The Peoples’ Constitution: Due Process, Privacy and Abortion

By Ben Lenhart

Recently I was fortunate to visit the ancient Temple Church in London, built in the 12th century by the Knights Templar. The church is relevant here because it was the location of one of the earliest demands for due process of law. In January 1215, a group of English barons confronted King John and asked that he recognize certain fundamental rights. Among those was the great right of due process: the barons demanded that the crown not imprison them or take their property without first following the customary legal procedures that were “due” to them. Six month later, at Runnymede, the King agreed to the Barons’ demands and signed the Magna Carta.

Skip forward 800 years, and we find the notion of “due process” deeply embedded in the American Constitution. The Fifth Amendment forbids the federal government from depriving any person of “life, liberty or property without due process of law,” while the 14th Amendment applies due process to the States. Why do we have two due process clauses in the Constitution? While the federal government was seen as the main threat to liberty when the Fifth Amendment was ratified in 1791, the state governments came to be seen as the greatest threat to liberty—especially for newly freed slaves—following the Civil War when the 14th Amendment was passed.

Procedural and Substantive Protections. Due process protects Americans in two ways. First, it requires basic procedural safeguards: usually including a hearing (or trial) in front of an impartial decision-maker before any “life, liberty or property” can be taken away. This is procedural due process. Second, due process has a substantive component, which protects certain rights as fundamental. These “substantive due process” rights have extremely strong protection again any government effort to infringe them.

But this raises the key question: Which rights are protected by substantive due process? A big part of the answer is the Bill of Rights—the first ten Amendments—which includes freedom of speech, freedom of religion, the right to bear arms, etc. All of these familiar rights are protected by substantive due process. But what else? Are there rights beyond the Bill of Rights that enjoy this special Constitutional protection? The Ninth Amendment states that the listing of certain rights in the Constitution “shall not be construed to deny or disparate others retained by the People.” While these “unidentified” yet fundamental rights exist, the problem lies in how to identify them without trampling democracy. We turn to a few examples below.

Freedom of Contract. For many decades in the early 1900s, the courts ruled that freedom of contract was one of those “unwritten” fundamental rights protected by due process even though it was not listed in the Bill of Rights. In the infamous Lochner case, the Supreme Court struck down a law aimed at protecting certain workers’ health and safety by limiting work to a maximum of 60 hours a week. The Court focused on the “liberty” protected by the due process clause, and said this law was an unreasonable “interference with the right and liberty of the individual to contract.” During the Lochner era, the Court used “freedom of contract” to strike down scores of New Deal laws and its actions were seen as blocking efforts to recover from the Great Depression.

A minority of the Court, led by Oliver Wendell Holmes, strongly disagreed with the Lochner majority and argued that the Constitution did not mention, much less adopt, freedom of contract or any particular economic system. The dissent eventually won out, and Lochner was discredited. But Lochner’s “baggage”—the danger of a “too powerful” Court declaring new fundamental rights under the due process clause, even when those rights are not expressly listed in the Constitution—carried over to the later privacy cases leading up to Roe v. Wade.

Privacy. Though a series of cases prior to Roe v. Wade, the Supreme Court held that privacy was so important that it qualified as one of those fundamental rights protected by substantive due process. The Court found a number of areas protected by the “right to privacy.” Examples include: the right to choose one’s associates and to be free from forced associations; the right of parents to teach their values to their children as they saw fit; the right against forced sterilization; and the right to be free from intrusive government searches (partly established in the Fourth Amendment). In the pivotal case of Griswold, the Court discussed privacy head on. There, Connecticut passed a law banning the use of contraception by married couples. Because the Griswold Court did not want to follow the discredited Lochner ruling—which focused directly on “liberty” in the due process clause—it focused instead on other sources in the Constitution and in prior cases. In so doing it found support for a fundamental right to privacy. In striking down the Connecticut law, the Court concluded:

            “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. We deal with a right of privacy older than the Bill of Rights . . .”

Most of the “privacy” rights found by the Court are not listed in the Constitution, and yet the Court—using substantive due process—has elevated these rights to Constitutionally protected status. While many agree with these privacy rights, others express concern that the Court has too much power when it can “create” or “find” Constitutional rights not listed in the Constitution.

Abortion. First, a clarification: this article does not address the religious, moral and social aspects of the abortion issue. Rather, it addresses only the narrow—but still vitally important—question of how the courts have applied the Constitution to the abortion issue. Roe v. Wade involved a Texas law banning all abortion unless needed to save the life of the mother. At the time of Roe (1972) a number of states banned abortion while others permitted it to varying degrees. Texas argued that a nearly complete ban was needed for several reasons, including medical safety and the protection of pre-natal life. “Roe” (real name: Norma McCorvey) argued that the fundamental right of privacy found in earlier cases—and protected by substantive due process—included the right of a women to decide whether to have an abortion. While a split decision, the court sided with Roe on the key issue, stating:

“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action [or] in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

However, noting that due process protects not just “liberty” but also “life,” the Roe court also recognized the importance of Texas’ arguments, stating that:

“With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability. … If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.”

In Planned Parenthood v. Casey, 20 years after Roe, the Court formalized this pre- and post-viability distinction, holding that: (a) pre-viability, a state can regulate abortion so long as it does not impose an “undue burden” and (b) post-viability, the states can, if they choose, ban abortion. Casey remains the basic legal framework today.

Conclusion. Using substantive due process, the Supreme Court has identified a number of fundamental rights—some of which are described above—that are not listed in the Constitution but that are deemed “fundamental” and entitled to the strongest Constitutional protection against infringement by the government. However, as these rights are not listed by name in the Constitution, the ability to identify these rights gives the Court tremendous power and requires eternal vigilance by the other branches of government and by “we the people” in order to ensure that such an awesome power is not abused.


Ben Lenhart is a graduate of Harvard Law School and has taught constitutional law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.


One thought on “The Peoples’ Constitution: Due Process, Privacy and Abortion

  • 2018-04-03 at 3:36 am

    So how did Blackmun come to decide quite wrongly that the unborn are not “persons” within the meaning of the due process clause of the Fourteenth Amendment and, thus, not entitled to the right to life?
    The short answer is that Blackmun corrupted the language of the Constitution, restricting the term “persons” to the already-born, to “ourselves” only and removing “our posterity” from constitutional protection on the newly invented grounds that the unborn are part-persons/part property—”not persons in the whole sense” until they are born.

    Ideological corruption set in.

    Almost 20 years later in Planned Parenthood v. Casey (1992), the Supreme Court majority opinion’s author, Justice Anthony Kennedy claimed:

    “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

    In a concurring opinion in Casey, Justice Blackmun wrote of “two approaches” to abortion that were “worlds apart.” Blackmun did not mention, however, that he himself had ushered in the corrupt world of Roe. This brought us eventually to “the right to define one’s own concept of existence”, a bogus world in which mothers are held to have no natural or legal obligation to care before birth for their thriving little daughters or sons while being protected and nurtured naturally and gently in their wombs.

    Arkansas abortionist, Dr William Harrison gave succinct expression to this flawed but common defense by doctors who perform abortions relying on a subjective definition of the humanity of their victim/patient:

    ” It’s not a baby to me until the mother tells me it’s a baby. ”

    This is hardly a coherent statement, unless one is a devotee of narcissistic subjectivity.

    Advocates for “abortion rights” continue to reject nature and the natural order of things, asserting that the mother must be free throughout pregnancy to “choose’” some of her obligations and to default on others. Her tiny daughter or son is accused of “invading” her bodily integrity and requires her permission to continue her/his ”occupation” until birth. Natural maternal moral obligations are dismissed as tyrannical and the natural maternal duty of care is ideologically reconstructed as an option, a ‘choice’.

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