Jose Luis Magana/AP Photo
Abortion rights activists protest outside the Supreme Court in Washington, June 25, 2022.
Clarence Thomas’s all-too-candid concurring opinion in the Dobbs ruling overturning Roe v. Wade suggests that the Court should go further and reverse three landmark decisions on privacy. These were Lawrence v. Texas, a 2003 ruling by a 6-3 vote establishing that homosexual acts are not a crime; Obergefell v. Hodges legalizing marriage equality; and even Griswold v. Connecticut legalizing birth control. Thomas wrote, “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous’ … we have a duty to ‘correct the error’ established in those precedents.”
Needless to say, any such rulings, though at the fringes of the Supreme Court (for now), would be monumentally unpopular with the broad American public. Acceptance of homosexuality is now the majority view, and so of course is acceptance of birth control.
When the Supreme Court legalized same-sex marriage in Obergefell v. Hodges in 2015, some 60 percent of Americans already supported it. According to the latest Gallup poll, a record 70 percent of Americans now support marriage equality, including 55 percent of Republicans and 84 percent of young adults. Hardly any Americans think homosexuality should be illegal.
Thomas’s idea of reversing Griswold v. Connecticut is even more bizarre. That 7-2 ruling, way back in 1965, overturned an 1879 Connecticut law banning birth control devices and any other such bans on contraception.
Though some Americans, notably strict Roman Catholics, oppose birth control, hardly anyone wants it banned. On the other hand, there are anti-abortion activists who view some forms of birth control, like IUDs, as tantamount to abortion.
Thomas has thus given Democrats an invitation, on the proverbial platter, to codify these rulings in statutory law. It’s time for Democrats to introduce legislation safeguarding marriage equality and the right to privacy in your own bedroom—and force Republicans to vote on them.
Some wonder why Democrats didn’t do just that to protect Roe, back when they had large working majorities and the White House, as in Obama’s first two years.
