This past Friday, Clarence Thomas, a Justice of the Supreme Court of the United States, called out the high court by claiming that they should “reconsider” its recent decision in regards to finding the constitutional rights to contraception and same-sex relationships through a controversial legal theory.
Recently, Thomas issued his ruling alongside the majority in Dobbs v. Jackson Women’s Health Organization, a much-anticipated ruling that effectively overturned the 1973 decision in Roe v. Wade, which officially codified the right to abortion via federal law. The same legal theory that gave support to the right to get an abortion in Roe was also utilized in a select few other cases in order to justify certain rights disocvered through “substantive due process.”
Thomas stated in a concurrence sent to Justice Samuel Alito’s majority opinion that “we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
“We have a duty to ‘correct the error’ established in those precedents,” he went on. “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 has been a vocal critic for quite some time of “substantive due process,” or a reading of the 14th amendment that asks if amendment’s due process clause applies to any rights beyond the strict legal procedures and rights not outright stated as protected in the Constitution.
The view Thomas holds of the 14th Amendement is that it “protects the processes by which your rights are adjudicated, not the actual rights themselves,” stated one law clerk for the America First Legal Foundation, Jacob Meckler. For example, the right to a firearm is explicitly protected by the Second AMendment is a substantive right, but the Fifth Amendment right that blocks someone from self-incrimination is a procedural right.
In regards to Dobbs, the right to get an abortion was, after the fact, read into the constitution via the 14th Amendment but had no explicit basis using the due process clause. The stated due process clause says: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
As determined from the reasoning from the Dobbs decision, the now needs to go back and look at any other cases based on the “substantive due process” theory, claimed Thomas.The justice also stated that the other legal rights that were based on the thoery could still be quite valid, though the court would require a different textual basis for them.
The justice gave three examples of cases that needed to be looked over. From 1965, Griswold v. Connecticut, dealth with the creation of a right to contraceptives. In 2003, Lawrence v. Texas was decided and read into the Constitution the right to private secual conduct which extended out to the right to same-sex relationships. Finally in 2015, Obergefell v. Hodges was finalized and guaranteed a right for the marriage of same-sex couples.