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Supreme Court Justice Clarence Thomas

U.S. Supreme Court Justice Clarence Thomas appears at the White House on October 26, 2020. (Photo: Jonathan Newton/The Washington Post via Getty Images)

'Tip of the Iceberg': Thomas Says Court Should Reconsider Marriage Equality, Right to Contraception

"It is clear he and the court's majority have no respect for other precedents that have been won in recent decades," said Rep. Pramila Jayapal.

Julia Conley

U.S. Supreme Court Justice Clarence Thomas made clear in his concurring opinion regarding the overturning of Roe v. Wade that the high court has no intention of stopping its rollback of Americans' rights, naming cases that centered on marriage equality and the right to obtain contraception as previous rulings that should be revisited.

"This Supreme Court is out of touch with the American people and increasingly suffers a legitimacy crisis."

"It does not end at abortion. Republicans will not stop until they have stripped away every freedom they can't load with bullets," said MoveOn Executive Director Rahna Epting, referring to this week's ruling by the Supreme Court's right-wing majority that New York's restrictions on carrying concealed weapons were unconstitutional.

In his concurrence, quoting Justice Samuel Alito's opinion, Thomas wrote, "I agree that 'nothing in [the court's] opinion should be understood to cast doubt on precedents that do not concern abortion.'"

"For that reason," Thomas wrote, "in future cases, we should reconsider all of the Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell."

The 1965 Griswold v. Connecticut ruling affirmed that the government cannot interfere in people's procurement of contraceptives, while Lawrence v. Texas in 2003 overturned a Texas law which had effectively made sexual relationships between people of the same sex illegal in the state. Obergefell v. Hodges, decided in 2015, affirmed that same-sex couples can legally marry.

Like the court's decision in Dobbs v. Jackson Women's Health Organization on Friday, the overruling of the decisions listed by Thomas would be deeply unpopular with the American public.

That is unlikely to stop the right-wing majority from overturning those rulings, said Rep. Pramila Jayapal (D-Wash.), chair of the Congressional Progressive Caucus.

"It is clear he and the court's majority have no respect for other precedents that have been won in recent decades," said Jayapal. "This Supreme Court is out of touch with the American people and increasingly suffers a legitimacy crisis."

The three liberal justices who dissented against the ruling denounced Alito's claim that the decision would not have an effect on other rights previously protected by the court.

"They are all part of the same constitutional fabric, protecting autonomous decision-making over the most personal of life decisions," the dissent reads. "The lone rationale for what the majority does today is that the right to elect an abortion is not 'deeply rooted in history.'"

Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer added:

The same could be said, though, of most of the rights the majority claims it is not tampering with... 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.

Economist Umair Haque said the ruling handed down Friday was "just the beginning, sadly, of the theocratic fascist project reaching its culmination in earnest now."

As progressives called for legislative and executive action to codify the right to abortion care into federal law, attorney and Democratic U.S. House candidate Suraj Patel called on Congress to "move now" to ensure the right to contraception, same-sex relationships, and marriage equality are protected.

"Congress has that power right now. Hold the vote," said Patel. "For 50 years Republicans told us their playbook, they attacked Roe at the edges, we didn't codify it. Let's not be naive and not anticipate what's coming."


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