CHERRY-PICKING HISTORY: WITCHCRAFT, THE COMMON LAW, AND THE WEAPONIZATION OF SUBSTANTIVE DUE PROCESS.

In 2021, the Supreme Court sharply altered its substantive due process analysis in Dobbs v. Jackson Women’s Health Organization, reversing the 49-year-old decision in Roe v. Wade to establish abortion access as a constitutional right. The Court reframed its substantive due process analysis as a two-step test, requiring a right to be narrowly framed and “deeply rooted in history and tradition” before it could be analyzed as “implicit in the concept of liberty,” instead of its previous balancing test that involved a broad description of the right. In the Dobbs majority opinion, the Court cherry-picked elements of common law jurisprudence as its chosen “history and tradition” to strike down Roe v. Wade. In doing so, the Court demonstrated its ability to weaponize substantive due process with originalist theory, threatening to utilize the very doctrine that many civil liberties are based in to strike those down. This Note uses a combination of historical analysis and social science to criticize this approach to substantive due process, using one of the common law authorities the Dobbs majority cited— scholar and witch-hunter Sir Matthew Hale—as an example of the type of history the Court has the potential to recreate. It argues that the Court’s decision to treat Hale as a legal authority enshrines the culture of oppression through witch-hunting that contributed to the Salem Witch Trials, paving the way for a legally enforceable codified morality. It ultimately concludes with a criticism of the overutilization of common law and an assertion of alternate means to argue abortion rights, combined with a prediction of the potential downfall of substantive due process. [ABSTRACT FROM AUTHOR]