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As the Supreme Court in a momentous ruling Friday overturned Roe v. Wade, the landmark case that guaranteed the right to abortion nationwide, Justice Clarence Thomas issued a concurring opinion arguing the court should revisit decisions regarding LGBTQ rights and contraception too.
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote, referring to Griswold v. Connecticut, Lawrence v. Texas and Obergefell v. Hodges, cases that respectively legalized the use of contraceptives, consensual same-sex activity, and same-sex marriage.
But the majority opinion in Friday’s 5-4 ruling, authored by Justice Samuel Alito, argued that “rights regarding contraception and same-sex relationships are inherently different from the right to abortion,” because abortion involves “potential life.”
“Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” the majority wrote.
Thomas agreed with the majority opinion’s statement, but said that the rulings in Griswold, Lawrence, and Obergefell relied on legal reasoning similar to the resolution of Friday’s abortion case — that it wasn’t protected by the due process clause of the 14th Amendment, according to the New York Times.
In saying those cases should be reconsidered, Thomas wrote that “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.”
Thomas’ statements stoked long-held fears among advocates for LGBTQ and reproductive rights that a more conservative court wouldn’t rest at overturning the 1973 Roe v. Wade decision. In a scathing dissenting opinion, liberal justices similarly argued that “we cannot understand how anyone can be confident that today’s opinion will be the last of its kind.”
“Assume the majority is sincere in saying, for whatever reason, that it will go so far and no further. Scout’s honor,” wrote Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. “Still, the future significance of today’s opinion will be decided in the future. And law often has a way of evolving without regard to original intentions — a way of actually following where logic leads, rather than tolerating hard-to-explain lines.”
Friday’s ruling in Dobbs v. Jackson Women’s Health Organization leaves it up to individual states to determine abortion access within their borders, at least as long as the nation continues to lack a federal standard.
Twenty-six states are certain or likely to try to ban abortion as quickly as possible thanks to their existing laws or constitutional amendments, according to the Guttmacher Institute, which supports abortion rights. Thirteen states have so-called trigger bans in place that will “take effect automatically or by quick state action if Roe no longer applies,” according to Guttmacher.
