News Analysis: Liberty, privacy and women’s equality at stake in abortion decision

The constitutional promise that the U.S. Supreme Court is about to reinterpret and restrict in its abortion decision is the deepest well of individual freedom, autonomy and privacy in the Constitution. It doesn’t just protect women. It protects everyone.

For that reason, the leaked draft opinion by Justice Samuel Alito raises questions about whether that well of freedom – the liberty protected by due process of law – will continue to protect same-sex marriage, consensual sexual relations by same-sex partners and contraceptives that some view as abortifacients.

Justice Alito, apparently to head off political blowback, ensured in his draft that “our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Nevertheless, the legal reasoning he used to read the abortion right out of the Constitution is just as applicable to other rights. Alito stated that the only liberty rights protected by the Constitution are those “‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’”

Clearly same-sex marriage and consensual same-sex relations do not meet that test because no state had legalized same-sex marriage before 2000 and many states criminalized consensual sexual relations between same-sex couples as late as 2003.

Nothing but public opinion could stop the Supreme Court majority from rolling back those rights based on the reasoning in the Alito opinion.

Understanding the implications of the Alito draft, requires a trip through history that is not part of the public debate and requires a deeper dive than most media provide.

Wellspring of freedom and equality

The 14^th Amendment was added to the Constitution as a result of the Civil War. The returning Confederate states had to ratify it to reenter the union. Some legal scholars have called it a second constitutional convention of sorts because of the way it expanded constitutional protection with such capacious words as liberty and equal protection. Before the 14^th Amendment, the Constitution had no protection for equality, despite the inspiring words of the Declaration of Independence.

The key words of the 14^th Amendment provide that no state shall “deprive any person of life, liberty, or property, without due process of law, nor deny any person within its jurisdiction the equal protection of the laws.”

These promises of liberty and equality eventually remade the country. They protect interracial marriage, same-sex marriage, private same-sex sexual relations, a woman’s access to birth control, the right of a prisoner to marry, a family’s decision to bring relatives into their home, a family’s decision to send a child to a parochial school, the right of a public school teacher to teach an unpopular subject such as German and a person’s right not to be forcibly sterilized.

The Supreme Court also has interpreted the liberty protected by due process to incorporate nearly all of the freedoms of the Bill of Rights – the other great wellspring of freedom in the Constitution. Before the 14^th amendment, the Bill of Rights only applied to the actions of the federal government, not the states. So states could willy-nilly violate rights named in the Bill of Rights. And they did.

In the 150 years since the 14th Amendment was ratified in 1868, its most powerful words – liberty, due process and equal protection – have become the constitutional foundation of more individual rights than the rest of the Constitution combined. They also have become the basis of protecting individual privacy, which is not explicitly protected in the Constitution.

In short, a lot of freedom Americans take for granted rests on liberty protected by due process.

19^th century court reads rights out of 14^th Amendment

The expansion of these rights has mostly been in the past 60 years. It certainly did not occur right away. Instead, the Supreme Court read much of the meaning out of the words liberty, equal protection. It said equal protection did not give Illinois women like Myra Bradwell the right to practice law or women like Virginia Minor of St. Louis the right to vote. And it ruled separate but equal was equal enough.

It wasn’t until the more liberal Warren Supreme Court of the 1950s and 60s that legal segregation was eliminated and it wasn’t until Ruth Bader Ginsburg’s landmark sex discrimination cases of the 1970s and beyond that equal protection began ending sex discrimination.

Another part of the Supreme Court’s dark history of interpreting the 14^th Amendment was the so-called Lochner era during the Gilded Age around the 1900s when the Supreme Court said the liberty protected by due process invalidated child labor and minimum hour laws because they interfered with the right of workers and employers to contract freely. Of course, the freedom to contract was actually the freedom of the employers to exploit workers.

Alito, in his draft, points to the Lochner era as an example of why the liberty protected by the 14^th amendment should be limited. This has long been a debating point used by conservative judges to undermine the argument for the constitutional protection of abortion, birth control, same-sex marriage and similar rights.

Alito wrote that, “Substantive due process” – the legal term for protecting substantive liberty rights under the due process clause – can be “treacherous” and lead the court to “usurp” elected officials. He took that quote from a Supreme Court decision in favor of an East Cleveland family who wanted to allow two cousins to live under the same roof even though municipal housing laws made it illegal.

Alito’s draft omitted the court’s language from a few pages earlier in the East Cleveland opinion. There the court cited Roe v. Wade for the settled proposition that: “This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”

Alito argued in his draft that liberty protected by due process should be limited to those ‘deeply rooted in this Nation’s history and tradition” and ‘implicit in the concept of ordered liberty.”

He said the nation must “guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans enjoy.”

And he ridiculed as too broad the reasoning of the 1992 Casey decision in which two justices appointed by Ronald Reagan and one by George H. W. Bush – O’Connor, Kennedy and Souter – joined liberals in reaffirming the abortion right. That decision was based on “freedom to make “intimate personal choices” “central to personal identity and autonomy. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life.”

Casey also added an equality dimension that was missing in Roe, stating that control of reproduction was necessary for women “to participate equally in the economic and social life of the nation.”

Women missing

Alito countered with the argument of anti-abortion forces that “modern developments” in society’s attitude toward women make these equality arguments outmoded, arguing that “…attitudes about the pregnancy of unmarried women have changed drastically; that federal and state laws ban discrimination on the basis of pregnancy, that leave for pregnancy and childbirth are now guaranteed by law in many cases, that the costs of medical care associated with pregnancy are covered by insurance or government assistance; that States have increasingly adopted safe haven laws, which generally allow women to drop off babies anonymously; and that a woman who puts her new-born up for adoption today has little reason to fear that the baby will not find a suitable home.”

A controversial footnote that Alito added, quotes the Centers for Disease Control and Prevention  stating that “the domestic supply of infants relinquished at birth or within the first month of life and available to be adopted had become virtually nonexistent.”

Legal commentator Emily Bazelon of The New York Times wrote that Alito’ draft decision was ignoring the reality of a woman’s life. Quoting from an amicus brief by economists, she wrote: “Pregnant people are still denied accommodations at work, despite a 1978 law that’s supposed to protect them from discrimination. Women still experience an economic ‘motherhood penalty.’ And the financial effects of being denied an abortion…are ‘as large or larger than those of being evicted, losing health insurance, being hospitalized or being exposed to flooding’ resulting from a hurricane.”

Linda Greenhouse, the Times’ long-time Supreme Court reporter, wrote in a companion article that she was shocked that women were almost entirely absent in the Alito draft.  It is “astonishing that in 2022 he would use his power to erase the right to abortion without in any way meaningfully acknowledging the impact both on women and on the constitutional understanding of sex equality as it has evolved in the past half-century,” she wrote.

Tricky history

Women were entirely absent at the Constitutional Convention in 1787 and the post-Civil War Congress that wrote the 14^th Amendment.

The 14th Amendment is full of landmines for originalists, like Alito and others in the possible conservative majority, who base their interpretations on the original meaning of the text.

At the time the 14 Amendment was ratified, it did not protect the equal rights of women or the rights of Blacks and whites to live in a racially integrated society with integrated schools, restaurants, hotels and public accommodations. Certainly, the authors of the 14^th Amendment had no notion of protecting interracial marriage – which Lincoln himself had ridiculed during the Lincoln-Douglas debates. And the thought of the amendment protecting same-sex marriage may not have entered the drafters’ minds.

Alito devotes a long section of his opinion to the history of the law on abortion dating back to Medieval times. He claims that at the time the 14^th Amendment was ratified 28 out of 37 states made abortion illegal. But some historians have already challenged that tally. A better number would be 16 out of 37, writes Alan Tang in an opinion article in the Los Angeles Times. A Reuters story picks up Tang’s criticism.

Tang points out that at the founding in 1787, common law distinguished between abortions before and after “quickening” – the time about 15 weeks into pregnancy when a woman can feel movement by a fetus. Those states with criminal abortion laws applied them only after quickening. A majority of the states did not criminalize abortion before quickening when the 14^th Amendment was written, Tang wrote.

Law professors also have noted that Benjamin Franklin published a widely circulated book that recommended using the herb angelica to terminate a pregnancy.

The Alito draft allows states to prohibit abortion “at all stages of fetal life.” That language is broad enough to allow legislators to ban all abortions after conception, and it would allow legislators to refuse to recognize exceptions for rape, incest and the health of the mother. 

Missouri’s trigger 

Missouri’s trigger law banning abortion if Roe is overturned has none of these exceptions, only allowing abortion for the life of the mother. The wording also would arguably criminalize contraceptives viewed by legislators as abortifacients. 

After the Alito draft leaked, former Sen. Clare McCaskill tweeted, “In MO the moment Roe falls, law will dictate the following: life begins at conception, all termination of that life…even morning after pill, IUD will be illegal.”

The Kansas City Star wrote a fact check story knocking down parts of McCaskill’s tweet: “No, Missouri’s abortion ‘trigger’ law doesn’t ban Plan B, birth control or IVF, experts say.” It based its conclusion on a Planned Parenthood tweet stating: “Birth control does not meet the criteria for the definition of abortion under MO law. Since birth control prevents pregnancy (and does not end an existing pregnancy), overturning #Roe will not block access to birth control.”

But Saint Louis University law professor Marcia McCormick, who provided St. Louis Public Radio’s Sarah Fenske with a nuanced explanation of the law, pointed out that zealous prosecutors could push the boundaries.

First, the life of the mother exception is exceptionally narrow and includes only imminent death or risk of “irreversible physical impairment of a major bodily function.”  “The doctor has to do more than just believe that death is imminent, or that the serious impairment of a major bodily function is imminent,” McCormick explained.  “That belief has to be reasonable so most other doctors would have to agree.”

Second, even though the law explicitly says the woman involved cannot be prosecuted, only those inducing an abortion, what if the woman herself induces an abortion? “If a woman, for example, induced an abortion herself by taking an abortion-inducing drug, it’s not clear under the statute that she couldn’t be prosecuted,” McCormick said. 

Third, the law could outlaw IUDs and even Plan B, the morning after pill. “Pregnancy is defined as fertilization rather than the implantation of a fertilized egg and some descriptions of birth control say….they may prevent implantation of a ferterlized embryo and if they prevent implantation then that counts as a device that causes an abortion under the definitions in this statute,” said McCormick. “And Plan B, that’s part of the (FDA label) description of how it might work.”

Planned Parenthood is smart to argue on behalf of its patients that birth control isn’t covered, she added, “but that is not necessarily a representation of what someone like our attorney general would argue.” Missouri Attorney General Eric Schmitt already has announced he will immediately move to put the trigger law into effect if Roe is overturned.

McCormick suggested that some parts of the IVF process could come under attack due to the language in the Missouri law. “A creative prosecutor might make arguments about what exactly counts as life based on other definitions in the statute that say that a human being that deserves protection by law is created at fertilization.”

Nor is it clear whether a woman’s constitutional right to contraception would withstand Alito’s reasoning. In Griswold v. Connecticut in 1965, the Supreme Court said a married woman’s right to privacy protected her right to obtain contraceptive information, despite the Comstock law that Connecticut and many other states had passed in the wake of the Civil War – at about the same time as the criminal abortion laws referred to by Alito. 

But in Griswold there wasn’t a majority for where the privacy right comes from in the Constitution. Justice William O. Douglas said it was to be found in the penumbra of several amendments in the Bill of Rights, such as the ban on unreasonable searches. That penumbra opinion has been ridiculed widely, leaving the only basis of privacy in the  liberty protected by due process – the language Alito is narrowing.

To ease fears that the opinion will be extended to contraception and same-sex rights, Alito points out that abortion is a unique situation where a “potential life” is involved and therefore particularly vulnerable to a reinterpretation.

But critics note that there is far less support in history for same-sex marriage and consensual same-sex relations in private than there is for permitting early term abortions.

William H. Freivogel is publisher of GJR and covered the U.S. Supreme Court for the St. Louis Post-Dispatch. He is a member of the Missouri Bar.