CLAIM: Justice Clarence Thomas said the Supreme Court should reconsider the right to contraception for married couples.
VERDICT: FALSE. Thomas said the Court should reverse the “substantive due process” argument, but not contraception.
On Friday, President Joe Biden signed an executive order that would ostensibly protect abortion rights from a parade of horribles that Democrats claim will flow from the Supreme Court’s decision to reverse the 1973 Roe v. Wade precedent through its recent decision in the Dobbs v. Jackson Women’s Health Organization case. Biden warned that according to a concurring opinion by Justice Thomas, the right to contraception was also in danger and could be overturned as well.
Via the White House transcript:
Justice Thomas himself said that under the reasoning of this decision — this is what Justice Thomas said in his concurring opinion — that the Court “should reconsider the constitutional right to contraception — to use contraception even among married couples.
What century are they in? There used to be a case called —
Connecticut v. Griswold[Griswold v. Connecticut], which was declared unconstitutional in the late ‘60s. It said a married couple in the privacy of their bedroom could not decide to use contraception.
Biden is wrong. As Breitbart News has pointed out in another fact check:
In his opinion, Thomas states explicitly that he agrees with the majority opinion that “[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.” However, he says that he wants to remove the “substantive due process” doctrine on which Roe had been based, and on which other decisions had also been based:
For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence [sodomy laws], and Obergefell [gay marriage]. Because any substantive due process decision is “demonstrably erroneous” … we have a duty to “correct the error” established in those precedents.
However, Thomas does not rule out the possibility that the rights established in those cases would still exist. He just says that they should be based on other provisions of the Constitution, and not on the “substantive due process” doctrine itself:
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. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment.
Thus Thomas is not, as critics allege, trying to overturn the right to contraception or gay marriage (though that is theoretically possible). Rather, he wants to put those rights on different, and more solid, constitutional footing, because he believes that “substantive due process” is a doctrine that can easily be abused by the Supreme Court.
At no point did Thomas say that the Court “should reconsider the constitutional right to contraception” — a statement that still appears, erroneously, in quotation marks in the White House transcript.
Biden made a number of other false statements about the majority opinion in Dobbs, as Fox News Channel contributor and constitutional law professor Jonathan Turley pointed out. For example, Biden falsely claimed that the Court had not considered historical precedents on abortion.
The misquote of Thomas appears to have been deliberate, as Biden and the Democrats are determined to contrive a “parade of horribles” that they believe will flow from overturning Roe — rather than defending their own party’s policy on abortion, which is that there should be no restrictions whatsoever, and that abortion should be legal until the moment of birth itself.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
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