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What the Hell Is Substantive Due Process, Anyway?

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25.05.2022

In his leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito writes, “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”

This is terrifying, to say the least. It’s also unprecedented. The right to an abortion has been upheld by the Supreme Court several times.

So what makes this case different? What exactly are abortion rights, and where do they come from? Here’s a quick crash course on abortion rights case law, to give you some context on those questions, and to think through what the opinion really means.

What is substantive due process?

The right to abortion elucidated in Roe v. Wade is rooted in the 14th Amendment. Ratified in 1868, the first section of the amendment reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

For our purposes, we’re going to focus on one line in that section, known as the due process clause: that no State shall “deprive any person of life, liberty, or property, without due process of law.” As the leaked Dobbs v. Jackson Women’s Health opinion notes, the modern doctrine of substantive due process interprets this clause to mean that the 14th Amendment “provides substantive, as well as procedural, protection for ‘liberty.’” There are two categories of substantive rights protected under the due process clause: First, the rights guaranteed by the first eight amendments, such as the right to free speech. Second, the rights that are not enumerated, but are so fundamental that the government cannot infringe upon them.

As you might imagine—and as the leaked opinion explicitly acknowledges—that second category is a fraught, unsettled area of law.

What is a “fundamental” right? What makes something so “implicit in the concept of ordered liberty” that “neither liberty nor justice would exist if [it] were sacrificed”? How can a right deemed “fundamental” in Roe be ripped away half a century later? There aren’t any easy answers here. But let’s turn back the clock a bit to see what the Supreme Court has historically said about these questions and what this jurisprudence means for our contemporary moment.

The road to Roe

Griswold v. Connecticut

It’s 1965. Griswold v. Connecticut is before the Supreme Court. The case turns on a Connecticut law banning the use of contraception. Two people arrested under this statute—C. Lee Buxton and Estelle Griswold, who ran a birth control clinic—brought suit, claiming that the statute was not constitutional under the Fourteenth Amendment. For the first time, the Supreme Court agreed.

Justice William O. Douglas, who authored the majority opinion, posited that the right to privacy, though not enumerated, nevertheless inheres in the Constitution. He drew on a combination of the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments to assert that the right to privacy is “created by several fundamental constitutional guarantees,” and that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”

In other words, the protections explicitly enshrined in the Bill of Rights radiate unwritten penumbras—shadows, orbits, ripple effects—that interact to create a zone of privacy that the government cannot........

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