Part One of a two-part Explainer on what SCOTUS may do after overturning Roe v. Wade
Justice Clarence Thomas calls for SCOTUS to pull back even more established rights after Roe v. Wade. Steve Petteway / Wikimedia Commons Public Domain
In his published opinion for the Supreme Court’s 6-3 majority, overturning the court's 1973 Roe v. Wade decision and clearing the way for individual states to outlaw abortion procedures, Justice Samuel Alito promised that the court’s reasoning in Dobbs v. Jackson Women’s Health Organization did not apply to rulings in cases protecting similar rights. These would include the right to marriage for same-sex couples, the right of adults to use contraception, and the right to marry a person of a different race.
But in a concurring opinion, the most senior SCOTUS justice, Clarence Thomas—nominated to the court by Pres. George H.W. Bush in 1991—went much further, urging his fellow justices to “reconsider” previous decisions that upheld rights which according to the court are largely (though not exclusively) rooted in the 14th Amendment to the Constitution.
Thomas’s concurrence specifically mentioned Griswold v. Connecticut, which guaranteed the right of married couples to use contraceptives; Obergefell v. Hodges, the 2015 case legalizing same sex marriage; and Lawrence v. Texas, a 2003 decision striking down a law that prohibited homosexual sex acts between consenting adults. Thomas called the legal reasoning behind those decisions “demonstrably erroneous.”
Thomas did not mention the 1967 case Loving v. Virginia which held that the 14th Amendment guaranteed the right to marry a person of a different race. Thomas has been the only African-American SCOTUS justice since he took his place on the court in 1991. He is married to conservative activist Virginia “Ginni” Thomas, who is white.
The majority opinion in Dobbs and other concurrences and dissents filed by various justices all discuss the Loving case, making Thomas’s omission rather conspicuous.
“Though Thomas argues that all those other precedents should be reconsidered, he implies by his silence that the one that affects him personally is sacrosanct,” wrote author and former Associated Press Supreme Court reporter Jesse J. Holland, in an MSNBC op-ed.
But in his opinion Thomas goes even further than urging the court to “correct the error” it made in those previous cases. He argues that the “Due Process Clause” of the 14th Amendment does not guarantee “any substantive rights” at all.
The “error” that Thomas believes the court made in Roe v. Wade, Obergefell and the other decisions is the court’s reliance on a doctrine called “substantive due process.” Thomas says the court should completely scrap this doctrine and overturn every case in which it has been a factor. What is “substantive due process,” and why does Thomas hate it so much? And more importantly, what happens if the court follows his lead and does away with it?
Ninth Amendment Protects Rights Missing From the Constitution
The 14th Amendment was not part of the original text of the Constitution, which contained only 10 amendments—collectively, the Bill of Rights. But the Bill of Rights didn’t guarantee very many rights.
As the framers of the Constitution argued over what should and shouldn’t be included, the faction known as the Federalists—who were led by Alexander Hamilton, recently famous as the subject of a hit Broadway musical—vehemently opposed the Bill of Rights. Hamilton and his Federalists feared that if the Constitution listed specific, protected rights, a power-hungry government would claim that no other rights existed.
As a compromise, James Madison—who had co-authored The Federalist Papers with Hamilton and John Jay, and who later became the United States’ fourth president—introduced what became the Ninth Amendment. The amendment clearly stated that just because the Constitution“enumerated” only certain rights (such as freedom of speech and the press) in no way should it be “construed to deny or disparage others retained by the people.”
In simple terms, the Ninth Amendment says that the people have more rights than those few mentioned in the Constitution. The government cannot simply take those rights away, just because the Constitution does not spell them out in detail.
But what were those rights? The Ninth Amendment doesn’t say. Nor does it give any hint about how to figure out what those mystery rights might be. Alito’s majority opinion in the Dobbs case deals with the Ninth Amendment question by simply not mentioning it at all.
The 14th Amendment: Where SCOTUS Finds Rights
In 1868, in the aftermath of the Civil War, as Congress struggled with how to guarantee the rights of the African-American people who had been freed from slavery by the 13th Amendment three years earlier, the states ratified the 14th Amendment. A complicated amendment, it contained several clauses. The one that seems to get under Thomas’s skin the most is the third one—the “due process” clause.
The due process clause is the one the Supreme Court has cited to support the right to abortion in Roe v. Wade, as well as same sex marriage, the right to contraception, and other rights. Thomas says that’s a huge mistake, and the court must correct it.
The Due Process clause seems pretty straightforward. It declares simply that a state may not “deprive any person of life, liberty, or property, without due process of law.”
Over the years, in a series of cases, the Supreme Court has determined that the clause has two meanings. First, it guarantees “procedural due process,” which means that before depriving a person of “life, liberty, or property,” the government must follow proper procedures. At the simplest level, “due process” means that a person is entitled to a trial by jury before being incarcerated, having property seized, or in extreme cases, being executed. As time has gone on, states and the courts have expanded the definition of procedural due process. But the essential requirements for a fair and impartial hearing have remained.
What is ‘Substantive Due Process,’ Anyway?
“Substantive due process” is more expansive, and conservative legal scholars have long had a problem with the idea. The doctrine requires that before depriving a person of rights, it’s not enough merely to follow the proper procedures. The government must be able to clearly articulate a solid justification for taking away those rights. And perhaps most importantly, those rights do not need to be specifically mentioned in the text of the Constitution in order to be protected.
In the first four decades of the 20th century, the substantive due process doctrine was used mainly to protect the economic rights of businesses. The most significant case of that era was Lochner v. New York in 1905. The case challenged a New York state labor law that barred bakery owners from requiring their bakers to work more than 60 hours in any given week.
The Supreme Court struck down the state law, finding that placing a limit on employee working hours violated due process by failing to protect the rights of an employer and employee to enter into a contract.
After a 1937 case, the court dramatically scaled back its use of "substantive due process" reasoning in economic cases. But the justices continued to apply the doctrine to issues of personal and civil liberty. The court’s landmark case, cited in later civil liberties-related substantive due process cases, was Meyer v. Nebraska in 1925.
Roe v. Wade: The Legacy of Meyer v. Nebraska
In Meyer, Nebraska had passed a law banning schools and parents from teaching foreign languages to school-age kids. That law seems patently insane today. But back then it was thought to be a solid protection against kids’ failing to become proficient in English, as well as a bulwark against the supposedly insidious influence of foreign countries, such as Germany who the U.S. and its European allies just finished defeating in World War I, seven years previous.
In any event, SCOTUS ruled that the law violated a basic right—the right of parents to raise their children as they see fit—without showing a sufficient state interest in curtailing that right. The law, the court said, violated the substantive due process to which parents are entitled.
Unlike the now-reviled Lochner decision, the use of substantive due process in Meyer continued to serve as a precedent for protecting civil liberties. In the Roe v. Wade decision, the seven-justice majority cited Meyer as a precedent that established a right to privacy. In Meyer's case, "privacy" emcompassed the ability of parents to raise their own children. The right to privacy is never enumerated in the Constitution, but the court in 1973 found that on the basis of Meyer and a long list of subsequent cases that also hinged on substantive due process, the right does, in fact, exist, and is protected.
The justices determined that the due process clause, as well as the Ninth Amendment—along with the First and Fourth Amendments—contained the right to privacy. When the state (in Roe's case, Texas) banned women from obtaining abortions, it did not give sufficient justification for violating the protected right to privacy. That was the essence of the opinion authored by Justice Harry Blackmun—a Republican who was nominated to the court by Republican Pres. Richard Nixon.
Why Doesn’t Thomas Want to Overturn the Meyer Decision?
In his majority Dobbs opinion, Alito shrugged off the Meyer privacy precedent as “very, very far afield” from the privacy issues in abortion cases. Thomas in his concurrence simply never mentions Meyer, though it—like Loving—is also based on the “substantive due process” doctrine. Why doesn’t Thomas want the court to reconsider Meyer as well as the contraception, same sex marriage and “homosexual act” law rulings? He doesn’t say.
“Parental rights,” however, have long been a rallying cry for conservative groups. Just in 2022, prominent conservative officeholders and candidates have proposed a “Parental Bill of Rights” that would effectively bar schools from teaching about topics that were not approved by parents. But the Constitutional “substantive due process” precedents that established “parental rights” in education are the same principles used to establish rights to abortion, contraception, same sex marriage and other rights that Thomas—and the conservative movement in general—wants to “reconsider.” So it would appear that some privacy rights are safe from Thomas and the conservative SCOTUS majority, while other are not.
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