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Associate Supreme Court Justice Clarence Thomas speaks at the Heritage Foundation on Oct. 21, 2021, in Washington, DC. (Drew Angerer/Getty Images/TNS)
Drew Angerer, HO / TNS
WASHINGTON — As the Supreme Court on Friday declared that the Constitution does not confer a right to abortion, Justice Clarence Thomas suggested the court should also reconsider past rulings establishing rights to contraception, same-sex relationships and gay marriage.
“We have a duty to ‘correct the error’ established in those precedents,” Thomas wrote in a concurring opinion, pointing to landmark decisions that protected the right to obtain contraception, the right to engage in private, consensual sexual acts, and the right to same-sex marriage.
No other justices signed onto Thomas’ opinion, and Justice Samuel Alito was clear in his majority opinion that he did not believe the court’s ruling overturning the 1973 Roe v. Wade decision extended to the cases Thomas cited.
But Thomas’ assertions nonetheless served as the alarm bell that Democrats and gay rights advocates have feared since a draft of Friday’s opinion leaked earlier this year — and influential Texas Republicans have already suggested the fight could begin here.
In the Roe ruling, the court declared that abortion access is not protected by the 14th Amendment’s guarantee that no state shall “deprive any person of life, liberty, or property without due process of law” and that the right to abortion is not a form of “liberty” protected by the due process clause.
Thomas says the same goes for the other rights he listed. And he urged the court to go further, scrapping substantive due process — the legal theory underpinning those rights — all together.
“In future cases, we should ‘follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away,’” he wrote. “Substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.”
State Sen. Bryan Hughes, R-Mineola, said he agreed with Thomas’ reasoning — and Friday’s ruling should force the Supreme Court to re-evaluate past decisions that could, in his view, interfere with states’ rights. Hughes, the author of Texas’ “Heartbeat Act,” which last year banned most abortions, said he doesn’t have any particular topics in mind but that the Legislature will likely consider the issue overall when it reconvenes in January.
“This ruling is definitely going to spark those discussions about the balance of power between the state government and the federal government and the power of the courts,” Hughes said. “So, I do think you’ll see legislation pushing back against the feds, pushing back against the federal courts.”
It’s possible that lawmakers could pass bills explicitly challenging the rulings on contraception or same-sex marriage, with the sole intent of bringing the issue before the Supreme Court again. Still, that type of legislation would face fierce opposition from Democrats and centrist Republicans — and it’s unclear if the more moderate House would endorse such proposals.
Representatives for House Speaker Dade Phelan and Lt. Gov. Dan Patrick did not immediately respond to requests for comment.
Substantive due process is a significant legal theory that arises from the Fifth and 14th Amendments and has been used to establish rights that are not directly spelled out in the Constitution. It’s a way to use the courts as a sort of workaround to create new constitutional amendments, which are extremely difficult to pass, said Seth Chandler, a constitutional law professor at the University of Houston Law Center.
The rights outlined by Thomas are the most well known, but the legal theory has also been used in rulings creating a right to work in an ordinary job, a right for parents to raise their children and a right to study a foreign language after Nebraska sought to ban German-language education during World War I.
“This theory that started growing up at the beginning of the 20th century says there are some things that are so wrongful that they’re really not law at all,” Chandler said. “Therefore, when a state prohibits you from raising your children, that’s not really even a law, and therefore they can’t deprive you of that without due process of law.”
The theory has been controversial for more than 100 years, but Thomas’ statements were the most explicit on the subject that Chandler could recall seeing from a member of the high court.
Still, he said, one justice calling for its end does not necessarily mean it is in imminent danger.
“It’s one vote. Thomas couldn’t get any of his conservative friends to go along with it,” he said. “And when you can’t get pretty conservative justices like (Neil) Gorsuch and Alito to go along with you, that’s not a good sign.”
Not all were as confident that other justices weren’t on board.
Lawrence O. Gostin, a professor at Georgetown University Law School who specializes in public health law, told the New York Times that it would be “easy to dismiss Thomas as a lone wolf” and to do so would be a mistake.
Gostin pointed to gun rights as an example. In ruling that the Second Amendment applies to individuals, he said, the court overturned a long-standing precedent. At the time, he said, Justice Antonin Scalia said the decision would not affect other gun safety regulations. But on Thursday, the court issued a major decision expanding gun rights.
“That promise didn’t last,” Gostin said.
ben.wermund@chron.com
