What the Hell Is Substantive Due Process, Anyway?

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Analysis Law and Policy

What the Hell Is Substantive Due Process, Anyway?

Namrata Verghese

And what does it have to do with abortion?

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.

Roe is gone. The chaos is just beginning.

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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 puncture. You can abstract a general right to privacy by drawing on several other related rights, such as the Fourth Amendment restriction on searches and seizures without probable cause. Justice John Marshall Harlan II’s concurrence elaborated that the Connecticut statute was unconstitutional “because the enactment violates basic values ‘implicit in the concept of ordered liberty’”—language that forms the crux of the modern substantive due process doctrine.

Roe v. Wade

Fast-forward a few years. By the time Roe was decided in 1973, Harlan’s concurrence had become the standard for grappling with substantive due process. The guiding inquiry was now one of liberty.

So: Is access to abortion care a right “implicit in the concept of ordered liberty?” Jane Roe, whose real name was Norma McCorvey and who brought forward litigation challenging a Texas law that criminalized abortion, thought so. She alleged that the statute violated her right to privacy—and, in a 7-2 decision, the Court sided with her.

Justice Harry Blackmun’s majority opinion in Roe noted that “only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’ … are included in this guarantee of personal privacy.” Abortion, he said, constituted one of these “fundamental” rights. Blackmun concluded that “this right to privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

Blackmun anchored the right to abortion in history; at the time of the Constitution’s adoption, abortion was legal until the time of “quickening” (around 16 to 18 weeks) and, in fact, “even post-quickening abortion was never established as a common-law crime.” Put simply, Blackmun wrote, “At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century.”

Blackmun stressed that “where certain ‘fundamental rights’ are involved, the Court has held that regulation limiting these rights may be justified only by a ‘compelling state interest.’” Only legislation “narrowly drawn to express only the legitimate state interests at stake” would be permitted to regulate a fundamental right. In other words, a state cannot limit fundamental rights without a really, really good reason to do so. This is the highest standard of review courts employ, known as “strict scrutiny.” Strict scrutiny is used to protect the most important rights we have—rights like abortion.

To determine when a pregnancy presented a “compelling state interest,” the Roe Court devised a trimester framework. It ruled that, in the first trimester, there exists no compelling state interest to justify regulation; in the second, there is a compelling state interest in the pregnant person’s health, so the state has leeway to “regulate the abortion procedure in ways that are reasonably related to maternal health”; and in the third, the state gains a compelling interest in the fetus’s health, and so may “regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

Planned Parenthood v. Casey

The Roe decision was polarizing. Conservative backlash became so vitriolic that the Court had to dig its heels in when deciding Planned Parenthood v. Casey in 1992. Casey’s central question was whether a Pennsylvania statute that included a number of requirements for people seeking abortions—including a mandatory twenty-four hour waiting period, parental consent for minors, and spousal notification for married people—was constitutional.

In a heated 5-4 decision, the Court upheld “Roe’s essential holding.” Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter offered a rare co-authored opinion, which followed stare decisis—Latin for “to stand by things decided.” In a nutshell, it is the theory that courts should adhere to precedent—although, as Justice Samuel Alito notes in his draft opinion, “stare decisis is ‘not an inexorable command.’”

The joint opinion in Casey lauds the doctrine, stressing that “overruling Roe’s central holding would not only reach an unjustifiable result under stare decisis principles, but would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.” The justices added: “The legitimacy of the Court would fade with the frequency of its vacillation.”

In addition to precedent, the Casey Court emphasized the importance of providing abortion care because of reliance interests. As the joint opinion stressed, “an entire generation”—now several generations— “has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions.” When banning anti-sodomy laws in Lawrence v. Texas, the Supreme Court underscored the importance of reliance interests, writing that “when a Court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance on the existence of that liberty cautions with particular strength against reversing course.”

However, while the Court reaffirmed the right to abortion care, it modified Roe’s trimester system, instead substituting it with a viability line, writing:

Viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.

Post-viability, the Court contended, the state can regulate abortion, provided it carves out a health and safety exception for the pregnant person. Pre-viability, the state cannot place “undue burdens” on pregnant people seeking abortions—it cannot enact any regulations that have “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.”

Under this new framework, most of the provisions of the Pennsylvania statute at issue in Casey were deemed constitutional, because they supposedly did not pose “undue burdens” on pregnant people. The only one struck down was the spousal notification requirement, which they decided did constitute an undue burden, especially in the context of domestic violence:

For the great many women who are victims of abuse inflicted by their husbands, or whose children are the victims of such abuse, a spousal notice requirement enables the husband to wield an effective veto over his wife’s decision … The women most affected by this law—those who most reasonably fear the consequences of notifying their husbands that they are pregnant—are in the gravest danger.

Casey’s viability line remains the standard to this day. The Court reaffirmed it in the 2016 case Whole Woman’s Health v. Hellerstedt, when it struck down a Texas law that would heighten requirements for abortion providers. The new requirements were so onerous that there would only be around seven eligible centers left in the whole state. The Court denounced the law as unconstitutional for the undue burdens it posed on people seeking abortions, and noted that it would particularly harm low-income people who cannot afford to travel for abortion care.

In her concurring opinion, Justice Ruth Bader Ginsburg added:

When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety … Laws … that ‘do little or nothing for health, but rather strew impediments to abortion’ … cannot survive judicial inspection.

The future of Roe 

That brings us up to the present day, when the leaked draft opinion seems to suggest that Dobbs v. Jackson Women’s Health Organization will overturn, well, everything.

The case spotlights a 2018 Mississippi law that prohibits abortions after 15 weeks. In his leaked majority opinion, Alito explicitly moves to overturn Roe and Casey, spelling the end of the decades-old right to abortion established under the doctrine of substantive due process.

Alito has long supported curbing abortion rights. When he was a judge on the Third Circuit, he wrote a dissent for Planned Parenthood v. Casey before the case reached the Supreme Court. In the dissent, he stressed that he would have upheld the spousal notification provision, arguing that “the plaintiffs failed to show even roughly how many of the women in this small group would actually be adversely affected by [the provision].” The difference between then and now, however, is that today, thanks to the conservative majority in the Supreme Court, Alito actually holds the power to overrule Roe.

Although talk of curtailing abortion rights has been percolating, especially as the Court’s membership began to skew more and more conservative, many speculated that the Court would harness Dobbs v. Jackson Women’s Health as a vehicle to roll back Casey‘s viability line, not blatantly overrule Roe.

But the leaked opinion is far more dramatic. It flies in the face of stare decisis; indeed, Alito is extraordinarily dismissive of Justices of the past, mocking phrases like “the mystery of human life,” a Casey hallmark (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”). As legal scholars Melissa Murray and Leah Litman write, “The caustic tone and aggressive reasoning suggest this conservative majority feels unconstrained … And it has no sense of institutional propriety that might lead it to act with more humility and caution.”

Of course, the Supreme Court has overturned precedent before, often to socially progressive ends—consider, for instance, how Brown v. Board of Education (deeming racial segregation in public schools unconstitutional) replaced Plessy v. Ferguson (“separate but equal”). However, the Court is usually far more careful to follow stare decisis in cases about repealing rights. A precedent that restricts a right is more susceptible to being overruled; a precedent that grants a right needs to be examined much more granularly.

Moreover, Dobbs v. Jackson Women’s Health not only overturns Roe and Casey, but it also throws into question the entire doctrine of substantive due process, which has, for decades, been a vehicle for rights not explicitly enumerated in the Constitution. Substantive due process has provided the theoretical justification for cases ranging from Lawrence v. Texas (banning anti-sodomy laws) to Loving v. Virginia (striking down anti-miscegenation laws) to Obergefell v. Hodges (legalizing gay marriage). As legal scholar Bernadette Meyler hypothesizes, “This could really foreshadow an even broader roll-back of individual liberty and individual rights, including same sex marriage and contraception.”

Granted, all of this is speculation. The leaked draft opinion is, after all, still just a draft. Perhaps the opinion will change drastically before it becomes law (we can only hope). But one thing the leak has revealed is how little respect this Court has for precedent. That makes it impossible to predict what will happen tomorrow. The future—of abortion rights, of substantive due process, of civil rights for marginalized people—hangs in the balance.

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