Dr. Gambitta’s informal notes on substantive due process. Not for attribution or
duplication. These are no substitute for class lectures.
American Constitutional Law: The Conflicts
Intergovernmental Power, and Private-Public Power
of
Rights
and
Powers,
American constitutional law contains a long and rich history of substantive due process;
much on the right to deploy reproductive technology; the right to reproductive choice or
the power of government to limit that choice; the rights and limits to personal autonomy
and integrity; and the spectrum of governmental choices concerning policy that regulates
the economic sphere. Let us review the related judicial actions in these areas to reach
conclusions on this new enterprise of reproductive technology, regenerative medicine,
and
We begin our analysis of government power related to individual rights by exploring the
historical emergence of various rights, nebulous as they may be, referred to as the right to
make individual choice in economic and personal spheres without impediments or
prohibitions by the government. Clearly these rights and powers go back to core issues
between Locke and Hobbes as to the foundation and nature of both government powers
and individual rights. In this section, however, we focus on the jurisprudential dialogue
in American constitutional law associated with individual rights and governmental
powers. The rights and powers are those associated with privacy, personal autonomy, or
choice concerning personal or bodily integrity, control over sexual and procreation
activity, and control of our own and our progeny ‘s lives.
Although we could begin discussions even earlier,1 Justice Harlan’s opinion in Jacobson
v Massachusetts2 seems to crystallize the issues and delineate one direction of American
jurisprudential democratic thought. In deciding whether states could compel the
vaccination of persons who refused it because of religious beliefs, Harlan recognized the
existence of fundamental liberty rights,3 but ruled that even these fundamental rights
must give way occasionally to restrictions imposed by the legislature expressing majority
will about the necessity of protecting the collective welfare.
The liberty secured by the Constitution of the United States to every person within its
jurisdiction does not import an absolute right in each person to be, at all times, and in all
circumstances, wholly freed from restraints. There are manifold restraints to which every
person is necessarily subject for the common good. Real liberty for all could not exist
under the operation of a principle which recognizes the right of each individual person to
use his own, whether in respect of his person or his property, regardless of the injury that
may be done to others… Even liberty itself, the greatest of all rights, is not unrestricted
license to act according to one’s own will. 4
1
Calder v Bull, 3 U.S. (3 Dall.) 386 (1798) and case cited from Planned Parenthood [find later].
Jacobson v. Massachusetts, 197 U.S. 11 (1905)
3
In this case, the right to free exercise of religion that is explicitly stated in the 1 st Amendment to the U.S.
Constitution.
4
See Jacobson, 197 U.S. at 26-27.
2
Legislatures could override fundamental liberty for collective good, even when that liberty is
explicitly stated in the Constitution.
In Lochner v New York,5 however, the Supreme Court found that the 14th Amendment to
the U.S. Constitution placed limitations on the power of a state to restrict certain
individual choices through the legislative exercise of its police powers. The Court found
that the liberties protected by the amendment’s due process clause included an
individual’s right to contract labor, that is, to exercise individual choice governing the
selling or purchasing of labor appropriate or necessary to sustain oneself or one’s family.
In American jurisprudence, however, no right is absolute. The legislature may restrict
this liberty if it possesses and demonstrates interests, for example public health or safety
interests, of a sufficient magnitude to justify encroaching on individual liberty. “Is this
[legislative action] a fair, reasonable, and appropriate exercise of the police power of the
state, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the
individual to his personal liberty or to enter into those contracts in relation to labor…”6
In Lochner, the federal Supreme Court found that the state’s legislative action was not a
legitimate exercise of its regulatory police power because the state’s health or safety
interests in protecting society were insufficient according to the Court to impede this
discovered individual freedom to contract or choice in the economic sphere.7
Justices Holmes and Harlan wrote vigorous dissents,8 stating that the state statute was
rationally related to legitimate interests of the state. Deciding the wisdom of legislatively
adopted policy is not the function of the court, but resides with the democratically elected
legislature, unless the action has no conceivable rational basis. 9 Holmes passage below
became the mantra for future scholars and lawyers rejecting Lochner’s substantive due
process and espousing Holmes’ (and Harlan’s) doctrine of judicial deference to majority
rule.
I think that the word liberty in the Fourteenth Amendment is perverted when it is held to
prevent the natural outcome of a dominant opinion, unless it can be said that a rational and
fair man necessarily would admit that the statute proposed would infringe fundamental
principles as they have been understood by the traditions of our people and our law. 10
Several issues begin here. First, what are our personal liberties and rights, especially if
not listed explicitly in the text of the constitution. Substantive due process identifies the
argument that the due process clauses of the 5th and 14th Amendments contain substantive
16
Lochner v. New York, 198 U.S. 45 (1905).
See id. at 56.
7
Here it is important to note we are talking about state governments, whose police powers are reserved to
them through the Tenth Amendment of the U.S. Constitution. The federal government must have a more
explicit empowerment through the U.S. Constitution, or an indirect power through the necessary and proper
clause of Article 1, section 8, paragraph 18, in order to act.
8
Justices Oliver Wendell Holmes, Jr. and John Marshall Harlan, Sr. are well known for the courage,
compassion, and clarity of their dissents. They are perhaps the two most famous dissenters of this or any
other period of the Court, e.g. , see Abrams v. United States, 250 U.S. 616 (1919) and Plessy v Ferguson,
163 U.S. 537 (1896) respectively.
9
The rational basis test requires that the state possess a legitimate governmental interest and that the state
action in question rationally relate to the pursuance of that legitimate interest of the state.
10
See Lochner, 198 U.S. at 76 (Holmes, J., dissenting).
17
rights, not simply procedural guarantees, that federal and state governments, respectively,
may not take away from us. The 9th Amendment states that is the case, as well. How
shall we decide what those rights are and what limits government may impose upon
them? This is especially the case with the new bioengineering.
In Muller v Oregon,11 decided three years after Lochner, the Court sustained state
legislative restrictions imposed on the freedom of choice or contract concerning women’s
labor, basing its decision on data contained in the famous Brandeis brief that
demonstrated to the Court’s satisfaction that the state’s interests in protecting the health
and welfare of women in the workplace were of sufficient legitimacy and magnitude,
based on the famous Brandeis brief, to justify impairing the right to contract or choice
concerning women’s labor.12 Less than a decade after Muller, the Court overturned
Lochner in Bunting v Oregon,13 sustaining state regulation of the men’s hours of labor.
Again, the Court accepted factual data that documented the state’s legislative interests,
convincing the court that the state’s interests were of sufficient magnitude to justify its
use of regulatory power impairing freedom to choose or contract.14
In Nebbia v. New York,15 the Court deferred to the state’s legislative judgments
concerning economic policy, stating such policy determination was not within the scope
of the Court’s functions. Justice Roberts stated:
So far as the requirement of due process is concerned, and in the absence of other
constitutional restriction, a state is free to adopt whatever economic policy may reasonably
be deemed to promote public welfare, and to enforce that policy by legislation adapted to its
purpose. The courts are without authority either to declare such policy, or, when it is
declared by the legislature, to override it. If the laws passed are seen to have a reasonable
relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the
requirements of due process are satisfied. {If} the legislative policy be to curb unrestrained
and harmful competition by measures which are not arbitrary or discriminatory it does not lie
with the courts to determine that the rule is unwise. With the wisdom of the policy adopted,
with the adequacy or practicability of the law enacted to forward it, the courts are both
incompetent and unauthorized to deal.16
11
Muller v. Oregon, 208 U.S. 412 (1908).
The Court sustained state regulation of women’s wages, overturning earlier decisions, 5-4. West Coast
Hotel Co. v. Parrish, 300 U.S. 379, 399 (1937). In Parrish, C.J. Hughes, writing for the court, noted the
need to protect “workers who are in an unequal position with respect to bargaining power and thus
relatively defenseless against the denial of a living wage. . .” The circumstances surrounding the choices
are germane. Moreover, the Court showed strong deference to the legislature’s decision, stating the Court
would sustain it unless it was arbitrary or capricious. “Even if the wisdom of the policy be regarded as
debatable and its effects uncertain, still the Legislature is entitled to its judgment.” Within 4 years, the
Court sustained federal legislation regulating men’s wages over due process objections. Later, we address
differences between federal and state powers.
13
Bunting v. Oregon, 243 U.S. 426 (1917).
14
See three important historical articles on these points, Bickel, A., Judicial Determination of Questions of
Fact Affecting the Constitutional Validity of Legislative Action, 38 HARV. L. REV. 6 (1924); Pound, R.,
Liberty of Contract, 18 YALE L.J. 454 (19-9); Brown, Due Process of Law, Police Power, and the
Supreme Court, 40 HARV. L. REV. 943 (1927).
15
Nebbia v. New York, 291 U.S. 502 (1934).
16
See id. at 537.
12
Holmes’ viewpoint had won in the economic sphere. Contemporaneously, the debate
over personal rights and liberties occurred.
In the non-economic sphere, the Court had acknowledged that the 14th Amendment’s due
process clause protected individuals against governmental intrusions into their personal
privacy, marriage, reproduction, child rearing, and other Court articulated rights. In
Meyer v Nebraska,17 Justice McReynolds, one of the economic laissez faire justices,
found personal as well as economic rights protected. With Holmes in dissent,
McReynolds wrote:
Without doubt, it [14th Amendment’s due process clause] denotes not merely freedom
from bodily restraint but also the right of the individual to contract, to engage in any of the
common occupations of life, to acquire useful knowledge, to marry, establish a home and
bring up children, to worship God according to the dictates of his own conscience, and
generally to enjoy those privileges long recognized at common law as essential to the
orderly pursuit of happiness by free men. 18
The Meyer decision reversed the conviction of a teacher for teaching German in violation
of the state’s law because that law impaired:
…the calling of modern language teachers, …the opportunities of pupils to acquire
knowledge, and… the power of parents to control the education of their own. The state
provided “no adequate justification” for impairing these rights.19
In Meyer, there seemed to be zones of autonomous choice, which the government could
not invade, foreclose, or control. Justice McReynolds’ opinion for a unanimous court in
Pierce v Society of Sisters,20 reinforced the Meyer perspective. In Pierce, the Court
struck down an Oregon law requiring students to attend public schools because that state
law impaired the parents’ liberty to direct the education and upbringing of their children.
McReynolds found no state interest justified the impairment of that substantive
fundamental right, protected by the due process clause. McReynolds’ pen struck broadly:
“The child is not the mere creature of the State; those who nurture him and direct his
destiny have the right, coupled with the high duty, to recognize and prepare him for
additional obligations.”21 This McReynolds orientation of finding rights, particularly the
right to choice, in the due process clause of the 14th Amendment, and then protecting
those rights against state encroachment, would not prevail long.22
In Buck v. Bell,23 the Court made a sharp departure from the McReynolds’ perspective on
personal rights and liberties. In Buck, the Court sustained the state’s power to sterilize a
woman, institutionalized in a state mental asylum, whose mother, self and daughter had
been diagnosed as feeble minded. The Court found the state’s public health, welfare,
17
Meyer v. Nebraska, 262 U.S. 390 (1923).
See Meyer, 262 U.S. at 399.
19
See id. at 401.
20
Pierce v. Society of Sisters, 268 U.S. 510 (1925).
21
See id. at 534-535.
22
For discussion along these lines see, Gunther, G. and K. Sullivan, Constitutional Law (13th edition)
Westbury, NY: The Foundation Press, Inc.,1997, p 516-18.
23
Buck v. Bell, 274 U.S. 200 (1927).
18
and fiscal interests sufficient to justify sterilizing the woman, removing her choice to
procreate. Justice Holmes stated much in the following single controversial paragraph:
The attack is not upon the procedure but upon the substantive law. It seems to be
contended that in no circumstances could such an order be justified. It certainly is
contended that the order cannot be justified upon the existing grounds. The judgment finds
the facts that have been recited and that Carrie Buck 'is the probable potential parent of
socially inadequate offspring, likewise afflicted, that she may be sexually sterilized
without detriment to her general health and that her welfare and that of society will be
promoted by her sterilization,' and thereupon makes the order. In view of the general
declarations of the legislature and the specific findings of the Court obviously we cannot
say as matter of law that the grounds do not exist, and if they exist they justify the result.
We have seen more than once that the public welfare may call upon the best citizens for
their lives. It would be strange if it could not call upon those who already sap the strength
of the State for these lesser sacrifices, often not felt to be such by those concerned, in order
to prevent our being swamped with incompetence. It is better for all the world, if instead
of waiting to execute degenerate offspring for crime, or to let them starve for their
imbecility, society can prevent those who are manifestly unfit from continuing their kind.
The principle that sustains compulsory vaccination is broad enough to cover cutting the
Fallopian tubes. Three generations of imbeciles are enough.24
Holmes was jurisprudentially true to his Lochner dissent.
No substantive14th
Amendment due process right existed, no natural right existed, which compelled the
Court to trump the state’s power to sterilize a person when the state’s interests are
legitimate. Then, concluding that same paragraph, Holmes addresses the appellant’s 14 th
Amendment equal protection argument, sealing Buck’s reproductive fate, terminating her
alleged right to procreate, and permitting the law to treat persons with similar genetic
defects differently.
But, it is said, however it might be if this reasoning were applied generally, it fails when it
is confined to the small number who are in the institutions named and is not applied to the
multitudes outside. It is the usual last resort of constitutional arguments to point out
shortcomings of this sort. But the answer is that the law does all that is needed when it
does all that it can, indicates a policy, applies it to all within the lines, and seeks to bring
within the lines all similarly situated so far and so fast as its means allow. Of course so far
as the operations enable those who otherwise must be kept confined to be returned to the
world, and thus open the asylum to others, the equality aimed at will be more nearly
reached.25
The Buck opinion made many jurisprudential points. First, the state may treat people
differently based upon their different genetic make-ups, as determined by scientific
evidence. The problem here, however, is that the science of the day was deficient. Later
evidence indicated that Buck’s infant certainly was not feeble-minded, nor perhaps were
Buck or her mother.26 As Buck’s attorney’s argued before the Court, the state could not
deprive persons of their “full bodily integrity. If allowed to do so, he warned, new
classes, even ‘races’ might be brought within the scope of the law and the ‘worst forms of
24
See Buck, 274 U.S. at 207.
See id. at 208.
26
Lombardo, P., “Three Generations, No Imbeciles: New Light on Buck v Bell,” New York Law Review 60
(April 1985): 30-62.
25
tyranny practiced’ in a reign of doctors… inaugurated in the name of science.” 27 Science
may not have accurate answers, as was the case in Buck. Basing law, rights, and judicial
opinions on the scientific evidence of the day is risky business. But the law, the
constitution, “is an experiment, as all life is an experiment,” Holmes waxed
philosophical, dissenting in Abrams v U.S. “Every year if not every day we have to
wager our salvation upon some prophecy based upon imperfect knowledge.”28 Holmes
accepted that the practice of democracy included mistakes, sometimes at the hands of
scientific beliefs, but that the best test of policy was majority will after full, informed,
and open discussion of the issues and data. If Buck had bad data, the bad data led to a bad
decision, but it did not prove the principle bad.
Buck also holds that the law can treat persons with the same “genetic defects” differently,
depending upon their circumstances.
In Buck, the law touched only those
institutionalized genetic trait carriers. The equal protection clause coupled with an alleged
fundamental right was not sufficient to halt the state legislature’s choice, democracy’s
choice. Individual choice lost out to state choice and control.
The first major ruling finding due process protection for reproductive liberty came in
Skinner v Oklahoma.29 Justice Douglas, writing for a divided Court, struck down an
Oklahoma statute that called for the sterilization of individuals convicted three or more
times of various felonies involving moral turpitude, but exempting certain crimes such as
embezzlement. Jack Skinner contended this was a deprivation of his 14th Amendment
rights to due process and equal protection. In Skinner, Justice Douglas set the stage for
his later landmark holding of a fundamental, individual right to privacy, of a right to
choice governing reproduction, in Griswold v Connecticut.30 Douglas wrote that that the
state’s exercise of its police powers was not legitimate here because it impaired a “basic
right” in an unequal and arbitrary manner.
We are dealing here with legislation which involves one of the basic civil rights of man.
Marriage and procreation are fundamental to the very existence and survival of the race.
The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects.
In evil or reckless hands it can cause races or types which are inimical to the dominant
group to wither and disappear. There is no redemption for the individual whom the law
touches. Any experiment which the State conducts is to his irreparable injury. He is
forever deprived of a basic liberty.31
Douglas then links this found liberty arising from due process to the equal protection of
the laws:
We mention these matters not to reexamine the scope of the police power of the States.
We advert to them merely in emphasis of our view that strict scrutiny of the classification
which a State makes in a sterilization law is essential, lest unwittingly, or otherwise,
invidious discriminations are made against groups or types of individuals in violation of
Ragan, F., “Buck v Bell,” in Hall, K., ed., The Oxford Companion to the Supreme Court of the United
States, NY: Oxford University Press, 1992, p 97-98.
28
Abrams v. United States, 259 U.S. 616, 630 (1919).
29
Skinner v. Oklahoma 316 U.S. 535 (1942).
30
Griswold v. Connecticut, 381 U.S. 479 (1965).
31
See Skinner, 316 U.S. at 541.
27
the constitutional guaranty of just and equal laws. . . When the law lays an unequal hand
on those who have committed intrinsically the same quality of offense and sterilizes one
and not the other, it has made as invidious a discrimination, as if it had selected a
particular race or nationality for oppressive treatment. 32
Douglas constructs a nexus of due process and equal protection rights. In Skinner, the
Court holds that one’s reproductive and marital rights cannot be abridged unless the
state’s interests are compelling and its law equally applied.
In 1965, Justice Douglas found the fundamental right to privacy, and the right of married
couples in conjunction with their physicians, to make fundamental choices concerning
reproduction and use of reproductive technology. Advancements in reproductive
technology opened new options. The State of Connecticut wished those options closed,
hence it statutorily prohibited both the use and the counseling of the use of
contraceptives. Douglas found the penumbral right of privacy, a zone of privacy created
by emanations from the guarantees of the 1st, 3rd, 4th, 5th, 9th, and 14th Amendments.33
Douglas states that he is not invoking the substantive dues process principles of Lochner,
for the Justices “do not sit as a super-legislature to determine the wisdom, need, and
propriety of laws that touch economic problems, business affairs, or social conditions.”
But this case involves an intimate relation between a husband and wife, and their
physician, and a fundamental right to choose whether to conceive a child or use
reproductive technology to prevent conception. The state showed no interest of sufficient
magnitude to override a married couple’s right to exercise choice over such intimate
matters.34
Justices Harlan and Goldberg wrote significant concurring opinions, and Justice Black
issued a ringing dissent. Harlan referred to his earlier opinion in Poe v Ullman35 where
the court majority refused to strike down the law that it did in Griswold. Harlan wrote
that the Due Process Clause of the 14th Amendment justified the Court’s attempts to
determine “the balance which our Nation, built upon postulates of respect for the liberty
of the individual, has struck between that liberty and the demands of organized society.”
He concluded that the Connecticut law invaded “a most fundamental aspect [liberty,] the
privacy of the home in its most basic sense.”36 Justice Goldberg highlighted the
importance of the 9th Amendment, which presumes the existence of fundamental rights
that are not specified explicitly in the Constitution, but are retained by the people.
Privacy is such a fundamental right. Custom and tradition illuminate its existence.37
32
See id. at 541.
The 1st Amendment contains right of association, and to keep one’s associations private. The 3 rd
prohibits the quartering of soldiers in one’s house, hence a right to privacy in one’s home. The 4 th
Amendments prohibition of unreasonable searches and seizures and the 5th Amendment’s shield against
self-incrimination enable individuals to enjoy zones of privacy against certain governmental intrusions or
compulsions. The 9th Amendment states: “The enumeration in the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the people.” And the 14 th Amendment’s due process
clause incorporates certain of these rights and makes them applicable to the states.
34
See Griswold, 316 U.S. at 482.
35
Poe v. Ullman 367 U.S. 497 (1961).
36
Griswold, 316 U.S. at 542, 548.
37
Levinson, S., “Privacy,” in Hall, K. , et al. (ed.) The Oxford Companion to the Supreme Court of the
United States, New York: Oxford University Press, 1992., p 671-678.
33
Justice Black, the Constitutional textualist, stated that although he liked his “privacy as
well as the next one,” he had “to admit that government has a right to invade it unless
prohibited by some specific constitutional provision.” Black saw matters similar to
Holmes on this issue, unlike other areas like free speech, because here there was no
general prohibition against governmental encroachment of personal privacy or private
behavior. Nor did the Constitution set any specific guarantee of a right to use
contraceptives, nor it set any limit on the state’s police powers to ban their use. 38 Justice
Stewart, the second dissenter, adopted the Holmes’ approach, noting that the Justices “are
not asked in this case to say whether we think this law is unwise, or even asinine. We are
asked to hold that it violates the United States Constitution. And that I cannot do…”39
From Griswold, the right to privacy rose. From the emanations grew other emanations.
In Eisenstadt v. Baird,40 Justice Brennan expanded the right’s panoply through the equal
protection clause and individualized the right that Griswold implied accrued to the
marital relationship. Brennan’s opinion established important conceptual steps to Roe v.
Wade,41 and to our subject of genetic engineering. Brennan wrote:
If under Griswold the distribution of contraceptives to married persons cannot be
prohibited, a ban on distribution to unmarried persons would be equally impermissible. It
is true that in Griswold the right of privacy in question inhered in the marital relationship.
Yet the marital couple is not an independent entity with a mind and heart of its own, but an
association of two individuals each with a separate intellectual and emotional make-up. If
the right of privacy means anything, it is the right of the individual, married or single, to
be free from unwarranted governmental intrusion into matters so fundamentally affecting a
person as the decision whether to bear or beget a child.42
Justice Brennan vested the right of privacy in the individual and that right prohibited
unwarranted governmental intrusion into that individual’s choices as whether to bear or
beget a child. As one scholar put it provocatively: “[Eisenstadt] is thus a pure essay in
substantive due process. It unmasks Griswold as based on the idea of sexual liberty
rather than privacy.”43 Could one better label it as an individual right to reproductive
liberty? The opinion seems to address specifically the liberty to choose whether to
conceive and to procreate. It seems to establish the individual’s freedom of choice
regarding reproduction, unless the state’s interests are sufficiently compelling to override
a fundamental right. The opinion seems to vest the right to choose whether to beget, or
even to bear a child in the individual, not the couple, nor the state, barring compelling
interest?
Chief Justice Burger sharply dissented, adopting the traditional Holmes approach,
identifying the Court’s opinion as substantive due process, and writing: “the Court has
38
See Griswold, 316 U.S. at 510.
See id. at 527.
40
Eisenstadt v. Baird, 405 U.S. 438 (1972).
41
Roe v. Wade, 410 U.S. 113 (1973).
42
See Eisenstadt, 405 U.S. at 453.
43
Perry, Abortion, the Public Morals, and the Police Power, 23 UCLA Rev. 689,706 (1976)
39
passed beyond the penumbras of the specific guarantees into the uncircumscribed area of
personal predilections.”44
The new privacy, initiated in Skinner, cast in Griswold, and extended in Eisenstadt,
expanded further in the abortion case of Roe v. Wade. The alleged right of a woman to
terminate a pregnancy, to have control over her reproductive destiny, to possess
autonomous choice over whether to bear a child clashed with the state’s power to
legislatively prohibit abortion and control reproductive choice. The state’s interests
included the preservation of unborn life, allegedly protected by the due process clauses,
and the protection of women’s health. Writing for the Court, Justice Blackmun held that
a woman’s rights prevailed during roughly the first two trimesters of pregnancy. During
the first trimester, the reproductive decision belongs to the woman (and her physician)
because the state’s interests are not sufficiently compelling to outweigh the woman’s
right to exercise reproductive choice. Since the fetus is not viable apart from the woman,
and abortions are statistically less dangerous to the health of the woman than is carrying
to full term, given advancements in technology, the state’s interests are not of sufficient
magnitude to restrict the woman’s fundamental right to choice. During roughly the
second trimester, the state’s interests in the health of the woman elevate, given greater
health risks associated with second trimester abortions, but those interests remain
insufficiently compelling to prohibit or impede the woman’s exercise of fundamental
choice. The fetus is not viable, hence the state’s interests in life do not outweigh the
woman’s fundamental right to choose. In the third trimester, the state’s interest in
preserving life increases due to fetus viability separate from the mother. Health risks of
third term abortions are significant also. The state’s interests become sufficiently
compelling to override a woman’s right to choose whether to reproduce. The state has
the legislative power to ban third term abortions, if that is majority will, except when
necessary to preserve the life of the woman. Blackmun’s balancing gives us a model
incorporating “timeclock” constitutional balancing, contending that the weight of the
state’s interests vary over time relative to the (stable) right of the woman. The woman
has a fundamental right to reproductive choice, but that choice is not absolute.
“The right of privacy, whether it be founded in the Fourteenth Amendment’s concept of
personal liberty [as] we feel it is, or, as the District court determined, in the [Ninth
Amendment], is broad enough to encompass a woman’s decision whether or not to
terminate her pregnancy.” He did doubt, however, that “one has an unlimited right to do
with one’s body as one pleases…,”45 but Roe did strengthen personal autonomy to
control one’s bodily integrity and direction.
The dissents rang loud. Justice White stating bluntly, “I find nothing in the language or
history of the Constitution to support the Court’s judgment. The Court simply fashions
and announces a new constitutional right for pregnant mothers and, with scarcely any
reason or authority for its action, invests that right with sufficient substance to override
most existing state abortion statutes.” He called the Court’s action “an extravagant
44
45
See Eisenstadt, 405 U.S. at 472 (Burger, C.J., dissenting).
See Roe v. Wade, 410 U.S. at 153-154.
exercise of the power of [judicial review].”46 Chief Justice Rehnquist states in dissent: “I
have difficulty in concluding [that] the right of “privacy” is involved in this case. If the
Court means by the term “privacy” no more than that the claim of a person to be free
from unwanted state regulation of consensual transactions may be a form of “liberty”
protected by the Fourteenth Amendment, there is no doubt that similar claims have bee
upheld in our earlier decisions on the basis of that liberty. 47 Comparing Blackmun’s
opinion to Peckham’s substantive due process opinion in Lockner, Rehnquist protested:
“…the adoption of the compelling state interest standard will inevitably require this Court
to examine the legislative policies and pass on the wisdom of these policies in the very
process of deciding whether a particular state interest put forward may or may not be
‘compelling’… The decision…partakes more of judicial legislation than it does of a
determination of the intent of the drafters of the Fourteenth Amendment.”48 Scholars
from the neutral principles wing argued Roe was Lochner writ large, or even larger. John
Hart Ely argued that both Lochner and Roe sought to “grant unusual protection to those
‘rights’ that somehow seem most pressing, regardless of whether the Constitution
suggests any special solicitude for them… The problem with Roe is not so much that it
bungles the question it sets itself, but rather that it sets itself a question the Constitution
has not made the Court’s business.”49
Scholarly opinion has been as strong on the other end of the jurisprudential spectrum.
Lawrence Tribe contended that: “some types of choices ought to be remanded, on
principle, to private decision-makers unchecked by substantive governmental control.”
We shall return to this point in this article. Tribe argues that the Court was “choosing
among alternative allocations of decisionmaking authority.”50 Herein, lies the crux of
one issue. Who shall decide? Who shall have the power to choose? In subsequent
works, Tribe revises his contention, seeing judicial intervention appropriate when social
morality and moral consensus are shifting. The judiciary’s action can facilitate the
emergence of new moral consensus or intervene until one does emerge. 51 The question
is, of course, are these proper functions for the Court to perform? Is the Court the proper
forum to decide who shall have the power to decide? Or to determine the policy for
governing? Or even to assess the weight of the interests of the public juxtaposed with
those of specified private persons. In the areas of reproductive technology, these
questions become central. Specifically, are there rights to reproductive choice? Should
those rights outweigh democratic will? Should there be individual or legislative choice
in a democracy? If rights are not based in constitution, then upon what foundation do
they stand?52
46
Doe v. Bolton, 410 U.S. 179, 221-222 (White, J., dissenting).
See Roe, 410 U.S. at 171-172 (Rehnquist, J., dissenting).
48
See Roe, 410 U.S. at 174.
49
Ely, J.H., “The Wages of crying Wolf: A comment on Roe v Wade,” 82 Yale L. J. (1973). Also see Ely,
“Foreword: On Discovering Fundamental Values,” 92 Harv. L. Rev. 5 (1978).
50
Tribe, L., “Foreword: Toward a Model of Roles in the Due Process of Life and Law,” 87 Harv. L. Rev. 1
(1973).
51
Tribe, L., “Structural Due Process,” 10 Harv. Civ.Rts.-Civ. Lib. Law Review 269 (1975). Cf. Gunther
and Sullivan p. 538-9, supra.
52
For non-constitutionally founded rights theory, called non-interpretative rights theory, see
47
As Sylvia A. Law has stated, “laws governing reproduction implicate equality concerns.”
“…restrictions on access to abortion plainly oppress women.”53
In the first abortion decision post Roe, the Court overturned Missouri law requiring
spousal consent, and parental consent for unmarried females under eighteen.54 Here,
there was no judicial bypass available, a critical component of Court consideration This
law gave an absolute veto over the female’s choice to a third party, regardless of the
maturity of the female or circumstances surrounding the pregnancy and the female.55 As
Bellotti I noted, a parental consent law was unconstitutional if “it unduly burdens the
right to seek an abortion.” With judicial bypass, as we will see explicitly through
Webster,56 parental consent requirements meet constitutional demands.
The equal protection argument linkage to reproductive choice appeared here again. A
man cannot use the equal protection clause to secure his choice whether to beget a child
containing 23 of 46 genes that were his. The Court found that females and males were
not similarly situated. Men neither possessed nor could the state bestow upon them, the
choice whether to terminate a pregnancy.
The Equal Protection Clause emerged in a different form in Maher v Roe57 and Harris v
McRae58, this time concerning poor women’s access to effective choice, to government
funding to facilitate that choice, or to exercise choice unburdened by the inability to pay.
The Court claimed the government could maintain a preference for continuation over
termination of the pregnancy and sustain that preference through funding pre-natal,
birthing, and pediatric expenses, and not abortion. Moreover, the Court saw
government’s role as neutral to the woman’s choice. She is free to make her choice.
There is no right to compel the government to pay for her choice. Important to our later
discussions, and as a declaration of the majority’s theory of state, Justice Stewart wrote:
Although the liberty protected by the Due Process Clause affords protection against
unwarranted governmental interference with freedom of choice in the context of certain
personal decisions, it does not confer an entitlement to such funds as may be necessary to
realize all the advantages of that freedom. To hold otherwise would mark a drastic change
in our understanding of the Constitution. It cannot be that because government may not
prohibit the use of contraceptives or prevent parents from sending their children to a
private school, government, therefore, has an affirmative constitutional obligation to
ensure that all persons have the financial resources to obtain contraceptives or send their
children to private schools. To translate the limitation on governmental power implicit in
[due process] into an affirmative funding obligation would require Congress to subsidize
the medically necessary abortion of an indigent woman even if Congress had not enacted a
Medicaid program to subsidize other medically necessary series. Nothing in the Due
Sylvia A. Law, “Rethinking Sex and the Constitution,” 132 U. Pa. L. R. 955, 963, 1020 (1984).
Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976).
55
Bellotti v. Baird, 428 U.S. 132 (1976), companion case to Planned Parenthood of Central Missouri v.
Danforth. See also, Bellotti v. Baird, 443 U.S. 622 (1979), called Bellotti II, where Justice Powell stated
that there must be an “alternative procedure” so that parental usurpation of choice would not constitute an
“absolute, and possibly arbitrary, veto.”
56
Webster v Reproductive Health Services, 492 U.S. 490 (1989).
57
Maher v. Roe, 432 U.S. 464 (1977).
58
Harris v. McRae, 448 U.S. 297 (1980).
53
54
Process Clause support such an extraordinary result. Whether freedom of choice that is
constitutionally protected warrants federal subsidization is a question for Congress to
answer, not a matter of constitutional entitlement. 59
Applying the lower standard, deferential rational basis test for the majority, Justice
Stewart found no violation of the Equal Protection Clause; the government had legitimate
interests and their actions were rationally related to the pursuance of those interests.
Justice Brennan, et al., dissented: “The fundamental flaw in the Court’s due process
analysis… is its failure to acknowledge that the discriminatory distribution of the benefits
of governmental largesse can discourage the exercise of fundamental liberties just as
effectively as can an outright denial of those rights through criminal and regulatory
sanctions.”60
Justice Rehnquist reinforced the majority position of McRae in Webster v Reproductive
Health Services, stating, “our cases have recognized that the Due Process Clauses
generally confer no affirmative right to governmental aid.”61 Moreover, though
Rehnquist could not garner a majority to overturn Roe in Webster, something Scalia
thought should be “explicitly” done, the opinion of the Court refused to disallow the
law’s preamble statement that “the life of each human being begins at conception,” since
it was a non-operative statement about values and preference.
Two years after Webster, Justice Rehnquist wrote the creed explicitly, again: “The
Government has no constitutional duty to subsidize an activity merely because the
activity is constitutionally protected and may validly choose to fund childbirth over
abortion and ‘implement that judgment by the allocation of public funds…’ The state
could choose to fund “medical services relating to childbirth but not to those relating to
abortion.” Government’s decision to fund childbirth but not abortion “places no
governmental obstacle in the path of a woman who chooses to terminate her
pregnancy.”62
Justice O’Connor’s language in Planned Parenthood v. Casey63 makes clear that the Due
Process Clause incorporates substantive protections.
[The Due Process] Clause has been understood to contain a substantive
component as well, one ‘barring certain government actions regardless of the
fairness of the procedures used to implement them.’ It is tempting, as a means of
curbing the discretion of federal judges, to suppose that liberty encompasses no
more than those rights already guaranteed to the individual against federal
interference by the express provisions of the first eight Amendments. [But] of
course this Court has never accepted that view…It is a promise of the Constitution
that there is a realm of personal liberty which the government may not enter…
The inescapable fact is that adjudication of substantive due process claims may
59
See id. at 317-318.
See id. at 334 (Brennan, J., dissenting).
61
Webster v Reproductive Health Services, 492 U.S. 490, 507 (1989).
62
Rust v Sullivan, 500 U.S. 173, 201 (1991).
63
Planned Parenthood v. Casey, 505 U.S. 833 (1992).
60
call upon the Court [to] exercise that same capacity which by tradition courts
always have exercised: reasoned judgment. Its boundaries are not susceptible of
expression as a simple rule… Our obligation is to define the liberty of all, not to
mandate our own moral code… Our law affords constitutional protection to
personal decisions relating to marriage, procreation, contraception, family
relationships, child rearing, and education. These matters, involving the most
intimate and personal choices a person may make in a lifetime, choices central to
personal dignity and autonomy, are central to the liberty protected by the
Fourteenth Amendment. At the heart of liberty is the right to define one’s own
concept of existence, of meaning, of the universe, and of the mystery of human
life. Beliefs about these matters could not define the attributes of personhood
were they formed under compulsion of the State.64
In Casey, O’Connor crystallized the “undue burden” standard, preserving the essential
holding of Roe, that a woman is entitled to choice. Casey, however, eliminates Roe’s
trimester approach and establishes a new standard allowing the state to impose obstacles
in the path of the woman choosing abortion, but prohibiting the state from imposing any
undue burden on a woman’s right to terminate a pregnancy prior to fetus viability. An
undue burden is any government regulation that, by purpose or effect, places a substantial
obstacle in the path of a woman’s choice prior to viability. O’Connor failed to secure 5
votes for critical components of the Court’s opinion, but these standards govern for want
of distinctive agreement among present justices. O’Connor began the substantive portion
of the opinion stating: “Liberty finds no refuge in a jurisprudence of doubt.” Yet, as
Rehnquist’s dissent points out about O’Connor’s joint opinion: “ Roe decided that a
woman had a fundamental right to an abortion. The joint opinion rejects that view. Roe
decided that abortion regulations were to be subjected to “strict scrutiny.” The joint
opinion rejects that view.”65
Scalia’s scathing dissent goes to the heart of our issue of substantive due process. He
criticizes not only O’Connor’s allegedly untenable position regarding substantive due
process, but also her inconsistency with past precedent. He mocks her lyrical prose that
attempts to cosmetize jurisprudential and political reality. Contending the “emptiness” of
her assertion that the Court exercises “reasoned judgment,” 66 when applying the concept
to rationale in Roe, Scalia states:
…the best the Court can do to explain how it is that the word “liberty” must be
thought to include the right to destroy human fetuses is to rattle off a collection of
adjectives that simply decorate a value judgment and conceal a political choice.
[It] is not reasoned judgment that supports the Court’s decision; only personal
predilection.67
Regarding O’Connor’s statement that “Liberty has no refuge in a jurisprudence of
doubt,” Scalia responds: “One might have feared to encounter this august and sonorous
phrase in an opinion defending the real Roe v. Wade, rather than the revised version
64
See id. at 846-851.
See Planned Parenthood v. Casey, 505 U.S. at 954.
66
See O’Connor text at note 18, above.
67
See Casey, 505 U.S. at 983-984.
65
fabricated by the authors.” Scalia finds her undue burden standard without definitional
substance or standard, therein “inherently manipulable,” leaving every federal judge total
discretion to sustain or reject any state or federal provision based upon her or his personal
or political preferences concerning abortion. Mockingly, Scalia asserts: “Reason finds no
refuge in this jurisprudence of confusion.” He adds shortly thereafter: “The Court’s
reliance upon stare decisis can best be described as contrived.”68
The rhetoric of Casey seemed inconsistent seemed with much of the substance not
only of Roe and other earlier abortion cases (see Akron I69 (1983) and Thornbird
70
(1986)), but also of the 1986 sex liberty case of Bowers v Hardwick.71 Justice
White writing for the Court in a 5-4 decision held that the liberty protected by the
Due Process Clause of the 14th Amendment does not include the right of adult
homosexuals to engage in consensual sodomy in the privacy of their own homes.
States may prohibit such practices. Recognizing that the Due Process Clause
protects substance as well as process, White argues that the substantive or privacy
rights recognized by the Court have dealt with child rearing and education,
procreation, marriage, contraception, and abortion. White recognizes that
Griswold, Eisenstadt and Roe “confer a fundamental individual right to decide
whether or not to beget or bear a child,” but sees no connection with these or the
other cases with homosexual sodomy outlawed by Georgia.72 Tradition and
customary morality supply sufficient state interest to justify the legal prohibition.
Finding no justification in the Constitution for establishment of this alleged right,
Stanley’s principles were inappropriate, and equal protection claims rejected
without declaration of a fundamental right or suspect class.
68
See id. at 984-993.
Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983).
70
Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986).
71
Bowers v Hardwick, 478 U.S. 186 (1986)
72
See id. at 190.
69