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.