“I remain fundamentally opposed to the Court’s abortion
jurisprudence. …It is tempting to identify the Court’s invention of a
constitutional right to abortion in Roe v. Wade, 410 U. S. 113, as the tipping
point that transformed third-party standing doctrine and the tiers of scrutiny
into an unworkable morass of special exceptions and arbitrary applications. But
those roots run deeper, to the very notion that some constitutional rights
demand preferential
treatment.
treatment.
…the Court has come full circle. The Court has simultaneously
transformed judicially created rights like the right to abortion into preferred
constitutional rights, while disfavoring many of the rights actually enumerated
in the Constitution. But our Constitution renounces the notion that some
constitutional rights are more equal than others. A plaintiff either possesses
the constitutional right he is asserting, or not—and if not, the judiciary has
no business creating ad hoc exceptions so
that others can assert rights that seem especially important to vindicate. A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment. Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.”
that others can assert rights that seem especially important to vindicate. A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment. Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.”
—Justice Thomas dissenting in “Whole Woman’s Health v.
Hellerstedt,” June 27, 2016
