Last Wednesday, the Supreme Court heard the first major abortion case of the Trump era. The case, June Medical Services v. Russo, concerns a Louisiana law that required abortion providers to have admitting privileges at a hospital within 30 miles of their clinic. The law would leave only one doctor at a single clinic to provide for nearly 10,000 women who seek abortions in the state each year.
This exact principle was struck down in Whole Woman’s Health v. Hellerstedt just four years ago. Hellerstedt decided that laws that require abortion providers to have admitting privileges at a hospital within 30 miles of their clinic place an undue burden on women getting an abortion, thus making it unconstitutional. The only thing that has changed in Hellerstedt versus Russo is the makeup of the Court — Kennedy cast the pivotal fifth vote to knock down Texas’ law, and he has since been replaced with Kavanaugh. The laws argued in these cases are often called TRAP laws, which are laws that impose costly and medically unnecessary requirements on abortion providers and women’s health centers under the guise of protecting women’s health, but the real aim is to make abortion less accessible. The case is teed up to help the Court overturn Roe v. Wade without even having to say what it is doing.
If the right to an abortion is settled law, it may be confusing as to how these cases even have standing to appear before the Court. In reality, though a large majority of Americans believe that abortions should be legal under certain circumstances or any circumstance, the legal foundations supporting Roe v. Wade are extremely shaky.
Roe v. Wade argued that the fundamental “right to privacy” that protects a woman’s choice to have an abortion is inherent in the Due Process Clause of the Fourteenth Amendment. In the opinion itself, the Court concedes that using the word “private” is not the “ordinary usage of that word,” and is distinct from the explicit privacy protected through the freedom from searches and seizures in the Fourth Amendment. The Court instead looked at the history of judicial decisions recognizing personal privacy rights that stemmed from other constitutional protections.
One of these cases they looked towards was Griswold v. Connecticut, where the Court held that a Connecticut statute that prohibited the use of contraceptives is in violation of a “right of privacy” that exists within the “penumbra of specific guarantees of the Bill of Rights.” Here, Justice William O. Douglas concedes that a personal right to privacy is not explicitly mentioned in the Constitution, but can be derived from the shadows of other rights. This line of legal reasoning is now associated with substantive due process, which is the principle that allows courts to protect fundamental rights even if they are not specifically mentioned in the Constitution.
This is the inherent weakness of Roe. The right to an abortion, and the right of personal privacy, are not rights explicitly mentioned in the Constitution. Consequently, they are much more susceptible to a shakeup in Court makeup and to be overturned by staunch originalists.
Substantive due process and the idea of penumbras remains controversial. The broadness of these doctrines can easily be utilized to protect liberties that justices find personally valuable. It has drawn criticism for allowing unelected judges infer new fundamental rights from the shadows of other rights and override the laws put forth by democratically elected officials.
Most infamously, the principles underpinning substantive due process were utilized in the 1905 decision Lochner v. New York. In Lochner, the Court struck down a state law that limited the number of hours bakers could work on the grounds that it deprived the workers of “liberty of contract.” Liberty of contract comes from the idea of economic due process derived from the Fourteenth Amendment and was utilized to strike down many state and federal labor regulations. Lochner is now vehemently disparaged as a case born out of judicial activism and partisan justices.
But this condemnation is the exact assessment that can be utilized to attack Roe v. Wade. Substantive due process draws criticism any time it is utilized for an upsetting end. To disagree with the judicial activism that struck down labor laws in Lochner is to disagree with the judicial activism that struck down the restrictive abortion laws in Roe. And the recent pushes by states and lower courts to overturn Roe v. Wade in light of a new conservative majority emphasizes the shaky foundation the case stands on.
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