On Friday, the Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization that abortion is not constitutionally protected.
However, although Justice Samuel Alito made clear in his majority opinion that the decision has no implication for other rights, a concurrence by Justice Clarence Thomas argued otherwise.
Specifically, Thomas wrote that just as the 14th Amendment’s Due Process Clause does not protect abortion, it also does not protect several other behaviors as well.
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas declared.
In Griswold v. Connecticut, the Court found a right to “marital privacy” which protected the use of contraception while in Lawrence v. Texas and Obergefell v. Hodges it found rights to gay marriage and homosexual activity.
“Because any substantive due process decision is ‘demonstrably erroneous,’ […] we have a duty to ‘correct the error’ established in those precedents,” the justice wrote.
However, although Thomas made clear that he does not believe gay marriage and contraception are protected by the 14th Amendment’s Due Process Clause, he acknowledged that both may be protected by other parts of the Constitution.
“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,” he said.
“To answer that question, we would need to decide important antecedent questions, including whether the Privileges or Immunities Clause protects any rights that are not enumerated in the Constitution and, if so, how to identify those rights,” the justice acknowledged.
“That said, even if the Clause does protect unenumerated rights, the Court conclusively demonstrates that abortion is not one of them under any plausible interpretive approach,” Thomas remarked as he drew to a close.
Despite Thomas being the lone conservative justice to even mention contraception or gay marriage, many on the left were quick to announce that both are now in danger.
MSNBC host Rachel Maddow tweeted, “Being in a same sex marriage now means there is a target on you from this court.”