Abortion and the Constitution

• Author: Michael J. Perry
• Pages: 4-6

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The story of abortion and the Constitution is in part an episode in the saga of SUBSTANTIVE DUE PROCESS. During the period from the early 1900s to the mid-1930s, the Supreme Court employed the principle of substantive due process?the principle that governmental action abridging a person's life, liberty, or property interests must serve a legitimate governmental policy?to invalidate much state and federal legislation that offended the Court's views of legitimate policy, particularly socioeconomic policy. In the late 1930s and early 1940s, the Court, with a new majority composed in part of Justices appointed by President FRANKLIN D. ROOSEVELT, reacted to the perceived judicial excesses of the preceding generation by refusing to employ substantive due process to invalidate any state or federal legislation. During the next quarter century?the period between the demise of the "old" substantive due process and the birth of the "new"?the Court did not formally reject the principle of substantive due process; from time to time the Court inquired whether challenged legislation was consistent with the principle. But the Court's substantive due process review was so deferential to the legislation in question as to be largely inconsequential, as, for example, in WILLIAMSON V. LEE OPTICAL CO. (1955).

Then, in the mid-1960s, the Court changed direction. In GRISWOLD V. CONNECTICUT (1965) the Court relied on a constitutional RIGHT OF PRIVACY to rule that a state could not ban the use of contraceptives by married persons. In Eisenstadt v. Baird (1972), on EQUAL PROTECTION grounds, it ruled that a state may not ban the distribution of contraceptives to unmarried persons. Despite the rhetoric of the Court's opinions, there is no doubt that both were substantive due process decisions in the methodological (if not the rhetorical) sense: in each case the Court invalidated

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legislation that offended not any specific prohibition of the Constitution but simply the Court's views of the governmental policies asserted in justification of the states' regulations.

If any doubt remained about whether the Court had returned to substantive due process, that doubt could not survive the Court's decision in ROE V. WADE (1973), which employed substantive due process in both the rhetorical and the methodological senses. The Court ruled in Roe that the due process clause of the FOURTEENTH AMENDMENT prohibited a state from forbidding a woman to obtain an abortion in the period of pregnancy prior to the fetus's viability. Indeed, in Roe the Court applied a particularly strong version of the substantive-due-process requirement: because the criminal ban on abortion challenged in Roe abridged a "fundamental" liberty interest of the woman?specifically, her "privacy" interest in deciding...