Though President Joe Biden and Vice President Kamala Harris have signaled their intention to engage in a “whole-of-government” approach to fighting restrictions on abortion, a federal judge has just issued a blistering opinion in which he lays waste to very notion that any constitutional right to abortion even exists, as National Review notes.
In a partial dissent written in response to a ruling from the Sixth Circuit striking down two restrictions on abortion in the state of Tennessee, Judge Amul Thapar took aim at the holding in the landmark cases of Roe v. Wade and Planned Parenthood v. Casey and declared that those decisions “are wrong as a matter of constitutional text, structure, and history,” and that the jurisprudence that has flowed from them for decades is therefore fundamentally flawed.
In a 35-page explanation of the aforementioned stance, the judge pointed out nowhere in the actual wording of the Constitution does any discrete right to abortion exist, noting, “No one, including the Roe majority, contends that such a right exists in the text of the Articles of the Constitution. Instead, jurists and commentators point to the Bill of Rights or Fourteenth Amendment. But you won’t find the word “abortion” (or any equivalent) there either.”
Thapar acknowledged that a constitutional right may be found in the absence of explicit text creating it, provided that such a right is “deeply rooted” in the country’s “history, legal traditions, and practices,” adding that “this is a tough test to pass.”
Arguing that despite the herculean efforts of the majority in the Roe ruling, abortion is not a concept able to meet that high standard, Thapar added that the decision in that pivotal case relied on “suspect sources” marred by “historical errors.”
The conservative jurist also explained that in America’s earliest decades, there was no such thing as a right to abortion, and beyond that, “almost every state and territory had in fact passed laws limiting or prohibiting abortion by the end of the nineteenth century.”
Given that none of the justices who comprised the Roe majority ever cited a single instance of a state guaranteeing an affirmative right to abortion during the nation’s founding or during Reconstruction, Thapar asserted, the debate over its existence now ought to be moot.
Staking out the claim that it is now incumbent upon the U.S. Supreme Court to reverse Roe and “tow our jurisprudence back to the safe harbor of democratic legitimacy,” and rightly leave questions on restricting abortion access to state lawmakers who can “listen to the community, create fact-specific rules with appropriate exceptions, gather more evidence, and update their laws if things don’t work properly.”
Those who agree with Thupar’s assessment have real reason for optimism that the high court will do precisely that, as the justices are slated to hear a potentially pivotal Mississippi case next month that could serve to upend the questionable legal precedents that have facilitated the termination of millions upon millions of pregnancies in the intervening years.