Now that the Supreme Court has decided Dobbs v. Jackson Women’s Health Organization and overturned Roe v. Wade, remember all those people who said that the Supreme Court would not overturn Roe and that those of us warning about that danger were being alarmist and a little silly? Well, please note that many of those are the same people who are now dismissing the possibility that the court will overturn other rights, like marriage equality and birth control access. Their judgment and prescience fall far short of their confidence.
Because yes, the end of Roe is just a warning sign of what this extremist court will do. Justice Clarence Thomas made that clear in his concurring opinion on Dobbs.
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Thomas argues that the Supreme Court should go beyond ending abortion rights and end those other rights that so many people have been warning that Republicans and this court would next move to dismantle: birth control, marriage equality, the very right to same-sex intimate relationships.
“In future cases,” Thomas writes, “we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
Griswold v. Connecticut is a 1965 decision that married couples have a right to privacy, including on decisions about contraception, and that a Connecticut law banning contraceptive access even for married couples was thus unconstitutional.
Lawrence v. Texas was a 2003 decision striking down a Texas law banning sexual acts between people of the same sex. In colloquial terms, it was an anti-sodomy law.
Obergefell v. Hodges was the 2015 decision legalizing same-sex marriage.
What all of these decisions have in common beyond that they gave people rights that Thomas does not want them to have is that the court’s decisions invoked “substantive due process,” a legal argument Thomas thinks is in itself illegitimate. (Though it’s likely that if substantive due process were protecting a right Thomas supported for a group of people he liked, he would embrace hypocrisy.)
Substantive due process is the legal theory that people’s rights are constitutionally protected beyond purely procedural means: “The theory of substantive due process holds that substantive as well as procedural rights are protected by the U.S. Constitution,” Ballotpedia explains. “This argument is based on the Fifth and Fourteenth Amendments and reasons that these amendments guarantee that life, freedom and property cannot be infringed upon by the government without sufficient justification—regardless of the process by which they are infringed upon.”
Thomas wants to undo every decision made on this basis, he says. He doesn’t mention it, but Loving v. Virginia, the 1965 Supreme Court case legalizing interracial marriage, has also been classified as a substantive due process case.
Following his call to “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas continues, citing his own previous concurring opinions.
“Because any substantive due process decision is ‘demonstrably erroneous,’ Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to ‘correct the error’ established in those precedents, Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 9). After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”
So yeah. Thomas is not being shy about his plans, and while this is not the argument on which Dobbs was decided and Roe was overturned, this concurring opinion represents one of the justices in the strong majority setting out an agenda that is exactly what abortion rights advocates and others have been warning was coming. Remember this when the centrist scolds tell you you’re exaggerating the dangers of Republican-appointed judges.
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