Justice Clarence Thomas Highlights Inconvenient Truths About ‘Undue Burden’ Standard

In two significant recent opinions, the Supreme Court justice has insisted that the legal problems associated with the current legal framework for abortion will have to be addressed, sooner or later.

Justice Clarence Thomas
Justice Clarence Thomas (photo: Steve Petteway, Collection of the Supreme Court of the United States)

Supreme Court Justice Clarence Thomas has been outspoken this term in arguing that the high court needs to revisit abortion precedents as it dodged a series of opportunities to do so. At the term’s conclusion, Thomas called for revisiting the “undue burden” standard by which the court analyzes whether or not a state can place restrictions on abortion access.

In two significant opinions, Justice Thomas outlined the consequences of the court’s current legal reasoning when it comes to abortion. Most recently, he concurred with the high court’s decision to reject Alabama’s attempt to ban second trimester dilation and evacuation abortions but took the opportunity to explain how this case showed problems with the court’s undue burden standard.

The abortion procedure at issue in that case involves dilating a patient’s cervix and using surgical instruments to forcibly remove and crush the unborn child. These procedures have been termed “dismemberment abortions” by their opponents.

Thomas noted the gruesomeness of the procedure, pointing out that the Alabama law did not “prohibit women from obtaining an 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.’”

He lamented that the Supreme Court’s “undue burden” standard, which arose from the 1992 Planned Parenthood v. Casey decision, resulted in the court permitting such abortion methods.

“The notion that anything in the Constitution prevents States from passing laws prohibiting the dismembering of a living child is implausible,” Thomas argued. “But under the ‘undue burden’ standard adopted by this Court, a restriction on abortion — even one limited to prohibiting gruesome methods — 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 before the fetus attains viability.’”

Thomas said that in this case abortion providers convinced “the District Court — despite mixed medical evidence — that other abortion methods were too risky, and the lower courts therefore held that Alabama’s law had the effect of burdening abortions even though it did not prevent them.”

This argument that balanced “moral concerns against the risks and costs of alternatives is a quintessentially legislative function,” Thomas argued, saying “the undue-burden standard is an ‘aberration of constitutional law.’”

He called the case “a stark reminder that our abortion jurisprudence has spiraled out of control.”

Thomas went on to reference another significant abortion case from earlier in the term, Box v. Planned Parenthood of Indiana and Kentucky, in which the court upheld “lower court decisions requiring States to allow abortions based solely on the race, sex, or disability of the child.” In this case, he argued, the undue burden standard also resulted in a decision that was not “supported by the text of the Constitution.”

In his opinion on that case in May, Thomas pointed out that “immutable characteristics” such as race, sex, and disabilities like Down syndrome, are known early in a pregnancy, and the law in question “prevents them from becoming the sole criterion for deciding whether the child will live or die.” This Indiana law, he argued, promoted “a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”

Thomas highlighted the origins of the abortion and birth control movements as well as abortion statistics to argue that “the use of abortion to achieve eugenic goals is not merely hypothetical.”

“Planned Parenthood founder Margaret Sanger recognized the eugenic potential of her cause,” he said. “Whereas Sanger believed that birth control could prevent ‘unfit’ people from reproducing, abortion can prevent them from being born in the first place. Many eugenicists therefore supported legalizing abortion, and abortion advocates—including future Planned Parenthood President Alan Guttmacher — endorsed the use of abortion for eugenic reasons.”

“With today’s prenatal screening tests and other technologies, abortion can easily be used to eliminate children with unwanted characteristics,” Thomas continued. “In Iceland, the abortion rate for children diagnosed with Down syndrome in utero approaches 100%. Other European countries have similarly high rates, and the rate in the United States is approximately two-thirds.”

He said that although the lower courts used Casey’s undue burden standard to side with Planned Parenthood in the Indiana case, there was a problem with that reasoning.

“Whatever else might be said about Casey, it did not decide whether the Constitution requires States to allow eugenic abortions,” he wrote. “It addressed the constitutionality of only ‘five provisions of the Pennsylvania Abortion Control Act of 1982’ that were said to burden the supposed constitutional right to an abortion.”

Thomas concluded his opinion in the case with a warning.

“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,” he emphasized. “In that regard, it is easy to understand why the District Court and the Seventh Circuit looked to Casey to resolve a question it did not address. Where else could they turn? The Constitution itself is silent on abortion.”

In June, Thomas critiqued the “stare decisis” legal doctrine of deferring to precedent, addressing the issue of upholding “demonstrably erroneous precedent” in Gamble v. United States, a case that was unrelated to abortion and examined the “double jeopardy” doctrine. He referenced abortion cases in his opinion.

“When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it,” Thomas argued. “The Constitution’s supremacy is also reflected in its requirement that all judicial officers, executive officers, Congressmen, and state legislators take an oath to ‘support this Constitution’ ... Notably, the Constitution does not mandate that judicial officers swear to uphold judicial precedents.”

Thomas cited Casey’s undue burden standard when he argued that “the Court’s multifactor balancing test for invoking stare decisis has resulted in policy-driven, ‘arbitrary discretion’ ... justifying whatever result five Members of the Court seek to achieve.”

He went on to cite Stenberg v. Carhart, a 2000 decision that prohibited the states from outlawing partial-birth abortion; that decision was overturned in 2007. In relation to that case, he argued that “the Court has doggedly adhered to these erroneous substantive-due-process precedents again and again, often to disastrous ends.”

When he dissented in that case in 2000, Thomas blasted the court’s application of the “undue burden” standard to “a method of abortion that millions find hard to distinguish from infanticide and that the Court hesitates even to describe.”

“The standard set forth in the Casey plurality has no historical or doctrinal pedigree,” he wrote at the time. “The standard is a product of its authors' own philosophical views about abortion, and it should go without saying that it has no origins in or relationship to the Constitution and is, consequently, as illegitimate as the standard it purported to replace.”

Justice Thomas is the only remaining Supreme Court Justice that was present during the 1992 Casey decision in which he joined with then-Chief Justice William Rehnquist’s dissenting opinion.

In that opinion Rehnquist wrote, “our constitutional watch does not cease merely because we have spoken before on an issue; when it becomes clear that a prior constitutional interpretation is unsound we are obliged to reexamine the question.”

Chief Justice John Roberts and Justice Samuel Alito were on the Court in 2007 and voted to uphold the ban on partial birth abortion but did not join with Justice Thomas and the late Justice Antonin Scalia in their concurring opinion in that case, which said Casey and Roe v. Wade have “no basis in the Constitution.”

The newest Justices Neil Gorsuch and Brett Kavanaugh have not had many opportunities to air their views on Casey and the “undue burden” standard. Justice Kavanaugh applied the undue burden standard, reaffirmed in Whole Women’s Health v. Hellerstadt, in his dissent in support of a Louisiana law requiring that abortion doctors have admitting privileges at a nearby hospital.

Kavanaugh stated, however, that the reason he was analyzing the standard under that precedent was because “all parties, including the state of Louisiana, agree that Whole Women’s Health is the governing precedent for purposes of the stay of this application.”

The Supreme Court will continue to reckon with the consequences of the Roe v. Wade and Planned Parenthood v. Casey decisions in the years ahead. Over the past year, many states have attempted to place significant restrictions on abortion access, while others have pushed to allow abortion without restriction as the climate has become increasingly polarized.