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Alderman, Ellen
and Kennedy, Caroline. The Right to Privacy. Alfred
J. Knopf, New York, 1995. pages 57 - 61. ............in
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. “This 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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