The Attack on Substantive Due Process: Roe v. Wade and Beyond

The overturning of Roe v. Wade by the United States Supreme Court has stripped rights held for nearly half a century and raises concerns about the new, conservative makeup of the Court. The landmark 1973 case established access to abortion as a federal right, stating overreaching state restrictions were unconstitutional. However, the 2022 Dobbs v. Jackson Women’s Health Organization ruling reversed this, leaving abortion unprotected by the Constitution. The results of the decision have been immediate and terrifying. With ten states already banning abortions, an additional four banning abortions at six weeks (long before many know they’re pregnant), and with more restrictions likely to come, people are rapidly losing access to potentially life-saving procedures. 

How Can Dobbs Revert a Longstanding Right?

In their dissenting opinion, the justices who opposed the overturning of Roe v. Wade, Breyer, Sotomayor, and Kagan, state that “The Court reverses course today for one reason and one reason only: because the composition of this Court has changed”. With former President Donald Trump’s three new appointees to the Court, there is now a 6-3 conservative majority, closely mirroring the 5-4 vote in Dobbs. Indeed, the makeup of the Court is now more conservative than it has been for decades, with the new justices bringing their personal politics and justifications to their rulings. Generally, the US has entered a unique era of originalist, conservative, and activist judges. 

The majority decision in Dobbs drew heavily on the justices’ rejection of substantive due process and its use in Roe. Substantive due process is a legal principle which asserts that even when a certain right is not explicitly mentioned in the Bill of Rights, it can still be inferred from other amendments. These are usually rights which are deeply rooted in US history and that concern the private freedoms of individuals, particularly the Fifth and Fourteenth Amendments protecting fundamental rights from government intrusion. 

The use of substantive due process has been essential for many social movements. For example, while the right to abortion is not explicitly written in the Constitution, the justices in Roe argued it was encompassed by the Fourteenth Amendment preventing the states from depriving people of “life, liberty, or property, without due process of law.” While the Fourteenth Amendment does not read “states must not prevent abortion access”, it does outline concepts of liberty and personal privacy outside of the states’ reach, which the majority argued translates to the privacy and liberty of abortion access. Beyond Roe, the concept of substantive due process has been integral in landmark cases regarding birth control and gay marriage. 

Roe v. Wade created longstanding rights after its ruling, solidifying itself as legal precedent: a decision used as an authority when deciding other cases with similar circumstances. It would have been customary for the justices in Dobbs to defer to previously established precedent, protecting the right to abortion that had been established for years. In fact, the only conservative justice who voted to uphold the right to abortion, Justice John G. Roberts Jr., pointed to the ignorance of precedent and wrote that the Court should exercise restraint in its decision-making.

Instead of using legal precedent, the justices in the majority in Dobbs used an originalist method of ruling. Subscribers to originalism believe that judges should be bound by the original meaning of the Constitution, where their interpretations of its language should mirror what was meant when each amendment was written. This deference to originalism is apparent in the majority justices’ decisions. For instance, Justice Alito states that Roe was originally ruled incorrectly, as there is no explicit right to abortion in the Constitution. Justice Thomas also claims that Roe’s Court had “divined” a right to abortion due to their personal opinions on what the Fourteenth Amendment meant, rather than the actual text of the Constitution. 

What Motivates This Appeal to Originalism?

While it is easy for judges in cases like Dobbs to dismiss their actions as simply deferring to the Constitution, there are serious consequences and political motives in what appears to be a seemingly benign method. For many activist groups, the Court’s willingness to ignore substantive due process raises serious concerns for cases that have established rights many consider immutable. While Justice Alito, in his majority opinion to overturn Roe, reassured Americans that their decision concerned abortion and not other Constitutional rights, the willingness of the Court to commit to originalism and overlook precedent still creates reason to worry. Most concerningly are the statements of Justice Clarence Thomas suggesting that other cases beyond Roe are vulnerable to repeal when they use the principle of substantive due process. For instance, he calls for future cases to reconsider three prominent uses of substantive due process that protected married couples’ use of contraceptives, decriminalized same-sex sexual conduct, and decriminalized same-sex marriage 

At the center of these three cases were substantive due process and precedent, with Griswold introducing the notion of substantive due process, which was then used in Lawrence, which was then relied on in Obergefell. As a result, Thomas’ statements create serious uncertainty about these rights that previously seemed deeply entrenched. 

Notably, a stringent dedication to originalism shuts down conversations that have evolved since 1787. As gender theorist Judith Butler states, the fact that Alito’s justification for overturning Roe was that the term “abortion” isn’t in the constitution shows the rejection of “[applying] abstract rights to concrete social issues that the Constitution did not, and could not, foresee in their present historical form.” In response to some of the earliest advocates of originalism, Justice William J. Brennan Jr. mirrored Butler’s sentiments, stating that the “genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” In other words, there are current realities that the writers of the Constitution could not have accurately predicted, and there is an underlying conservative belief that our society should match what it was in the 19th and 20th centuries.

Advocates of originalism often point to the notion of judicial restraint, which means that justices should defer to the status quo and other authorities, instead of making sweeping decisions. After all, it’s better to have justices restrained by one document instead of personal opinion. However, this overlooks how the Constitution is not currently being applied to a society that looks how it did 200 years ago, and that it likely was not written as a means to do so. It can also prevent justices from reading important historical context or underlying meaning within the relatively short, vague document. For example, David H. Gans of The Atlantic argues that Alito’s assuredness that abortion is not enshrined ignores that the Fourteenth Amendment sought to guarantee bodily integrity, the choice of whether and how to have a family, and set forth principles of liberty and equality. 

Furthermore, to uphold originalism as a restrained, apolitical, set-in-stone procedure of judicial decision-making would be inaccurate. Originalism is a method, one that has not been used by all judges in the United States, and certainly not by all courts. The country’s current interpretation of originalism in particular is fairly new and largely formed in reaction to the formation of past Supreme Courts. For example, doctrines of “original intent” first became popular with conservatives responding to the civil rights achievements of the 60s and 70s, rooting US originalism in conservative policy goals. Earlier conservative originalism relied heavily on judicial restraint, advocating the Court to be cautious in their decisions and instead defer to other authorities, an understandable political tactic considering the court was largely liberal for most of the 20th century. 

The New Supreme Court

Now that the Court holds a secure conservative majority, the US may be moving into a new era of originalism, one that touts originalist interpretation while making sweeping policy decisions. Ian Millhiser of Vox argues that there have been three unique eras of US originalism: a liberal era that primarily attempted to prevent the Court from striking down laws that regulated the economy, followed by a relatively restrained conservative era that portrayed itself as highly democratic, deferring to legislators and documents. However, the third and most recent wave that Millhiser outlines is one that retains the language of the second wave but is composed of majority conservative justices who are willing to overturn democratically passed legislation. 

Despite Justice Alito’s claims that Roe v. Wade concerns abortion and no other precedent, it is clear that this is an illustration of an emboldened, conservative court willing to take swift action– a future made clear by Justice Thomas’ comments. For rights that Americans have long seen as fundamental, the attacks on substantive due process and heavy appeals to originalism used by justices in Dobbs and prior represent a real concern. After all, a Court going against the majority opinion of Americans and ignoring nearly fifty years of precedent hardly seems to be exercising restraint. 

Edited by Chelsea Bean