Justice Clarence Thomas’s concurrent opinion calling on the Supreme Court to reconsider landmark cases protecting access to contraceptives and LGBTQ rights is striking fear among Democrats, with many worried about how far the conservative court will go after it took the extraordinary step of reversing Roe v. Wade.
In his concurring opinion to Friday’s ruling, Thomas wrote that “in future cases, we should reconsider all of this Court’s substantive due process precedents,” arguing that the Constitution’s Due Process Clause did not secure a right to abortion or any other substantive rights.
Friday’s majority opinion — written by Justice Samuel Alito — said Roe should be reversed because the right to an abortion is not protected by the Due Process Clause in the 14th Amendment of the Constitution.
Thomas made it crystal clear exactly what rights he was considering by naming cases explicitly, listing Griswold v. Connecticut, the 1965 decision that allowed married couples to access contraceptives; Lawrence v. Texas, the 2003 case that barred states from outlawing consensual gay sex; and Obergefell v. Hodges, the 2015 ruling that made same-sex marriage a constitutional right.
Alito, writing for the court’s majority, wrote that in overturning Roe v. Wade, the court was not advocating for changing those other rulings.
But critics of the court on the left have noted that few thought Roe v. Wade itself was in jeopardy five years ago, and suggest it is unclear how a future conservative court will move forward.
Democrats have highlighted the Thomas concurrent opinion, arguing it makes clear his own plans.
“If you read what is very clear – one of the Justices had his own statement: it’s about contraception, in vitro fertilization, family planning,” Speaker Nancy Pelosi (D-Calif.) said at a Friday press availability where she denounced the ruling. “That is all what will spring from their decision that they made today.”
The court’s liberal justices offered a similar warning.
“No one should be confident that this majority is done with its work,” Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote in a joint dissent.
“The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation,” they added.
The swift changes to American life from Friday’s decision have been stunning to many.
As of Friday, nine states had banned abortion, according to the Guttmacher Institute.
On Sunday, South Dakota Gov. Kristi Noem, a Republican, said she would move to ban abortion pills delivered online. Other states are expected to make similar moves.
Thomas, who was nominated by President George H.W. Bush more than 30 years ago and is considered by some to be the most conservative justice on the bench, in his concurrent said the court must “correct the error” of the three landmark cases he mentioned.
“Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents,” he wrote.
Rep. David Cicilline (D-R.I.), chairman of the Congressional LGBTQ+ Equality Caucus, said the current moment is a “dangerous time” for individuals who hold human rights and civil liberties in high regard.
“They are taking away rights that people in this country enjoyed. And I think anyone who cares about any marginalized community, like the LGBTQ community, has to be alarmed at both the Supreme Court’s willingness to complete[ly] disrupt, disregard precedent, and secondly, to remove basic fundamental rights that citizens of this country have enjoyed for decades,” he said. “So this is a very dangerous time for people who care about human rights and civil liberties.”
Rep. Barbara Lee (D-Calif.), in an interview with MSNBC outside the Supreme Court on Saturday said the ruling overturning Roe is part of extremist Republicans’ “long-term agenda.”
“This is part of a long-term agenda of the far-right extremist Republicans to begin to erode our democratic rights starting with, of course, our right to reproductive freedom and our personal liberties,” Lee, a vice chair of the LGBTQ+ Equality Caucus, said.
“They’re not gonna stop there, what’s next? Same-sex marriage. What’s next? Voting rights, could be, banning interracial marriages. Who knows where they’re going,” she added.
Democrats have hoped that outrage with the decision on Roe v. Wade and fear of rights the court might go after next could energize their voters ahead of this fall’s midterm elections.
Republicans, who have been feeling confident about winning back the House majority and quite possibly the Senate, believe the focus of voters will remain on inflation and high gas prices.
But there have been statements from the right indicating a wariness of how the court’s direction might reverberate.
Sen. Lindsey Graham (R-S.C.) on Sunday said Alito had “set the right tone,” implicitly pushing back at the message from Thomas.
“He said nothing in this decision puts those cases at risk,” Graham said during an appearance on Fox News Sunday, referring to the cases mentioned by Thomas.
“The reason he decided that Roe v. Wade was wrongly decided is because it deals with the potential for life,” the senator said.
“These other privacy issues like contraception do not deal with the potential for life,” the senator said. “He made a distinction between same-sex marriage and contraception, which I think will win the day over time.”