American Academy of Matrimonial Lawyers
This Essay explores the implications of Dobbs v. Jackson Women’s Health Organization for the future of substantive due process (SDP) liberties protecting personal autonomy, bodily integrity, familial relationships (including marriage), sexuality, and reproduction. We situate Dobbs in the context of prior battles on the Supreme Court over the proper interpretive approach to deciding what basic liberties the Due Process Clause (DPC) protects. As a framing device, we refer to two competing approaches as “the party of [Justice] Harlan or Casey” versus “the party of Glucksberg.” In Dobbs, the dissent co-authored by Justices Breyer, Sotomayor, and Kagan represents the party of Harlan, while Justice Alito’s majority opinion reflects the party of Washington v. Glucksberg. We argue that Glucksberg is the “leading modern case” and the proper approach only for justices who oppose and wish to eliminate the expansion of SDP rights. None of the decisions in the past century that has protected a basic personal liberty under the DPC would have come out as it did had the Court applied Glucksberg’s framework.
The Essay also addresses an often-vexing question of importance to family law lawyers and teachers: what is the standard of review for cases about substantive due process liberty? Some of the fiercest critics of SDP liberty, such as Justice Scalia, have insisted that the Court must use either strict scrutiny if a fundamental right is implicated or a deferential, rational basis test if one is not. They have done so, generally, to curb recognition of protected “liberty” under the DPC. We argue instead that the Court’s actual practice in the leading cases surrounding the legal regulation of intimacy and the family maps onto a continuum of ordered liberty, with several intermediate levels of review rather than a rigid two-tier framework. We conclude with some thoughts about the future of SDP and strategies for liberals and progressives concerned about the protection of the “fabric” of constitutional liberty going forward.
Linda C. McClain & James E. Fleming,
Ordered Liberty after Dobbs
Journal of the American Academy of Matrimonial Lawyers
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3571