© Drew Angerer, HO / TNSAssociate Supreme Court Justice Clarence Thomas speaks at the Heritage Foundation on Oct. 21, 2021, in Washington, DC. (Drew Angerer/Getty Images/TNS)
“We have a duty to ‘correct the error’ established in those precedents,” Thomas wrote in a concurring opinion, pointing to landmark decisions that protected the right to obtain contraception, the right to engage in private, consensual sexual acts, and the right to same-sex marriage.
No other justices signed onto Thomas’s opinion, but it nonetheless served as the alarm bell that Democrats and gay rights advocates have feared since a draft of Friday’s opinion overturning Roe v. Wade
In the Roe ruling, the court declared that the abortion access is not protected by the Fourteenth Amendment’s guarantee that no state shall “deprive any person of life, liberty, or property without due process of law” and that the right to abortion is not a form of “liberty” protected by the due process clause.
Thomas says the same goes for the other rights he listed. And he urged the court to go further, scrapping substantive due process — the legal theory underpinning those rights — all together.
“In future cases, we should ‘follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away,’” he wrote. “Substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.”
This is a developing story; check back for updates.
leaked earlier this year.