Justice Clarence Thomas agreed with the U.S. Supreme Court’s majority that the faulty Roe v. Wade decision from 1973 that created a “right” to abortion in the U.S. Constitution had to be overturned.
But he said the court still needs to go further, much further, when it can.
In his concurrence with the majority opinion, he explained, “Because the court properly applies our substantive due process precedents to reject the fabrication of a constitutional right to abortion, and because this case does not present the opportunity to reject substantive due process entirely, I join the court’s opinion.
“But, 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.’ … 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.”
He noted that the pro-abortion faction attacking the state of Mississippi’s new abortion limit cited “one source” for their claims: “the Fourteenth Amendment’s guarantee that no state shall ‘deprive any persons of life, liberty, or property without due process of law.'”
The majority opinion explains why under court precedents, “the purported right to abortion is not a form of ‘liberty’ protected by the Due Process Clause.”
But he said there’s a second reason why “there is no abortion guarantee lurking in the Due Process Clause.”
For one, he said, “there’s “historical evidence” that such references “merely required executive and judicial actors to comply with legislative enactments and the common law when depriving a person of life, liberty, or property.”
And he said other sources said legislatures couldn’t do that either.
“Either way, the Due Process Clause at most guarantees process. It does not, as the court’s substantive due process cases suppose, ‘forbid the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided.”
So, as “‘substantive due process’ is an oxymoron that ‘lacks any basis in the Constitution,'” he said, “the resolution of this case is … straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.”
But he cited a list of controversial decisions, such as Griswold, the “right of married persons to obtain contraceptives,” Lawrence, the “right to engage in private, consensual sexual acts,” and Obergefell, the “right to same-sex marriage.”
He agreed with the majority’s statement: “nothing in [the court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.”
“For that reason, in future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote.
“Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents,” he wrote.
“After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this court’s substantive due process cases are ‘privileges or immunities of citizens of the United States’ protected by the Fourteenth Amendment.”
That would involve deciding the impact and effect of the Privileges or Immunities Clause on Americans, and whether that creates rights not found in the Constitution. If so, how are they identified, he said.
He explained three “dangers” support the idea of throwing out “substantive due process” completely.
“First, ‘substantive due process exalts judges at the expense of the people from whom they derive their authority.’ … Because the Due Process Clause ‘speaks only to ‘process,’ the court has long struggled to define what substantive rights it protects.’ In practice, the court’s approach for identifying those ‘fundamental’ rights ‘unquestionably involves policymaking rather than neutral legal analysis.'”
He said, “The court divines new rights in line with ‘its own, extraconstitutional value preferences’ and nullifies state laws that do not align with the judicially created guarantees. Nowhere is this exaltation of judicial policymaking clearer than this court’s abortion jurisprudence. In Roe v. Wade, the court divined a right to abortion because it ‘fe[lt]’ that ‘the Fourteenth Amendment’s concept of personal liberty’ included a ‘right of privacy’ that ‘is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.'”
Simply put, the court has protected “preferred rights.”
In this case, he said, “That 50 years have passed since Roe and abortion advocates still cannot coherently articulate the right (or rights) at stake proves the obvious: The right to abortion is ultimately a policy goal in desperate search of a constitutional justification.”
Then, he said, “Substantive due process distorts other areas of constitutional law. For example, once this court identifies a ‘fundamental’ right for one class of individuals, it invokes the Equal Protection Clause to demand exacting scrutiny of statutes that deny the right to others.”
In such cases, “This court deems unconstitutionally ‘vague’ or ‘overbroad’ those laws that impinge on its preferred rights, while letting slide those laws that implicate supposedly lesser values. … The court often ‘demand[s] extra justifications for encroachments’ on ‘preferred rights’ while ‘relax[ing] purportedly higher standards of review for less-preferred rights.'”
Finally, he said, “substantive due process is often wielded to ‘disastrous ends.’ For instance, in Dred Scott v. Sandford, … the court invoked a species of substantive due process to announce that Congress was powerless to emancipate slaves brought into the federal territories.”
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