Oregon’s Governor has said she will sign legislation that will require insurance companies (with one exception) to provide their beneficiaries, at no cost, and for any reason, abortions and contraceptive drugs that can be abortifacients. California has a similar law. Unlike California’s law, churches and religious organizations that object to abortion and/or contraception are exempt, but there is no protection for business owners who desire to use any insurance company other than Providence Health Plans (the one faith-based insurance company that was exempted). The Oregon legislation also expands state funding to pay for abortions for citizens and non-citizens who do not have private insurance.
Clinton appointments to the Supreme Court would endanger constitutional governance in a variety of ways, but one of the most substantial is the creation of rights nowhere to be found in the actual Constitution. Sadly, the stage has been set for great expansion of such rights by Justice Anthony Kennedy’s Obergefell opinion. It, of course, constitutionalized same-sex marriage. More importantly for the future, it destroyed the doctrinal restraints on substantive due process—the Court’s minting house for new rights.
Previously the Supreme Court had sharply restricted the rights that could be found in substantive due process. In Washington v. Glucksberg, the Court rejected the argument that the right to assisted suicide could be found in the Constitution. The Court read its precedents to require strict objective criteria for the identification of a specific fundamental right: it must be “deeply rooted in this Nation’s history and tradition.” By that strict standard, the right to assisted suicide was a non-starter, because laws against the practice had long existed.
But same-sex marriage could hardly be termed a right “deeply rooted in the Nation’s history and tradition” either. In effect, Kennedy said so much the worse for Glucksberg. One reason he gave is that the right to abortion declared in Roe v. Wade itself had itself not met the Glucksberg test. But the right of abortion had persisted in Planned Parenthood v. Casey not because Roe was substantively correct, but only because it was a precedent. Thus, Roe hardly should be taken as generative model for substantive due process.
How might we distinguish the traditionalist judicial decision?