Clarence Thomas: SCOTUS should reconsider decisions on contraception, same-sex marriage

Justice Clarence Thomas argued in a concurring opinion released on Friday that the Supreme Court “should reconsider” its past rulings codifying rights to contraception access, same-sex relationships, and same-sex marriage.

The broad recommendation from the justice on the court with the longest tenure came in the concurring opinion he wrote in opposition to the court’s decision to revoke the constitutional right to abortion, which was also made public on Friday.

Dobbs v. Jackson Women’s Health Organization, a hotly contested case that overturned the 1973 Roe v. Wade ruling that enshrined the right to an abortion in federal law, was decided on Friday, and Thomas sided with the majority.

In a few other cases, rights revealed through “substantive due process” were justified using the same legal argument that had previously been used to defend a right to an abortion in Roe.

“We should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote in concurrence to Justice Samuel Alito’s majority opinion.

“We have a duty to ‘correct the error’ established in those precedents,” he continued. “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 long opposed “substantive due process,” a view of the 14th Amendment that holds that the due process provision extends to rights that are not expressly protected by the Constitution and rights that are not subject to stringent legal procedures.

Jacob Meckler, a legal clerk at the America First Legal Foundation, told The Daily Wire that Thomas’ interpretation of the 14th Amendment is that it “protects the processes by which your rights are adjudicated, not the actual rights themselves.”

For instance, the Second Amendment’s express guarantee of the right to bear arms is a substantive right, as opposed to the Fifth Amendment’s prohibition on being forced to testify against one’s will.