Abortion ruling by Supreme Court sparks closer scrutiny of substantive due process


Publish Date:
June 30, 2022
ABA Journal
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Jane S. Schacter, a professor at Stanford Law School, says Alito embraces one distinct line of substantive due process doctrine from the Glucksberg case that is divergent from views expressed by Justice Anthony M. Kennedy in his majority opinions in Lawrence and Obergefell: that history and tradition guide the inquiry over the contested right, but views of the time of the adoption of the 14th Amendment in 1868 do not “rule the present.”

“These two lines had fundamentally different approaches to liberty,” Schacter says. “The Dobbs opinion, though, is very categorically saying the court is going with the Glucksberg version.”

Something short of overruling precedents could be significant

Schacter agrees, saying that “the shelf life of those assurances may not be long.”

“In the near term, I wouldn’t expect them to do anything with those precedents,” she says. “In the longer term, I would say all bets are off.”

Bernick, Marcus, and Schacter all said they doubted that Thomas would conclude that the privileges or immunities clause would encompass LGBTQ rights or a right to contraception.

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