Clarence Thomas: "What Specifically Is The Right" To Abortion In The Constitution? Where Is It Written? – RealClearPolitics

Supreme Court Justice Clarence Thomas asked U.S. Solicitor General Elizabeth Prelogar during arguments Wednesday on a new Mississippi abortion restriction where in the Constitution does she find the right to abortion.

"If we were talking about the Second Amendment, I know what we're talking about. Because it's written, it's there. What specifically is the right here [to abortion] that we're talking about?" he asked.

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SOLICITOR GENERAL ELIZABETH PRELOGAR: The right is grounded in the liberty component of the 14th Amendment, Justice Thomas. But I think it promotes interests in autonomy, bodily integrity, liberty, and equality. I think it is specifically the right to abortion here, the right of a woman to be able to control without the state forcing her to continue a pregnancy whether to carry that baby to term.

THOMAS: I understand we are talking about abortion here.

But what is confusing is that we -- if we were talking about the Second Amendment, I know exactly what we are talking about. If we're talking about the Fourth Amendment, I know what we're talking about because it's written. It is there. What specifically is the right here that we are talking about?

PRELOGAR: Well, Justice Thomas, I think that the court in those other contexts, with respect to those other amendments, has had to articulate what the text means and the bounds of the Constitutional guarantees. And it has done so through a variety of different tests that implement First Amendment rights, Second Amendment rights, and Fourth Amendment rights.

I don't think there is anything unprecedented or anomalous about the right that the court articulated in Roe and Casey, and the way it implemented that right by defining the scope of the liberty interest by reference to viability and providing that's the moment when the balance of interest tips and when the state can act to prohibit a woman from getting an abortion, based on its interest in protecting fetal life.

THOMAS: So the right, specifically, is abortion.

PRELOGAR: The right of a woman, prior to viability, to control whether to continue with a pregnancy, yes.

THOMAS: Thank you.

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Clarence Thomas: "What Specifically Is The Right" To Abortion In The Constitution? Where Is It Written? - RealClearPolitics