By Siena Hoefling | Renew America | July 23, 2019

Justice Clarence Thomas recently said that all pro-life regulatory laws are useless in overturning Roe v. Wade.

Not in so many words. But you may have heard that Justice Thomas joined progressives on the Supreme Court June 28, 2019, in refusing to hear a case on dismemberment abortions. In rejecting Harris v. West Alabama Women's Center, Justice Thomas laid out the reason behind his vote. Thomas said he denied certiorari because nothing about the case asked the Court to revisit its precedent.

Said Thomas: "This case serves as a stark reminder that our abortion jurisprudence has spiraled out of control... [However,] this case does not present the opportunity to address our demonstrably erroneous 'undue burden' standard."

Many pro-lifers were upset at Thomas for not voting to take the case. Alabama had passed its dismemberment law back in 2016, undoubtedly on the assumption it would somehow "chip away" at Roe v. Wade by restricting a large number of abortions. As noted by the respondents in Harris, dismembering a child while alive in the womb is "the most commonly used second-trimester abortion method."

Justice Thomas agreed that "this method of abortion is particularly gruesome." This "method" of murder was described by him in grisly and unsympathetic detail. To accentuate the point, he quoted from another case: "[T]he unborn child dies the way anyone else would if dismembered alive" (emphasis added).

But a knowledge of the grisly nature of the crime was not enough to compel Justice Thomas to review – even though Thomas compared the child to "anyone else."

Just imagine for a moment that dismemberment was done to "anyone else" by the complicity of government. Dismembering a person alive would qualify as the worst possible "cruel and unusual punishment" – which is forbidden by the U.S. Constitution. We would never dream of requiring "death by dismemberment" of even the worst criminal in capital punishment cases. So how can the government countenance this unconstitutional, brutal act against an innocent child, who has done nothing but exist?

It would be insane to say that our Constitution protects criminals more than babies. Our Constitution states that its purpose is to benefit "posterity," and then by amendment it specifies: "No person shall be...deprived of life...without due process of law" (Fifth Amendment); "...nor shall any State deprive any person of life...without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" (Fourteenth Amendment).

Couldn't Thomas have simply asserted the personhood of the child and heard the case? The answer is, yes. He could have – and I would say he should have. The Constitution, after all, doesn't wait for the states to get it right before cases are heard. One reason we have a federal system, with courts, is to hold states in check when they violate the Constitution's express provisions, such as "nor shall any State deprive any person of life without due process of law."

But if a state wishes to compel the Court to "revisit Roe," as is claimed to be the goal of abortion bills, Thomas just told you the way to do that. Or more explicitly, Justice Harry Blackmun, back in 1973, told you how to undo his damage: treat the child in the womb the way you would any other person.

In Roe, Blackmun stated, "If this suggestion of personhood is established, [Roe's] case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [Fourteenth] Amendment."

Blackmun also noted that it's not enough to pass legislation that includes exceptions, or that denies due process. Blackmun found that if the child is a person, then even the life of the mother exception would run afoul of the Fourteenth Amendment because it denies due process. It would grant permission to the doctor to electively kill a child, at his sole discretion. To write even this exception into the law implies a lower estimation of the child, Blackmun indicated, because no person shall be deprived of life in such a manner.

"When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person," said Blackmun, "it faces a dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception always exists. The exception contained in [Texas] Art. 1196, for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother's condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment's command?"

Thus, according to Blackmun, abortion legislation must be completely devoid of exceptions, in order to challenge Roe. A state must change course and argue the child is a person. The only way to do that is to protect the child like "anyone else" (as Thomas implied).

Legislators seem to forget that exceptions and a denial of constitutionally-required equal protection gave us Roe v. Wade. The Texas law at issue in the 1973 case degraded the child by having an extremely low or non-existent penalty for murdering the child. Under the Texas code, doctors were given a mere 4-10 years in prison for intentionally killing the child, and the sentence was cut in half if the doctor murdered the child with the mother's consent. The core argument in Roe by Sarah Weddington was the claim that "in our state, the offense is not murder. It is an abortion, which carries a significantly lesser offense." She pointed out that women escaped penalty entirely, and were allowed DIY abortions. This aberration could only mean that even the state did not believe the child was a person, she said.

Blackmun agreed: "If the fetus is a person, why is the woman not a principal or an accomplice? Further, the penalty for criminal abortion specified by Art. 1195 is significantly less than the maximum penalty for murder prescribed by Art. 1257 of the Texas Penal Code. If the fetus is a person, may the penalties be different?"

The states' failure started abortion. And the same mistakes have fueled abortion for decades. Just this year, Texas H.B. 896 would have corrected the error that led to Roe. But that legislation was blocked in committee by a "pro-life" chairman, who had previously co-sponsored similar legislation, but was later pressured by "pro-life" leadership to repeat the error that gave us Roe and allow women to get away with murder, as though the child was not a person due equal protection.

Now we have Justice Thomas telling the states their old compromises aren't good enough. As recently as June 17, 2019, Thomas indicated a willingness to set aside "erroneous precedent" that contradicted the Constitution. (Gamble v. U.S., 2019) Two weeks later, Thomas used the word "erroneous" to describe the Court's abortion jurisprudence. But in refusing to hear the dismemberment case, Justice Thomas seemed to say, "If you're not going to treat the child in the womb as a person, why should the Court?"

Equal protection for every person – born or unborn, black or white, male or female, rich or poor – is constitutionally required of the states. Nothing in the Constitution excuses the states' negligence in this area. States shall protect the life of all persons – no choice in the matter – and the federal government is empowered "to enforce, by appropriate legislation," the provisions of the Fourteenth Amendment. States cannot allow abortion, because violating the right to life is "prohibited by [the Constitution] to the States." (Tenth Amendment)

Indeed, "to secure [this] right" is the chief reason the states were instituted. (Declaration of Independence, 1776.)

The same is true of the federal government and the American courts, explicitly. But even implicitly, governments everywhere have the duty to provide equal protection to all innocent persons, without exception. This is a self-evident legal principle, at it applies to posterity no less than to ourselves. For decades, Black's Law Dictionary has stated the following legal maxim:

"Qui in utero est pro jam nato habetur, quoties de ejus commodo quaeritur."

Translation: "He who is in the womb is held as already born, whenever a question arises for his benefit."

Equal protection for all, including posterity, is required by our life-protecting U.S. Constitution. Now let us act accordingly.

© Siena Hoefling