Revisit Of ‘Due Process’ Rights Led To Reversal Of Roe
The U.S. Supreme Court building. Unsplash photo by Claire Anderson.
States, lawyers and legal scholars are continuing to evaluate the impact of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health, which overturned the decision in Roe v. Wade and subsequent abortion cases and held the U.S. Constitution does not, in fact, recognize a right to terminate a pregnancy.
The 6-3 decision, delivered in late June near the end of the court’s term, upheld a Mississippi law that restricted abortion after the 15th week of pregnancy except in cases of medical emergency or severe fetal abnormality. A trial court had blocked enforcement of the law, and the Fifth Circuit Court of Appeals had affirmed. In both cases, each court said the law’s short window of 15 weeks violated 50 years of precedent that set the minimum window essentially at fetal viability.
The legal result of the Dobbs decision has been to send the question of abortion and any limitations to the legislature in each state for consideration.
For example, 17 states, including Alabama, Arkansas, Oklahoma and Texas, now have or soon will have near total bans on abortion, and four more have banned it after earlier in the pregnancy — six weeks or 15 weeks.
On the other hand, 16 states, including those on the West Coast and most in the Northeast, have acted to expand legal access to abortion beyond what has been protected nationally before the Dobbs decision, in some cases moving to enshrine the right in state constitutions.
Some legal scholars, like Barry McDonald, who teaches constitutional law at Pepperdine University, were not surprised by the outcome of the decision, particularly because of the leak in March of a draft majority opinion by Justice Samuel Alito that included a strong reversal of Roe.
“The final opinion didn’t change much from the leak, except for adding responses to the other opinions,” McDonald said, “although I would have expected Alito to tone down some of the aggrieved language we saw in the draft.”
Indeed, the language of the document leaked in March and that of the final opinion was unambiguous about overturning Roe v. Wade and resetting American abortion law after five decades.
Roe had made restricting abortion before viability — at the time before the end of the second trimester — extremely difficult. The effect at the time was to overturn more than two dozen state laws that substantially outlawed or limited abortion.
The Roe decision “represented the ‘exercise of raw judicial power,’” Alito wrote in Dobbs, quoting Justice Byron White’s dissent in the 1973 case, “and it sparked a national controversy that has embittered our political culture for a half century.”
Alito also took to task a 1992 decision in Casey v. Planned Parenthood that expanded state options for limiting abortion, focusing entirely on viability. The court also said, since abortion was not a “fundamental right,” states may regulate the right, but not in ways that create an “undue burden.” Still, it retained a recognition of the right to abortion through the 14th Amendment.
Casey “failed to remedy glaring deficiencies in Roe’s reasoning” and “imposed a new test with no firm grounding in constitutional text, history, or precedent,” Alito wrote.
At the heart of Dobbs, Roe and Casey is more than just abortion — it is a constitutional concept called “substantive due process” and, even more broadly, the question of how courts should interpret the Constitution.
The 14th Amendment, adopted at the end of American slavery, prohibits states from denying individuals life, liberty and property without “due process of law.” During the 20th century, courts have argued that language recognizes rights otherwise unarticulated in the Constitution, such as rights to birth control, gay sex, same-sex marriage and abortion.
But Alito and the majority wrote the court was wrong 50 years ago to find a such a right to abortion when, historically, no clear consensus existed at the time about when a fertilized egg becomes a human being or whether the right of an expectant mother to terminate a pregnancy had historic precedent. Rights recognized by the due process clause must be “deeply rooted in this nation’s history and implicit in the concept of ordered liberty,” and recounting the long history of abortion, Alito said it never has been.
The majority applied an interpretive lens often called “originalism,” that the court should interpret the Constitution as originally understood by the authors of the document, rather than a “living Constitution” — or judicial pragmatism — framework that argues the understanding of the Constitution should evolve over time, a view more popular on the court in the 1960s and 1970s.
Some lawyers who argue for an originalism framework, such as Dallas attorney Darren Keyes, hailed the Dobbs opinion and its retreat from unlimited substantive due process.
“Justice Alito lays out the history well,” Keyes said. “For most of American history, I think in every state at some point, it was a crime. How can a small number of people just decide it’s a fundamental right?”
A secondary question addressed by Alito was that of stare decisis, whether the court must follow precedent like Roe v. Wade, even if justices believe it was wrongly decided.
Stare decisis plays an important role and protects the interests of those who relied on a past decision, Alito wrote, but the concept “does not compel unending adherence to Roe’s abuse of judicial authority” because of its “weak” reasoning, “damaging consequences” and the way in which it has “enflamed debate and deepened division” in the country.
The opinion was accompanied by three concurring opinions and one dissent.
Justice Clarence Thomas, who signed on to the majority opinion, has long been the most adamant advocate of originalism and authored a concurrence that said he would have gone further and struck down any rights recognized by the court through substantive due process.
“As I have previously explained, ‘substantive due process’ is an oxymoron that lacks any basis in the Constitution,” Thomas wrote.
Keyes said he was particularly pleased by Justice Thomas’ outright rejection of the concept, even if he is just a single vote on the court.
“The due process clause guarantees process,” Keyes said. “Substantive due process to me is a creation of the court, and I’m appreciative his concurrence follows that logic.”
Justice Brett Kavanaugh authored a concurrence in which he supported overturning Roe and Casey but emphasized the majority rationale should not be viewed as threatening the right to interracial marriage, birth control or other substantive due process rights. He also argued states shouldn’t be able to prevent pregnant women from traveling to other states for abortions.
Chief Justice John Roberts joined the decision but opposed overturning Roe and Casey. He wrote a concurrence in which he argued judicial restraint should call for going no further than necessary to address the question of the Mississippi law. The court didn’t need to explicitly overturn the prior cases, he wrote, to uphold the 15-week rule. He agreed that the viability standard in those cases never made sense but Roe and Casey could be modified — rather than overturned — to extend the right to an abortion only far enough to ensure a “reasonable opportunity” to choose abortion.
Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan submitted a joint dissent, which is generally used to indicate strong disapproval with the majority. The right of abortion, they wrote, cannot be separated from the other rights recognized by substantive due process over the past 60 years. “The Court’s precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven — all part of the fabric of our constitutional law, and because that is so, of our lives,” the dissent said. “Especially women’s lives, where they safeguard a right to self-determination.”
The dissent argued the majority’s decision will give states the authority to force a woman to give birth, prohibiting even the earliest abortions, and it cited states like Texas and others that have moved to do just that. And it chided the majority justices for their “cavalier” approach to overturning precedent without a clear standard other than simply disagreeing with it.
McDonald said the Dobbs decision, while sweeping, raises entirely new questions that courts will now be forced to deal with in years to come — from whether states must recognize an exception to abortion restrictions for rape or incest to whether states can ban the import of mail-order birth control pills to issues raised by Justice Kavanaugh in his concurrence, such as whether states can restrict out-of-state travel for the purposes of abortion.
“Kavanaugh tried to say states can’t ban interstate travel, but Kavanaugh is just one justice,” McDonald said. “Abortion litigation is not going away.”
This piece is republished from The Christian Chronicle. Kenneth Pybus is an associate professor and chair of journalism and mass communication at Abilene Christian University in Texas and a First Amendment lawyer.