Whether You're Pro-life or Pro-Choice, The Rightwing Resistance To Substantive Due Process Endangers Everyone
In 2017, an ACLU chapter in Tennessee released a statement responding to a state judge who offered defendants the opportunity to receive less jail time provided they agreed to vasectomies (for men) or implanted birth control (for women).
Offering a so-called ‘choice’ between jail time and coerced contraception or sterilization is unconstitutional. Such a choice violates the fundamental constitutional right to reproductive autonomy and bodily integrity by interfering with the intimate decision of whether and when to have a child, imposing an intrusive medical procedure on individuals who are not in a position to reject it. Judges play an important role in our community – overseeing individuals’ childbearing capacity should not be part of that role.
The Tennessee defendants could at least be comforted with the fact that they were provided a choice in the matter. The same cannot be said for the approximately 20,000 incarcerated or institutionalized women who were sterilized in California from 1909-1979. And the same cannot be said for the migrant women who were forced to undergo hysterectomies while in ICE custody, according to whistleblower testimony in 2020.
Most Americans may be surprised to learn that the right to not be sterilized against your will is not an explicitly protected Constitutional right. And that in fact, Buck v. Bell - the infamous eugenics case in which Justice Holmes wrote that “three generations of imbeciles is enough” - has never been formally overturned by the Supreme Court.
The Court has not had to revisit the issues in Buck because for decades, states have understood that the doctrine of “substantive due process” would ensure that the Court would side with individuals and their rights against overbearing governments that would infringe upon those rights. But the conservatives who wrote the Dobbs majoring and concurring opinions would have us believe that no such fundamental rights to reproductive autonomy or bodily integrity exist.
A Crash Course on Constitutional Law
Section 1 of the 14th Amendment reads as follows:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
What is a privilege and immunity and what are the privileges and immunities the 14th is referring to? Throughout its history, the Supreme Court has largely agreed that the answer to the former question is that these are rights retained by individuals. But as regards that latter question, there are two camps: those who say the rights in reference are only those rights explicitly detailed in the Constitution, and others who hold a more expansive view of what those rights are or could be as based on the 9th amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
One one side of this issue are judges, lawyers, and academics who argue that the Framers understood that they weren’t able to provide an exhaustive list of rights nor could they fully predict every form that government overreach and abuse might take. In this line of thought, the 9th amendment serves to cover our bases. On the other side, judges, lawyers, and theorists complain that heeding the 9th will lead to a “proliferation of rights” invented whole cloth by progressive Justices - the right to healthcare! the right to prostitution! the right to binge Stranger Things on Netflix! Where does it end?!
In an 1873 decision, the Supreme Court said that the “privileges and immunities” clause in the 14th Amendment pertains only to areas controlled by the federal government and is not enforceable against state governments. Fine, says the modern Court, let’s pay attention to the subsequent clause: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” Now, you could argue, as many conservatives do, that the clause is fully and exclusively procedural in nature: a state government can kill Bob or take his land, but only if they get signatures on the correct forms first - otherwise, that’s a rights violation! But are we really going to tell Bob, “well as long as there is a procedure in place (and just any old procedure will do, frankly) sorry, you have no rights here!” - and then proceed with impinging the core freedoms that the literal Declaration of Independence lays out. Of course, the Declaration is obviously not the Constitution, but it’s a weird kind of originalism that would ask us to violate the former in our reading of the latter.
The other way to read the “due process of law” clause is to situate it within the entire 14th Amendment, and to read that in conversation with other amendments. In this approach, the procedures themselves are not the end-all-be-all: the procedures are meant to help safeguard the substance - and the substance is the fundamental rights we possess as individuals - hence the doctrine of “substantive due process.” And if we want direction on what these substantive rights might look like, why not think about “life, liberty, or property” (the first two, echoing the Declaration of Independence) as a good starting point.
In line with this thinking, the Court has relied on substantive due process to uphold individual rights, including especially rights that maintain privacy and keep the state out of your bedroom - including the right to be sexually intimate with another consenting adult, the right to access and use birth control, the right to marry (in general, and also interracial marriage and gay marriage), the right to not be sterilized, the right to raise children and direct their upbringing (including not being forced to send your Catholic kids to Protestant schools, see Pierce v. Society of Sisters), etc., etc.. Of course, none of these rights are explicitly detailed in the text, but the 9th amendment gives us room to protect these core freedoms.
Now, no right can be absolute. For example, in the context of parenting, all but the most insanely ideological voices would recognize that it is important for government to remove children from abusive parents or from parents who neglect their children’s basic needs to the point of endangering their lives. The exact contours of what constitutes abuse/neglect are of course debatable - but in principle we recognize that government can impinge on fundamental rights. So to balance between fundamental rights and the “compelling interest” of the state to intervene or limit rights in certain circumstances, the modern court has developed doctrines of “strict scrutiny” - basically a series of rigorous theoretical hurdles the government needs to clear in order to justify any infringement. Hence, the modern Court has read both substance and procedure in interpreting “due process of law” - substantive rights that are protected against infringement, except when strict scrutiny allows for certain infringement provided it operates according to set procedures (and, pulling in the remaining clause of the 14th, provided that it treats all individuals and groups equally.)
All of this to say, that as the Court has stood for some 50+ years, forced sterilization, forced internment, and various other doomsday scenarios that actually happened in recent U.S. history are guarded against happening again through substantive due process interpretation that protects basic rights, whether explicitly described in the Constitution or not, from being infringed on by state governments.
Now let’s turn to the Dobbs ruling.
The Dobbs Majority Rejects Substantive Due Process Analysis for Abortion Rights:
Right out of the gate, the Dobbs Majority tips their hand: “The underlying theory on which Casey rested—that the Fourteenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for ‘liberty’—has long been controversial.” The Majority further reasons that “health and welfare laws” that serve “legitimate state interests” are “entitled to a strong presumption of validity” [citing earlier case law.] And then the Majority argues that any unenumerated right we wish to uphold through substantive due process interpretation must be “rooted in our Nation’s history and tradition,” which abortion clearly is not.
Ok, but then what about some of these other rights that have come out of substantive due process reasoning, including the right to not be forcibly sterilized by a state government? Or the right to send your children to a private religious school? The Majority writes: “abortion is ‘inherently different from marital intimacy,’ ‘marriage,’ or ‘procreation’ because it “terminates ‘life or potential life.’” The Majority then maintains that “our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
It is a comforting sign to know that the Majority is at least not inviting future cases that could chip away at other due process rights. But the underlying analysis here does nothing to provide a theoretical distinction between abortion and other cases. Certainly abortion is a more morally weighty issue than the right to own more than six dildos in the state of Texas. But merely saying “abortion is different because it is different” is a tautology, not a workable legal theory.
Here’s Justice Kavanaugh’s attempt to address this same issue in his concurrence:
Finally, the dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell. Post, at 4–5, 26–27, n. 8. But we have stated unequivocally that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Supra, at 66. We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed “potential life.” Roe, 410 U. S., at 150 (emphasis deleted); Casey, 505 U. S., at 852. Therefore, a right to abortion cannot be justified by a purported analogy to the rights recognized in those other cases or by “appeals to a broader right to autonomy.” Supra, at 32. It is hard to see how we could be clearer.
Here again, that same tautology: abortion is different because it is different. Let’s just take the issue of forced sterilization again. Doesn’t forced sterilization also involve “potential life”? And for that matter, what the hell else is a condom doing other than working to prevent “a potential life?” It’s hard to see how this attempt to differentiate could be more obtuse!
Justice Kavanaugh does follow up with the following statement:
Even putting aside that these cases are distinguishable, there is a further point that the dissent ignores: Each precedent is subject to its own stare decisis analysis, and the factors that our doctrine instructs us to consider like reliance and workability are different for these cases than for our abortion jurisprudence.
This suggests that not only is the majority of the Majority not interested in relitigating gay marriage, contraception access, and other such issues, it is also likely that if they did take up such a case, they would rule to protect those rights through convoluted reasoning about precedent that did not apply to Roe (again, because Roe is different, how can I be any clearer on this point??) In other words, the Court could plausibly say of contraception: “well, there is no constitutional right to this, nor would substantive due process analysis furnish such a right…BUT, people have gotten pretty reliant on contraception as part of broader family planning, so the precedent needs to stand.” This is in effect what the Court already said in Dobbs in saying that abortion is generally unplanned, which is why reliance considerations did not apply here. If this distinction in reliance considerations between abortion and family planning seems fuzzy to you, join the club. But again, abortion is just different, dammit!
It should be encouraging to all of us who don’t want enforceable state sterilization laws that the current Court wants to differentiate abortion from other substantive due process laws - even as we are concerned that they fail to persuasively differentiate. But the failure to provide sound legal reasoning should concern us. Because as the dissent opinion points out, the current composition of the Court can change, and future Courts could easily run with the logic of Dobbs to fully reject substantive due process rights across the board.
And if you think I’m being hyperbolic, well, let’s just take a look at what a current Justice has to say about substantive due process…
Justice Thomas’ No Good, Very Bad, Horrible Concurrence
At the very beginning of Thomas’ concurrence (which thank God, no other Justice signed onto), he writes that Dobbs is actually a straightforward case. “Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.“ The Justice continues by agreeing that abortion is unique, and so this particular case is not a referendum on 14th Amendment substantive due process case law more generally. And then here’s the sucker punch: “For that reason, in 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…’”
Notably, Justice Thomas does not mention Loving v. Virginia, the case that protects his own marriage to a white woman from state laws that had made such relationships a felony offense. (Loving was decided a mere 55 years ago, by the way.) But what he does do here is signal his desire to relitigate cases that establish rights to contraception, sex between consenting adults, (beyond only missionary sex for married heterosexual couples), and gay marriage. And worse than that, he openly calls for the Court to reject all substantive due process rights claims.
Now, some conservative theorists are quick to rush in here to explain that Justice Thomas isn’t against rights, he just wants them codified through the Privileges and Immunities clause of the 14th Amendment, rather than the Due Process clause. Recall from earlier: “ No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Ah, so it’s really a semantic difference, and Justice Thomas doesn’t actually want to dismantle a whole plethora of modern rights that serve as the basis for modern life. Whew, guess I didn’t need to panic after all!
But wait, no, because even if the conservatives on the Court would somehow be more open to expanding protections for unenumerated rights under the banner of the Privileges and Immunities clause, the explicit designation of “citizenship” in the P&I clause could have significant repercussions. Remember that whistleblower report that an ICE facility was forcibly sterilizing migrant women? Under a strict literalist interpretation of P&I, it is not clear to me that the Court would view such as women as rights-bearing, on account of not being citizens. And what of undocumented children’s rights to receive public education, or healthcare, as established in substantive due process interpretation? Certainly many MAGA types would be more than happy to see that go away too, but would the Court have grounds to protect such rights if relying on P&I? And even if - even if - the Court did find a way to ground such protections in the P&I clause as against the states, nothing in the clause itself limits the power of the federal government. So what about a federal law that mandates forced sterilization for people with mental or physical impairments or disabilities?
We don’t need to get that far into the weeds though. Because it is absolutely apparent that shifting from Due Process to P&I does not resolve the underlying disagreement about unenumerated rights. Thomas is clear on this point, noting that even if the Court switched to his preferred legal approach, it would still need to determine “whether the Privileges or Immunities Clause protects any rights that are not enumerated in the Constitution and, if so, how to identify those rights.” And he leaves no doubt on his thoughts about this whole project of identifying unenumerated rights, writing to lament how judges use the P&I clause, er I mean the Due Process clause to engage in “policymaking” and to “divine[] new rights” and blah, blah blah: a right to prostitution! and more than six vibrators!! and a Disney Plus account!!!
And Thomas is not even the only judge in recent times to be this ideologically opposed to taking the 9th amendment seriously. In the 2000 case Troxel, Scalia infamously opines that while basic parental rights are probably protected (who can really say??), he’d be overstepping his bounds as a judge to actually recognize such rights since they’re not explicitly established in the Constitution. Better to leave it with the legislatures, says Scalia (what could possibly go wrong?!), or perhaps a constitutional amendment.
Final Thoughts
There is no right to choose where your kids go to school or even to raise your own kids spelled out in the text of Constitution, but thank goodness we have over a century of jurisprudence that recognizes that right. And there is no explicit prohibition against states forcibly sterilizing men and women - whether citizens or not - but thank goodness we have a century of jurisprudence that recognizes substantive rights that should protect us against such infringements.
I’ve argued the 9th amendment with so many conservatives who are always quivering with fear about this future “proliferation of rights.” (Some are quite open that they are already unhappy with the proliferation of rights that occurred in the 60s…which…uh… ) And my rejoinder is always to say that in balancing out concerns, I’ll always put my emphasis on the concrete realities of the injustices that did occur in the U.S. - Jim Crow laws, Japanese internment, carceral slave labor, forced sterilization - over the hypothetical concerns that the Court might invent new rights that expand individual liberty more than might be appropriate. I’m certainly not going to reject a whole tradition of judicial reasoning that was integral to solidifying my basic freedoms as a Black man in America. But ultimately, for those who hold to Thomas and Scalia’s beliefs, the burden of evidence is on you to show why we should disregard the plain reading of the 9th Amendment which clearly instructs the Court to recognize individual rights beyond those explicitly enumerated, especially given the concrete history of how we have appealed to the 9th to establish rights for people who were denied full citizenship, disenfranchised from the political process, and literally enslaved.
And ultimately, whether you’re pro-life or pro-choice, if you ever sit down beside Thomas, or Gorsuch, or Kavanaugh, or Barret, or Roberts, the first question you should ask them is this: in your genuine opinion, what line of Constitutional interpretation protects an undocumented migrant in ICE custody from having her womb ripped out by agents of the federal government?