What follows is Justice Thomas's dissent in JUNE MEDICAL SERVICES L. L. C. ET AL. v. RUSSO, INTERIM SECRETARY, LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS @
https://www.supremecourt.gov/opinion...-1323_c07d.pdf, sans footnotes.
It is an argument that abortion right founded on a right to privacy is ill-found, unreasonable, and ought to be reversed.
It's public record and thus cited in full.
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JUSTICE THOMAS, dissenting....
II
Even if the plaintiffs had standing, the Court would still lack the authority to enjoin Louisiana’s law, which represents a constitutionally valid exercise of the State’s traditional police powers. The plurality and THE CHIEF JUSTICE claim that the Court’s judgment is dictated by “our precedents,” particularly Whole Woman’s Health. Ante, at 38 (plurality opinion); see also ante, at 2, 11–16 (ROBERTS, C. J., concurring in judgment). For the detailed reasons explained by JUSTICE ALITO, this is not true. Post, at 3–23 (dissenting opinion).
But today’s decision is wrong for a far simpler reason: The Constitution does not constrain the States’ ability to regulate or even prohibit abortion. This Court created the right to abortion based on an amorphous, unwritten right to privacy, which it grounded in the “legal fiction” of substantive due process, McDonald v. Chicago, 561 U. S. 742, 811 (2010) (THOMAS, J., concurring in part and concurring in judgment). As the origins of this jurisprudence readily demonstrate, the putative right to abortion is a creation that should be undone.
A
The Court first conceived a free-floating constitutional right to privacy in Griswold v. Connecticut, 381 U. S. 479 (1965). In that case, the Court declared unconstitutional a state law prohibiting the use of contraceptives, finding that it violated a married couple’s “right of privacy.” Id., at 486. The Court explained that this right could be found in the “penumbras” of five different Amendments to the Constitution—the First, Third, Fourth, Fifth, and Ninth. Id., at 484. Rather than explain what free speech or the quartering of troops had to do with contraception, the Court simply declared that these rights had created “zones of privacy” with their “penumbras,” which were “formed by emanations from those guarantees that help give them life and substance.” Ibid. This reasoning is as mystifying as it is baseless.
As Justice Black observed in his dissent, this general “right of privacy” was never before considered a constitutional guarantee protecting citizens from governmental intrusion. Id., at 508–510. Rather, the concept was one of tort law, championed by Samuel Warren and the future Justice Louis Brandeis in their 1890 Harvard Law Review article entitled, “The Right to Privacy.” 4 Harv. L. Rev. 193. Over 20 years after the Fourteenth Amendment was ratified and a century after the Bill of Rights was adopted, Warren and Brandeis were among the first to advocate for this privacy right in the context of tort relief for those whose personal information and private affairs were exploited by others. Id., at 193, 195–196, 214–220. By “exalting a phrase . . . used in discussing grounds for tort relief, to the level of a constitutional rule,” the Court arrogated to itself the “power to invalidate any legislative act which [it] find[s] irrational, unreasonable[,] or offensive” as an impermissible “interfere[nce] with ‘privacy.’” Griswold, supra, at 510, n. 1, 511 (Black, J., dissenting).
Just eight years later, the Court utilized its newfound power in Roe v. Wade, 410 U. S. 113 (1973). There, the Court struck down a Texas law restricting abortion as a violation of a woman’s constitutional “right of privacy,” which it grounded in the “concept of personal liberty” purportedly protected by the Due Process Clause of the Fourteenth Amendment. Id., at 153. The Court began its legal analysis by openly acknowledging that the Constitution’s text does not “mention any right of privacy.” Id., at 152. The Court nevertheless concluded that it need not bother with our founding document’s text, because the Court’s prior decisions—chief among them Griswold—had already divined such a right from constitutional penumbras. Roe, 410 U. S., at 152. Without any legal explanation, the Court simply concluded that this unwritten right to privacy was “broad enough to encompass a woman’s [abortion] decision.” Id., at 153.
B
Roe is grievously wrong for many reasons, but the most fundamental is that its core holding—that the Constitution protects a woman’s right to abort her unborn child—finds no support in the text of the Fourteenth Amendment. Roe suggests that the Due Process Clause’s reference to “liberty” could provide a textual basis for its novel privacy right. Ibid. But that Clause does not guarantee liberty qua liberty. Rather, it expressly contemplates the deprivation of liberty and requires only that such deprivations occur through “due process of law.” Amdt. 14, §1. As I have previously explained, there is “‘considerable historical evidence support[ing] the position that “due process of law” was [originally understood as] a separation-of-powers concept . . . forbidding only deprivations not authorized by legislation or common law.’” Johnson v. United States, 576 U. S. 591, 623 (2015) (opinion concurring in judgment) (quoting D. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789–1888, p. 272 (1985)). Others claim that the original understanding of this Clause requires that “statutes that purported to empower the other branches to deprive persons of rights without adequate procedural guarantees [be] subject to judicial review.” Chapman & McConnell, Due Process as Separation of Powers, 121 Yale L. J. 1672, 1679 (2012). But, whatever the precise requirements of the Due Process Clause, “the notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.” McDonald, 561 U. S., at 811 (opinion of THOMAS, J.).
More specifically, the idea that the Framers of the Fourteenth Amendment understood the Due Process Clause to protect a right to abortion is farcical. See Roe, 410 U. S., at 174–175 (Rehnquist, J., dissenting). In 1868, when the Fourteenth Amendment was ratified, a majority of the States and numerous Territories had laws on the books that limited (and in many cases nearly prohibited) abortion. See id., at 175, n. 1.7 It would no doubt shock the public at that time to learn that one of the new constitutional Amendments contained hidden within the interstices of its text a right to abortion. The fact that it took this Court over a century to find that right all but proves that it was more than hidden—it simply was not (and is not) there.
C
Despite the readily apparent illegitimacy of Roe, “the Court has doggedly adhered to [its core holding] again and again, often to disastrous ends.” Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 16). In doing so, the Court has repeatedly invoked stare decisis. See, e.g., Casey, 505 U. S., at 854–869. And today, a majority of the Court insists that this doctrine compels its result. See ante, at 40 (plurality opinion); ante, at 2, 11 (opinion of ROBERTS, C. J.).
The Court’s current “formulation of the stare decisis standard does not comport with our judicial duty under Article III,” which requires us to faithfully interpret the Constitution. Gamble, 587 U. S., at ___ (THOMAS, J., concurring) (slip op., at 2). Rather, when our prior decisions clearly conflict with the text of the Constitution, we are required to “privilege [the] text over our own precedents.” Id., at ___ (slip op., at 10). Because Roe and its progeny are premised on a “demonstrably erroneous interpretation of the Constitution,” we should not apply them here. 587 U. S., at ___ (THOMAS, J., concurring) (slip op., at 10). Even under THE CHIEF JUSTICE’s approach to stare decisis, continued adherence to these precedents cannot be justified. Stare decisis is “not an inexorable command,” ante, at 3 (internal quotation marks omitted), and this Court has recently overruled a number of poorly reasoned precedents that have proved themselves to be unworkable, see Knick v. Township of Scott, 588 U. S. ___, ___–___ (2019) (ROBERTS, C. J., for the Court) (slip op., at 20–23); Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S. ___, ___–___ (2019) (slip op., at 16–17); Janus v. State, County, and Municipal Employees, 585 U. S. ___, ___–___ (2018) (slip op., at 33–47). As I have already demonstrated, supra, at 14–17, Roe’s reasoning is utterly deficient—in fact, not a single Justice today attempts to defend it.
Moreover, the fact that no five Justices can agree on the proper interpretation of our precedents today evinces that our abortion jurisprudence remains in a state of utter entropy. Since the Court decided Roe, Members of this Court have decried the unworkability of our abortion case law and repeatedly called for course corrections of varying degrees. See, e.g., 410 U. S., at 171–178 (Rehnquist, J., dissenting); Doe v. Bolton, 410 U. S. 179, 221–223 (1973) (White, J., dissenting); Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 452–466 (1983) (O’Connor, J., dissenting); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, 785–797 (1986) (White, J., dissenting); Webster v. Reproductive Health Services, 492 U. S. 490, 532–537 (1989) (Scalia, J., concurring in part and concurring in judgment); Casey, 505 U. S., at 944–966 (Rehnquist, C. J., concurring in judgment in part and dissenting in part); id., at 979–1002 (Scalia, J., concurring in judgment in part and dissenting in part); Stenberg, 530 U. S., at 953–956 (Scalia, J., dissenting); id., at 980–983 (THOMAS, J., dissenting); Whole Woman’s Health, 579 U. S., at ___–___ (THOMAS, J., dissenting) (slip op., at 5–11). In Casey, the majority claimed to clarify this “jurisprudence of doubt,” 505 U. S., at 844, but our decisions in the decades since then have only demonstrated the folly of that assertion, see Stenberg, 530 U. S., at 953–956 (Scalia, J., dissenting); id., at 960–979 (Kennedy, J., dissenting); Whole Woman’s Health, supra, at ___–___ (THOMAS, J., dissenting) (slip op., at 5–11). They serve as further evidence that this Court’s abortion jurisprudence has failed to deliver the “‘principled and intelligible’” development of the law that stare decisis purports to secure. Ante, at 3 (opinion of ROBERTS, C. J.) (quoting Vasquez v. Hillery, 474 U. S. 254, 265 (1986)).
THE CHIEF JUSTICE advocates for a Burkean approach to the law that favors adherence to “‘the general bank and capital of nations and of ages.’” Ante, at 3 (quoting 3 E. Burke, Reflections on the Revolution in France 110 (1790)). But such adherence to precedent was conspicuously absent when the Court broke new ground with its decisions in Griswold and Roe. And no one could seriously claim that these revolutionary decisions—or Whole Woman’s Health, decided just four Terms ago—are part of the “inheritance from our forefathers,” fidelity to which demonstrates “reverence to antiquity.” E. Burke, Reflections on the Revolution in France 27–28 (J. Po$#@! ed. 1987).
More importantly, we exceed our constitutional authority whenever we “appl[y] demonstrably erroneous precedent instead of the relevant law’s text.” Gamble, supra, at ___ (THOMAS, J., concurring) (slip op., at 2). Because we can reconcile neither Roe nor its progeny with the text of our Constitution, those decisions should be overruled.