The Supreme Court declined Friday to review the legality of an Alabama law banning abortions that involve the dismemberment of a fetus.
The justices didn’t give a reason for declining the case, but Justice Clarence Thomas wrote an opinion saying that while he didn’t dissent, the court will soon have to confront the messy framework it’s created for abortion in America.
He said the court’s precedents tilt heavily in favor of access to abortion over state interests — but said that’s becoming untenable. He said those sorts of balancing acts are “a quintessentially legislative function.”
“This case serves as a stark reminder that our abortion jurisprudence has spiraled out of control,” he wrote, adding the Constitution doesn’t support forcing states to allow dismemberment abortions or the abortion of a child based on race, sex or disability — another issue that had been presented to the court but rejected by the justices this year.
The case the court declined to get involved with a case on a 2015 law prohibiting dismemberment abortions, which account for roughly 99% of abortions done after 15 weeks.
Lower courts ruled that virtually eliminating that type of abortion placed an “undue burden” on a woman’s right to terminate a pregnancy before a fetus reaches viability.
“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,” Justice Thomas wrote.