Biden, other critics fear Thomas’s ‘extreme’ position on contraception

In an opinion concurring with his conservative colleagues on the Supreme Court to overturn the fundamental right to an abortion, Justice Clarence Thomas wrote on Friday that striking down Roe v. Wade should also open up the high court to review other precedents that may be deemed “demonstrably erroneous.” Among those, Thomas wrote, was the right for married couples to buy and use contraception without government restriction from the landmark 1965 ruling in Griswold v. Connecticut. “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote on page 119 of the opinion for Dobbs v. Jackson Women’s Health, also referring to the rulings that legalized same-sex relationships and marriage equality, respectively. “Because any substantive due process decision is ‘demonstrably erroneous’ . . . we have a duty to ‘correct the error’ established in those precedents.”

Thomas added, “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.” Following Friday’s culture-shaking opinion on Dobbs, health advocates, legal experts, and Democrats are wondering whether the Supreme Court’s conservative majority could eye the right to contraception in the future. The Griswold case is mentioned or cited nearly two dozen times in the Dobbs ruling, which was widely celebrated by Republicans and the antiabortion movement. In an address to the nation, President Biden denounced Thomas’s explicit focus on the right of couples to make their own choices on contraception — “a married couple in the privacy of their bedroom, for God’s sake.” “This is an extreme and dangerous path the court is now taking us on,” Biden said. Audrey Sandusky, the National Family Planning and Reproductive Rights Association’s senior policy and communications director, told The Washington Post that the opinion shows there is an ‘’appetite among at least some on the Court to dismantle a whole landscape of rights, including the right to access contraception and the fundamental right to privacy.’’ Pointing to instances in which states have deemed certain contraceptive methods as abortifacients, or substances that can induce abortions, Sandusky said the decision will embolden more of those kinds of state policies.