Justice Thomas: Reconsider ‘all’ substantive due process cases

FILE - In this Feb. 15, 2018, file photo, Supreme Court Associate Justice Clarence Thomas sits as he is introduced during an event at the Library of Congress in Washington. Thomas is asking his first questions at Supreme Court arguments in more than three years. Arguments were almost over Wednesday in a case about racial discrimination in the South when the court’s only African-American member and lone Southerner piped up.(AP Photo/Pablo Martinez Monsivais, File)

FILE – In this Feb. 15, 2018, file photo, Supreme Court Associate Justice Clarence Thomas sits as he is introduced during an event at the Library of Congress in Washington. (AP Photo/Pablo Martinez Monsivais, File)

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UPDATED 2:00 PM PT – Friday, June 24, 2022

Justice Clarence Thomas said Dobbs could set precedent to overturn several landmark cases. In his concurring opinion issued on Friday, Thomas said all cases dealing with substantive due process precedents should be reconsidered.

“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” voiced Thomas. “Any substantive due process decision is demonstrably erroneous. We have a duty to correct the error established in those precedents.”

Thomas mentioned that the three cases are all landmark decisions that established certain constitutional rights. In Griswold v. Connecticut, the court ruled in 1965 that married couples have a right to access contraceptive. In 2003, the court said in Lawrence v. Texas that states could not outlaw consensual gay sex. The Court’s 2015 decision in Obergefell v. Hodges established a constitutional right to same-sex marriage.

He noted cases favoring contraception, same sex marriage and “homosexual conduct” could be overturned. This comes after the Supreme Court handed down an opinion overturning Roe v. Wade, arguing the right to an abortion is not a form of liberty under the due process clause of the Fourteenth Amendment.

“I join the opinion of the Court because it correctly holds that there is no constitutional right to abortion,” he said. “Respondents invoke one source for that right. The Fourteenth Amendment guarantees that no State shall deprive any person of life, liberty, or property without due process of law. The Court well explains why under our substantive due process precedents the purported right to abortion is not a form of liberty protected by the Due Process Clause. Such a right is neither deeply rooted in this Nation’s history and tradition nor implicit in the concept of ordered liberty.”

Thomas claimed that it is the duty of the Court to correct these errors.

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