substantive due process – Sheila Kennedy

One More Time

There are numerous reasons to vote straight Blue this November. But forgive me for returning to my argument that reproductive rights tops them all, and not just because women deserve the same bodily autonomy as men.

In a very real sense, Justice Alito threw down the gauntlet in Dobbs. That decision didn’t just eliminate a constitutional right that American jurisprudence had recognized for fifty years–it dealt a potentially fatal blow to the philosophy upon which our entire constitutional edifice rests.

Before I (once again) explain why that assertion is not hyperbole, let me connect the dots between Dobbs and the recent, blatantly theocratic decision from Alabama equating a frozen embryo with a living, breathing child. As Jamelle Bouie recently wrote in the New York Times, key parts of the Republican coalition demand fetal personhood.

There’s no question that the Alabama decision would not have been possible without the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which revoked the constitutional right to an abortion. In doing so, the court gave states and state courts wide leeway to restrict the bodily autonomy and reproductive freedom of Americans, in the name of protecting life.

That the Dobbs decision would threaten I.V.F. was obvious from the moment the Supreme Court released its opinion in June 2022. That’s why, toward the end of 2022, Senate Democrats introduced a bill to protect the right to use in vitro fertilization. It did not come up for a vote.

Bouie points out that the Justices who delivered Dobbs were placed on the Court as part of an explicit transaction in which Trump traded American women’s rights for the support of Evangelical voters.

What’s important, for thinking about a second Trump presidency, is that fetal personhood is the next battlefield in the anti-abortion movement’s war on reproductive rights, and conservative evangelicals are among those groups waving the standard. As one such activist, Jason Rapert of the National Association of Christian Lawmakers, told The New York Times regarding the Alabama court decision, “It further affirms that life begins at conception.”

At least 11 states, The Washington Post notes, have “broadly defined personhood as beginning at fertilization in their state laws.”

It does not matter whether Trump rhetorically supports access to I.V.F. treatments. What matters is whether he would buck the priorities of his most steadfast supporters and veto a bill establishing fetal personhood across the United States.

As we all know, he would not.

A Republican win in November would guarantee further erosion of reproductive rights– but as I have repeatedly argued, it would do far more than that.

Dobbs was a frontal attack on the doctrine of substantive due process, often called the “right to privacy.” That doctrine confirmed the American principle that certain “intimate” individual decisions—including one’s choice of sexual partners or the decision to use contraception– are none of government’s business.

Constitutional scholars argue that the right to personal autonomy has always been inherent in the Bill of Rights, but it was explicitly recognized in 1965, in Griswold v. Connecticut. Connecticut’s legislature had passed a law prohibiting the use of birth control by married couples. The law prohibited doctors from prescribing contraceptives and pharmacists from filling those prescriptions.The Supreme Court struck down the law, holding that whether a couple used contraceptives was not a decision government is entitled to make.

The majority recognized that recognition of a right to personal autonomy—the right to self-government—is essential to the enforcement of other provisions of the Bill of Rights. Justices White and Harlan found explicit confirmation of it in the due process clause of the Fourteenth Amendment—which is where the terminology “substantive due process” comes from. Wherever it resided–in a “penumbra” or the 14th Amendment—the Justices agreed on both its presence and importance.

The doctrine of Substantive Due Process draws a line between decisions that government has the legitimate authority to make, and decisions which, in our system, must be left up to the individual. I used to tell my students that the Bill of Rights is essentially a list of things that government is forbidden to decide. What books you read, what opinions you form, what prayers you say (or don’t)—such matters are outside the legitimate role of government. The issue isn’t whether that book is dangerous or inappropriate, or that religion is false, or whether you should marry someone of the same sex, or whether you should procreate: the issue in America is who gets to make that decision.

Enabling autocracy–destroying our current system of democratic majorities restrained by the Bill of Rights– requires eliminating substantive due process. Dobbs thus opened a pathway to an enormous expansion of government power.

Outlawing IVF is just a way station…..

Comments

Women And The Law

The final part of my “War on Women” argument is mercifully short.

________________________

A Constitutional U-Turn

In addition to the First Amendment’s prohibition against legislating religious doctrine, for the past fifty years Americans have relied upon a constitutional doctrine known as substantive due process, often called the “right to privacy.” That doctrine has strengthened the conviction of most Americans that certain “intimate” individual decisions—including one’s choice of sexual partners or the decision to use contraception– are none of government’s business.

The right to privacy was explicitly recognized in a 1965 case titled Griswold v. Connecticut. The Court was considering the constitutionality of a Connecticut law prohibiting the use of birth control by married couples. (The law also prohibited doctors from prescribing or pharmacists from selling contraceptives.) William O. Douglas’s majority opinion reflected the logic of its conclusion. He wrote “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.”

The majority recognized that a right to personal autonomy was necessary to the enforcement of several of the amendments, which Douglas noted would be difficult or impossible to respect without the implicit recognition of such an underlying right. In a concurrence, Justice Goldberg found that same right in the Ninth Amendment, and Justices White and Harlan argued that privacy is protected by the due process clause of the Fourteenth Amendment—hence the doctrinal title “substantive due process.” Wherever it resided–in a “penumbra” or the 14th Amendment–a majority of the Justices agreed on its presence and importance.

Procedural due process protects Americans’ right to a fair process—a fair trial or other governmental proceeding. Substantive due process distinguishes between decisions that government has the legitimate authority to make, and decisions which must be left to each individual. In the fifty years since Griswold, the recognition that the U.S. Constitution protects personal autonomy and respects the right of each individual to self-determination has powerfully influenced American culture. Much of the anger over the Supreme Court’s decision in Dobbs can be traced to shock over Justice Alito’s assault on what most Americans had come to consider a bedrock principle:

Government has the right–indeed, the obligation–to intervene when a person’s behaviors are harming people who haven’t consented to that harm. (Mask mandates to protect public health are an example.) Otherwise, government must leave us alone. Secular and religiously tolerant Americans who had dismissed warnings about growing fundamentalist assaults on that principle, confident that their right to self-determination was secure, reacted to the conservative Christian overtones in Dobbs, justifying an invasion of that right, with predictable shock.

As the foregoing discussion has made clear, different religions—and different denominations within those religions– have very different beliefs about women and procreation, and what amounts to the Court’s elevation of a particular version of Christianity has engendered an enormous and negative reaction. Survey research has confirmed that a majority of Americans, including a majority of religiously-affiliated Americans, disagree with the Court’s decision, and are even more opposed to emerging efforts to make access to contraception difficult or impossible. Large numbers of Americans see the overturning of Roe and cases like Hobby Lobby[ as part of an escalating war on women.

______________

On November 8th, the American people need to send an unmistakable message to the arrogant theocrats and paternalists on the Court. A massive vote for Democrats–BLUE NO MATTER WHO–will send that message, in three parts: it will be a repudiation of the Court’s current trajectory; a signal that the Court’s legitimacy has dangerously eroded; and it will convey a willingness to make significant changes to the Court’s composition and jurisdiction.

A failure to send that message will be seen as acquiescence to the Court’s retrograde direction, with very negative consequences for all Americans, not just women.

Comments

Same-Sex Marriage Is Next

So you don’t have a uterus, and you don’t care about the Supreme Court’s decision striking down Roe v. Wade? Better hope you aren’t a member of the LGBTQ community, either–because gay folks are now in the line of fire, per Talking Points Memo.

After passing the House with the support of 47 Republicans, the Respect for Marriage Act, which would protect marriage rights for same-sex couples if the Supreme Court were to overturn its 2015 decision in Obergefell v. Hodges, faces much dimmer prospects in the Senate. There is one reason why: the Christian right still controls the Republican Party. Movement leaders know it took 50 years to reverse Roe, and are committed to a similar strategy to undermine and eventually overturn Obergefell. With abundant clues in the Supreme Court’s June decision overturning Roe that LGBTQ rights could be next on the chopping block, it is unimaginable that movement leaders would sink that goal by allowing this bill to become law.

Republican senators are keenly aware of this. That is why South Dakota’s John Thune and Louisiana’s Bill Cassidy accused Democrats of introducing the bill to distract from inflation. It is why Florida’s Marco Rubio called it “a stupid waste of time,” and claimed gay Floridians are “pissed off” about something else — high gas prices. And it is why Maine’s Susan Collins, who was one of the bill’s four original Republican supporters, came up with the laughing-crying emoji argument that, because Majority Leader Chuck Schumer (D-NY) and Sen. Joe Manchin (D-WV) had struck a surprise deal on Democratic legislative priorities late last month, she would struggle to win fellow Republicans’ support for the marriage bill. “[I]t was a very unfortunate move that destroys the many bipartisan efforts that are under way,” she told HuffPost.

The article went on to document the “avalanche of opposition” to the bill from the Christian Right that effectively controls today’s GOP.

The Family Research Council Action began calling the bill the “(Dis)Respect for Marriage Act” before it even reached the House floor, and pointed to the provision in the party’s platform (back when the GOP still bothered with such things) that states, “[t]raditional marriage and family, based on marriage between one man and one woman, is the foundation for a free society and has for millennia been entrusted with rearing children and instilling cultural values.”

FRC Action also ginned up fear among its members by alleging that the bill would be used to persecute them and take away their religious freedom. (I remind readers that–in Christian Nationalist language, “religious freedom” is defined as freedom to impose their fundamentalist Christianity on everyone else.)

It reminded them that in the 1970s, the IRS revoked the tax exemption of the segregationist, fundamentalist Christian Bob Jones University over its racist policies, suggesting, despite the fact that it hasn’t happened in the seven years since Obergefell, that universities and nonprofits that oppose marriage equality could face a similar fate. The American Family Association called the bill “an Orwellian attempt to pretend that the Court’s very recent discovery of a constitutional right to same-sex marriage is not controversial and offensive to many people around the country.” The Heritage Foundation called it a “publicity stunt” aimed at “tak[ing] the spotlight off progressives’ radical policies and paint conservatives as bigots — and all this conveniently before the midterm elections.”

Ever since Justice Alito’s dishonest framing in Dobbs, I have warned that his attack on the doctrine of substantive due process–the doctrine that certain matters are none of government’s business–threatens numerous rights beyond abortion. If a woman no longer has the right to choose abortion, what about choosing to use birth control? What prevents government from decreeing that same-sex marriage erodes “the foundation for a free society?”

As Talking Points Memo concluded,

It’s crucial not only to understand what Christian nationalism is as an ideology, but to understand how right-wing operatives have attained the power to subvert democratic structures and democratic values in order to make it the core of anti-majoritarian rule. The opposition to the Respect for Marriage Act is an object lesson in how that power works. Christian right operatives and lawyers argue that America is a Christian nation, that Christians’ right to practice their religion must be protected from secular, progressive incursions like constitutional rights for LGBTQ people, and that it is the duty of judges and government officials to ensure that these “biblical” values are secured. With a sympathetic majority on the Supreme Court and a razor-thin Democratic majority in the Senate with filibuster rules favorable to conservatives, the Christian right has every incentive to deploy this power. And because Republicans no longer have an alternative base upon which to build a coalition, they will continue to relent.

Voting Blue has never been more important.

Comments

Privacy And Diversity

America has always been more diverse than most countries. Initially, that diversity meant different kinds of Christians–Maryland, for example, was Catholic, while the other original colonies were dominated by a variety of Protestant denominations. We are far more diverse these days, thanks to immigration, the splintering of numerous sects, and the explosive growth of the “nones,” Americans without religious affiliations.

We aren’t only diverse in our religious beliefs. Individuals represent different races, different regional cultures and backgrounds and very different political and ideological commitments.

The big question is: what sort of government can serve such wildly different citizens and be viewed as fair across all those differences? (That, of course, is a question that has long preoccupied political philosophers. John Rawls proposed a “Veil of Ignorance”–an intriguing mechanism for determining fairness.)

These days, as columnist Jennifer Rubin has written, an uncomfortable number of Americans are uninterested in fairness; they are interested in dominance. That faction is represented by a right-wing, activist Supreme Court and the Christian nationalists they favor. In their ahistorical vision of proper government, “a sliver of the electorate (White, Christian, male) exploits anti-majoritarian aspects of our democracy (e.g. the filibuster, the electoral college, gerrymandering) to use the awesome power of the government to impose values rooted in the 19th century on a diverse country.”

In that vision, the proper beneficiaries of public policy are mostly White, Christian and male, and elements of modernity like science and expertise, not to mention diversity, are “foreign, elite and alien.”

Rubin uses a speech by retiring Justice Breyer to explain the countervailing, constitutionally-anchored viewpoint–one that, as she says, recognizes the heterodoxy of America.

“This is a complicated country. More than 330 million people. My mother used to say, it’s every race, it’s every religion — and she would emphasize this — it’s every point of view possible. It’s a kind of miracle when you sit there and see all those people in front of you. People that are so different in what they think. And yet they decided to help solve their major differences under law.”

This vision posits that to achieve “ordered liberty” for a diverse, noisy, rambunctious people, we must respect the right to self-determination — to choose one’s family, one’s lifestyle, one’s profession and one’s philosophy of child-rearing. That necessitates restriction on government so as to protect a sphere of private conscience. It’s what Louis Brandeis called the “right to be left alone.”

Poll after poll affirms that a large majority of Americans believe that the “right to be left alone”–the right to direct their own lives, consistent with their own moral commitments –should extend to such matters as contraception, abortion, same-sex marriage, child rearing and lifestyle.

Until the advent of this rogue court, the Supreme Court had largely agreed. As Rubin reminds us, even before Griswold v. Connecticut was decided in 1965, the court had protected the right to send your child to the school of your choice and receive instruction in a foreign language. In the 1950s, the Court affirmed the right to choose your profession; and the right to travel (neither of which is expressly set forth in the Constitution).

The court in 1923 held that “liberty” includes the right “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.”

After Griswold, that zone of privacy was extended to interracial marriage, private consensual sex, abortion, the right of grandparents to live with their grandchildren (i.e. how one defines a “single family”) and to same-sex marriage.

The zone of privacy erected by the Court is precisely what a fair reading of the Bill of Rights protects–the right of individuals to make personal decisions without government interference. That is precisely what the MAGA movement cannot abide: it wants government to “control how schools teach race, what teachers say about sexual and gender identity, how parents treat transgender children, and, now, whether women can be forced to give birth against their will.”

In response to the constitutional question “who decides?” the White Christian Nationalists of the MAGA movement respond: “we do.”

At stake right now is the individual’s right to live “free from the tyranny of the government and the mob.” As Rubin says, we need a counter-movement.

In sum, Americans need a counterweight to a Christian nationalist movement that seeks to impose on the majority the set of social beliefs of the minority. They need a movement to defend the myriad ways 330 million Americans engage in “pursuit of happiness” — ways as diverse as the country itself.

Comments

The Right To Privacy

What is the constitutional right to privacy, and why is it controversial?

The term “privacy” is part of the problem: when Americans think about privacy, they think about someone peeking through their window, or riffling through their personal documents–invading areas that we all believe to be…well.. private.

That limited notion of privacy is implicated in the Fourth Amendment’s protection of our right to be “secure in our persons, papers and effects.” But the constitution arguably erects a zone of protection around a different and more expansive type of privacy–the protection of individual autonomy, what we might term the individual’s right to “self-government.” That kind of privacy, protected for the past fifty-plus years by the doctrine of substantive due process, bars the government from making decisions that most of us believe are properly the province of the individual citizen.

Those areas are outlined throughout the Bill of Rights.

The First Amendment forbids government from either censoring or requiring our speech or favoring certain theologies or religions–essentially, the First Amendment requires government to respect the individual’s liberty of conscience. The (overwhelmingly forgotten) Third Amendment says government cannot force us to “quarter soldiers” in our homes (a person’s home is her castle…). The Fourth Amendment explicitly requires government to respect our “security” in our persons and effects absent probable cause to invade that security.

The greatly under-appreciated Ninth Amendment specifically asserts that rights not explicitly enumerated nevertheless are retained by the people.

That language in the Ninth Amendment was intended to address the concerns of those Founders like Alexander Hamilton who worried that the “enumeration” of protected rights in the Bill of Rights might come to be considered exhaustive–that the omission of certain rights from the list would someday prompt self-declared “originalists” to ignore equally important liberties, including those necessary to the realization of the rights that were enumerated. When the Supreme Court ruled that government had no right to decide whether married couples could use contraception, the Court based its ruling on the proposition that a fair reading of the Bill of Rights required recognition of a “penumbra” protecting a zone of privacy–a zone of personal autonomy– that government was bound to respect.

Scholars and pundits like to poke fun at the term “penumbra,” and the language may well have been ill-chosen, but the Court’s insistence that any fair reading of the Bill of Rights requires respect for that enhanced zone of personal privacy was absolutely correct.

Recognition that the Bill of Rights protects personal or “intimate” decisions from government busybodies–the doctrine of substantive due process, or the right to privacy– has been the legal basis for recognition of rights most of us consider fundamental to the fair operation of modern society: a woman’s right to control her own reproduction, the right of competent adults to engage in sexual activity with other consenting adults, the recognition of same-sex marriage…

If today’s Court eviscerates or overrules that doctrine–if it refuses to respect the line between decisions that are properly left to individuals and those that can properly be made by the legislatures of various states, the United States will head down the path of the Taliban. The only difference will be the content of the theology that the state will impose.

Back in the day, when I was Executive Director of Indiana’s ACLU, I used to explain that the Bill of Rights answered a simple question: who decides? Who decides what prayer you say, or if you pray at all? Who decides what book you read, what political ideology you adopt? Who decides whether you marry, and who? Who decides whether you procreate? The whole point of the Bill of Rights was to ensure that government stayed in its lane–that the state refrained from making decisions that were none of governments’ business.

Today’s radical Court is intent upon erasing those lane lines.

No matter what Alito says to the contrary, eliminating the doctrine that has kept government in its lane won’t be limited to issues of reproductive choice. After all, at least four of the radical judges who voted to overrule Roe insisted during their confirmation hearings that it was “settled law.”

To the extent there is a controversy over the Constitutional right to privacy, it is between those who believe government has the right to make our most intimate decisions and those of us who disagree. Today’s Court is on the wrong side of that debate.

Comments