The ruling had the makings of a compromise. The court effectively split the difference and, for now at least, kept abortion off its agenda in a presidential campaign season. Even Thomas begrudgingly conceded that maybe it was too soon for the court to get involved on whether women should be prevented from having abortions if the doctor thinks disability, race, or gender is the reason. But he still wanted to take the opportunity to stigmatize abortion and people who have them. He issued a 20-page, furious disquisition on the history of eugenics, birth control (yes, birth control), and abortion, effectively inviting legislators to pass more laws like Indianas so the court can properly jump into that fray. Enshrining a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, Thomas wrote, would constitutionalize the views of the 20th-century eugenics movement.
He also took aim at Ginsburg, who wrote a partial dissent arguing that the court shouldnt have allowed the fetal-remains law to go into effect, because it violated womens rights. Justice Ginsburgs dissent from this holding makes little sense, Thomas complained in a footnote to an extraordinary 20-page rant on abortion and eugenics, adding that her argument is difficult to understand. Ginsburg replied to Thomass footnote with her own footnote, saying it displays more heat than light, and overlooks many things.
Anywhere else, this might be tea and crumpets, but at the Supreme Court, it means war. In the past few weeks, that war has been between visibly furious liberal justices, and Thomas, whose default mode is bitterness. Witness the normally cool-blooded Justice Stephen Breyers dour, unmistakably abortion-related warning just a few weeks ago that the court was too eager to overturn precedent and his earlier fury at how the court handled a death-penalty case. As for Ginsburg, even when she deploys the dissent collar, she rarely attacks her colleagues work so directly.
It is common knowledge that Thomas is the most outspoken justice that hates Roe v. Wade. I wonder if he would feel differently had he gotten Anita Hill pregnant.