Rub a dub dub

In recent months, several states have enacted laws curtailing access to abortions, ostensibly in the hopes of giving the U.S. Supreme Court a vehicle for revisiting Roe v. Wade, 410 U.S. 113 (1973), the then-and-still controversial decision recognizing a woman's constitutional right to decide whether to terminate her pregnancy.

If five justices agree to author a decision overruling or modifying Roe, what might that decision look like? The court's recent decision in Timbs v. Indiana, 139 S. Ct. 682 (2019) cuts one possible path those justices might take, or at the very least leaves us some breadcrumbs from which we can speculate.

Roe itself is grounded in substantive due process. The Fifth and Fourteenth Amendments, respectively, prohibit the federal and state governments from "depriv[ing]' a "person" "of life, liberty, or property, without due process of law." These clauses unquestionably assure procedural due process by requiring that covered deprivations be accompanied by "fair process." Wash. v. Glucksberg, 521 U.S. 702, 719 (1997). At various times, the U.S. Supreme Court has also read these clauses to have a substantive component that "protects individual liberty against 'certain government actions regardless of the fairness of the procedures used to implement them.'" Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992).

The Supreme Court's first foray into substantive due process was Lochner v. New York, 198 U.S. 45 (1905). Lochner recognized a "liberty" interest in -- or, in other words, a constitutional right to -- "free[ly] contract" for one's own labor, and held that a New York law prohibiting bakers from working more than 60 hours in a week violated that right because it could not withstand the greater judicial scrutiny applicable to laws infringing constitutional rights. Id. at 52, 57-58. But the court blew down Lochner's straw house three decades later, stating simply: "The Constitution does not speak of freedom of contract." West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391 (1937).

The court's second foray into substantive due process recognized a person's liberty interest in "personal privacy" -- that is, a right to make decisions regarding marriage, procreation, contraception, and child rearing and education. See Loving v. Virginia, 388 U.S. 1, 12 (1967) (interracial marriages); Skinner v. Oklahoma, 316 U.S. 535, 541-42 (1942) (sterilization); Eisenstadt v. Baird, 405 U.S. 438, 453-54 (1972) (contraceptives); Pierce v. Soc'y of Sisters, 268 U.S. 510, 535 (1925) (mandatory public school attendance). State laws infringing this constitutional right to privacy are subject to greater judicial scrutiny. Roe has been part of this lineage since 1973, although Planned Parenthood v. Casey, 505 U.S. 833 (1992), remodeled Roe's wooden structure by swapping out Roe's trimester-based test for an "undue burden" test. Id. at 870, 876.

And now along comes Timbs.

The question in Timbs was whether a person prosecuted for drug crimes in state court could object to the civil forfeiture of his luxury SUV under the Eighth Amendment's excessive fines clause. Because the Bill of Rights of its own force constrains only the federal government and not the states, Barron v. Balt., 32 U.S. 243, 247-50 (1833), Timbs asked whether the excessive fines clause constrained the states through some other provision of the U.S. Constitution. All nine justices said "yes," but disagreed over which provision.

For an eight-justice majority, Justice Ruth Bader Ginsburg applied the so-called "selective incorporation doctrine." That doctrine asks whether a right secured by the Bill of Rights, on a right-by-right basis, is so "fundamental to our scheme of ordered liberty" or so "'deeply rooted in this Nation's history or tradition'" that it should be deemed one of the "libert[ies]" secured by the Fourteenth Amendment's due process clause. Timbs, at 687; McDonald v. Chicago, 561 U.S. 742, 765-67 (2010). Because of this textual "hook," selective incorporation is grounded in substantive due process, although the rights it recognizes -- unlike the rights of contract and privacy -- are explicitly spelled out elsewhere in the Constitution. Justice Ginsburg had no difficulty concluding that the right against excessive fines was fundamental due to its "venerable lineage back to" the Magna Carta and its presence in the constitutions of "all 50 States." Timbs at 687-89.

Justice Clarence Thomas concurred only in Timbs' result. He agreed that the right against excessive fines applied to the states, but refused to rely upon substantive due process, which in his view is a "legal fiction" lacking "any textual constraints." Id. at 691-92. Instead, and consistent with his prior separate opinions in Saenz v. Roe, 526 U.S. 489 (1999) and McDonald, Justice Thomas preferred what he views as the sturdier, more-brick-like structure of the privileges and immunities clause.

That clause prohibits any "state" from "mak[ing] or enforc[ing] any law which shall abridge the privileges and immunities of citizens of the United States." U.S. Const., art. XIV, § 1. Enacted alongside the Fourteenth Amendment's due process clause, the privileges and immunities clause was effectively neutered by the U.S. Supreme Court, mere years after its adoption, in the Slaughter-House Cases, 83 U.S. 36 (1873). In those cases, the court was asked to decide whether a New Orleans law granting a 25-year monopoly to a slaughterhouse company infringed upon the privilege of butchers to pursue their vocation. The court rejected the butchers' argument that the law violated the privileges and immunities clause because, in its view, the clause only protected from state infringement the "privileges and immunities" of national citizenship, not the privileges and immunities of state citizenship. Id. at 74. In reaching this conclusion, the court reasoned that the Constitution elsewhere protects the privileges and immunities of state citizenship, see Art. IV, § 2, and that it was unwise to undertake the "serious," "far-reaching" and "pervading" task of defining the privileges and immunities of state citizenship and using them to nullify state law in the absence of "language" "clearly" mandating such an undertaking. Id. at 75, 78.

Thus, the clause has for years been confined to protecting a narrow band of privileges and immunities of national citizenship. They include (1) the right to travel to, and transact with, the "seat of government," (2) "the right of free access to [each state's seaports]" and navigable waters, (3) the right to protection while "on the high seas or within the jurisdiction of a foreign government," (4) the "right to peaceably assemble and petition for redress of grievances," and (5) "the privilege of the writ of habeas corpus." In 1999, Saenz added to this list the "right to be treated equally in [a] new State of residence."

Justice Thomas would have the clause "establish[] a minimum baseline of federal rights" with which states could not interfere. McDonald, at 850. To avoid what he decries as the "fictional" aspects of substantive due process, Justice Thomas would define this baseline solely by reference to the privileges and immunities secured by English common law, by the constitutions of the 13 colonies, and by the laws in effect when the clause was adopted in 1868. Timbs at 693-94; McDonald, at 854-55; Saenz, at 524. To Justice Thomas, the "house" of rights built by this clause would be sturdier, but have less square footage than substantive due process.

What makes Timbs interesting is that Justice Neil Gorsuch wrote separately to express his view that the privileges and immunities clause "may well be" "the appropriate vehicle for incorporation." Id. at 691. Given that Chief Justice Roberts has criticized substantive due process for "exalt[ing] judges at the expense of the People," Obergefell v. Hodges, 135 S. Ct. 2584, 2631 (2015), there may now be three justices open to moving away from substantive due process as the basis for incorporating the rights the Constitution elsewhere spells out and, potentially, as the basis for recognizing other rights it does not.

The Supreme Court will have further opportunity to revisit the substantive due process doctrine next term in Ramos v. Louisiana, 18-5924, and Kahler v. Kansas, 18-6135, which deal, respectively, with whether substantive due process protects the right to a unanimous jury verdict and the right to plead insanity as a defense. However, if past is prologue, the time may still not be right for the next step in the evolution of substantive due process. After all, the Slaughter-House Cases involved butchers and Lochner involved bakers. The ideal case would, of course, involve the rights of candle-stick makers. In 2019, such a case may be as likely as eloping flatware or bovine astronauts, but justice can be surprisingly poetic. 