Associate Justice Clarence Thomas poses during a group photo of justices at the Supreme Court in Washington, April 23, 2021.
Erin Schaff | swimming pool | Reuters
Supreme Court Justice Clarence Thomas said Friday that landmark Supreme Court decisions establishing gay rights and contraceptive rights should be revisited now that the federal right to abortion has been repealed.
Thomas wrote that these rulings “were clearly in error”.
He mentioned the following cases: Griswold vs. Connecticut, a 1965 ruling in which the Supreme Court declared that married couples were entitled to contraceptives; Lawrence v. Texas, which established the right to engage in private sexual acts in 2003; and the 2015 ruling in Obergefell v. Hodges, which stated that there was a right to same-sex marriage.
Thomas’ recommendation to reconsider this trio of decisions has no legal precedent and does not oblige his colleagues on the Supreme Court to take the actions he proposed.
But it is an implicit invitation to conservative legislators in individual states to pass legislation that might conflict with past Supreme Court decisions, with the intention that that court could overturn those decisions.
This is exactly what conservative legislators have done in many states, where for years they have passed restrictive abortion laws in the hope that a challenge would be taken to the Supreme Court and open the door to repeal federal abortion rights as a result.
That scenario played out Friday when the Supreme Court, in upholding the Mississippi abortion law, which placed much stricter restrictions on the procedure than those allowed by its 1973 decision in Roe v. Wade, overturned Roe entirely. Another case was also dropped, dating back to the 1990s, which clearly showed that there was a constitutional right to abortion.
Thomas, in a concurring opinion he wrote while supporting other conservative judges in voting to overturn Roe, gave the rationale for overturning the decision as he called for other old non-abortion cases to be re-examined.
“The Court does a good job of explaining why, according to our substantial due process precedents, the purported right to have an abortion is not a form of “freedom” protected by the due process clause of the Fourteenth Amendment to the U.S. Constitution,” he wrote.
This clause guarantees that no state may “deprive anyone of life, liberty, or property without due process of law.”
Thomas argued that the right to abortion under this clause is “neither ‘rooted deep in the history and traditions of this nation’ nor ‘implied by the concept of orderly liberty’.” “
Thomas noted that the three cases he now says must be retried by the court are “not up for debate” in Friday’s ruling to overturn Roe.
But, he wrote, they are all based on an interpretation of the due process clause.
Specifically, he said, they are based on the idea of ”basic due process”, which he called “an oxymoron that is ‘missing'” in a previous case.[s] any basis in the Constitution.” “
Thomas said that the idea that a constitutional clause guaranteeing only the “process” of taking a person’s life, liberty, or property cannot be used “to determine the substance of those rights.”
While Thomas said he agrees that nothing in Friday’s ruling regarding Roe “should be taken to call into question non-abortion precedents … in future cases we should review all significant due process precedents of this Court, including Griswold, Lawrence and Obergefell”.
“Because any substantive judgment is “manifestly erroneous”… we are under an obligation
“fix the error” established in these use cases,” Thomas added.
In vehement disagreement with Friday’s decision, three liberal Supreme Court justices pointed to Thomas’ concurring opinion as one of several dangers to individual rights stemming from the decision.
“We cannot understand how anyone can be sure that today’s opinion will be the last of its kind,” wrote the Liberals, Justices Steven Breyer, Elena Kagan and Sonia Sotomayor.
“The first problem with the majority opinion is with the consent of Judge Thomas, which makes it clear that he does not support the program,” the dissent reads.
“In saying that nothing in today’s opinion calls into question the precedents for non-abortion,” Judge Thomas explains, he means only that in this case they are not discussed,” continued the liberals.
“But he lets us know what he wants to do when they’re there.”[I]In future cases,” he says, “we must review all significant precedents of due process for this Court, including the cases of Griswold, Lawrence and Obergefell.” “, said the dissenters.
“And when will we review them? Then” we must “[e] These are clearly wrong decisions. “
“So at least one judge plans to use today’s decision ticket over and over and over again,” the dissenters said.