The single worst idea to defend abortion rights from Brett Kavanaugh
Clarence Thomas is not your friend.
IAN MILLHISER
JUL 31, 2018, 8:00 AM
Sometime in the next few months, the Senate will vote on whether or not to kill Roe v. Wade. Judge Brett Kavanaugh, who Donald Trump nominated to replace retiring Justice Anthony Kennedy, is hostile to abortion rights and would join a Court that already has four anti-abortion votes.
Though there is some uncertainty about whether a Court with two Trump appointees would actually use the words “Roe v. Wade is overruled,” or whether it would simply uphold every abortion restriction presented to it while pretending that Roe remains good law, the result will be the same: if Kavanaugh is confirmed, expect abortion rights to end in many conservative states.
When this happens, anti-abortion groups will almost certainly push for a national ban — and, barring a massive realignment in America’s partisan coalitions, it is likely they will eventually have a Congress willing to enact such a law and a president willing to sign it. The question is what happens next.
A handful of pro-choice law professors have an out-of-the-box proposal: enlist Justice Clarence Thomas as an ally in the fight against a federal abortion ban. As Cornell professor Michael Dorf writes at Take Care, when Thomas “joined the Court’s majority upholding the federal Partial Birth Abortion Ban Act in 2007,” he also “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.’”
https://thinkprogress.org/justice-themas-roe-wade-theory/
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Thomas’ opinion took a third option. It struck down the California law, while claiming that laws requiring abortion providers to engage in anti-abortion speech are just fine and dandy. Thomas effectively held that abortion providers have fewer First Amendment rights than abortion opponents.
Asking the Court’s conservative bloc to be principled in an abortion case, in other words, is a dangerous game. And if litigants embrace the Thomas Gambit, millions of Americans are likely to get burned.
Federalist Society assholes .......................and the "Church doctrine"..................