The court’s decision on abortion indicates that a wide range of civil and human rights are at risk.
During the period between the unprecedented leak of Justice Alito’s majority opinion on Dobbs v. Jackson Women’s Health Organization and the Supreme Court’s decision to overturn Roe v. Wade, some political pundits and legal scholars have argued that the court would not stop at abortion—that established rights including gay marriage and even contraception could be next. But it was unclear whether and when these other rights could come under fire.
Now a concurring Dobbs opinion by Justice Clarence Thomas has made clear which previously settled rights could be next to fall.
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote. “Because any substantive due process decision is ‘demonstrably erroneous’ … we have a duty to ‘correct the error’ established in those precedents … 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.”
Griswold provided the right for married couples to access contraceptives, and Obergefell legalized same-sex marriage nationwide. These rights, like abortion, were thought to be settled law. But the court made it clear that it had no problem with overturning precedent in new decisions. “We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives,” Alito wrote in the court’s deciding majority opinion.
In the opinion, Justice Alito argued that the court’s reasoning only applies to abortion, and does not apply to cases such as Griswold, Lawrence, or Obergefell. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” he said. But Democrats and liberal activists find it difficult to trust Alito’s words given Thomas’ concurrence, and given that Justices Kavanaugh and Gorsuch characterized Roe as settled law during their confirmation hearings.
Republican Senator Susan Collins of Maine and Democratic Senator Joe Manchin of West Virginia had supported both Justices during their Senate hearings, and now suggest that they were misled by their rhetoric on Roe.
“This decision is inconsistent with what Justices Gorsuch and Kavanaugh said in their testimony and their meetings with me, where they both were insistent on the importance of supporting long-standing precedents that the country has relied upon,” said Collins in a statement. She went on to say that the ruling would produce “a sudden and radical jolt to the country that will lead to political chaos, anger, and a further loss of confidence in our government.”
Senator Manchin put out a similar statement, arguing that the ruling undermined established law: “I am deeply disappointed that the Supreme Court has voted to overturn Roe v. Wade. It has been the law of the land for nearly 50 years and was understood to be settled precedent. I trusted Justice Gorsuch and Justice Kavanaugh when they testified under oath that they also believed Roe v. Wade was settled legal precedent and I am alarmed they chose to reject the stability the ruling has provided for two generations of Americans,” said Manchin.
President Biden argued that the majority opinion, along with Justice Thomas’ concurrence, “risks the broader right to privacy for everyone.”
The court’s decision on abortion indicates that a wide range of civil and human rights are at risk. The decision is also likely to reignite the arguments for increasing the number of Justices on the Supreme Court or reducing their power through legislative means. President Biden has repeatedly rejected calls to increase the number of Justices on the Supreme Court. But the court’s ruling on Roe is likely to place abortion, as well as court reform, at the center of Democratic politics for the foreseeable future. Future Democratic nominees will likely have to pledge to pursue court reform in order to reign in a highly ideological conservative majority opposed to national public opinion. This pledge could also be followed by other major structural promises, such as getting rid of the Senate filibuster.
But any firm decisions on court reform and the filibuster are likely years away, to be made by a new Democratic president. In the meantime, millions of women across the country will suffer under a conservative court. And there is no telling which right might fall next.