The Interconnectedness of the Dobbs Decision and Substantive Due Process: A Discussion with Professor James Fleming

The Supreme Court’s recent overruling of Roe v. Wade sparked a turbulent political wave, according to James Fleming.

“I heard the roar of a wave that could drown the whole world of basic liberties protecting personal autonomy and bodily integrity,” said Fleming, the honorable Paul J. Liacos Professor of Law at the Boston University School of Law.

The Center for Human Rights and International Justice hosted the Wednesday panel at Boston College Law School, which focused on Fleming’s most recent book, Constructing Basic Liberties: A Defense of Substantive Due Process, as well as the Dobbs v. Jackson Women’s Health Organization decision.

Katharine Young, a law professor at BC and panelist, touched upon the rights that she said the Dobbs decision—which ruled that the U.S. Constitution does not ensure a federal right to abortion—has taken away from women.

“The Supreme Court removed the protection of access to abortion as it had been protected by past precedents, including the Roe decision, and therefore took away important privacy and equality rights for women, a result which will particularly impact poor women, Black women and other women of color, and underrepresented women and trans people,” she said.

The effects of the Dobbs decision have already started to spark change throughout the United States, according to Young.

“We’ve been in at least 18 states which have now banned access to abortion—where there are now 13 full bans and five bans with gestational limits,” Young said. “Eight bans have been blocked at the moment.”

Cathleen Kaveny, the Darald and Juliet Libby Professor of Law and Theology at BC, then posed a question about when the Supreme Court will address a constitutional right to privacy again.

“When do the people or the justices get a second bite at the apple with respect to the identification of a right Dobbs took away: the constitutional right to privacy that protects the right to abortion?” Kaveny asked.

Fleming tied the conversation back to his book, connecting the overturning Roe v. Wade to the concept of substantive due process and personal liberties.

“Substantive due process involves interpreting the commitment to liberty in the Due Process Clause to protect basic liberties or fundamental rights, those essential to the scheme of ordered liberty and our constitutional democracy,” Fleming said.

Ryan Williams, an associate law professor at BC, further argued that the political right views substantive due process as lawless or too radical.

“Most of the decisions that have come out in favor of individual rights tend to be those preferred by progressives, the legal left,” Williams said. “Those that are opposed tend to cluster around the political right. We should not be surprised, necessarily, that we see political movements on the right organized around and against the concept of substantive due process.”

Fleming described this concept in relation to the current Supreme Court justices and their perspectives on abortion.

“Now in Dobbs, the new conservative majority, including three nominees for President Donald Trump, held that the right to abortion is ‘Not deeply rooted in this nation’s history and tradition, or essential to ordered liberty,’” Fleming said.

Fleming concluded by arguing the overturning of Roe may have extremely detrimental effects on the future of constitutional law in the United States.

“Dobbs may represent the second death of substantive due process,” Fleming said.

October 16, 2022