Clarence Thomas calls for Supreme Court to 'reconsider' gay marriage, contraception after Roe v. Wade falls

No other justice joined Thomas' concurrence and the Supreme Court's majority opinion rejected the idea that other rights could fall after the demise of Roe v. Wade.

  • Abortion rights advocates had long warned that other rights could be at stake if Roe fell.
  • In the majority opinion, Justice Alito wrote that other rights were not at issue in the ruling.
  • Still experts have predicted that overturning Roe will lead to challenges over same-sex marriage.

WASHINGTON – Associate Justice Clarence Thomas called on the Supreme Court to "reconsider" other rights established by the high court in the wake of its decision to overturn Roe v. Wade, including access to contraception and gay marriage, in an opinion that sparked an outcry on the left.

Thomas' concurring opinion – which no other member of the court joined – tracks with an argument abortion rights groups had made for months leading up to the court's blockbuster abortion decision: a ruling that the Constitution doesn't protect a right to an abortion would jeopardize other rights the court established under the 14th Amendment

"In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell," Thomas wrote, referring to landmark opinions that blocked states from banning contraception, sex by same-sex couples and gay marriage. "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."

Background:Could rights to same-sex marriage, contraception be next?

Explainer:What is the 14th Amendment, and what does it have to do with Roe?

Thomas:Justice Thomas celebrates 30 years on a court moving in his direction

The Constitution doesn’t explicitly guarantee a right to abortion, but a 7-2 majority in Roe v. Wade held that the 14th Amendment’s protection of "liberty" includes the right to terminate a pregnancy. Several of the justices in Roe drew on another landmark opinion decided eight years earlier that legalized contraception for married couples.

Associate Justice Clarence Thomas

The court overturned Roe v. Wade on Friday, a major decision that will allow individual states to decide whether to ban the procedure. The court noted that abortion is not explicitly mentioned in the Constitution. Abortion rights advocates point out the same is true for many other rights that millions of Americans take for granted today.   

In Griswold v. Connecticut, the Supreme Court invalidated a law that forbid contraception, finding the Bill of Rights created "zones of privacy" for married couples. Decades later, in 2015, the court relied on a similar theory in Obergefell v. Hodges that legalized same-sex marriage nationally and a 2003 ruling in Lawrence v. Texas that invalidated state prohibitions on sodomy.

Those rights were based on a similar approach to the Constitution, that the 14th Amendment provides for some rights – such as privacy – that are not explicitly stated in the founding document.  

What about Loving v. Virginia? 

Thomas didn't mention another major decision based on the same approach, a landmark civil rights ruling in 1967 that invalidated laws banning interracial marriage. Though Thomas, who is married to a white woman, didn't cite that case, several of his colleagues did. Associate Justice Brett Kavanaugh, who joined the majority's opinion, listed it among the precedents he said were not jeopardized by the court's abortion decision. 

"I emphasize what the court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents," Kavanaugh wrote.

The court's liberal justices drew attention to that decision in a dissent, noting that the 14th Amendment's drafters did not likely think it would give "Black and white people a right to marry each other. To the contrary, contemporaneous practice deemed that act quite as unprotected as abortion."

The Constitution, the court's liberal wing wrote, "does not freeze for all time the original view of what those rights guarantee, or how they apply."

Jim Obergefell, who was the lead plaintiff in Obergefell v. Hodges and is running as a Democrat for a seat in the Ohio legislature, questioned Thomas' omission.  

"For Justice Thomas to completely omit Loving v. Virginia, in my mind, is quite telling," Obergefell told MSNBC said. "That affects him personally."  

Obergefell: 'Our right to privacy'

Obergefell told the Cincinnati Enquirer, part of the USA TODAY Network, that the abortion ruling calls on opponents of same-sex marriage to "start their engines and to come after those rights."

"This very clearly paints a target on our right to privacy, our right to commit to the person we love and to form our families," he said.

It's notable that Thomas, perhaps the court's most conservative justice, wrote alone to argue for revisiting other rights. The court's majority opinion, written by Associate Justice Samuel Alito, another conservative, also shot down the idea.

Alito draws a distinction between abortion and other rights because, he says, abortion involves the life or potential life of a fetus or embryo.

"And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right," Alito wrote. "Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion."

Contraception at risk? 

Still, advocates say such challenges are likely to arrive in federal courts in the coming years. The Supreme Court often tries to limit the impact of its decisions with such language, but that rarely prevents lawyers from trying to test those limits. 

The potential for a legal fight over contraception in a post-Roe world may be particularly high, experts have said. That’s because contraception was at the heart of the 2014 Hobby Lobby case in which the court ruled companies with religious objections cannot be forced to offer insurance for certain birth control methods they equate with abortion.

The Human Rights Campaign said Thomas "had some alarming things to say about Obergefell v. Hodges and Lawrence v. Texas," but the LGBTQ civil rights organization acknowledged that the justice spoke for himself.

"Our fight right now is centered on ensuring people still have access to the abortion and reproductive services they need, but make no mistake: We will not back down from defending the progress we have made and keeping the fight for full LGBTQ+ equality going," the group posted on Twitter.