Supreme Court Justice Ruth Bader Ginsburg and fellow Justice Clarence Thomas took shots at one another in dueling footnotes on an unsigned opinion Tuesday that let stand a lower court opinion that invalidated part of an Indiana law that said the state can ban abortions solely motivated by the race, sex or disability of the fetus.
The court did allow a provision requiring clinics to bury or cremate fetal remains to take effect.
Thomas warned his colleagues that they will have to deal with some of the issues soon and griped in a footnote that Ginsburg’s dissent in the fetal remains ruling, which was signed into law by Vice President Mike Pence while he was governor of Indiana, “makes little sense” because he disagreed that the case was a “waste” of court resources.
“JUSTICE GINSBURG does not even attempt to argue that the decision below was correct,” the conservative justice wrote. “Instead, she adopts Chief Judge Wood’s alternative suggestion that regulating the disposition of an aborted child’s body might impose an ‘undue burden’ on the mother’s right to abort that (already aborted) child.”
“This argument is difficult to understand, to say the least,” Thomas added, “which may explain why even respondent Planned Parenthood did not make it.
Ginsburg responded to Thomas in her own footnote.
“JUSTICE THOMAS’ footnote … displays more heat than light,” she wrote. “The note overlooks many things.”
Ginsburg noted that the court reviews judgments, not statements in opinions, and picked apart Thomas’s arguments.
“A woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother,’” Ginsburg wrote. “The cost of, and trauma potentially induced by, a post-procedure requirement may well constitute an undue burden … under the rational-basis standard applied below, (and) Planned Parenthood of Indiana and Kentucky had no need to marshal evidence that Indiana’s law posed an undue burden.”
Dueling footnotes from Justice Thomas and Justice Ginsburg in a Supreme Court decision that mostly OKs an Indiana law prescribing the disposal of fetal remains.
— Cristian Farias (@cristianafarias) May 28, 2019