The uncomfortable problem with Roe v. Wade

Amanda Northrop/Vox

The Constitution doesn’t tell us which rights it protects, and now the power to decide that question rests with people like Samuel Alito.

I believe that the Constitution protects a right to abortion.

I want to state that upfront because the rest of this essay will be highly critical of the Supreme Court’s opinion overturning Roe v. Wade, and of the open-ended approach to constitutional interpretation exemplified by that decision. As I will argue below, the right to an abortion should be found within the Constitution’s promise of gender equality — an approach which does far more to limit judicial power than the Roe opinion itself.

Roe, the landmark case that first established a constitutional right to abortion, rested on the idea that judges have a practically unlimited power to find rights within the Constitution that aren’t mentioned anywhere within it. The 1973 decision found the right to abortion within a broader “right of privacy,” which itself was found within “the 14th Amendment’s concept of personal liberty and restrictions upon state action.”

The legal name for this kind of constitutional analysis is “substantive due process.” It refers to the theory that certain unenumerated rights — rights that are never explicitly mentioned in the Constitution — are nonetheless implicit in a passage of the 14th Amendment providing that no one shall be denied “liberty” without “due process of law.”

Substantive due process is best known now as the bedrock of many of the most celebrated progressive Supreme Court victories in the last several decades. In addition to Roe, current doctrine holds that rights closely tied to the family — including the right to marry whoever you choose, the right to sexual autonomy, and the right to guide your own children’s upbringing — are among the unenumerated rights protected by the 14th Amendment.

Indeed, when the Supreme Court overruled Roe in Dobbs v. Jackson Women’s Health Organization in June, Justice Clarence Thomas argued in a concurring opinion that all of these rights must fall along with the right to an abortion.

But the Court only started to use substantive due process to advance equality and other progressive values fairly recently. There’s also a much darker history underlying doctrines like substantive due process.

Not long after the 14th Amendment was ratified, ex-Confederates, including a disgraced former Supreme Court justice, tried to twist it into a shield protecting white supremacy — and they very nearly succeeded. Several decades later, substantive due process became a tool of plutocrats, and the Court routinely wielded it to strike down pro-labor legislation.

Chip Somodevilla/Getty Images

Supreme Court Justice Samuel Alito testifying at a House committee hearing in 2019.

Now, the power to read new constitutional rights into our founding document is held by conservative Republicans like Justice Samuel Alito — the same justice who relied on a centuries-old treatise written by a judge who sentenced two “witches” to death in his opinion overruling Roe. It is a terrible mistake to trust this man with that kind of power.

Abandoning substantive due process, moreover, should not mean sacrificing hard-fought victories for reproductive choice or marriage equality. A sounder strategy is to root these rights in constitutional provisions that offer more specific protections. The Constitution’s guarantee that no one may be denied “the equal protection of the laws,” for example, is capacious enough to protect both.

It’s time, in other words, to put substantive due process to bed.

The right to an abortion can exist without an unenumerated “right to privacy”

The Constitution is clearly supposed to protect some rights that aren’t mentioned within it — this is apparent from the Ninth Amendment, which provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

But the Constitution’s text also provides few clues about what these unenumerated rights might be. And judges have struggled for more than a century to come up with a coherent theory of which such rights are protected by the Constitution. American judges haven’t even settled on a persuasive theory about which provision of the Constitution permits them to find unenumerated rights to be implicit in the document.

One way to square this circle is to allow judges — and ultimately the Supreme Court — to determine which unenumerated rights should enjoy constitutional protection. That’s a fine solution if you are comfortable giving this power to whoever sits on the Court, including the specific justices who currently do.

But if you are concerned that Alito and his fellow conservative justices do not have your best interests at heart, then it makes more sense to limit the Court’s power — and that means that our rights must be grounded in constitutional text that places some limits on judicial discretion.

The right to reproductive freedom — including the right to abortion — should be found within the Constitution’s guarantee that no one shall be denied “the equal protection of the laws.”

As the late Justice Ruth Bader Ginsburg wrote shortly before she joined the Supreme Court, the question of whether women will be able to “participate as men’s full partners in the nation’s social, political, and economic life” hinges upon their “reproductive autonomy.” Gender equality, at least at a systemic level, is not possible in a society where women’s bodies can be seized by the state for nine months at a time.

Roe, however, said surprisingly little about equality, instead claiming that the right to an abortion is implicit in a right to privacy, which is itself implicit in the due process clause of the Constitution.

Oscar White/Corbis/VCG via Getty Images

Supreme Court Justice Hugo Black.

The question of whether to root abortion rights in gender equality or in a broader right to privacy may seem academic, but the stakes are high. The judiciary’s power to guarantee equal protection is potent but limited. It merely allows judges to equalize rights, providing to a disadvantaged group what the government has already provided to a more advantaged group. In extreme cases, equal protection may also invalidate policies, like the “inherently unequal” segregated schools rejected by Brown v. Board of Education, that systemically relegate a disadvantaged group to an inferior position in society.

Substantive due process and similar doctrines, by contrast, permit the courts to find any right they choose within the Constitution, including “rights” that do serious harm to already disadvantaged groups. As Justice Hugo Black, a liberal Franklin Roosevelt appointee, wrote in 1970, the methods his Court uses to find unenumerated rights within the Constitution are “an arrogation of unlimited authority by the judiciary.”

And much of the history of substantive due process — and the Supreme Court’s use of it — backs Black up.

The battle lines on unenumerated rights were drawn very soon after the Civil War

The idea that important political rights flow from a provision of the Constitution that only guarantees “due process” is quite odd. And it’s especially odd because the 14th Amendment also states that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This language provides a much stronger hook to hang substantive rights upon than the due process clause.

The story of why this privileges or immunities clause plays almost no role in modern constitutional law, however, is instructive. It is a story about how easily bad actors can manipulate vague constitutional language that guarantees undefined rights.

And it starts with John Archibald Campbell, one of the great villains of the Reconstruction Era. A former Supreme Court justice and West Point classmate of Robert E. Lee and Jefferson Davis, Campbell quit the Court at the beginning of the Civil War and eventually become the Confederacy’s assistant secretary of war. After the war, he lived in New Orleans, where he complained in an 1871 letter to his daughter that Louisiana’s Reconstruction government put “Africans in place all about us.”

MPI/Getty Images

John Archibald Campbell, circa 1880.

Campbell read the 14th Amendment and saw an opportunity to neutralize laws enacted by Black legislators. In one case, he argued that a law requiring racially integrated theater seating was unconstitutional because the right to run a segregated business was one of the unnamed “privileges or immunities” protected by the new amendment.

The apotheosis of Campbell’s racist litigation strategy, however, was the Slaughter-House Cases (1873), which split the justices 5-4 between two wildly divergent theories of unenumerated rights, both of which would remain relevant for decades.

Around the time of the Civil War, New Orleans was the unhealthiest city in the nation. One in 12 residents died every year, often from outbreaks of cholera or yellow fever. One of the most significant contributors to this public health crisis was the city’s slaughterhouses, whose waste littered the streets and polluted with rotting offal the Mississippi River that supplied New Orleans’s drinking water.

To deal with this problem, the state’s Reconstruction legislature shut down all of New Orleans’s slaughterhouses and replaced them with a single grand slaughterhouse that would be open to all butchers — and that would sit downriver of the intake pipes that supplied the city with water.

Campbell objected to this law largely because the legislature that enacted it included 35 Black lawmakers. But he primarily adopted proto-libertarian rhetoric in order to challenge the law in court. Claiming he stood for “Freedom. Free action, free enterprise [and] free competition,” Campbell told the Supreme Court that the Reconstruction legislature’s slaughterhouse law must fall.

A majority of the Court saw through Campbell’s effort to achieve racist ends by laissez-faire means, and upheld the slaughterhouse law. The purpose of the 14th Amendment, Justice Samuel Miller wrote for the majority, is to ensure “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.” It wasn’t to impose small-government conservatism on the states at the very moment when Black Americans first began to exercise legislative power.

But while Miller’s decision was a victory for public health — and at least a temporary defeat for Campbell’s white supremacist project — it achieved this outcome by reading the privileges or immunities clause so narrowly as to render it virtually meaningless.

Library of Congress/Corbis/VCG via Getty Images

Justice Samuel Freeman Miller.

Though Miller did concede that the 14th Amendment protected some very limited rights, such as the right “to come to the seat of government to assert any claim he may have upon that government” or the right to “use the navigable waters of the United States,” the thrust of his opinion was that judges should be very reluctant to find rights within the 14th Amendment, lest the courts be transformed into “a perpetual censor upon all legislation of the States.”

In effect, Slaughter-House neutralized much of the 14th Amendment. Miller essentially decided it was better to eliminate the possibility that the privileges or immunities clause would be used for good, than to risk allowing someone like Campbell to use it for evil. As Justice Stephen Field complained in dissent, the Court’s decision transformed the privileges or immunities clause into “vain and idle enactment, which accomplished nothing.”

Field’s vision for the 14th Amendment, however, was as inconsistent with its antiracist purpose as Campbell’s. If Campbell embraced a kind of proto-libertarianism as a cynical ploy to undermine Black lawmakers, Field did so earnestly and enthusiastically. He believed that the Constitution provides expansive, unenumerated rights to capital. And his vision would eventually prevail during the first third of the 20th century.

Substantive due process as a tool of plutocrats

Field could be the patron saint of modern-day figures like Paul Ryan and Neil Gorsuch, who seek to shrink the government until it can be drowned in a bathtub. After Congress enacted a 2 percent income tax that applied only to the wealthiest one-thousandth of Americans, Field wrote an apocalyptic opinion claiming that “the present assault upon capital is but the beginning,” and that it would lead to a “war of the poor against the rich.”

His dissent in Slaughter-House, meanwhile, foreshadowed an age when the Supreme Court would routinely strike down pro-labor legislation on the dubious theory that workers have a right to enter into oppressive labor contracts. Quoting from the economic philosopher Adam Smith, Field wrote that preventing a poor man “from employing this strength and dexterity in what manner he thinks proper” is a “manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him.”

This theory of liberty, and particularly the idea that workers and employers both benefit from a system where workers may enter into oppressive labor contracts, won majority support on the Supreme Court shortly after Field’s death in 1899.

The case that most exemplified this era was Lochner v. New York (1905). Today, Lochner is widely viewed as one of the worst decisions in the Court’s history — even Alito denounced it as “discredited” in his Dobbs opinion overruling Roe. Lochner struck down a New York law providing that bakery workers, who were typically paid by the day or week and thus gained nothing from longer hours, would work a maximum 10-hour work day and a 60-hour work week.

Lochner claimed that the law “interferes with the right of contract between the employer and employees,” embracing the laissez-faire approach to labor policy that Field advocated in Slaughter-House.

The Court eventually abandoned Lochner, and its so-called “right to contract,” in 1937. But Lochner was still one of the most consequential decisions of its time. Among other things, the Court relied on Lochner’s so-called “right to contract” to strike down laws protecting the right to unionize and laws providing for a minimum wage.

By the early 20th century, two distinct concepts of unenumerated rights had gained purchase on the Supreme Court. One, which was first articulated by Field and later embraced by a majority of the justices in Lochner, saw the Court as a bulwark against too-aggressive legislatures. Under this theory, the Court had at least some duty to step in when lawmakers enacted policies that offended not only the text of the Constitution, but also the justices’ personal sense of how a capitalist society should function.

Bettmann Archive

Justice Oliver Wendell Holmes.

The other approach, which resembled Justice Miller’s position in Slaughter-House, called for judges to defer to lawmakers’ policy decisions. In a now-celebrated dissent, Justice Oliver Wendell Holmes articulated this approach: “A Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire.”

Or, as Holmes put it in a more colorful moment, “if my fellow citizens want to go to hell, I will help them.” Under this approach, it simply was not the job of judges to find new rights in the Constitution that could thwart the actions of democratically elected lawmakers.

Two more aspects of the Court’s Lochner-era jurisprudence are worth noting. One is that Lochner and its progeny cited the due process clause, not the privileges or immunities clause, as the source of the right to contract. This shift allowed the Court to recognize unenumerated rights without having to explicitly overrule Slaughter-House — even though that meant tying substantive rights to a provision that speaks only of “process.”

The other is that, while Lochner and similarly plutocratic decisions loom large over this era, there was another line of early 20th-century substantive due process cases involving the rights of parents. And these decisions would eventually blossom into cases like Roe v. Wade.

The right to family autonomy

In 1919, Nebraska forbade school teachers from teaching “any subject to any person in any language than the English language” before the student passed the eighth grade. It was a transparently nativist law, enacted, in the words of Nebraska’s highest court, because “the Legislature had seen the baneful effects of permitting foreigners, who had taken residence in this country, to rear and educate their children in the language of their native land.”

Three years later, Oregon required most parents to send their kids to public and not parochial schools. This law was almost certainly motivated by anti-Catholic sentiment.

The Court struck both laws down in a pair of substantive due process decisions, Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), both of which emphasized that parents have a right — though not an unlimited one — to direct the upbringing of their children.

As the Court ruled in Meyer, individuals have a right “to marry, establish a home and bring up children.” A parent has a “natural duty” to “give his children education suitable to their station in life.” And that duty brings with it a right to employ a teacher “to instruct their children” in subjects they wish those children to learn.

Beginning in 1937, when a majority of the Supreme Court agreed to scrap Lochner and stop sabotaging much of President Roosevelt’s New Deal, the Court began a purge of Lochner-like decisions that thwarted progressive economic regulation. Indeed, the Lochner decision was so offensive to liberals that many left-leaning judges and justices formed an identity around opposing it. As Justice Black said in 1967, the entire reason “why I came on the Court” was because “I was against using due process to force the views of judges on the country.”

But Meyer and Pierce, which did not threaten progressive economic programs such as the New Deal, survived this purge — despite Black’s belief that any decision reading unenumerated rights into the due process clause was illegitimate. And eventually a majority of the justices decided once again to drink from the forbidden chalice of substantive due process.

Bettmann Archive

Justice William Orville Douglas on April 17, 1939, when he was sworn into office as an associate justice of the Supreme Court.

Justice William Douglas’s opinion in Griswold v. Connecticut (1965), which built upon Meyer and Pierce to hold that the Constitution permits married couples to use contraception, reads like the work of a sorcerer’s apprentice who knows that he is toying with black magic and ineptly tries to hide it.

“We are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment,” Douglas writes in Griswold, as well as a suggestion that “Lochner v. State of New York should be our guide.” But Douglas insisted that his Court would “decline that invitation.”

Instead, Griswold relied on the truly risible argument that married couples’ right to contraception could be found within the “penumbras” and “emanations” of various constitutional amendments that “create zones of privacy.” This argument, whose only virtue is that it allowed the Court to find an unenumerated right within the Constitution without using the cursed words “substantive due process,” is rarely mentioned in the Court’s later decisions, except maybe to mock it.

Yet, while Griswold fumbled around for a way to protect contraceptive access without adopting the substantive due process framework that animated Lochner, it also shares the Court’s revulsion in Meyer and Pierce at the idea that the government would intrude too deeply into intimate decisions that should be made by families. “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?” Douglas asked. “The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”

By the time Roe was handed down eight years later, the Court was less coy about the fact that it was relying on substantive due process — Roe situated the right to an abortion in “the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action.” More significantly, the Roe opinion explicitly placed various decisions protecting the right to decide when and how to form a family under the umbrella of a “right to privacy.”

This right, according to Roe, included “activities relating to marriage, procreation, contraception, family relationships, and child rearing and education.”

When you read the Court’s unenumerated rights cases in conjunction (or, at least, the cases that do not rest on the discredited reasoning in Lochner), a very clear and consistent ideology emerges. Every American has a right to marry a person of their choosing (1967’s Loving v. Virginia, 2015’s Obergefell v. Hodges); to form and dissolve intimate bonds with whomever they choose (Lawrence v. Texas in 2003); to have, or not to have, children at a time of their choosing (Griswold, 1972’s Eisenstadt v. Baird, Roe); and to raise those children as they desire, subject to laws prohibiting abuse, truancy, and the like (Meyer, Pierce).

Under the pre-Dobbs understanding of substantive due process, there must be firm safeguards against the government interfering too much in these deeply personal decisions. And yet, if you find this vision of family autonomy compelling — and I personally find it quite compelling — I urge you to think for a moment about what the current Court, with its 6-3 Republican supermajority, might do with the power to wall off certain family-centered decisions from government policymakers.

What does substantive due process really accomplish?

The question that looms over every single one of the Court’s unenumerated rights decisions is whether we can trust an unelected Supreme Court to decide which rights are protected by the Constitution.

Heritage Art/Heritage Images via Getty Images

Justice Stephen Field.

Imagine what sort of “rights” John Archibald Campbell might have found within the 14th Amendment’s vague language if he’d remained on the Court rather than committing treason in defense of slavery. Imagine what Stephen Field might have done if he’d had the votes to impose his laissez-faire vision on the country during his lifetime. Imagine, for that matter, what someone like Samuel Alito might do now that he has the power to invent new constitutional “rights.”

Think, for example, of the many efforts by social conservatives to remove books they disagree with from public school curriculums and libraries. Or similar efforts to force transgender students to use bathrooms that do not align with their gender identity.

Historically, cases like Meyer and Pierce have not been understood to allow conservative parents to impose their will on public school curriculums and policies. But someone like Alito could certainly read them that way. If parents have a right to decide their children’s’ upbringing, what prevents a socially conservative Court from holding that they have a right to send their kids to a public school that doesn’t have trans-inclusive bathrooms?

Leading anti-LGBTQ groups have already spent years thinking about how to use substantive due process to achieve their agenda, sometimes even embracing rhetoric lifted straight out of Griswold or Roe.

Before we sacrifice our constitutionally protected right to privacy at the altar of gender identity politics... https://t.co/wDMwaI94Br

— Heritage Foundation (@Heritage) June 29, 2016

The lesson of Lochner is that the power to make “rights” can be used in terrible ways. And it can be used to enhance the might of the already-too-powerful.

But what then of rights, such as marriage equality or the right to sexual autonomy, which current case law finds within the Constitution’s due process clause? The short answer is that these rights should be found elsewhere in the Constitution.

The Court’s early substantive due process decisions — including Lochner, Meyer, and Pierce — were the product of a very different era when the text of the Constitution was often treated as an afterthought. As Georgetown law professor Victoria Nourse writes, “for over fifty years, from 1880 until 1937, American constitutional jurisprudence was neither particularly textual nor particularly focused on original intent.” Judges routinely decided constitutional cases based on common law principles derived only from other judicial decisions, or from ill-defined concepts such as the “police power,” which play a vastly diminished role in modern constitutional law.

Many of the leading lawyers, judges, and legal scholars of that era were quite open about their belief that constitutional law exists separately from the Constitution’s text. As Christopher Tiedeman, an enormously influential legal scholar whose work was quoted with approval by hundreds of judicial decisions around the turn of the 20th century, wrote in a 1900 treatise, “the conservative classes stand in constant fear of the advent of an absolutism more tyrannical and more unreasoning than any before experienced by man — the absolutism of a democratic majority.”

To defeat this majority, Tiedeman urged judges to “lay their interdict upon all legislative acts” that violate a narrow vision of government power, and do so “even though these acts do not violate any specific or special provision of the Constitution.”

One consequence of this atextualist era in American constitutional law is that judges often relied on vague doctrines like substantive due process to reach outcomes that could have been achieved by relying on a right that is explicitly protected by the Constitution. If a case like Meyer were to arise today, for example, a modern court would undoubtedly find that the right to teach a foreign language is protected by the First Amendment’s free speech clause.

It also helps that, led largely by Justice Black, the Court spent much of the middle of the 20th century holding that states must comply with nearly all of the Bill of Rights, slowly chipping away at an 1833 decision saying that the Bill of Rights applies only to the federal government.

That means that almost all the rights currently protected by substantive due process can be found elsewhere in the Constitution. The anti-Catholic law struck down in Pierce violated the First Amendment’s command that everyone can freely exercise their religion. Laws that deny equal marriage rights to same-sex couples, or that criminalize gay sex, violate the Constitution’s command that no one may be denied “the equal protection of the laws” (unless, of course, a state is also willing to prohibit opposite-sex marriage and straight sex).

Charles Dharapak/AP

Justice Ruth Bader Ginsburg in 2013.

The right to reproductive autonomy — including the right to abortion — can also be found within this equal protection clause. Recall Justice Ginsburg’s argument that the question of whether women will be able to “participate as men’s full partners in the nation’s social, political, and economic life” hinges upon their “reproductive autonomy.”

I want to be clear that shifting individual rights jurisprudence away from substantive due process, and toward provisions that explicitly protect more carefully enumerated rights, is not a panacea against partisan or ideological judging. Explicit constitutional rights can be interpreted in ways that undermine democracy and lift up the most powerful — hence the Court’s decision in Citizens United v. FEC (2010) that the Constitution’s free speech clause protects the right of corporations to spend unlimited money to influence elections.

But constitutional provisions like the free speech, free exercise, and equal protection clauses are, at least, bounded. They permit judges to halt government censorship, attacks on religion, and efforts to foster inequality. They don’t permit judges to invent literally any right, as substantive due process does. The only real limits on substantive due process are the limits the judiciary imposes on itself.

I also acknowledge that, in arguing that it is time to let the judiciary’s unchecked power to recognize unenumerated rights fall by the wayside, I too am making a somewhat atextualist argument. The Ninth Amendment and privileges or immunities clause are still there, tempting judges to read into them whatever they choose.

But if you disagree with my argument that judges should not use such an extraordinarily vague provision to decide what our rights will be, I want to leave you with a question: How much do you trust Samuel Alito with that power?