Due Process Where Art Thou?

Well someone had to do it, so I guess it will be me. Yesterday, the Supreme Court, in Gonzales v. Carhart upheld Congress’ 2003 ban on “partial birth abortions.” Text of the Opinion. No doubt, there will be reams of commentary on this decision from every possible angle. I would like to focus on one small part of the decision in this posting because I think it has broader implications regarding permissable legislative action in the area of privacy generally.

Justice Kennedy’s majority opinion is twenty two pages long. Justice Ginsburg uses a further eleven pages in dissent. You may be able to prove me wrong, but nowhere in that thirty three pages has either justice cited the 14th Amendment to the Constitution. Roe v Wade, the 1973 case which initially held that the states could not ban abortions, at least in the first trimester of pregnancy, rested on a right to privacy that was grounded in the due process clause of the 14th Amendment. Planned Parenthood v. Casey, the 1992 case which in a joint opinion upheld the “essential holding” of Roe grounded that essential holding in the due process clause as well.

There has been much judicial and academic Sturm and Drang since the late 60’s (Griswold v. Connecticut (1967) holding that a married couple’e decision to use contraceptives was protected by the right to privacy contained in the due process clause) about whether finding a substantive right to privacy in the clearly procedural language of the 14th Amendment is an usurpation of legisaltive authority by an overreaching judiciary, President Bush’s “mythic” “activist judges.” For example, in 1986, in Bowers v. Hartwick, the Court held that the right to privacy contained in the due process clause does not extend to consensual sodomy. In 2003 the Court, in Lawrence v. Evans specifically reversed the Bowers decision and found that the due process clause protects consensual sexual relations between adults. This 2003 decision, apparently extending the right to privacy, seemed, in my judgment, to fly in the face of the Court’s 1997 decision in Compassion in Dying v. Washington, refusing to find a due process right to physician assisted suicide. As the above recitation seems to suggest, as a historical matter, the Supreme Court’s right to privacy jurisprudence since Roe has been inconsistent. I think it is fair to say however that the Court has been moving away from extending substantive due process protections to activities outside of abortion. In short, Lawrence notwithstanding, there has been a trend restricting the growth of substantive rights grounded in the right to privacy as found in the due process clause of the 14th Amendment.

Casey’s joint opinion, written not surprisingly by Justice O’Connor, was itself a compromise position. It sought to strike a balance between what the Casey Court viewed as the essential element of the Roe decision, ie that a the fundamental and life altering decision of whether to abort a child must have some Constitutional protection and the state’s legitimate interest in regulating the medical profession and promoting life itself. It therefore narrowed Roe’s scope while at the same time affirming that the due process clause does contain a right to privacy.

Which brings us, perhaps tortuously, to yesterday’s Gonzales decision. Justice Kennedy’s entire opinion is an attempt to show that the partial birth abortion Act satisfies the requirements of Casey, not the requirements of the 14th Amendment. One might argue that this is merely semantics, ie Casey rests on the due process clause and therefore, if the Act satisfies Casey it also satisfies the due process clause. The lack of explicit reference to the due process clause itself might signal an admission by the Court’s majority that the 14th amendment contains a substantive right to privacy and that the only issue is whether Congress, in crafting the Act, complied with the requirements for passing due process muster articulated in Casey. I was shocked, given this possible interpretation, that Justices Scalia and Thomas at least, did not write a concurring opinion agreeing with the Gonzales holding, but going further and advocating to explicitly overturn the entire line of jurisprudence grounded in substantive due process. Does this lack of a concurring opinion signal some admission by the originalists on the Court that they accept, at some minimal level, the notion of substantive due process?

Of course, the lack of a specific reference to the due process clause could also be an attempt by the Court to narrow its reach. Until the Lawrence decision in 2003, I had long felt that trying to ground any additional substantive rights in the due process clause was a jurisprudential dead letter. Given that assumption, one needed to read Casey, and all the abortion cases, as sort of a jurisprudential one off, i.e. because abortion was such a hot botton political issue the Court could not overturn Roe and its right to privacy jurisprudence explicitly, but would not extend the right to privacy beyond that particular situation. On that reading, Gonzales, after Lawrence, might be an attempt to actually ratchet down the jurisprudential rhetoric (notwithstanding that Gonzales is going to set off a firestorm of 2008 political rhetoric) around the due process clause. Justice Kennedy might be signaling that the Roberts Court will deal with attempts to limit abortion within the narrow jurisprudence laid out in Casey…. so litigants, please hold your fire on whether the 14th Amendment contains a right to substantive due process. Is the Court saying that it simply is not going to address the larger jurisprudential question of substantive due process in the case of abortion?

What I think is clear is the question of a “right to privacy” and where it is grounded in the Constitution remains politically and jurisprudentially problematic. The real question, especially in light of the Patriot Act, domestic spying, the War on Terror, etc… will be how we litigate and ultimately ground the rights of citizens to be free of government interference. The moral and philosophical dimensions of the abortion issue tend to cloud, in my judgment, those rather fundamental legal questions. If the due process clause does not put substantive limits on the government to invade our privacy, what does? What constitutes an “invasion” of privacy? Do we even have a right to expect a minimum level of privacy?

No answers, just questions.

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10 Responses to “Due Process Where Art Thou?”

  1. Mark Grannis Says:

    Fitz, you seem to have followed the cases more closely than I have over the years — which wouldn’t be hard — but here are a few suggestions.

    1. With respect to the fourteenth amendment’s due process clause, could it be as simple as the fact that an act of Congress was at issue here and the fourteenth amendment applies only to the states? Of course, that only begs the question why there was no citation to the fifth amendment’s due process clause, which does apply to Congress, but perhaps there have not been any previous abortion cases decided by the Supreme Court under the fifth amendment, and if not then I doubt the majority would have been eager to make this the first. In fact, I thought Justice Thomas’s concurring opinion made quite a telling point in remarking that the question of whether Congress has any constitutional authority under the commerce clause to legislate on this particular topic was not before the Court.

    2. Your question about where the limits on governmental authority come from if they don’t come from the due process clause seems to me to read the precedents in this area from back to front. Wasn’t the right of privacy developed first in the context of specific constitutional guarantees (free exercise of religion, freedom from quartering of soldiers, freedom from unreasonable searches and seizures) and only later drawn from more exotic sources like the ninth amendment and the due process clauses? I take the most powerful argument against this whole line of cases to be that while the constitution certainly guarantees privacy in certain expressly described circumstances, the constitution says nothing whatsoever about any more general right of privacy that is supposed to be implied in the “liberty” that is the subject of the due process clauses. If I were a justice who subscribed to that critique, I should think it a real coup to be able to get out a majority opinion that refers only to prior cases and not to specific textual guarantees in the constitution, because that makes it easier (or at least no harder) to say the cases are all wrong and need to be overruled.

    3. Justice Ginsburg’s dissent gives me some hope that that’s where we are headed. The majority opinion itself is such weak brew that it’s hard to see it as any sort of pro-life counteroffensive. Justice Kennedy even notes, in support of the Court’s decision, that the ban on “partial birth” abortions really won’t harm women’s health because abortionists can just administer a lethal injection to the baby before they dismember and extract it; this is a very hard argument for a pro-life person to love. But Justice Ginsburg notes that the majority only “assumes” that Casey is controlling; it does not “retain” or “re-affirm” or “endorse” or “adopt” Casey. Nor is the point about how easily this ban may be circumvented lost on Justice Ginsburg, as she notes, “One wonders how long a line that saves no fetus from destruction will hold in face of the Court’s ‘moral concerns.'” If this came from NARAL or NOW or Planned Parenthood, I might dismiss it as overheated rhetoric, but coming from Justice Ginsburg I am inclined to think it means something.

    4. Let’s put the pieces together. We know that five members of the Court thought the ban on “partial birth” abortions was consistent with Casey. We know they agreed among themselves to decide the case on this basis without citing any specific text in the constitution. We know that two of those five think the whole Roe/Casey line should be overruled, and we know that one of the five was in the Casey plurality. Justice Ginsburg, unlike NARAL or NOW or Planned Parenthood, actually knows what the five justices of the majority think on this subject. She may also know exactly what compromises were struck in order to get five votes for Kennedy’s opinion. And it may just be that while the Gonzales decision won’t save a single child, Justice Ginsburg knows we’re only one new justice away from one that will. That’s my hope, anyway.

    How could any of this be consistent with Lawrence? I haven’t any idea. Should it be?

  2. Timothy Peach Says:

    Does anyone have ANY idea what ANY of that meant?

    I’m not sure Ginsburg knows anything at all other than how to assent to every liberal rewriting of the law that’s pushed under her nose.

    This decision is the first rational one on the topic. The others all hang in the air, resting precariously on the most wrongly decided opinion since Dredd Scott.

    There is no constitutional right to privacy — that’s 100% horseshit. Blackmun’s “penumbras” are all just the shadows of liberal courts leaning over into an area in which they have no business — writing law.

    Scalia and Thomas have it right. Roe was wrongly decided. Casey was wrongly decided. The constitution is pretty much silent on the topic. The principle of subsidiarity dictates that each state should decide how to regulate it. All those ridiculous European countries at least have actual LAWS governing the topic,.

    It’s that simple. Anyone who says otherwise is full of shit.

  3. Timothy Peach Says:

    One more thing before my pulse goes back down — Ginsburg’s incessant call to “women’s health” is ludicrous. As if the proponents of that approach consider any tiny inconvenience or discomfort outside the scope of that bastardization of a phrase that used to have plain meaning. Anything that doesn’t give a woman an orgasm or make her feel like the Queen of the World is “damaging to her health”.

    Ginsburg would literally have us mutilating and tossing out viable human life like unwanted leftovers out of a refrigerator if some group of quacks in California were willing to sign something that indicated it was possible a woman could either break a nail or feel some minor anxiety in the process.

    You will please notice: pro-abortion lawyers NEVER stray outside the perverse tower of sophistries stacked on top of the Roe farce. It all piles up on itself, feeds on itself, justifies itself in a giant loop. The favorite ploy today — stare decisis. Translated: we’ve managed to defend this monstrous piece of shit for so long that you should treat it as if it were actual law. Stare decisis my ass — it was liberal shit then, it’s liberal shit today, and it will be liberal shit tomorrow.

    It’s right up there with the effort to DECLARE that the debate over global warming is over, despite the fact that most real scientists in the area are certain it’s horseshit.

  4. Mark Grannis Says:

    Tim, if the pro-choice side is as weak as you say (and certainly I agree that it is quite weak), then it’s hardly necessary to exaggerate its faults. Taking the legal arguments at face value and evaluating them on their merits may be a bit dull, even for actuaries, and you are excused if you can’t bear it. But for better or worse, these are the grounds on which the issue will be contested and decided. In the words of the incomparable George Farr (and please exert yourself to imagine his peculiar Franco-British accent), “You’ve got to play by the rules of the game. In chess, the object is to get the other person’s king, but you cannot just reach across the table, grab the other person’s king and say, ‘I’ve won.'”

  5. David Fitzgerald Says:

    The last few days have caused me to grapple again with the notion of substantive due process. It seems too easy, in some ways, to dismiss the jurisprudence out of hand. Perhaps, in the end, the anti-democratic nature of the judiciary forces one to the conclusion that reading new substantive rights in to the procedural language of the 14th Amendment violates basic principles of constitutional construction. Therefore, Griswold, and all its unhappy progeny, was wrongly decided and should be overturned.

    The problem comes in grappling with what that would mean? Justice O’Connnor, in Casey, clearly struggled with the notion that what Roe was ultimately about was a relationship (patient-doctor) and an intensely intimate and personal (and no doubt often painful) decision. I know her jurisprudence is often criticized as wishy-washy, and perhaps it is, but what is clear is that she was struggling to balance the legitimate interests of the state to speak on moral questions against some inviolable space in which individuals could make fundamental choices about deep moral questions free from the interference of a nanny state.

    Think of the “rights” that substantive due process currently protects beyond abortion; the decision of a married couple to use contraceptives and the choice of consultenting adults regarding how and with whom they want to have sex. Although primarily decided on equal protection grounds, the courts have also consisitently seen a substantive due process element in anti-segregation jurisprudence and in striking down miscegination statutes.

    All of these rights, in real life, involve deeply personal and intimate relationships, conversations and choices. Is there no place to have these conversations without having to calibrate what the state legislature or Congress has to say on the question?

    The real trouble with abortion jurisprudence is that in many ways it resembles the problems with 4th Amendment jurisprudence. As my criminal procedure professor used to say, “the plaintiff in every 4th Amendment case is a scumbag.” Abortion poses so many moral issues (and frankly, in my judgment, is not even a moral close call) that it poisons the whole pool surrounding the notion of substantive due process.

    Perhaps the answer is to have faith in our democracy, that over time the political branches will craft a solution that honors the moral questions, protects individual rights and creates a society where abortions are both rare and wholly unnecessary.

    I have to say though that maintaining that faith is hard to do when confronted with a government that has so readily disposed of things like habeus corpus and the Geneva Conventions. Without substantive due process, who is the watchman in the night?

  6. Timothy Peach, Defender of the Faith Says:

    With all due respect, Mr. G, I completely disagree with you. Accepting the status quo on the abortion debate is a losing proposition for pro-lifers. If we concede that Roe somehow makes sense, we will never make any real progress on the topic.

    Thomas’ concurrence was perfect. Here’s the WHOLE thing: “I join the Court’s opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution. See Casey, supra, at 979 (Scalia, J., concurring in judgment in part and dissenting in part); Stenberg v. Carhart, 530 U. S. 914, 980-983 (2000) (Thomas, J., dissenting). I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it. See Cutter v. Wilkinson, 544 U. S. 709, 727, n. 2 (2005) (Thomas, J., concurring).”

    I translate: “Me ‘n’ Scalia concur because the result is right, but let me remind you that the two of us think the entire chain of logic here is bullshit. And by the way, drop the commerce clause crap. We’re tired of activist nitwits trying to pull whatever lifeline they can into this mess. Interpret the law, and shut up. That’s as far as our job goes.”

    All of the great legal stands in history are based mostly on integrity and courage, because the truth is simple. As an example, the great equal rights heroes never equivocated on the simple truth that, in the eyes of God, we are all created equal.

    Judicial activism on abortion is the unwillingness of liberals to accept the rule of law, and will of the people (which these days is a majority that want greater restrictions on abortion). The “logic” goes like this: we elite liberals feel abortion should be legal. Since we’re geniuses, our feeling should translate to a Constitutional right. Therefore, we know it’s in the Constitution somewhere. It’s just a matter of “finding” it.

    Guess what — it’s not in there. And there’s NO virtue in pretending there is, no matter how much Grey Poupon you spread on it to confuse the taste. Scalia and Thomas have it exactly right.

    But hold it… maybe I missed it… maybe it’s in the Second Amendment?… hang on, I think I see it. “The Right to Keep and Bear Arms”… arms, of course, being surgical instruments….. they’re necessary to “…. the security of a free State…” , umm, what free State would that be…. yeah, it’s the State of being free of pregnancy!!! THAT’S IT!!! There’s a Constitutional right to abortion!!!! Wheeeee!!!

    Nothing like good jurisprudence to get the rights you want.

  7. Mark Grannis Says:

    Tim, I think you and I are in violent agreement. Your assessment is just more florid than mine.

    Dave, I can certainly understand your reluctance to trust your liberty to the legislative process, but I think you would concede that the legislature already has much greater power over you than would be involved in regulating the use of contraceptives. (At least it will when you return to the United States.) A short list: You can be conscripted for a war you think unjust and ordered into a battle in which you are almost certain to die; your income can be taxed at confiscatory rates; your children can be vaccinated against your will, or even taken from you; your home can be condemned for public use; you can be prevented from buying or using a controlled substance that you might think is the only hope for you or a loved one; you can be imprisoned not because of anything you did but because you are a material witness to someone else’s crime. And that’s without bringing in any possibility of mistake; if we add that in, you can be imprisoned or even executed for a crime you did not commit; you can have your personal property confiscated and forfeited to the state; you can be prohibited from practicing your chosen profession to earn a livelihood. For each of these deprivations, your only guarantee is that it will all be done according to due process of law (and in the case of the condemned home, you get “just compensation,” for whatever that’s worth).

    For a government to do any of these things would be a significant interference with your liberty, to say the least; in some cases, it could cost you your life or something dearer. But if it happened as a result of the deliberate judgment of our elected representatives (and a procedurally adequate inquiry into guilt, where that’s relevant), how could we intelligibly say life or liberty was denied without due process? We can, of course, put any one of these things outside the legislature’s power at any time by constitutional amendment; alternatively, we can try to keep some sense of subsidiarity alive so that this sort of abuse happens only in a state here or there rather than across an entire nation. But ultimately, we almost certainly end up making do in a state we consider less than perfectly just. Someday the constitution may expressly permit abortion, as it does capital punishment; I won’t agree that either should occur in a just state, but that’s self-government. The same constitution once permitted slavery. Sovereignty is finally in the people, and it takes more than a written constitution and an independent judiciary to prevent the people from making bad law. And while I think the countermajoritarian role played by judges in interpreting the actual constitution is absolutely critical, I see no reason whatsoever to trust that judges will be able to elaborate an imaginary constitution in any way that is superior to the legislative process. I think we should be highly satisfied if they just manage to uphold the restraints on majoritarian excesses that are already in the document.

    Let me also mention briefly that winning a substantive due process argument in court is sort of a pact with the devil. The good news is that you get to keep doing whatever you were doing, but the bad news is that you will be doing it at a judge’s sufferance. In other words, even in the act of declaring your “liberty” to use contraceptives or procure an abortion, the court is essentially asserting (and exercising) the right to say whether you can use contraceptives or procure an abortion. What it permits today, it may prohibit under different circumstances. It seems to me that much modern governmental interference with the family, for example, grows out of precisely this phenomenon — well-intentioned resolution of particular disputes that becomes the camel’s nose for broader governmental control.

    I hate to go to the Chesterton well again so soon, but I think he makes a certain amount of sense here: “[T]he political instinct or desire is one of these things which [men] hold in common. Falling in love is more poetical than dropping into poetry. The democratic contention is that government (helping to rule the tribe) is a thing like falling in love, and not a thing like dropping into poetry. It is not something analogous to playing the church organ, painting on vellum, discovering the North Pole (that insidious habit), looping the loop, being Astronomer Royal, and so on. For these things we do not wish a man to do at all unless he does them well. It is, on the contrary, a thing analogous to writing one’s own love-letters or blowing one’s nose. These things we want a man to do for himself, even if he does them badly.”

  8. Timothy Peach Says:

    Glad to have that resolved, G-man.

    Looking forward to the repeal of Roe v. Wade.

  9. Timothy Peach Says:

    The use of the term “repeal” was intentional, by the way.

  10. Timothy Peach Says:

    I’m feeling a little prophetic this fine morning.

    In this morning’s NYTimes, there’s a quickie editorial on NY Gov. Spitzer’s efforts to bolster state law in case [sic] “…the Supreme Court…. repeals Roe v. Wade entirely…”

    Granulous will be only too quick to explain to us that decisions don’t get repealed — they get overturned. Constitutional amendments get repealed.

    Here’s my letter to the editors (don’t hold your breath re publication):

    To the editors:

    Your attitudinal slip was showing this morning in your
    editorial entitled “Strengthening Abortion Rights” —
    in the last paragraph, you laud Gov. Spitzer’s efforts
    to clarify NY State law on abortion in case the US
    Supreme Court “…repeals Roe V. Wade entirely…”

    This linguistic error is telling, or course.
    Constitutional amendments get “repealed” (prohibition,
    for example). Supreme Court decisions, on the other
    hand, get “overturned”. And God willing, with the
    court trending towards less pernicious activism, Roe
    v. Wade will be overturned soon enough.

    Your editorial also highlights something usually
    obscured by liberals to sensationalize the risk to
    abortion rights represented by an overturning of Roe
    v. Wade — that if that happened, abortion would not
    be categorically illegal. It would simply revert to
    being regulated at the state level. Which is
    perfectly appropriate considering that the
    Constitution is entirely silent on the topic (assuming
    you ignore the right to Life that goes with Liberty
    and the Pursuit of Happiness in the Constitution’s
    preamble).

    If you want to talk about “repeals”, let’s talk about
    what really ought to be happening on abortion. There
    should be a Constitutional amendment stating exactly
    what the will of the people is on the matter —
    whether it should be legal, and if so, with what
    restrictions. But until that gets done, it should be
    regulated state-by-state, just as it was before the
    travesty of Roe v. Wade.


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