Supreme Court Justice Clarence Thomas on Friday called for overturning the constitutional rights the court had affirmed for access to contraceptives and LGBTQ rights in an opinion concurring with the majority to decision to overturn Roe v. Wade.
In his separate opinion, Thomas acknowledged that Friday’s decision in Dobbs v. Jackson Women’s Health Organization does not directly affect any rights besides abortion. But he argued that the constitution’s Due Process Clause does not secure a right to an abortion or any other substantive rights, and he urged the court to apply that reasoning to other landmark cases.
Thomas wrote, “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
Since Justice Samuel Alito’s draft majority opinion overturning Roe was leaked earlier this year, Democrats and liberal activists have warned that the conservative majority would soon turn its attention to other rights that the court has affirmed.
The three cases Thomas mentioned are all landmark decisions establishing certain constitutional rights.
In Griswold v. Connecticut, the court ruled in 1965 that married couples have a right to access contraceptive. In 2003, the court said in Lawrence v. Texas that states could not outlaw consensual gay sex. And the court’s 2015 decision in Obergefell v. Hodges established a constitutional right to same-sex marriage.
While Thomas’s comments outline the worst-case scenario for the majority’s liberal critics, it’s unclear whether the other conservative justices are willing to go as far as the court’s most senior member.
Alito stressed in the majority opinion that his reasoning applies only to abortion and rejected any assertions that the rationale in Dobbs could extend to Griswold, Lawrence or Obergefell.
“Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” Alito wrote.
The three members of the court’s liberal wing — Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor — rejected that assurance in their dissent, saying the majority’s willingness to overturn the landmark decades-old decision leaves other precedents vulnerable.
“And no one should be confident that this majority is done with its work,” the three liberals wrote. “The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. They are all part of the same constitutional fabric, protecting autonomous decisionmaking over the most personal of life decisions.”
“The majority could write just as long an opinion showing, for example, that until the mid-20th century, ‘there was no support in American law for a constitutional right to obtain [contraceptives],'” the justices added. “So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”
— Updated at 11:44 a.m.