“Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.... That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”

Concurring, Roe v. Wade, 410 U.S. 113, 169-170 (1973).

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Potter Stewart7

American judge 1915–1985

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“The right to privacy…is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”

Harry Blackmun (1908–1999) Associate Justice of the Supreme Court of the United States

Writing for the court, Roe v. Wade, 410 U.S. 113, 153 (1973)

“It is no longer open to doubt that the liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action. It was found impossible to conclude that this essential personal liberty of the citizen was left unprotected by the general guaranty of fundamental rights of person and property.”

Charles Evans Hughes (1862–1948) American judge

Near v. Minnesota, 283 U.S. 697 (1931).
Judicial opinions

“The Due Process Clause of the Fourteenth Amendment stands, in my opinion, on its own bottom.”

John Marshall Harlan II (1899–1971) American judge and Associate Justice of the Supreme Court (1899-1971)

Concurring in Griswold v. Connecticut, 381 U.S. 479 (1965).

“[The Texas anti-sodomy statute] undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to 'liberty' under the Due Process Clause, though today's opinion repeatedly makes that claim.... The Fourteenth Amendment expressly allows States to deprive their citizens of 'liberty,' so long as 'due process of law' is provided....”

Antonin Scalia (1936–2016) former Associate Justice of the Supreme Court of the United States

On the right to sodomy: Lawrence v. Texas (2003) (dissenting).
2000s

“In enacting the Fifth Amendment’s Due Process Clause, the Framers similarly chose to employ the 'life, liberty, or property' formulation, though they otherwise deviated substantially from the States' use of Magna Carta's language in the Clause. When read in light of the history of that formulation, it is hard to see how the 'liberty' protected by the Clause could be interpreted to include anything broader than freedom from physical restraint. That was the consistent usage of the time when 'liberty' was paired with 'life' and 'property'. And that usage avoids rendering superfluous those protections for 'life' and 'property.”

Clarence Thomas (1948) Associate Justice of the Supreme Court of the United States

If the Fifth Amendment uses 'liberty' in this narrow sense, then the Fourteenth Amendment likely does as well. Obergefell v. Hodges http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf (26 June 2015). 2010s

“The majority's decision today will require States to issue marriage licenses to same-sex couples and to recognize same-sex marriages entered in other States largely based on a constitutional provision guaranteeing 'due process' before a person is deprived of his 'life, liberty, or property'. I have elsewhere explained the dangerous fiction of treating the Due Process Clause as a font of substantive rights. It distorts the constitutional text, which guarantees only whatever 'process' is 'due' before a person is deprived of life, liberty, and property. Worse, it invites judges to do exactly what the majority has done here.”

Clarence Thomas (1948) Associate Justice of the Supreme Court of the United States

Obergefell v. Hodges http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf (26 June 2015). 2010s

“Even if the doctrine of substantive due process were somehow defensible, it is not, petitioners still would not have a claim. To invoke the protection of the Due Process Clause at all, whether under a theory of 'substantive' or 'procedural' due process, a party must first identify a deprivation of 'life, liberty, or property'. The majority claims these state laws deprive petitioners of 'liberty', but the concept of 'liberty' it conjures up bears no resemblance to any plausible meaning of that word as it is used in the Due Process Clauses.”

Clarence Thomas (1948) Associate Justice of the Supreme Court of the United States

Obergefell v. Hodges http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf (26 June 2015). 2010s

“After Magna Carta became subject to renewed interest in the 17th century, William Blackstone referred to this provision as protecting the 'absolute rights of every Englishman'. And he formulated those absolute rights as 'the right of personal security', which included the right to life; 'the right of personal liberty'; and 'the right of private property'. He defined 'the right of personal liberty' as 'the power of loco-motion, of changing situation, or removing one's person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law'. The Framers drew heavily upon Blackstone's formulation, adopting provisions in early State Constitutions that replicated Magna Carta's language, but were modified to refer specifically to 'life, liberty, or property'. State decisions interpreting these provisions between the founding and the ratification of the Fourteenth Amendment almost uniformly construed the word 'liberty' to refer only to freedom from physical restraint. Even one case that has been identified as a possible exception to that view merely used broad language about liberty in the context of a habeas corpus proceeding—a proceeding classically associated with obtaining freedom from physical restraint.”

Clarence Thomas (1948) Associate Justice of the Supreme Court of the United States

Obergefell v. Hodges http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf (26 June 2015). 2010s

“Property has always been the central consideration of the United States government, but it has become even more so over time. Between the signing of the Declaration of Independence in 1776, to provide just one obvious, and in some ways, silly, example (silly because all of the terms are seemingly obvious, yet in fact nearly impossible to adequately define) and the passage of the Fourteenth Amendment to the U. S. Constitution in 1868, the inalienable right with which men [sic] are self-evidently endowed by their Creator, and which may not be abridged by the State, changed from "Life, Liberty, and the pursuit of Happiness," to life, liberty, and property. The Fourteenth Amendment, passed during the KKK's maiden reign of terror, ostensibly to protect the rights of blacks from racist state governments, has been used far more often to protect the rights to property: Of the Fourteenth Amendment cases brought before the Supreme Court between 1890 and 1910, only nineteen dealt with the rights of blacks, while two hundred and eighty-eight dealt with the rights of corporations.”

Derrick Jensen book The Culture of Make Believe

Source: The Culture of Make Believe (2003), p. 92

“Woman must have her freedom; the fundamental freedom of choosing whether or not she shall be a mother and how many children she will have. Regardless of what man's attitude may be, that problem is hers; and before it can be his, it is hers alone. She goes through the vale of death alone, each time a babe is born. As it is the right neither of man nor the state to coerce her into this ordeal, so it is her right to decide whether she will endure it. That right to decide imposes upon her the duty of clearing the way to knowledge by which she may make and carry out the decision. Birth control is woman's problem. The quicker she accepts it as hers and hers alone, the quicker will society respect motherhood. The quicker, too, will the world be made a fit place for her children to live.”

Margaret Sanger book Woman and the New Race

Source: Woman and the New Race, (1922), Chapter 8, "Birth Control; A Parents' Problem or Woman's?"

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Potter Stewart7

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