This has been on my mind for a long while, and I think now, on this first day of April 2023, is the most proper of times to crack the subject open and spill it out over the internet as far as my limited reach will allow.
The case that brings the issue on which I intend to focus, into focus, is the Dobbs decision which the Supreme Court decided in 2022. The court's decision overturned both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), moving the power of regulating abortion from the federal level to the individual states. Please note that it is not the case itself or the rightness or wrongness of the decision which is at issue here, but the basis on which the case was decided which is of interest to me. Particularly the concurrence written by Justice Thomas.
Justice Thomas believed the court should go further in future cases, by revisiting past SCOTUS cases which granted rights based on "substantive due process" such as Griswold v. Connecticut (the right to contraception), Obergefell v. Hodges (the right to same-sex marriage), and Lawrence v. Texas (banned laws against private sexual acts). Justice Thomas wrote that: "Because any substantive due process decision is 'demonstrably erroneous,' we have a duty to 'correct the error' established in those precedents."
I noted at once the absence of a prominent case based on what Justices Thomas and Scallia would consider a created right. Conspicuous by its absence in the Thomas concurance is Loving v. Virginia,a landmark civil rights case in which SCOTUS ruled that laws banning interracial marriage violate the Equal Protection and Substantive Due Process Clauses of the Fourteenth Amendment to our Constitution!
Justice Thomas did not mention Loving V. Virginia, but it is an obvious candidate for revisitation based on his interpretation of the other cases which he hopes to revisit. It shows a flaw in the reasoning he used in the Dobbs decision, unless there is perhaps an ulterior motive!
Is it possible that Thomas, who is in an interracial marriage, is seeking a way out? Is it possible that Ginny Thomas is as annoying to the Justice as she is to the rest of the world?
Well, it is April 1 and this does seem to be an appropriate day for such a question!
Disclaimer or Explainer:
Let me say, in the interest of full disclosure, that I am pro life. I am pragmatic on the subject. I believe that we were winning hearts and minds while Roe was in effect as a national law, and that we will continue to do so in the current milieu. This is a battle best fought and won with education and rationality. It will be done heart to heart in our culture, not in heated debate between two groups using the issue as a lightning rod!