Since the constitutional right to abortion has been repealed, Supreme Court Justice Clarence Thomas said on Friday that landmark high court rulings that created gay rights and contraception rights should be revisited.
Thomas said that the rulings in question “were plainly erroneous decisions.”
He cited the Supreme Court decisions in Griswold vs. Connecticut (1965), in which it was ruled that married couples have the right to obtain contraceptives, Lawrence vs. Texas (2003), in which it was ruled that people have the right to engage in private sexual acts, and Obergefell vs. Hodges (2015), in which it was ruled that there is a right to same-sex marriage.
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Justice Clarence Thomas Says Contraception Rulings Should Be Reconsidered After Roe Is Overturned
Thomas’s call for a reexamination of those three cases has neither the force of law nor the authority to compel his other Supreme Court justices to follow suit.
However, it is an open invitation to conservative state legislators to pass legislation that conflicts with previous Supreme Court decisions in the hopes that the Court will reconsider its previous findings.
This is the strategy used by conservative lawmakers in several states, who enacted stringent abortion laws with the expectation that the Supreme Court would eventually hear a challenge to those laws and overturn federal protections for women seeking an abortion.
In effect, the Supreme Court overruled its own 1973 ruling in Roe v. Wade on Friday when it upheld a Mississippi statute restricting abortions in ways that went well beyond what had been allowed under Roe. Another judgment from the 1990s that established the constitutional right to abortion was also reversed.
In his concurring opinion, which sided with the conservative justices who voted to overturn Roe, Thomas explained why other precedents unrelated to abortion should also be reexamined.
“The Court well explains why, under our substantive due process precedents, the purported right to abortion is not a form of ‘liberty’ protected by the Due Process Clause,” of the U.S. Constitution’s Fourteenth Amendment, he wrote.
To quote the clause directly: “no state shall deprive any individual of life, liberty, or property without due process of law.”
Thomas claimed that this provision’s right to abortion “is not ‘deeply entrenched in this Nation’s history and tradition’ nor ‘implicit in the concept of ordered liberty.'”
The three cases Thomas now argues should be examined by the court “are not at issue” in the opinion reversing Roe on Friday, Thomas pointed out.
BREAKING: The Supreme Court just overturned Roe v. Wade, ending our constitutional right to abortion. We know you may be feeling a lot of things right now — hurt, anger, confusion. Whatever you feel is OK. We’re here with you — and we’ll never stop fighting for you.
— Planned Parenthood (@PPFA) June 24, 2022
But, he argued in his writing, that they are all grounded in different readings of the Due Process Clause.
He explained that they are predicated on the concept of “substantive due process,” which he had previously referred to as “an oxymoron that ‘lack[s] any validity in the Constitution.”
Thomas argued that the Constitution’s guarantee of due process in no way defines the “content” of a person’s right to life, liberty, or property.
While Thomas said that he agreed that nothing in the Roe-related ruling Friday “should be understood to cast doubt on precedents that do not concern abortion … in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
“Because any substantive due process decision is ‘demonstrably erroneous’ … we have a duty to ’correct the error’ established in those precedents,” Thomas added.
The three liberal justices on the Supreme Court were among the most vocal in their disagreement with Friday’s order, citing Thomas’ concurring opinion as one of several threats to individual liberties.
“We cannot understand how anyone can be confident that today’s opinion will be the last of its kind,” wrote the liberals, justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor.
“The first problem with the majority’s account comes from Justice Thomas’s concurrence — which makes clear he is not with the program,” the dissent said.
Liberals elaborated, stating that when Justice Thomas says that nothing in today’s judgment casts doubt on non-abortion precedents, he means only that they are not at issue in this precise case.
But when they’re ready, he tells us what he wants to do.
In future cases, he says, “we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.’ ” the dissent noted.
“And when we reconsider them? Then ‘we have a duty to “overrul[e] these demonstrably erroneous decisions.”
“So at least one Justice is planning to use the ticket of today’s decision again and again and again,” the dissent said.
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