Justice Thomas Says Supreme Court Should Rethink Precedents On Contraception Access, LGBTQ+ Rights

As the U.S. Supreme Court announced its decision to strike down the decades-old rulings that once established a constitutional right to choose to have an abortion, Justice Clarence Thomas urged his colleagues to reevaluate other landmark cases protecting contraceptive access, same-sex relationships and same-sex marriages.

In a concurring opinion delivered Friday, Thomas suggested that the logic used by the court's conservative majority to overturn Roe v. Wade and Planned Parenthood v. Casey could signal similar outcomes for cases that recognized other personal rights: Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges. In the Griswold case, in 1965, the court threw out a state law banning the use of contraception. Lawrence v. Texas, in 2003, established that states cannot criminalize private sex acts between consenting adults. And in Obergefell, in 2015, the court ruled same-sex couples have an equal right to marry.

Thomas argued that since the majority ruled that the right to abortion "is not a form of 'liberty' protected by the Due Process Clause" of the 14th Amendment, the same reasoning should apply more broadly. 

"In the future, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence and Obergefell," he wrote.

All the other justices, however, disagreed.

Writing for the majority, Justice Samuel Alito noted, "The Court emphasizes that this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion."

"Rights regarding contraception and same-sex relationships are inherently different from the right to abortion," Alito wrote, "because the latter (as we have stressed) uniquely involves what Roe and Casey termed 'potential life.'"

Alito was joined by Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, in addition to Thomas. Chief Justice John Roberts supported the court's decision in part, but said overturning Roe and Casey, which will leave abortion restrictions in the hands of state officials, goes too far.

In his own concurring opinion, Roberts wrote, "I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents."

Even so, Thomas's opinion spotlights a legal argument for how the court's ruling on Roe and Casey could undermine the constitutional frameworks of cases like Griswold, Lawrence and Obergefell. 

The three liberal justices who dissented in the case warned it could be a sign of things to come.

"No one should be confident that this majority is done with its work," wrote Justices Sonia Sotomayor, Elena Kagan and Stephen G. Breyer in their dissent.

"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," they continued. "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."

First published on June 24, 2022 / 2:33 PM

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