The Supreme Court on Friday finally issued its ruling on Dobbs v. Jackson Women’s Health Organization which, as the leaked draft copy of the opinion indicated nearly two months ago, overruled the abortion rights precedents set by 1973’s Roe v. Wade and 1992’s Planned Parenthood v. Casey.
Justice Clarence Thomas wrote a concurring opinion and argued that other unenumerated constitutional rights based on the same faulty “substantive due process” reasoning as Roe — such as the rights to contraception, gay sex, and gay marriage — should now be reconsidered by the court, Fox News reported.
Thomas’ concurrence served to confirm some of the hyperbolic fear-mongering of Democrats and leftist activists who had fretted over the possibility that the court striking down Roe could eventually result in other court-established rights coming under sharper scrutiny.
Thomas highlights other precedents based on “erroneous” doctrine
In his concurring opinion, Justice Thomas focused on the Supreme Court’s prior interpretations of the Fourteenth Amendment’s “Due Process Clause” that had been extended to cover a variety of purported rights that are not actually found in the Constitution, and instead argued that the clause was only intended to ensure that governments were required to go through an actual “process” prior to depriving an individual of their “life, liberty, or property.”
Thomas noted that the majority “declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts,” and as such, prior precedents like Griswold v. Connecticut (the right to contraception), Lawrence v. Texas (the right to private, consensual sex), and Obergefell v. Hodges (the right to same-sex marriage), were not at risk by this particular ruling.
That said, “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” he wrote. “Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”
“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,” Thomas continued.
He went on to cite three particular “dangers” inherent in the court’s reliance on substantive due process, including the “exaltation” of judges over the people’s authority, how it “distorts other areas of constitutional law,” and how it has led to “disastrous ends.”
Thomas concluded of the substantive due process doctrine, “Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.”
Liberal dissent worries that Thomas may get his wish
SCOTUSblog reported that the three liberal justices keyed in on Thomas’ musings in their joint defense and expressed their disbelief at the assurances of Justices Thomas, Samual Alito, and Brett Kavanaugh that the Dobbs ruling posed no direct threat to the aforementioned precedents that Thomas had nonetheless highlighted for future scrutiny.
They warned that “no one should be confident that this majority is done with its work” in regard to those other unenumerated rights. “Either the mass of the majority’s opinion is hypocrisy,” the dissenters wrote, “or additional constitutional rights are under threat. It is one or the other.”
Of course, should Thomas get his wish and those other precedents based on dubious doctrine are reviewed and potentially overturned in the future, just as Dobbs did with abortion, the issues at the center of those prior precedents would simply be returned to the individual states to regulate as they best see fit.