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Alderman, Ellen and Kennedy, Caroline. The Right to Privacy. Alfred J. Knopf, New York, 1995. pages 57 - 61. 1965 the Supreme Court decided the landmark case Griswold v Connecticut, the precursor of Roe v Wade and subsequent abortion cases.  In Griswold, the Supreme Court struck down a Connecticut statute making it a crime to use or counsel anyone in the use of contraceptives.  A New Haven doctor and the executive director of the local Planned Parenthood affiliate had been arrested, and each fined $100, for counseling married couples regarding birth control.

The arguments on both sides in Griswold foreshadowed not only the central debate in the abortion cases but also the division among the justices, who issued six different opinions.  Nonetheless, a majority of the Court did conclude that the Constitution protects a fundamental right to privacy, which in turn includes the right to make the intimate decision as to whether to use contraceptives.  To a majority of the Court, it was inconceivable that the government could regulate family size without violating the Constitution.  "We deal with a right to privacy older than the Bill of Rights," Justice William 0. Douglas wrote for the Court.  However, the justices disagreed about where in the Constitution such a right was located.

Justice Douglas pointed out that many rights which are not specifically mentioned in the Constitution but are derived from specific provisions have long been protected by the Court.  For example, freedom of association is an extension of the guarantees of freedom of speech and assembly.  Justice Douglas found that the spirit, structure, and specific provisions of the Bill of Rights created "zones of privacy" which are broad enough to protect aspects of personal and family life-in this marital privacy.

  The opposite conclusion was almost surreal.  "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?" he asked. Two justices dissented.  "I like my privacy as well as the next one,"wrote Justice Hugo Black, "but I am nevertheless compelled to admit that the government has a right to invade it unless prohibited by some specific constitutional provision." justice Potter Stewart agreed. of the Connecticut ban on contraceptives, he wrote, "I think this is an uncommonly silly law. . . . But we are not asked, in this case, to say whether we think this law is unwise, or even asinine.  We are asked to hold that it violates the United States Constitution.  And that I cannot do." justice Stewart suggested that if the law did not represent the views of Connecticut's citizens, the state legislature should simply repeal it.  "I can find no such general right of privacy in the Bill of Rights, in any- other part of the Constitution, or in any case ever before decided by this Court," justice Stewart wrote. With rhetorical swords drawn, both sides headed into the battle over abortion.  On the way to Roe v. Wade, the Court passed an important stepping stone.  In 1972, in Eisenstadt v. Baird, the Court held that a ban on contraception violated the rights of unmarried persons under the Equal Protection Clause and was therefore unconstitutional.  In language expanding the right to privacy, Justice William Brennan wrote for the Court, "If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."


Exactly ten months later, on January 22, i973, the Court decided Roe v. Wade.  By a vote Of 7 to 2, the Supreme Court held that a Texas law criminalizing all abortions except those necessary to save the mother's life violated the constitutional right to privacy.


The Court went out of its way to declare, "We need not resolve the difficult question of when life begins." The Court noted the diversity of medical, philosophical, and religious opinion on the issue and confined its discussion to the legal treatment of the unborn. The Court concluded that as used in the Constitution, the word "persons” had never been interpreted to include the unborn. Similarly, under state laws a fetus must generally be born alive in order to inherit or to recover damages, even for injuries sustained in the womb. Therefore, the Court concluded, "The unborn have never been recognized in the law as persons in the whole sense."


In an opinion Justice Harry Blackmun, the Court first surveyed the laws regarding abortion from ancient times to the present.  The Court concluded that, perhaps surprisingly, laws prohibiting abortion, particularly in the earlier stages of pregnancy, were relatively new.  Looking back to antiquity and up through English and American common law and statute, the Court determined that abortion had been widely practiced throughout history and had not always been illegal.  It was only in the late nineteenth century that most American states had outlawed abortion.


In fact, as the majority saw it, the trend was toward greater liberalization of abortion laws. Twentieth century advances in medicine had made abortion a safer medical procedure than it had been in the past and, at least in the early stages of pregnancy, women were less likely to die in abortion than in childbirth. By 1970, about one-third of the states had loosened some of the restrictions on abortion, or adopted less stringent laws.  The medical and legal professions also recommended liberalization.


The majority acknowledged that the right to privacy was not explicitly mentioned in the Constitution, yet pointed out that it had been recognized by the Court for many years.  The right to privacy was not unlimited but included only those personal rights that were "fundamental" or "implicit in the concept of ordered liberty": rights pertaining to marriage, procreation, contraception, family relationships, child rearing, and education.  In a now famous declaration, the Court added abortion to the list. ‚ÄúThis right of privacy ... is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.


IN THE years following Roe, the Court decided a major abortion case just about every other year.  The justices struck down many of the provisions that came before them, including the requirements that a woman obtain the consent of her husband before having an abortion, that she wait twenty-four hours between her initial consultation with a health care provider and the abortion procedure itself, and that all second-trimester abortions be performed in a hospital. The Court upheld other restrictions, including the withdrawal of federal funding for abortion, a rule that all second-trimester abortions be performed in a licensed clinic, and that a second physician be present during abortions performed after viability.

In I976, the Court also struck down a requirement that both parents of a minor must consent before their daughter can have an abortion. (As with spousal consent, the Court has refused to grant veto power over a woman's decision to another person.) However, in 1981, it upheld a law providing that parents must be notified, "if possible." And in i983, the Court upheld a parental consent law which contained an alternative whereby a judge could waive the consent requirement if the minor could show she was sufficiently mature to make the decision on her own, or that notifying her parents would not be in her best interest (for example, if the pregnancy was the result of incest).  This process is known as a judicial bypass.

By the late 1980's, abortion had become an enormous, and enormously divisive, political issue.  The Court was also divided, and bitterly so.  The presence of several new justices, including Antonin Scalia, Sandra Day O'Connor, and Anthony Kennedy, fueled speculation that the Court was preparing to overrule Roe.

In 1989, in Webster v. Reproductive Health Services, the Supreme Court almost did so, upholding the most severe restrictions on abortion until that time.  Missouri had passed a law designed to "encourage childbirth over abortion." The law banned the use of public facilities or staff to perform abortions except to save the mother's life.  The law also required a physician to perform tests on a woman twenty or more weeks pregnant to determine whether the fetus was "viable." (Viability itself was estimated at twenty-four weeks.  The earlier starting date was intended to compensate for errors in estimating gestational age.)

In upholding the Missouri regulations, the nine justices issued six opinions.  One justice, Antonin Scalia, called on the Court to overrule Roe outright.  Three more justices-Chief justice William Rehnquist and Justices Byron White and Anthony Kennedy-called for doing away with Roe's trimester framework. justice Sandra Day O'Connor provided the swing vote, in favor of the restrictions, but against revisiting Roe. (She also expressed dissatisfaction with the trimester framework, but concluded that Webster was not the proper case in which to reexamine it.)

Chief justice Rehnquist wrote the 5-to-4 decision for the Court.  Harking back to his dissent in Roe, justice Rehnquist criticized the trimester framework as judicial legislation that had turned the Court into the country's "ex officio medical board." in addition, he said, the



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