A draft opinion of the Supreme Court in Dobbs v. Jackson Women’s Health Organization was leaked late Monday and seems to show that the court is going to overturn Roe v. Wade, the landmark 1973 case that upheld a right to abortion access.
The opinion would put into caselaw a long-circulating conservative idea: that Roe v. Wade was decided incorrectly and should be overturned because it relies on an implied right to privacy found in the Fourteenth Amendment. This right, which has been extended to other matters including same-sex marriage in Obergefell v. Hodges originated in the 1965 case Griswold v. Connecticut and hinges on a single word: liberty.
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.Fourteenth Amendment to the United States Constitution
The second clause of the second sentence of the first section, quoted above, is known as the Due Process Clause. Beginning in 1954, the court took a broad view of its protection of liberty, holding that “that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective.”
It might sound contradictory if you’ve seen their T-shirts and campaign slogans, but conservatives have long disliked the Constitution’s protections of personal liberty. Why? Because personal liberty gives people the freedom to oppose conservative ideology. Griswold struck down a Connecticut law banning birth control, for example, on the grounds that the state had no proper governmental objective to do so. In 2003, the court found that Texas’ anti-sodomy law violated the right to privacy, a right that Justice Alito now says isn’t written into the Constitution. And he’s right, but then, there’s no right to own stocks, either. There’s a right to property, and perhaps a company share is a kind of property, such as privacy is a kind of liberty, but if we’re going to be such strict constructionists that we can’t even allow categorization then surely the Constitution does not say you can own stock.
Though the phrase “life, liberty, and the pursuit of happiness” is closely associated with American civic values, it comes from the Declaration of Independence and not the Constitution. In other words, they’re nice words, but not legal words. But these are: you have a constitutional right to life, liberty, or property, which cannot be taken from you except by due process of law.
In stripping away the abortion protections of Roe – and, you can be assured, the same-sex protections of Lawrence and Obergefell and any other privacy right hitherto protected under the Fourteenth Amendment – conservatives are making the case for a very specific reading of liberty. In this lexicon, liberty means the right to love America and nothing else. It is the very opposite of liberty, a constitutional obligation to be obedient to an unflinching and unchanging vision of America.