After Roe v Wade’s fall, a Supreme Court justice indicates that same-sex marriage and contraception could be next

When the US Supreme Court dramatically overturned the right of Americans to terminate a pregnancy, one justice was particularly fervent.

“The constitution does not confer a right to abortion,” Justice Clarence Thomas wrote in his concurring opinion, echoing his colleagues’ sentiments.

It was a marked shift from his public statements on reproductive rights 30 years ago.

During his confirmation hearing in 1991, then-judge Thomas was cagey about his position on Roe v Wade, the landmark ruling that protected Americans’ right to abortion for nearly 50 years.

“I can say on that issue… I have no agenda,” he told the US Senate under oath.

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Back then, he argued that as a judge, it would be inappropriate to take a case “in which he or she has such strong views that he or she cannot be impartial”.

And yet, once confirmed as a justice on the nation’s highest court, he spent the next three decades openly expressing his deeply conservative beliefs, often through the power of the law.

On June 25, Justice Thomas and five of his colleagues chose to uphold a Mississippi law banning abortion after 15 weeks.

But four of those justices didn’t just strike down one case. They shook Roe v Wade to its constitutional foundations.

In the majority opinion, Justice Samuel Alito labelled the 1973 decision “egregiously wrong” given the US constitution made no explicit mention of abortion.

He argued, choosing his words carefully, that no other constitutional rights would be risked by the toppling of half a century of precedent.

But Justice Thomas undercut him.

One sentence that could change everything

Buried on page 119 of the final opinion, Justice Thomas wrote the court “should reconsider” other past rulings that afford Americans certain rights.

Clarence Thomas in shirtsleeves and suspenders gesturing in his office while talking
Clarence Thomas has been a US Supreme Court justice for three decades. (Reuters: Jonathan Ernst)

He referenced the key cases guaranteeing access to contraception, and legalising same-sex relationships and same-sex marriage.

“In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” he wrote.

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In doing so, he all but confirmed the fears of millions of Americans that some conservatives won’t be content with just scrapping abortion rights.

They could target other hard-won rights next.

Why this clause is so important

In the United States, the right to have an abortion, to access birth control, and to have sex with or marry a person of the same gender all stem from one legal principle.

An elderly woman in a full mask claps her hands at a rally in Chicago
Supporters of abortion care hit the streets across America after Roe v Wade was overturned. (Chicago Sun-Times via AP: Pat Nabong)

“The 14th amendment to the US constitution says that no person shall be deprived of life, liberty or process without due process of law,” said Alexis Karteron, an associate professor of law and the director of the Constitutional Rights Clinic at Rutgers University.

She added the due process clause of the amendment, which has existed for more than 150 years, has been read to address “very important issues to many, many Americans”.

But last week the court ruled the language of the clause should never apply to abortion access.

“That’s because, in part, the right to an abortion was not something that the people who wrote the 14th amendment would have thought about at the time it was passed in the mid-19th century,” Ms Karteron said.

It is not totally unprecedented for the court to reverse one of its decisions, she explained.

A woman wears a pair of birth control pill packets as earrings
US activists say they fear the right to access birth control could be under threat. (Reuters: Callaghan O’Hare)

But this was the first time, to her knowledge, a right the court had previously recognised was taken away.

“We should not take any comfort in the fact that the majority opinion claims to only address abortion,” she said.

What could be next?

Millions of Americans woke up on June 26 with fewer rights than they had the morning before.

With the end of Roe v Wade, roughly half of US states banned or sharply narrowed access to abortion.

The enormity of the health and economic implications of the Supreme Court’s decision cannot be understated.

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