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Health
Joanna Robin in Washington DC

After Roe v Wade's fall, a Supreme Court justice indicates that same-sex marriage and contraception could be next

The US Supreme Court ruled that there is no constitutional protection for abortion access, and it's up to states to decide on the issue.  (Reuters: Evelyn Hockstein)

When the US Supreme Court dramatically overturned the right of Americans to terminate a pregnancy, one justice was particularly fervent.

"The constitution does not confer a right to abortion," Justice Clarence Thomas wrote in his concurring opinion, echoing his colleagues' sentiments. 

It was a marked shift from his public statements on reproductive rights 30 years ago. 

During his confirmation hearing in 1991, then-judge Thomas was cagey about his position on Roe v Wade, the landmark ruling that protected Americans' right to abortion for nearly 50 years. 

"I can say on that issue… I have no agenda," he told the US Senate under oath.

Back then, he argued that as a judge, it would be inappropriate to take a case "in which he or she has such strong views that he or she cannot be impartial". 

And yet, once confirmed as a justice on the nation's highest court, he spent the next three decades openly expressing his deeply conservative beliefs, often through the power of the law.

On June 24, Justice Thomas and five of his colleagues chose to uphold a Mississippi law banning abortion after 15 weeks.

But four of those justices didn't just strike down one case. They shook Roe v Wade to its constitutional foundations.

In the majority opinion, Justice Samuel Alito labelled the 1973 decision "egregiously wrong" given the US constitution made no explicit mention of abortion. 

He argued, choosing his words carefully, that no other constitutional rights would be risked by the toppling of half a century of precedent. 

But Justice Thomas undercut him. 

One sentence that could change everything 

Buried on page 119 of the final opinion, Justice Thomas wrote the court "should reconsider" other past rulings that afford Americans certain rights. 

Clarence Thomas has been a US Supreme Court justice for three decades.  (Reuters: Jonathan Ernst)

He referenced the key cases guaranteeing access to contraception, and legalising same-sex relationships and same-sex marriage. 

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

In doing so, he all but confirmed the fears of millions of Americans that some conservatives won't be content with just scrapping abortion rights. 

They could target other hard-won rights next. 

Why this clause is so important 

In the United States, the right to have an abortion, to access birth control, and to have sex with or marry a person of the same gender all stem from one legal principle. 

Supporters of abortion care hit the streets across America after Roe v Wade was overturned.  (Chicago Sun-Times via AP: Pat Nabong)

"The 14th amendment to the US constitution says that no person shall be deprived of life, liberty or property without due process of law," said Alexis Karteron, an associate professor of law and the director of the Constitutional Rights Clinic at Rutgers University. 

She added the due process clause of the amendment, which has existed for more than 150 years, has been read to address "very important issues to many, many Americans". 

But last week the court ruled the language of the clause should never apply to abortion access. 

"That's because, in part, the right to an abortion was not something that the people who wrote the 14th amendment would have thought about at the time it was passed in the mid-19th century," Ms Karteron said. 

It is not totally unprecedented for the court to reverse one of its decisions, she explained. 

US activists say they fear the right to access birth control could be under threat.  (Reuters: Callaghan O'Hare)

But this was the first time, to her knowledge, a right the court had previously recognised was taken away. 

"We should not take any comfort in the fact that the majority opinion claims to only address abortion," she said. 

What could be next? 

Millions of Americans woke up on June 25 with fewer rights than they had the morning before. 

With the end of Roe v Wade, roughly half of US states banned or sharply narrowed access to abortion. 

The enormity of the health and economic implications of the Supreme Court's decision cannot be overstated. 

But the ruling — and Justice Thomas's opinion in particular — has rattled many legal observers.

"Justice Thomas and his concurring opinion expressly said that the court should revisit a number of other due process cases that implicate deeply important issues like the right to same-sex marriage, the right to be in a same-sex relationship without facing criminalisation, the right to access birth control," Ms Karteron said. 

Up until 1965, local laws could stop people from accessing contraception. 

Then, in Griswold v Connecticut, the court quashed a law prohibiting contraceptive drugs and devices, in part because it determined citizens had a "right to privacy". 

Same-sex relationships remained criminalised in some states until 2003, when the court found Texas sodomy laws to be unconstitutional in Lawrence v Texas. 

And it was as recently as 2015 that Obergefell v Hodges saw same-sex marriage legalised nationwide, just a year before the election of former US president Donald Trump. 

A Supreme Court ruling in 2015 gave couples of the same sex the right to get legally married.  (Reuters: Jim Bourg)

Other justices who voted to dismantle Roe's protections insisted their ruling did not apply to these rights. 

Justice Samuel Alito said the question of abortion was unique because it involved the termination of a fetus.

But legal experts aren't so sure it stops with Roe v Wade. 

"We absolutely should be concerned that in the future, the court will revisit those precedents, in part because Justice Thomas has told us that that is what he would like to see happen," Ms Karteron said. 

The question of interracial marriage

Critics of Justice Thomas were quick to point out there was one ruling he didn't mention in his opinion. 

And it's one that affects him personally. 

The 1967 ruling in the case of Loving v Virginia protects the right to interracial marriage. 

It was brought to the Supreme Court by Richard Loving, a white man, and Mildred Jeter, a black woman, who fell in love and married in the 1950s. 

They were handed a year in jail for violating Virginia's ban on interracial unions, though the sentence was suspended on the condition they leave the state for 25 years.

As a black man, Justice Thomas's own marriage to Ginni Thomas is recognised in the US because of the precedent set by Loving v Virginia. 

Justice Clarence Thomas and his wife, Republican activist Ginni Thomas, have been married for 35 years.  (Reuters: Jonathan Ernst)

Jim Obergefell, the plaintiff behind the court's landmark ruling on same-sex marriage, told US media he found it "quite telling" Loving v Virginia was left out of Justice Thomas's opinion.

"That affects him personally, but he doesn't care about the LGBT community," Mr Obergefell told MSNBC. 

"I'm just concerned that hundreds of thousands of marriages across this nation are at risk, and the ability of people across this nation to marry the person they love is at risk." 

How quickly could America change? 

It's important to note that none of the other justices signed Clarence Thomas's concurring opinion. 

That suggests he doesn't have broad support within the court for his views. 

Clarence Thomas (bottom, second from left) is the only justice to have publicly suggested other constitutional rights should be re-examined.  (Supplied: Collection of the Supreme Court of the United States)

In fact, Justice Brett Kavanaugh, who also voted to dismantle Roe, appeared to reject his colleague's position in his own opinion. 

But Democrats say that by overturning the ruling, the court has put other rights on the table — even, potentially, their own. 

The toppling of Roe v Wade may have felt impossible to many Americans just a few years ago. 

But in one term, then US-president Trump had the opportunity to install three justices, shifting the balance of the court to the right.

His presidential successor, Joe Biden, said Justice Thomas had put America on an "extreme and dangerous path". 

"He explicitly called to reconsider the right of marriage equality, the right of couples to make their choices on contraception," President Biden said. 

Ms Karteron, who described Justice Thomas as "extremely conservative", said he has made his position clear. 

"He has really never been shy about saying exactly what he thinks," she said. 

"He's made clear for a very long time, that he thought that Roe was wrongly decided and needed to be reversed.

"And now obviously the same is true of these other precedents that he is calling on the court to reconsider and presumably reverse." 

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