In the outcry over the US Supreme Court’s decision to overturn abortion rights in America, attention turned Friday to one justice in particular who suggested that other established laws could also be vulnerable.
In the decision to strike down Roe v. Wade, Associate Justice Clarence Thomas, one of the justices on America’s top court, wrote in a concurring opinion (that’s a written opinion that agrees with the majority opinion of the court, but offers a different rationale) that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
Thomas was referring to three cases that involve rights to contraception, same-sex relationships and same-sex marriage in the States.
The “substantive due process” Thomas mentions is an idea that has existed since the 19th century.
It appears in the 14th Amendment of the US Constitution, which says, in part, that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
In 1973’s Roe v. Wade decision, the Supreme Court ruled that a woman had a right to an abortion as part of her right to privacy, which the court determined fell under the right to liberty. Hence, a state law that outright prohibited abortion regardless of the stage of pregnancy or other factors violated that right.
That changed with Friday’s decision, which means abortion is no longer considered a constitutional right.
Write Thomas, “because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.”
He noted that the court’s specific decision Friday was limited to abortion, and did not apply to other laws related to substantive due process.
But he argued that any substantive due-process decision was incorrect, so other precedents should also be reconsidered with that view.
So how likely is it that those other rulings — ones that currently safeguard rights to contraception, same-sex relationships and same-sex marriage — could someday be overturned?
“I think they could well be,” says Bernadette Meyler, a law professor at Stanford University.
“The one reason why I think it’s possible they may not be is that Justice (Brett) Kavanaugh’s separate concurrence tries to draw the line with abortion, and he seems to express reservations about going beyond the decision.”
In agreeing with Friday’s decision, Kavanaugh wrote, “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.”
In order for the other decisions to be overturned, Meyler said, there would likely need to be a law passed that violates what has been established by one of the earlier cases, and then a legal challenge to that law would have to reach the Supreme Court. for a new decision.
These are the specific cases Thomas mentioned.
Griswold v. Connecticut, 1965
In 1961, gynecologist Dr. C. Lee Buxton and the head of Planned Parenthood in Connecticut, Estelle Griswold, opened a birth-control clinic in New Haven. They were arrested and convicted of violating Connecticut’s ban on the use of contraception for prescribing birth control to patients. Their case went to the Supreme Court.
In 1965, the court ruled that consenting adults have a right to marital privacy in terms of sexual relations, and that state bans on birth control violated this right.
Before this ruling, there were federal limits on sharing information about or mailing birth control, and some states, such as Connecticut, completely banned birth control. Griswold v. Connecticut overturned this law and set the stage for the total legalization of contraceptives. Eight years later, in Roe v. Wade, the court would determine that the right to privacy to include a woman’s right to choose an abortion.
Lawrence v. Texas, 2003
In 1998, police responded to a weapons complaint in a Houston apartment and found two men, John Lawrence Jr. and Tyron Garner, involved in sexual activity. The men were charged and convicted for “homosexual conduct.”
The Supreme Court had to determine whether criminalizing sexual intimacy by same-sex couples violated the 14th Amendment.
In this case, the court overturned a previous Supreme Court decision, Bowers v. Hardwick (1986), which found the right to sexual privacy didn’t apply to same-sex couples. Lawrence v. Texas ruled that the right to liberty protected by substantive due process in the 14th Amendment gives same-sex couples the right to consensual sexual intimacy.
The decision set a precedent for recognizing same sex marriage as a right under the US Constitution, in a ruling that would come 12 years later.
Obergefell v. Hodgs, 2015
While the court recognized the right for same-sex couples to engage in consensual sex, it hadn’t yet made a ruling on whether same-sex partners could marry and whether their marriages had to be recognized by the state. While many states and the District of Columbia had already legalized same-sex marriage, some states such as Michigan, Kentucky, Tennessee and Ohio had passed laws defining marriage as a union between a man and a woman.
Groups of same-sex couples filed suits against their respective states, saying that denying them the right to marry or recognizing their marriages performed in another state violated the 14th Amendment.
In 2015, in the case known as Obergefell v. Hodges, the court ruled that the right to marry is protected by a person’s right to liberty and equal protection of the laws, and in doing so, overturned same-sex marriage bans. It declared same-sex marriage legal in all 50 states.
As a result of this case, same-sex couples have the same rights as opposite-sex couples, including spousal benefits.
what comes next
Whether or not the overturning of Roe successfully paves the way for challenges to other laws remains to be seen, but Meyler says one thing is clear: Between Friday’s decision on abortion and Thursday’s decision to expand gun rights, “the Supreme Court is engaging in a really profound revision of how we understand rights.
“It’s a very big change in how rights are understood by the Supreme Court.”
JOIN THE CONVERSATION
Anyone can read Conversations, but to contribute, you should be a registered Torstar account holder. If you do not yet have a Torstar account, you can create one now (it is free)