A constitutional right that has some of its origins in the famous Great Charter (“Magna Carta”) in 13th Century England has been a source over many decades of some of the most important rights enjoyed by Americans. It is the somewhat opaque “right of due process,” a basic guarantee that protects people from arbitrary government action.
Last week, one of the rights derived from that source – a woman’s right to end a pregnancy by an abortion – was erased by the Supreme Court. That was the first time in the Court’s 233-year history that it has done that.
While the nation is now deeply uncertain what comes next on women’s access to abortion, another uncertainty emerged from last week’s decision: if a right as durable as that can suddenly be taken away altogether, what other constitutional rights may now be in jeopardy?
The basic reason for raising that question is that many of the rights that have emerged from Supreme Court decisions – like the right to abortion — are not spelled out specifically in the Constitution. They are “unenumerated rights” owing their existence to Supreme Court interpretations of the nation’s founding document.
For rights that are explicitly guaranteed in the text of the Constitution, Americans can rely quite comfortably on keeping those rights. Those exist in the first ten amendments (the Bill of Rights) or were added later – the right not to be held as a slave (13th Amendment), the broad rights of legal equality, “liberty” and “due process” (14th), racial equality in voting (15th), the right to vote for U.S. Senators (17th), women’s equal right to vote (19th), the right of citizens living in Washington, D.C., to vote for President and Vice President (23rd), the ban on any tax on the right to vote (24th), and the right to vote for 18, 19 and 20 year olds (26th).
The Supreme Court cannot abolish outright any of those guaranteed rights, as it did with the right to abortion last week, finding no protection for it anywhere in the Constitution. But it can expand or narrow guaranteed (“enumerated”) rights by the way it interprets them.
A good example is one of the Bill of Rights: the Second Amendment, protecting a “right to keep and bear arms.” That was long understood to mean only that a local militia could be armed for the community’s self-defense. But, in 2008, the Court ruled for the first time that the Amendment protected a personal right to have a gun for one’s own self-defense at home. And, just last week, it broadened that personal right beyond the home, to carrying a firearm out in public.
But the greatest expansion of individual rights has come from the Court’s interpretation of the Fourteenth Amendment, assuring legal equality as well as a right to “liberty” that cannot be taken away without “due process of law.”
In a project that began in 1896, and continued as recently as three years ago, the Court lifted almost all of the rights listed in the Bill of Rights (all of which were originally written to restrain only the federal government) so that they now restrict state and local governments, too. (That’s how Second Amendment gun rights were applied by the Court in 2010 so that state and local governments, too, must respect those rights.)
This expansive use of the promises of the Fourteenth Amendment is, in reality, nothing short of a constitutional revolution that continues to this day. Why did that happen, and why has it continued? But, after last week’s abortion decision, there is also the question: will it continue from here on?
The concept of “due process of law” sounds like a promise that the government will use fair procedures in dealing with the people. (That, for example, is what is embodied in the Sixth Amendment right to a lawyer when one is accused of crime, part of the Bill of Rights that was extended to state and local government by the Court in 1963.)
But the Court, at least since the 1850s, has recognized another kind of “due process,” which is expressed in the legal phrase, “substantive due process.” In its simplest form, it means that there are certain rights that should be a part of a free society, so they must be recognized as protected by the Constitution – even if they are never mentioned in that basic document. And that recognition comes in Supreme Court rulings.
A “substantive” right of that kind is usually considered to be a “fundamental right” and, as such, it can only be limited by action of the government if that action can satisfy the most rigorous test of constitutionality (lawyers and judges call this the “strict scrutiny” test).
But, as the Court’s ruling last week against an abortion right illustrates, it did not matter that the right has been protected previously as “fundamental”; what mattered was that the Supreme Court changed its mind, with a majority declaring that it would no longer recognize that right. As a result, the right ceased to exist the moment that the decision emerged in the case of Dobbs v. Jackson Women’s Health Organization.
The two prior decisions that created the right and reaffirmed that right – Roe v. Casey in 1973 and Planned Parenthood v. Casey in 1992 – were overruled completely. From here on, no one can claim such a constitutional right, even if state legislatures choose (or if Congress chooses) to deny the right altogether or to severely restrict it.
Both the Roe and Casey decisions were grounded in the “due process” guarantees of the Fourteenth Amendment, in their substantive form.
There were many reasons, of course, why that decision was such a shocking use of judicial authority. One reason, of course, was that it had never happened before, to any constitutional right — no matter how or when it originated.
But among other reasons was that the ruling raised a profound new question: is the Court hereafter going to abandon, altogether, the recognition or continued respect for any right that originated in the concept of “substantive due process”?
The majority opinion insisted that that was not a threat, that this Dobbs decision was limited strictly to abortion as a right – an attempt at reassurance that the dissenting Justices argued could not be relied upon, now or in the future.
One member of the Court majority – Justice Clarence Thomas – wrote a separate opinion re-stating a position that he has often expressed: the Court should never have created any rights out of the “substantive due process” idea, and should, as soon as it could, overrule other major decisions creating such rights.
Thomas listed the right of access to birth control methods and devices (recognized in Court rulings in 1965 and 1972), the right to private sexual conduct (based on a 2003 ruling), and the right to marry a person of a different sex (originated in a 2015 decision).
Thomas did not mention another right based on that theory – the right to marry a person of a different race, which originated in the 1967 decision in Loving v. Virginia. (It could be that Thomas omitted it because that ruling was based partly on the constitutional guarantee of racial equality; but it also might have been somewhat awkward for him to include that ruling because he himself is a partner in an interracial marriage.)
The rights he mentioned are not the only ones that are grounded in the promise of “substantive due process.” There is also a right to decide how to raise and to educate one’s children, a parent’s right to bar even close relatives from visiting a child, a right not to have one’s body invaded surgically to find evidence of crime, a right of an extended family to live together in one house, a right of a mentally ill person to remain free if he or she is not dangerous to themselves or others, and a right for a corporation not to be assessed too heavy financial damages as a form of punishment for wrongdoing.
This concept of “substantive due process” has not had an entirely unblemished record of establishing valuable new rights. For example, one of the earliest uses of this approach was the Court’s infamous ruling in Dred Scott v. Sandford in 1857 – actually, one of the causes of the Civil War. In that decision, the Court created a right of slave owners to take their slaves with them as they travel, including a right to keep the slaves in bondage even if the travels took them to states where slavery was forbidden.
Another since-discredited use of the theory came in the 1905 case in Lochner v. New York, which created a “right to contract” which led to the nullification of state and local laws limiting the hours and conditions that people could be required to work. That decision, and others following it, held back government power to pass social-welfare legislation until those rulings were finally overruled by the Supreme Court as it saved many of the broad “New Deal” programs designed to pull America out of the Great Depression.
It was only during the “civil rights revolution” of the 1950s that the Court broadly switched to using the theory to create new, inclusive rights in many sectors of American life.
The “substantive due process” doctrine has been under steady challenge for decades, particularly among legal scholars of conservative views, who contend that the creation of such rights departs from what the Constitution itself says and gives judges the authority to invent rights based only on their own personal or policy preferences.
Justice Thomas has been echoing that criticism for a good deal of the time that he has been on the Court. His criticism finally came to fruition last week, in the abortion case. And, as he made clear, he would seek to move the Court further in that direction when he can recruit other Justices to go along.
It could be that other Justices in the current conservative majority will hesitate before joining in Thomas’s cause. Or, they might preserve some of the rights at issue by recognizing them under different constitutional guarantees – as, for example, the promise of legal equality in the Fourteenth Amendment, part of the rationale for protecting interracial marriage.
That option, however, may not be available to save a right to abortion. One part of the majority opinion in the Dobbs case said explicitly that – under existing precedents — the right cannot be recognized under constitutional guarantees of equal rights for women.
Perhaps only the addition of an Equal Rights Amendment to the Constitution – something now under review in a lower federal court – could provide a basis for restoring a right to abortion.