Friday’s landmark ruling in Dobbs v. Jackson’s Women Health Center is first and foremost about abortion. But the reasoning used by the 6–3 majority to overturn Roe v. Wade can also be applied in other cases where the court has protected a constitutional right through the due process clause. These cases include Griswold v. Connecticut, which established the right to obtain contraception, and Obergefell v. Hodges, which extended the right of marriage to same-sex couples nationwide. A concurring opinion written by Justice Clarence Thomas on Friday shows that both he and the conservative legal movement are targeting those precedents next.
In his opinion for the court, Justice Samuel Alito made something of an attempt to distinguish Roe from other cases that fall under what the court described as “substantive due process” cases. “None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion,” he said, referring to the destruction of what he described as “potential life” during an abortion. “They are therefore inapposite.”
He went even further when it came to the intense criticism he received from the joint dissent by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. “Finally, the dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell,” Alito wrote. “But we have stated unequivocally that ‘nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.’” He went on to add, perhaps with a hint of frustration, that it is “hard to see how we could be clearer.”
Can Americans actually trust the Supreme Court to stop with Roe and go no further? According to Thomas, the answer is “no.” The court’s seniormost justice’s concurring opinion in Dobbs urges his colleagues to overturn all of the court’s substantive due process rights. These would include Griswold, Lawrence, Obergefell—all of which Thomas specifically named in his opinion—and, by extension, other landmark rulings that shape Americans’ everyday lives and liberties.
In his concurrence, Thomas agreed with Alito that Dobbs itself did not directly threaten those precedents. “The Court’s abortion cases are unique, and no party has asked us to decide ‘whether our entire Fourteenth Amendment jurisprudence must be preserved or revised,’” he wrote, quoting from his past writings. “Thus, I agree that ‘nothing in [the court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.’”
But this agreement was more procedural in nature than anything else: Thomas wrote that nobody had asked the court—in this case—to overturn anything else but that, in his view, they should do so at the next available opportunity. “For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” he wrote, quoting again from his previous writings. “Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”
“Correcting the error,” as Thomas put it, would have dramatic implications for American life. Without Griswold, states would be free to ban contraception, even for married couples. Without Lawrence, police could arrest people for engaging in sexual activity previously outlawed by so-called “sodomy laws.” (Though this would primarily affect people in same-sex relationships, it could also conceivably apply to a significant number of heterosexual couples as well.) And without Obergefell, states would once again be free to deny Americans the right to unite themselves in marriage to the person they love.
Why would these decisions be imperiled? Alito’s argument against a constitutional right to obtain an abortion rests on the premise that such a right was not firmly rooted in the Anglo-American legal tradition. He cited a chain of legal scholars stretching back to medieval England who viewed abortion as equivalent to homicide—the exact opposite of a right. He also noted that most states criminalized or otherwise banned abortion until the 1960s, suggesting that it was not rooted in the postrevolutionary constitutional firmament of rights either.
“The same could be said, though, of most of the rights the majority claims it is not tampering with,” the liberal justices noted. “The majority could write just as long an opinion showing, for example, that until the mid-20th century, ‘there was no support in American law for a constitutional right to obtain [contraceptives].’ So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”
According to Thomas, it is the latter. He criticized previous generations of justices for establishing rights that weren’t clearly delineated from the Constitution itself. “In practice, the Court’s approach for identifying those ‘fundamental’ rights ‘unquestionably involves policymaking rather than neutral legal analysis,’” he wrote, again citing his past writings. “The Court divines new rights in line with ‘its own, extra-constitutional value preferences’ and nullifies state laws that do not align with the judicially created guarantees.”
Thomas also argued that the court’s approach to substantive due process had caused immeasurable harm to American society. The two examples he cited were Dred Scott v. Sandford, which he described as a substantive due process case, and the court’s abortion jurisprudence, to which he attributed 63 million abortions since 1973. It is unclear how the use of contraception, the decriminalization of same-sex relationships, or the existence of married same-sex couples harms anyone in any way. But that may not be enough to save them.
The court’s defenders might try to reassure Americans by noting that Thomas wrote only for himself and that Alito’s attempt to distinguish the precedents is the actual opinion of the court. That would be more comforting if Thomas’s previous concurring and dissenting opinions weren’t increasingly turning into the opinion of the court down the road. For years, he complained that his colleagues had let the Second Amendment turn into a “second-class right.” His majority opinion in New York State Rifle and Pistol Association v. Bruen earlier this week aggressively reversed that trend.
Indeed, Alito’s own opinion in Dobbs includes no fewer than nine references to concurring and dissenting opinions written by Thomas himself over the past few decades. And Alito himself has called upon his colleagues in the past to reconsider the scope of Obergefell in particular, arguing that it unfairly singled out Americans who oppose same-sex marriage as bigots and did not sufficiently respect their rights to religious freedom.
There is nothing funny about Friday’s ruling. But it is darkly ironic that Alito went to such great lengths to tell Americans that the court’s ruling in Dobbs wouldn’t disturb any other constitutional rights, only for his closest ally on the court effectively to declare open season upon them. Future efforts by the Supreme Court should thus come as no surprise.