This week, we begin a series exploring Dobbs in depth. I have five issues that I want to explore that will probably be of interest to lawyers and laymen alike. I’ll explore the first today, which is this: What does Dobbs mean for the Supreme Court’s “substantive due process” doctrine?

The Due Process Clause of the Fourteenth Amendment, on which Roe was based, says, “No State shall … deprive any person of life, liberty, or property without due process of law.” This phrase ultimately goes back to the 1215 Magna Charta, and it means that the government cannot deprive any person of life, liberty, or property except by the law of the land. At the very least, this means that before the government deprives you of life, liberty, or property, it must give you, at a minimum, notice of the charges against you and an opportunity to defend yourself. It is an important bulwark of liberty, ensuring that the government follows the law if it takes action against a person. If the government has freedom to take life, liberty, or property away from a person however it wants, then it will surely do so in a tyrannical and arbitrary manner. 

That’s what the Due Process Clause means. It protects procedural rights, but it does not protect substantive rights. You don’t need to be a lawyer to understand that. You just need to be able to read and understand English.

So how in the world did the Supreme Court ever construe that phrase to protect a right to abortion?

Unfortunately, the Court had been butchering the Due Process Clause off and on for over 100 years before Roe happened. It began in the notorious Dred Scott decision, where the U.S. Supreme Court held that the Missouri Compromise deprived slave owners of property (i.e. their slaves) without “due process.” Chief Justice Roberts, Justice Thomas, and Justice Gorsuch have all acknowledged that this is where “substantive due process” began.

Dred Scott was overruled on the bloody battlefields of the Civil War. But in the early 20^th Century, the Court began butchering the Clause again to protect economic rights. While I must confess I like the result the Court reached as a matter of policy, it could not soundly reach that conclusion through the Due Process Clause. It finally abandoned that approach during the New Deal Era. 

But in the 1960’s, the Court began round 3 of its substantive-due-process joy ride. It began reading the Due Process Clause to protect certain forms of “autonomy,” which included abortions, sodomy, and same-sex marriage. The Due Process Clause simply does not protect any of these activities. 

Now as to Dobbs, I agree wholeheartedly with Justice Thomas’s concurrence about the evils of substantive due process. He argued that this doctrine is where Roe sprung from and should be rejected altogether. (Because the wording is so similar between our brief and his concurrence, I believe he drew on our brief in his concurrence.) Yet none of the other justices joined him. While we know some of the justices agree that at least about same-sex marriage, they said repeatedly that Roe is unique because the moral dilemma it creates is worse than same-sex marriage, sodomy, and the like. They’re right, but I commend Thomas for stating that the other decisions suffer from the same fundamental problem: substantive due process is an oxymoron. 

But because the Court said repeatedly that Roe was in a class of its own, does that mean that Dobbs can’t be used to impeach the other substantive due process cases? I think the technical answer is yes, but … it showed us how to attack them another way. To hold that Roe was wrongly decided, Dobbs based its analysis on Washington v. Glucksberg, a 1997 decision that said any substantive-due-process right has to be “deeply rooted” in this Nation’s history and traditions. Under Glucksberg, there is no such right to abortion. Neither is there a right to same-sex marriage (Obergefell v. Hodges), sodomy (Lawrence v. Texas), or even contraceptives (Griswold v. Connecticut).* (For the record I’m fine with contraceptives as long as they don’t cause abortions, but there is no constitutional right to them.) Thus, while we can’t use Dobbs to beat up on Obergefell, Lawrence, or Griswold, we can use Glucksberg. Under the Glucksberg analysis, the Court should have no trouble concluding that those decisions are incorrect.

It is important to note that those decisions are completely distinguishable from key Civil Rights decisions that were based on the Equal Protection Clause. Praise God, the Supreme Court stuck down segregation and bans on interracial marriage during the 50’s and 60’s. But in doing so, the Court faithfully applied the Equal Protection Clause according to its original meaning (even if the Court did not explicitly say so, its decisions lined up with the Framers’ views). The same cannot be said of the substantive-due-process decisions. 

Now does that mean that the decisions like Obergefell, Lawrence, and Griswold will be overruled too? Not necessarily. In the next post, we’ll address two other issues: stare decisis and the political will to challenge those decisions. 

*Technically, Griswold was decided under the “right to privacy,” which is related to but different from substantive due process. Nevertheless, I think Griswold would be subject to a similar analysis under Glucksberg if ever challenged.