The Supreme Court’s historic ruling that struck down Roe v Wade not only ended a constitutional right to an abortion, returning the issue to the states. The decision also reignited fundamental questions about whether the Constitution protects an implied right to privacy through the legal theory of substantive due process, which underpinned past rulings protecting same-sex marriage and other issues.
In this episode of History As It Happens, Yale constitutional scholar Akhil Amar discusses the historical origins of privacy rights that predate the Constitution and whether other rights may now be in peril following the court’s ruling in the Dobbs case.
In Mr. Amar’s view, the Bills of Rights established proto-privacy rights, i.e. the Fourth Amendment, but he disagrees with the reasoning in Roe v Wade, which points to the due process clause in the 14th Amendment. One of the strongest arguments against Roe can be found in the work of the liberal jurist John Hart Ely.
“Roe versus Wade is not just bad constitutional law. It’s actually not constitutional law at all and it makes almost no pretense of being so, because it doesn’t connect its edict to anything in the constitutional text,” said Mr. Amar, paraphrasing Ely’s scholarship. “That article by John Ely is one of 10 ten most-cited articles of all time in the legal literature.”
Listen to the conversation with Akhil Amar by subscribing to History As It Happens, available wherever you find your podcasts.
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