Conservative critics of the substantive due process principle have said it improperly lets unelected justices make policy choices better left to legislators.Īlito reasoned in the draft that substantive due process rights must be 'deeply rooted' in US history and tradition and essential to the nation's 'scheme of ordered liberty.' Abortion, he said, is not, and rejected arguments that it is essential for privacy and bodily autonomy reasons. Though these rights are not explicitly mentioned in the Constitution, they are linked to personal privacy, autonomy, dignity and equality.
According to Alito, the right to abortion recognised in Roe must be overturned because it is not valid under the Constitution's 14th Amendment right to due process.Ībortion is among a number of fundamental rights that the court over many decades recognised at least in part as what are called 'substantive' due process liberties, including contraception in 1965, interracial marriage in 1967 and same-sex marriage in 2015.
