Reinvigorating “Defensive Crouch Liberal Constitutionalism” Part 2: Will Clarence Thomas Save Abortion Rights?

by Michael Dorf (cross-posted on Take Care Blog)

If the Senate confirms Judge Brett Kavanaugh to replace Justice Anthony Kennedy, the Supreme Court will almost certainly move to the right on a range of issues, most prominently abortion, where Kennedy wrote or joined key decisions upholding what he and two of his colleagues once called “the central holding” of Roe v. Wade. The post-Kennedy Court will cut back on the federal constitutional right to abortion and could well eliminate it entirely.

What then? Public discussion of a post-Roe future has assumed that the issue would “go back to the states.” Champions of abortion rights would be disappointed but not utterly defeated, as efforts might then focus on making transportation available from anti-abortion states to states where it is legal.

The US would look much like Ireland prior to its recent passage of a referendum liberalizing abortion regulation. Just as Irish women seeking abortions went to England, so women from Louisiana seeking abortions would travel to New York. Because the distances here are greater, abortion would be less accessible, especially to poor women, but laws banning public funding of abortion already make abortion all but impossible for many poor women in the US.

Yet what if the assumption of state-by-state regulation is wrong?

Current Supreme Court case law protects a right to abortion against excessive state regulation as part of the “liberty” guaranteed by the Fourteenth Amendment’s Due Process Clause. It protects abortion against excessive federal regulation under the Fifth Amendment’s Due Process Clause. The jurisprudence of the two Due Process Clauses is one and the same. Thus, a Supreme Court decision that overturns Roe would necessarily imply that there is no constitutional right to abortion applicable against either the states or the federal government. It would mean that Congress could ban abortion nationwide.

Would Congress do that? Maybe not. It would require not only a majority in the House of Representatives but 60 votes to overcome a Democratic filibuster in the Senate. But just as the Senate went “nuclear” to lower the threshold to end debate on appointments, so it could lower the threshold to a simple majority to end debate on ordinary legislation. If there is any issue where GOP grass-roots pressure is likely to push the Senate to do so, it is abortion.

Moreover, even if Congress could not muster the votes to enact a total ban on abortion, it might enact federal legislation restricting abortion to a much greater extent than liberal states currently restrict it. The House of Representatives has already passed a bill that would ban abortion after 20 weeks, substantially earlier in pregnancy than the point at which Roe allows. Should the high court further weaken or overturn Roe, expect legislation from Congress restricting access to abortion throughout the country.

To prevent that outcome, pro-choice voters must make their voices heard in congressional elections, but if they fail to do so in time, there is one person who could rescue abortion from restrictive nationwide laws: Justice Clarence Thomas might join the Supreme Court’s four Democratic appointees to invalidate such laws.

Justice Thomas is a highly unlikely hero of the pro-choice movement. He raised eyebrows when he told Senators during his 1991 confirmation hearing that he didn’t “remember personally engaging” in discussions of abortion as a law student in the 1970s. And since his appointment, Justice Thomas has never voted to invalidate any challenged abortion restriction. Just two years ago, in a case from Texas, he wrote: “I remain fundamentally opposed to the Court’s abortion jurisprudence.”  

Yet Justice Thomas has also indicated that he would like to see the power of Congress rolled back to its eighteenth-century foundations. Hence, in a 2005 case, he voted to strike down a federal law banning the local cultivation and use of marijuana, splitting with fellow conservative Justice Antonin Scalia. Most tellingly, when he joined the Court’s majority upholding the federal Partial Birth Abortion Ban Act in 2007, Justice Thomas emphasized that the Court’s ruling rejected a challenge based on the right to abortion but left open the possibility that the law might not be “a permissible exercise of Congress’ power under the Commerce Clause.”

Would Justice Thomas really strike down federal legislation restricting abortion? We may soon find out. Meanwhile, pro-choice groups should work hard to elect legislators who will protect abortion rights, and as a failsafe their lawyers should brush up on their states’ rights arguments. To paraphrase Donald Rumsfeld, you argue to the Supreme Court you have, not the one you might want or wish you had.

Note: The foregoing is Part 2 of a multi-part series on how liberal constitutional lawyers can use conservative arguments in the coming era of extremely conservative Supreme Court jurisprudence. Part 1 can be found here on this blog and also cross-posted on Take Care