The anti-abortion laws passed in recent days by legislatures in Alabama and Georgia seem designed for one purpose: to get the Supreme Court to overturn its landmark 1973 Roe v. Waderuling that guaranteed a woman’s right to an abortion. The Court — more solidly conservative now than ever thanks to the recent addition of Justice Brett Kavanaugh — may well uphold those new laws.

Will voters do the same?

Maybe not. There is plenty of evidence that citizens of conservative states are, to some extent, actually protective of abortion rights. It may not be something they proclaim in their offices, at church, or to pollsters — but their secret beliefs can become quite evident once they enter the voting booth. This should make the legislators who passed the new bills very nervous.

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My home state of Kansas has been a hotbed of abortion-related activism for more than a generation. Most memorable, perhaps, were the 1991 “Summer of Mercy” protests in Wichita, where thousands of protesters flooded the city to blockade an abortion clinic operated by Dr. George Tiller; over the course of six weeks and more than 2,600 people were arrested. Anti-abortion protests in Kansas have, on occasion, congealed into violence: Tiller’s clinic was firebombed in 1986; he was shot and injured by an abortion opponent in 1993; he was shot and killed by another abortion opponent in 2009.

But the state’s record on abortion is more mixed than Tiller’s story might suggest. Take, for example, the story of Phill Kline, someone you’ve likely never heard of but whose rise and fall could be a warning sign for anti-abortion legislators in Kansas and other red states today. Kline spent a decade as a culture warrior in the Kansas legislature before being elected the state’s attorney general in 2002. He used the perch to go on an anti-abortion crusade, ultimately bringing more than 30 misdemeanor charges against Tiller in 2006. A judge threw out those charges; Tiller was acquitted in a follow-up case the following year.

But voters in the famously red state of Kansas had enough: Kline lost his re-election campaign, badly, with just 41 percent of the vote. He managed to get himself appointed as district attorney in Johnson County, home to prosperous Kansas City suburbs, only to lose a primary election two years after that. These days, he’s on the faculty at Liberty University in Virginia, having lost his law license for misconduct during the abortion investigations.

Kansas is hardly a progressive state, but voters here often tire quickly of extremists. The same is probably true in other conservative states. While America’s abortion politics are polarized, many citizens are closer to the mushy middle on abortion — morally squeamish about it, but sometimes willing to suspend those qualms when faced with difficult decisions for themselves or their family members.

Across the nation as a whole, just 17 percent of Americans say Roe should be overturned entirely, and this reality is reflected at the state level: In 2008, voters in the solidly-Republican state of South Dakota overwhelmingly rejected a statewide ban on abortion — and repeated the feat two years later, even after exceptions for incest and rape were added to the proposed law. In 2011, Mississippi voters rejected a similar referendum by an even larger margin. Back in my home state of Kansas, the state Supreme Court last month ruled — shockingly — that the state constitution protects the right to an abortion.

“There’s a lot of public pressure to be anti-abortion,” Marvin Buehner, a South Dakota OB-GYN said at the time of the 2008 proposal. “People are more likely to answer the poll that they’ll support [a ban]. Then they get into the ballot booth and decide they just can’t vote for something like that.”

These sweeping new laws do very little to assuage the concerns of such voters. Alabama’s bill, for example, makes no exception for incest or rape. Georgia’s law would grant personhood protections to fetuses just six weeks after conception. Even if the Supreme Court upholds the laws, the examples from Kansas, Mississippi, and South Dakota suggest that legislators who passed these new bills could find themselves suddenly vulnerable.

Of course, that won’t satisfy pro-choice women and men who believe the right to abortion is just that — a right, to be defended by government, not compromised by it. “Today’s women can only thrive in a state that protects their most basic rights — the right to choose when and whether to start a family,” Andrea Young, executive director of Georgia’s ACLU, said last week, pledging to challenge the state’s new law.

Despite the high stakes of the coming court battles over the new anti-abortion laws, the Supreme Court is not the end of the line. In politics, few battles are ever completely won or lost. Nearly 50 years after Roe v. Wade, the fight may just be beginning anew.

https://theweek.com/articles/841763/why-americas-strict-new-antiabortion-laws-could-backfire

Roe v. Wade

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Roe v. Wade
Seal of the United States Supreme Court

Argued December 13, 1971
Reargued October 11, 1972
Decided January 22, 1973
Full case name Jane Roe, et al. v. Henry Wade, District Attorney of Dallas County
Citations 410 U.S. 113 (more)

93 S. Ct. 705; 35 L. Ed. 2d 147; 1973 U.S. LEXIS 159
Argument Oral argument
Reargument Reargument
Decision Opinion
Case history
Prior Judgment for plaintiffs, injunction denied, 314 F. Supp.1217 (N.D. Tex. 1970); probable jurisdiction noted402U.S. 941 (1971); set for reargument408 U.S. 919 (1972)
Subsequent Rehearing denied410 U.S.959 (1973)
Holding
Texas law making it a crime to assist a woman to get an abortion violated her due process rights. U.S. District Court for the Northern District of Texas affirmed in part, reversed in part.
Court membership
Chief Justice
Warren E. Burger
Associate Justices
William O. Douglas · William J. Brennan Jr.
Potter Stewart · Byron White
Thurgood Marshall · Harry Blackmun
Lewis F. Powell Jr. · William Rehnquist
Case opinions
Majority Blackmun, joined by Burger, Douglas, Brennan, Stewart, Marshall, Powell
Concurrence Burger
Concurrence Douglas
Concurrence Stewart
Dissent White, joined by Rehnquist
Dissent Rehnquist
Laws applied
U.S. Const. Amend. XIV;
Tex. Code Crim. Proc. arts. 1191–94, 1196

Roe v. Wade, 410 U.S. 113 (1973),[1] was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides a fundamental “right to privacy” that protects a pregnant woman’s liberty to choose whether or not to have an abortion. It also ruled that this “right to privacy” is not absolute and must be balanced against the government’s interests in protecting women’s health and protecting prenatal life.[2][3] The Court resolved this balancing test by tying state regulation of abortion to the three trimesters of pregnancy: the Court ruled that during the first trimester, governments could not prohibit abortions at all; during the second trimester, governments could require reasonable health regulations; during the third trimester, abortions could be prohibited entirely so long as the laws contained exceptions for cases when abortion was necessary to save the life of the mother.[4] Because the Court classified the right to choose to have an abortion as “fundamental”, the decision required courts to evaluate challenged abortion laws under the “strict scrutiny” standard, the highest level of judicial review in the United States.[5]

In disallowing many state and federal restrictions on abortion in the United States,[6][7] Roe v. Wade prompted a national debate that continues today about issues including whether, and to what extent, abortion should be legal, who should decide the legality of abortion, what methods the Supreme Court should use in constitutional adjudication, and what the role should be of religious and moral views in the political sphere. Roe v. Wadereshaped national politics, dividing much of the United States into pro-life and pro-choice camps, while activating grassroots movements on both sides.

Roe was criticized by some in the legal community,[8] with the decision being seen as a form of judicial activism.[9] In a 1973 article in the Yale Law Journal,[8][9] the American legal scholar John Hart Ely criticized Roe as a decision that “is not constitutional law and gives almost no sense of an obligation to try to be.”[10] Ely added: “What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure.” Professor Laurence Tribe had similar thoughts: “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”[11]

In 1992, the Supreme Court modified the legal principles in Roe in the case of Planned Parenthood v. Casey.[12] In Casey, the Court reaffirmed Roe‘s holding that a woman’s right to abort a nonviable fetus is constitutionally protected, but abandoned Roe‘s trimester framework in favor of a standard based on fetal viability, and overruled Roe‘s requirement that government regulations on abortion be subjected to the strict scrutiny standard.[2][13]The Roe decision defined “viable” as “potentially able to live outside the mother’s womb, albeit with artificial aid.”[14] Justices in Casey acknowledged that viability may occur at 23 or 24 weeks, or sometimes even earlier, in light of medical advances.[15]

Contents

Background

History of abortion laws in the United States

According to the Court, “the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage.” Providing a historical analysis on abortion, Justice Harry Blackmun noted that abortion was “resorted to without scruple” in Greek and Roman times.[16] Blackmun also addressed the permissive and restrictive abortion attitudes and laws throughout history, noting the disagreements among leaders (of all different professions) in those eras and the formative laws and cases.[17] In the United States, in 1821, Connecticut passed the first state statute criminalizing abortion. Every state had abortion legislation by 1900.[18] In the United States, abortion was sometimes considered a common law crime,[19] though Justice Blackmun would conclude that the criminalization of abortion did not have “roots in the English common-law tradition.”[20] Rather than arresting the women having the abortions, legal officials were more likely to interrogate these women to obtain evidence against the abortion provider in order to close down that provider’s business.[21][22]

In 1971, Shirley Wheeler was charged with manslaughter after Florida hospital staff reported her illegal abortion to the police. She received a sentence of two years’ probation and, under her probation, had to move back into her parents’ house in North Carolina.[21] The Boston Women’s Abortion Coalition held a rally for Wheeler in Boston to raise money and awareness of her charges as well as had staff members from the Women’s National Abortion Action Coalition (WONAAC) speak at the rally.[23] Wheeler was possibly the first woman to be held criminally responsible for submitting to an abortion.[24] Her conviction was overturned by the Florida Supreme Court.[21]

History of the case

In June 1969, 21-year-old Norma McCorvey discovered she was pregnant with her third child. She returned to Dallas, Texas, where friends advised her to assert falsely that she had been raped in order to obtain a legal abortion (with the incorrect assumption that Texas law allowed abortion in cases of rape and incest). This scheme would also fail because there was no police report documenting the alleged rape. In any case, the Texas statute allowed abortion only ”for the purpose of saving the life of the mother”. She attempted to obtain an Illegal abortion, but found that the unauthorized facility had been closed down by the police. Eventually, she was referred to attorneys Linda Coffee and Sarah Weddington.[25][26] (McCorvey would end up giving birth before the case was decided, and the child was put up for adoption.)[27]

In 1970, Coffee and Weddington filed suit in the United States District Court for the Northern District of Texas on behalf of McCorvey (under the alias Jane Roe). The defendant in the case was Dallas County District AttorneyHenry Wade, who represented the State of Texas. McCorvey was no longer claiming her pregnancy was a result of rape, and later acknowledged that she had lied about having been raped.[28][29] “Rape” is not mentioned in the judicial opinions in the case.[30]

On June 17, 1970, a three-judge panel of the District Court, consisting of Northern District of Texas Judges Sarah T. HughesWilliam McLaughlin Taylor Jr. and Fifth Circuit Court of Appeals Judge Irving Loeb Goldberg, unanimously[30] declared the Texas law unconstitutional, finding that it violated the right to privacy found in the Ninth Amendment. In addition, the court relied on Justice Arthur Goldberg‘s 1965 concurrence in Griswold v. Connecticut. The court, however, declined to grant an injunction against enforcement of the law.[31]

Issues before the Supreme Court

Roe v. Wade reached the Supreme Court on appeal in 1970. The justices delayed taking action on Roe and a closely related case, Doe v. Bolton, until they had decided Younger v. Harris (because they felt the appeals raised difficult questions on judicial jurisdiction) and United States v. Vuitch (in which they considered the constitutionality of a District of Columbia statute that criminalized abortion except where the mother’s life or health was endangered). In Vuitch, the Court narrowly upheld the statute, though in doing so, it treated abortion as a medical procedure and stated that physicians must be given room to determine what constitutes a danger to (physical or mental) health. The day after they announced their decision in Vuitch, they voted to hear both Roe and Doe.[32]

Arguments were scheduled by the full Court for December 13, 1971. Before the Court could hear the oral arguments, Justices Hugo Black and John Marshall Harlan II retired. Chief Justice Warren Burger asked Justice Potter Stewart and Justice Blackmun to determine whether Roe and Doe, among others, should be heard as scheduled. According to Blackmun, Stewart felt that the cases were a straightforward application of Younger v. Harris, and they recommended that the Court move forward as scheduled.[33]

In his opening argument in defense of the abortion restrictions, attorney Jay Floyd made what was later described as the “worst joke in legal history.”[34] Appearing against two female lawyers, Floyd began, “Mr. Chief Justice and may it please the Court. It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.” His remark was met with cold silence; one observer thought that Chief Justice Burger “was going to come right off the bench at him. He glared him down.”[35][36]

After a first round of arguments, all seven justices tentatively agreed that the Texas law should be struck down, but on varying grounds.[37] Burger assigned the role of writing the Court’s opinion in Roe (as well as Doe) to Blackmun, who began drafting a preliminary opinion that emphasized what he saw as the Texas law’s vagueness.[38] (At this point, Black and Harlan had been replaced by Justices William Rehnquist and Lewis F. Powell Jr., but they arrived too late to hear the first round of arguments.) But Blackmun felt that his opinion did not adequately reflect his liberal colleagues’ views.[39] In May 1972, he proposed that the case be reargued. Justice William O. Douglas threatened to write a dissent from the reargument order (he and the other liberal justices were suspicious that Rehnquist and Powell would vote to uphold the statute), but was coaxed out of the action by his colleagues, and his dissent was merely mentioned in the reargument order without further statement or opinion.[40][41] The case was reargued on October 11, 1972. Weddington continued to represent Roe, and Texas Assistant Attorney General Robert C. Flowers replaced Jay Floyd for Texas.[citation needed]

Blackmun continued to work on his opinions in both cases over the summer recess, even though there was no guarantee that he would be assigned to write them again. Over the recess, he spent a week researching the history of abortion at the Mayo Clinic in Minnesota, where he had worked in the 1950s. After the Court heard the second round of arguments, Powell said he would agree with Blackmun’s conclusion but pushed for Roe to be the lead of the two abortion cases being considered. Powell also suggested that the Court strike down the Texas law on privacy grounds. Justice Byron White was unwilling to sign on to Blackmun’s opinion, and Rehnquist had already decided to dissent.[42]

Prior to the decision, the justices discussed the trimester framework at great length. Justice Powell had suggested that the point where the state could intervene be placed at viability, which Justice Thurgood Marshall supported as well.[43] In an internal memo to the other justices before the majority decision was published, Justice Blackmun wrote: “You will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary.”[44]Roe supporters are quick to point out, however, that the memo only reflects Blackmun’s uncertainty about the timing of the trimester framework, not the framework or the holding itself.[45] In his opinion, Blackmun also clearly explained how he had reached the trimester framework – scrutinizing history, common law, the Hippocratic Oath, medical knowledge, and the positions of medical organizations.[46] Justice Blackmun’s trimester framework was later rejected by the O’Connor–Souter–Kennedy plurality in Casey, in favor of the “undue burden” analysis still employed by the Court.[47] Contrary to Blackmun, Justice Douglas preferred the first-trimester line.[48] Justice Stewart said the lines were “legislative” and wanted more flexibility and consideration paid to state legislatures, though he joined Blackmun’s decision.[49] Justice William J. Brennan Jr. proposed abandoning frameworks based on the age of the fetus and instead allowing states to regulate the procedure based on its safety for the mother.[48]

Supreme Court decision

On January 22, 1973, the Supreme Court issued a 7–2 decision in favor of Roe that struck down Texas’s abortion ban as unconstitutional. In addition to the majority opinion, Justices Burger, Douglas, and Stewart each filed concurring opinions, and Justice White filed a dissenting opinion in which Justice Rehnquist joined. Burger’s, Douglas’s, and White’s opinions were issued along with the Court’s opinion in Doe v. Bolton (announced on the same day as Roe v. Wade).

Opinion of the Court

Justice Harry Blackmun, the author of the majority opinion in Roe v. Wade.

Seven justices formed the majority and joined an opinion written by Justice Harry Blackmun. The Court began by exhaustively reviewing the legality of abortion throughout the history of Roman law and the Anglo-American common law up until the 20th century.[50] It also reviewed the developments of medical procedures and technology to perform abortions safely.[50]

Right to privacy

With its historical survey as background, the Court centered its opinion around the notion of a constitutional “right to privacy” that was intimated in earlier cases involving family relationships and reproductive autonomy.[50] After reviewing these cases, the Court proceeded, “with virtually no further explanation of the privacy value”,[5] to rule that regardless of exactly which provisions were involved, the U.S. Constitution’s guarantees of liberty covered a right to privacy that generally protected a pregnant woman’s decision whether or not to abort a pregnancy.[3]

This right of privacy, whether it be founded in the Fourteenth Amendment‘s concept of personal liberty and restrictions upon state action, as we feel it is, or … in the Ninth Amendment‘s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.

— Roe, 410 U.S. at 153.[51]

The Court reasoned that outlawing abortions would infringe a pregnant woman’s right to privacy for several reasons: having unwanted children “may force upon the woman a distressful life and future”; it may bring imminent psychological harm; caring for the child may tax the mother’s physical and mental health; and because there may be “distress, for all concerned, associated with the unwanted child.”[52] However, the Court rejected the notion that a pregnant woman’s right to abort her pregnancy was absolute, and held that the right must be balanced against other considerations such as the state’s interest in protecting “prenatal life.”[53]

The Court acknowledged that states had two interests that were sufficiently “compelling” to permit some limitations on the right to choose to have an abortion: their interests in protecting the mother’s health and protecting the life of the fetus. The Court had rejected Roe’s argument that a woman’s right to choose to have an abortion should be absolute, and it also rejected Texas’s argument that total bans on abortion were justifiable because “life” begins at the moment of conception.[5] The Court found that there was no indication that the Constitution’s uses of the word “person” were meant to include fetuses, and so it rejected Texas’s argument that a fetus should be considered a “person” with a legal and constitutional right to life.[54] It noted that there was still great disagreement over when an unborn fetus becomes a “person”.[54]

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, in this point in the development of man’s knowledge, is not in a position to speculate as to the answer.

— Roe, 410 U.S. at 159.[55]

The Court settled on the three trimesters of pregnancy as the framework to resolve the problem. During the first trimester, when it was believed that the procedure was safer than childbirth, the Court ruled that the government could place no restriction on a woman’s ability to choose to abort a pregnancy other than minimal medical safeguards such as requiring a licensed physician to perform the procedure.[5] After the first trimester, the Court ruled that evidence of increasing risks to the mother’s health gave the state a compelling interest, and that it could enact medical regulations on the procedure so long as they were reasonable and “narrowly tailored” to protecting mothers’ health.[5] At the level of medical science available in the early 1970s, the beginning of the third trimester was normally considered to be the point at which a fetus became viable. Therefore, the Court ruled that, from the beginning of the third trimester on through the rest of a pregnancy, the state had a compelling interest in protecting prenatal life, and could legally prohibit all abortions except where necessary to protect the mother’s life or health.[5]

Justiciability

An aspect of the decision that attracted comparatively little attention was the Court’s disposition of the issues of standing and mootness. Under the traditional interpretation of these rules, Jane Roe’s appeal was “moot” because she had already given birth to her child and thus would not be affected by the ruling; she also lacked “standing” to assert the rights of other pregnant women.[56] As she did not present an “actual case or controversy” (a grievance and a demand for relief), any opinion issued by the Supreme Court would constitute an advisory opinion.

The Court concluded that the case came within an established exception to the rule: one that allowed consideration of an issue that was “capable of repetition, yet evading review.”[57] This phrase had been coined in 1911 by Justice Joseph McKenna in Southern Pacific Terminal Co. v. ICC.[58] Blackmun’s opinion quoted McKenna and noted that pregnancy would normally conclude more quickly than an appellate process: “If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied.”[59]

Concurrences

Several other members of the Supreme Court filed concurring opinions in the case. Justice Potter Stewart wrote a concurring opinion in which he stated that even though the Constitution makes no mention of the right to choose to have an abortion without interference, he thought the Court’s decision was a permissible interpretation of the doctrine of substantive due process, which says that the Due Process Clause‘s protection of liberty extends beyond simple procedures and protects certain fundamental rights.[54] Justice William O. Douglas wrote a concurring opinion in which he described how he believed that while the Court was correct to find that the right to choose to have an abortion was a fundamental right, it would be better to derive it from the Ninth Amendment – which states that the fact that a right is not specifically enumerated in the Constitution shall not be construed to mean that American people do not possess it – rather than through the Fourteenth Amendment’s Due Process Clause.[54]

Dissents

Byron White was the senior dissenting justice.

Only two justices dissented from the Court’s decision, but their dissents touched on the points that would lead to later criticism of the Roe decision.[5]

Justice Byron White wrote a dissenting opinion in which he stated his belief that the Court had no basis for deciding between the competing values of pregnant women and unborn children. He wrote:

I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the woman, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

— Roe, 410 U.S. at 221–22 (White, J., dissenting).

White asserted that the Court “values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries.” Though he suggested that he “might agree” with the Court’s values and priorities, he wrote that he saw “no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States.” White criticized the Court for involving itself in the issue of abortion by creating “a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it.” He would have left this issue, for the most part, “with the people and to the political processes the people have devised to govern their affairs.”

Justice William Rehnquist also dissented from the Court’s decision. In his dissenting opinion, he compared the majority’s use of substantive due process to the Court’s repudiated use of the doctrine in the 1905 case Lochner v. New York.[5] He elaborated on several of White’s points, asserting that the Court’s historical analysis was flawed:

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.

— Roe, 410 U.S. at 174–76 (Rehnquist, J., dissenting).[60][61][62]

From this historical record, Rehnquist concluded, “There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted.” Therefore, in his view, “the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.”

Reception

Political

A statistical evaluation of the relationship of political affiliation to pro-choice and anti-abortion issues shows that public opinion is much more nuanced about when abortion is acceptable than is commonly assumed.[63] The most prominent organized groups that mobilized in response to Roe are the National Abortion Rights Action League and the National Right to Life Committee.

Support

Advocates of Roe describe it as vital to the preservation of women’s rights, personal freedom, bodily integrity, and privacy. Advocates have also reasoned that access to safe abortion and reproductive freedom generally are fundamental rights. Some scholars (not including any member of the Supreme Court) have equated the denial of abortion rights to compulsory motherhood, and have argued that abortion bans therefore violate the Thirteenth Amendment:

When women are compelled to carry and bear children, they are subjected to ‘involuntary servitude’ in violation of the Thirteenth Amendment….[E]ven if the woman has stipulated to have consented to the risk of pregnancy, that does not permit the state to force her to remain pregnant.[64]

Supporters of Roe contend that the decision has a valid constitutional foundation in the Fourteenth Amendment, or that the fundamental right to abortion is found elsewhere in the Constitution but not in the articles referenced in the decision.[64][65]

Opposition

Protestors at the 2009 March for Life rally against Roe v. Wade

Every year, on the anniversary of the decision, opponents of abortion march up Constitution Avenue to the Supreme Court Building in Washington, D.C., in the March for Life.[66] Around 250,000 people attended the march until 2010.[67][68] Estimates put the 2011 and 2012 attendances at 400,000 each,[69] and the 2013 March for Life drew an estimated 650,000 people.[70]

Opponents of Roe assert that the decision lacks a valid constitutional foundation.[71] Like the dissenters in Roe, they maintain that the Constitution is silent on the issue, and that proper solutions to the question would best be found via state legislatures and the legislative process, rather than through an all-encompassing ruling from the Supreme Court.[72]

A prominent argument against the Roe decision is that, in the absence of consensus about when meaningful life begins, it is best to avoid the risk of doing harm.[73]

In response to Roe v. Wade, most states enacted or attempted to enact laws limiting or regulating abortion, such as laws requiring parental consent or parental notification for minors to obtain abortions; spousal mutual consent laws; spousal notification laws; laws requiring abortions to be performed in hospitals, not clinics; laws barring state funding for abortions; laws banning intact dilation and extraction, also known as partial-birth abortion; laws requiring waiting periods before abortions; and laws mandating that women read certain types of literature and watch a fetal ultrasound before undergoing an abortion.[74] In 1976, Congress passed the Hyde Amendment, barring federal funding of abortions (except in cases of rape, incest, or a threat to the life of the mother) for poor women through the Medicaid program. The Supreme Court struck down some state restrictions in a long series of cases stretching from the mid-1970s to the late 1980s, but upheld restrictions on funding, including the Hyde Amendment, in the case of Harris v. McRae (1980).[75]

Some opponents of abortion maintain that personhood begins at fertilization or conception, and should therefore be protected by the Constitution;[65] the dissenting justices in Roe instead wrote that decisions about abortion “should be left with the people and to the political processes the people have devised to govern their affairs.”[76]

Perhaps the most notable opposition to Roe comes from Roe herself: In 1995, Norma L. McCorvey revealed that she had become pro-life, and from then until her death in 2017, she was a vocal opponent of abortion.[77]

Legal

Justice Blackmun, who authored the Roe decision, stood by the analytical framework he established in Roe throughout his career.[78] Despite his initial reluctance, he became the decision’s chief champion and protector during his later years on the Court.[79] Liberal and feminist legal scholars have had various reactions to Roe, not always giving the decision unqualified support. One argument is that Justice Blackmun reached the correct result but went about it the wrong way.[80] Another is that the end achieved by Roe does not justify its means of judicial fiat.[81]

Justice John Paul Stevens, while agreeing with the decision, has suggested that it should have been more narrowly focused on the issue of privacy. According to Stevens, if the decision had avoided the trimester framework and simply stated that the right to privacy included a right to choose abortion, “it might have been much more acceptable” from a legal standpoint.[82] Justice Ruth Bader Ginsburg had, before joining the Court, criticized the decision for ending a nascent movement to liberalize abortion law through legislation.[83]Ginsburg has also faulted the Court’s approach for being “about a doctor’s freedom to practice his profession as he thinks best…. It wasn’t woman-centered. It was physician-centered.”[84] Watergate prosecutor Archibald Cox wrote: “[Roes] failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations…. Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution.”[85]

In a highly cited 1973 article in the Yale Law Journal,[9] Professor John Hart Ely criticized Roe as a decision that “is not constitutional law and gives almost no sense of an obligation to try to be.”[86] Ely added: “What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure.” Professor Laurence Tribe had similar thoughts: “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”[87] Liberal law professors Alan Dershowitz,[88] Cass Sunstein,[89] and Kermit Roosevelt[90] have also expressed disappointment with Roe.

Jeffrey Rosen[91] and Michael Kinsley[92] echo Ginsburg, arguing that a legislative movement would have been the correct way to build a more durable consensus in support of abortion rights. William Saletan wrote, “Blackmun’s [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference.”[93] Benjamin Wittes has written that Roe “disenfranchised millions of conservatives on an issue about which they care deeply.”[94] And Edward Lazarus, a former Blackmun clerk who “loved Roes author like a grandfather,” wrote: “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible…. Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.”[95]

The assertion that the Supreme Court was making a legislative decision is often repeated by opponents of the ruling.[96] The “viability” criterion is still in effect, although the point of viability has changed as medical science has found ways to help premature babies survive.[97]

Public opinion

Americans have been equally divided on the issue; a May 2018 Gallup poll indicated that 48% of Americans described themselves as pro-choice and 48% described themselves as pro-life. A July 2018 poll indicated that only 28% of Americans wanted the Supreme Court to overturn Roe vs. Wade, while 64% did not want the ruling to be overturned.[98]

Gallup poll conducted in May 2009 indicated that 53% of Americans believed that abortions should be legal under certain circumstances, 23% believed abortion should be legal under any circumstances, and 22% believed that abortion should be illegal in all circumstances. However, in this poll, more Americans referred to themselves as “Pro-Life” than “Pro-Choice” for the first time since the poll asked the question in 1995, with 51% identifying as “Pro-Life” and 42% identifying as “Pro-Choice”.[99] Similarly, an April 2009 Pew Research Center poll showed a softening of support for legal abortion in all cases compared to the previous years of polling. People who said they support abortion in all or most cases dropped from 54% in 2008 to 46% in 2009.[100]

In contrast, an October 2007 Harris poll on Roe v. Wade asked the following question:

In 1973, the U.S. Supreme Court decided that states laws which made it illegal for a woman to have an abortion up to three months of pregnancy were unconstitutional, and that the decision on whether a woman should have an abortion up to three months of pregnancy should be left to the woman and her doctor to decide. In general, do you favor or oppose this part of the U.S. Supreme Court decision making abortions up to three months of pregnancy legal?[101]

In reply, 56% of respondents indicated favour while 40% indicated opposition. The Harris organization concluded from this poll that “56 percent now favours the U.S. Supreme Court decision.” Anti-abortion activists have disputed whether the Harris poll question is a valid measure of public opinion about Roes overall decision, because the question focuses only on the first three months of pregnancy.[102][103] The Harris poll has tracked public opinion about Roe since 1973:[101][104]

Roe v Wade.svg

Regarding the Roe decision as a whole, more Americans support it than support overturning it.[105] When pollsters describe various regulations that Roe prevents legislatures from enacting, support for Roe drops.[105][106]

Role in subsequent decisions and politics

Opposition to Roe on the bench grew when President Reagan, who supported legislative restrictions on abortion, began making federal judicial appointments in 1981. Reagan denied that there was any litmus test: “I have never given a litmus test to anyone that I have appointed to the bench…. I feel very strongly about those social issues, but I also place my confidence in the fact that the one thing that I do seek are judges that will interpret the law and not write the law. We’ve had too many examples in recent years of courts and judges legislating.”[107]

In addition to White and Rehnquist, Reagan appointee Sandra Day O’Connor began dissenting from the Court’s abortion cases, arguing in 1983 that the trimester-based analysis devised by the Roe Court was “unworkable.”[108] Shortly before his retirement from the bench, Chief Justice Warren Burger suggested in 1986 that Roe be “reexamined”;[109] the associate justice who filled Burger’s place on the Court – Justice Antonin Scalia – vigorously opposed Roe. Concern about overturning Roe played a major role in the defeat of Robert Bork‘s nomination to the Court in 1987; the man eventually appointed to replace Roe-supporter Lewis Powell was Anthony Kennedy.

The Supreme Court of Canada used the rulings in both Roe and Doe v. Bolton as grounds to find Canada’s federal law restricting access to abortions unconstitutional. That Canadian case, R. v. Morgentaler, was decided in 1988.[110]

Webster v. Reproductive Health Services

In a 5–4 decision in 1989’s Webster v. Reproductive Health Services, Chief Justice Rehnquist, writing for the Court, declined to explicitly overrule Roe, because “none of the challenged provisions of the Missouri Act properly before us conflict with the Constitution.”[111] In this case, the Court upheld several abortion restrictions, and modified the Roe trimester framework.[111]

In concurring opinions, O’Connor refused to reconsider Roe, and Justice Antonin Scalia criticized the Court and O’Connor for not overruling Roe.[111] Blackmun – author of the Roe decision – stated in his dissent that White, Kennedy and Rehnquist were “callous” and “deceptive,” that they deserved to be charged with “cowardice and illegitimacy,” and that their plurality opinion “foments disregard for the law.”[111] White had recently opined that the majority reasoning in Roe v. Wade was “warped.”[109]

Planned Parenthood v. Casey

During initial deliberations for Planned Parenthood v. Casey (1992), an initial majority of five Justices (Rehnquist, White, Scalia, Kennedy, and Thomas) were willing to effectively overturn RoeKennedy changed his mind after the initial conference,[112] and O’Connor, Kennedy, and Souter joined Blackmun and Stevens to reaffirm the central holding of Roe,[113] saying, “Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. […] These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”[114] Only Justice Blackmun would have retained Roe entirely and struck down all aspects of the statute at issue in Casey.[78]

Scalia’s dissent acknowledged that abortion rights are of “great importance to many women”, but asserted that it is not a liberty protected by the Constitution, because the Constitution does not mention it, and because longstanding traditions have permitted it to be legally proscribed. Scalia concluded: “[B]y foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.”[115]

Stenberg v. Carhart

During the 1990s, the state of Nebraska attempted to ban a certain second-trimester abortion procedure known as intact dilation and extraction (sometimes called partial birth abortion). The Nebraska ban allowed other second-trimester abortion procedures called dilation and evacuation abortions. Ginsburg (who replaced White) stated, “this law does not save any fetus from destruction, for it targets only ‘a method of performing abortion’.”[116] The Supreme Court struck down the Nebraska ban by a 5–4 vote in Stenberg v. Carhart (2000), citing a right to use the safest method of second trimester abortion.

Kennedy, who had co-authored the 5–4 Casey decision upholding Roe, was among the dissenters in Stenberg, writing that Nebraska had done nothing unconstitutional.[116] In his dissent, Kennedy described the second trimester abortion procedure that Nebraska was not seeking to prohibit, and thus argued that since this dilation and evacuation procedure remained available in Nebraska, the state was free to ban the other procedure sometimes called “partial birth abortion.”[116]

The remaining three dissenters in Stenberg – Rehnquist, Scalia, and Thomas – disagreed again with Roe: “Although a State may permit abortion, nothing in the Constitution dictates that a State must do so.”

Gonzales v. Carhart

In 2003, Congress passed the Partial-Birth Abortion Ban Act, which led to a lawsuit in the case of Gonzales v. Carhart. The Court had previously ruled in Stenberg v. Carhart that a state’s ban on “partial birth abortion” was unconstitutional because such a ban did not have an exception for the health of the woman. The membership of the Court changed after Stenberg, with John Roberts and Samuel Alito replacing Rehnquist and O’Connor, respectively. Further, the ban at issue in Gonzales v. Carhart was a clear federal statute, rather than a relatively vague state statute as in the Stenberg case.

On April 18, 2007, the Supreme Court handed down a 5 to 4 decision upholding the constitutionality of the Partial-Birth Abortion Ban Act. Kennedy wrote the majority opinion, asserting that Congress was within its power to generally ban the procedure, although the Court left the door open for as-applied challenges. Kennedy’s opinion did not reach the question of whether the Court’s prior decisions in Roe v. WadePlanned Parenthood v. Casey, and Stenberg v. Carhart remained valid, and instead the Court stated that the challenged statute remained consistent with those past decisions whether or not those decisions remained valid.

Chief Justice John Roberts, Scalia, Thomas, and Alito joined the majority. Justices Ginsburg, Stevens, Souter, and Breyer dissented, contending that the ruling ignored Supreme Court abortion precedent, and also offering an equality-based justification for abortion precedent. Thomas filed a concurring opinion, joined by Scalia, contending that the Court’s prior decisions in Roe v. Wade and Planned Parenthood v. Casey should be reversed, and also noting that the Partial-Birth Abortion Ban Act possibly exceeded the powers of Congress under the Commerce Clause.

Whole Woman’s Health v. Hellerstedt

In the case of Whole Woman’s Health v. Hellerstedt, the most significant abortion rights case before the Supreme Court since Planned Parenthood v. Casey in 1992,[117][118][119] the Supreme Court in a 5–3 decision on June 27, 2016, swept away forms of state restrictions on the way abortion clinics can function. The Texas legislature enacted in 2013 restrictions on the delivery of abortions services that created an undue burden for women seeking an abortion by requiring abortion doctors to have difficult-to-obtain “admitting privileges” at a local hospital and by requiring clinics to have costly hospital-grade facilities. The Court struck down these two provisions “facially” from the law at issue – that is, the very words of the provisions were invalid, no matter how they might be applied in any practical situation. According to the Supreme Court the task of judging whether a law puts an unconstitutional burden on a woman’s right to abortion belongs with the courts and not the legislatures.[120]

Activities of Norma McCorvey

Norma McCorvey became a member of the anti-abortion movement in 1995; she supported making abortion illegal until her death in 2017.[121] In 1998, she testified to Congress:

It was my pseudonym, Jane Roe, which had been used to create the “right” to abortion out of legal thin air. But Sarah Weddington and Linda Coffee never told me that what I was signing would allow women to come up to me 15, 20 years later and say, “Thank you for allowing me to have my five or six abortions. Without you, it wouldn’t have been possible.” Sarah never mentioned women using abortions as a form of birth control. We talked about truly desperate and needy women, not women already wearing maternity clothes.[29]

As a party to the original litigation, she sought to reopen the case in U.S. District Court in Texas to have Roe v. Wade overturned. However, the Fifth Circuit decided that her case was moot, in McCorvey v. Hill.[122] In a concurring opinion, Judge Edith Jones agreed that McCorvey was raising legitimate questions about emotional and other harm suffered by women who have had abortions, about increased resources available for the care of unwanted children, and about new scientific understanding of fetal development, but Jones said she was compelled to agree that the case was moot. On February 22, 2005, the Supreme Court refused to grant a writ of certiorari, and McCorvey’s appeal ended.

Activities of Sarah Weddington

After arguing before the Court in Roe v. Wade at the age of 26, Sarah Weddington went on to be a representative in the Texas House of Representatives for three terms.[123] Weddington has also had a long and successful career as General Counsel for the United States Department of Agriculture, Assistant to President Jimmy Carter, lecturer at Texas Wesleyan University, and speaker and adjunct professor at the University of Texas at Austin.[123]

Presidential positions

President Richard Nixon did not publicly comment about the decision.[124] In private conversation later revealed as part of the Nixon tapes, Nixon said “There are times when an abortion is necessary,… .”[125][126] However, Nixon was also concerned that greater access to abortions would foster “permissiveness,” and said that “it breaks the family.”[125]

Generally, presidential opinion has been split between major party lines. The Roe decision was opposed by Presidents Gerald Ford,[127] Ronald Reagan,[128] and George W. Bush.[129] President George H.W. Bush also opposed Roe, though he had supported abortion rights earlier in his career.[130][131]

President Jimmy Carter supported legal abortion from an early point in his political career, in order to prevent birth defects and in other extreme cases; he encouraged the outcome in Roe and generally supported abortion rights.[132] Roe was also supported by President Bill Clinton.[133] President Barack Obama has taken the position that “Abortions should be legally available in accordance with Roe v. Wade.”[134]

President Donald Trump has publicly opposed the decision, vowing to appoint pro-life justices to the Supreme Court.[135] Upon Justice Kennedy’s retirement in 2018, Trump nominated Brett Kavanaugh to replace him, and he was confirmed by the Senate in October 2018. A central point of Kavanaugh’s appointment hearings was his stance on Roe v. Wade, of which he said to Senator Susan Collins that he would not “overturn a long-established precedent if five current justices believed that it was wrongly decided”.[136] Despite Kavanaugh’s statement, there is concern that with the Supreme Court having a strong conservative majority, that Roe v. Wade will be overturned given an appropriate case to challenge it. Further concerns were raised following the May 2019 Supreme Court 5-4 decision along ideological lines in Franchise Tax Board of California v. Hyatt. While the case had nothing to do with abortion rights, the decision overturned a previous 1979 decision from Nevada v. Hall without maintaining the stare decisis precedent, indicating the current Court makeup would be willing to apply the same to overturn Roe v. Wade.[137] Pro-abortion organizations like Planned Parenthood are planning on how they will operate should Roe v. Wade be overturned.[138]

State laws regarding Roe

Since 2010 there has been an increase in state restrictions on abortion.

Several states have enacted so-called trigger laws which would take effect in the event that Roe v. Wade is overturned, with the effect of outlawing abortions on the state level. Those states include Arkansas, Kentucky, Louisiana, Mississippi, North Dakota and South Dakota.[139] Additionally, many states did not repeal pre-1973 statutes that criminalized abortion, and some of those statutes could again be in force if Roe were reversed.[140]

Other states have passed laws to maintain the legality of abortion if Roe v. Wade is overturned. Those states include California, Connecticut, Hawaii, Maine, Maryland, Nevada and Washington.[139]

The Mississippi Legislature has attempted to make abortion unfeasible without having to overturn Roe v. Wade. The Mississippi law as of 2012 was being challenged in federal courts and was temporarily blocked.[141]

Alabama House Republicans passed a law on April 30, 2019 that will criminalize abortion if it goes into effect.[142] It offers only two exceptions: serious health risk to the mother or a lethal fetal anomaly. Alabama governor Kay Ivey signed the bill into law on May 14, primarily as a symbolic gesture in hopes of challenging Roe v. Wade in the Supreme Court.[143][144][145]

See also

Footnotes …

https://en.wikipedia.org/wiki/Roe_v._Wade

Doe v. Bolton, 410 U.S. 179 (1973), was a decision of the United States Supreme Court overturning the abortion law of Georgia.[1] The Supreme Court’s decision was released on January 22, 1973, the same day as the decision in the better-known case of Roe v. Wade.[2]

Contents

Background

The Georgia law in question permitted abortion only in cases of rape, severe fetal deformity, or the possibility of severe or fatal injury to the mother. Other restrictions included the requirement that the procedure be approved in writing by three physicians and by a three-member special committee that either (1) continued pregnancy would endanger the pregnant woman’s life or “seriously and permanently” injure her health; (2) the fetus would “very likely be born with a grave, permanent and irremediable mental or physical defect”; or (3) the pregnancy resulted from rape or incest.[3][4] In addition, only Georgia residents could receive abortions under this statutory scheme: non-residents could not have an abortion in Georgia under any circumstances.

The plaintiff, a pregnant woman who was given the pseudonym “Mary Doe” in court papers to protect her identity, sued Arthur K. Bolton, then the Attorney General of Georgia, as the official responsible for enforcing the law in the United States District Court for the Northern District of Georgia. The anonymous plaintiff has since been identified as Sandra Cano, a 22-year-old mother of three who was nine weeks pregnant at the time the lawsuit was filed. Cano, who died in 2014, described herself as pro-life and claimed her attorney, Margie Pitts Hames, lied to her in order to have a plaintiff.[5][6]

On October 14, 1970, a three-judge panel of the U.S. District Court for the Northern District of Georgia consisting of Northern District of Georgia Judges Albert John HendersonSidney Oslin Smith Jr., and Fifth Circuit Court of Appeals Judge Lewis Render Morgan unanimously declared the conditional restrictions portion of the law unconstitutional, though upheld the medical approval and residency requirements.[7] The court also declined to issue an injunction against enforcement of the law, similarly to the district court in the case Roe v. Wade. The plaintiff appealed to the Supreme Court under a statute, since repealed, permitting bypass of the circuit appeals court.

The oral arguments and re-arguments followed the same schedule as those in Roe. Atlanta attorney Hames represented Doe at the hearings, while Georgia assistant attorney general Dorothy Toth Beasley represented Bolton.

Opinion of the Court

The same 7-2 majority that struck down a Texas abortion law in Roe v. Wade, invalidated most of the remaining restrictions of the Georgia abortion law, including the medical approval and residency requirements. The Court reiterated the protected “right to privacy,” which applied to matters involving marriage, procreation, contraception, family relationships, child rearing, and education.[3] Justice Harry A. Blackmun wrote the majority opinion for the Court, in which he explained “the sensitive and emotional nature” of the issue and “the deep and seemingly absolute convictions” on both sides.[4] Justice Blackmun went on to conclude that as a constitutional matter, the right to privacy was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”[3][4]

Together, Doe and Roe declared abortion as a constitutional right and overturned most laws against abortion in other U.S. statesRoe legalized abortion nationwide for approximately the first six months of pregnancy until the point of fetal viability.[3]

Definition of health

The Court’s opinion in Doe v. Bolton stated that a woman may obtain an abortion after viability, if necessary to protect her health. The Court defined “health” as follows:

Whether, in the words of the Georgia statute, “an abortion is necessary” is a professional judgment that the Georgia physician will be called upon to make routinely. We agree with the District Court, 319 F. Supp., at 1058, that the medical judgment may be exercised in the light of all factors – physical, emotional, psychological, familial, and the woman’s age – relevant to the well-being of the patient. All these factors may relate to health.

Subsequent developments

In 2003, Sandra Cano filed a motion to re-open the case claiming that she had not been aware that the case had been filed on her behalf and that if she had known she would not have supported the litigation.[8] The district court denied her motion, and she appealed. When the appeals court also denied her motion,[9] she requested review by the United States Supreme Court. However, the Supreme Court declined to hear Sandra Cano’s suit to overturn the ruling.[10] Sandra Cano died on September 30, 2014.[6]

See also

References

  1. ^ Doe v. Bolton410 U.S. 179 (1973).
  2. ^ Roe v. Wade410 U.S. 113 (1973).
  3. Jump up to:a b c d Goldstein, Leslie (1994). Contemporary Cases in Women’s Rights. Madison: The University of Wisconsin. pp. 16–17.
  4. Jump up to:a b c Cushman, Clare (2001). Supreme Court Decisions and Women’s Rights. Washington D.C.: CQ Press. p. 189.
  5. ^ White, Gayle. “Roe v. Wade Role Just a Page in Rocky Life Story”The Atlanta Journal and Constitution (2003-01-22).
  6. Jump up to:a b Wetzstein, Cheryl (October 1, 2014). “Sandra Cano, the ‘Mary Doe’ of landmark abortion case, dies”The Washington Times. Retrieved 2018-02-01.
  7. ^ Doe v. Bolton319 F. Supp. 1048 (N.D. Ga. 1970).
  8. ^ “’Mary Doe’ of Doe v. Bolton Files Motion To Overturn Companion Case to Roe v. Wade” Archived September 27, 2007, at the Wayback MachineKaiser Daily Reproductive Health Report, (2003-08-27).
  9. ^ Cano v. Baker435 F.3d 1337 (11th Cir. 2006).
  10. ^ Mears, Bill. “Court won’t rethink ‘Mary Doe’ abortion case”CNN (2006-10-10).

External links

Griswold v. Connecticut

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Griswold v. Connecticut
Seal of the United States Supreme Court

Argued March 29, 1965
Decided June 7, 1965
Full case name Estelle T. Griswold and C. Lee Buxton v. Connecticut
Citations 381 U.S. 479 (more)

85 S. Ct. 1678; 14 L. Ed. 2d510; 1965 U.S. LEXIS 2282
Case history
Prior Defendants convicted, Circuit Court for the Sixth Circuit, 1-2-62; affirmed, Circut Court, Appellate Division, 1-7-63; affirmed, 200 A.2d 479 (Conn.1964)
Subsequent None
Holding
A Connecticut law criminalizing the use of contraceptives violated the right to marital privacy. Connecticut Supreme Court reversed.
Court membership
Chief Justice
Earl Warren
Associate Justices
Hugo Black · William O. Douglas
Tom C. Clark · John M. Harlan II
William J. Brennan Jr. · Potter Stewart
Byron White · Arthur Goldberg
Case opinions
Majority Douglas, joined by Warren, Clark, Brennan, Goldberg
Concurrence Goldberg, joined by Warren, Brennan
Concurrence Harlan
Concurrence White
Dissent Black, joined by Stewart
Dissent Stewart, joined by Black
Laws applied
U.S. Const. amends. IIVVIXXIV; Conn. Gen. Stat. §§ 53-32, 54–196 (rev. 1958)

Griswold v. Connecticut, 381 U.S. 479 (1965),[1] is a landmark case in the United States about access to contraception. The case involved a Connecticut “Comstock law” that prohibited any person from using “any drug, medicinal article or instrument for the purpose of preventing conception.” The court held that the statute was unconstitutional, and that “the clear effect of [the Connecticut law …] is to deny disadvantaged citizens … access to medical assistance and up-to-date information in respect to proper methods of birth control.” By a vote of 7–2, the Supreme Court invalidated the law on the grounds that it violated the “right to marital privacy“, establishing the basis for the right to privacy with respect to intimate practices. This and other cases view the right to privacy as a right to “protect[ion] from governmental intrusion.”

Although the Bill of Rights does not explicitly mention “privacy”, Justice William O. Douglas wrote for the majority that the right was to be found in the “penumbras” and “emanations” of other constitutional protections, such as the self-incrimination clause of the Fifth Amendment. Douglas wrote, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.” Justice Arthur Goldberg wrote a concurring opinion in which he used the Ninth Amendment in support of the Supreme Court’s ruling. Justice Byron White and Justice John Marshall Harlan II wrote concurring opinions in which they argued that privacy is protected by the due process clause of the Fourteenth Amendment.

Contents

Background

Griswold v. Connecticut originated as a prosecution under the Connecticut Comstock Act of 1873. The law made it illegal to use “any drug, medicinal article, or instrument for the purpose of preventing conception…”. Violators could be “… fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.”[1] By the 1950s, Massachusetts and Connecticut were the only two states that still had such statutes, although they were almost never enforced.

In the late 19th and early 20th century, physicians in the United States largely avoided the publication of any material related to birth control, even when they often recommended or at least gave advice regarding it to their married patients. Then in 1914, Margaret Sanger openly challenged the public consensus against contraception.[2] She influenced the Connecticut Birth Control League (CBCL) and helped to develop the eventual concept of the Planned Parenthood clinics.

The first Planned Parenthood clinic in Connecticut opened in 1935 in Hartford. It provided services to women who had no access to a gynecologist, including information about artificial contraception and other methods to plan the growth of their families. Several clinics were opened in Connecticut over the following years, including the Waterbury clinic that led to the legal dispute. In 1939, this clinic was compelled to enforce the 1879 anti-contraception law on poor women patients. This caught the attention of the CBCL leaders, who remarked on the importance of birth control for cases in which the lives of the patients depended upon it.[3]

During the 1940s, several cases arose from the provision of contraception by the Waterbury clinic, leading to legal challenges to the constitutionality of the Comstock law, but these failed on technical grounds. In Tileston v. Ullman (1943), a doctor and mother challenged the law on the grounds that a ban on contraception could, in certain sexual situations, threaten the lives and well-being of patients. The U.S. Supreme Court dismissed the appeal on the grounds that the plaintiff lacked standing to sue on behalf of his patients. Yale School of Medicine gynecologist C. Lee Buxton and his patients brought a second challenge to the law in Poe v. Ullman (1961). The Supreme Court again dismissed the appeal, on the grounds that the case was not ripe: the plaintiffs had not been charged or threatened with prosecution, so there was no actual controversy for the Court to resolve.

The polemic around Poe led to the appeal in Griswold v. Connecticut, primarily based on the dissent of Justice John Marshall Harlan II in Poe, one of the most cited dissents in Supreme Court history.

(T)he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms in the United States; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.

— Justice John Marshall Harlan II, dissent in Poe v. Ullman.[4]

He argued, foremost, that the Supreme Court should have heard the case rather than dismissing it. Thereafter, he indicated his support for a broad interpretation of the due process clause. On the basis of this interpretation, Harlan concluded that the Connecticut statute violated the Constitution.

After Poe was handed down on June 1961, the Planned Parenthood League of Connecticut (PPLC) decided to challenge the law again. Estelle T. Griswold served on the PPLC as Executive Director from 1954 to 1965.[5]Struggling through legal battles against birth control restrictions in Connecticut, Griswold and PPLC made an initial effort to financially support women who wanted contraceptives to bus to cities in New York and Rhode Island.[5] PPLC Executive Director Estelle Griswold[6] and Dr. Buxton (PPLC medical volunteer),[7] opened a birth control clinic in New Haven, Connecticut,[8] “thus directly challeng[ing] the state law.”[5] The clinic opened on November 1, 1961, and that same day received its first ten patients and dozens of appointment requests from married women who wanted birth control advice and prescriptions. Griswold and Buxton were arrested, tried, found guilty, and fined $100 each.[9] The conviction was upheld by the Appellate Division of the Circuit Court, and by the Connecticut Supreme Court.[10]

Court’s decision on relationship with the right to privacy

Griswold appealed her conviction to the United States Supreme Court, arguing that the Connecticut statute was a violation of the Fourteenth Amendment of the United States Constitution, which reads that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law … nor deny any person the equal protection of the laws,” (Amendment 14 Section 1).[11] By a 7–2 majority, on June 7, 1965 the Supreme Court concluded that the Connecticut statute was unconstitutional.

Justice William O. Douglas, writing for the majority of the court, recognized the right to privacy, even though not enumerated in the Bill of Rights, is found in the “penumbras” and “emanations” of other constitutional protections, such as the self-incrimination clause of the Fifth Amendment, or the freedom of association clause of the First Amendment. The right to privacy is seen as a right to “protect[ion] from governmental intrusion.” Justice Arthur Goldberg wrote a concurring opinion in which he used the Ninth Amendment in support of the Supreme Court’s ruling, reasoning that the right of privacy was retained by the people. Justice Byron White and Justice John Marshall Harlan II also wrote concurring opinions in which they argued that privacy is protected by the due process clause of the Fourteenth Amendment.

Justices Hugo Black and Potter Stewart wrote dissenting opinions. Justice Black argued that the right to privacy is nowhere to be found in the Constitution. Furthermore, he criticized the interpretations of the Ninth and Fourteenth Amendments by his fellow justices. Justice Stewart called the Connecticut statute “an uncommonly silly law” but argued that it was nevertheless constitutional.

The final decision of the court was later used in other cases related to sexual practices and other personal, often considered private, decisions for the American citizens.

Precedent for later cases

Later decisions by the U.S. Supreme Court extended the principles of Griswold beyond its particular facts.

Right to birth control for unmarried couples, 1972

Eisenstadt v. Baird (1972) extended its holding to unmarried couples, whereas the “right of privacy” in Griswold was said to only apply to marital relationships.[12] The argument in Eisenstadt was that it was a violation of the Equal Protection Clause of the Fourteenth Amendment to deny unmarried couples the right to use contraception when married couples did have that right (under Griswold).[13] Writing for the majority, Justice Brennan wrote that Massachusetts could not enforce the law against married couples because of Griswold v. Connecticut, so the law worked “irrational discrimination” if not extended to unmarried couples as well.

Right to abortion for any woman, 1973

The reasoning and language of both Griswold and Eisenstadt were cited in the concurring opinion by Associate Justice Potter Stewart in support of Roe v. Wade, 410 U.S. 113 (1973).[14] The decision in Roe struck down a Texas law that criminalized aiding a woman in getting an abortion.[15] The Court ruled that this law was a violation of the Due Process Clause of the Fourteenth Amendment. Abortion became legalized for any woman for any reason, up through the first trimester, with possible restrictions for maternal health in the second trimester (the midpoint of which is the approximate time of fetal viability). In the third trimester of pregnancy, abortion is potentially illegal with exception for the mother’s health, which the court defined broadly in Doe v. Bolton.

Right to contraception for juveniles at least 16 years of age, 1977

Right to homosexual relations, 2003

Lawrence v. Texas (2003) struck down a Texas sodomy law that prohibited certain forms of intimate sexual contact between members of the same sex. Without stating a standard of review in the majority opinion, the court overruled Bowers v. Hardwick (1986), declaring that the “Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” Justice O’Connor, who wrote a concurring opinion, framed it as an issue of rational basis review. Justice Kennedy‘s majority opinion, based on the liberty interest protected by the due process clause of the Fourteenth Amendment, stated that the Texas anti-sodomy statute touched “upon the most private human conduct, sexual behavior, and in the most private of places, the home,” and attempted to “control a personal relationship that … is within the liberty of persons to choose without being punished.” Thus, the Court held that adults are entitled to participate in private, consensual sexual conduct. While the opinion in Lawrence was framed in terms of the right to liberty, Kennedy described the “right to privacy” found in Griswold as the “most pertinent beginning point” in the evolution of the concepts embodied in Lawrence.[16]

Right to same-sex marriage, 2015

Griswold was also cited in a chain of cases that led the Supreme Court to legalize same-sex marriage in another landmark case, Obergefell v. Hodges.

See also

References

  1. Jump up to:a b Griswold v. Connecticut381 U.S. 479 (1965).
  2. ^ Johnson, John W. (2005). Griswold V. Connecticut. University of Kansas. pp. 8–10. ISBN 0-7006-1378-1.
  3. ^ Johnson, John W. (2005). Griswold V. Connecticut. University of Kansas. pp. Chapter 2. ISBN 0-7006-1378-1.
  4. ^ Johnson, John W. (2005). Griswold V. Connecticut. University Press of Kansas. pp. Chapter 5. ISBN 0-7006-1378-1.
  5. Jump up to:a b c Cheek, Jeannette Bailey (March 17, 1976). “Estelle Griswold oral history interview about her part in Griswold v. Connecticut, legal challenge to Connecticut birth control law”. Women’s Studies Manuscript Collections from the Schlesinger Library: Voting Rights, National Politics, and Reproductive Rights – via ProQuest History Vault.
  6. ^ “Estelle Griswold”. Connecticut Women’s Hall of Fame.
  7. ^ “1965 Griswold v. Connecticut Contraception as a right of privacy? The Supreme Court says, ‘Yes!. Action Speaks Radio. 2012.
  8. ^ Garrow, David J. (Spring 2011). “Human Rights Hero. The Legacy of Griswold V. Connecticut” (PDF)Section of Individual Rights and Responsibilities.
  9. ^ Alex McBride (December 2006). “EXPANDING CIVIL RIGHTS Landmark Cases Griswold v. Connecticut (1965)”. PBS.
  10. ^ Laura Carroll (July 2012). The Baby Matrix. LiveTrue Books. ISBN 0-615-64299-3.
  11. ^ “Fourteenth Amendment to the U.S. Constitution — Ratified 1868”. pbs.org. 2007.
  12. ^ Frances KisslingJonathan D. MorenoThe Nation (March 22, 2012). “The Nation: Still Fighting ‘Eisenstadt v. Baird. npr.org.
  13. ^ Sheraden Seward (2008-12-03). “Griswold v. Connecticut (1965)”embryo.asu.eduArizona State University.
  14. ^ Cornell University Law School“Roe v. Wade (No. 70-18) 314 F.Supp. 1217, affirmed in part and reversed in part. STEWART, J., Concurring Opinion SUPREME COURT OF THE UNITED STATES”. law.cornell.edu.
  15. ^ University of Missouri-Kansas City (January 22, 1973). “ROE v. WADE 410 U.S. 113 (1973)”. umkc.edu.
  16. ^ Lawrence v. Texas539 U.S. 558 (2003).

Further reading

  • Bailey, Martha J. (2010). “Momma’s Got the Pill’: How Anthony Comstock and Griswold v. Connecticut Shaped US Childbearing”. American Economic Review100 (1): 98–129. doi:10.1257/aer.100.1.98.
  • Garrow, David J. “Human Rights Hero: The Legal Legacy of Griswold v. Connecticut“.” Human Rights (2011): 26-25.
  • Hasian Jr, Marouf. “Vernacular Legal Discourse: Revisiting the Public Acceptance of the “Right to Privacy” in the 1960s.” Political Communication 18, no. 1 (January 2001): 89-105. Communication & Mass Media Complete, EBSCOhost (accessed March 2 29, 2015).
  • Helscher, David (1994). “Griswold v. Connecticut and the Unenumerated Right of Privacy”. Northern Illinois University Law Review15: 33. ISSN 0734-1490.
  • Kalman, Laura; Garrow, David (1994). “Review: The Promise and Peril of Privacy”. Reviews in American History. The Johns Hopkins University Press. 22 (4): 725–731. doi:10.2307/2702826JSTOR 2702826.
  • Lockhart, Andrea (1997). “Griswold v. Connecticut: A Case Brief”. Journal of Contemporary Legal Issues14: 35. ISSN 0896-5595.
  • Loewy, Arnold H. (2003). “Morals Legislation and the Establishment Clause”. Alabama Law Review55 (1): 159–182. ISSN 0002-4279.
  • Johnson, John W. Griswold v. Connecticut: Birth control and the constitutional right of privacy. University Press of Kansas, 2005.
  • Tushnet, Mark (2008). I dissent: Great Opposing Opinions in Landmark Supreme Court Cases. Boston: Beacon Press. pp. 179–190. ISBN 978-0-8070-0036-6.

External links