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You Vote: After overturning Roe, should SCOTUS revisit same-sex marriage, contraception rights?

Justice Clarence Thomas suggests high court reconsider past precedents on same grounds as abortion decision.

Published: June 28, 2022 12:21pm

Updated: June 28, 2022 4:08pm

In his concurring opinion backing the Supreme Court's decision last week to overturn Roe v. Wade, Justice Clarence Thomas wrote that the nation's highest court should reconsider past rulings that established constitutional rights to contraception, private sexual acts, and same-sex marriage.

The Due Process Clause of the 14th Amendment guarantees that no state shall "deprive any person of life, liberty, or property without due process of law." In the 1973 Roe decision, the court cited this clause to argue there's a constitutional right to an abortion.

However, Thomas wrote, the right to abortion under that clause "is neither 'deeply rooted in this Nation's history and tradition' nor 'implicit in the concept of ordered liberty.'"

He then pointed to three past "demonstrably erroneous decisions" by the Supreme Court that were also based on interpretations of the Due Process Clause and should be revisited. Those cases are: Griswold v. Connecticut (1965), which said married couples have the right to obtain contraceptives; Lawrence v. Texas (2003), which said criminal punishment for sodomy is unconstitutional; and Obergefell v. Hodges (2015), which said there is a constitutional right to same-sex marriage.

"In future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell," wrote Thomas. "Because any substantive due process decision is 'demonstrably erroneous' … we have a duty to 'correct the error' established in those precedents."

Do you agree with Thomas that, in the wake of overruling Roe, the Supreme Court should now revisit key past rulings concerning contentious issues such as contraception and same-sex marriage? Or should the high court let those precedents stand for the time being? Here's your chance to weigh in:

After overturning Roe v. Wade, should the Supreme Court reconsider past rulings that established constitutional rights to contraception and same-sex marriage?


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