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In their dissent in Dobbs v. Jackson Women’s Health Organization, Justices Stephen Breyer, Elana Kagan, and Sonia Sotomayor said that today’s ruling doesn’t just turn back the clock on reproductive rights, it also “places in jeopardy other rights, from contraception to same-sex intimacy and marriage.”
Writing for the court’s conservative majority, Justice Samuel Alito took note of the dissenters’ concerns, but he dismissed them as foolish. The far-right jurist suggested his center-left colleagues were simply trying to “stoke unfounded fear that our decision will imperil those other rights.”
Perhaps Alito skipped past the concurring opinion from Justice Clarence Thomas. It read in part:
“[I]n future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous’ ... we have a duty to ‘correct the error’ established in those precedents.”
Thomas added that Griswold, Lawrence, and Obergefell deserve to be overturned because they were “demonstrably erroneous decisions.”
For folks who may not immediately recognize the names of these cases, let’s quickly review what Thomas was arguing.
- Griswold v. Connecticut: In 1965, the U.S. Supreme Court, in a 7-to-2 ruling, struck down a Connecticut law that restricted married couples’ access to birth control. The court majority said such statutes are impermissible because they violate Americans’ right to privacy.
- Lawrence v. Texas: In 2003, in a 6-3 decision, the justices ruled that anti-sodomy laws are unconstitutional. In the process, the high court, for the first time, made sexual activity between same-sex partners legal in the United States.
- Obergefell v. Hodges: In 2015, in a 5-4 ruling, the Supreme Court declared that the right to get married cannot be limited solely to straight couples. In the process, the justices brought marriage equality to every state in the nation.
Alito would have us believe there’s no cause for concern, and that the demise of Roe does not necessarily mean the demise of other existing civil rights.
And yet, there’s Thomas, already putting in writing his belief that Griswold, Lawrence, and Obergefell were “demonstrably erroneous decisions” in need of overturning.
To be sure, Thomas is one justice, not five, and the fact that he wants to turn back the clock does not mean he’ll succeed. But in the very recent past, many believed the Roe precedent would endure, too, and now we know better.