “The notion that anything in the Constitution prevents states from passing laws prohibiting the dismembering of a living child is implausible. But under the ‘undue burden’ standard adopted by this court, a restriction on abortion” even when the procedure is “gruesome” – “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…'”
He pointed out the appeals court even found the abortion standard was an “aberration of constitutional law” and recommended it be overturned.
WND reported the 11th U.S. Circuit Court of Appeals said it had to throw out the Alabama abortion restriction because of the Supreme Court’s precedent.
Chief Judge Ed Carnes lamented in his opinion that he was bound by precedent.
“In our judicial system, there is only one Supreme Court, and we are not it,” he wrote.
Judge Joel Dubina wrote separately to express his agreement with Thomas and Justice Antonin Scalia in Gonzales v. Carhart in which Thomas wrote, “I write separately to reiterate my view that the court’s abortion jurisprudence,” including in Planned Parenthood v. Casey and Roe v. Wade, “has no basis in the Constitution.”
When the case was at the 11th, the judges were revolted by the procedure.
They snarked that “a majority” of the Supreme Court “discovered that [abortion] right lurking somewhere in the ‘penumbras of the Bill of Rights’ as illuminated by the ‘concept of ordered liberty.'”
“In this type of abortion the unborn child dies the way anyone else would if dismembered alive. ‘It bleeds to death as it is torn limb from limb,'” the ruling said.
“It can, however, ‘survive for a time while its limbs are being torn off.'”
The 11th Circuit is not the only court to take the U.S. Supreme Court’s approach to abortion to task lately. About the same time as the 11th Circuit ruling, the Alabama Supreme Court ruled an unborn baby is a “person” under the law, and, consequently, causing the death of that person can be punished with execution.
Further, in a special concurrence, Justice Tom Parker called on the U.S. Supreme Court to revisit Roe v. Wade.
“I write specially to expound upon the principles presented in the main opinion and to note the continued legal anomaly and logical fallacy that is Roe v. Wade,” he said. “I urge the United States Supreme Court to overrule this increasingly isolated exception to the rights of unborn children.”
Parker affirmed the Alabama court’s rationale that “unborn children are persons entitled to the full and equal protection of the law.”
He asserted Roe is “without historical or constitutional support, carved out an exception to the rights of unborn children and prohibited states from recognizing an unborn child’s inalienable right to life when that right conflicts with a woman’s ‘right’ to abortion.”
“This judicially created exception of Roe is an aberration to the natural law … and common law of the states,” Parker said.
Thomas argued that court precedents that are “demonstrably erroneous” should be overturned.
That stance drew criticism from the left, including by members of the court.
The far-left Think Progress reacted with a piece headlined “Justice Thomas just admitted he wants to burn down the very idea that courts should obey precedent.”
“After nearly three decades on the Supreme Court – Thomas finally articulated his approach to stare decisis, the principle that courts should generally follow the rules announced in past decisions,” Think Progress said.
The piece said Thomas apparently believes that the court should “burn down any decision that five of its members do not like.”
But that is precisely the standard for the nine-member court, and many decisions are 5-4. It was only five justices who created same-sex marriage in 2015, despite, according to the dissenting opinion, the ruling’s lack of any connection to the U.S. Constitution.
WND reported the Congressional Research Service documented the justices have reversed themselves at least 141 times over their history.
“How the court uses precedent to decide controversial issues has prompted debate over whether the court should follow rules identified in prior decisions or overrule them,” the report said. “The court’s treatment of precedent implicates longstanding questions about how the court can maintain stability in the law by adhering to precedent under the doctrine of stare decisis, while correcting decisions that rest on faulty reasoning, unworkable standards, abandoned legal doctrines, or outdated factual assumptions.”
Those “outdated factual assumptions” are what worry pro-abortion activists.
The Roe justices said science wasn’t able in 1973 to conclude when personhood begins. But now it has been documented in multiple ways that the fetus is a separate, unique individual who, like a 3-year-old, eventually turns into an adult.
And there have been several efforts to amend existing law to recognize the humanity of the unborn, which would bestow all of the Constitution’s protections for individuals on the unborn.
The national pro-life group Susan B. Anthony List commented about the high court’s decision not to hear the Alabama case.
“Once again the Supreme Court has punted on abortion, this time refusing to take up Alabama’s humane law protecting unborn children from gruesome dismemberment abortions in which a child is torn apart, piece by piece. Unborn children and mothers will continue to be victimized by the abortion industry while the Court does nothing. Justice Thomas is absolutely right when he says: ‘This case serves as a stark reminder that our abortion jurisprudence has spiraled out of control … we cannot continue blinking the reality of what this Court has wrought.'”