In the leaked draft opinion of Dobbs v Jackson Women’s Health Organization, the Supreme Court seems poised to reject the broad doctrine of substantive due process established in Griswold v Connecticut.
Substantive due process is a purely activist interpretation of the Constitution that has allowed the Court to legislate from the bench on contentious social issues. Since Griswold, the Court has given constitutional protections to birth control, abortion, sodomy, and same-sex marriage based on unenumerated rights conveniently found in the Constitution. Instead of needing approval from two-thirds of Congress and three-fourths of states to change the Constitution, one only needs five activist judges.
The Supreme Court has had a long and uneasy relationship with substantive due process. From 1897 to 1937, commonly referred to as the Lochner Era, the Supreme Court used the 14th Amendment’s due process clause to create an unenumerated right of contract to strike down state and federal labor laws. Eventually, under the threat of court-packing, the court largely overturned its precedent.
Substantive due process was largely repudiated and seen as a gross judicial overreach for the decades to come. However, in 1965 with their decision in Griswold v Connecticut, the Supreme Court legitimized substantive due process again.
Justice Douglas, although rejecting Lochner Era interpretation of the 14th Amendment, found the right to privacy in the abstract penumbras of the Bill of Rights, “formed by emanations from those guarantees that help give them life and substance”, and that “Various guarantees create zones of privacy.” Douglas further cited Lochner Era precedence to justify this new constitutional protection.
Griswold and the new broad right to privacy gave the court a foundation to find new protections in the Constitution, from abortion in Roe, to sodomy in Lawrence, and same-sex marriage in Obergefell, with each case adding new rights to the doctrine of substantive due process, such as autonomy and dignity.
Justice Alito’s draft opinion thoroughly rejects this reckless constitutional interpretation, calling substantive due process an “erroneous decision.” Furthermore, Alito rejects the notion that abortion is a fundamental right deserving of strict scrutiny and demotes the standard of review to rational basis: “abortions are not subject to heightened scrutiny. Rather, they are governed by the same standard of review as other health and safety measures.”
Instead of the abstract and subjective doctrine of substantive due process, Justice Alito reaffirms the traditional test for protecting unenumerated rights, where the Court must decide whether the claimed right is “‘deeply rooted in [our] history and tradition’ and whether it is essential to our Nation’s ‘scheme of ordered Liberty.’”
First, in this test abortion access cannot remotely be considered a protected right due to “an unbroken tradition of prohibiting abortion on pain of criminal punishment.” For centuries, British and American legislatures recognized the rights of the unborn or “quickened” fetuses, including the 30 states that prohibited all abortions until Roe v Wade.
Second, Alito argues “Ordered liberty sets limits and defines the boundary between competing interests,” but states may view these boundaries differently and the Court’s understanding of ordered liberty does not prevent the people’s representatives from regulating abortion. This mirrors Justice Scalia’s dissent in Lawrence v Texas where he argued against “the invention of a brand-new ‘constitutional right’ by a Court that is impatient of democratic change.”
When a right is not expressly protected in the Constitution, or an unenumerated right has no deep roots in tradition or is unessential to ordered liberty, state legislatures must have authority to regulate with the consent of the governed.
Alito’s opinion runs directly counter to nearly 60 years of precedent stemming from Griswold and completely rejects substantive due process. This is truly a momentous win for conservatives, reaching beyond the pro-life movement and finally cementing an originalist view of the Bill of Rights and 14th Amendment in precedent for the 21st century.
Those who claim overturning Roe v Wade and Planned Parenthood v Casey will return America to the 19th century seem to heavily rely on the Gilded Age doctrine. If the unenumerated rights to privacy, autonomy, and dignity are as popular as portrayed, why undermine and weaken our Constitution instead of simply amending it?
The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.