How did we get here? An analysis of the Dobbs decision

Bleeding Heartland user "Bill from White Plains" is an Iowa attorney.

Now that five U.S. Supreme Court justices have overturned the Roe v. Wade precedent when deciding Dobbs v. Jackson Women's Health Organization, I thought it might be helpful to do a deep dive into the legal bases for that decision. Most folks see this as a “results-oriented” ruling, “judicial activism” done by “unelected judges” superseding “the will of the people.”

As with most Supreme Court cases, the popular press has focused on the result (ending any federal constitutional right to an abortion), rather than the legal framework. More often than not, our discourse parrots what we read and hear from the media. It is important to learn how the Supreme Court majority reached this outcome, because for the rest of our lives, that legal framework may impact civil rights most of us have taken for granted for decades.

TEXTUALISM AND ORIGINALISM

Since President Ronald Reagan named Antonin Scali as an associate justice back in 1986, we have heard about "textualism" or "original intent/originalism/originalist" as terms for a method of constitutional interpretation primarily associated with justices who were appointed by Republican presidents. (The popular press and consumers of the media often refer to all GOP-appointed Supreme Court justices as “conservative justices.” That isn’t always true – but justices like David Souter can be considered in another conversation.)

Few people understand what “textualism” and “originalism” mean, except to say generally that the "conservatives" use it to kill civil rights, and the "liberals" don't use it, because it kills civil rights. So you hear pundits entertain queries like, "What would the founders have thought about teenagers owning semi-automatic rifles?" 

We have also heard that "liberal judges" "make law from the bench" while "conservative judges" actually interpret the constitution.

None of this is that simple. As you’ll see, few of those stereotypes hold true.

SUBSTANTIVE DUE PROCESS AND PROCEDURAL DUE PROCESS

Two constitutional philosophies have developed over the past 130 years: "substantive due process" AND "procedural due process." They derive from the Fifth and Fourteenth Amendments, and they both regard the due process provisions of those amendments, as well as the equal protection clause of the Fourteenth Amendment.

Standing alone, "due process" refers to the right of people (and corporations) to be notified that the government is going to take some action that will expand or eliminate some of their rights. The concept is that the people affected have an opportunity to be heard on the matter.

"Substantive due process" looks to the intent of the Constitution, as a whole. In particular, it looks at "liberty interests"—those aspirational objectives that seem apparent but aren't specifically mentioned in the Constitution. Those liberty interests include privacy, bodily autonomy, the right to marry, and the right to raise your children without government interference.

No article of the Constitution specifically addresses any of those liberty interest, nor does any amendment codify any of them.

By contrast, "procedural due process" is more straightforward: Was the person given notice? Was the person given a right to be heard? Has a specific provision of the Constitution been violated?

If the answers to those questions are, “yes,” “yes,” and “no,” the plaintiff’s case is over, for failure to prove a Constitutional violation.

The origins of "substantive due process" go back to the post-Civil War era. Southern racists enacted laws that would (at worst_ continue the equivalent of slavery, or (at best) confine former slaves and other people of color to areas, accommodations and activities that were exclusive to “their kind,” such that they did not “mix” with white folks. Legal challenges to the onslaught of those laws sometimes invoked the Thirteenth Amendment (banning slavery), but more often the Fourteenth Amendment’s due process and equal protection clauses, as well as the Fifth Amendment’s due process clause.

The argument was: the government is eliminating my rights, I have not been given an opportunity to be heard, and while my rights aren’t enshrined in the Constitution, they are rights freely exercised by white folks, and I should have them too so, they must be provided for, even if indirectly, by the Constitution.

THE LOCHNER ERA

The most famous “substantive due process” case had nothing to do with racial discrimination. Lochner v. New York, a U.S. Supreme Court ruling from 1905, arose from a labor dispute

You may occasionally hear about "The Lochner era" of Supreme Court decisions. In fact, that era predates the Lochner case. A better term for the period would be “the substantive due process” era, which began in the late 1890s and continued through 1937.

Lochner involved a New York State law that stipulated bakery employees could work no more than 10 hours a day and no more than 60 hours a week.

Joseph Lochner owned a bake shop in Utica. He was fined, twice, for requiring his employees to work more than 60 hours in a week. He sued the State of New York. His legal theory was that the state law violated his "fundamental right" to contract with his employees for whatever terms he and they agreed to. The case worked its way through the New York courts and eventually to the U.S. Supreme Court. 

There is no right to contract provided for in the U.S. Constitution. Nevertheless, the Supreme Court agreed with Lochner in a 5-4 decision. The majority found the New York law unconstitutional under the equal protection clause of the Fourteenth Amendment for two reasons. First, it put New York bakers at a competitive disadvantage with bakers from other states. Second, “the freedom of master and employe[e] to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with, without violating the Federal Constitution.”

As I mentioned, the so-called Lochner era ended with Supreme Court rulings in 1937.

A RESURGENCE OF SUBSTANTIVE DUE PROCESS CASES

Beginning in the mid-1950s, there was a resurgence of "substantive due process" rulings, in which the U.S. Supreme Court divined "fundamental rights" from the U.S. Constitution in a variety of cases. Many (though not all) of those decisions were "civil rights-friendly."

The first case of this new era was Brown v. Board of Education of Topeka, Kansas, an unanimous 1954 ruling which held that parents had a "fundamental right" to provide children with an education equal to that of other public school children, regardless of race. In Brown, the Supreme Court found a Kansas law requiring segregated schools was unconstitutional. 

In so-doing, Brown overruled at least two prior, post-Civil War/segregation statute cases. The Civil Rights Cases was an 1883 decision holding that separate but equal accommodations and amusement parks, were constitutional. Plessy v. Ferguson, Orleans Parish District Judge came down in 1896. In Plessy, the court upheld the State of Louisiana's "Box Car Act," which required all railroads that provided passenger cars to segregate them for Whites and "coloreds." 

Plessy held that the Act did not violate the Fourteenth Amendment's equal rights provision because

Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.

But in 1954, the Court found in Brown v Board of Education that "separate but equal" wasn't at all "equal"—even if the school, or box car, or amusement park purported to be equivalent (which they never were).

You may read about "The Warren Court." Earl Warren was the Chief Justice of the Supreme Court from 1954 to 1969. Appointed by President Dwight Eisenhower, Warren was "a conservative's conservative" by today's standards. He had been the head of the California Republican Party, as well as the Republican attorney general and governor of California. His policies involved government restraint on business,and the promotion of law and order, among other things. 

He was also Thomas Dewey's running mate against Harry S. Truman in the 1948 presidential election.

As chief justice, however, Warren's focus was on civil liberties. Brown was first landmark decision during his tenure. Another was Gideon v. Wainright, Corrections Director, State of Florida, a unanimous 1963 decision that found that criminal defendants had a "fundamental right" to an attorney in federal felony cases.  

THE RIGHT TO PRIVACY

Griswold v. State of Connecticut (1965) was a 7-2 decision that established a "fundamental" right to privacy, while determining that Connecticut's law prohibiting the use of contraceptives was unconstitutional. The ruling contained the following query:  "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship."

You may have heard portions of the following paragraph (plus one sentence) from Griswold, because they are often cited and mocked by opponents of the substantive due process legal doctrine:

[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U. S. 616, 630, as protection against all governmental invasions 'of the sanctity of a man's home and the privacies of life.

Moving on, in the 5-4 Miranda v. State of Arizona ruling (1966), the Warren Court found that federal criminal defendants had a "fundamental right" to be informed of the right to counsel before being interrogated. Loving v. Virginia, a unanimous decision issued in 1967, established a "fundamental right" to marry someone of another races. 

When Warren retired in 1969, President Richard Nixon appointed Warren Burger, during whose tenure Roe v. Wade, District Attorney of Dallas County (1973) was decided. By a 7-2 majority, the Supreme Court continued the line of cases demarcating a "fundamental right" to privacy. The Roe decision invalidated a Texas law prohibiting and criminalizing abortion, and established a federal constitutional right to an abortion.

The majority outlined a trimester approach: no government interference for an abortion in the first trimester of pregnancy, some government interference in the second trimester, and pretty much carte blanche to interfere during the third trimester, when the fetus was considered “viable.”

Incidentally, while listening to the Sirius/XM satellite radio station POTUS this weekend, I heard a college student from the “Students for Life” organization claim Roe v. Wade legalized abortion right up to the day of birth. While that was true in a very technical sense, it was never the case in reality. The language in Roe allowed states to effectively prohibit third-trimester abortions; Iowa has banned the practice for decades.

PROCEDURAL DUE PROCESS MAKES A COMEBACK

Burger served until 1986, and Ronald Reagan appointed William Rehnquist, who had served on the Supreme Court since 1969, to be the new chief justice. Rehnquist had been the most conservative of the associate justices under Burger. He had previously been a campaign advisor to Barry Goldwater, and a legal advisor to Nixon in the role of Assistant U.S. Attorney in the Office of Legal Counsel.

Reagan named Antonin Scalia to the associate justice position left vacant by Rehnquist's promotion. With the tag team of Rehnquist and Scalia, "substantive due process" eroded. The justices who still used that legal approach were slowly outmatched, then outnumbered, by justices invoking “procedural due process” analysis.

I think the most telling "procedural due process" ruling came after Rehnquist died, and President George W. Bush appointed John Roberts (a former law clerk for Rehnquist) to replace him as chief justice.

Scalia authored the 5-4 majority opinion in District of Columbia v. Heller (2008). As you probably know, the District of Columbia is a strange animal. It was created by the constitution as a district exclusively for the federal government. It is its own federal district, with a U.S. District Court and Circuit Court of Appeals.

All of this to say that, to the extent the Washington, DC government passes a law, there is no separate "state government," whose laws are interpreted by a state Supreme Court. Laws enacted in the District of Columbia passes are interpreted by the U.S. Supreme Court.

Heller involved a District of Columbia ban on handguns. Dick Heller, a "special police officer," carried a handgun as part of his job duties protecting the Federal Judicial Center, the building containing the D.C. District Court. He wanted a permit to keep aa handgun in his home, but the District of Columbia refused to grant him one, because possession of a handgun was not permitted.

He sued, arguing that the Second Amendment guaranteed his right to bear arms outside of the Federal Judicial Center.

Now, here is the text of the Second Amendment (emphasis added):"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

In his majority opinion, Scalia eviscerated a couple of decades of "textualist" analysis, which held that every word of the Constitution has meaning. For textualists, the Constitution doesn't cover topics not mentioned, but every statement found in the Constitution is important.

Assuming the role of an 18th-century grammarian, Scalia reversed the two phrases in the Second Amendment. He devoted seventeen pages to the second part, which he called "the operative clause." He denigrated the first part (referring to a well-regulated militia) as "the prefatory clause," and spent barely two and a half pages discussing it. The "operative clause" was paramount for Scalia, and the "prefatory clause" meant the opposite of what it says.

We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the ablebodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

To make Scalia's analysis logical, the so-called, “prefatory clause” would have to be rewritten to say, "the security of a free State being dependent on defending against a well regulated militia, the right of the people to bear Arms, shall not be infringed."

Clever, but false—intentionally false. The ruling was outcome-related. Scalia had to get around the first provision of the Amendment and couldn’t do it. So he pretended he had some grammatical basis for rewriting the text of the Second Amendment, and convinced four like-minded Supreme Court justices to go along.

And so, Heller stands for the proposition that everybody, except those who are mentally infirm, has the right to have a gun—oh!  except in federal buildings.

So much for "textualist" analysis.  

THE LAST SUBSTANTIVE DUE PROCESS RULINGS

Over the past 40 years, "originalist" or "textualist" has increasingly become code for "conservative." The analysis isn't uniform and the results are either not consistent with individual liberties, or cannibalize the text of the Constitution to create individual liberties.

As mentioned above, after Scalia came on board and Rehnquist was elevated to chief justice, the Supreme Court handed down fewer and fewer “substantive due process” decisions. But two stood out during the past two decades. Justice Anthony Kennedy, a Reagan appointee, wrote both majority opinions.

In Lawrence v. Texas (2003), five justices found a Texas anti-sodomy law (specifically, prohibiting homosexual anal sex) violated a "fundamental" right of privacy. Citing a previous decision that laid out the past 50 years' worth of substantive due process cases, the court held that "[t]hese references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex."

The last, and in my view, most dangerous substantive due process ruling was, Obergefell v. Hodges, Director, Ohio Department of Health (2015), invalidating bans on same-sex marriage. In that 5-4 decision, the Supreme Court majority invoked several "fundamental" rights like liberty, and privacy, and the right to marry. 

It was absolutely unconventional in its analysis, for any ruling written since the mid-1970s. It cited many of those landmark Warren court civil liberties cases from the 1960s. It was the last significant decision written by Kennedy, who retired in 2018, allowing President Donald Trump to appoint Brett Kavanaugh. 

The majority opinion in Obergefell didn't answer the constitutional question presented by the parties: what level of scrutiny (strict, intermediate or rational basis scrutiny) should be applied in Fourteenth Amendment equal rights cases?

It just came out of nowhere, using a bunch of flowery, pie-in-the-sky language reminiscent of an acid trip. Relying primarily on Griswold, the majority declared that gay marriage is constitutional. The majority did not undertake any analysis of the “substantive due process” case precedents. To the extent it relied on them, it failed to “read the room,” so-to-speak (the court's ideological bent favoring “procedural due process”).

In short, Obergefell seemed to hold itself out as a decision that was ripe for overturning. I find it particularly dangerous, because what will happen to the thousands of people in same-sex marriages if it is overturned? Can state legislatures criminalize their marriages?

I thought to myself while reading it, "Shit, this is the same stuff that I see in Roe v. Wade, and we've spent 45 years arguing about 'substantive' versus 'procedural' due process. I don't want to spend the rest of my life with the same level of agita because of antipathy toward gay marriage. If Kennedy had only stuck to the question presented, and made the case for applying “heightened intermediate scrutiny" (what the unanimous Iowa Supreme Court applied in Varnum v. Brien), there would still be a 5-4 split but it'd be bullet-proof."

A TRIUMPH FOR "STATES' RIGHTS"

From the beginning, the cause of "states' rights" animated opposition to "substantive due process" from outside the legal community. The chorus (coming mostly from southern states) was loudest post-Civil War, and again from the mid-1950s through the end of the 1960s. 

The chorus is extremely loud at this time in American history.

Notice that nearly all of the big “substantive due process” cases involve a person going against a State, a State actor or, in Heller, a Federal District substituting for a state. In each scenario, a government has enacted laws that invade our personal freedoms, and we have come to rely on federal courts to enforce the Constitution by tamping those obtrusive laws down. 

But now, the U.S. Supreme Court is explicitly telling states, "Have at it!  We won't interfere because your citizens have nearly no Constitutional protections, aside from the protection against gun control!"

What was saw over the past week from the Supreme Court is the inevitable result of more than 50 years of attempts by states' righters and misogynists, bigots, and racists. Their goal was to install justices whose philosophies would reverse 70 years of Supreme Court precedents that broadened civil and individual rights. In place of those rulings, the court would allow states to enact laws that criminalize behaviors that run counter to nervous, white, heterosexual, male "norms."

Last week, in New York State Rifle & Pistol Assoc. v. Bruen, Superintendent of New York State Police, the Supreme Court went all-in on the Heller decision. By a 6-3 majority, the court found the Second Amendment allows pretty much anybody in New York City (and damned near everywhere else -- except federal buildings) to carry concealed weapons. 

Also last week, in [Los Angeles County Sheriff's Deputy] Vega v. Tekoh, the Supreme Court limited the protections provided in Miranda. A 6-3 majority held—and this is tricky—that not providing a Miranda warning to a criminal defendant, then using the defendant's admission against him at trial, violates the Fifth Amendment. However, the majority said that violation isn't the type that allows the defendant to sue for money damages. In other words, you have a constitutional right to have police read your rights, but it isn't a "fundamental" right. 

Justice Elena Kagan's dissent observed that the ruling strips "individuals of the ability to seek a remedy for violations of the right recognized in Miranda."

Then of course, there's the ruling handed down on June 24 in Dobbs, State Officer of  the Mississippi Department of Health v. Jackson Women's Health Organization. The question presented was, did Mississippi's law banning abortion after 15 weeks (except in the case of the life of the mother) violate the Constitution. Writing for five justices, Samuel Alito determined that there is no Constitutional right to an abortion so, no, the restriction isn't unconstitutional. (Chief Justice Roberts would have upheld the Mississippi law without overturning Roe.) 

Excerpt from the second paragraph of Alito's 79-page ruling

Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right, and its survey of history ranged from the constitutionally irrelevant (e.g., its discussion of abortion in antiquity) to the plainly incorrect (e.g., its assertion that abortion was probably never a crime under the common law). After cataloging a wealth of other information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered set of rules much like those that might be found in a statute enacted by a legislature.


Here is the penultimate paragraph from Alito's opinion: "The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives."

Notice that, in these last two cases, it is the state or a state actor, suing to enforce its right to enforce invasive and obnoxious legislation. In most of the previous cases, it was the person suing the state to enforce their right to freedom from the enforcement of the State's onerous laws.

So there we go—back to "states' rights," and all of the misbehavior that substantive due process sought to remedy by finding certain universal, though not explicit, freedoms in the Constitution.

And of course, in his Dobbs concurrence, Justice Clarence Thomas (the most senior member of the Supreme Court and a “procedural due process” guy from day one) says at the top:

The Court well explains why, under our substantive due process precedents, the purported right to abortion is not a form of "liberty" protected by the Due Process Clause. Such a right is neither "deeply rooted in this Nation’s history and tradition nor implicit in the concept of ordered liberty." The idea that the Framers of the Fourteenth Amendment understood the Due Process Clause to protect a right to abortion is farcical.

Then Thomas writes, "[I]n future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.  Because any substantive due process decision is demonstrably erroneous, we have a duty to correct the error established in those precedents."

For those of us in middle-age or younger, "rights" that we have had every day for our entire lives aren't rights at all. State governments can restrict or curtail almost every aspect of our lives, as insecure or greedy state legislators follow some ideological agenda or leverage their integrity for PAC money.

Top image: Protestors gather outside the U.S. Supreme Court to protest the nomination of Amy Coney Barrett on September 27, 2020. Photo by Stephanie Kenner available via Shutterstock.

  • Bullet-proof?

    I doubt any previous Court ruling is ever bullet-proof. Didn't Scalia once tell his clerk not to worry so much about the reasoning behind any ruling? As long as the votes can be found to rule a given way, the ruling can be made. It does not matter how bad the reasons or how good the reasons for the opposite ruling.

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