In Roe argument, Justice Thomas takes aim at contraception, same-sex relationships

(AP Photo/Patrick Semansky)
Published: Jun. 24, 2022 at 12:48 PM CDT
Email This Link
Share on Pinterest
Share on LinkedIn

MONROE, La. (KNOE) - Concerns over what overturning Roe v. Wade could mean for other rights protected by the 14th Amendment have been building leading up to Friday’s landmark Supreme Court ruling that strips a woman’s right to choose whether her body can be used for the gestation of another human, Instead, it puts that decision in the hands of her state government.

The ruling, which was based on a right to privacy, means some state governments can and will now force women and even children to carry a fetus to term should they become pregnant, regardless of how that pregnancy happens. That includes cases of rape or incest.

Louisiana, Arkansas, and Mississippi will be three such states.

In the high court’s majority opinion, much was made of how this ruling should not put into doubt previous cases that gave the American people the right to contraceptives and same-sex relationships.

Opinion of the Court, written by Justice Alito:

“Finally, the dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell. Post, at 4–5, 26–27, n. 8. But we have stated unequivocally that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

But Justice Clarence Thomas, in a concurring opinion, seemed to put those very rights in his crosshairs.

Justice Thomas, concurring with the Opinion of the Court, wrote the following (emphasis added.)

“The Court today declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts. Cases like Griswold v. Connecticut, 381 U. S. 479 (1965) (right of married persons to obtain contraceptives)*; Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in private, consensual sexual acts); and Obergefell v. Hodges, 576 U. S. 644 (2015) (right to same-sex marriage), are not at issue. The Court’s abortion cases are unique and no party has asked us to decide “whether our entire Fourteenth Amendment jurisprudence must be preserved or revised,” Thus, I agree that “[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.” For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”

His opinion alarmed dissenting justices, Kagan, Breyer, and Sotomayer, who wrote:

“The first problem with the majority’s account comes from JUSTICE THOMAS’s concurrence—which makes clear he is not with the program. In saying that nothing in today’s opinion casts doubt on non-abortion precedents, JUSTICE THOMAS explains, he means only that they are not at issue in this very case. (“[T]his case does not present the opportunity to reject” those precedents). But he lets us know what he wants to do when they are. “[I]n future cases,” he says, “we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” And when we reconsider them? Then “we have a duty” to “overrul[e] these demonstrably erroneous decisions.”. So at least one Justice is planning to use the ticket of today’s decision again and again and again.

“Even placing the concurrence to the side, the assurance in today’s opinion still does not work. Or at least that is so if the majority is serious about its sole reason for overturning Roe and Casey: the legal status of abortion in the 19th century. Except in the places quoted above, the state interest in protecting fetal life plays no part in the majority’s analysis. To the contrary, the majority takes pride in not expressing a view “about the status of the fetus.” The majority’s departure from Roe and Casey rests instead—and only—on whether a woman’s decision to end a pregnancy involves any Fourteenth Amendment liberty interest (against which Roe and Casey balanced the state interest in preserving fetal life). According to the majority, no liberty interest is present— because (and only because) the law offered no protection to the woman’s choice in the 19th century. But here is the rub. The law also did not then (and would not for ages) protect a wealth of other things. It did not protect the rights recognized in Lawrence and Obergefell to same-sex intimacy and marriage. It did not protect the right recognized in Loving to marry across racial lines. It did not protect the right recognized in Griswold to contraceptive use. For that matter, it did not protect the right recognized in Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942), not to be sterilized without consent. So if the majority is right in its legal analysis, all those decisions were wrong, and all those matters properly belong to the States too—whatever the particular state interests involved. And if that is true, it is impossible to understand (as a matter of logic and principle) how the majority can say that its opinion today does not threaten—does not even “undermine”—any number of other constitutional rights.”

Click here to read the Supreme Court opinions in their entirety.

Copyright 2022 KNOE. All rights reserved.