Like the Dred Scott decision and Plessy v Ferguson, Roe is finally on the trash heap of history where it belongs. In law school I was “randomly” called on to explain Roe by my Constitutional Law professor (who I later found out was a closet conservative.) As the only outspoken Christian in my class, in hindsight I guess that wasn’t a coincidence. Against 99 peers on the “other side” of the issue, I argued that it had no basis in law or the Constitution that I could see. Not one student could identify a legal rationale to support it.
The Court in Roe didn’t even try to identify any specific Constitutional basis for its conclusion. And that has caused MAJOR problems ever since. If you can make up new “fundamental rights” that are nowhere mentioned in the text, there is no limit on judicial power.
We have prayed so long for this result, but I will admit I never thought I’d see it in my lifetime. Thank God! He is still working in the world.
Now, what’s next?
Alito’s opinion is a masterpiece. He has exposed the fact that “emotion” and “raw judicial power” were the only basis for the Roe decision in the first place. The dissenting opinion offered nothing to refute his legal analysis – literally NOTHING. Even Roberts’ weak halfway attempt “concurring in the judgment” offers no particular reason for why his “stopping point” for abortion regulation has any more basis in law than Roe or Casey. In fact, his opinion is just “Casey 2.0” based on stare decisis-respect for precedent.
Where was their respect for precedent in Obergefell (gay marriage), King (upholding Obamacare), DACA, etc. If you’re wondering as a non-lawyer when SCOTUS follows precedent vs. overruling it, the answer is, “when they want to.” The fact that abortion supporters are now crying loudest about “following precedent” and saying Roe was a “super precedent” is prime evidence they have no ACTUAL legal argument to make in its defense.
The pro-abortion activists are right about one thing, Alito’s opinion won’t be limited to just the issue of abortion. (Which brings me to the point of this note.) He is taking apart the entire legal principle of “substantive due process.”
So let me do my best to explain that.
The “due process” clauses of the 5th and 14th Amendments of the U.S. Constitution provide important protections of the legal system and limit the federal and state governments’ powers to deprive citizens of life, liberty, or property without “due process.” What is “due process”? Simply put, “the process that is due.” OK – not very helpful, right? Courts have developed a two-part system: 1) procedural due process; and 2) substantive due process.
Procedural due process involves a collection of “legal system” rights as embodied in the first 8 amendments to the Constitution and various statutes. These make sense to be described as “due process” since they apply to the “process” of being investigated and put on trial.
Substantive due process is a much more nebulous concept that the Court created to refer to the protection of “fundamental rights”—the “best” of which are named in the Constitution (freedom of speech, freedom of religion, the right to bear arms, etc.) and the worst of which are NOT named in the Constitution but considered “obvious” and universally recognized. The Court has said that “any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’”
So why does this matter beyond Dobbs? You should not be surprised to find out that “living document” activist judges LOVE this 2nd category. This is where we got Obergefell “finding” a NEW fundamental right to same-sex marriage. Scalia pointed out in his dissent to that case that it is logically impossible to “find” a new fundamental right. And that is exactly where Alito’s opinion has landed. Justice Thomas said as much: “As I have previously explained, ‘substantive due process’ is an oxymoron that ‘lack[s] any basis in the Constitution.’” He added, “For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous.’”
And he’s right. Those cases have no more basis in law than Roe did.
It’s silly to fearmonger that anyone will be pushing “next” for outlawing interracial marriage or contraception, but it is also true to say that there is simply no basis in the Constitution for protecting such things as fundamental rights. By saying otherwise, the Court in Roe unmoored itself from the plain meaning of the text for 50+ years which led to abortion on demand, and same-sex marriage being removed from political debate.
Now, all those issues should be returned to the public square to be tested on the merits. Terrible and unpopular ideas like banning interracial marriage and contraception will fail. That is what democracy looks like. It’s messy, but it works.
Christian, there is much to rejoice in today as we recognize that God is still working in America! But there is also much work remaining, and much to pray about as we live as salt and light as pilgrims in this fallen world.
Matt Davis is the Chief Executive Officer at Maranatha Baptist University and an attorney licensed to practice law in Illinois, Florida, and Wisconsin. Follow him on Twitter @maranathaceo and his podcast, On Mission, at www.mbu.edu/podcastOn the Supreme Court Decision to Overturn Roe v. Wade