In Friday’s blockbuster decision that overturned the constitutional right to an abortion, a line written by Justice Clarence Thomas made legal experts worry over what rights may go next.
Writing separately from the majority opinion, Thomas called on the Supreme Court to apply its legal approach in the abortion case to other rights not laid out in the Constitution. He used as examples three decisions that guaranteed the rights to same-sex relationships, same-sex marriage and contraception.
Thomas wrote that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” referring to the cases that established those rights.
Justice Samuel A. Alito Jr., in the majority opinion, wrote that nothing in Friday’s ruling “should be understood to cast doubt on precedents that do not concern abortion.” But experts said the line in Thomas’ concurrence threw that into doubt.
Sonia Suter, a George Washington University law professor, said it was a sign at least one Supreme Court justice was ready to fundamentally change how the Supreme Court approaches many constitutional rights covered under the 14th Amendment, known as substantive due process.
Thomas “is ready to burn it all down, he is just ready to get rid of all substantive due process,” Suter said.
By overturning Roe v. Wade the way they did, Suter said that the court could write around Alito’s statements in this case, and overturn the rights Thomas mentioned.
“They can make all the promises they want here, but a future court can turn around and say, ‘This opinion leads to that conclusion,’” Suter said.
Cloudy future
The justices themselves disagreed Friday on whether the abortion ruling cast doubt on other precedents. In a joint dissent, Justices Sonia Sotomayor, Elena Kagan and Stephen G. Breyer wrote that a natural consequence of the court’s approach to abortion was “additional constitutional rights are under threat.”
On the other side, Justice Brett M. Kavanaugh, wrote separately to emphasize that, “Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.”
Kermit Roosevelt, a University of Pennsylvania law professor, said that smattering of opinions clouded the scope of Friday’s opinion.
“With respect to abortion, it’s pretty clear. But with respect to other unenumerated rights, it’s somewhat less clear,” Roosevelt said. “Thomas is giving you one version of that. And Kavanaugh is giving you another.”
Still, Roosevelt said Alito’s underlying analysis may imperil cases undergirding the rights to same-sex marriage and contraception. Under Alito’s analysis, “all of these cases that people are concerned about, they’re wrong. Now, that doesn’t mean that they’re going to be overruled,” Roosevelt said.
Getting a case to the Supreme Court requires an appellate process as well as four justices to agree to hear a case. However, Suter pointed out that several sitting justices, including Alito and Thomas and Chief Justice John G. Roberts Jr., were among dissenters in the 2015 decision in Obergefell v. Hodges that established a constitutional right to same-sex marriage.
And Suter pointed out there is already a movement among religious conservatives, accepted by the court in the 2014 majority opinion in Burwell v. Hobby Lobby, to identify certain forms of birth control as “abortifacients.”
A new line
Many legal experts expressed concerns about the scope of the decision when a draft was leaked by Politico in May, but that leak did not include the dissents or Thomas’ concurrence.
Steve Vladeck, a University of Texas School of Law professor, tweeted the Thomas line about “in the future” on Friday and added, “I look forward to the takes of those who yelled at people like me for worrying about implications beyond abortion.”
Mary Ziegler, a law professor at Florida State University who published a book in 2020 on the legal history of abortion in America, wrote in The Atlantic that Friday’s ruling is a stark reminder that rights can disappear.
“If this decision signals anything bigger than its direct consequences, it is this: No one should get used to their rights. Predicting with certainty which ones, if any, will go, or when, is impossible,” Ziegler wrote.
A number of Democrats also pointed to Thomas’ concurrence, including President Joe Biden during his address following the release of the opinion Friday. Biden argued that the decision put other rights in jeopardy.
“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 said. “This is an extreme and dangerous path the court is now taking us on.”
A number of conservative legal voices argued the opinion was more limited than Biden’s pronouncements.
Allyson Ho, a partner at Gibson, Dunn and Crutcher law firm, noted at a Federalist Society event Friday that no other justice had signed onto Thomas’ concurrence. She noted that Thomas did not call for the cases to be repealed, only reexamined with the test the court laid out in Friday’s opinion.
And Ho also referred to the several points in the majority opinion that Alito differentiated abortion cases from other substantive due process rights.
“You know, probably the smart money will be that it will be quite a while before there are four votes to grant cert on a case to undertake that analysis,” Ho said.
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