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RBG, Clarence Thomas Use Footnotes To Throw Jabs Over Abortion

It’s no surprise that Supreme Court Justices Ruth Bader Ginsburg and Clarence Thomas don’t see eye to eye when it comes to abortion. But recent rulings took their dispute to a whole new level.

The justices exchanged jeers after a compromise decision on Tuesday regarding lawsuits challenging Indiana abortion laws brought by Planned Parenthood. The court agreed 7-2 (with Ginsburg and Justice Sonia Sotomayor in the minority) to uphold a statute requiring that the “remains” of an abortion or miscarriage be buried or cremated. But it also voted unanimously to keep an appellate court’s ruling that blocked regulations banning women from having an abortion after learning about a fetus’s gender, race or disability, The Washington Post explained.

While most of their rulings addressed the legal questions at hand, the justices’ footnotes took a strikingly personal tone. Thomas began his concurring opinion by calling out Ginsburg.

“Justice Ginsburg’s dissent from this holding makes little sense,” Thomas wrote in a 20-page document. “It is not a ‘waste’ of our resources to summarily reverse an incorrect decision that created a Circuit split.”

“Justice Thomas’ footnote … displays more heat than light,” Ginsburg responded in her dissent, adding a slam of Thomas’s language: “A woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother.’”

She also defended her opinion not to require women to bury the remains of an aborted fetus: “The cost of, and trauma potentially induced by, a post-procedure requirement may well constitute an undue burden.”

Thomas said the “argument is difficult to understand” and wasn’t brought up by Planned Parenthood before the lower court.

And he didn’t stop there — he dedicated much of his ruling to comparing abortion and birth control to the racist history of eugenics.

The argument is another example of the clear divide within the court over Roe v. Wade, the landmark 1973 decision protecting women’s rights to choose whether to have an abortion.

Alyssa Fisher is a writer at the Forward. Email her at, or follow her on Twitter at @alyssalfisher




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