WASHINGTON (Fwrd Axis) — Supreme Court Justice Clarence Thomas said the Court must overrule past decisions that legalized the right to obtain contraception and the right to same-sex marriage, he wrote on Friday.
Thomas, writing in a concurring opinion after the Court’s precedent-breaking decision to overturn Roe v. Wade, leading to the wiping out of constitutional protections for abortion rights, called on the Court to overrule the civil rights rulings in Griswold v. Connecticut, Lawrence v. Texas and Obergefell v. Hodges.
“As I have previously explained, ‘substantive due process’ is an oxymoron that ‘lack[s] any basis in the Constitution,’” he wrote.
Griswold was a 1965 Supreme Court decision that gave the rights to married couples to buy and use contraceptives. Meanwhile, Lawrence was a 2003 Supreme Court decision that gave the right for consenting adults to engage in same-sex intimacy. Obergefell was a 2015 Supreme Court decision to establish the right for same-sex couples to be married.
Substantive due process is a term in constitutional law that is defined as allowing courts to protect certain rights, even if those rights are not explicitly in the Constitution.
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents,” Thomas wrote.
Thomas went even further, suggesting the Court should eliminate “substantive due process” altogether.
“I join the opinion of the Court because it correctly holds that there is no constitutional right to abortion. Respondents invoke one source for that right: the Fourteenth Amendment’s guarantee that no State shall ‘deprive any person of life, liberty, or property without due process of law.’ The Court well explains why, under our substantive due process precedents, the purported right to abortion is not a form of ‘liberty’ protected by the Due Process Clause. Such a right is neither ‘deeply rooted in this Nation’s history and tradition’ nor ‘implicit in the concept of ordered liberty,’” he wrote.
“In future cases, we should ‘follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away,’” he continued. “Substantive due process conflicts with that textual command and has harmed our country in many ways.”
“Accordingly,” he added, “We should eliminate it from our jurisprudence at the earliest opportunity.”
President Joe Biden spoke to the nation on Friday morning and said called out Thomas by name, saying he is paving an “extreme and dangerous path” that the “court is now taking us on.”
“I’ve warned about how this decision risks a broader right to privacy for everyone,” Biden said. “That’s because Roe recognized the fundamental right to privacy and has served as a basis for so many more rights that we’ve come to take for granted, that are ingrained in the fabric of this country: the right to make the best decisions for your health, the right to use birth control, a married couple in the privacy of their bedroom for God’s sake, the right to marry the person you love.”
“Justice Thomas said as much today. He explicitly called to reconsider the right of marriage equality, the right of couples to make their choices on contraception,” Biden added.
