Tucked deep in a concurring opinion, Justice Clarence Thomas is asking for someone to bring him a case about reproductive rights so that he can get rid of them.
Justice Clarence Thomas really wants to overturn Roe v. Wade, and he's pleading for a case that will let him do so.
On Tuesday, the Supreme Court issued a decision in Box v. Planned Parenthood of Indiana and Kentucky. The decision covers two parts of an Indiana anti-choice law signed by then-Gov. Mike Pence.
The Court punted on dealing with the Indiana law as a whole. While they let take effect the part that says aborted fetuses must be cremated or buried, they declined to address a lower court's block of the other portion of the law, which forbids abortions based on race, sex, national origin, ancestry, or disability status. That part of the law remains blocked.
Thomas wrote a lengthy concurrence saying he agreed with the Court's decision, but wrote to address the "Sex-Selective and Disability Abortion Ban specifically." The bulk of the concurrence is devoted to a lengthy screed arguing that if such laws don't go into effect, abortion will become "a tool of modern-day eugenics."
Invoking eugenics — the idea that certain traits, including intelligence, are genetically predetermined — is a favorite trope of anti-choicers. They argue, as Thomas does here, that if the right to abortion exists, people will use it to abort, en masse, girls, children of color, and infants diagnosed in utero with disabilities like Down syndrome. There's no evidence at all that such a thing occurs in America.
That peculiar and uncalled-for discussion of eugenics obscures the real thrust of Thomas' concurrence: He wants someone to bring the Court an abortion case that he and his fellow anti-choice justices can use to overturn Roe:
Although the Court declines to wade into these issues today, we cannot avoid them forever. Having created the constitutional right to an abortion, this Court is dutybound to address its scope. [...] The Constitution itself is silent on abortion.
This is disingenuous, and Thomas knows it. The Constitution is silent on many things. It did not foresee every idea or challenge the American people would face. That's why we have courts — to give us a modern-day understanding of how the constitution applies. And the Supreme Court has already addressed the idea of whether abortion is constitutional, first in Roe v. Wade and then in several cases after that.
There is no need for the Supreme Court to "wade into" the issue of abortion to "address its scope." It did so long ago. What Thomas is saying here is that he wants a case to overturn Roe, and he's already signaled, in another opinion, that he'd willfully ignore Supreme Court precedent to do so.
Thomas likely won't have to wait long. Alabama's extreme anti-choice ban was explicitly designed to get the state sued and get the Court to take a case about whether to uphold the law. Several other states have passed bans that prohibit abortion at such an early point many people may not yet know they're pregnant.
All of these are utterly unconstitutional under Roe, but that's no obstacle to Thomas. Eventually, he'll get the case he wants. Given that the makeup of the Court now includes hard-line anti-choicers like Justices Brett Kavanaugh and Neil Gorsuch, Thomas may be the architect of gutting or overturning pro-choice laws in America.
Published with permission of The American Independent Foundation.