Friday, October 28, 2022

Erasing the Past, Rethinking the Future

Guest Blogger

For the Balkinization symposium on James E. Fleming, Constructing Basic Liberties: A Defense of Substantive Due Process (University of Chicago Press, 2022).

Aziza Ahmed

The ability to access abortion is in freefall after Dobbs v. Jackson Women’s Health overturned Roe v. Wade and the constitutional right to an abortion. We can turn to James Fleming’s new book, Constructing Basic Liberties: A Defense of Substantive Due Process, to understand how we got here.  Though he stops short of predicting Dobbs (the book was published before the decision) Fleming makes a powerful case for the idea that we are headed for a transformation in American constitutional law – away from the substantive due process theories that grounded many of the rights gained over the last 60 years and towards a new, troubling future.  As Fleming writes, one way that this new future will unfold will be through the deployment of a  Washington v. Glucksberg style of analysis in cases grounded in substantive due process.  Glucksberg requires the court to ask whether a contested right is “deeply rooted in the  nation’s history and tradition” and “implicit in the concept of ordered liberty.”  Professor Fleming argues that a future defined by Glucksberg will lead to a dismantling of hard-earned rights.  His words are prescient.The Dobbs decision doesn’t hold back from a Glucksberg analysis – the majority opinion, written by Alito, asserts the right to abortion is clearly not protected by the Fourteenth Amendment as told to us by history and tradition which “map the essential components of the nation’s concept of ordered liberty.” In doing the required historical analysis, the majority in Dobbs must commit incredible acts of erasure.  Gone from their history of abortion in the United States are the hard won fights of women to access healthcare, the reality that women have always had abortions, that many of these abortions were understood to be legally permissible,  and the difficulties faced by women who cannot access the procedure
The dissent speaks to this erasure, both in the context of Dobbs, and for fear of future decisions who will repeat the mistake of using a Glucksberg analysis.  As Breyer, Sotomayor and Kagan note, with Glucksberg as a guide, courts were bound to repeat this erasure time and again it is necessary to an analysis rooted in history and tradition.  They write: 
Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship. 
The dissent punctuates the absurdity of the historical analysis offered by the majority with an exclamation mark. It is hard to disagree - the 13th century, after all, is an odd starting point to understand how to regulate a health procedure in 2022. 
There were other paths the court could have taken that would have upheld the right to abortion despite further limiting access. 
At minimum, the Supreme Court could have stuck with precedent by keeping the undue burden standard in play.  Established in Casey v Planned Parenthood, the standard held that if a legal regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking a previable abortion it is unconstitutional.  As Fleming points out, the tradition celebrated in Casey was not the “history and tradition” analysis of Glucksberg – but rather an assertion of a “due process inquiry” representing “the balance which our Nation, built upon the postulates of respect for the liberty of the individual, has struck between that liberty and the demands of an organized society….”  The undue burden standard, as argued by Professor Fleming stemmed from a joint opinion which spoke of “reasoned judgement” as the tradition that the Court has always exercised.  
From a reproductive rights perspective, in the decades following Casey, the undue burden standard proved to be a barrier to increasing access to abortion.  Judges repeatedly found that legal regulations on abortion – designed to limit access – did not place a substantial enough obstacle in abortion access.  Or, they found that the purpose of a potential regulation (waiting periods on accessing abortion, for example) were not designed with the purpose of undermining abortion access but instead were health regulations designed to protect women.   In the latter case they often deferred to pretextual claims by conservative state legislators who claimed they were acting on women’s health outcomes in the context of abortion. 
In the mid-2010s, the deference to state legislators began to unravel.  The undue burden standard was reworked in Whole Women’s Health v. Hellerstedt which paid attention to the “effect” of the laws.  In Whole Women’s Health, a clinic was challenging two requirements on abortion clinics imposed by the state of Texas – an admitting privileges requirement for physicians at a hospital within thirty miles and a requirement that clinics needed to meet the standards of an ambulatory surgical center requirement.  To understand and the effect of the law, the Court revisited the actual impact the laws were having – balancing the burdens and benefits of the regulations.  Looking under the hood of the purported assertion that laws regulating abortion were for the health and safety of women, the court found the rules at stake unconstitutional. 
In these cases the Supreme Court finally acknowledged that we had to look at the burdens of a law, not only its purported benefits.  They finally looked beyond the pretext of helping women (which had now become a conservative talking point --  no longer necessary) and instead carved a path forward that would allow for the undue burden standard to strike down regulations.  In June Medical v. Russo, the majority even acknowledged that there will be a disproportionate burden on the poor.  (This acknowledgement of hardship for poor people is a subtle shift away from the Courts prior decisions which found that because women are poor of their own making, they should expect states to help them pay for their abortion, even if the state does help them pay for pregnancy related services).
Following Whole Women’s Health and June Medical, Reproductive Rights activists rejoiced: finally, the Court cared about impact. 
The dissent in Dobbs held onto to this pragmatism, noting that the overturning of Roe would lead to the ability of the state “to force a woman to give birth”.  For women who cannot access abortion, the dissent points out that women might try an unsafe abortion method, experience physical harm, and some could die.   But for the majority, these harms did not constitute reason enough to hold on to a constitutional right to abortion. 
For feminist health advocates, what is new old again: an erasure of the lived experiences of women, girls, and others who need abortions from court reasoning, despite the direct impact on access to health services and the quality of people’s lives. For Fleming, however, with this setback comes opportunity. He calls for progressives to reexamine progressive reliance on the courts for social progress and question the institutional formations that have brought us to this moment.  Taking up Fleming’s call will require feminist advocates to build and forge new alliances and return to social movement organizing of the past.  Activism that demanded that institutions listen.  And, it will require a deep reflection on the part of feminists –especially feminist lawyers -- as to why and how litigation became so central in reproductive rights advocacy, perhaps at the cost of diverse and multifaceted strategies for sustainable change.
Aziza Ahmed is Professor of Law and R. Gordon Butler Scholar in International Law at Boston University School of Law. You can reach her by e-mail at 

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