Primer on Roe & How We Got Here
Roe has fallen so instead of just putting this on the blog I will made it a page and put it here for anyone who may need help.
How did we get here? (A primer on abortion laws before and after Roe and Right to Privacy)
Roe v Wade (text of the case)
The case was brought by Norma McCorvey—known by the legal pseudonym "Jane Roe"—who in 1969 became pregnant with her third child. McCorvey wanted an abortion but lived in Texas, where abortion was illegal except when necessary to save the mother's life. Her attorneys, Sarah Weddington and Linda Coffee, filed a lawsuit on her behalf in U.S. federal court against her local district attorney, Henry Wade, alleging that Texas's abortion laws were unconstitutional. A three-judge panel of the U.S. District Court for the Northern District of Texas ruled in her favor and declared the relevant Texas abortion statutes unconstitutional. The parties appealed this ruling to the Supreme Court of the United States.
On January 22, 1973, the Supreme Court issued a 7–2 decision holding that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a fundamental "right to privacy", which protects a pregnant woman's right to an abortion. But the Court also held that the right to abortion is not absolute and must be balanced against the government's interests in protecting women's health and prenatal life. The Court resolved these competing interests by announcing a trimester timetable to govern all abortion regulations in the United States. During the first trimester, governments could not regulate abortion at all, except to require that abortions be performed by a licensed physician. During the second trimester, governments could regulate the abortion procedure, but only for the purpose of protecting maternal health and not for protecting fetal life. After viability (which includes the third trimester of pregnancy and the last few weeks of the second trimester), abortions could be regulated and even prohibited, but only if the laws provided exceptions for abortions necessary to save the "life" or "health" of the mother. The Court also classified the right to abortion as "fundamental", which required courts to evaluate challenged abortion laws under the "strict scrutiny" standard, the most stringent level of judicial review in the United States.
In 1821, Connecticut passed the first state statute banning abortion in the United States. In 1868, abortion was not legal before quickening in 27 out of all thirty-seven states. Altogether, 30 of the thirty-seven states and six of the ten U.S. territories had codified laws which restricted abortion along with the Kingdom of Hawai'i where abortion had once been common. Every state had abortion legislation by 1900.
In the United States, abortion was sometimes considered a common law offense before specific statutes were made against it. In all states throughout the 19th and early 20th century, pre-quickening abortions were always considered to be actions without a lawful purpose. This meant that if the mother died, the individual performing the abortion was guilty of murder. This aspect of common law regarded pre-quickening abortions as a type of inchoate felony. Negative liberty rights from common law do not apply in situations caused by consensual or voluntary behavior, which allowed for abortions of fetuses conceived in a consensual manner to be common law offences. The majority opinion for Roe v. Wade authored in Justice Harry Blackmun's name would later claim that the criminalization of abortion did not have "roots in the English common-law tradition".
One purpose for banning abortion was to preserve the life of the fetus, another was to protect the life of the mother, another was to create deterrence against future abortions, and another was avoid injuring the mother's ability to have children. Judges did not always distinguish between which purpose was more important. Rather than arresting the women having the abortions, legal officials were more likely to interrogate them to obtain evidence against the individual doing the abortions. This law enforcement strategy was a response to juries which refused to convict women prosecuted for abortion in the 19th century. In 1973, Justice Harry Blackmun's opinion stated that "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage".
By 1971, elective abortion on demand was effectively available in Alaska, California, Washington, D.C., Washington state, Hawaii, and New York. Some women traveled to jurisdictions where it was legal, although not all could afford to. In 1971, Shirley Wheeler was charged with manslaughter after Florida hospital staff reported her illegal abortion to the police. Wheeler was one of few women who were prosecuted by their states for abortion. She received a sentence of two years probation and as an option under her probation, chose to move back into her parents' house in North Carolina. The Playboy Foundation donated $3,500 to her defense fund and Playboy magazine denounced her prosecution. The Boston Women's Abortion Coalition raised money and held a rally where attendees listened to speakers from the Women's National Abortion Action Coalition (WONAAC). Her conviction was overturned by the Supreme Court of Florida.
Some supporters of abortion rights oppose Roe v. Wade on the grounds that it laid a foundation for abortion in civil rights rather than in human rights, which are broader and would require government entities to take active measures to ensure every woman has access to abortion. This particular position is indicated by the use of rhetoric concerning "reproductive justice" which replaces earlier rhetoric centered around "choice", such as the "pro-choice" label. Reproductive justice proponents contend that factors permitting choice are unequal, thus perpetuating oppression and serving to divide women. Reproductive justice advocates instead want abortion to be considered an affirmative right that the government would be obligated to guarantee equal access to, even if the women seeking abortions are nonwhite, poor, or live outside major metropolitan areas. With a broader interpretation of the right to an abortion, it would be possible to require all new obstetricians to be in favor of abortion rights, lest as professionals they employ conscience clauses and refuse to perform abortions. In the 1989 decision of Webster v. Reproductive Health Services, the Supreme Court ruled against an affirmative right to nontherapeutic abortions and noted that states would not be required to pay for them.
Some in academia have equated the denial of abortion rights to compulsory motherhood, and reason that because of this abortion bans violate the Thirteenth Amendment:
When women are compelled to carry and bear children, they are subjected to 'involuntary servitude' in violation of the Thirteenth Amendment. Even if the woman has stipulated to have consented to the risk of pregnancy, that does not permit the state to force her to remain pregnant.
In 1993, a district court rejected an attempt to justify abortion rights apart from Roe and instead upon the basis that pregnancy and childrearing constituted "involuntary servitude".
Roe is embedded in a long line of cases concerning personal liberty in the realm of privacy, since Roe was based on individual liberty cases concerning privacy like Meyer v. Nebraska (1923), Griswold v. Connecticut (1965), Loving v. Virginia (1967) and Eisenstadt v. Baird (1972) and became a foundation for individual liberty cases concerning privacy like Lawrence v. Texas (2003) and Obergefell v. Hodges (2015).
Two months after the decision in Roe, the Court issued a ruling about school funding in San Antonio Independent School District v. Rodriguez. The majority opinion cited Roe v. Wade to assert that privacy itself was a fundamental right, while procreation implicitly counted as "among the rights of personal privacy protected under the Constitution." In his dissenting opinion, Justice Thurgood Marshall stated that Roe v. Wade "reaffirmed its initial decision in Buck v. Bell", and noted where Buck was cited in Roe. He found Roe to be a continuation of the Court's practice of granting only a limited stature to the right to procreate, since the Court's decision treated procreation as less important than the right to privacy. He observed that although past decisions showed strong concern against the state discriminating against certain groups concerning procreation and certain other rights, the "Court has never said or indicated that these are interests which independently enjoy full-blown constitutional protection." Instead, in Roe, "the importance of procreation has indeed been explained on the basis of its intimate relationship with the constitutional right of privacy ..." Justice Marshall thought that the method used in Rodriguez for determining which rights were more fundamental was wrong, and proposed a different method which would result in procreation receiving greater legal protection.
The legal interaction between Roe v Wade, the Fourteenth Amendment as understood post-Roe, and changing medical technology and standards caused the development of civil suits for wrongful birth and wrongful life claims. Not all states permit a parent to sue for wrongful birth or a child to sue for wrongful life. The constitutionality of wrongful life claims is controversial within the legal profession, even for states which currently allow them. Pre-Roe, a state court dismissed a lawsuit making both a wrongful birth and life claim, which was unsuccessfully appealed to the Supreme Court of New Jersey.
In Planned Parenthood v. Danforth, 428 U.S. 52 (1976), the plaintiffs challenged a Missouri statute which regulated abortion. In the regulations for abortions on demand, the state required prior written consent from a parent if the patient was a minor or a spouse if the patient was married. For pregnancies at 12 weeks and later, the statute also banned saline abortions, in which chemicals are injected into the amniotic sac to burn the fetus. The portions of the statute involving parental or spousal consent and prohibiting saline abortions were struck down.
In Floyd v. Anders, 440 F. Supp. 535 (D.S.C. 1977), South Carolina attempted to prosecute a doctor for illegal abortion and murder after he attempted to abort an African American boy at 25 weeks. During the abortion, the boy was born alive and survived for 20 days before dying. His prosecution was blocked by Judge Clement Haynsworth, and shortly afterwards by a unanimous three judge panel for the U.S. District Court for the District of South Carolina. Judge Haynsworth, writing for the panel, stated "Indeed, the Supreme Court declared the fetus in the womb is neither alive nor a person within the meaning of the Fourteenth Amendment." John T. Noonan criticized this from an anti-abortion perspective, stating that "Judge Haynsworth had replaced the Supreme Court's test of potential ability to live with a new test of actual ability to live indefinitely. He also had spelled out what was implied in Roe v. Wade but never actually stated there. For the American legal systems the fetus in the womb was not alive." The standard in Roe for viability outside the womb required a "capability of meaningful life". Without this capability, the state had no compelling "important and legitimate interest in potential life".
In a 5–4 decision in 1989's Webster v. Reproductive Health Services, Chief Justice Rehnquist, writing for the Court, declined to explicitly overrule Roe, because "none of the challenged provisions of the Missouri Act properly before us conflict with the Constitution." In particular, the Court found that the ability to have a nontherapeutic abortion was not an affirmative right of the sort that required the state to pay for it. In this case, the Court upheld several abortion restrictions, and modified the Roe trimester framework.
In concurring opinions, Justice O'Connor refused to reconsider Roe, and Justice Antonin Scalia criticized the Court and Justice O'Connor for not overruling Roe. Justice Blackmun stated in his dissent that Justices White, Kennedy and Rehnquist were "callous" and "deceptive," that they deserved to be charged with "cowardice and illegitimacy," and that their plurality opinion "foments disregard for the law." White had recently opined that the majority reasoning in Roe v. Wade was "warped."
During initial deliberations for Planned Parenthood v. Casey (1992), an initial majority of five justices (Rehnquist, White, Scalia, Kennedy, and Thomas) were willing to effectively overturn Roe. Justice Kennedy changed his mind after the initial conference, and Justices O'Connor, Kennedy, and Souter joined Justices Blackmun and Stevens to reaffirm the central holding of Roe, but instead of justifying the liberty to abort as being based on privacy as in Roe, it justified the liberty in a broader manner. The opinion asserted an individual's liberty to choose concerning family life and also protection from legal enforcement intended to maintain traditional sex roles, writing, "Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. ..." and against the state insisting "upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society."
The plurality also found that a fetus was now viable at 23 or 24 weeks rather than at the 28 week line from 1973. They also felt that fetal viability was "more workable" than the trimester framework. They abandoned the trimester framework due to two basic flaws: "in its formulation it misconceives the nature of the pregnant woman's interest; and in practice it undervalues the State's interest in potential life, as recognized in Roe." Only Justice Blackmun wanted to retain Roe entirely and issue a decision completely in favor of Planned Parenthood. Prior to this, he had considered a Pennsylvania viability-based law to be unconstitutionally vague in his majority opinion for Colautti v. Franklin.
Justice Scalia's dissent asserted that abortion is not a liberty protected by the Constitution for the same reason bigamy was not protected either: because the Constitution does not mention it, and because longstanding traditions have permitted it to be legally proscribed. He also asked:
Precisely why is it that, at the magical second when machines currently in use (though not necessarily available to the particular woman) are able to keep an unborn child alive apart from its mother, the creature is suddenly able (under our Constitution) to be protected by law, whereas before that magical second it was not? That makes no more sense than according infants legal protection only after the point when they can feed themselves.
During the 1990s, Nebraska enacted a law banning partial-birth abortion. The law allowed another second-trimester abortion procedure known as dilation and evacuation. In 2000, the Supreme Court struck down the law by a 5–4 vote in Stenberg v. Carhart, with Justice Stephen Breyer writing for the majority that sometimes partial-birth abortion "would be the safest procedure". Justice O'Connor wrote a concurrence stating Nebraska was actually banning both abortion methods. Justices Ginsburg and Stevens joined each other's concurrences. Justice Stevens stated that "the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other ... is simply irrational." Justice Ginsburg stated that the "law does not save any fetus from destruction, for it targets only 'a method of performing abortion'."
Justice Thomas's dissent stated, "The 'partial birth' gives the fetus an autonomy which separates it from the right of the woman to choose treatments for her own body." Justice Scalia joined Justice Thomas's dissent and also wrote his own, stating that partial-birth abortion is "so horrible that the most clinical description of it evokes a shudder of revulsion" and that this case proved Casey was "unworkable". Chief Justice Rehnquist joined the two dissents by Justices Scalia and Thomas.
Justice Kennedy, who had co-authored Casey, dissented in Stenberg. He described in graphic detail exactly how a fetus dies while being dismembered during a dilation and evacuation procedure. He reasoned that since Nebraska was not seeking to prohibit it, the state was free to ban partial-birth abortion.
In 2003, Congress passed the Partial-Birth Abortion Ban Act, which led to a lawsuit in the case of Gonzales v. Carhart. The Court previously ruled in Stenberg v. Carhart that a state's ban on partial-birth abortion was unconstitutional because such a ban did not have an exception for the health of the woman. The membership of the Court changed after Stenberg, with Chief Justice John Roberts and Justice Samuel Alito replacing Chief Justice Rehnquist and Justice O'Connor. The ban at issue in Gonzales v. Carhart was similar to the one in Stenberg, but had been adjusted to comply with the Court's ruling.
On April 18, 2007, a 5 to 4 decision upheld the constitutionality of the Partial-Birth Abortion Ban Act. Justice Kennedy wrote the majority opinion that Congress was within its power to ban partial-birth abortion. The Court left the door open for as-applied challenges. The opinion did not address whether Casey remained valid. Instead it only assumed Casey was valid "for the purposes of this opinion".
Chief Justice John Roberts and Justices Scalia, Thomas, and Alito joined the majority. Justice Thomas filed a concurring opinion, joined by Justice Scalia, contending that the Court's prior decisions in Roe v. Wade and Planned Parenthood v. Casey should be reversed. They also noted that the Partial-Birth Abortion Ban Act may have exceeded the powers of Congress under the Commerce Clause but that the question was not raised.
On March 9, 2006, Dubay filed a lawsuit before the United States District Court for the Eastern District of Michigan. Michigan's Attorney General, Joel D. McGormley, made a motion to have the case dismissed. On July 17, 2006, District Court Judge David Lawson agreed and dismissed Dubay's lawsuit. He appealed it once, to the United States Court of Appeals for the Sixth Circuit, which also dismissed it, and stated:
Dubay's claim that a man's right to disclaim fatherhood would be analogous to a woman's right to abortion rests upon a false analogy. In the case of a father seeking to opt out of fatherhood and thereby avoid child support obligations, the child is already in existence and the state therefore has an important interest in providing for his or her support.
In 2013, the Texas legislature enacted restrictions which required abortion doctors to have admitting privileges at a local hospital and required abortion clinics to have facilities equivalent to others which conducted outpatient surgery. On June 27, 2016, the Supreme Court in a 5–3 decision for Whole Woman's Health v. Hellerstedt struck down these restrictions.
The majority opinion by Justice Breyer struck down these two provisions of Texas law in a facial manner—that is, the very words of the provisions were invalid, no matter how they might be applied in any practical situation. The ruling also stated that the task of judging whether a law puts an undue burden on a woman's right to abortion belongs with the courts and not the legislatures.
In 2016, Indiana passed House Bill 1337, enacting a law which regulated what is done with fetal remains and banning abortion for sexist, racist, or ableist purposes. In its unsigned 2019 ruling for Box v. Planned Parenthood of Indiana and Kentucky, Inc., the U.S. Supreme Court upheld the regulations about fetal remains, but declined to hear the remainder of the law, which had been blocked by lower courts. Justice Ginsburg dissented from the part of the ruling about fetal remains on the basis that the regulations violated Casey. She also criticized Justice Thomas over his use of the word "mother" in his concurrance.
Justice Sotomayor stated that she wished the Court would not have heard the case at all. Justice Thomas wrote a concurring opinion which expressed concern that the theory presented in Freakonomics echoed the views of the eugenics movement. He warned that "a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement". He predicted, "Although the Court declines to wade into these issues today, we cannot avoid them forever."
In 2021, the state of Texas devised a legal workaround to Roe that allowed it to successfully outlaw abortion at six weeks of pregnancy despite the continued existence of Roe and Casey. In the Texas Heartbeat Act, the legislature created a novel enforcement mechanism that bars state officials from enforcing the statute and authorizes private individuals to sue anyone who performs or assists an illegal abortion. Because the Texas Heartbeat Act is enforced by private citizens rather than government officials, there are no state officials that abortion providers can sue to stop the enforcement of the law, and they cannot obtain judicial relief that will stop private lawsuits from being initiated against them. This has produced an end-run around Roe because the threat of private civil-enforcement lawsuits has forced abortion providers to comply with the Texas Heartbeat Act despite its incompatibility with the Supreme Court's abortion pronouncements. Other states have copied this enforcement mechanism to sidestep Roe and immunize their anti-abortion statutes from judicial review. This maneuver has weakened Roe and undercut the federal judiciary’s ability to protect abortion rights from state legislation.
Dobbs v. Jackson Women's Health Organization is a case that was a legal challenge to Mississippi's 2018 Gestational Age Act, which had banned abortions after 15 weeks with exceptions only for medical emergencies or fetal abnormalities. Federal courts had enjoined the state from enforcing the law after the state's only abortion clinic, Jackson Women's Health Organization, filed suit immediately after passage; the federal courts stated that the law violated the previously established 24-week point of viability. Mississippi asked the Supreme Court to hear the case on June 15, 2020, and the Court certified the petition on May 17, 2021, limited to the question of "Whether all pre-viability prohibitions on elective abortions are unconstitutional". The Court chose not to take up two other questions that Mississippi wanted to bring before the Court.
On May 2, 2022, Politico released a leaked first draft of a majority opinion written by Justice Alito, which had been circulated among the court in February 2022. Alito's draft called the Roe decision "egregiously wrong from the start" and would allow states to decide on abortion restrictions, overturning Roe and Casey. The release of a draft opinion for a pending case is unprecedented in recent Supreme Court history. The document was not a final decision, and justices are able to change their votes. The document is thought to reflect both the justices' preliminary voting and the outcome of the internal Court procedure for deciding who is assigned to write the majority opinion. A press release from the Supreme Court confirmed the leaked document's authenticity, and Chief Justice Roberts in a statement described its release as a "betrayal of the confidences of the Court". The leaked draft regarding the decision has sparked protests.
On June 24, 2022, the Supreme Court ruled 6–3 to uphold Mississippi's Gestational Age Act and 5–4 to overrule Roe and Casey. Similar to the leaked draft opinion, the opinion of the court written by Justice Alito stated that Roe was "egregiously wrong from the start" and its reasoning "exceptionally weak". It also stated that Roe has "enflamed debate and deepened division" and that overruling it would "return the issue of abortion to the people’s elected representatives".
At the state level there have been many laws about abortion. In the decade after Roe, most states passed laws protecting medical workers with a conscientious objection to abortion. Nine states which had legalized abortion or loosened abortion restrictions prior to Roe already had statutory protection for those who did not want to participate in or perform an abortion. As of 2011, forty-seven states and the District of Columbia had laws allowing certain people to decline to perform certain actions or provide information related to abortion or reproductive health. At the federal level, the Church Amendment of 1973 was proposed in order to protect private hospitals objecting to abortion from being deprived of funding. It first passed the Senate, 92-1, then a slightly modified version passed the House 372-1, and the final bill which contained it passed the Senate 94-0. Justice Blackmun supported this and other regulations protecting individual physicians and entire hospitals operated by religious denominations.
Some states have passed laws to maintain the legality of abortion if Roe v. Wade is overturned. Those states include California, Connecticut, Hawaii, Maine, Maryland, Nevada, and Washington. Other states have enacted so-called trigger laws that would take effect in the event that Roe v. Wade is overturned, with the effect of outlawing abortions on the state level. Those states include Arkansas, Kentucky, Louisiana, Mississippi, North Dakota and South Dakota. Additionally, many states did not repeal pre-1973 statutes against abortion, and some of those statutes could again be in force if Roe were reversed.
On April 16, 2012, Mississippi House Bill 1390 was signed into law. The law attempted to make abortion unfeasible without having to overturn Roe v. Wade. Judge Daniel Porter Jordan III of the United States District Court for the Southern District of Mississippi granted an injunction against the law on July 13, 2012. On April 15, 2013, he issued another injunction which only applied to a part of the law which required the individual performing the abortions to have hospital admitting privileges. On July 29, 2014, a three-judge panel from the U.S. Court of Appeals for the Fifth Circuit upheld the injunction against part of the law, with Judge Emilio M. Garza dissenting. The ruling especially relied on a case unrelated to Roe which was decided "nearly fifty years before the right to an abortion was found in the penumbras of the Constitution". On February 18, 2015, Mississippi asked the Supreme Court to hear the case, but they declined to hear it on June 28, 2016.
The Human Life Protection Act was signed by Alabama governor Kay Ivey on May 14, 2019 in hopes of challenging Roe v. Wade in the Supreme Court. It includes exceptions for a serious health risk to the mother or a lethal fetal anomaly, but otherwise it will make abortion a felony for the abortion doctor if it goes into effect. Women subjected to an abortion will not be criminally culpable or civilly liable under the law. On October 29, 2019, Judge Myron Thompson for the U.S. District Court for the Northern District of Alabama issued a preliminary injunction against the law.
In May 2021, Texas lawmakers passed Senate Bill 8, creating the Texas Heartbeat Act, banning abortions except in cases of medical emergency as soon as a fetal heartbeat can be detected. This is typically as early as six weeks into pregnancy and often before women know they are pregnant. The law established that any Texas resident who is not a state or local government employee or official can sue abortion clinics and doctors who are known to be "aiding and abetting" abortion procedures after six weeks. A clause forbids anyone who impregnated an abortion patient through rape, sexual assault, or incest to sue concerning the patient. The enactment date was September 1, 2021, and the U.S. Supreme Court, in a 5–4 decision, declined a request to block enforcement of the law that day. On October 22, 2021, the Court again did not block the law's enforcement, and agreed to hear arguments for United States v. Texas (2021) later, on November 1, 2021. They limited the question to a review of standing. On December 10, 2021, the Court dismissed the lawsuit on the basis that lower courts should not have accepted it. This decision allows lawsuits against the executive directors of Texas's medical, nursing, and pharmacy licensing boards and also against the executive commissioner of the Texas Health and Human Services Commission, but not certain other lawsuits seeking to overturn the law.
Planned Parenthood v Casey (text of the case)
The case arose from a challenge to five provisions of the Pennsylvania Abortion Control Act of 1982; among the provisions were requirements for a waiting period, spousal notice, and (for minors) parental consent prior to undergoing an abortion procedure. In a plurality opinion jointly written by associate justices Sandra Day O'Connor, Anthony Kennedy, and David Souter, the Supreme Court upheld the "essential holding" of Roe, which was that the Due Process Clause of the Fourteenth Amendment protected a woman's right to have an abortion prior to viability.
The Court overturned the Roe trimester framework in favor of a viability analysis, thereby allowing states to implement abortion restrictions that apply during the first trimester of pregnancy. The Court also replaced the strict scrutiny standard of review required by Roe with the undue burden standard, under which abortion restrictions would be unconstitutional when they were enacted for "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Applying this new standard of review, the Court upheld four provisions of the Pennsylvania law, but invalidated the requirement of spousal notification. Four justices wrote or joined opinions arguing that Roe v. Wade should have been struck down, while two justices wrote opinions favoring the preservation of the higher standard of review for abortion restrictions.
On June 24, 2022, the final opinion of Dobbs v. Jackson overturned both Casey and Roe, holding "the Constitution does not confer a right to abortion" and that "the authority to regulate abortion is returned to the people and their elected representatives."
This Vanity Fair article explains how the decision in Casey led to Roe's death:
The joint dissent in Dobbs v. Jackson Women’s Health Organization, in which a majority of the Supreme Court decided to abolish the constitutional right to abortion, is an impassioned, meticulous, and at times usefully nonplussed document. Written by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, it itemizes all the familiar, but no less horrifying, likely consequences of the Court’s opinion: rape survivors forced to bear their rapists’ children, prison terms for abortion providers, and bounty laws that “turn neighbor against neighbor . . . in the effort to root out anyone who tries to get an abortion.” It points toward a cascade of new legislation and court challenges that may result from the decision: restrictions on interstate travel for abortion providers and patients, criminal sanctions on women who seek abortions, the reversal of other Court decisions that safeguard liberty and equality, even a federal ban on abortion. (The last of these will not seem far-fetched if Republicans win back Congress and the White House in 2024.) “As of today,” the three dissenting Justices write, “this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare.”
But the dissent in Dobbs has a blind spot, and it has to do with Planned Parenthood v. Casey, the case decided in 1992 that revisited and revised Roe v. Wade. It is somewhat understandable that Casey has not become synonymous with the American abortion debate in the same way that Roe did, or that Dobbs will. After all, Casey neither established nor rescinded reproductive freedom for women in America. But our vague, muddled grasp of Casey—and its vague, muddled wording—is integral to its power: Casey’s role in emboldening anti-abortion activists and curtailing abortion rights unfolded quietly and gradually, state by state, bill by bill. The decision epitomized a centrist, compromising approach to bodily autonomy, one that ostensibly sought comity between opposing sides, but which permitted the language, precepts, and assumptions of the anti-abortion movement to seep into the mainstream discourse on reproductive rights. The road to Dobbs was cleared in part by Casey.
For nineteen years, up until the decision in Casey, Roe v. Wade held that the government had no “compelling interest” in a pregnancy whatsoever during the first trimester, when the vast majority of abortions are performed. Writing for the majority in Roe, Justice Harry Blackmun stated that, for those first twelve or so weeks:
The attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State. With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability.
The language of Roe is regrettably patriarchal, as it casts the pregnant woman as a mere consultant to the (male) physician. But the protective boundaries that Roe marked around reproductive freedom were bright and unmistakable. The state had no business anywhere near abortion decisions in the first trimester. It could only intervene in the second trimester in order to protect maternal health. And, before viability, it could not restrict abortion for the purposes of “protecting fetal life.”
Justice Alito posits, in Dobbs, that Roe v. Wade was less a constitutional decision than a poor imitation of “a statute enacted by a legislature,” and a mockery of substantive due process. It is received wisdom among many centrist and liberal Court observers, too, that Roe was a weak decision—a political position in search of a constitutional justification. The first time I heard this sentiment expressed was by a professor in a constitutional-law class I took as an undergraduate, a quarter century ago; I shared and even parroted this view for years as consensus, as fact. But Roe was pretty awesome at what it intended to do, which was to insure, for the first time, a woman’s self-evident right to possession of her own body. The success of the sustained right-wing backlash against Roe is less an indictment of the decision itself than of the flaccid, hand-wringing, extremely Democratic Party response to the backlash by some of the liberals who might have been expected to be Roe’s staunchest defenders. The skeptics included Ruth Bader Ginsburg, who somehow believed that a Roe-like abortion decision would have been less likely to be strafed by the Moral Majority had it been based on equal protection rather than substantive due process.
An illustration of the strength of Roe’s framework can be found in the 1983 Supreme Court case City of Akron v. Akron Center for Reproductive Health, which concerned an anti-abortion city ordinance. The Court found every single one of the rules at issue—including parental notification and consent; a twenty-four-hour waiting period; a requirement that second-trimester abortions be performed in hospitals; and a script in which a patient was told, among other things, that life begins at conception—to be unconstitutional. The Court correctly identified the restrictions as efforts to stall or change a woman’s decision to end her pregnancy—in other words, as efforts to protect fetal life, which Roe did not condone before viability. One of the dissenters in Akron was a relatively new Justice, and the first woman ever named to the Court, the Reagan appointee Sandra Day O’Connor. According to Evan Thomas’s biography of O’Connor, she wrote in her personal notes at the time that the “interest of the state in protecting the unborn is essentially the same at all stages of pregnancy,” which meant, in her view, that regulations were permissible throughout. She disagreed with viability as a useful borderline for deciding abortion law, believing that medical advances would likely keep pushing it earlier and earlier. (Roe v. Wade, in 1973, placed its earliest estimate of viability at twenty-four weeks, which still roughly holds.)
O’Connor went on to co-author the plurality opinion in Planned Parenthood v. Casey, which took up provisions of a Pennsylvania abortion law that required a twenty-four-hour waiting period; counselling; and, depending on the patient, spousal or parental consent. As in Akron, all of these restrictions appeared to contravene the trimester framework of Roe. But, a decade later, the Court had a majority that was widely expected to reject that framework. The decision in Casey, in the end, was a compromise brokered by O’Connor and two of the other newer Justices, David Souter and Anthony Kennedy. It did reaffirm the constitutional right to abortion—and yet, with the exception of the spousal-notification requirement, it upheld the abortion restrictions at hand in the Pennsylvania law. As the plurality explained, “to promote the State’s interest in potential life throughout pregnancy, the State may take measures to ensure that the woman’s choice is informed.” The government could now enact restrictions on abortion care at any time before viability, so long as they did not place “an undue burden on a woman’s constitutional right to decide to terminate a pregnancy.” But a definition of this brand-new “undue burden” standard—or another phrase deployed in the decision, “substantial obstacle”—was not forthcoming in the opinion. Anti-abortion forces could now test its meaning in the courts, with the onus on abortion-rights advocates to prove which burdens were undue. Three Republican-appointed Justices—O’Connor, Kennedy, and Souter—saved Roe, it seemed, by critically wounding it. (Meaghan Winter wrote an excellent piece for Slate in 2016 on the historical background and the practical effects of the Casey decision.)
Roe was far from perfect, but it was, to a great extent, clear, definitive, quantifiable; Casey, with its hazy, conciliatory talk of “undue burdens,” was not. Roe sought to make procuring an abortion as frictionless as possible; Casey sought to uphold the right while allowing states to second-guess and nitpick and means-test it within an inch of its life. (In the year that Casey was decided, Bill Clinton made the prim slogan “Abortion should be safe, legal, and rare” into a refrain of his Presidential candidacy.) Roe shut the door before the second trimester; Casey opened it. And anti-abortion advocates have been pushing through that door ever since, using legislative measures that have little other pretense than to discourage, delay, and thwart abortion care. Abortion providers in various states have been legally compelled to tell patients that life begins at conception or that a medication abortion can be reversed midway (it can’t). Six states have mandated seventy-two-hour waiting periods between two required visits. So-called crisis pregnancy centers, which fraudulently pose as abortion clinics in order to persuade women to continue unwanted pregnancies, have proliferated unchecked in swaths of the country. A 2013 Texas law, which required that abortion providers have admitting privileges at nearby hospitals and held abortion clinics to the same standard as ambulatory surgical centers, stood for three years and shut down half the clinics in the state before it was invalidated by the Supreme Court case Whole Woman’s Health v. Hellerstedt, in which Justice Breyer wrote the majority opinion.
Given the distinctions between Roe and Casey, and the ways in which the latter undermined the former, it is strange that the dissenting Justices write, in Dobbs, that “Roe and Casey well understood the difficulty and divisiveness of the abortion issue. . . . And the Court recognized that ‘the State has legitimate interests from the outset of the pregnancy in protecting’ the ‘life of the fetus that may become a child.’ ” Roe, emphatically, did nothing of the kind. (The dissent later self-corrects on this point, but it is startling that it conflates the two decisions in the first place.) The dissent is appealing to precedent, to stare decisis, and thus is understandably invested in defending the three-decade benchmark set by Casey. It declares, for example, that Casey’s undue-burden schema has “nothing unworkable” about it, that it “has given rise to no unusual difficulties.” It’s true that judges have not had unusual difficulty applying “undue burden” to evaluate the abortion restrictions they’ve had to strike down or uphold. But one imagines that a physician finds it “unworkable” to be forced, by law, to tell a patient that abortion raises her risk of breast cancer (it doesn’t). One can be sure that any number of patients have found “unusual difficulties” in travelling long distances to clinics and trying to make a seventy-two-hour waiting period somehow align with inflexible work schedules and child-care arrangements and budgeting for hotel accommodations.
Planned Parenthood v. Casey made it harder for millions of people to obtain abortion care. It played a role in preventing some untold number from seeking or obtaining abortions at all. It helped to create obstetric deserts across the U.S. It made a world without access to abortion—the world of Dobbs—seem possible. It never unseated Roe in the popular imagination, but it did something more meaningful: it reified, both conceptually and linguistically, the idea that the government has a legitimate interest in “the life of the fetus” from “the outset of pregnancy.” This is a reactionary idea, even coming from three pro-choice Justices. Reproductive freedom as a constitutional right was not destroyed until Friday, but American jurisprudence had given quarter to the anti-abortion side’s terms, its language, its version of history and precedent, for thirty years already. ♦
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Congress shall have power to enforce this article by appropriate legislation.
The Thirteenth Amendment (Amendment XIII) to the United States Constitution abolished slavery and involuntary servitude, except as punishment for a crime. The amendment was passed by the Senate on April 8, 1864, by the House of Representatives on January 31, 1865, and ratified by the required 27 of the then 36 states on December 6, 1865, and proclaimed on December 18. It was the first of the three Reconstruction Amendments adopted following the American Civil War.
President Abraham Lincoln's Emancipation Proclamation, effective on January 1, 1863, declared that the enslaved in Confederate-controlled areas were free. When they escaped to Union lines or federal forces—including now-former slaves—advanced south, emancipation occurred without any compensation to the former owners. Texas was the last Confederate territory reached by the Union army. On June 19, 1865—Juneteenth—U.S. Army general Gordon Granger arrived in Galveston, Texas, to proclaim the war had ended and so had slavery (in the Confederate states). In the slave-owning areas controlled by Union forces on January 1, 1863, state action was used to abolish slavery. The exceptions were Kentucky and Delaware, where slavery was finally ended by the Thirteenth Amendment in December 1865.
In contrast to the other Reconstruction Amendments, the Thirteenth Amendment has rarely been cited in case law, but it has been used to strike down peonage and some race-based discrimination as "badges and incidents of slavery". The Thirteenth Amendment has also been invoked to empower Congress to make laws against modern forms of slavery, such as sex trafficking.
Since 1776, the Union had divided into states that allowed slavery and states that prohibited it. Slavery was implicitly recognized in the original Constitution in provisions such as Article I, Section 2, Clause 3, commonly known as the Three-Fifths Compromise, which provided that three-fifths of each state's enslaved population (“other persons”) was to be added to its free population for the purposes of apportioning seats in the United States House of Representatives, its number of Electoral votes, and direct taxes among the states. Article IV, Section 2, provided that slaves held under the laws of one state, who escaped to another state, did not become free, but remained slaves.
Though three million Confederate slaves were in fact eventually freed as a result of Lincoln's Emancipation Proclamation, their post-war status was uncertain. To ensure the abolition was beyond legal challenge, an amendment to the Constitution to that effect was initiated. On April 8, 1864, the Senate passed an amendment to abolish slavery. After one unsuccessful vote and extensive legislative maneuvering by the Lincoln administration, the House followed suit on January 31, 1865. The measure was swiftly ratified by nearly all Northern states, along with a sufficient number of border states (slave states not part of the Confederacy) up to the assassination of President Lincoln. However, the approval came via his successor, President Andrew Johnson, who encouraged the "reconstructed" Southern states of Alabama, North Carolina, and Georgia to agree, which brought the count to 27 states, leading to its adoption before the end of 1865.
Though the Amendment abolished slavery throughout the United States, some black Americans, particularly in the South, were subjected to other forms of involuntary labor, such as under the Black Codes, as well as subjected to white supremacist violence, and selective enforcement of statutes, besides other disabilities.
Due Process Clause
In United States constitutional law, a Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of "life, liberty, or property" by the government except as authorized by law.
The U.S. Supreme Court has interpreted these clauses broadly prior to 2022, concluding that they provide three protections: procedural due process (in civil and criminal proceedings); substantive due process, a prohibition against vague laws; and as the vehicle for the incorporation of the Bill of Rights.
The clause in the Fifth Amendment to the United States Constitution provides:
The clause in Section One of the Fourteenth Amendment to the United States Constitution provides:
Clause 39 of Magna Carta provided:
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
The phrase "due process of law" first appeared in a statutory rendition of the Magna Carta in 1354 during the reign of Edward III of England, as follows:
No man of what state or condition he be, shall be put out of his lands or tenements nor taken (taken to mean arrested or deprived of liberty by the state), nor disinherited, nor put to death, without he be brought to answer by due process of law.
New York was the only state that asked Congress to add "due process" language to the U.S. Constitution. New York ratified the U.S. Constitution and proposed the following amendment in 1788:
In response to this proposal from New York, James Madison drafted a due process clause for Congress. Madison cut out some language and inserted the word without, which had not been proposed by New York. Congress then adopted the exact wording that Madison proposed after Madison explained that the due process clause would not be sufficient to protect various other rights:
Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, come in question in that body [Parliament], the invasion of them is resisted by able advocates, yet their Magna Carta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed.
In 1855, the Supreme Court explained that, to ascertain whether a process is due process, the first step is to "examine the constitution itself, to see whether this process be in conflict with any of its provisions". Also in 1855, the U.S. Supreme Court said,
Due process of law in the [Fourteenth Amendment] refers to that law of the land in each state which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure.
The Due Process Clauses apply to both natural persons as well as to "legal persons" (that is, corporate personhood) as well as to individuals, including both citizens and non-citizens. The Fifth Amendment due process was first applied to corporations in 1893 by the Supreme Court in Noble v. Union River Logging. Noble was preceded by Santa Clara County v. Southern Pacific Railroad in 1886. The Due Process Clauses also apply to non-citizens who are within the United States – no matter whether their presence may be or is "unlawful, involuntary or transitory" – although the U.S. Supreme Court has recognized that non-citizens can be stopped, detained, and denied past immigration officials at points of entry (e.g. at a port or airport) without the protection of the Due Process Clause because, while technically on U.S. soil, they are not considered to have entered the United States.
In Bucklew v. Precythe, 587 U.S. ___ (2019), the Supreme Court held that the Due Process Clause expressly allows the death penalty in the United States because "the Fifth Amendment, added to the Constitution at the same time as the Eighth, expressly contemplates that a defendant may be tried for a ‘capital’ crime and 'deprived of life' as a penalty, so long as proper procedures are followed".
The U.S. Supreme Court has interpreted the term "liberty" in the Due Process Clauses broadly:
Although the Court has not assumed to define "liberty" with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective.
Main article: State actor
The prohibitions, generally, of the due process clauses apply only to the actions of state actors, and not against private citizens. However, where a private person is acting jointly with state officials in a prohibited action, they are said to be acting under the "color of the law" for the purposes of 42 U.S.C. § 1983. While private actors are not generally held to the actions of private citizens, it remains that private citizens may be held criminally liable for a federal felony or misdemeanor, if they conspire with the government to commit actions which violate the due process clauses of the constitution.
Procedural due process
Procedural due process requires government officials to follow fair procedures before depriving a person of life, liberty, or property.: 657 When the government seeks to deprive a person of one of those interests, procedural due process requires the government to afford the person, at minimum, notice, an opportunity to be heard, and a decision made by a neutral decisionmaker.
This protection extends to all government proceedings that can result in an individual's deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials. The article "Some Kind of Hearing" written by Judge Henry Friendly created a list of basic due process rights "that remains highly influential, as to both content and relative priority". These rights, which apply equally to civil due process and criminal due process, are:
An unbiased tribunal.
Notice of the proposed action and the grounds asserted for it.
Opportunity to present reasons why the proposed action should not be taken.
The right to present evidence, including the right to call witnesses.
The right to know opposing evidence.
The right to cross-examine adverse witnesses.
A decision based exclusively on the evidence presented.
Opportunity to be represented by counsel.
Requirement that the tribunal prepare a record of the evidence presented.
Requirement that the tribunal prepare written findings of fact and reasons for its decision.
Civil procedural due process
Procedural due process is essentially based on the concept of "fundamental fairness". For example, in 1934, the United States Supreme Court held that due process is violated "if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental". As construed by the courts, it includes an individual's right to be adequately notified of charges or proceedings, the opportunity to be heard at these proceedings, and that the person or panel making the final decision over the proceedings be impartial in regards to the matter before them.
To put it more simply, where an individual is facing a deprivation of life, liberty, or property, procedural due process mandates that he or she is entitled to adequate notice, a hearing, and a neutral judge.
The Supreme Court has formulated a balancing test to determine the rigor with which the requirements of procedural due process should be applied to a particular deprivation, for the obvious reason that mandating such requirements in the most expansive way for even the most minor deprivations would bring the machinery of government to a halt. The Court set out the test as follows: "[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail."
Procedural due process has also been an important factor in the development of the law of personal jurisdiction, in the sense that it is inherently unfair for the judicial machinery of a state to take away the property of a person who has no connection to it whatsoever. A significant portion of U.S. constitutional law is therefore directed to what kinds of connections to a state are enough for that state's assertion of jurisdiction over a nonresident to comport with procedural due process.
The requirement of a neutral judge has introduced a constitutional dimension to the question of whether a judge should recuse himself or herself from a case. Specifically, the Supreme Court has ruled that in certain circumstances, the Due Process Clause of the Fourteenth Amendment requires a judge to recuse himself on account of a potential or actual conflict of interest. For example, in Caperton v. A. T. Massey Coal Co. (2009), the Court ruled that a justice of the Supreme Court of Appeals of West Virginia could not participate in a case involving a major donor to his election to that court.
Criminal procedural due process
In criminal cases, many of these due process protections overlap with procedural protections provided by the Eighth Amendment to the United States Constitution, which guarantees reliable procedures that protect innocent people from being executed, which would be an obvious example of cruel and unusual punishment.
An example of criminal due process rights is the case Vitek v. Jones, 445 U.S. 480 (1980). The due process clause of the Fourteenth Amendment requires certain procedural protections for state prisoners who may be transferred involuntarily to a state mental hospital for treatment of a mental disease or defect, such protections including written notice of the transfer, an adversary hearing before an independent decisionmaker, written findings, and effective and timely notice of such rights. As established by the district court and upheld by the U.S. Supreme Court in Vitek v. Jones, these due process rights include:
Written notice to the prisoner that a transfer to a mental hospital is being considered;
A hearing, sufficiently after the notice to permit the prisoner to prepare, at which disclosure to the prisoner is made of the evidence being relied upon for the transfer and at which an opportunity to be heard in person and to present documentary evidence is given;
An opportunity at the hearing to present testimony of witnesses by the defense and to confront and cross-examine witnesses called by the state, except upon a finding, not arbitrarily made, of good cause for not permitting such presentation, confrontation, or cross-examination;
An independent decisionmaker;
A written statement by the factfinder as to the evidence relied on and the reasons for transferring the inmate;
Effective and timely notice of all the foregoing rights.
Substantive due process
Main article: Substantive due process
By the middle of the 19th century, "due process of law" was interpreted by the U.S. Supreme Court to mean that "it was not left to the legislative power to enact any process which might be devised. The due process article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process 'due process of law' by its mere will."
The term "substantive due process" (SDP) is commonly used in two ways: first to identify a particular line of case law, and second to signify a particular attitude toward judicial review under the Due Process Clause. The term "substantive due process" began to take form in 1930s legal casebooks as a categorical distinction of selected due process cases, and by 1950 had been mentioned twice in Supreme Court opinions. SDP involves liberty-based due process challenges which seek certain outcomes instead of merely contesting procedures and their effects; in such cases, the Supreme Court recognizes a constitutionally-based "liberty" which then renders laws seeking to limit said "liberty" either unenforceable or limited in scope. Critics of SDP decisions typically assert that those liberties ought to be left to the more politically accountable branches of government.
Courts have viewed the due process clause, and sometimes other clauses of the Constitution, as embracing those fundamental rights that are "implicit in the concept of ordered liberty". Just what those rights are is not always clear, nor is the Supreme Court's authority to enforce such unenumerated rights clear. Some of those rights have long histories or "are deeply rooted" in American society.
The courts have largely abandoned the Lochner era approach (c. 1897-1937) when substantive due process was used to strike down minimum wage and labor laws in order to protect freedom of contract. Since then, the Supreme Court has decided that numerous other freedoms that do not appear in the plain text of the Constitution are nevertheless protected by the Constitution. If these rights were not protected by the federal courts' doctrine of substantive due process, they could nevertheless be protected in other ways; for example, it is possible that some of these rights could be protected by other provisions of the state or federal constitutions, and alternatively they could be protected by legislatures.
The Court focuses on three types of rights under substantive due process in the Fourteenth Amendment, which originated in United States v. Carolene Products Co., 304 U.S. 144 (1938), footnote 4. Those three types of rights are:
restrictions on the political process (e.g., the rights of voting, association, and free speech); and
the rights of "discrete and insular minorities".
The Court usually looks first to see if there is a fundamental right, by examining if the right can be found deeply rooted in American history and traditions. Where the right is not a fundamental right, the court applies a rational basis test: if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid. If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny. This test inquires into whether there is a compelling state interest being furthered by the violation of the right, and whether the law in question is narrowly tailored to address the state interest.
Privacy, which is not explicitly mentioned in the Constitution, was at issue in Griswold v. Connecticut (1965), wherein the Court held that criminal prohibition of contraceptive devices for married couples violated federal, judicially enforceable privacy rights. The right to contraceptives was found in what the Court called the "penumbras", or shadowy edges, of certain amendments that arguably refer to certain privacy rights. The penumbra-based rationale of Griswold has since been discarded; the Supreme Court now uses the Due Process Clause as a basis for various unenumerated privacy rights. Although it has never been the majority view, some have argued that the Ninth Amendment (addressing unenumerated rights) could be used as a source of fundamental judicially enforceable rights, including a general right to privacy, as discussed by Justice Goldberg concurring in Griswold.
Void for vagueness
Main article: Void for vagueness
The courts have generally determined that laws which are too vague for the average citizen to understand deprive citizens of their rights to due process. If an average person cannot determine who is regulated, what conduct is prohibited, or what punishment may be imposed by a law, courts may find that law to be void for vagueness. See Coates v. Cincinnati, where the word "annoying" was deemed to lack due process insertion of fair warning.
Incorporation of the Bill of Rights
Main article: Incorporation of the Bill of Rights
Incorporation is the legal doctrine by which the Bill of Rights, either in full or in part, is applied to the states through the Fourteenth Amendment's due process clause. The basis for incorporation is substantive due process regarding substantive rights enumerated elsewhere in the Constitution, and procedural due process regarding procedural rights enumerated elsewhere in the Constitution.
Incorporation started in 1897 with a takings case, continued with Gitlow v. New York (1925), which was a First Amendment case, and accelerated in the 1940s and 1950s. Justice Hugo Black famously favored the jot-for-jot incorporation of the entire Bill of Rights. Justice Felix Frankfurter, however—joined later by Justice John M. Harlan—felt that the federal courts should only apply those sections of the Bill of Rights that were "fundamental to a scheme of ordered liberty". It was the latter course that the Warren Court of the 1960s took, although almost all of the Bill of Rights has now been incorporated jot-for-jot against the states. The latest Incorporation is the Excessive Fines Clause of the Eighth Amendment; see Timbs v. Indiana, 586 U.S. ____ (2019).
The role of the incorporation doctrine in applying the guarantees of the Bill of Rights to the states is just as notable as the use of due process to define new fundamental rights that are not explicitly guaranteed by the Constitution's text. In both cases, the question has been whether the right asserted is "fundamental", so that, just as not all proposed "new" constitutional rights are afforded judicial recognition, not all provisions of the Bill of Rights have been deemed sufficiently fundamental to warrant enforcement against the states.
Some people, such as Justice Black, have argued that the Privileges or Immunities Clause of the Fourteenth Amendment would be a more appropriate textual source for the incorporation doctrine. The Court has not taken that course, and some point to the treatment given to the Privileges or Immunities Clause in the 1873 Slaughter-House Cases as a reason why. Although the Slaughter-House Court did not expressly preclude application of the Bill of Rights to the states, the clause largely ceased to be invoked in opinions of the Court following the Slaughter-House Cases, and when incorporation did begin, it was under the rubric of due process. Scholars who share Justice Black's view, such as Akhil Amar, argue that the Framers of the Fourteenth Amendment, like Senator Jacob Howard and Congressman John Bingham, included a Due Process Clause in the Fourteenth Amendment for the following reason: "By incorporating the rights of the Fifth Amendment, the privileges or immunities clause would ... have prevented states from depriving 'citizens' of due process. Bingham, Howard, and company wanted to go even further by extending the benefits of state due process to aliens."
The Supreme Court has consistently held that Fifth Amendment due process means substantially the same as Fourteenth Amendment due process, and therefore the original meaning of the former is relevant to the incorporation doctrine of the latter. When the Bill of Rights was originally proposed by Congress in 1789 to the states, various substantive and procedural rights were "classed according to their affinity to each other" instead of being submitted to the states "as a single act to be adopted or rejected in the gross", as James Madison put it. Roger Sherman explained in 1789 that each amendment "may be passed upon distinctly by the States, and any one that is adopted by three fourths of the legislatures may become a part of the Constitution". Thus, the states were allowed to reject the Sixth Amendment, for example, while ratifying all of the other amendments including the Due Process Clause; in that case, the rights in the Sixth Amendment would not have been incorporated against the federal government. The doctrine of incorporating the content of other amendments into "due process" was thus an innovation, when it began in 1925 with the Gitlow case, and this doctrine remains controversial today.
Reverse incorporation of equal protection
Further information: Equal Protection Clause
In Bolling v. Sharpe 347 U.S. 497 (1954), the Supreme Court held that "the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive." The Court thus interpreted the Fifth Amendment's due process clause to include an equal protection element. In Lawrence v. Texas the Supreme Court added: "Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests."
Levels of scrutiny
When a law or other act of government is challenged as a violation of individual liberty under the due process clause, courts nowadays primarily use two forms of scrutiny, or judicial review, which is used by the Judicial Branch. This inquiry balances the importance of the governmental interest being served and the appropriateness of the government's method of implementation against the resulting infringement of individual rights. If the governmental action infringes upon a fundamental right, the highest level of review—strict scrutiny—is used. To pass strict scrutiny review, the law or act must be narrowly tailored to further a compelling government interest.
When the governmental restriction restricts liberty in a manner that does not implicate a fundamental right, rational basis review is used. Here a legitimate government interest is enough to pass this review. There is also a middle level of scrutiny, called intermediate scrutiny, but it is primarily used in Equal Protection cases rather than in Due Process cases.
The Court held in 1967 (in Chapman v. California) that "we cannot leave to the States the formulation of the authoritative ... remedies designed to protect people from infractions by the States of federally guaranteed rights".
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The Fifth Amendment (Amendment V) to the United States Constitution addresses criminal procedure and other aspects of the Constitution. It was ratified, along with nine other articles, in 1791 as part of the Bill of Rights. The Fifth Amendment applies to every level of the government, including the federal, state, and local levels, in regard to a US citizen or resident of the US. The Supreme Court furthered the protections of this amendment through the Due Process Clause of the Fourteenth Amendment.
One provision of the Fifth Amendment requires that felonies be tried only upon indictment by a grand jury. Another provision, the Double Jeopardy Clause, provides the right of defendants to be tried only once in federal court for the same offense. The self-incrimination clause provides various protections against self-incrimination, including the right of an individual not to serve as a witness in a criminal case in which they are the defendant. "Pleading the Fifth" is a colloquial term often used to invoke the self-incrimination clause when witnesses decline to answer questions where the answers might incriminate them. In the 1966 case of Miranda v. Arizona, the Supreme Court held that the self-incrimination clause requires the police to issue a Miranda warning to criminal suspects interrogated while under police custody. The Fifth Amendment also contains the Takings Clause, which allows the federal government to take private property for public use if the government provides "just compensation".
Like the Fourteenth Amendment, the Fifth Amendment includes a due process clause stating that no person shall "be deprived of life, liberty, or property, without due process of law". The Fifth Amendment's due process clause applies to the federal government, while the Fourteenth Amendment's due process clause applies to state governments. The Supreme Court has interpreted the Fifth Amendment's Due Process Clause as providing two main protections: procedural due process, which requires government officials to follow fair procedures before depriving a person of life, liberty, or property, and substantive due process, which protects certain fundamental rights from government interference. The Supreme Court has also held that the Due Process Clause contains a prohibition against vague laws and an implied equal protection requirement similar to the Fourteenth Amendment's Equal Protection Clause.
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.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
The Fourteenth Amendment (Amendment XIV) to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. Often considered as one of the most consequential amendments, it addresses citizenship rights and equal protection under the law and was proposed in response to issues related to former slaves following the American Civil War. The amendment was bitterly contested, particularly by the states of the defeated Confederacy, which were forced to ratify it in order to regain representation in Congress. The amendment, particularly its first section, is one of the most litigated parts of the Constitution, forming the basis for landmark Supreme Court decisions such as Brown v. Board of Education (1954) regarding racial segregation, Roe v. Wade (1973) regarding abortion (overturned in 2022), Bush v. Gore (2000) regarding the 2000 presidential election, and Obergefell v. Hodges (2015) regarding same-sex marriage. The amendment limits the actions of all state and local officials, and also those acting on behalf of such officials.
The amendment's first section includes several clauses: the Citizenship Clause, Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause. The Citizenship Clause provides a broad definition of citizenship, nullifying the Supreme Court's decision in Dred Scott v. Sandford (1857), which had held that Americans descended from African slaves could not be citizens of the United States. Since the Slaughter-House Cases (1873), the Privileges or Immunities Clause has been interpreted to do very little.
The Due Process Clause prohibits state and local governments from depriving persons of life, liberty, or property without a fair procedure. The Supreme Court has ruled this clause makes most of the Bill of Rights as applicable to the states as it is to the federal government, as well as to recognize substantive and procedural requirements that state laws must satisfy. The Equal Protection Clause requires each state to provide equal protection under the law to all people, including all non-citizens, within its jurisdiction. This clause has been the basis for many decisions rejecting irrational or unnecessary discrimination against people belonging to various groups.
The second, third, and fourth sections of the amendment are seldom litigated. However, the second section's reference to "rebellion, or other crime" has been invoked as a constitutional ground for felony disenfranchisement. The fourth section was held, in Perry v. United States (1935), to prohibit a current Congress from abrogating a contract of debt incurred by a prior Congress. The fifth section gives Congress the power to enforce the amendment's provisions by "appropriate legislation"; however, under City of Boerne v. Flores (1997), this power may not be used to contradict a Supreme Court decision interpreting the amendment.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude–
The Congress shall have the power to enforce this article by appropriate legislation.
The Fifteenth Amendment (Amendment XV) to the United States Constitution prohibits the federal government and each state from denying or abridging a citizen's right to vote "on account of race, color, or previous condition of servitude." It was ratified on February 3, 1870, as the third and last of the Reconstruction Amendments.
In the final years of the American Civil War and the Reconstruction Era that followed, Congress repeatedly debated the rights of the millions of former black slaves. By 1869, amendments had been passed to abolish slavery and provide citizenship and equal protection under the laws, but the election of Ulysses S. Grant to the presidency in 1868 convinced a majority of Republicans that protecting the franchise of black male voters was important for the party's future. On February 26, 1869, after rejecting more sweeping versions of a suffrage amendment, Republicans proposed a compromise amendment banning franchise restrictions on the basis of race, color, or previous servitude. After surviving a difficult ratification fight and opposition from Democrats, the amendment was certified as duly ratified and part of the Constitution on March 30, 1870. According to the Library of Congress, in the House of Representatives 144 Republicans voted to approve the 15th Amendment, with zero Democrats in favor, 39 no votes, and seven abstentions. In the Senate, 33 Republicans voted to approve, again with zero Democrats in favor.
United States Supreme Court decisions in the late nineteenth century interpreted the amendment narrowly. From 1890 to 1910, the Democratic Party in the southern states adopted new state constitutions and enacted "Jim Crow" laws that raised barriers to voter registration. This resulted in most black voters and many poor white ones being disenfranchised by poll taxes and discriminatory literacy tests, among other barriers to voting, from which white male voters were exempted by grandfather clauses. A system of white primaries and violent intimidation by Democrats through the Ku Klux Klan (KKK) also suppressed black participation.
In the twentieth century, the Court began to interpret the amendment more broadly, striking down grandfather clauses in Guinn v. United States (1915) and dismantling the white primary system created by the Democrat party in the "Texas primary cases" (1927–1953). Voting rights were further incorporated into the Constitution in the Nineteenth Amendment (voting rights for women) and the Twenty-fourth Amendment (prohibiting poll taxes in federal elections). The Voting Rights Act of 1965 provided federal oversight of elections in discriminatory jurisdictions, banned literacy tests and similar discriminatory devices, and created legal remedies for people affected by voting discrimination. The Court also found poll taxes in state election unconstitutional under the Fourteenth Amendment in Harper v. Virginia State Board of Elections (1966).
Dobbs and what it means? (text of the case)
Dobbs v. Jackson Women's Health Organization, No. 19-1392, 597 U.S. ___ (2022), is a landmark decision of the U.S. Supreme Court in which the court held that the Constitution of the United States does not confer a right to abortion. The court's decision overruled both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).
The case was about the constitutionality of a 2018 Mississippi state law that banned most abortion operations after the first 15 weeks of pregnancy. Jackson Women's Health Organization, Mississippi's only abortion clinic, had sued Thomas E. Dobbs, state health officer with the Mississippi State Department of Health, in March 2018. Lower courts had prevented enforcement of the law with preliminary injunctions. The injunctions were based on the ruling in Planned Parenthood v. Casey, which had prevented states from banning abortion before fetal viability, generally within the first 24 weeks, on the basis that a woman's choice for abortion during that time is protected by rights to privacy under the Fourteenth Amendment to the U.S. Constitution.
The ideological shift of the Supreme Court that intensified during the Trump administration and culminated with the 2020 appointment of Justice Amy Coney Barrett made Dobbs a potential vehicle for social conservatives to challenge Roe. Several states passed legislation, including trigger laws, to strictly regulate abortion should the newly conservative court overturn Roe. Dobbs gained more attention in the wake of legal battles over the Texas Heartbeat Act, enacted in May 2021, leading to near record-setting amicus curiae submissions.
Oral arguments before the Supreme Court were held in December 2021. In May 2022, Politico published a leaked draft majority opinion by Justice Samuel Alito, which prompted more states to pass trigger laws. The leaked draft largely matched the final decision issued on June 24, 2022. The Court ruled 6–3 to reverse the lower court rulings; a smaller majority of five justices joined the opinion overturning Roe and Casey. The majority held that abortion was not a constitutional right, as it was not "deeply rooted" in the country’s history, and that individual states have the authority to regulate access to abortion services. Chief Justice John Roberts agreed with the judgment upholding the Mississippi law but did not join the majority in the opinion to overturn Roe and Casey.
The ruling was a victory for the Christian right in American politics. Leading Republican politicians praised the decision, while their Democratic counterparts denounced it, as did many international observers. Protests and counterprotests over the decision occurred in many U.S. cities and internationally. The decision was divisive among the American public. Polling suggests 55–60% disapproved of overturning Roe.
The U.S. Supreme Court ruled in Roe v. Wade,[nb 1] a 1973 landmark decision, that a right to privacy within the scope of the Fourteenth Amendment to the U.S. Constitution included a woman's qualified right to terminate her pregnancy. The Court partly reaffirmed this in Planned Parenthood v. Casey,[nb 2] a 1992 case that also struck down Roe's pregnancy trimester framework in favor of a fetal viability standard, typically 23 or 24 weeks into pregnancy. Casey held that laws that restrict abortion before the fetus is viable create an undue burden on women seeking abortions, and are unconstitutional under the Due Process Clause given a woman's right to "substantive due process" under the Fourteenth Amendment. The Court also ruled that this right is not absolute, must be balanced with possible government interest, and may be affected by medical advancements that allow premature babies to survive at younger gestational ages.
After Roe, there was a national political realignment surrounding abortion. The abortion-rights movement in the United States initially emphasized the national policy benefits of abortion, such as smaller welfare expenses, slower population growth, and fewer illegitimate births. The abortion-rights movement drew support from the population control movement, feminists, and environmentalists. Anti-abortion advocates and civil-rights activists accused abortion-rights supporters of intending to control the population of racial minorities and the disabled, citing their ties to racial segregationists and eugenicist legal reformers. The abortion-rights movement subsequently distanced from the population control movement, and responded by taking up choice-based and rights-oriented rhetoric similar to what was used in the Roe decision.
Opponents of abortion experienced a political shift. The Catholic Church and the Democratic Party supported an expansive welfare state, wanted to reduce rates of abortion through prenatal insurance and federally funded day care, and opposed abortion at the time of Roe. The anti-abortion movement in the United States shifted to Protestant faiths that saw abortion rights as part of a liberal-heavy agenda to fight against, and became part of the new Christian right. The Protestant influence helped make opposition to abortion part of the Republican Party's platform by the 1990s. Republican-led states enacted laws to restrict abortion, including abortions earlier than Casey's general standard of 24 weeks. The courts enjoined most of these laws. The use of fetal viability as a standard was questioned in U.S. abortion-related cases after Casey, including by Justice Sandra Day O'Connor in her dissenting opinion in City of Akron v. Akron Center for Reproductive Health. These opinions argued that other scientific, philosophical, and moral considerations are involved.
During the Roberts Court since 2005, there had generally been a 5–4 conservative majority with the potential to overturn Roe and Casey. But one of those conservatives, Anthony Kennedy, had been part of the controlling plurality opinion in Casey and was generally seen as a safe vote to uphold it. Among the other conservative members was Justice Samuel Alito, who had sat as a circuit judge on the three-judge appellate panel and dissented from the court's invalidation of the spousal notification in Casey. Chief Justice John Roberts was also considered part of the conservative majority, but he was also a strong proponent of stare decisis, believing that even some wrongly decided cases should not be overturned, and a staunch defender of the Court's reputation.
Since 2018, when Kennedy retired and was replaced by Brett Kavanaugh, a known Casey opponent along with Neil Gorsuch, the Court's ideological makeup with respect to abortion rights appeared to have shifted. Because of Roberts's stated positions, he was considered the "swing vote" in abortion cases, but his strong support for upholding even wrongly decided cases would make it difficult for Roe or Casey to be challenged. Nevertheless, several Republican-majority states passed bills restricting abortion, anticipating a potential shift in the Supreme Court and providing possible case vehicles for bringing the issue to it. And when Amy Coney Barrett replaced Ruth Bader Ginsburg, the Court's ideological makeup shifted further, creating a 6–3 conservative majority and providing an opportunity to overturn or additionally limit Roe and Casey by moving Roberts out of the "swing vote" role. Ginsburg had generally been in the majority of past Supreme Court cases that enjoined stricter abortion laws. Conversely, Barrett held anti-abortion views; in 1998, she wrote in a law journal article that abortion is "always immoral".
Is abortion the only rights in danger?
This is the bare bones of the situation. In 1964 Griswold determined that a right to privacy existed and that married couples had the right to birth control. In 1972 Baird determined on the the right to privacy that Griswold applied to single women as well. 1973 is when Roe was decided based upon the precedent that Griswold and Baird also applied to a woman's right to her reproductive choices. Casey in 1993 changed aspects of Roe for the better (no longer needing permission from the father/husband/etc) and worse (getting rid of their trimester plan and allowing states to institute even stricter restrictions which eventually led to now).
After Roe was decided i was used as precedent to decide MANY cases that gave us more rights such as Lawrence v Texas (sodomy) which was also used to lead to Obergefell (marriage equality)
Thomas in Dobbs specifically mentioned Griswold, Lawrence, and Obergefell but due to the Dobbs ruling running on there being no right to privacy the following are also in danger:
Like Meyer v. Nebraska (1923), Griswold v. Connecticut (1965), Loving v. Virginia (1967) and Eisenstadt v. Baird (1972) and became a foundation for individual liberty cases concerning privacy like Lawrence v. Texas (2003) and Obergefell v. Hodges (2015).
What about the Senate?
We need to elect more Democratic Senators especially those who have explicitly stated they will create carve-outs on the filibuster or end it all together and will pass bills to codify abortion rights, marriage equality, birth control, trans rights, equality rights, and all rights that Dobbs and Trumplicans have and are endangered.
Vote, volunteer, recruit, donate, and so forth to get these Democrats elected. With Mobilize.us you can find places to do phone banking and text banking for local candidates, state candidates, and senate candidates. Lets get Democrats elected up and down the ballot.
What happens now?
We have to elect more Democrats up and down the ballot across the nation and stop the Trumplican Christofascists from destroying America.
Texas Democrats have outlined specific ways we will return the bodily rights of Texan women to them once we win in November:
Repeal HB 1280, the “Trigger Law” passed in the 87th Legislative Session
Repeal SB 8 (six-week abortion ban)
Repeal SB 4 (ban on medication abortion after 7 weeks and the prohibition on telemedicine used to acquire it)
Repeal SB 22 (86R, bars Texas governments from contracting with abortion providers or their affiliates)
Repeal existing TRAP laws that did not get overturned after Whole Woman’s Health v. Hellerstedt
Repeal the mandatory 24-hour waiting period before an abortion
Repeal the required sonogram and medically inaccurate counseling before an abortion
Require health insurers to offer abortion coverage
Improve access to contraception, especially in contraception deserts
Pass legislation allowing any medical provider back into Medicaid, including any that are affiliated with an abortion provider
Pass legislation to redirect funding from the Alternatives to Abortion program to reproductive health care programs that actually provide health care services