Court ‘should reconsider’ gay marriage, birth control: Clarence Thomas

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Court 'should reconsider' gay marriage, birth control: Clarence Thomas

Justice Clarence Thomas called for potentially overturning Supreme Court rulings that protect gay marriage and access to birth control in an opinion concurrent to Friday’s landmark decision ending federal abortion rights.

The conservative judge wrote that the court should “reconsider” other cases that fall under the court’s previous “due process” precedents, which include rulings that establish LGBTQ and contraceptive rights.

“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” he wrote.

The 74-year-old justice was referring to a 1965 ruling, Griswold v. Connecticut, that allows married couples to access birth control. He’s also referencing a 2003 ruling, Lawrence v. Texas, that forbids states from outlawing consensual gay sex, and Obergefell v. Hodges, a 2015 decision that established the right to same-sex marriage.

Substantive due process refers to the notion that people have fundamental rights that aren’t specifically established in the constitution.

Anti-abortion protesters celebrate after the  Supreme Court overturned the 49-year-old landmark Roe v. Wade decision
Anti-abortion protesters celebrate after the Supreme Court overturned the 49-year-old landmark Roe v. Wade decision.
James Keivom
The Obergefell v. Hodges decision legalized gay marriage in 2015.
The Obergefell v. Hodges decision legalized gay marriage in 2015.
AP Photo/Cliff Owen)
Marcia Goldstein, then publicity director of New York City’s Planned Parenthood chapter, holds a sign advertising birth control information on December 14, 1967.
Marcia Goldstein, then publicity director of New York City’s Planned Parenthood chapter, holds a sign advertising birth control information on December 14, 1967.
H. William Tetlow/Fox Photos/Getty Images

The same legal argument was also used in Roe v. Wade and its sister case, Planned Parenthood v. Casey, which in 1992 upheld the right to abortion.

In the opinion Friday, Thomas acknowledged that the Dobbs v. Jackson Women’s Health Organization decision does not directly affect any rights aside from federal abortion access.

But he urged the court to apply the same “Due Process Clause” logic to other substantive landmark cases.

The Griswold v. Connecticut decision declared married couples can have access to birth control contraceptives.
The Griswold v. Connecticut decision declared married couples can have access to birth control contraceptives.
Bettmann Archive

“Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents,” he wrote.

On Friday, the Supreme Court ended nearly 50 years of federal abortion rights, with Justice Samuel Alito writing an opinion in favor of Mississippi in Dobbs v. Jackson Women’s Health.

In his opinion, Alito stressed that the ruling not be used to roll back any other constitutional right besides abortion.

Tyron Garner (left) and John Geddes Lawrence (right) are hugged by a supporter following the Lawrence v. Texas decision in Houston, Texas on June 26, 2003.
Tyron Garner (left) and John Geddes Lawrence (right) are hugged by a supporter following the Lawrence v. Texas decision in Houston, Texas on June 26, 2003.
AP Photo/The Dallas Morning News, Erich Schlegel
Clarence Thomas, associate justice of the U.S. Supreme Court,
Supreme Court justice Clarence Thomas lauded the overturn of Roe v. Wade.
Bloomberg via Getty Images

“To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right,

Justice Brett Kavanaugh added,” Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”


Get The Post’s latest updates following the Supreme Court’s decision to overturn Roe v. Wade.


Kavanaugh: “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.”

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