Roe Is In Danger, But It Doesn't Stop There

On a bright note, last week the Iowa Supreme Court struck down yet another of those unending legislative attempts to chip away at women’s rights to make their own reproductive choices. The decision was 5-2. On a less bright note, one of the two dissenters, Justice Edward Mansfield, is on the published short list of potential nominees to replace Justice Kennedy on the US Supreme Court. Being the constitutional law geek that I am, I thought I would take a look at his dissent. It was terrifying. Not only does he show thinly veiled hostility to Roe v. Wade, but he is completely up front in his opposition to “substantive due process”, the constitutional theory that certain fundamental rights may not be infringed by government. Mansfield is not distinctive here. This philosophy is a hallmark of the Federalist Society, the conservative legal society that has been diligently recruiting a whole new generation of “textualists” and “originalists”, and to whom the President has completely outsourced his pool of Supreme Court nominees. Hiding behind these academic terms of legal interpretation, their goal goes well beyond overturning Roe v. Wade. They would basically overturn every great landmark decision of the last century. That’s where their “war on substantive due process” inevitably leads. Think that consenting adults have a constitutional right to have sex in the privacy of their own home? The Federalist Society does not. Lawrence v. Texas, which declared sodomy laws unconstitutional rests on substantive due process, and they would overturn that. Think that you have a fundamental right to marry another unmarried adult of your choice? The Federalist Society does not. Not only does Obergefell, the 2016 gay marriage case, rest on substantive due process, but so does the 1967 Loving v. Virginia, which affirmed the right of people to marry across racial lines. Do you think a lawfully married couple has the right to use contraception? In 1965, the Supreme Court in Griswold v. Connecticut found a fundamental right to make such intimate and personal decisions in our Constitution, but the Federalist Society thinks that was a grave mistake. They believe it’s completely constitutional for the state to legislate what you can and can’t do in your own bedroom. Make no mistake, Roe v. Wade is in danger, but that’s not nearly the end of it.