To understand the abortion debate stemming from Roe v. Wade, one must understand substantive due process – a concept that allows courts to protect certain fundamental rights from government interference, even when a specific protection is not directly mentioned in the U.S. Constitution.

Due process protections come from the 5th and 14th Amendments to the U.S. Constitution, acting to prohibit the government from depriving any person of “life, liberty, or property, without due process of law”. In Roe v. Wade and subsequent decisions on abortion, the Court recognized a constitutionally based liberty, limiting the reach of laws that would otherwise interfere with a person’s right to make their own decisions – in this debate, a woman’s right to choose.

The concern is that five unelected Justices of the Supreme Court can impose their policy preferences on the nation.

Professors Nathan S. Chapman and Kenji Yoshino

Substantive due process applies broadly to many fundamental rights. The concept is not limited to abortion. In an essay about substantive due process’ application to same sex marriage, author Mark L. Rienzi analogizes cases pertaining to a person’s freedom of choice of marital partner with the Court’s decisions pertaining to abortion – both involving “Rights created because they relate to deeply important issues that are ‘central to personal dignity’—and about which the Court believes people should be able to make their own decisions without ‘compulsion of the State’”. For more, see Substantive Due Process as a Two-Way Street, 68 Stan. L. Rev. Online 18.

The “substantive due process” jurisprudence has been among the most controversial areas of Supreme Court adjudication. The concern is that five unelected Justices of the Supreme Court can impose their policy preferences on the nation, given that, by definition, unenumerated rights do not flow directly from the text of the Constitution. Chapman & Yoshino The Fourteenth Amendment Due Process Clause.

“Unenumerated,” in the context of constitutional law, refers to rights that were not specifically written into the U.S. Constitution or its ten original amendments comprising the Bill of Rights. Rather than looking beyond the printed words – black letter law – to consider what they infer as analyzed and expressed in case opinions over generations, some Justices are strict constructionists who will recognize only the narrowest, most conservative interpretation of a right, i.e., one specifically spelled out in the Constitution. The irony of this thinking is that ‘thinking outside the box’ is, itself, enumerated in the Bill of Rights:

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Over time, previous Justices of the Supreme Court struck down laws that would ban the use of contraceptives by married couples and later, extended that same protection to unmarried couples. Among other rights, the Court legalized interracial marriage, same sex marriage and, in 1973, abortion. Leading constitutional law scholar Erwin Chemerinsky observed, “There is no concept in American law that is more elusive or more controversial than substantive due process [which has] been used … to protect some of our most precious liberties. Still, there are now and always have been Justices … who believe there is no such thing as substantive due process.” 15 Touro Law Review 1501.

By mid-2022, the expansion of individual rights seems to have reversed course, made possible by the votes of three conservative Justices appointed by former president Trump. In the infamously leaked Dobbs v. Jackson Women’s Health Organization sneak preview (caution: big spoiler), Justice Alito wrote, “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. That provision has been held to guarantee some rights that are not mentioned in the Constitution …” This, given the current conservative majority of the Court, begs the question: What other rights will be going away?

In stark contrast to the strict constructionist approach, the Court’s willingness to interpret the Constitution in step with the needs of an evolving society has lent durability to a more than two centuries old document, dispelling concerns that the U.S. Constitution has, over time, become irrelevant. “The U.S. Constitution is the oldest written national constitution in the world — surviving for more than 230 years since its ratification in 1789. … The longevity of the U.S. Constitution reflects the framers’ wisdom in drafting a governing instrument that rejected monarchical rule in favor of representative democracy …” A Most Durable Document – thoughts about the flexibility envisioned for our Constitution by its framers.

In a country founded on religious freedom, separating church from state, is the enactment of laws mandating a church’s teachings consistent with individual liberties, including freedom of choice? “[M]ore Americans say abortion should be legal in all or most circumstances (61%) than illegal …” America’s Abortion Quandary, Pew Research.

From a constitutional law perspective, the pro-life vs. pro-choice debate re-raises a longstanding question about how to interpret the Constitution. Should it be read as a static document, or interpreted in the context of an ever-evolving society?

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