Farewell to Roe

Could substantive due process be next?

On June 24th, 2022, in Dobbs v. Jackson Women’s Health Organization, the Supreme Court of the United States officially repealed Roe v. Wade, a decision that since 1973 had imposed a constitutional right to an abortion on the entire nation. With it, Planned Parenthood v. Casey (1992) and other decisions upholding Roe’s right to an abortion were also overruled. While the Dobbs decision had been anticipated for almost two months, on account of an unprecedented and illegal leak of an early draft of the decision, the Court’s ruling last week made official what many conservatives had hoped would happen for many decades. A 5-4 decision, Chief Justice John Roberts sided with the majority’s judgment on the narrow issue of the constitutionality of Mississippi’s abortion regulation, but did not himself countenance a broader repeal of Roe.

In Samuel Alito’s majority opinion, the Justice wrote that the majority of the Court was guided by “the history and tradition that map the essential components of the Nation’s concept of ordered liberty” and asserted that it found that the “Fourteenth Amendment clearly does not protect the right to an abortion.” Alito noted that, prior to Roe, abortion had been criminalized by every single state in the Union and that the original intention of the Fourteenth Amendment was not to dictate abortion policy to the nation. “The Constitution makes no reference to abortion,” Justice Alito wrote, “and no such right is implicitly protected by any constitutional provision.” With abortion policy no longer dictated by the Supreme Court, the issue has been sent back to the state governments where it resided for most of American history.

The Court’s three Progressive Justices—Elena Kagan, Sonia Sotomayor, and the now retired Stephen Breyer—predictably claimed that the Dobbs majority failed to respect “a woman as an autonomous being,” accused the Court of sowing partisan division across the country, and assailed the majority for ignoring fifty years of precedent. The dissenting Progressive Justices were apparently unconcerned with the question of whether autonomy from laws both divine and natural is truly a legitimate goal of a free society. They also did not acknowledge that the Court’s sweeping 1973 decision nationalized the abortion debate and, by shifting it away from the slightly more amiable climate of state politics, radically inflamed partisan tensions across the country. The dissent’s appeal to the unquestionable authority of precedent also comes as a surprise given that the same justices never miss an opportunity to celebrate the Warren Court’s Brown v. Board of Education decision, which undeniably overruled precedent when it ended segregation and annulled the Plessy v. Ferguson decision from the late 19th century. Precedent alone clearly cannot resolve the inescapably moral debates surrounding our laws.

Dobbs will lead to new debates within the states about whether and to what extent abortion should be regulated. Notwithstanding the inflammatory and apocalyptic rhetoric from Democratic leaders such as Joe Biden, Nancy Pelosi, and Chuck Schumer, it is unlikely that abortion policy will be significantly affected in the country’s most populous states. California, New York, and Massachusetts will continue to have some of the most liberal abortion laws in the world even with the ruling of the Dobbs case. “Our opinion,” Alito claimed, “is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.” Noting this, some pro-life activists have claimed that the real problem with Dobbs is that it does not go far enough because it refuses to nullify state laws permitting abortion and fails to declare a nationwide right to life. Dobbs will energize public discussion within the states about the future of abortion policy. Though it is true that a decision enshrining a national right to life would have saved more unborn lives, it is also the case that, as Alito rightly noted, the entire history of the federal republic prior to Roe left abortion policy in the hands of the state governments. Whether certain pro-life leaders like it or not, the battleground of the anti-abortion movement has now migrated from the field of legal jurisprudence to the political arena, where it has new freedom to protect unborn lives at the state and local levels.

By reinvigorating America’s federal system and empowering the states to handle abortion policy, the Dobbs decision will undoubtedly prove to be one of the most consequential in modern history. But the issues at stake involve far more than just the future of abortion policy in the fifty states and the role of federalism in our system. The Dobbs decision also poses urgent questions about the legitimacy of the concept of substantive due process and the role of the Court in the American system. According to defenders of substantive due process, the Fourteenth Amendment’s guarantee that no state shall “deprive any person of life, liberty, or property without due process of law” invests individuals not only with procedural, legal rights—such as a right to a trial by jury, a right to legal counsel, and a right to present evidence when accused of a crime—but also with “substantive” rights to “liberty” broadly conceived, and specifically to “liberty” as the Court at any time chooses to define it. Constitutional “rights” to privacy, abortion, and gay marriage are among the “rights” that emerged in the name of substantive due process.  

In his decision, Justice Alito acknowledged the perils of seizing the word “liberty” out of the Due Process Clause and imputing it with meaning that was unknown to legal tradition and history. “In interpreting what is meant by ‘liberty,’ the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy,” Alito noted. Alito suggests that the Court should be reluctant to “recognize rights that are not mentioned in the Constitution.” Turning attention to an infamous passage from Planned Parenthood v. Casey, in which Justice Anthony Kennedy defended the constitutional right to an abortion on the grounds that “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,” Alito noted in conservative fashion the necessary dependence of liberty upon order:

The Court did not claim that this broadly framed right is absolute, and no such claim would be plausible. While individuals are certainly free to think and to say what they wish about ‘existence,’ ‘meaning,’ the ‘universe,’ and ‘the mystery of human life,’ they are not always free to act in accordance with those thoughts. License to act on the basis of such beliefs may correspond to one of the many understandings of ‘liberty,’ but it is certainly not ‘ordered liberty.’

As Alito explained, “ordered liberty sets limits and defines the boundary between competing interests.” In failing to give the people of the different states a say in how or whether they would restrict abortion, the Court usurped power from elected representatives and damaged the federal system. And yet, Alito shied away from a possible implication of his legal argument. In his Majority Opinion, he wrote that the abortion right is “fundamentally different” from similar Court-imposed “rights” such as the right to gay marriage and the right to contraception. Alito assured his readers that the Dobbs decision would not endanger the legitimacy of other important cases in the history of substantive due process, such as Griswold v. Connecticut (1965), Obergefell v. Hodges (2014) and Lawrence v. Texas (2003). 

After his blistering criticism of the Court’s unhistorical and dangerous use of the Due Process Clause as it related to the abortion issue, it is somewhat unclear how Alito can sustain his claim that the Dobbs decision does not raise any logical challenges to other rights that emerged out of Substantive Due Process. Justice Clarence Thomas, writing in a separate concurrence, signaled his own willingness to go further than Alito in overriding earlier precedents. Thomas would not only challenge the constitutionality of a “right to abortion,” but he would also seek to strictly limit the Due Process Clause to procedural rights and abolish substantive due process altogether—and all of the rights that were produced by it. “‘Substantive due process’ is an oxymoron that ‘lacks any basis in the Constitution,” Thomas contended. Not only does the Due Process Clause not secure a right to an abortion, but it does not “secure any substantive rights.” Because Dobbs concerned the relatively narrow question of state policy on abortion, Thomas agreed with Alito that it did not offer the proper occasion to annul all earlier Due Process Clause jurisprudence. But Thomas, in contrast to Alito’s Majority Opinion, signaled a bolder willingness to one day “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” 

With Substantive Due Process in Thomas’ sights, it is possible that we might live to see the emergence of a much more restrained Supreme Court, one with a deeper respect for our system’s dependence upon elected representatives and local self-government. For that to happen, however, Alito and the other conservative Justices must be willing to mount a robust challenge to the legitimacy of earlier Due Process Clause decisions. In Alito’s defense, it is quite possible that, had he taken any more firm stance against Substantive Due Process in his Majority Opinion, he would have failed to garner the support of some of the Court’s other conservative-leaning Justices. To obtain a majority of five in this case, perhaps Alito found it necessary to moderate the ruling as much as possible. Brett Kavanaugh in his concurrence signaled his unwillingness to consider whether or not the unborn were protected by the Equal Protection Clause of the 14th Amendment, and, as the former clerk to Justice Anthony Kennedy of Planned Parenthood v. Casey and Obergefell v. Hodges notoriety, it is also possible that he is more open to Substantive Due Process than Justice Thomas. Whatever compromises and imperfections might exist within the Majority Opinion, however, there is no question that conservatives are indebted to the five Justices who, in Dobbs, finally overruled Roe, restored power to the states, and helped to correct one of the greatest blots on American constitutional history.

The Dobbs decision is monumental. As America’s federal system has been eroded by seemingly endless decisions, regulations and mandates emanating from the federal government, it is encouraging to see a decision in which the Court has respected constitutional limitations and actually restrained its own powers. It is equally encouraging to know that thousands of unborn lives may be saved as conservative states and legislatures across the country finally cast aside their concessions to Roe and work more diligently to protect the lives of the community’s weakest members. But now is not the time for boasting or idling. The real battle is just beginning, for it is clear that the militantly pro-abortion forces in our country will stop at nothing to restore their constitutional “right to abortion” by packing the Court, passing federal legislation of fraudulent constitutionality, or, failing those goals, to liberalize abortion legislation throughout the fifty states by winning elections in the states and localities. Now more than ever, pro-life Christians need to seize their opportunity, get involved in state and local politics, and elect candidates who will protect the unborn.

*Image Credit: Unsplash

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Gordon Dakota Arnold

Gordon Dakota Arnold Gordon Dakota Arnold is native of High Point, North Carolina. He received his B.A. in Government from Regent University in 2017 and is currently pursuing a Ph.D. in Political Theory and American Government at Hillsdale College. His research interests include Reformed political philosophy, American Puritanism, the American Progressive Movement, and Constitutional Conservatism. He is writing his doctoral dissertation on “The Constitutional Nationalism of Henry Cabot Lodge Sr.”