Liberty, Property, and Privacy: Toward a Jurisprudence of Substantive Due Process

By Edward Keynes | Go to book overview

8
Reproductive Liberty and Individual Autonomy -- Contraception and Abortion

Since 1965 the Supreme Court has employed the Fourteenth Amendment to create a new fundamental right to reproductive liberty. Similar to liberty of contract, reproductive liberty is an unenumerated right that the Warren and Burger Courts have read into the due process clause. As the framing of the amendment suggests, however, there is no greater justification for inferring reproductive liberty than liberty of contract from the due process clause. Nor is there any persuasive rationale, derived from the Constitution's language or history, for giving privacy rights greater protection than unenumerated economic liberty and property rights. In fact, the authors of the Fourteenth Amendment and the Civil Rights Act of 1866 regarded economic liberty and property rights as indispensable to personal freedom.

Nevertheless, after 1937 the Supreme Court denigrated economic liberty and property rights, while granting heightened judicial protection to reproductive freedom. Refusing to invalidate state limitations on economic liberty, between 1965 and 1990 the Court struck various prohibitions and regulations of contraception and abortion as burdensome interferences with personal liberty. In 1983, Sandra Day O'Connor began criticizing the majority's approach as unnecessarily intrusive on the states' police power.1 Jus-

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1
O'Connor (dissenting) in Akron v. Akron Center for Reproductive Health, 462 U.S. 416 ( 1983); (dissenting) in Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 ( 1986); and (concurring in part) in Webster v. Reproductive Health Services, 109 S. Ct. 3040 ( 1989).

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