Clarence Thomas Uses Immigration Case to Attack the Right to Birth Control

The Supreme Court justice seized the opportunity, on his 75th birthday, to remind everyone that he really hates the 1965 opinion in Griswold v. Connecticut.

By Susan Rinkunas | June 23, 2023 | 5:30pm

Justice Politics

Clarence Thomas Uses Immigration Case to Attack the Right to Birth Control

One year ago this week, the Supreme Court overturned Roe v. Wade, ending the federal right to abortion. Justice Clarence Thomas agreed with that decision, but wrote separately to say that the court should also overturn the cases legalizing marriage equality and guaranteeing the right to use birth control. The latter case, Griswold v. Connecticut, was decided back in 1965 and laid the right-to-privacy foundation on which Roe was built. Thomas called the opinion “demonstrably erroneous” in his Dobbs concurrence.

On Friday—his 75th birthday, incidentally—he reminded everyone again that he really, really hates that old birth control ruling; and this time he chose to do so in an immigration case.

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In U.S. v. Hansen, Justice Amy Coney Barrett wrote that a federal law that allows prosecutors to charge people for “encouraging” or “inducing” people to enter or remain in the U.S. without authorization doesn’t violate the First Amendment right to free speech. It was a 7-2 decision, with only Justices Sonia Sotomayor and Ketanji Brown Jackson dissenting. Justice Kagan joined Barrett’s opinion. (Elena, girl, wyd?)

Thomas wrote a concurring opinion in which he dropped a little anti-contraception easter egg, as a treat. Lawyer and legal analyst Mike Sacks flagged it here:

Thomas writes: “This case demonstrates just how far courts have drifted from their original station of adjudicating the rights of the parties before them in accordance with law. In an appropriate case, we should carefully reconsider the facial overbreadth doctrine.” Then he adds in a footnote: “The facial overbreadth doctrine is but one manifestation of the Court’s larger drift away from the limited judicial station envisioned by the Constitution.” He cites Griswold as one of five cases that the Framers—18th century drunk white guys who didn’t think Black people like Thomas should even be allowed to vote, mind you—wouldn’t have liked. Translation: Won’t some innocent little legal outfit bring me a case I can use to overturn Griswold and other stuff?

Thomas’ comments are a bleak reminder that we haven’t yet seen the full consequences of last year’s Dobbs ruling. Not only are politicians still working to ban abortion at the state and federal level, but at least one SCOTUS justice is joining anti-abortion activists in coming for birth control, too.