Justice Thomas: Supreme Court Should Reconsider Rulings on Same-Sex Marriage, Contraception

Associate Justice Clarence Thomas sits during a group photograph of the justices at the Supreme Court in Washington on April 23, 2021. Erin Schaff/Pool/AFP via Getty Images

Supreme Court Justice Clarence Thomas wrote Friday that the high court should reconsider rulings on contraception, same-sex relationships, and same-sex marriage in a solo concurring opinion released Friday that struck down Roe v. Wade.

The Republican-appointed justice argued that the Supreme Court should reconsider other cases that fall under prior due process precedents.

“I write separately to emphasize a second, more fundamental reason why there is no abortion guarantee lurking in the Due Process Clause,” Thomas wrote. “Considerable historical evidence indicates that ‘due process of law’ merely required executive and judicial actors to comply with legislative enactments and the common law when depriving a person of life, liberty, or property.”

With Friday’s ruling, the “court declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts,” he also wrote (pdf), adding that cases like Griswold v. Connecticut—giving the right of married persons to obtain contraceptives—as well as Lawrence v. Texas—a ruling on the right to engage in a private, consensual sexual act—and Obergefell v. Hodges—the right to same-sex marriage—should be revisited.

“I agree that ‘[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion,’” Thomas added while citing Justice Samuel Alito’s majority opinion released Friday.

The justice argued that based on that precedent, “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”

The 6–3 decision upheld Mississippi’s 15-week abortion ban, which directly clashed with Roe v. Wade’s requirement that states allow abortion to the point of fetal viability, around 24 weeks. The ruling also struck down the 1992 Planned Parenthood v. Casey decision that reaffirmed Roe.

“Roe was egregiously wrong from the start,” Alito wrote for the majority in striking down the two landmark decisions. “Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” he continued.

As the decision reverberated throughout Washington, crowds of pro-life activists, who had gathered outside the courthouse for days, erupted in cheers.

“I’m ecstatic,” said Emma Craig, 36, of Pro Life San Francisco. “Abortion is the biggest tragedy of our generation and in 50 years we'll look back at the 50 years we’ve been under Roe v. Wade with shame.”

Mississippi’s law had been blocked by lower courts as a violation of Supreme Court precedent on abortion rights. Abortion is likely to remain legal in Democrat-run states.

More than a dozen states currently have laws protecting abortion rights. Numerous Republican-led states have passed various abortion restrictions in defiance of the Roe precedent in recent years.

Reuters contributed to this report.