In the wake of the stunning U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which abolishes a constitutional right to abortion, there are many things to unravel in Justice Samuel Alito’s majority opinion, three concurrences by Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh, and a dissent from the Court’s three liberal justices. But something that jumps right off the page from the Thomas concurrence like a terroristic threat is his conclusion that having discarded Roe v. Wade, the Court should next move on to the landmark decisions that relied on similar constitutional foundations. He writes:
For this reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.
Griswold v. Connecticut was the 1965 decision that struck down state contraception bans via a constitutional right to privacy. Lawrence v. Texas was the 2003 decision that struck down state “sodomy laws” and fully legitimized same-sex relationships. And Obergefell v. Hodges was the 2015 decision that recognized same-sex marriages as constitutionally protected. All three cases depended, to some degree, on the doctrine that the 14th Amendment’s due-process clause was not simply procedural but conferred some “substantive” rights. Thomas is calling for the conservative counterrevolution now raging due to the brazen dismissal of precedents in Dobbs to proceed to the next logical targets.
In this step, Thomas is reinforcing his reputation for constitutional radicalism or, perhaps, burnishing his credentials as being braver, bolder, and more public in that radicalism than his conservative colleagues. In the majority opinion in Dobbs, Alito sought to head off any immediate speculation that the fall of Roe and Planned Parenthood v. Casey would lead to the destruction of other key privacy rights.
As even the Casey plurality recognized, “[a]bortion is a unique act” because it terminates “life or potential life.” 505 U. S., at 852; see also Roe, 410 U. S., at 159 (abortion is “inherently different from marital intimacy,” “marriage,” or “procreation”). And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.
But try as he may, Alito cannot limit the damage he has inflicted with the constitutional dynamite of Dobbs. We are now fully in a new and dangerous era of Supreme Court jurisprudence in which few precedents are safe.
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