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In the court’s 7-2 ruling in late 1973, the 14 th Amendment again took center stage. While Jane Doe couldn’t mount a successful challenge to those laws before the birth of her third daughter, the lawyer who helped her find adoptive parents introduced her to the attorneys who would help her pursue her case all the way to the Supreme Court. The waitress, who had relinquished custody of her two previous daughters, decided to seek an abortion, but doctors refused, citing Texas laws criminalizing the procedure except when the mother’s life is at stake. Jane Doe (who later went public with her identity, Norma McCorvey) discovered she was pregnant with her third child in 1969. If individuals have a right to make personal and private decisions about whom to marry (or not marry) and to use contraception, do they have the right to terminate a pregnancy? Norma McCorvey, better known as Jane Roe from the 1973 Supreme Court decision, and lawyer Gloria Allred raise their hands at a rally held outside the Supreme Court after attended the opening arguments in the Webster v. Delivering the court’s unanimous decision in June 1967, Chief Justice Earl Warren declared that “the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the state.” Virginia authorities argued they had as much reason to ban interracial marriages as they did to outlaw polygamy and incest, an argument rejected by every Supreme Court justice. In response, the Lovings challenged the constitutionality of a state law telling them who they could-and couldn’t-marry.Īnd they prevailed. The sentence of a year’s imprisonment for both the Lovings was suspended on the condition that they leave Virginia and not return together for a period of 25 years. After returning to Virginia, they were woken up in the middle of the night by policemen five weeks later and arrested. In 1958, when Virginia residents Mildred Jeter (of mixed Black and Native American ancestry) and Richard Loving (defined as “white” by the state) wanted to marry, they headed to Washington, D.C. The Failed 1846 Amendment That Tried to Contain Slavery Justice Arthur Goldberg (with Chief Justice Earl Warren and Justice William Brennan concurring) declared that the due process clause of the 14 th Amendment protects liberties “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Among these liberties, they said, was the right of married couples to make personal and private decisions about when to use contraception. While their reasons for overturning the Connecticut statute varied, many relied on the 14 th amendment. In a 7-2 ruling, the Supreme Court justices declared the law unconstitutional. Meanwhile, the state claimed it did have a compelling interest in denying even married couples access to birth control: it needed to ensure its own “continuity.” When the case was argued in front of the Supreme Court in early 1965, Griswold’s and Buxton’s lawyers contended that the law deprived both defendants and the clinic’s patients of their rights, based on the 14 th Amendment’s due process clause. In a nutshell, it means that even if a new government regulation or law has clearly not run afoul of any procedural issues, its advocates must still demonstrate that any infringement of someone’s rights is justified and necessary. Procedural due process is relatively straightforward directive: did a government entity follow the law when it deprived someone of their life, liberty or property? Substantive due process as a topic is one that lawyers-both practitioners and scholars-regularly debate.
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It is the 14 th Amendment that created the theory of “substantive due process,” a concept that underpins many liberties that Americans take for granted today. “While the Fifth Amendment says that Congress can’t do certain things, the 14 th expressly applies the same restrictions to the states for the first time,” explains David Flugman, a partner at Selendy Gay Eisberg, who has argued constitutional law cases before numerous courts. Wording in the 14 th Amendment guaranteed for the first time “due process of law” and “the equal protection of the laws” for citizens.