by Tim Busch and Kevin Stidham—Another Supreme Court term has ended, and once again the court failed to revisit the question of abortion. In our time, it seems that abortion is discussed everywhere except the Supreme Court, where most justices seem intent to do anything to avoid the topic. And still, each passing term, the stain of Roe v. Wade seeps deeper, corroding our system of laws from within.
But one justice is unafraid of the abortion debate. Undismayed by the court’s inaction, Justice Clarence Thomas has masterfully sown together a compelling judicial case for overturning the central holding of Roe. As his nearly three-decade body of work shows, Thomas fights for the integrity of the judiciary, reasoning carefully and speaking powerfully. He knows that the court’s pattern of avoidance is unsustainable, and so he labors for the awaited day.
To understand Thomas’s legal reasoning, we must look to the foundations of America’s unique system of the rule of law. In our legal system, the Constitution is the highest authority of all, the “fundamental law” of the land. With amazing foresight, the Framers understood the need to have a reliable arbiter of this fundamental law. Therefore, the Constitution creates an independent judiciary with a single highest authority, the Supreme Court, composed of judges who are shielded from political vicissitudes by life appointments. The task of top judges could not be more important: in the words of Hamilton, it “belongs to them to ascertain [the Constitution’s] meaning.” The flip side is that judges cannot make the law, but rather interpret it.
Yet nothing better exemplifies arbitrary, judge-made law than Roe. In Roe’s majority opinion, Justice Harry Blackmun did not even pretend to be guided by the text of the Constitution. Instead of performing the duties the Framers assigned judges, Blackmun defied custom and decided to play doctor, spending an entire summer privately researching at the Mayo Clinic. Informed by his amateur research, a judge with no medical training looked to “medical standards” and “medical advances” to support his holding. Ultimately, Blackmun used the 14th Amendment to overturn a statute which had been in place at its adoption over 100 years prior, in turn creating a theretofore unknown constitutional right to abortion. So much for ascertaining the Constitution’s meaning.
Thomas often — and accurately — points out the errors that underlie Roe. In recent months, he authored two concurrences that confronted head-on the “aberration of constitutional law” which protects abortion from state regulation. Parting from the silence of his colleagues, Thomas highlights the horrific consequences of an abortion jurisprudence that “has spiraled out of control.”
When the Court let stand a 7th Circuit finding that it was unconstitutional for Indiana to prohibit abortion on the basis of race, sex or disability, Thomas alone had the courage “to address … [the] law at issue.” Knowing that eugenics inherently involves birth (the Greek roots mean “good birth”), Thomas demonstrates this country’s shocking history of attempting to prevent the “unfit” from being born. For example, in 1927 the Court supported forced sterilization of the “unfit” because “it would be better for all the world… [to] prevent… [them] from continuing their kind.” The significance is not lost on Thomas, who notes this puzzling conundrum: through its Equal Protection Clause, the Constitution restricts state attempts to discriminate on the basis of race, sex or disability; yet, in furtherance of abortion, states must allow eugenic targeting of those same protected classes.
Thomas also condemned the court’s refusal to grant certiorari to an Alabama law prohibiting the live dismemberment of unborn children. Alone, Thomas grapples with the nature of the abortion procedure in question, a gruesome operation which kills second-trimester unborn children by tearing off their limbs, letting them bleed to death, and then sucking out their pieces with a vacuum. Thomas concludes with the shameful but undeniable truth: this is “the reality of what this Court has wrought.”
Justice Thomas knows the truth: The Supreme Court’s duty to revisit Roe cannot be simply avoided forever. By their very nature, unwritten, judicially invented abortion rights are irreconcilable with the individual protections guaranteed in the text of the Constitution. The court must eventually choose whether it reviews laws or creates them, whether it protects judicially invented rights or the Constitution’s individual rights.
Because of Roe, contradiction permeates through our system of laws. Our laws mandate accommodation for the disabled at the same time our government funds attempts to prevent the birth of those with disabilities; they say that gender cannot determine whether one is hired or fired, but allow it to determine whether an infant lives or dies; they ban discriminatory housing contracts, but enforce surrogacy contracts that mandate the killing of constitutionally protected classes.
Such contradictions demand resolution, just as innocent lives demand protection. A Constitution which protects affronts to human dignity cannot truly protect human dignity. Nearly 50 years after Roe, Thomas is our best hope for restoring the Supreme Court to the interpretation of law — and our nation to the inalienable right to life.
Tim Busch is the founder of the Napa Institute and the Busch Firm. Kevin Stidham is a summer associate at the Busch Firm and a third-year student at Cornell Law School.