Justice Clarence Thomas: Court Should Examine Contraception, Same Sex Marriage and Gay Sex

On Friday, the Supreme Court released their decision overturning Roe v. Wade, opening the door for states to ban abortions. Twenty-two states have laws or constitutional amendments prohibiting or severely restricting abortion access that will take effect immediately now that the court has overturned Roe v. Wade.

Supreme Court Justice Clarence Thomas wants the court to look at other decisions following Roe v. Wade's Friday reversal. Thomas cited cases that include same-sex marriage, contraception and gay sex.

In a separate but concurring opinion, Justice Thomas, 74, said that cases decided on the basis of “substantive due process” should be reviewed, as the Dobbs case that overturned Roe proved that “any substantive due process decision is ‘demonstrably erroneous.’” He called on the court “to ‘correct the error’ established in those precedents.”

Thomas specifically pointed to Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges.

Griswold was a 1965 case that established the right for married couples to have access to contraception, Lawrence was a 2003 case that forbid states from outlawing consensual gay sex and Obergefell was a 2015 case that established the right to same-sex marriage.

The conservative justice would later go on to say that “substantive due process is an oxymoron that lacks any basis in the Constitution.”

He did not say how he would rule on each case, but that the court should decide on important questions, “including whether the Privileges or Immunities Clause protects any rights that are not enumerated in the Constitution and, if so, how to identify those rights.”

Justice Samuel Alito, who wrote the court opinion, stressed that the decision should not be interpreted as applying to other issues. “We emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito wrote.

In his concurrence, Justice Brett Kavanaugh agreed, stating “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

While Thomas stated in his opinion that he agreed with the court that the Dobbs case does not apply to other rights, it is for that reason the court should look at other cases that used similar legal arguments.

“Nothing in the Court’s opinion should be understood to cast doubt on precedents that do not concern abortion,” Thomas wrote. “For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”

The dissenting opinion, written by liberal justices Stephen Breyer, Elena Kagan and Sonia Sotomayor, warned that Thomas’ statements show that he plans to use Friday’s decision to overturn the rulings in those cases.

“[A]t least one Justice is planning to use the ticket of today’s decision again and again and again,” they wrote.