Page:Dobbs v. Jackson Women's Health Organization.pdf/121

Rh abortion because it “fe[lt]” that “the Fourteenth Amendment’s concept of personal liberty” included a “right of privacy” that “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Id., at 153. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court likewise identified an abortion guarantee in “the liberty protected by the Fourteenth Amendment,” but, rather than a “right of privacy,” it invoked an ethereal “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Id., at 851. As the Court’s preferred manifestation of “liberty” changed, so, too, did the test used to protect it, as Roe’s author lamented. See Casey, 505 U. S., at 930 (Blackmun, J., concurring in part and dissenting in part) (“[T]he Roe framework is far more administrable, and far less manipulable, than the ‘undue burden’ standard”).

Now, in this case, the nature of the purported “liberty” supporting the abortion right has shifted yet again. Respondents and the United States propose no fewer than three different interests that supposedly spring from the Due Process Clause. They include “bodily integrity,” “personal autonomy in matters of family, medical care, and faith,” Brief for Respondents 21, and “women’s equal citizenship,” Brief for United States as Amicus Curiae 24. That 50 years have passed since Roe and abortion advocates still cannot coherently articulate the right (or rights) at stake proves the obvious: The right to abortion is ultimately a policy goal in desperate search of a constitutional justification.

Second, substantive due process distorts other areas of constitutional law. For example, once this Court identifies a “fundamental” right for one class of individuals, it invokes the Equal Protection Clause to demand exacting scrutiny of statutes that deny the right to others. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453–454 (1972) (relying on Griswold to invalidate a state statute prohibiting distribution