So ....
I still am not a lawyer, nor do I play one on TV. I grok some of the arguments here, but ...
https://www.theusconstitution.org/blog/ ... al-rights/
I'm very much a pragmatist. If the rights to bodily autonomy and integrity (aka abortion) are better argued from the privileges and immunities clause, then substantive due process, .... fine. However we get to those rights, I really don't care.
However: it looks like we still have a problem, Houston.
https://texaslawreview.org/a-distinctio ... ifference/
[snip]
For over 160 years, the Supreme Court has interpreted the Due Process Clause to protect a discrete set of fundamental rights and no more.116116See Chemerinsky, supra note 4, at 949. CLOSE
For over 140 years, the Supreme Court has interpreted the Privileges or Immunities Clause to protect an even narrower set of rights.117117Id. at 548. CLOSE To now replace the Due Process Clause with the Privileges or Immunities Clause would run counter to this robust history and jurisprudential tradition.118118But see Ilya Shapiro & Josh Blackman, The Once and Future Privileges or Immunities Clause, 25 Geo. Mason L. Rev. (forthcoming 2019) (manuscript at 25). CLOSE
For decades, the Supreme Court has rejected the distinction between rights and privileges in constitutional analysis.119119See, e.g., Goldberg v. Kelly, 397 U.S. 254, 262 (1970); Shapiro v. Thompson, 394 U.S. 618, 627 n.6 (1969); see also Rodney A. Smolla, The Reemergence of the Right-Privilege Distinction in Constitutional Law: The Price of Protesting Too Much, 35 Stan. L. Rev. 69, 69 (1982); William W. Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L. Rev. 1439, 1439–42 (1968); Charles A. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245, 1245–46 (1965). CLOSE
It would be regrettable if the Court resurrects this distinction to limit fundamental rights through the Privileges or Immunities Clause. That this reasoning is found in Timbs v. Indiana—a decision that sought to curtail government overreach—is somewhat ironic.
[snip][end]
Having read through their argument that the rights guaranteed by Privileges & immunities are narrower, ... (plus the very substantive problem of the difference between "privileges" and "rights" and this problematic argument of saying these are rooted in the liberty rights of 17th century British citizens) ... I agree with their argument.
I also don't see the current justices agreeing to abortion rights under a different "P & I" framework so this is, once again, uninteresting, that Thomas brought it up. It doesn't seem like they would agree to (federal) abortion rights under this framework, either.
https://www.law.cornell.edu/wex/substantive_due_process
Following Carolene Products,
the U.S. Supreme Court has determined that fundamental rights protected by substantive due process are those deeply rooted in U.S. history and tradition, viewed in light of evolving social norms. These rights are not explicitly listed in the Bill of Rights, but rather are the penumbra of certain amendments that refer to or assume the existence of such rights. This has led the Supreme Court to find that personal and relational rights, as opposed to economic rights, are fundamental and protected. Specifically, the Supreme Court has interpreted substantive due process to include, among others, the following fundamental rights:
The right to privacy, specifically a right to contraceptives. Griswold v. Connecticut, 381 U.S. 479 (1965)
The right to pre-viability abortion. Roe v. Wade, 410 U.S. 113, (1973)
The right to marry a person of a different race. Loving v. Virginia, 388 U.S. 1 (1967)
The right to marry an individual of the same sex. Obergefell v. Hodges, 576 U.S. 644 (2015)
[snip][end]
This once again, very much, works for me. I'll stick with substantive due process. That conservative justices don't like it is not a sufficiently persuasive argument against it.