Abortion Law Rights

How Clarence Thomas’ Concurring Opinion Suggests Other Rights May Be Vulnerable After Roe: Analysis

Justice Clarence Thomas with Sonny Perdue on April 25, 2017, Wikimedia Commons

By Meaghan Ellis / AlterNet

A new analysis is breaking down the context of U.S. Supreme Court Justice Clarence Thomas’ concurring opinion following the overturning of Roe v. Wade. The New York Times’ Sheryl Gay Stolberg explained how Thomas’ remarks appear to suggest that the abortion ban could only be the beginning of the conservative attack on civil rights.

According to Stolberg, Thomas “laid out a vision that fomented fears about what other rights could disappear: The same rationale that the Supreme Court used to declare there was no right to abortion, he said, should also be used to overturn cases establishing rights to contraception, same-sex consensual relations, and same-sex marriage.”

Although Justice Samuel A. Alito’s majority opinion insists the ruling on abortion “should be understood to cast doubt on precedents that do not concern abortion,” Stolberg emphasized that Thomas also argued that the court’s majority does not view abortion as “a form of ‘liberty’ protected by the due process clause of the 14th Amendment to the Constitution.”

She went on to note three cases that he used as an example to support his arguments as they were ruled upon according to the same line of reasoning. Stolberg noted that Thomas “took aim at three other landmark cases that relied on that same legal reasoning: Griswold v. Connecticut, a 1965 decision that declared married couples had a right to contraception; Lawrence v. Texas, a 2003 case invalidating sodomy laws and making same-sex sexual activity legal across the country; and Obergefell v. Hodges, the 2015 case establishing the right of gay couples to marry.”

She continued, “Justice Thomas wrote that the court ‘should reconsider’ all three decisions, saying it had a duty to ‘correct the error’ established in those precedents. Then, he said, after ‘overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions” protected the rights they established.'”

Stolberg noted that Thomas’ language is a prime example of the epitome of what abortion and LGBTQ advocates have expressed concern about. Advocates have repeatedly warned that the overturn of Roe v. Wade would only be the beginning of a conservative attack that could subsequently lead to attacks on “the right to contraception and same-sex marriage.”

The critical assessment of Thomas’ remarks comes as the liberal SCOTUS justices also express their dissent regarding the unprecedented ruling. As reports began circulating about the ruling, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan weighed in with their remarks

“With sorrow ― for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection ― we dissent,” wrote Breyer, Sotomayor, and Kagan.

The statement comes in wake of conservative justices’ ruling on Dobbs v. Jackson Women’s Health Organization which will subsequently regress federal abortion laws back nearly half a century.

“Today, the Court discards that balance,” the justices wrote. “It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs.”

Meaghan Ellis

Author at AlterNet.


  1. I have only one comment about Dobbs v. Jackson Women’s Health Organization.

    Nobody I have heard from, on either side or in the media, has mentioned that the Constitution was written in 1787 and that we are living in 2022. The U.S. constitution is the oldest in the world except for that of the Republic of San Marino, population 34,000, whose constitution dates from 1600. To maintain that the U.S. Constitution is anachronistic and outdated would be an understatement!

    To take the majority’s opinion in Dobbs to its logical and absurd conclusion, NOTHING that didn’t exist in 1787 would be constitutional, except for the amendments. By their “originalist” interpretation of the Constitution, electricity, the telephone, radio, television, the internet, the internal combustion engine, railroads, aircraft and space travel would all be unconstitutional, because none of them were mentioned in the Constitution.

    That appears to be Justice Thomas’s ultimate view–and that of the late Justice Scalia–but the irony is that Thomas married a white woman, Virginia (Ginni) Lamp in 1987. If the SCOTUS overturns Loving v. Virginia, the 1967 decision allowing inter-racial marriage, Thomas’s marriage to Ginni could be considered invalid and unconstitutional.

    And not only that. Irony or ironies, Thomas, voted against Obergefell v. Hodges, in 2015, the 5-4 decision legalizing same-sex marriage, which also was not mentioned in the Constitution of 1787.

  2. The author didn’t read the majority opinion. If so, she would have read the section that addressed her concern regarding other rights. Read the damn opinion!

  3. Well let’s see – Considering that this case was supposedly decided on the basis of the Constitution – there are a couple of other things in that document that seem to me to be apposite –
    Regarding Art IV, how has the following wording been interpreted:
    Sec 1 – Full Faith and Credit shall be given to the public Acts, Records, and judicial proceedings of every other State ….
    Especially in light of :
    Sec 2 – The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States

    Regarding Amend X – titled “Powers retained by the states and the people”
    “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    Seems to me the 10th Amend phrase “or to the people” is sorta left out, not even mumbled about, when the 10th is used to defend “States’ rights” in any particular case so if the 10th is used, shouldn’t it me an issue of whether it is the States “or the people” who have the power to decide”

    Those first 10 Amend – The Bill of Rights – was ratified in 1791

    The last time I looked, though it may be contested, women were people … and, I also understand that, in the process of 2nd Amendment litigation it was decided that “the right of the people” should be interpreted as rights of individuals ….

    So why isn’t this a 10 Amend. case?

  4. Let the little unborn babies wait a few more months then they can get a gun and shoot mom or dad with no penalty.

  5. Congress can override a Supreme Court decision, and I’m sure Democrats will “promise” to do this ahead of the election. Meanwhile, abortion still remains available in a number of states. The poor have never been able to afford abortions, of course. Only a few states will allow Medicaid coverage of abortion IF the woman’s life is at risk. Outrage over abortion access for the middle class, in contrast to their flat indifference about Democrats stripping the poor of basic human rights (UN’s UDHR) to food and shelter, defines today’s liberals.

  6. Would the author please stop calling these sadistic idiots, “CONSERVATIVES”….That is being far too kind and a cover-up of their evil character.

  7. Referring back to my previous post, if Justice Thomas persists in believing in his “originalist’ philosophy, he may remember that in the Constitution of 1787–which is the constitution that we must live by in 2022, like it or not–African-Americans were not even considered citizens at all because the overwhelming majority of them were enslaved. Therefore, according to the 1787 Constitution that Justice Thomas considerers to be sacrosanct, he would not have been permitted to marry a white woman, Virginia Lamp, or even to vote, much less become a Justice of the Supreme Court of the United States of America.

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