Associate Justice Clarence Thomas poses during a gaggle photo of the Justices on the Supreme Court in Washington, April 23, 2021.
Erin Schaff | Pool | Reuters
Supreme Court Justice Clarence Thomas on Friday said landmark high court rulings that established gay rights and contraception rights ought to be reconsidered now that the federal right to abortion has been revoked.
Thomas wrote that those rulings “were demonstrably erroneous decisions.”
The cases he mentioned are Griswold vs. Connecticut, the 1965 ruling by which the Supreme Court said married couples have the suitable to acquire contraceptives; Lawrence v. Texas, which in 2003 established the suitable to interact in private sexual acts; and the 2015 ruling in Obergefell v. Hodges, which said there may be a right to same-sex marriage.
Thomas’ advice to reconsider that trio of choices doesn’t have the force of legal precedent, nor does it compel his colleagues on the Supreme Court to take the motion he suggested.
However it is an implicit invitation to conservative lawmakers in individual states to pass laws which may run afoul of the Supreme Court’s past decisions, with a watch toward having that court potentially reverse those rulings.
That’s the tack conservative lawmakers took in multiple states, where for years they passed restrictive abortion laws within the hopes that a challenge to them would reach the Supreme Court and open the door for federal abortion rights to be overturned because of this.
That scenario played out on Friday when the Supreme Court, in upholding a Mississippi abortion law that imposed much stricter restrictions on the procedure than those allowed by its 1973 decision in Roe v. Wade, overturned Roe altogether. Also overturned was one other case dating to the1990s that made clear there was a constitutional right to abortion.
Thomas, within the concurring opinion that he wrote siding with other conservative justices in voting to overturn Roe, cited the rationale for tossing out that call as he called for other old cases unrelated to abortion to be reconsidered.
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“The Court well explains why, under our substantive due process precedents, the purported right to abortion just isn’t a type of ‘liberty’ protected by the Due Process Clause,” of the U.S. Structure’s Fourteenth Amendment, he wrote.
That clause guarantees that no state shall “deprive any person of life, liberty, or property without due means of law.”
Thomas argued that the suitable to abortion under that clause “is neither ‘deeply rooted on this Nation’s history and tradition’ nor ‘implicit within the concept of ordered liberty.’ “
Thomas noted that the three cases he now says ought to be reconsidered by the court “aren’t at issue” in Friday’s ruling overturning Roe.
But, he wrote, all of them are based on interpretations of the Due Process Clause.
Specifically, he said, they’re based on the thought of “substantive due process,” which in a previous case he called “an oxymoron that ‘lack[s] any basis within the Structure.’ “
Thomas said the concept that the constitutional clause that guarantees only “process” for depriving an individual of life, liberty or property can’t be used “to define the substance of those rights.”
While Thomas said that he agreed that nothing within the Roe-related ruling Friday “ought to be understood to forged doubt on precedents that don’t concern abortion … in future cases, we must always 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 now an obligation to
‘correct the error’ established in those precedents,” Thomas added.
In a furious dissent to Friday’s ruling, the Supreme Court’s three liberal justices pointed to Thomas’ concurring opinion as one in all several dangers to individuals’ rights that flowed from the choice.
“We cannot understand how anyone may be confident that today’s opinion will likely be the last of its kind,” wrote the liberals, justices Stephen Breyer, Elena Kagan and Sonia Sotomayor.
“The primary problem with the bulk’s account comes from Justice Thomas’s concurrence — which makes clear he just isn’t with this system,” the dissent said.
“In saying that nothing in today’s opinion casts doubt on non-abortion precedents, Justice Thomas explains, he means only that they aren’t at issue on this very case,” the liberals continued.
“But he lets us know what he desires to do once they are. ‘[I]n future cases,” he says, ‘we must always reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.’ ” the dissent noted.
“And once we reconsider them? Then ‘we have now an obligation’ to “overrul[e] these demonstrably erroneous decisions.’ “
“So a minimum of one Justice is planning to make use of the ticket of today’s decision time and again and again,” the dissent said.