This Article contains explicit depictions and discussions of abortion and related medical procedures. Such descriptive discussions may be triggering or distressing for some readers. This Article also references passive euthanasia processes. Reader discretion is advised.
Additionally, this Article explores historic case law regarding abortion-related issues that consistently uses the term “woman” when referring to all persons impacted by abortion restrictions.
On July 23, 1990, President George H. W. Bush nominated David H. Souter to the U.S. Supreme Court to replace Justice William Brennan Jr., one of the most liberal justices in the Court’s history. Souter was expected to solidify a conservative majority that Republican presidents began putting together in the 1970s and 1980s. Over roughly two decades, Presidents Richard Nixon, Gerald Ford, and Ronald Reagan were able to fill all nine seats on the Court without an appointment being made by a Democratic president. John H. Sununu, Chief of Staff in the Bush administration and former Republican governor of New Hampshire, convinced President Bush to nominate Souter, who was serving as a justice on the New Hampshire Supreme Court at the time of his appointment. According to Sununu, Souter was considered to be a “home run” for conservatives. However, conservatives became concerned when Souter expressed during his Senate confirmation hearings that he recognized a right to privacy in the U.S. Constitution. While privacy is not explicitly mentioned in the Constitution, liberal jurists assert that the right to privacy exists within the shadows of the Bill of Rights and specifically in the Due Process Clause of the Fourteenth Amendment. Conservative scholars have denied the existence of or attempted to limit the scope of personal privacy as a constitutionally protected fundamental right by interpreting the Constitution based on strict constructionism. The right to privacy is controversial because it encompasses political issues such as abortion, the right to die, and gay marriage. This Article examines the judicial behavior of Justice Souter in privacy cases and concludes that Souter failed to provide a consistent vote for the conservative agenda, in part, because he cast more liberal votes over time but also because of his respect for the law and his concern for the reputation of the Court as a neutral arbiter of the Constitution.