*Most people view Roe as based on a case called Griswold v. Connecticut, in which the Supreme Court struck down a Connecticut law making it illegal for married couples to use contraceptives. Writing for a 7-2 majority in Griswold, Justice William O. Douglas famously identified the Constitution as guaranteeing a general right to privacy derived from “penumbras,” or zones of constitutional protection extracted from various provisions of the Bill of Rights, including the First, Third, Fourth and Ninth Amendments. Griswold’s ethereal penumbras gave rise to unrelenting attacks on Roe as a legal outlier built on sand. For instance, in a dissenting opinion in June Medical Services, LLC v. Russo, in which a Supreme Court majority declared Louisiana’s hospital-admission requirements for abortion clinics unconstitutional, Justice Clarence Thomas complained that Roe “created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text.”
That’s never been true.
The line of reasoning in Roe actually stemmed from something much older than Griswold — a concept called “substantive due process” that traces back to a line of cases that includes the little-remembered Meyer v. Nebraska. In Meyer, the Supreme Court ruled in 1923 that “substantive due process,” which later gave rise to constitutionally protected reproductive rights, precludes states from interfering in certain categories of decisions that belong to families and parents.
The state law at issue prohibited the teaching of a foreign language to children. A Nebraska statute passed in reaction to World War I made it a crime to teach in any school, public or private, in a language other than English to students through the eighth grade. (“ Latin, Greek, and Hebrew [were] not proscribed; but German, French, Spanish, Italian, and every other alien speech [were] within the ban.”) A man was found guilty of teaching German to a 10-year-old in a parochial school maintained by the Zion Evangelical Lutheran Congregation, and challenged his conviction on the grounds that the law was unconstitutional. The lower court upheld the Nebraska statute, explaining that “[t]he legislature had seen the baneful effects of permitting foreigners, who had taken residence in this country, to rear and educate their children in the language of their native land.”
The Supreme Court reversed, reasoning that although the Fourteenth Amendment’s Due Process Clause ostensibly mandates only that the government follow certain procedures before depriving individuals of life, liberty or property (such as a jury trial in criminal cases), the concept of “liberty thus guaranteed” is broader, and includes certain spheres of life in which the government cannot intrude at all — even if it follows procedural steps first. The high court went on to list the areas of family life that are protected from government intrusion altogether: “Without doubt, [liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, [and to] establish a home and bring up children.”'>
https://www.politico.com/news/magazine/2024/03/27/1923-supreme-court-decision-ivf-abortion-00149194
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