“In a later case, the state says marriage procreation are basic civil rights of man.”Ĭases based in substantive due process continued into the modern era, when in 2003 the court invalidated anti-sodomy statutes in Lawrence v Texas and established a right to same-sex conduct. “These rights of parental autonomy are underpinnings of the right to privacy marriage is included in this,” said Murray. In 1973, the court recognized a right to terminate a pregnancy.
In 1972 in Eisenstadt v Baird, the court found people who were not married also had a right to birth control. In 1967 with Loving v Virginia, the court invalidated anti-miscegenation laws that barred interracial marriage. For example, in 1965 the court struck down birth control bans for married couples in Griswold v Connecticut. Those are rights established by substantive due process. “There’s the rights spelled out in the text of the constitution,” such as rights to bear arms or against unreasonable search and seizure, “and there’s other rights, like the right to marry and the right to parent that are not in the text of the constitution”. “If you ask where rights come from in the US constitution there’s basically two general answers,” said Mary Ziegler, a law professor at Florida State University and a historian who has studied abortion rights since Roe v Wade. The theory underlying that right to privacy is called “substantive due process”, or the doctrine that the constitution protects both the procedures of due process, such as how criminal law is applied, and “substantive” guarantees of life, liberty and property. “It’s grounded on abstract concepts that this court has rejected in other contexts as supplying a substantive right”. “A right to abortion not grounded in the text,” said Stewart. That argument could be paired with one pushed forward by conservatives, such as Mississippi solicitor general Scott Stewart, who argued a right to abortion is not grounded in the “history or tradition” of the country. “If we’re talking about the fourth amendment, I know what we’re talking about because it’s written. “If we were talking about the second amendment, I know exactly what we’re talking about,” said Thomas. Some, such as Justice Clarence Thomas, were skeptical there is a right to privacy and were swayed by the lack of an explicit reference to the right in the constitution, a concept known as “textualism”. In arguments, justices pointed to several ways they may reinterpret the Roe v Wade decision. But at the hearing on 1 December, a majority of justices appeared ready to uphold Mississippi’s law, which would require either invalidating the “viability” standard or overturn Roe v Wade entirely. “You don’t need the state to recognize them because they are vested in you by virtue of being a human.”Ĭurrently, states are prevented from banning abortions before a fetus can survive outside the womb, a concept known as “viability”. “All of this has been implied because they’re understood to be core, basic human rights,” said Murray. Gay rights, contraceptives, certain fertility treatments and even interracial marriage, “are imperiled because they’re all rooted in that right to privacy”, Melissa Murray, a law professor at New York University law school and an expert in constitutional, family and reproductive rights law, told the Guardian.
Legal scholars warned that the impacts of such a move would likely be widespread, because abortion rights are rooted in the same implied constitutional right to privacy that is the foundation for other intimate personal decisions Americans now take for granted.
A decision in the Dobbs case is expected June 2022.Īlthough supreme court opinions are notoriously difficult to predict, a majority of justices on the conservative-leaning court appeared inclined to severely curtail or overturn Roe v Wade, which protects abortion rights in states hostile to the procedure. The Mississippi case is widely regarded as the most important abortion rights case since Roe v Wade, when the supreme court effectively legalized abortion nationally in 1973.