How Clarence Thomas’ concurring opinion suggests other rights may be vulnerable after Roe: analysis

How Clarence Thomas’ concurring opinion suggests other rights may be vulnerable after Roe: analysis
Justice Clarence Thomas with Sonny Perdue on April 25, 2017, Wikimedia Commons
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A new analysis is breaking down the context of U.S. Supreme Court Justice Clarence Thomas' concurring opinion following the overturning of Roe v. Wade. The New York Times' Sheryl Gay Stolberg explained how Thomas' remarks appear to suggest that the abortion ban could only be the beginning of the conservative attack on civil rights.

According to Stolberg, Thomas "laid out a vision that fomented fears about what other rights could disappear: The same rationale that the Supreme Court used to declare there was no right to abortion, he said, should also be used to overturn cases establishing rights to contraception, same-sex consensual relations, and same-sex marriage."

Although Justice Samuel A. Alito's majority opinion insists the ruling on abortion “should be understood to cast doubt on precedents that do not concern abortion,” Stolberg emphasized that Thomas also argued that the court's majority does not view abortion as "a form of 'liberty' protected by the due process clause of the 14th Amendment to the Constitution."

She went on to note three cases that he used as an example to support his arguments as they were ruled upon according to the same line of reasoning. Stolberg noted that Thomas "took aim at three other landmark cases that relied on that same legal reasoning: Griswold v. Connecticut, a 1965 decision that declared married couples had a right to contraception; Lawrence v. Texas, a 2003 case invalidating sodomy laws and making same-sex sexual activity legal across the country; and Obergefell v. Hodges, the 2015 case establishing the right of gay couples to marry."

She continued, "Justice Thomas wrote that the court 'should reconsider' all three decisions, saying it had a duty to 'correct the error' established in those precedents. Then, he said, after 'overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions” protected the rights they established.'"

Stolberg noted that Thomas' language is a prime example of the epitome of what abortion and LGBTQ advocates have expressed concern about. Advocates have repeatedly warned that the overturn of Roe v. Wade would only be the beginning of a conservative attack that could subsequently lead to attacks on "the right to contraception and same-sex marriage."

The critical assessment of Thomas' remarks comes as the liberal SCOTUS justices also express their dissent regarding the unprecedented ruling. As reports began circulating about the ruling, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan weighed in with their remarks

“With sorrow ― for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection ― we dissent,” wrote Breyer, Sotomayor, and Kagan.

The statement comes in wake of conservative justices' ruling on Dobbs v. Jackson Women’s Health Organization which will subsequently regress federal abortion laws back nearly half a century.

“Today, the Court discards that balance,” the justices wrote. “It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs.”

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