Pre- Roe, the court required such rights to be “established beyond debate as an enduring American tradition,”and “ implicit in the concept of ordered liberty.” Pre- and post- Roe – outside of cases concerning abortion and same-sex relations – it has been the court’s practice to articulate substantive due process rights in relation to the nation’s history, traditions, and legal norms. But neither case relied upon a recognizable or legitimate due process test. It seems equally unlikely, and empirically unattainable, that the court could ground a right of abortion upon the alternative argument suggested by dicta in Casey and currently promoted by abortion activists: women’s “equal citizenship.”īoth Roe and Casey rely explicitly upon the claim that abortion is part of a right to “privacy,” within the substantive due process protection of the 14th Amendment. It is virtually impossible to imagine a majority of the current court adopting any of the subjective, contradictory, ahistorical, and vague Roe and post- Roe iterations of “substantive due process” analysis it has used to constitutionalize decisions about sex and childbearing.
Jackson Women’s Health Organization, therefore, the Supreme Court should return the question of abortion to the states. Casey, it is plain to see that both cases are political, not constitutional, decisions. Wade and 30 years post- Planned Parenthood v. Levy Endowed Chair in Law and Liberty at Antonin Scalia Law School, George Mason University. This article is part of a symposium on the upcoming argument in Dobbs v.
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