Clarence Thomas calls for Supreme Court to 'reconsider' gay marriage, contraception after Roe v. Wade falls

WASHINGTON – Associate Justice Clarence Thomas said Friday that the Supreme Court should “reconsider” other rights established by the high court in the wake of its decision to overturn Roe v. Wade, including access to contraception and gay marriage.

Thomas’ concurring opinion – which no other member of the court joined – tracks with an argument abortion rights groups had made for months leading up to the court’s blockbuster abortion decision: a ruling that the Constitution doesn’t protect a right to an abortion would jeopardize other rights the court established under the 14th Amendment.

“In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote, referring to landmark opinions that blocked states from banning contraception, sex by same-sex couples and gay marriage. “After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”

Background: Could rights to same-sex marriage, contraception be next?

Explainer: What is the 14th Amendment, and what does it have to do with Roe?

Thomas: Justice Thomas celebrates 30 years on a court moving in his direction

The Constitution doesn’t explicitly guarantee a right to abortion, but a 7-2 majority in Roe v. Wade held that the 14th Amendment’s protection of “liberty” includes the right to terminate a pregnancy. Several of the justices in Roe drew on another landmark opinion decided eight years earlier that legalized contraception for married couples.

The court overturned Roe v. Wade on Friday, a major decision that will allow individual states to decide whether to ban the procedure. The court ruled that abortion is not mentioned in the Constitution. Abortion rights advocates have noted that the same is true for many other rights that millions of Americans take for granted today.

In Griswold v. Connecticut, the Supreme Court invalidated a law that forbid contraception, finding the Bill of Rights created “zones of privacy” for married couples. Decades later, in 2015, the court relied on a similar theory in Obergefell v. Hodges that legalized same-sex marriage nationally and a 2003 ruling in Lawrence v. Texas that invalidated state prohibitions on sodomy.

Those rights were based on a similar approach to the Constitution, that the 14th Amendment provides for some rights – such as privacy – that are not explicitly stated in the founding document.

Jim Obergefell, who was a plaintiff in Obergefell v. Hodges and is running for the Ohio House, told the Cincinnati Enquirer, part of the USA TODAY Network, that the ruling calls on opponents of same-sex marriage to “start their engines and to come after those rights.”

“This very clearly paints a target on our right to privacy, our right to commit to the person we love and to form our families,” he said.

It’s notable that Thomas, perhaps the court’s most conservative justice, wrote alone to argue for revisiting other rights. The court’s majority opinion, written by Associate Justice Samuel Alito, another conservative, also shot down the idea.

Alito draws a distinction between abortion and other rights because, he says, abortion involves the life or potential life of a fetus or embryo.

“And 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,” Alito wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Still, advocates say such challenges are likely to arrive in federal courts in the coming years. The Supreme Court often tries to limit the impact of its decisions with such language, but that rarely prevents lawyers from trying to test those limits.

The potential for a legal fight over contraception in a post-Roe world may be particularly high, experts have said. That’s because contraception was at the heart of the 2014 Hobby Lobby case in which the court ruled companies with religious objections cannot be forced to offer insurance for certain birth control methods they equate with abortion.

The Human Rights Campaign said Thomas “had some alarming things to say about Obergefell v. Hodges and Lawrence v. Texas,” but the LGBTQ civil rights organization acknowledged that the justice spoke only for himself.”

“Our fight right now is centered on ensuring people still have access to the abortion and reproductive services they need, but make no mistake: We will not back down from defending the progress we have made and keeping the fight for full LGBTQ+ equality going,” the group posted on Twitter.

This article originally appeared on USA TODAY: Clarence Thomas: Gay marriage should be revisited as Roe v. Wade falls

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