Law professor illuminates mistakes of Supreme Court on abortion, substantive due process


A quiet, calming voice filled an Egan Hall classroom on the morning of Nov. 28 as a renowned legal authority spoke to students about “The Supreme Court and Substantive Due Process.”

Stephen Mikochik, who holds a doctor of jurisprudence degree and is a visiting professor at Franciscan University of Steubenville, argued that the Supreme Court misused the due process clause when legalizing abortion and gay marriage. He began his lecture with the 14th Amendment clause: “nor shall any State deprive any person of life, liberty, or property, without due process of law.”

To explain the due process procedure, Mikochik said that plaintiffs who complain against the government for failing to protect their fundamental rights must “show that (the right they) are looking for is deeply rooted in Anglo-American law.” A citizen should be able to provide a legal tradition that protects these rights in order to take up a court case against the government for not defending the rights.

Fifty years ago, nearly every country criminalized abortion, Mikochik said. During Roe v. Wade, Roe argued that her state government was failing to protect her fundamental right to abortion. Mikochik said that since Anglo-American legal systems had no history of legalizing abortion, Roe’s argument for fundamental rights was invalid, but the Supreme Court ruled that women should have a right to abortion anyway.

Abortion cases such as Roe v. Wade and Planned Parenthood v. Casey, in addition to the right to sodomy and homosexual marriage as developed in cases such as Lawrence v. Texas, established a system of “second-tier rights” secondary to fundamental rights but still protected under the due process clause, Mikochik said. Before these court cases, such second-tier rights had not been protected by American law, Mikochik said, but now, the Supreme Court has effectively forbidden the state legislatures from outlawing abortion.

Senior Prudence Robertson appreciated the clarity Mikochik brought to the issue and expressed her interest in the concept of second-tier rights, saying, “I really thought it was interesting that they established … a system of second-tier rights because they didn’t have enough evidence to support the fact that abortion and gay marriage are fundamental rights. The justices on the Supreme Court … honestly just made up this second group of rights that just don’t exist.”