When the Supreme Court overturned Roe v. Wade on Friday, one justice, Clarence Thomas, wasn’t content with simply stripping bodily autonomy from millions of Americans—he wanted more. Specifically, Thomas now wants the court to overturn the cases that legalized marriage equality, same-sex intimacy, and the right to use birth control.
Justice Samuel Alito, who authored the 6-3 majority opinion, claimed that “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. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” This is a disingenuous statement, as the reasoning in Roe affects so many other sexual privacy rights.
Thomas joined Alito’s opinion, but wrote his own concurrence in which he said he does in fact want to go after other precedents based on substantive due process reasoning. (Mind you, this is just one day after the scandal-ridden Thomas dramatically expanded gun rights.)
He wrote that today the court “declines to disturb” rulings in other privacy cases—like Griswold v. Connecticut (1965, birth control), Lawrence v. Texas (2003, same-sex intimacy), and Obergefell v. Hodges (2015, marriage equality)—but only because no one asked them to do that, and he would very much like someone to ask them to do that.
Thomas called the rulings in all these cases “demonstrably erroneous,” citing himself:
For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to “correct the error” established in those precedents, Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 9). 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.
In a Friday afternoon press conference about the ruling, President Joe Biden specifically decried Justice Thomas’ concurrence, calling it “an extreme and dangerous path.” Biden said:
I’ve warned about how this decision risks the broader right to privacy for everyone. That’s because Roe recognized the fundamental right to privacy that has served as a basis for so many more rights that we’ve come to take for granted—that are ingrained in the fabric of this country. The right to make the best decisions for your health. The right to use birth control, a married couple in the privacy of their bedroom for God’s sake. The right to marry the person you love. Now 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.
It’s true that no one else joined this radically, horrifically transparent opinion. But Thomas has been calling for the court to overturn Roe for years and today he achieved that goal—which means that these other dreams of his could also become our future if we don’t reform this absolutely corrupted court.