Abortion is clearly a divisive issue in America, and it appears that division is making its way up to the highest court in the country, with Supreme Court Justices Clarence Thomas and Ruth Bader Ginsburg drawing the battle lines.
On Tuesday, the Court declined to weigh in on a lower court decision that blocked a certain provision of an Indiana abortion law. The provision in question banned abortions based on race, sex or disability.
Thomas, for his part, wrote in a 20-page concurrence that while the Court was right not to review that part of the law, the issues at hand must eventually be heard.
“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 duty bound to address its scope,” Thomas wrote.
“Given the potential for abortion to become a tool of eugenic manipulation, the Court will soon need to confront the constitutionality of laws like Indiana’s,” he added.
Ginsburg, on the other hand, wrote that she would have blocked the entire Indiana abortion law. The Court had upheld a separate provision of the legislation mandating that abortion providers dispose of the remains of aborted babies with dignity.
The lower court, she suggested, might not have even used the correct standard in reviewing the case.
“This case implicates ‘the right of [a] woman to choose to have an abortion before viability and to obtain it without undue interference from the State,'” she wrote, citing the Court’s landmark 1992 decision in Planned Parenthood v. Casey.
Ginsburg also wrote in the footnotes of her partial dissent that “a woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother.'”
This came in response to a footnote from Thomas, who had criticized her “difficult to understand” argument that “regulating the disposition of an aborted child’s body might impose an ‘undue burden’ on the mother’s right to abort.”
Thomas’ footnote, Ginsburg said, “displays more heat than light.”
The conflict within the Court on abortion may come to a head sooner rather than later, with CNN reporting Tuesday that the justices “are already looking at still another Indiana law that requires an ultrasound at least 18 hours before the procedure.”
Moreover, the Court may end up reviewing a Louisiana law that would leave the state with only one abortion clinic, according to The Associated Press.
It’s hard to say whether all this means Roe vs. Wade, the 1973 decision that legalized abortion nationwide, will ever be overturned by the Supreme Court.
But one thing is for certain: A storm is brewing within the Court.
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