|ROE V. WADE
What is the legal legacy of the 1973 Supreme Court decision on abortion?
January 30, 1998
in this forum:
Shouldn't the Supreme Court interpret laws, not make them? Should the state legislatures have decided the abortion issue? Did Roe v. Wade changed the public perception of the Supreme Court? How have privacy rights been used since Roe v. Wade? Will Roe v. Wade eventually be reversed? The right of privacy, much less the idea that pregnancy can be divided into 3 trimesters, is not explicitly mentioned anywhere in the Constitution. Why did the Supreme Court base Roe v. Wade on such arguments? Isn't it the role of the Supreme Court to interpret the Constitution, not make up laws?
Cynthia Gorney, journalist and author, responds:The idea that the Constitution protects a "right to privacy"--a right that encompasses personal decisions about birth control and procreation--actually began not with Roe v. Wade but with the 1965 Supreme Court case called Griswold v. Connecticut. That ruling overturned an antiquated and much-ignored Connecticut law that prohibited anybody from purchasing or using contraceptives. The lead opinion in that case, written by William O. Douglas, was the subject of much learned head-scratching afterward--Douglas used a poetic but somewhat mysterious term, "penumbras," to describe a right whose contours he said could be seen in many earlier Supreme Court interpretations of the Constitution. The holding in Griswold seems pretty tame these days--the Court said that the state of Connecticut could not prohibit married people from using and buying contraceptives, emphasis on married. But the idea that the Constitution protected some aspect of the sexual and reproductive life of these married people was quite startling and new, and lawyers of the late 1960's looked to this encouraging development for their early clues about where the Court might base an abortion right.
Remember, most of these early abortion rights lawyers were basically making it up as they went along--guessing how and under what circumstances the Court might look favorably on their claim that the Constitution protected a right to abortion. There's a great moment, during Sarah Weddington's Roe v. Wade argument, when one of the justices says sort of kindly to the very young Weddington: So basically you just want us to find this right in any amendment we can, right? And she says: Right! First Amendment, Fourteenth Amendment, Ninth Amendment, whatever! Anything's okay with us!
But "privacy" seemed at the time to be the most inviting area--because of what the Court had said in Griswold and in subsequent birth control cases. Afterward, as the question implies, there was a tremendous clamor of criticism that the Supreme Court had overstepped its bounds in Roe and in Doe v. Bolton, the companion case--that the Court had left off its obligation simply to interpret the Constitution and had instead come up with a ruling so detailed and arbitrary that it might just as well have drafted state law and handed the text to the legislators. But even those who made this argument--most notably the then-Yale law professor John Hart Ely, whose published criticisms of Roe drew a great deal of attention because Ely was not at all opposed to legal abortion in principle--agreed that the Supreme Court does often find Constitutional protections for things that are not expressly written into the Constitution. It was just that in this case, these critics felt, the justices appeared to have gone too far.
Janet Benshoof, president of the Center for Reproductive Law and Policy, responds:
Although a landmark ruling, the Roe decision was consistent with earlier Supreme Court rulings recognizing a right of privacy that protects intimate and personal decisions -- including those affecting childbearing, marriage, procreation, and the use of contraception -- from governmental intrusion. The Court's decision in Roe was far from radical; rather it was the logical extension of High Court decisions on the right to privacy dating back to the turn of the century that guaranteed our right to refuse medical treatment and the freedom to resist government search and seizure. The decision gave the right to choose abortion the same fundamental constitutional protection as the right to vote or to choose one's religion, and recognized that, without the ability to make autonomous decisions about childbearing, women could not be equal participants in our society.
Finding a need to balance a woman's right to privacy with the state's interest in protecting potential life, the Supreme Court established a trimester framework for evaluating restrictions on abortion. The Court required the state to justify any interference with the abortion decision by showing that it had a "compelling interest" in doing so and that restrictions on abortions performed before fetal viability were limited to those that narrowly and precisely promoted real maternal health concerns. After the point of viability, the state was free to ban abortion or take other steps to promote its interest in protecting fetal life. Even after that point, however, the state's interest in the viable fetus must yield to the woman's right to have an abortion to protect her life or her health.
Mary Spaulding-Balch, state legislative director for the National Right to Life Committee, responds:
Immediately after his historical survey, Justice Blackmun turned to the essence of what he found to be the abortion right. "The Fourteenth Amendment's concept of personal liberty." the Court ruled, "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." This textually unsupported assertion has been subjected to an avalanche of criticism-- some of it from the most respected legal minds in the country. Indeed, this portion of the opinion has stimulated more negative jurisprudential evaluation than any other section and the critique comes from various parts of the ideological spectrum.
Listing cases recognizing some form of a "right to privacy," Justice Blackmun acknowledged that "[t]hese decisions make it clear that only personal rights that can be deemed `fundamental' or `implicit in the concept of ordered liberty' . . . are included in this guarantee of personal privacy." What makes abortion "implicit" in the very nature of "ordered liberty"? Justice Blackmun wrote that the right to privacy has been deemed to encompass marriage, procreation, contraception, family relationships, and child rearing and education.
The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. This is the entirety of Blackmun's argument. Norman Vieira, one of many critics, said in response:
No elaborate discussion is required to expose the glaring non sequitur in the Court's argument. Plainly the fact that some family matters are constitutionally protected does not demonstrate that abortion is constitutionally protected. Nor does the added fact that abortion laws disadvantage pregnant women establish their invalidity. Legal restrictions are placed on family autonomy in fields ranging from divorce to euthanasia despite the heavy costs thereby exacted by the individuals concerned. In 1973 John Ely made an early and telling attack on Roe's postulation of this right. Referring to the Court's delineation of the difficulties of undesired pregnancy, he wrote:
All of this is true and ought to be taken very seriously. But it has nothing to do with privacy in the Bill of Rights sense or any other the Constitution suggests . . . What is unusual about Roe is that the liberty involved is accorded . . . a protection more stringent, I think it is fair to say, than that the present Court accords the freedom of the press explicitly guaranteed by the First Amendment. 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. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis a vis the interest that legislatively prevailed over it. And that, I believe . . . is a charge that can responsibly be leveled at no other decision of the past twenty years.