\u3cem\u3eWebster\u3c/em\u3e and the Future of Substantive Due Process

In Webster v. Reproductive Health Services, the United States Supreme Court indicated that Roe v. Wade (the case that found a federal constitutional right to abortion) is without majority support on the Court. Roe is de facto overruled. However, the rejection of Roe does not mean a rejection of substantive due process analysis or the right of privacy, which have been approved by all members of the current Court. But substantive due process analysis has been significantly refined. The analysis has been made more objective in two ways. First, the Court now relies primarily on the test for fundamentality which asks whether a liberty was fundamental in the history and tradition of our Nation (rather than upon the more amorphous essential to a scheme of ordered liberty test), and eschews an analysis which asks whether a formerly discovered right is broad enough to encompass a newly-asserted right. Second, the analysis requires that before a proposed fundamental right is tested against the history and tradition or our Nation, it must be formulated in a concrete, fact sensitive manner, which is neither so overbroad as to include other activities which are logically distinct and involve separate considerations nor so narrow as to fail to reasonably accommodate all the interests at stake in a case. As a result of this refinement, when an abortion right is again expressly considered by the Court, it will not be found fundamental, for the right to abortion has been regulated by the states. Nor will abortion rights advocates be able to shelter an abortion right under any sweeping, amorphous formulation of a right, such as the right of procreative choice, which they attempted to employ in the Webster oral arguments. Roe awaits only the proper case for reconsideration to occur and it will be expressly overruled