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© 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.
A celebration outside the Supreme Court, Friday, June 24, 2022, in Washington. (AP Photo/Steve Helber)
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The Supreme Court on Friday overturned Roe v. Wade, effectively ending recognition of a constitutional right to abortion and giving individual states the power to allow, limit, or ban the practice altogether.
The ruling came in the court’s opinion in Dobbs v. Jackson Women’s Health Organization, which centered on a Mississippi law that banned abortion after 15 weeks of pregnancy. The Republican-led state of Mississippi asked the Supreme Court to strike down a lower court ruling that stopped the 15-week abortion ban from taking place.
“We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives,” Justice Samuel Alito wrote in the court’s opinion.
Alito’s opinion began with an exploration and criticism of Roe v. Wade and its holding that while states have “a legitimate interest in protecting ‘potential life,” this interest was not strong enough to prohibit abortions before the time of fetal viability, understood to be at about 23 weeks into pregnancy.
“The Court did not explain the basis for this line, and even abortion supporters have found it hard to defend Roe’s reasoning,” Alito wrote.
Chief Justice John Roberts agreed that the viability line “never made any sense,” but said he would have taken “a more measured course” with this case. Rather than overturn Roe v. Wade altogether, Roberts said he would have continued to recognize a right to get an abortion, and that the right should “extend far enough to ensure a reasonable opportunity to choose, but need not extend any further.”
The court’s majority took a firmer stance against Roe v. Wade and the subsequent case Planned Parenthood v. Casey, holding “that Roe and Casey must be overruled.”
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment,” Alito wrote.
The Court’s opinion recognized that the Fourteenth Amendment’s Due Process Clause has been found to guarantee certain rights that are not spelled out in the Constitution, but that those rights are “deeply rooted in this Nation’s history and tradition.” Abortion, the Court said, “does not fall within this category,” as “such a right was entirely unknown in American law” until the late 20th century.
The opinion continued to shred the Roe decision, saying it “was egregiously wrong from the start,” and that “[i]ts reasoning was exceptionally weak[.]”
Rather than continue the tradition established by Roe and Case, the Court wrote that it “is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The opinion comes after a leak of a draft opinion from February striking down Roe caused nationwide debate and promoted pro-choice activist protests at the homes of the six conservative justices. In addition, dozens of pro-life pregnancy centers were vandalized since the opinion leak, Catholic churches were targeted for protests and unrest, and a suspect was charged with attempted murder for allegedly trying to assassinate Justice Brett Kavanaugh.