Supreme Court Justice Clarence Thomas suggested the court should re-evaluate decisions that protect gay marriage and access to birth control after the legal right to an abortion was overturned on Friday.
The conservative judge wrote that the court should “reconsider” other cases decided on the legal theory of “substantive due process,” including judgments establishing rights for LGBTQ people and women who choose to use contraception, NBC News reports.
Thomas cited the Supreme Court decisions in Griswold v. Connecticut in 1965, which established that married couples have the right to obtain and use contraceptives; Lawrence v. Texas 2003, which established the right to consensual same-sex intimacy and Obergefell, a 2015 Supreme Court decision to establish the right for same-sex couples to be married.
All three landmark rulings, as well as Roe v. Wade and Planned Parenthood v. Casey, which had established a legal right to abortion care before Friday, primarily drew on the notion of substantive due process. It refers to the idea that people have fundamental rights that aren’t expressly established in the Constitution.
“As I have previously explained, ‘substantive due process’ is an oxymoron that ‘lack[s] any basis in the Constitution,’” he wrote. He later called it a “legal fiction” that is “particularly dangerous.”
“In 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 wrote.
Thomas came to the conclusion that nearly all previous cases that relied on the theory should also be overturned since the court in its decision on Friday drew heavily on that very premise because it is not guaranteed by the Constitution.