7 July 2022
On 24 June 2022, the US Supreme Court’s 5-4 ruling in the case Dobbs v. Jackson Women’s Health Organization revoked the constitutional right to an abortion in the United States guaranteed nearly 50 years ago in the infamous Roe v. Wade decision of 1973.
The majority opinion written by Justice Samuel Alito held that abortion is not a federally protected right under the US Constitution, and, therefore, individual US states can ban or restrict abortion access without violating the Constitution.
“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, including the one on which the defenders of Roe and Casey now chiefly rely – the Due Process Clause of the Fourteenth Amendment.”
The ruling may have wide-ranging repercussions for several Supreme Court decisions which used Roe v. Wade and its application of the Due Process Clause as legal precedent.
In the Fourteenth Amendment of the US Constitution, the Due Process Clause ensures state and local governments cannot create and enforce laws that arbitrarily deprive their citizens of life, liberty or property without fair procedure, or ‘due process’.
“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.” –Amendment XIV, Section I, The US Constitution
There are two principles usually applied by the US Supreme Court in its invocation of the Due Process Clause:
Cases involving ‘substantive due process’, are highly scrutinised in Supreme Court cases. This is because, rather than using the text of the Constitution to make legal judgements, these rulings rely on legal precedent, US history, and tradition to determine whether an unenumerated right should be constitutionally protected as a fundamental right.
The Griswold v. Connecticut (1965) decision removing bans on contraceptives for married couples was the first time the interpretation of constitutionally protected ‘unenumerated rights’ relating to life, liberty and property was expanded to include non-economic rights. Since then, several landmark Supreme Court decisions have used the clause to advance significant changes to the social and cultural traditions of the United States – from access to contraception and abortion to the protection of same-sex intimacy and marriage – not explicitly addressed in the Constitution.
The Due Process Clause is the reason the Fourteenth Amendment is one of the most litigated parts of the Constitution. It also features prominently in cases relating to controversial questions of American moral and social traditions, as the interpretation of ‘liberty’ evolves.
Now that the Dobbs decision has rejected the extension of the Due Process Clause to unenumerated rights, several other Supreme Court decisions are under threat of reversal. Three, in particular, protecting rights to contraception, same-sex intimacy and same-sex marriage, were named in Justice Clarence Thomas’ concurring opinion, “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell because any due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”
As President Biden said in his reaction to the ruling, “If the rationale of the decision as released were to be sustained, a whole range of rights are in question.” Below is a table that helps identify some of these rights and illustrates the relationship between several key Supreme Court decisions that rely on the Fourteenth Amendment.
Griswold v. Connecticut (1965) established the basis for the right to privacy within marital settings. It ruled a state could not make laws surrounding the use of contraception for married couples because the right to privacy protects individuals from arbitrary government interference or intrusion.
The majority also determined that the right to privacy is fundamental to the principles of liberty, which are constitutionally guaranteed in several amendments of the Bill of Rights. The court also ruled the right to privacy was not only fundamental but substantive, overturning a previous ruling (West Coast Hotel v. Parrish (1937)) which considered unenumerated rights only in economic terms – for example, the freedom of contract.
In Loving v. Virginia (1967), the US Supreme Court unanimously ruled that a Virginia law outlawing interracial marriage violated both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. The decision ultimately ended all race-based legal restrictions on marriage.
The court held that the freedom to marry is a fundamental constitutional right, and deprivation of such freedom on an arbitrary basis (such as race) was unconstitutional on the basis of the Due Process Clause of the Fourteenth Amendment.
Eisenstadt v. Baird (1972) established the right for unmarried couples to possess contraception. The case referred to the Equal Protection Clause of the Fourteenth Amendment.
Importantly, only one Supreme Court judge, Judge William O. Douglas, argued the right to obtain contraception fell within an individual’s right to privacy as interpreted by Griswold (1965). However, the case famously concluded, “if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matter so fundamentally affecting a person as the decision whether to bear or beget a child”.
Roe v. Wade (1973) protected a pregnant woman’s right to access abortion without the interference of states in the first trimester. The majority determined the Due Process Clause of the Fourteenth Amendment entitled individuals to a fundamental ‘right to privacy’, meaning states could not legislate or regulate individuals’ choices on certain private matters.
To justify this ruling, the judges highlighted ‘substantive due process’ which extends the protection of liberty beyond that which is explicitly written in the Constitution. And that the precedence for this interpretation of the right to privacy was ensured, including Griswold v. Connecticut (1965).
The dissenting judges, however, disputed the court’s interpretation of substantive due process. Justice Byron White wrote in his dissenting opinion, “for the most part, [abortion] should be left with the people and to the political processes the people have devised to govern their affairs.” In other words, it is not up to the US Supreme Court to decide whether individuals should be protected from laws that potentially infringe their privacy in respect to abortion. Rather, abortion rights should be legislated and enshrined in laws by Congress.
The other dissenting opinion from Judge Rehnquist elaborated, “to reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.” Rehnquist here highlights that interpreting the ‘right to privacy’ in this way means Supreme Court judges are no longer basing their rulings on their interpretation of the Constitution, and that the Due Process Clause could protect individual rights that were beyond the original intentions of its drafters.
The US Supreme Court in 1986, Bowers v. Hardwick (1986) adjudicated the question of whether a Georgia law criminalising homosexual sex violated an individual’s fundamental right. In a dissenting opinion, Justice John Paul Stevens wrote that there was a precedent to protect the right to privacy regarding consensual sexual activity in both the Griswold and Eisenstadt rulings.
However, the majority opinion argued that the substantiated right to privacy did not extend to homosexual conduct because ‘privacy’ depends on intimate settings such as marriage, procreation, contraception, and family relations. In doing so, Bowers brought attention to how the interpretation of the Due Process Clause and related rulings can vary greatly depending on the policy preferences of the US Supreme Court bench.
The case of Planned Parenthood v. Casey in 1992 amended many of the more technical and particular regulations surrounding the protection of abortion as it was conceptualised in the Roe v. Wade (1973) ruling.
The plurality opinion, re-affirmed that abortion is a constitutional right protected under the Due Process Clause of the Fourteenth Amendment as well as the legal precedent addressing the right to privacy and liberty. However, the terms for when an abortion may be sought in Roe (i.e. the first trimester) were replaced with the ‘viability’ measure, meaning abortions were only protected from state law interference up until the time a foetus can survive outside the womb.
Importantly, the plurality opinion included a detailed discussion of ‘respect for precedent’ or stare decisis. The majority justices emphasised that it is essential for the US Supreme Court to stand by its previous decisions and the need for consistency and predictability in the court’s decision-making, lest the court lose its legitimacy.
On the other hand, the dissenting justices Clarence Thomas, Antonin Scalia and Chief William Justice Rehnquist maintained abortion was not a ‘protected’ liberty under the Due Process Clause, arguing that the right to an abortion was neither in the Constitution nor the traditions of American society.
“We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases.”
“We are now of the view that, in terming [the guarantee of personal privacy] as fundamental, the Court in Roe read the earlier opinions upon which it based its decision too broadly… nor do the historical traditions of the American people support the view that the right to terminate one’s pregnancy is ‘fundamental’.”
This was due to the decision to change the metric determining whether a state law infringes individual liberties from a ‘strict scrutiny’ standard to a less rigorous ‘undue burden’ measure.
‘Strict scrutiny’ standards are used in the case of fundamental rights and hold state laws to strict standards in terms of their ability to regulate issues surrounding individual liberties. It means where individual liberties have the potential to be restricted, states must pursue the ‘least restrictive means’ to achieve their purpose.
Whereas, the ‘undue burden’ standard – established for the first time in Casey – means states cannot impose regulations that create unreasonable obstacles for individuals seeking to exercise their abortion rights. It is more ambiguous to apply and less difficult to prove that a state law creates ‘undue burden’ than it is to hold state laws to a ‘strict scrutiny’ metric. So, in essence, Casey expanded states’ ability to regulate abortion.
This changed scrutiny standard enabled states to make abortion access more difficult, while technically upholding the right to an abortion. For example, several states created laws requiring abortion facilities to meet ambulatory surgical standards, state licensing requirements, federal workplace safety requirements and medical ethics requirements. While supposed to ensure patient safety, the cost of complying with these standards, and the number of facilities unable to abide by the regulations, saw a significant reduction in the number of abortion providers and made abortion access more difficult in these states. As a result of these regulations in Texas, for example, the number of abortions providing facilities decreased by 25 per cent in the state from 2016 to 2021.
In 1997, the US Supreme Court unanimously ruled the Due Process Clause of the Fourteenth Amendment does not extend to protect the right to assisted suicide because assisted suicide is not a fundamental liberty interest and is offensive to America’s established traditions and the nation’s history.
In Lawrence v. Texas (2003) the US Supreme Court ruled that state laws criminalising consensual, adult homosexual intercourse were unconstitutional. In doing so, the court revoked the Bowers (1986) decision that determined the Constitution did not protect privacy relating to homosexual relations.
The majority argued that the ‘right to privacy’ and personal autonomy, guaranteed in the Due Process Clause of the Fourteenth Amendment, and as conceptualised in cases such as Griswold, Eisenstadt and Roe, entitles citizens to personal autonomy and non-interference in their private decisions.
While Justice Sandra O’Connor concurred with the majority’s judgement, in her written opinion she disagreed with the decision to overturn the Bowers ruling and argued that the Due Process Clause guarantees liberties in the context of private decisions. The dissenting justices, Antonin Scalia, William H. Rehnquist and Clarence Thomas also argued that the rationale to overturn Bowers was flawed, as was the stare decisis that upholds the right to privacy in the cases of Roe and Casey.
Summarising his position Justice Antonin Scalia wrote, “let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means…. [the majority’s] invention of a brand-new ‘constitutional right’ [shows it is] impatient of democratic change”. Again, this conjecture emphasises that the interpretation of the right to privacy in this instance over-extends the remit of the Supreme Court because it relies on substantiated cases and precedent, rather than constitutional interpretation. In other words, rather than relying on the constitution and the US Supreme Court to protect the right, it should be legislated by Congress.
Joining Scalia, Justice Thomas wrote, “I write separately to note that the law before the Court today ‘is… uncommonly silly.’”
In 2015, Obergefell v. Hodges ruled the fundamental right to marry is constitutionally guaranteed for same-sex couples in the United States. Citing the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment, the ruling determined all states must recognise same-sex marriage.
The majority opinion affirmed there are fundamental unenumerated rights granted within the Fourteenth Amendment that “extend to the certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” The majority cited Griswold as evidence of this.
In his dissenting opinion on the case, Justice Clarence Thomas argued that the interpretation of ‘liberty’ in the Fourteenth Amendment had gone too far. He insisted “liberty has long been understood as individual freedom from government action, not as a right to a particular government entitlement.” He also wrote of the clause, it “invites judges to do exactly what the majority has done here – roa[m] at large in the constitutional field guided only by their personal views as to the fundamental rights protected by that document”.
Justice Thomas’ concurring opinion in reaction to Dobbs should not come as too much of a surprise. Justice Thomas has consistently rebuffed the application of the Fourteenth Amendment – and the Due Process clause in particular – for abortion rights and in the cases of Obergefell and Lawrence. Justice Thomas has also raised First Amendment questions as to the extent of freedom of expression
It is important to note that Thomas’ statement was sole-authored and does not necessarily doom the rulings in Griswold, Lawrence or Obergefell. In fact, Justice Samuel Alito, whose draft opinion on the Dobbs case was leaked in May 2022, wrote that the court’s decision in Dobbs does not alter the rulings on the cases that Roe and Casey used for precedent: “None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.”
In this first week since the ruling, abortion officially became illegal in six US states – South Dakota, Wisconsin, Montana, Oklahoma, Arkansas and Alabama. In several other states, the future of legal abortion is unknown.
President Biden has spoken forthrightly about the need to enshrine the right to an abortion in US law. In a statement on 24 June, the President said, “the only way to secure a woman’s right to choose is for Congress to restore the protections of Roe as federal law.” Yet to do this, legislation will need to pass both the US House and Senate with a majority yet with the Senate’s filibuster rule – which requires a clear 60 senate votes in favour – this seems unlikely.
In the meantime, the right to an abortion in the United States is no longer guaranteed by the Fourteenth Amendment of the US Constitution; states can make laws that legally ban abortion. States can also pass laws that regulate and allow abortion as most have done. The US Supreme Court has made itself clear, but the future of abortion rights in the United States is anything but that. Keep in mind that all that Dobbs does is actually bring the US in line with virtually every other country, including Australia. Namely, that abortion is a matter for the legislature. There are very few if any countries where abortion is permitted as a constitutional right.
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