[krapp]

Conservatives didn't spend anything close to all of their political capital, rather they have more now than they ever had, and getting rid of Roe has always been a pretext to banning abortions entirely. This isn't merely a political issue for them, it's religious and existential. Conservatives aren't just going to stop at Roe on principle, even though they have a lock on the Supreme Court. Clarence Thomas suggested they consider rolling back contraceptive rights and gay marriage as well. Of course he conveniently forgot about Loving v. Virginia but realistically that's on the table now too, because he seems to have forgotten the true nature of American politics and the ideology now in control of the Court. This isn't over by a long shot.

[dragonwriter]

> Clarence Thomas suggested they consider rolling back contraceptive rights and gay marriage as well.

No, he flat out stated that all substantive due process precedent, including but not limited to the cases establishing the right to same sex marriage, marital contraception, and freedom against sodomy laws, are “demonstrably erroneous” and that it is obligatory for the Court to “correct the error” that they represent.

Substantive due process, though, effects far more than the examples he pointed to, and he is very clear that he means the entire body needs to be reversed, not just those examples.

[rayiner]

You’re leaving out that Thomas also said that some of those and other implied rights might be found in the privileges and immunities clause. Thomas doesn’t deny that there are unenumerated rights that were recognized at the time of the founding.

Also, I’d be curious to know if any other advanced democracy has a doctrine similar to Griswold. It’s Constitutionally infirm, and if they don’t need it, why do we?

[dragonwriter]

> You’re leaving out that Thomas also said that some of those and other implied rights might be found in the privileges and immunities clause.

Yes, and I also leave out (as, hiwever, does Thomas as well) that many of the substantive due process cases, including the line of marriage cases including Loving and Obergefell, were, in their own decisions, were found to be mandated independently by each due process and equal protection clauses, such that the Privileges and Immunities clause analysis Thomas suggests would be entirely superfluous unless the Court not only through our the substantive due process theory but also just read the Equal Protection Clause into a nullity.

Thomas also leaves out that the Court has (long before coming up with the Substantive Due Process theory he calls on it to reject), actually already done the P&I analysis he calls for and rejected the idea that that clause covers anything other than explicitly enumerated rights, and only (as it expressly states, so it would take a rather tendentious reading to remove this limitation) those of citizens (note that this problem would not exist with the Ninth Amendment which is fairly explicitly about unenumerated rights and, along with the EPC, is a more commonly cited alternative basis for the same rights that have been found on substantive due process grounds raises in legal scholarship, concurrences, and even, IIRC, expressly in some substantive due process decisions as an express concurrent ground for the decision the way the EPC is in the marriage cases and some others.

> Also, I’d be curious to know if any other advanced democracy has a doctrine similar to Griswold

The US doesn't even have a doctrine similar to Griswold; the right in Griswold was upheld by later cases on a substantive due process basis (closer to Byron and Harlan’s concurrence), but Griswold itself wasn't actually a substantive due process case.

[rayiner]

> Privileges and Immunities clause analysis Thomas suggests would be entirely superfluous unless the Court not only through our the substantive due process theory but also just read the Equal Protection Clause into a nullity.

Have you read Thomas’s thoughts on these issues? He’s not hiding the ball here, he’s been addressing them for years. He does not think the Equal Protection Clause is a “nullity” lol.

> Thomas also leaves out that the Court has (long before coming up with the Substantive Due Process theory he calls on it to reject), actually already done the P&I analysis he calls for and rejected the idea that that clause covers anything other than explicitly enumerated rights,

Which Thomas thinks is incorrect and he’s got a good argument for why. Again, Thomas acknowledges there are unenumerated rights. He disagrees with liberals about the source of those rights and their scope, but he doesn’t deny they exist.

> (note that this problem would not exist with the Ninth Amendment which is fairly explicitly about unenumerated rights

The Ninth Amendment is a savings clause. It isn’t a source of rights. It’s not a vehicle for 20th century judges to create new rights.

> The US doesn't even have a doctrine similar to Griswold; the right in Griswold was upheld by later cases on a substantive due process basis (closer to Byron and Harlan’s concurrence), but Griswold itself wasn't actually a substantive due process case.

I’m asking whether it matters that there is a Constitutional protection for contraception or not. To my knowledge, other developed countries get along fine without one.

[selimthegrim]

It’s P or I, but you both knew that

[rayiner]

I’m curious: have you informed yourself about the actual legal doctrine Thomas is talking about, or is it just about the social policy to you?