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Justice Thomas Stumps Abortion Lawyer: ‘What Specifically Is the Right Here?’

'Is it specifically abortion? Is it liberty? Is it autonomy? Is it privacy?'

The Supreme Court heard oral arguments in Dobbs v. Jackson this week, which challenges a Mississippi law that bans the majority of abortions after 15 weeks of pregnancy.

Elizabeth Prelogar, U.S. solicitor general, disputed the law, saying that in Roe v. Wade the Supreme Court “correctly recognized that the Constitution protects a woman’s fundamental right to decide whether to end a pregnancy before viability.”

“The court has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society,” she concluded. “The court should not overrule this central component of women’s liberty.”

Justice Clarence Thomas pressed Prelogar particularly hard on what she was defending specifically:

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“Is it specifically abortion? Is it liberty? Is it autonomy? Is it privacy?” Thomas asked.

“The right is grounded in the liberty component of the 14th Amendment, Justice Thomas,” Prelogar said, in reference to what is commonly referred to as the due process clause.

“But I think that it promotes interest in autonomy, bodily integrity, liberty and equality,” she continued. “And I do think that 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 responded: “I understand we’re talking about abortion here. But what is confusing is that we—if we were talking about the 2nd Amendment, I know exactly what we’re talking about. If we’re talking about the 4th Amendment, I know what we’re talking about, because it’s written, it’s there. What specifically is the right here that we’re talking about?”

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Prelogar seemed to fumble while trying to explain how the so-called right to an abortion might be directly interpreted from a strictly textual reading of the Constitution and Bill of Rights.

Instead, she maintained that all of the current rights under US law had been interpolated to some extent, even those specifically enumerated.

“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 in the bounds of the constitutional guarantees,” Prelogar continued. “And it’s done through a variety of different tests that implement 1st Amendment rights, 2nd Amendment rights, 4th Amendment rights.”

“So the right specifically is abortion?” Thomas asked.

“It’s the right of a woman prior to viability to control whether to continue with a pregnancy, yes,” Prolegar responded.

“Thank you,” said Thomas, ending that portion of his questioning.

The pro-life justices sitting on the Supreme court have been making indications that they’ll approve the proposed abortion limits. The future of Roe v. Wade is still unclear.

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