Abortion, The Public Morals, and the Police Power: The Ethical Function of Substantive Due Process
![handle is hein.journals/uclalr23 and id is 709 raw text is: ABORTION, THE PUBLIC MORALS, AND THE
POLICE POWER: THE ETHICAL FUNCTION
OF SUBSTANTIVE DUE PROCESS
Michael J. Perry*
-History, Stephen said, is a nightmare from
which I am trying to awake.'
I. THE ABORTION CASES: A METHODOLOGICAL CRISIS2
Substantive due process-an aspect of constitutional
history-is a nightmare from which the Supreme Court ought to
awake. Or so constitutional scholars have warned.' But Stephen
Dedalus cannot escape history, and neither, apparently, can the
Supreme Court.4 This observation is occasioned by the Abortion
* Assistant Professor, Ohio State University College of Law.
1 J. JOYCE, ULYSSES 40 (Penguin ed. 1922).
2 In reflecting on Griswold v. Connecticut, 381 U.S. 479 (1965), Professor
Charles Black said, This case created what many thought to be a methodological
crisis in constitutional law. Black, The Unfinished Business of the Warren
Court, 46 WASH. L. REV. 3, 32 (1970).
[The nature of this crisis] . . . was that nothing in the Constitution
said in so many words that the state might not make contraception a
crime. Somewhat more subtly put, and put in a manner more cor-
respondent to past reality, many believed that no provision or set of
provisions written in the Constitution could by any far-reaching process
of interpretation be thought to refer to contraception.
Id. at 32-33. If Griswold created a methodological crisis, by comparison the
Abortion Cases (Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S.
179 (1973)) were traumatic.
3 The literature critical of substantive due process is extensive. A classic
piece is Hamilton, The Path of Due Process of Law, in AMERICAN CONSTITUTIONAL
LAW: HISTORICAL ESSAYS 129 (L. Levy ed. 1966). For a more recent discussion,
see Strong, The Economic Philosophy of Lochner: Emergence, Embrasure and
Emasculation, 15 ARIz. L. REV. 419 (1973). An article somewhat sympathetic
to traditional substantive due process is McCloskey, Economic Due Process and
the Supreme Court: An Exhumation and Reburial, in AMERICAN CONSTITUTIONAL
LAW: HISTORICAL ESSAYS 155 (L. Levy ed. 1966). See also Wellington, Common
Law Rules and Constitutional Double Standards: Some Notes on Adjudication,
83 YALE L. J. 221, 304-05 (1973).
4 To suggest that the Supreme Court cannot forswear substantive due
process is not to say that the Court openly embraces it. Nonetheless, despite
semantic subterfuges, substantive due process by any other name is still substan-
tive due process. See, e.g., Kauper, The Higher Law and the Rights of Man in a
Revolutionary Society, 18 U. MICH. L. QUAD. NOTES, Winter 1974, at 9: Not-
withstanding . . . Justice Douglas' protestations, Griswold marked a significant
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Abortion, The Public Morals, and the Police Power: The Ethical Function of Substantive Due Process
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