Supreme Court Justice Clarence Thomas suggested the court should reconsider rights like birth control and same sex marriage in future decisions, after the court overturned Roe v. Wade and the federal right to an abortion Friday, upending decades of precedent.
The Supreme Court entirely overturned Roe, a 1973 decision that declared abortion a federally protected right under the Fourteenth Amendment, which says states can’t deprive people of “life, liberty or property, without due process of law,” ruling abortion is not actually protected under those due process rights.
Justice Samuel Alito said in the court’s opinion that its ruling Friday should only be applied to abortion and not other rulings the court has made based on due process rights, like Obergefell v. Hodges, which affirmed the right to same-sex marriage, and Griswold v. Connecticut, which guaranteed a constitutional right to privacy and the right for married couples to use contraceptives.
In a concurring opinion, Thomas agreed that this ruling itself does not apply to other cases, as “the court’s abortion cases are unique” and justices only considered this one set of circumstances, rather than rights granted through “substantive due process” as a whole.
But Thomas said the court “should consider” these other precedents in future cases, saying that Obergefell, Griswold and Lawrence v. Texas—which affirmed the right to sexual intimacy between same-sex couples—were also “erroneous” and the court has “a duty to ‘correct the error’ established in those precedents.”
Thomas argued that using the due process clause to uphold these rights is a “legal fiction” that’s “particularly dangerous,” and believes the court should issue a ruling saying the court cannot grant civil rights using that legal argument.
In their dissent, liberal Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor cast doubt on Alito’s assurance that the ruling only applies to abortion, writing “it is impossible to understand” how the “opinion today does not threaten … any number of other constitutional rights.”
“In future cases, we should ‘follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away,’” Thomas wrote in his concurrence. “Substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.”
“We cannot understand how anyone can be confident that today’s opinion will be the last of its kind,” the liberal justices wrote in their dissent, adding that even if “the majority is sincere in saying, for whatever reason, that it will go so far and no further … the future significance of today’s opinion will be decided in the future.”
The Supreme Court issued its ruling overturning Roe v. Wade Friday following weeks of anticipation that it would do so, after Politico leaked a draft opinion from February showing a majority of justices were in favor of overturning the 1973 precedent entirely. The draft opinion had already set off speculation that other constitutional rights could follow, with President Joe Biden saying, “Mark my words: They are going to go after the Supreme Court decision on same-sex marriage.” Numerous legal experts have warned same-sex marriage rights are likely to be targeted after the Supreme Court overturned Roe, along with the fundamental privacy rights and contraception rights granted in Griswold, and some GOP politicians including Sen. Marsha Blackburn (R-Tenn.) have already said they want Republicans to go after that precedent. Though Thomas didn’t target it by name, legal experts have also suggested Loving v. Virginia, which legalized interracial marriage, could also be at risk as it relied on the same precedent. Thomas’ comments come after the conservative-leaning justice had already pushed for the court’s precedent in Obergefell to be reconsidered before, with him and Alito writing in October 2020 that the same-sex marriage ruling “threaten[s] religious liberty” and the court should “fix” the problem it created with its decision.
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