The Supreme Court’s Friday morning opinion on Dobbs v. Jackson Women’s Health Organization not only featured the majority opinion and dissent, but also included two separate concurring opinions issued by Chief Justice Roberts and Justice Clarence Thomas.
Chief Justice Roberts issued a concurrence, stating he would have simply upheld the Mississippi law to ban abortion after 15 weeks without overturning Roe v. Wade:
Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further—certainly not all the way to viability.
But that is all I would say, out of adherence to a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.
Justice Clarence Thomas also issued a separate concurring opinion that called for overturning other similarly set precedents.
Thomas notes that the decision does not directly effect any others besides Roe v. Wade, but he argued that the Constitution’s Due Process Clause does not secure substantive rights and urged the court to apply its reasoning in Dobbs to future reviews of landmark cases.
Citing three specifically, he wrote, “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
Griswold v. Connecticut established that married couples have a right to access contraception. The court ruled in Lawrence v. Texas that states could not outlaw consensual gay sex. And Obergefell v. Hodge established the right to same-sex marriage.