Justice Clarence Thomas. (Photo: Diego M. Radzinschi/ ALM)

On the same day that abortion-rights advocates filed a federal lawsuit challenging Georgia's new statute, Georgia-born U.S. Supreme Court Justice Clarence Thomas painted a graphic picture of the procedure in question and made clear his eagerness to revisit the precedent that makes it legal.

Thomas on Friday concurred with the court's decision not to review an Alabama abortion law appeal. That denial lets stand the U.S. Court of Appeals for the Eleventh Circuit's decision last year, which upheld a district judge who blocked enforcement of the law.

In his separate concurrence, though, Thomas foreshadowed drama to come.

“This case serves as a stark reminder that our abortion jurisprudence has spiraled out of control,” Thomas said. “Although this case does not present the opportunity to address our demonstrably erroneous 'undue burden' standard, we cannot continue blinking the reality of what this Court has wrought.”

Thomas was talking about Roe v. Wade, the 1973 landmark decision supporting a constitutional right to choose abortion before the point of fetal viability. He was also talking about Planned Parenthood of Southeastern Pennsylvania v. Casey, which held that restrictions on abortion could not place an “undue burden” on a woman's access to medical services. And he mentioned a case from this term, Box v. Planned Parenthood of Indiana and Kentucky.

“We were confronted with lower court decisions requiring States to allow abortions based solely on the race, sex, or disability of the child,” Thomas said of Box—which sent him off associating abortion rights advocates with proponents of forced sterilization.

Andrea Young, executive director of the American Civil Liberties Union of Georgia—which represents the reproductive justice groups challenging Georgia's abortion ban—said the Thomas special concurrence in Box defied logic because proponents of eugenics were less in favor of abortion and more inclined to select certain women to reproduce.

“If the government were forcing sterilization or pregnancy termination, we would be the first one to oppose that,” Young said. “This is about who gets to decide. This is about freedom.”

The abortion ban passed in Georgia and a dozen states draws a line very early in pregnancy: as soon as an embryonic pulse can be picked up with an ultrasound. Proponents of the ban call it a heartbeat bill. Opponents say that name is deliberately misleading because the ban comes long before a heart is formed. Alabama passed a ban this year that went even further, outlawing all abortions and making no exceptions for rape or incest. The latest law has already been blocked by a federal judge, with the state's appeal to come.

The Alabama appeal that riled Thomas on Friday deals with a procedure performed later in pregnancy, called a “dismemberment abortion.”

“The law does not prohibit women from obtaining an abortion, but it does prevent abortion providers from purposefully 'dismember[ing] a living unborn child and extract[ing] him or her one piece at a time from the uterus,'” Thomas wrote, describing the procedure in graphic detail and quoting extensively from the Eleventh Circuit opinion last year written by Chief Judge Ed Carnes, citing West Alabama Women's Center v. Williamson, 900 F. 3d 1310, 1319–1320 (CA11 2018).

“As the Court of Appeals explained, this method of abortion is particularly gruesome: 'In this type of abortion the unborn child dies the way anyone else would if dismembered alive,'” Thomas wrote, again quoting Carnes.

After weighing the arguments, Carnes wrote that all of the findings “support the conclusion that the law would 'place a substantial obstacle'” in the path of women seeking abortions before the fetus attains viability, which Supreme Court precedent says are permitted. “In our judicial system,” Carnes wrote, “there is only one Supreme Court, and we are not it.”

Thomas moved on to Whole Woman's Health v. Hellerstedt, (2016), quoting Casey (1992).

“The notion that anything in the Constitution prevents States from passing laws prohibiting the dismembering of a living child is implausible,” Thomas said. “But under the 'undue burden' standard adopted by this Court, a restriction on abortion—even one limited to prohibiting gruesome methods—is unconstitutional if 'the 'purpose or effect' of the provision 'is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.'”

Planned Parenthood Southeast CEO Staci Fox said Friday at a news conference outside federal court in Atlanta that her organization is pleased with the high court's denial of cert in the West Alabama Women's Center Case.

“The state of Alabama owes the ACLU $2 million for defending the case,” she said, adding that the state doesn't have that to spare.

That led ACLU of Georgia Legal Director Sean J. Young to note that the lawsuit he filed Friday to block the Georgia ban also calls for legal fees.

“Why are Georgia politicians wasting taxpayers' money on these bills?” Young asked, noting the money could be used other ways.

The ACLU—the national organization and its Alabama affiliate—challenged the law on behalf of abortion providers and their patients, including West Alabama Women's Center.

“The restriction made it a crime for physicians to provide dilation and evacuation (D&E) abortions, the only abortion method available in Alabama after 15 weeks of pregnancy,” the ACLU of Alabama said in a news release Friday. “Despite opposition from leading medical experts including the American College of Obstetricians and Gynecologists, as well as losing at the federal district court and the Eleventh Circuit Court of Appeals, Alabama Attorney General Steve Marshall continued to defend this legislation.”

ACLU of Alabama Executive Director Randall C. Marshall said he wasn't surprised by the Supreme Court's decision to deny review, since the justices are only upholding their own precedent.

“We have warned the state of Alabama that these lawsuits are likely to lose in court, but despite these warnings, the state has tried to insert government into overruling expert medical decisions,” Marshall said. “Now the state will have to pay millions of taxpayer dollars, at a time when the state is struggling to pay for education, rural health care, roads, prisons, and more.”

But Alabama Attorney General Steve Marshall took comfort in what Thomas had to say Friday.

“I am disappointed that the United States Supreme Court has decided not to hear Alabama's appeal of a lower-court decision that invalidated our state law, enacted in 2016, prohibiting dismemberment abortion—a method of killing an unborn child that cannot be described in even the most clinical of terms to hide its monstrosity and gruesomeness,” Marshall said.

But the AG acknowledged, “This case would not have, however, accomplished by itself what needs doing: overturning Roe and its unconstitutional progeny.” And he knows he and a dozen or so other state AGs have appeals pending for more restrictive abortion bans. So he turned again to Thomas.

“Writing about our case, Justice Thomas stated: 'The notion that anything in the Constitution prevents states from passing laws prohibiting the dismembering of a living child is implausible. … This case serves as a stark reminder that our abortion jurisprudence has spiraled out of control,'” Marshall said. “I believe that the day of reckoning for Roe is coming.”