Ruth Bader Ginsburg takes on Clarence Thomas in clash over abortion rights

May 29, 2019

In what the Daily Mail called a “battle of dueling footnotes,” Ruth Bader Ginsburg clashed with fellow Justice Clarence Thomas this week after the Supreme Court ruled 7-2 to uphold an Indiana law requiring that aborted fetuses receive a proper burial or cremation.

“I would have thought it could go without saying that nothing in the Constitution…prevents a State from requiring abortion facilities to provide for the respectful treatment of human remains,” Thomas wrote in his 20-page concurring opinion on the ruling. He went on to argue in a footnote that Ginsburg’s “dissent from this holding” — in which Ginsburg wrote that “Indiana’s law posed an undue burden” on a woman’s right to an abortion — “makes little sense.”

Ginsburg fired back by saying that her colleague’s footnote “displays more heat than light” and “overlooks many things.”

“A woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother,'” Ginsburg asserted.

A victory for life

The Supreme Court overturned a ruling from the Seventh Circuit Court of Appeals on Tuesday to uphold the Indiana law, which was signed by the state’s then-governor, Mike Pence. In addition to mandating humane disposal of aborted fetuses, the legislation prevents fetuses’ remains from being lumped in with so-called “infectious waste.”

“[The Supreme] Court has already acknowledged that a State has a ‘legitimate interest in proper disposal of fetal remains,'” the majority’s opinion reads. “The Seventh Circuit clearly erred in failing to recognize that interest as a permissible basis for Indiana’s disposition law.”

Justices John Roberts, Stephen Breyer, Samuel Alito, Elana Kagan, Neil Gorsuch, and Brett Kavanaugh signed off on that opinion, with Thomas concurring. Only Justices Ginsburg and Sonia Sotomayor disagreed with the ruling, which Pence lauded as a “victory for life.”

In her dissent, Ginsburg cited the 1992 landmark case Planned Parenthood v. Casey in arguing that “the cost of, and trauma potentially induced by, a post-procedure requirement” of a burial or cremation “may well constitute an undue burden” on a woman’s right to an abortion.

Thomas responded in his opinion that Ginsburg’s “argument is difficult to understand, to say the least—which may explain why even respondent Planned Parenthood did not make it. The argument also lacks evidentiary support,” he wrote.

Modern-day eugenics

But while the justices voted to let the provision mandating proper burials for unborn fetuses stand, they opted to let another part of the law go through a few more rounds of appeal before addressing it. According to Thomas, that section, which will not go into effect, “makes it illegal for an abortion provider to perform an abortion in Indiana when the provider knows that the mother is seeking the abortion solely because of the child’s race, sex, diagnosis of Down syndrome, disability, or related characteristics.”

He went on: “Put differently, this law and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”

By failing to rule on that provision, Thomas argued, the Supreme Court is merely putting off making their final decision.

“Having created the constitutional right to an abortion, this Court is dutybound to address its scope,” Thomas wrote. “Although the Court declines to wade into these issues today, we cannot avoid them forever.”

Indeed, with nearly two dozen abortion cases currently making their way through the court system, it looks like the battle on the Supreme Court bench is just getting started.

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Michelle E. Rawlings

Michelle Rawlings is Conservative Institute's managing editor. She holds a B.A. in English from Shenandoah University. Her award-winning writing has appeared in local newspapers and national web publications such as Red Alert Politics. Follow her on Twitter @MichelleRawlngs.