Supreme Court Justice Clarence Thomas called for his colleagues to re-examine and potentially overturn rulings that protect gay marriage and access to birth control in an opinion concurring with Friday’s landmark decision ending federal abortion rights.
The conservative judge wrote that the court should “reconsider” other cases decided on the legal theory of “substantive due process”, including rulings that establish LGBTQ and contraceptive rights.
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” he wrote.
The 74-year-old justice was referring to a 1965 ruling, Griswold v. Connecticut, that allows married couples to access birth control. He’s also referencing a 2003 ruling, Lawrence v. Texas, that forbids states from outlawing consensual gay sex, and Obergefell v. Hodges, a 2015 decision that established a constitutional right to same-sex marriage.
Substantive due process refers to the notion that people have fundamental rights that aren’t specifically established in the Constitution.
The same legal argument was also used in Roe v. Wade and its sister case, Planned Parenthood v. Casey, which in 1992 upheld the right to abortion.
In the opinion Friday, Thomas acknowledged that the Dobbs v. Jackson Women’s Health Organization decision does not directly affect any rights aside from federal abortion access.
But he urged the court to apply the same “Due Process Clause” logic to other substantive landmark cases. The “Due Process Clause” refers to the statement that no one should be “deprived of life, liberty, or property, without due process of law,” which appears in both the 5th and 14th Amendments.
“Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents,” he wrote.
Later Friday, New York City Mayor Eric Adams ripped Thomas for his opinion, saying: “I believe this is a real plan to — look at all the things that they’ve been waiting to dismantle, taking place.”
“If we ignore that and believe this is just two issues that were handed out, this is not an overall plan, that’s a big mistake,” Hizzoner added. “If we ignore what happened to women today, it could happen to members of the LGBTQ+ community tomorrow, immigrants, voting rights, all these issues are in play.”
On Friday, the Supreme Court ended nearly 50 years of federal abortion rights, with Justice Samuel Alito writing an opinion in favor of Mississippi in the case of Dobbs v. Jackson Women’s Health.
In his opinion, Alito stressed that the ruling should not be applied to any issue besides abortion.
Get The Post’s latest updates following the Supreme Court’s decision to overturn Roe v. Wade.
“To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right,” he wrote.
Justice Brett Kavanaugh added in his concurrence, “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Kavanaugh wrote: “I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.”
