In 1973, the Supreme Court decided Roe v. Wade, legalizing abortion nationwide. Its ruling affected laws in 46 states. If Roe were reversed tomorrow, abortion would become illegal in 20 states—and that number could soon rise. Conservatives who’ve spent decades targeting Roe will waste no time trying to get more state laws on the books in anticipation of retiring Justice Anthony Kennedy’s seat going to a second Trump-appointed justice. President Trump has promised to nominate only candidates who would reverse Roe. If that happens, not just reproductive freedom but a host of other rights—most prominently gay rights—will be weakened or eliminated.
The court decided Roe on the basis of the Due Process Clause of the 14th Amendment. It recognized that the clause creates a privacy right. The foundation for its ruling is substantive due process, the idea that certain fundamental rights, even if they’re not enumerated, are constitutionally protected. Contrary to conservatives’ portrayals, substantive due process has been part of Supreme Court jurisprudence for more than 100 years.
While Roe was a giant leap forward, the court had previewed its rationale. In 1965’s Griswold v. Connecticut, the justices found that the right to use contraception falls under the “penumbra” (shadow) of the Bill of Rights. This was a broader, more politically palatable way to invoke substantive due process, which the court attacked in 1963. In Griswold, the court just didn’t restrict its understanding of unenumerated but fundamental rights—also known as penumbral rights—to a single clause.
Two years later, Chief Justice Earl Warren cited a right created within the liberty right in Loving v. Virginia, the decision declaring laws prohibiting interracial marriage unconstitutional.
These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
That decision was based on the Equal Protection Clause of the 14th Amendment, which makes laws targeting race presumptively unconstitutional. But its conclusion is a critical reminder that the court has often found substantive rights within the liberty right. It’s also just an elegant explanation: Substantive due process is what ensures the court protects “vital personal rights essential to the orderly pursuit of happiness by free men” that our Founders didn’t think (or know) to spell out 200-plus years ago.
Tactical errors may have been made. If it had been up to Justice Ruth Bader Ginsburg, who’d join the court two decades later, the court would have kept building up to legalizing abortion rather than allowing the entirety of the right to rest on one decision. It is the singularity of the decision that renders it so vulnerable, both because Roe forced a great deal of change at once and because it may be easier to overturn one case than it would be to negate a line of cases establishing the abortion right bit by bit. But the precedent is robust, not invented, as conservatives claim.
Kennedy has been the bulwark against overturning Roe. Which was, to conservatives’ mind, an unwelcome twist. He started out anti-abortion, their last best hope for overturning Roe until now. Only in 1992, when the court considered Planned Parenthood v. Casey in a direct challenge to abortion rights, did Kennedy flip. And he was hardly a total supporter of reproductive freedom: He was the deciding vote in 2007’s Gonzáles v. Carhart, which upheld a late-term abortion ban. If Trump’s able to replace Kennedy, there’s no doubt the court will criminalize abortion.
Roe is not the only case at risk, but it is the most urgent. If Roe falls, abortion regulation will be left to the states. Many states have spent years narrowing abortion rights as much as possible even with Roe in place. There’s no doubt that, as CNN legal analyst Jeffrey Toobin put it, abortion will be illegal in 20 states within 18 months.
If Roe falls, that decision may take substantive due process—long the target of conservative jurists—along with it. Or even the notion of penumbral rights altogether. If so, a second major group will be affected: LGBT Americans.
The right to human dignity
The substantive due process right most closely related to the privacy right, also derived from the right to liberty, is the right to dignity. The decision identifying that right arrived in 1971. In an opinion upholding the right of an individual to wear a jacket with an anti-war message, Justice John M. Harlan wrote that the right to individual choice in expression cannot be doubted. “[N]o other approach would comport with the premise of individual dignity and choice upon which our political system rests.” It would take three decades for the notion of a dignity right to take root.
Dignity is at the heart of several major issues. But nowhere is it more important than with respect to gay rights. As of 1983, the court still wasn’t on board, unfortunately. That’s when it heard the first major gay rights case, Bowers v. Hardwick. The majority upheld a Georgia “anti-sodomy” law. But Justice John Paul Stevens dissented, planting a seed. Echoing Harlan, he argued that our “intimate choices,” a matter of individual dignity, are protected by the right to liberty. He distilled the dignity right to an individual’s right to decide “how he will live his own life.” The courts must protect individuals’ freedom to choose out of “our tradition of respect for the dignity of individual choice in matters of conscience.”
It took 20 years for the court to shift on dignity. In March 2003, when the court heard Lawrence v. Texas, a challenge to Bowers, in essence, just two of the nine justices who decided Bowers were still on the court, Stevens and Justice Sandra Day O’Connor. The court decided Lawrence 6-3, with five justices basing their agreement on the dignity right: Anti-sodomy laws are unconstitutional under the substantive component of the Due Process Clause.
We should note here that O’Connor concurred in the judgment only because she was ahead of her time. “When a law exhibits such a desire to harm a politically unpopular group,” O’Connor wrote, “we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.” If she’d had her way, anti-gay discrimination would be prohibited in the way that discrimination on the basis of gender, race, religion, or nationality is.
That was Kennedy’s first chance to adopt the sturdier (and more rational) rationale that lesbian and gay people should be protected under the Equal Protection Clause. Of course, Justices Ruth Bader Ginsburg and Stephen Breyer could also have joined O’Connor’s dissent. But Ginsburg, we know, is a fan of incrementalism.
From finding that the liberty right protects sexual intimacy, the court would move on to extend the rights of same-sex couples on the same basis in Windsor, which struck the Defense of Marriage Act’s definition of marriage as opposite-sex, and Obergefell, which legalized same-sex marriage. But it went no further. Now, like abortion rights, gay rights hang on the single hook of substantive due process. The conservative wing of the court couldn’t be more pleased about that.
Conservatives’ quest to kill substantive due process
Eliminating substantive due process would bring the conservatives several major social victories in one fell swoop. It’s no wonder Justice Neil Gorsuch didn’t even wait to get to the court before establishing his views on substantive due process.
On the 10th U.S. Circuit Court of Appeals, his perch prior to the Supreme Court, Gorsuch made a point of criticizing substantive due process. In a case in which the plaintiff argued her substantive due process rights had been violated, Gorsuch refused to simply apply the doctrine. Instead, he noted that “some” believe if such a concept existed, it would be found elsewhere in the Constitution. “Others,” he offered, question whether substantive due process “should find a home anywhere in the Constitution.” This snark aside, while mild, is unusual. He only proceeds with the analysis after complaining that “the Supreme Court clearly tells us” that substantive due process exists.
Gorsuch was even more directly skeptical of substantive due process, insomuch as an ambitious and forward-looking lawyer could be, in his Oxford dissertation (later a book) opposing a right to “assisted suicide.” Proponents of the right to make one’s own end-of-life choices, including when it should end, base arguments on the right to dignity, which arises from substantive due process and protects choice. Hostility shines through as Gorsuch criticizes the Supreme Court for adhering to substantive due process precedent in “case after case.”
But it’s worse than that.
In his book, Judge Gorsuch went so far as to criticize the Supreme Court for adhering to substantive due process precedent in “case after case.” He also proposed an alternative relevance for dignity, based in equal protection, that could restrict rather than protect individual rights. The recognition of innate human dignity is the foundation for equality, Judge Gorsuch claimed, and equality makes “assisted suicide”—termed “death with dignity” in those states that permit it —unacceptable because all people created equal enjoy an inalienable right to life. This view is troubling, not only in signaling an intent to misappropriate the concept of dignity to restrict individual choice, but also because of the implications for reproductive access, rights, and justice.
With another Trump justice on the court, the conservatives might not only overturn Roe, but issue an opinion that vitiates substantive due process rights altogether. Then, if Gorsuch gets his way, the court could go even further to the right to create a constitutionally-enshrined “right to life” that precludes states from legalizing abortion or death with dignity, for example.
This is all just a slice of why it’s critical to fight.
