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Clarence Thomas suggests court should reconsider same-sex marriage, contraceptives

In his concurring opinion, Justice Clarence Thomas said the court should review other precedents including its 2015 decision legalizing same-sex marriage.

WASHINGTON — As part of his concurring opinion to overturn the nation's constitutional protections for abortion, Supreme Court Justice Clarence Thomas called on the country's highest court to overturn other major rulings. 

Thomas, the member of the court most open to jettisoning prior decisions, specifically called on his colleagues to review other precedents, including the court's 2015 decision legalizing same-sex marriage, a 2003 decision striking down laws criminalizing gay sex and a 1965 decision declaring that married couples have a right to use contraception. 

Justice Samuel Alito, in the final opinion issued Friday, wrote that Roe and Planned Parenthood v. Casey, the 1992 decision that reaffirmed the right to abortion, were wrong the days they were decided and must be overturned.

Joining Alito were Thomas and Justices Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett. The latter three justices are Trump appointees. 

Four justices would have left Roe and Casey in place.

Thomas, who first voted to overrule Roe 30 years ago, said in his concurring opinion, that the right to abortion is not a form of "liberty" protected by the 14th Amendment's Due Process Clause, which prohibits the states from depriving "any person of life, liberty, or property, without due process of law."

He emphasized the Due Process Clause "does not secure any substantive rights" and "at most guarantees process". He then took a swing at other cases where due process is applied.

These cases include Griswold v. Connecticut, which secures the right of married people to obtain contraceptives; Lawrence v. Texas, which secures the right to engage in private, consensual sex; and Obergefell v. Hodges, the right to same-sex marriage. 

While he wrote that the court "today declines to disturb" these cases, he suggested in future cases that it should reconsider these decisions based on due process precedent.

"Because any substantive due process decision is 'demonstrably erroneous,' we have a duty to 'correct the error' established in those precedents," his opinion said. 

President Joe Biden, speaking about the court's decision allowing states to ban abortion immediately, called out Thomas' suggestion. 

"He explicitly called to reconsider the right of marriage equality, the right of couples to make their choices on contraception. This is extreme and dangerous path the court is now taking us on,” Biden said. 

Lucille Lannigan contributed to this report.

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