Abortion and Substantive Due Process

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No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In 1973, the Supreme Court determined in Roe v. Wade that the U.S. Constitution protects a woman’s decision whether or not to terminate her pregnancy.1 The constitutional basis for the decision rested upon the conclusion that the right of privacy “founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action” encompassed a woman’s decision to carry a pregnancy to term.2 Following Roe, several federal abortion restrictions were challenged as infringing the analogous right guaranteed by the Fifth Amendment’s Due Process Clause.3 In 2022, a majority of the Court in Dobbs v. Jackson Women’s Health Organization4 overruled Roe and a 1992 abortion decision, Planned Parenthood of Southeastern Pennsylvania v. Casey.5 In the following cases, which upheld federal abortion restrictions, the overruling of Roe and Casey would probably not affect the restrictions’ continued enforcement.

In Harris v. McRae, the Court upheld the Hyde Amendment, an annual appropriations provision that restricts the use of federal funds to pay for abortions provided through the Medicaid program.6 The Court found that the Hyde Amendment did not violate either the Due Process or Equal Protection Clauses of the Fifth Amendment, and did not violate the Establishment Clause of the First Amendment.7 While the Court acknowledged that the liberty guaranteed by the Fifth Amendment’s Due Process Clause, in particular, protects a woman’s freedom of choice for certain personal decisions, it does not “confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom.” 8 In Harris, the Court also recognized the right of a state participating in the Medicaid program to fund only those medically necessary abortions for which it received federal reimbursement.9

In 1991, the Court upheld on both statutory and constitutional grounds the Department of Health and Human Services’ regulations restricting recipients of federal family planning funding from using federal funds to counsel women about abortion.10 In Rust v. Sullivan, the Court determined that a woman’s right to an abortion was not burdened by the regulations, which implement Title X of the Public Health Service Act.11 The Court reasoned that there was no constitutional violation because the government has no duty to subsidize an activity simply because it is constitutionally protected and because a woman is “in no worse position than if Congress had never enacted Title X.” 12

In 2007, the Court applied the “undue burden” standard13 adopted in Casey to evaluate abortion regulations to the Partial-Birth Abortion Ban Act of 2003.14 In Gonzales v. Carhart, the Court considered whether the federal law was overbroad, prohibiting both the standard dilation and evacuation (D&E) abortion method—the most common method during the second trimester of pregnancy—and the intact D&E method, described by some as “partial-birth” abortion because the fetus is more fully developed at the time the procedure is performed. Relying on the law’s plain language, the Court determined that it could not be interpreted to encompass the standard D&E method.15 The Court noted that the standard D&E method involves the removal of the fetus in pieces.16 In contrast, the federal law uses the phrase “delivers a living fetus.” 17 The Court explained that the standard D&E method “does not involve the delivery of a fetus because it requires the removal of fetal parts that are ripped from the fetus as they are pulled through the cervix.” 18 The Court also identified the law’s specific requirement of an “overt act” that kills the fetus as evidence of its inapplicability to the standard D&E method, maintaining that the “distinction matters because, unlike intact D&E, standard D&E does not involve a delivery followed by a fatal act.” 19 Ultimately, the Court determined that the law did not impose an undue burden on a woman’s ability to obtain an abortion because it prohibited only the less frequently performed intact D&E abortion method.

In Gonzales, the Court also concluded that the Partial-Birth Abortion Ban Act was not unconstitutionally vague because it provides doctors with a reasonable opportunity to know what conduct is prohibited.20 Unlike the Nebraska partial-birth abortion law invalidated by the Court in Stenberg v. Carhart,21 which prohibited the delivery of a “substantial portion” of the fetus,22 the federal law includes “anatomical landmarks” that identify when an abortion procedure will be subject to the act’s prohibitions.23 Thus, the Court observed: “[I]f an abortion procedure does not involve the delivery of a living fetus to one of these ‘anatomical landmarks'—where, depending on the presentation, either the fetal head or the fetal trunk past the navel is outside the body of the mother—the prohibitions of the Act do not apply.” 24

The Gonzales Court further observed that the Partial-Birth Abortion Ban Act’s inclusion of a scienter or knowledge requirement alleviated any vagueness concerns. Because the law applies only when a doctor “deliberately and intentionally” delivers the fetus to an anatomical landmark, the Court determined that a doctor performing the standard D&E method would not face criminal liability if a fetus were delivered beyond the prohibited points by mistake.25 According to the Court, the scienter requirement “narrow[s] the scope of the Act’s prohibition and limit[s] prosecutorial discretion.” 26

1: 410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. June 24, 2022). For further discussion on Roe, see Amdt14.S1.6.4.1 Abortion, Roe v. Wade, and Pre-Dobbs Doctrine.
2: Roe, 410 U.S. at 152–53.
3: See, e.g., Gonzales v. Carhart, 550 U.S. 124 (2007) (upholding federal Partial-Birth Abortion Ban Act of 2003, 18 U.S.C. § 1531).
4: Dobbs, No. 19-1392.
5: 505 U.S. 833 (1992), overruled by Dobbs, No. 19-1392.
6: 448 U.S. 297 (1980). In 1976, Representative Henry J. Hyde first offered the amendment to the Departments of Labor and Health, Education, and Welfare Appropriation Act, 1977, that restricted the use of appropriated funds to pay for abortions provided through the Medicaid program. See Act of Sept. 30, 1976, Pub. L. No. 94-439, § 209, 90 Stat. 1418, 1434 ( “None of the funds contained in this Act shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term.” ).
7: Harris, 448 U.S. at 326.
8: Id. at 318.
9: Id. at 310.
10: Rust v. Sullivan, 500 U.S. 173 (1991).
11: Id. at 201–02.
12: Id. at 203.
13: Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 876–77 (1992). In Casey, a plurality of the Court adopted an “undue burden” standard for examining abortion regulations, maintaining that this standard better recognized the need to reconcile the government’s interest in potential life with a woman’s right to decide whether to terminate her pregnancy. The plurality indicated that an undue burden exists if the purpose or effect of an abortion regulation is “to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Id. at 878.
14: Gonzales v. Carhart, 550 U.S. 124 (2007).
15: Id. at 150.
16: Id. at 152.
17: 18 U.S.C. § 1531(b)(1)(A).
18: Gonzales, 550 U.S. at 152.
19: Id. at 153.
20: Id. at 149.
21: 530 U.S. 914 (2000).
22: Stenberg, 530 U.S. at 922. See also Neb. Rev. Stat. Ann. § 28-326(9) (Supp. 1999).
23: Gonzales, 550 U.S. at 151. See also 18 U.S.C. § 1531(b)(1)(A).
24: Gonzales, 550 U.S. at 148.
25: Id.
26: Id. at 150.