Introduction

The Framers of the Constitution derived the Fifth Amendment’s Due Process Clause from the Magna Carta’s “law of the land” provision, which guaranteed English liberties.[1] Conversely, substantive due process, a considerable part of what the Due Process Clause is now, is not rooted in the text and history of the Due Process Clause. Instead, it is a judicially created principle established by judges in the 1940s who sought a way to apply the Fourteenth Amendment to the States.[2] Substantive due process prevents government interference with fundamental rights at the federal and state level through the Fifth and Fourteenth Amendments, respectively.[3]

The definition of fundamental rights includes implied rights that are not directly stated in the Constitution. For example, when examining American jurisprudence, the right to privacy was first recognized by the Warren Court in Griswold v. Connecticut.[4] The Fourteenth Amendment states, “nor shall any State deprive any person of life, liberty, or property, without due process of law.”[5] The definition and scope of the term “liberty” in the Amendment has long beenthe subject of debate. Griswold introduced the concept of “penumbra,” meaning partial shadow, to show how several amendments in the Bill of Rights cast a penumbra of the right to privacy and greatly expanded the scope of “liberty.”[6]However, the Roberts Court recently overturned a fifty-year precedent based upon the penumbra, in favor of a more conservative interpretation of the Due Process Clause.

This note examines the importance of the penumbra in constitutional interpretation from the Warren Court of the 1950s and 1960s to the present-day Roberts Court. Firstly, this note examines how the penumbral right to privacy led to the decisions of Griswold v. Connecticut,[7] and subsequently, Roe v. Wade[8] under the Burger Court, and Planned Parenthood of Southeastern Pennsylvania. v. Casey[9] under the Rehnquist Court. Secondly, this note analyzes how theRoberts Court’s shift toward the historical practices approach to constitutional interpretation aided in the overturning of Roe in Dobbs v. Jackson Women’s Health Organization.[10] It is through this analysis that this note considers whether the political nature of Dobbs contravenes the responsibilities of the Roberts Court. Finally, this note briefly discusses what the Dobbs decision could entail for the future of substantive due process.

The Penumbral Right to Privacy: Griswold v Connecticut

Griswold, the 7-2 decision authored by Justice William O. Douglas stated that the Court’s prior decisionssuggested the existence of penumbras in relation to the Due Process Clause of the Fourteenth Amendment:

Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.[11]

Griswold inferred a “zone of privacy”[12] within the Due Process Clause through the intersection of these constitutional guarantees. Justice Goldberg’s concurring opinion built upon the right to privacy. He used James Madison’s original proposal of the Ninth Amendment to reveal that the Framers of the Constitution believed there to be other fundamental rights not listed in the Constitution that were not to be denied.[13] Goldberg argued that certain standards should be used to determine fundamental rights, such as “‘the traditions and [collective] conscience of our people’ to determine whether a principle is ‘so rooted [there] ... as to be ranked as fundamental.’"[14] He found marital privacy to be, "a relation as old and as fundamental as our entire civilization,”[15] making it an undeniable fundamental right. While some embrace penumbral reasoning, many criticize it, particularly regarding Justice Douglas’ argument inGriswold, with both liberal and conservative scholars questioning the use of metaphoric reasoning in legal argument.[16] However, as the Framers of the Constitution did not define key terms, the text must be interpreted to apply to modernity, causing penumbral reasoning to be adopted by conservative and liberal judges alike.

Derived from the Penumbral Right to Privacy: Roe v. Wade

In Roe, Jane Roe filed a class action lawsuit challenging Texas law that outlawed abortion except when a doctor’s note indicated that the procedure would save the woman’s life.[17] On January 22, 1973, the Supreme Court decided 7-2 that a woman had the constitutional right to abortion. The Court put a trimester framework into place: the first allowing the woman full liberty to terminate the pregnancy, the second allowing the state to “regulate procedure,” and the third allowing the state to regulate or outlaw abortions based on the viability of the fetus except when necessary to preserve the mother’s life.[18] This decision reaffirmed the fundamental right to privacy, specifically the freedom from excessive government interference.[19] Justice Douglas, who authored the majority opinion in Griswold, concurred “the District Court in Doe[20] held that Griswold and related cases ‘establish a constitutional right to privacy broad enough to encompass the right of a woman to terminate an unwanted pregnancy in its early stages, by obtaining an abortion.’"[21]

The Roe decision, which established a woman’s right to abortion, was based on Justice Douglas’ penumbral reasoning from Griswold’s recognition of the fundamental right to privacy and was later upheld by Planned Parenthood of Southeastern Pennsylvania v. Casey.[22] This reasoning has faced much criticism from legal scholars throughout the years, many of whom support a woman’s right to choose.[23] It has further become the forefront of discussion leading to the Court’s overturning of Roe in 2022. With Roe and its progeny at the center of fifty years of legal precedent, the impact of this overturning will likely have far-reaching legal implications beyond the issue of abortion.            

A Shift from Penumbral Reasoning: Dobbs v. Jackson Women’s Health Organization                  

At issue in Dobbs was Mississippi’s Gestational Age Act, which bans all abortions over fifteen weeks except in medical emergencies or when the fetus exhibits severe abnormality.[24] The Roberts Court upheld the Act by a vote of 6-3. Five members of the Court also held that the right to an abortion is not protected by the Constitution, overturning Roe v. Wade and Planned Parenthood v. Casey. The majority noted that Roe was based on the penumbral right to privacy granted through the First, Fourth, Fifth, Ninth, and Fourteenth Amendments, criticizing the extent to which privacy constitutionally applies.[25]  When considering the scope of “liberty,” the majority examined whether the right to abortion had roots in the nation’s history and traditions, ultimately ruling that it did not.[26]

The overturning of Roe marks a shift in the Roberts Court’s approach to constitutional interpretation in comparison to the Warren Court. Unlike the Warren Court, which relied on penumbral reasoning, the Roberts Court favors the historical practices approach, which determines whether fundamental rights are explicitly mentioned in the text of the Bill of Rights or have a long history and tradition within American society.[27] This approach was hinted at inJustice Goldberg’s concurring opinion in Griswold v. Connecticut when he evaluated if marital privacy was fundamental. Although also following history, the majority in Dobbs abided by the framework under Washington v. Glucksberg[28] to examine the topic of abortion itself instead of classifying it under the sanctity of family matters: “that the Fourteenth Amendment ‘must be defined in a most circumscribed manner, with central reference to specific historical practices’— exactly the view today’s majority follows.”[29] This resulted in the consensus that the right to abortion alone does not dovetail with American tradition and history.

In the joint dissent, Justices Breyer, Sotomayor, and Kagan observed support for abortion rights during the Court’s stated timeframe, “embarrassingly for the majority—early law in fact does provide some support for abortion rights.”[30] Prior to the late 18th century, most American courts held in dictum that common law did not criminalize abortion pre-quickening, the time before the mother feels the first fetal movements in utero.[31] In the majority opinion of Dobbs, Justice Alito prefaces this reality, framing the argument around the fact that common law authorities Bracton, Coke, Hale, and Blackstone characterized post-quickening abortions as a crime, and that, “the fact that many States in the late 18th and early 19th century did not criminalize pre-quickening abortions does not mean that anyone thought theStates lacked the authority to do so.”[32]  The majority’s decision to rely on a historical approach while extensive inconsistencies in early abortion law exist prompted the dissent to voice their concerns, “the Court reverses course today for one reason and one reason only: because the composition of this Court has changed.”[33]

The Roberts Court’s selective use of history garnered further backlash. Immediately following the decision, Professor Emeritus Laurence H. Tribe of Harvard Law School and one of the nation’s leading constitutional scholars, characterized the ruling as, “a devastating blow to the idea that the Constitution was not frozen in the early 19th century.”[34] The law on which Dobbs relies originates before the Nineteenth Amendment when women were pigeonholed into homemaking and child-rearing. Dobbs fails to consider the historical under-representation of women in the political system and the resulting deprivation of rights that women faced in comparison to those in authority. The refusal to acknowledge the intersection of history rooted in inequality and the limitations on the right to an abortion call into question the motives of the Court.

The political issue with the Roberts Court’s shift toward history is not its reliance on incorrect history but rather the subjective nature of history itself. As a field of study, history is a complex web of causes and effects, resulting in a plethora of conflicting documents. When the Roberts Court adopted the historical practices approach, it chose to be historically selective, a practice known as “law office history.”[35] This highlights the inherent imperfection of this method of constitutional interpretation. Overturning half-century-old precedent based on a structurally flawed approachindicates that the Roberts Court may be acting in a political manner, using the guise of history to mask its political motives.

Substantive Due Process and the Penumbral Right to Privacy: Post-Dobbs                         

While Justice Alito’s majority opinion in Dobbs stated that the majority’s decision does not threaten other substantive due process decisions,[36] Justice Thomas’ concurring opinion suggests otherwise: “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence,[37] and Obergefell.[38] Because any substantive due process decision is demonstrably erroneous, we have a duty to correct the error established in those precedents.”[39]

Justice Thomas’ opinion illuminates that he does not acknowledge the legitimacy of the substantive due process principle or the penumbral right to privacy in Roe and subsequent cases. Although he is known for his more conservative views and originalist approach with respect to constitutional law, Thomas believes that Dobbs establishes that substantive due process, which protects the right to “liberty,” as previously understood to include the right to privacy, needs to be re-evaluated. If the Roberts Court revisits cases based on the precedent set in place by Roe, then the right to contraception, same-sex intimacy, and same-sex marriage, all of which base their reasonings on the penumbral right to privacy, have the potential to be overturned.

The joint dissenting opinion of Justices Kagan, Sotomayor, and Breyer expresses these pressing concerns. They explained that, under Justice Thomas’ rationale, all rights not directly listed in the Constitution and that do not have a history in the 19th century are at risk, or if

otherwise as claimed by Alito, the Court majority can be charged with hypocrisy in their reasoning of Dobbs.[40]

This raises the question: Does the Dobbs decision signal the end of the penumbra? I conclude the contrary. The Constitution’s terminology lacks set definitions, making the penumbra a necessary tool for interpretation. Secondly, although the Roberts Court is expected to follow a stricter interpretation of substantive due process, there are not five judges on the Court who are willing to overrule all penumbral privacy rights precedents. Thirdly, as modern issues not delineated in the Constitution arise, the Court will again encounter penumbras.

The Warren Court to the Roberts Court: Looking Forward

From Griswold to Dobbs, it is evident that the Warren Court and the Roberts Court hold differing opinions on substantive due process and the penumbral right to privacy. When considering what substantive due process might look like post-Dobbs, one might consider legal realism,[41] as conservative or liberal supermajority can push toward the political. It is evident that the Roberts Court leans toward the historical practices approach when interpreting theConstitution, while the Warren Court relied heavily on penumbral reasoning. In the 1950s and 60s, Chief Justice Warren used his position to push for social change, along with eight other New Deal liberals. Today, the Roberts Court is considered the most conservative Supreme Court since the Vinson Court of the early 1950s.[42]

Justice Thomas’ concurring opinion indicates that substantive due process has the potential to look different in a post-Dobbs world. Looking toward the future of substantive due process, three questions arise: (1) What effect will Dobbs have on other rights under the fundamental right to privacy?  (2) Almost all forms of constitutional interpretation garner criticism; is there a true apolitical or standardized method that the Supreme Court should subscribe to wheninterpreting the Constitution? (3) Will a future liberal-leaning Supreme Court reinstate Roe?

[1]Timothy Sandefur, In Defense of Substantive Due Process, or the Process of Lawful Rule, Harvard Journal of Law and Public Policy, 288 (2013)

[2] G. Edward White, The Constitution and the New Deal, 258–59 (2000) (“The term ‘substantive due process’ appeared in four cases between 1935 and 1946, once in an argument by counsel in a Supreme Court case and three times in lower federal court opinions. By the early 1950s the term ‘substantive due process’ had been employed twice in Supreme Court opinions . . . involv[ing] challenges based on incorporated Bill of Rights provisions.”)  

[3]  Legal Information Institute, Substantive Due Process, Cornell Law School, https://www.law.cornell.edu/wex/substantive_due_process (last visited November 23, 2022)

[4]  Griswold v. Connecticut, 381 U.S. 479, 479 (1965)

[5] U.S. Const. amend. XIV, § 2

[6]  Griswold, 381 U.S. 479 at 479

[7] Id.

[8] Roe v. Wade, 410 U.S. 113 (1973)

[9]   Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)

[10] Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022)

[11] Griswold, 381 U.S. 479 at 484

[12] Id. at 485

[13] Id. at 479

[14] Id. at 493, quoting Snyder v. Massachusetts, 291 U. S.97, 105

[15]Id. at 496 (Goldberg, J., concurring)

[16] See Robert H. Bork, Tempting of America: The Political Seduction of the Law, 99 (1990) (asserting that "the nature of [the reasoning Griswold created], its lack of rationale or structure, ensured that it could not be confined")

[17] Roe v. Wade, 410 U.S. 113 (1973)

[18] Id. at 114

[19] Id.

[20] Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739 (1973) (overturned the abortion law of Georgia that restricted the reasons women could seek abortions)

[21] Roe, 410 U.S. 113 at 153

[22] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 837 (1992) (“To protect the central right recognized by Roe while at the same time accommodating the State’s profound interest in potential life, the undue burden standard should be employed. An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability”)

[23] Meredith Heagney, Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit, The University of Chicago Law School (May 15, 2013), https://www.law.uchicago. edu/news/justice-ruth-bader-ginsburg-offers-critique-roe-v-wade-during-law-school -visit#:~:text=“Roe%20isn%27t%20really%20about,it%20was%20physician%2Dcentered

[24] Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 1 (2022)

[25] Id. at 2

[26] Id. at 25

[27] Brandon J. Murrill, Modes of Constitutional Interpretation, Congressional Research Service, 22 (2018)

[28] Washington v. Glucksberg, 521 U. S. 702 (1997)

[29] Dobbs, 142 S. Ct. 2228 at 17, quoting Washington v. Glucksberg, 521 U. S. 702 (1997)

[30] Dobbs, 142 S. Ct. 2228 (Breyer, Sotomayor, Kagan, JJ., dissenting)

[31] Commonwealth v. Bangs, 9 Mass. 387, 388 (1812); Commonwealth v. Parker, 50 Mass. (9 Metc.) 263, 265-266 (1845); State v. Cooper, 22 N.J.L. 52, 58 (1849); Abrams v. Foshee, 3 Iowa 274, 278-280 (1856); Smith v. Gaffard, 31 Ala. 45, 51 (1857); Mitchell v. Commonwealth, 78 Ky. 204, 210 (1879); Eggart v. State, 40 Fla. 527, 532, 25 So. 144, 145 (1898); State v. Alcorn, 7 Idaho 599, 606, 64 P. 1014, 1016 (1901); Edwards v. State, 79 Neb. 251, 252, 112 N.W. 611, 612 (1907); Gray v. State, 77 Tex.Crim. 221, 224, 178 S.W. 337, 338 (1915); Miller v. Bennett, 190 Va. 162, 169, 56 S.E.2d 217, 221 (1949). Contra, Mills v. Commonwealth, 13 Pa. 631, 633 (1850); State v. Slagle, 83 N.C. 630, 632 (1880)

[32] Dobbs, 142 S. Ct. 2228 at 3

[33]  Id. (Breyer, Sotomayor, Kagan, JJ., dissenting)

[34] Isabella Cho & Brandon Kingdollar, After Roe Dismantled, Harvard Experts Condemn, Defend Landmark Decision, The Harvard Crimson (June 25, 2022), https://www.thecrimson.com/article/ 2022/6/25/dobbs-experts-reax/

[35] See Jack M. Balkin, Lawyers and Historians Argue about the Constitution, Constitutional Commentary, 345 (2020)

[36] Dobbs, 142 S. Ct. 2228 at 63-66

[37] Lawrence v. Texas, 539 U.S. 558 (2003) (a Texas law criminalizing consensual, sexual conduct between individuals of the same sex violates the Due Process Clause of the Fourteenth Amendment)

[38] Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (the Fourteenth Amendment requires states to license and recognize same-sex marriage)

[39] Dobbs, 142 S. Ct. 2228 (Thomas, J., concurring)

[40] Id. (Breyer, Sotomayor, Kagan, JJ., dissenting)

[41] Legal Information Institute, Legal Realism, Cornell Law School, https://www.law.cornell.edu/wex/legal_realism (last visited December 23, 2022) (“A theory that all law derives from prevailing social interests and public policy”)

[42] See Stephen Jessee, Neil Malhotra & Maya Sen, Opinion | The Supreme Court is Now Operating Outside of American Public Opinion, Politico (July 19, 2022), https://www.politico.com/news/ magazine/2022/07/19/supreme-court- republican-views-analysis-public-opinion-00046445