During Wednesday’s oral arguments before the Supreme Court on Dobbs v. Jackson Women’s Health Organization, Justice Clarence Thomas questioned the U.S. Solicitor General Elizabeth Prelogar on what specific right to abortion is protected by the Constitution as found in Roe v. Wade, comparing it to the Second Amendment and Fourth Amendment which specify the rights they are protecting in their text.
According to RealClearPolitics, Justice Thomas asked, “Would you specifically tell me, specifically state, what the right is? Is it specifically abortion? Is it liberty? Is it autonomy? Is it privacy?”
“The right is grounded in the liberty component of the 14th Amendment, Justice Thomas,” Prelogar stated. “But I think it promotes interests in autonomy, bodily integrity, liberty, and equality. I think it is specifically the right to abortion here, the right of a woman to be able to control without the state forcing her to continue a pregnancy whether to carry that baby to term.”
“I understand we are talking about abortion here,” Thomas said. “But what is confusing is that we — if we were talking about the Second Amendment, I know exactly what we are talking about. If we’re talking about the Fourth Amendment, I know what we’re talking about because it’s written. It is there. What specifically is the right here that we are talking about?”
“Well, Justice Thomas, I think that the court in those other contexts, with respect to those other amendments, has had to articulate what the text means and the bounds of the Constitutional guarantees,” Prelogar said. “And it has done so through a variety of different tests that implement First Amendment rights, Second Amendment rights, and Fourth Amendment rights.”
“I don’t think there is anything unprecedented or anomalous about the right that the court articulated in Roe and Casey, and the way it implemented that right by defining the scope of the liberty interest by reference to viability and providing that’s the moment when the balance of interest tips and when the state can act to prohibit a woman from getting an abortion, based on its interest in protecting fetal life,” she added.
“So the right, specifically, is abortion?” Thomas responded.
“The right of a woman, prior to viability, to control whether to continue with a pregnancy, yes,” Prelogar answered.
The case being argued, Dobbs v. Jackson Women’s Health Organization, is over a 2018 law in Mississippi that bans most abortions after 15 weeks of pregnancy. The Court’s decision could overturn the 1973 decision Roe v. Wade which forced states to allow abortions.