Is Roe v. Wade Unconstitutional?

By on January 17, 2007

Was Roe v. Wade wrongly decided? Two legal scholars debate.

susan-willsSusan E. Wills, Esq.
U.S. Conference of Catholic Bishops

Susan E. Wills, Esq., is associate director for education at the U.S. Conference of Catholic Bishops’ Secretariat for Pro-Life Activities.


ederlina-coEderlina Co
NARAL Pro-Choice America

Ederlina Co is counsel for NARAL Pro-Choice America.

Part 1: Susan E. Wills: Ten Legal Reasons to Reject Roe

Decisions of the U.S. Supreme Court rarely attract much public interest. One news cycle and a few days’ discussion in the op-ed section is probably the norm for even the most important and sweeping decisions. The average person probably has to cast back to a high school history course to recall the names of even a few landmark cases other than Miranda v. Arizona (known mainly from the scripts of popular police shows).But one Supreme Court decision eclipses all others in the past century. Far from being forgotten, in the thirty years since Roe v. Wade announced that the “constitutional” right to privacy encompasses a woman’s decision to abort her child, its fame (or infamy) just keeps growing.

Many Americans, including members of Congress, believe or act as if Roe and the U.S. Constitution have equal authority. They are wrong, both as to Roe’s place in American constitutional law and as to the duty of citizens and judges to follow it unquestioningly. Few decisions in the history of the Supreme Court have cried out so loudly for reversal on both moral and legal grounds. And rarely has any decision been so fraught with conspicuous errors of law, fact, and reasoning as the majority opinion in Roe.

This article is addressed to all who may think that Roe deserves a measure of deference as a landmark of constitutional law (notwithstanding its immoral outcome). Not so! Legally speaking, Roe is an abomination and an embarrassment to lawyers and public officials who feel compelled to defend it.

Who Says So?

Among the legal scholars who have roundly criticized the Court’s ruling in Roe as not being grounded in the U.S. Constitution are the following:

  • Six justices of the U.S. Supreme Court, unfortunately not simultaneously seated: Byron White, William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy,[1] and Sandra Day O’Connor[2]
  • Virtually every recognized constitutional scholar who has published a book or article on Roe—including many, like Harvard’s Laurence Tribe, who support Roe’s outcome on other grounds (although he’s switched grounds over the years).[3] Yale Law School professor John Hart Ely spoke for many when he stated that Roe “is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be”[4]
  • Edward Lazarus, a former law clerk to Roe’s author, Justice Harry Blackmun, who writes:

As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe’s author like a grandfather. …

What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent. …

The proof of Roe’s failings comes not from the writings of those unsympathetic to women’s rights but from the decision itself and the friends who have tried to sustain it. Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost thirty years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.[5]

Ten Legal Reasons to Condemn Roe

1. The Court’s decision in Roe exceeded its constitutional authority.

Under the legal system established by the U.S. Constitution, the power to make laws is vested in Congress and retained by state legislatures. It is not the role of the Supreme Court to substitute the policy preferences of its members for those expressed in laws enacted by the people’s elected representatives. The role of the judiciary in constitutional review is to determine if the law being challenged infringes on a constitutionally protected right.

Justice O’Connor reiterates this principle, quoting Chief Justice Warren Burger:

Irrespective of what we may believe is wise or prudent policy in this difficult area, “the Constitution does not constitute us as ‘Platonic Guardians’ nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, ‘wisdom,’ or ‘common sense.’”[6]

In Roe v. Wade and its companion case, Doe v. Bolton, however, the Court struck down criminal laws of Texas and Georgia that outlawed certain abortions by finding that these laws (and those of the other forty-eight states) violated a “right of privacy” that “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Such a right is nowhere mentioned in the Constitution nor derivable from values embodied therein.

2. The Court misrepresents the history of abortion practice and attitudes toward abortion.

The apparent purpose of the Roe opinion’s long historical excursion is to create the impression that abortion had been widely practiced and unpunished until the appearance of restrictive laws in the prudishly Victorian nineteenth century. One example is adequate to show how distorted Justice Blackmun’s rendition of history is. He must overcome a huge hurdle in the person of Hippocrates, the “Father of Medicine,” and his famous oath, which has guided medical ethics for over 2,000 years. The original oath provides in part: “I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion.” This enduring standard was followed until the Roe era and is reflected in the Declarations of the World Medical Association through 1968: “I will maintain the utmost respect for human life, from the time of conception.”[7] But Justice Blackmun dismisses this universal, unbroken ethical tradition as nothing more than the manifesto of a fringe Greek sect, the Pythagoreans, to which Hippocrates is alleged to have belonged!

3. The majority opinion in Roe wrongly characterizes the common law of England regarding the status of abortion.

The Court’s strained analysis and conclusion—“it now appears doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus”—are rejected by many legal scholars.[8]

William Blackstone’s Commentaries on the Laws of England (1765–1769), an exhaustive and definitive discussion of English common law as it was adopted by the United States, shows that the lives of unborn children were valued and protected, even if their beginning point was still thought to be “quickening” rather than conception:

Life … begins in contemplation of law as soon as the infant is able to stir in the mother’s womb. For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb … this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor.[9]

Until well into the nineteenth century, it was assumed that a child’s life may not begin—and certainly could not be proven to have begun to satisfy criminal evidentiary standards—prior to the time her movements were felt by the mother (“quickening”) at approximately sixteen to eighteen weeks’ gestation. The Roe Court looks at the distinction in common law concerning abortions attempted before or after “quickening” and wrongly infers that the law allowed women great latitude to abort their children in the early months of pregnancy. This is like saying people had a general right to spread computer viruses before such acts were criminally prosecuted.

4. The Court distorts the purpose and legal weight of state criminal abortion statutes.

In the nineteenth century, in virtually every state and territory, laws were enacted to define abortion as a crime throughout pregnancy. They contained only narrow exceptions, generally permitting abortion only if necessary to preserve the mother’s life. The existence of such laws, and their clear purpose of protecting the unborn, rebuts the Court’s claim that abortion has always been considered a liberty enjoyed by women. These laws show broad acceptance of the view that the life of an unborn child is valuable and should be protected unless the mother’s life is at risk. In that case, of course, both mother and child were likely to perish, given the primitive care then available for infants born prematurely.

How does the Court get around the impressive body of laws giving clear effect to the state’s interest in protecting unborn lives? It attempts to devalue them by ascribing a completely different purpose: the desire to protect the mother’s life and health from a risky surgical procedure. Applying the maxim “if the reason for a law has ceased to exist, the law no longer serves any purpose,” the Court declares that abortion is now “safer than childbirth.” Therefore, laws banning abortion have outlived their purpose.

5. A privacy right to decide to have an abortion has no foundation in the text or history of the Constitution.

Roe locates a pregnant woman’s “constitutional” right of privacy to decide whether or not to abort her child either “in the Fourteenth Amendment’s concept of personal liberty … as we feel it is, or … in the Ninth Amendment’s reservation of rights to the people.”

The Court does not even make a pretense of examining the intent of the drafters of the Fourteenth Amendment to determine if it was meant to protect a privacy interest in abortion. Clearly it was not. The Fourteenth Amendment was not intended to create any new rights but to secure to all persons, notably including freed slaves and their descendants, the rights and liberties already guaranteed by the Constitution.

Several rhetorical devices are used to mask this absence of constitutional grounding. The Court mentions several specifically enumerated rights that concern an aspect of privacy (for example, the Fourth Amendment’s “right of the people to be secure in their houses, papers, and effects, against unreasonable searches and seizures”). However, the Court fails to connect these to the newly found “right” to abortion, because no logical connection exists.

A “privacy right” large enough to encompass abortion could also be applied to virtually any conduct performed outside the public view, including child abuse, possession of pornography, or using illicit drugs. The liberty interest to be protected from state regulation is never really defined in Roe. Instead the Court describes at some length the hardships some women face not from pregnancy but from raising children:

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 childcare. 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.

By this reasoning, one might argue that Roe’s liberty encompasses ridding oneself of unwanted toddlers! Ordinarily, the defense of rights requires us to forgo lethal methods and use means likely to create the least harm to others. We may not, for example, surround our house and yard with a high voltage fence to deter trespassers. This principle is upended in the abortion context. Adoption, for example, would effectively eliminate all the “hardships” of raising “unwanted” children by non-lethal means.

6. Although it reads the Fourteenth Amendment extremely expansively to include a right of privacy to decide whether to abort a child, the Court in Roe adopts a very narrow construction of the meaning of persons to exclude unborn children.

Much is made of the fact that person as used elsewhere in the Constitution does not refer to unborn children when, for example, discussing qualifications for public office or census-taking. That point proves nothing. The Supreme Court has held that corporations are “persons” within the meaning of the Fourteenth Amendment and they are not counted in the census, nor can a corporation be elected president.

The Roe opinion states that a contrary finding on “personhood” would produce the opposite result (presumably foreclosing the mother’s privacy right to an abortion). One does not have to be a “person” in the full constitutional sense, however, for a state to validly protect one’s life. Dogs can be protected from killing although they are not “persons.”[10] And under the Endangered Species Act (ESA), people are prosecuted, fined, and jailed for acts that may harm creatures, such as sea turtles, that are not “persons” in the full constitutional sense. Sea turtles are protected not only after they are hatched but even while in the egg. In fact, each sea turtle egg removed from its nest constitutes a separate violation under the ESA, regardless of whether the sea turtle egg contained an embryo that was alive or “quick” or “viable” or even already deceased at the time of the taking.

7. The Roe Court assumed the role of a legislature in establishing the trimester framework.

Pre-decision memoranda among members of the Roe Court acknowledged the serious flaw in establishing arbitrary, rigid time frames. Justice Blackmun himself admitted that it was arbitrary.[11] A reply memorandum from Justice Potter Stewart stated:

One of my concerns with your opinion as presently written is … in its fixing of the end of the first trimester as the critical point for valid state action. … I wonder about the desirability of the dicta being quite so inflexibly “legislative.”

My present inclination would be to allow the states more latitude to make policy judgments.[12]

Geoffrey R. Stone, a law clerk to Justice Brennan when Roe was decided, was quoted as saying: “Everyone in the Supreme Court, all the justices, all the law clerks knew it was ‘legislative’ or ‘arbitrary.’”[13]

Justices O’Connor, White, and Rehnquist denounced the arbitrary trimester framework in O’Connor’s dissenting opinion in Akron v. Akron Center for Reproductive Health:

[There] is no justification in law or logic for the trimester framework adopted in Roe and employed by the Court today. … [That] framework is clearly an unworkable means of balancing the fundamental right and the compelling state interests that are indisputably implicated.

The majority opinion of Justice Rehnquist in Webster v. Reproductive Health Services states:

The key elements of the Roe framework—trimesters and viability—are not found in the text of the Constitution or in any place else one would expect to find a constitutional principle. … The result has been a web of legal rules that have become increasingly intricate, resembling a code of regulations rather than a body of constitutional doctrine. As Justice White has put it, the trimester framework has left this Court to serve as the country’s “ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States.”

8. What Roe gives, Doe takes away.

As noted above, under Roe state laws banning late-term abortions must contain a “health” exception. Health is defined in Roe’s companion case, Doe v. Bolton, as including “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the wellbeing of the patient. All these factors may relate to health.” This definition negates the state’s interest in protecting the child and results in abortion on request throughout all nine months of pregnancy. The fact that the Court buries its improbably broad definition of health in the largely unread opinion in Doe v. Bolton makes it no less devastating.

9. The Court describes the right to abortion as “fundamental.”

The Supreme Court has found certain rights fundamental. Expressed or implied in the Constitution, they are considered “deeply rooted in the history and traditions” of the American people or “implicit in the concept of ordered liberty,” such as the free exercise of religion, the right to marry, the right to a fair trial, and equal protection. A state law infringing on a fundamental right is reviewed under a rigorous “strict scrutiny” standard. In effect, there is a presumption against constitutionality. The Roe Court claims abortion is fundamental on the ground that it is lurking in the penumbras and emanations of the Bill of Rights or the Fourteenth Amendment, along with privacy rights like contraceptive use. It’s ludicrous to claim that abortion is deeply rooted in American history or traditions or that our governmental system of “ordered liberty” implicitly demands the right to destroy one’s child, but it was an effective way to foreclose state regulation of abortion. The strict scrutiny test was later abandoned in Planned Parenthood v. Casey.

10. Despite the rigid specificity of the trimester framework, the opinion gives little guidance to states concerning the permissible scope of abortion regulation.

Abortion decisions that followed Roe chronologically have not followed Roe jurisprudentially. Many decisions have five separate opinions filed, often with no more than three justices concurring on most points. Eight separate opinions were filed in Stenberg v. Carhart (which effectively nullified laws in over two dozen states banning partial-birth abortion).

Roe v. Wade Must Be Reversed

Contrary to popular opinion, decisions of the U.S. Supreme Court are “often” reversed.[14] Stare decisis (let the decision stand) does not prevent reversal when the constitutional interpretation of a prior ruling is later understood to be flawed. Justice Rehnquist’s dissent in Casey notes that the Court “has overruled in whole or part thirty-four of its previous constitutional decisions” in the past twenty-one years. It the Court’s duty to reverse wrongly decided rulings. “Justices take an oath to uphold the Constitution—not the glosses of their predecessors.”[15]

The Casey plurality weighed the “integrity of the Court” (its reputation for being above political considerations) as more important than fidelity to the Constitution and, not incidentally, more important than the continuing destruction of over one million children annually. Roe must be reversed to restore integrity to the Court, meaning to the Constitution, political rights to the people and their elected representatives, and, most importantly, the right to life to children in the womb.

Notes

[1] In Webster v. Reproductive Health Services, 492 U.S. 490 (1989).

[2] See dissenting opinions in Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986).

[3] See Dennis J. Horan et al., Abortion and the Constitution (Washington, D.C.: Georgetown University Press, 1987), pp. 57–88; John T. Noonan, Jr., A Private Choice: Abortion in American in the Seventies (New York: Free Press, 1979), pp. 20–32.

[4] John Hart Ely, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” Yale Law Review 82, no. 5 (1973): 947.

[5] Edward Lazarus, “The Lingering Problems of Roe v. Wade,” Findlaw.com, Oct. 3, 2002.

[6] Dissenting opinion in Akron v. Akron Center for Reproductive Health, quoting Chief Justice Warren Burger’s dissent in Plyler v. Doe, 457 U.S. 202 (1982).

[7] World Medical Association, “Declaration of Geneva” (1968).

[8] See Robert M. Byrn, “An American Tragedy: The Supreme Court on Abortion,” Fordham Law Review (May 1973): 807–862; Joseph W. Dellapenna, “The History of Abortion, Technology and Law,” University of Pittsburgh Law Review (Spring 1979): 359–428.

[9] William Blackstone, Commentaries on the Laws of England.

[10] Ely, “The Wages of Crying Wolf.”

[11] Memorandum to the Court, Nov. 21, 1972.

[12] Dec. 14, 1972 memorandum reproduced in Bob Woodward, “The Abortion Papers,” Washington Post, Jan. 22, 1989, d.01.

[13] Ibid.

[14] Justice Brandeis said this in 1932. See Horan, Abortion and the Constitution, 5.

[15] Horan, 11.

Part 2: Ederlina Co: Reaffirming Roe v. Wade

In Roe v. Wade, the U.S. Supreme Court held that the right to privacy found in the Fourteenth Amendment’s “liberty” clause is broad enough to encompass a woman’s right to terminate a pregnancy. This landmark decision helped save millions of women from unsafe, unsanitized abortions and empowered subsequent generations with the legal right to control their reproduction and the very course of their lives. Many critics, including Susan Wills in “Ten Legal Reasons to Reject Roe,” have gone so far as to declare that Roe was wrongly decided. In this rebuttal essay, I defend Roe and its progeny as sound constitutional law, flowing logically from the Supreme Court’s established privacy jurisprudence. The Court’s holding and reasoning—though often oversimplified and, hence, misunderstood—as well as the Court’s courage to issue an opinion on such a charged subject, deserve the utmost respect from both future Courts and genuine legal scholars.

Roe and the Constitutional Right to Privacy

Wills, like many critics of Roe v. Wade, claims that “a [privacy] right is nowhere mentioned in the Constitution nor derivable from values embodied therein.” However, while the Constitution does not explicitly mention the right to privacy (as the Supreme Court in fact acknowledged in Roe), a long line of Supreme Court cases before Roe recognized the fundamental right: It is “the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.”[1]

The Supreme Court’s first articulation of the right to privacy came fifty years before Roe in Meyer v. Nebraska and Pierce v. Society of the Sisters.[2] In Meyer, the Court held that states may not prohibit schools from teaching modern foreign languages to children before the eighth grade; inPierce, the Court held that states may not force parents to enroll their children in public school. Subsequently, the Court considered the right to privacy and recognized its fundamental status as it relates to reproduction in Skinner v. Oklahoma. In Skinner, the Court held unconstitutional a state law that allowed for the sterilization of persons convicted of two or more felonies involving moral turpitude.[3] Then, in Loving v. Virginia, the Court extended the right to privacy to marriage and invalidated Virginia’s law against interracial marriage.[4]

In 1965, addressing reproductive rights again, the Court decided Griswold v. Connecticut. In Griswold, the Court invalidated a Connecticut law that prohibited married couples from using contraceptives, noting “the right of privacy which presses for recognition here is a legitimate one.”[5] In 1972, in Eisenstadt v. Baird, the Court extended the Griswold holding to unmarried individuals. The Court explained, “If the right to privacy means anything, it is the right of an 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.”[6]

In light of this line of cases, Roe was not a departure from precedent. As Justice Lewis Powell recalled six years after Roe, Roe v. Wade presented the same basic question that Griswold did. Griswold involved “a personal and private relationship that should be free from state regulation.” “The concept of liberty was the underlying principle of the abortion case—the liberty to make certain highly personal decisions that are terribly important to people.” “It is difficult to think of a decision that’s more personal or more important to a pregnant woman than whether or not she will bear a child.”[7]

Wills’s claim that “a ‘privacy right’ large enough to encompass abortion could also be applied to virtually any conduct performed outside the public view, including child abuse, possession of pornography, or using illicit drugs” is inconceivable, requiring an quantum leap in logic. Wills’s reluctance to recognize rights not specifically enumerated for fear of a slippery slope is understandable, but barring the Court from recognizing any fundamental right not expressly written in the Constitution is not the answer. The framers of our Constitution addressed Wills’s concern by setting up a system of checks and balances.[8] Thus far, the system has proven effective and has prohibited any one judge or court from going too far.

Interpreting the Fourteenth Amendment, Adhering to the Ninth

The Fourteenth Amendment, as well as the Ninth Amendment, command Roe’s outcome. In her critique, Wills advocates for an incredibly restrictive and simplistic interpretation of the Fourteenth Amendment. She claims that “the Fourteenth Amendment was not intended to create any new rights but to secure to all persons, notably including freed slaves and their descendants, the rights and liberties already guaranteed by the Constitution.”

If employed by the courts, Wills’s analysis—to provide individuals protection only for rights explicitly mentioned in the Constitution—would produce an absurd result. As Laurence Tribe has explained, the rights enumerated in the Constitution, namely the Bill of Rights, offer individuals protection from infringement by Congress, not by the states. For example, the First Amendment provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Under Wills’s analysis, the Fourteenth Amendment secures for all persons First Amendment guarantees and protections from infringement by Congress but not the states. Surely, that is not what the authors of the Fourteenth Amendment intended. In fact, no Court majority since Roe has called into question the incorporation of the Bill of Rights to the states or denied that the “liberty” clause of the Fourteenth Amendment protects more than the freedoms enumerated in the Bill of Rights.[9]

Moreover, simply because a fundamental right is not explicitly mentioned in the Constitution does not mean that it has no constitutional grounding. Focused exclusively on the Fourteenth Amendment, Wills ignores the Ninth, which provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Ninth Amendment provides courts with a clear rule of construction for the Constitution and tells us that we should not construe the Constitution or limit individual rights based on what the Constitution does not explicitly list. As Justice Arthur Goldberg eloquently explained in his concurrence in Griswold:

The language and history of the Ninth Amendment reveal that the framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.[10]

James Madison, who introduced the Ninth Amendment, explained that it was intended to address concerns that the Bill of Rights would be insufficient to cover all basic human rights. Presenting the amendment, Madison said:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution (the Ninth Amendment).[11]

Thus, the Roe Court’s interpretation of the Fourteenth Amendment and its respect for the Ninth Amendment is both logical and faithful to the Constitution and the values therein. To interpret the amendments otherwise would generate a very limited and piecemeal set of protections for individual rights.

The Court’s Purview and Obligation to Invalidate Unconstitutional Laws

The Court in Roe was well within its purview to strike down the Texas abortion statute and provide states with a framework for regulating abortion. Wills claims that “the Court’s decision in Roe exceeded its constitutional authority” and notes that “the role of the judiciary in constitutional review is to determine if the law being challenged infringes on a constitutionally protected right.” That is precisely what the Roe Court did. Although the Justices may differ in their interpretation, it is their role to determine what provisions in the Constitution, such as the “liberty” clause, mean. If the Court’s interpretation nullifies a state law (or, for that matter, many state laws), that does not mean that the Court has gone beyond its constitutional mandate or usurped the power of the legislature. Quite the contrary—it means the Court has fulfilled its obligation as the final arbiter on the Constitution.

Reports from inside the Court, as well as the actual opinion, show that the Court, especially Justice Blackmun, took that responsibility quite seriously. In fact, Justice Blackmun wrote an unprecedented eight-page explanatory statement to accompany the opinion in Roe v. Wade.[12] Ultimately, the explanatory statement was not issued, but parts of it, including its sentiment, are expressed in the opening lines of Roe:

We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. …

Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man’s attitudes toward the abortion procedure over the centuries. We bear in mind, too, Mr. Justice Holmes’ admonition in his now-vindicated dissent in Lochner v. New York: “(The Constitution) is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”[13]

The Trimester Framework: Another Constitutional Standard

Wills claims that “the Roe Court assumed the role of a legislature in establishing the trimester framework.” Not true. Constitutional doctrine is made up of judge-made analysis that interprets and applies constitutional requirements and evolves over time. For example, the Supreme Court has articulated at least three judicially created standards for determining the constitutionality of laws under the equal protection clause.[14] Similarly, the Court has articulated countless nuances to the Fourth Amendment’s search and seizure provisions. Whether, when, and how a police officer can search a house, car, trunk, glove compartment, luggage, or sealed container is all dictated not by details laid out in the Constitution or by federal or state statutes but by Supreme Court jurisprudence.[15]

The Roe Court’s articulation of the trimester framework, as well as the Court’s later formulation of the undue burden standard, is similar. As Justice Blackmun noted, “I have in mind associating the end of the first trimester with an emphasis on health, and associating viability with an emphasis on the state’s interest in potential life. The period between the two points would be treated with flexibility.”[16] He later noted with a near-final draft of Roe that “here I have tried to recognize the dual state interests of protecting the mother’s health and protecting potential life.”[17] Shortly after circulation, members of the Roe majority, including Justice Potter Stewart, who had commented that initial drafts of the opinion seemed too legislative, signed on to the opinion.[18]

Nearly twenty years after Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey, a different Supreme Court faced with the same constitutional questions about abortion “retained and once again reaffirmed” the “essential holding” of Roe v. Wade. But it articulated an “undue burden” standard of review for evaluating restrictions on abortion. The Court explained that an undue burden exists—and therefore a provision of law is invalid—if it has the “purpose or effect of placing a substantial obstacle in the path of a woman seeking [a pre-viability] abortion.”[19] This undue burden standard, much like the trimester framework, is neither legislative nor illegitimate because it offers states guidelines on permissible regulations of abortion. In fact, it behooves the Court to keep lower courts and lawmakers from guessing what the Court’s constitutional pronouncements mean, especially in a controversial area of the law.[20]

The Fourteenth Amendment Does Not Apply to the Unborn

Wills claims that “although it reads the Fourteenth Amendment extremely expansively to include a right of privacy . . . the Court in Roe adopts a very narrow construction of the meaning of persons to exclude unborn children.” But no amount of torture to the provisions of the Constitution could allow a Court to interpret the termperson to include the unborn.

Paradoxically, throughout her essay, Wills criticizes the Court for failing to adhere strictly to the words of the Constitution. Yet here, she would have the Court not only ignore the text of the Constitution but also contradict provisions that strongly suggest that the term person does not include the unborn. As the Court explained inRoe, in virtually every provision the Constitution uses the term person, “the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible prenatal application.”

For example, the Fourteenth Amendment uses the word person three times. First, it is used to define citizens “born or naturalized in the United States.” Subsequently, person is used in the due process and equal protection clauses: “Nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” It would be peculiar and certainly inconsistent for the framers to employ the term person in one sentence to refer to born persons but then in the next sentence to employ the same term to refer to unborn persons.[21]

Moreover, as the Roe Court noted, no court or state has ever considered a fetus a person for purposes of the Fourteenth Amendment. Even the harshest laws proscribing abortion made exceptions for when a woman’s life was in danger. If a fetus were a person for purposes of the Fourteenth Amendment, application of these exceptions would have meant depriving the fetus of due process of law—a contention that has never been accepted.

Wills also criticizes the lack of weight the Court gives to nineteenth-century criminal abortion laws. She claims that “these laws show broad acceptance of the view that the life of an unborn child is valuable and should be protected unless the mother’s life is at risk.” Not true. At the beginning of the nineteenth century—and at the time the Constitution was adopted—no state had banned abortion. It was not until the mid-nineteenth century that states began regulating abortion—and it was not to protect the unborn but to protect women’s health. Abortion methods were quite dangerous at that time, involving the administration of poisons to pregnant women in some cases.[22]

By the mid-twentieth century, physicians that had previously advocated for criminal bans on abortion to protect women’s health began reexamining the laws. With medical progress and technology, abortion had become a safe procedure, particularly during the early months of pregnancy. Supported by medical, religious, and women’s groups, lawmakers increasingly sought to reform and repeal abortion laws. Between 1967 and 1973, almost half of the states reformed their abortion laws, creating exceptions to the blanket criminal bans. In 1970, both Hawaii and New York repealed their criminal abortion laws. Other states were in the process of following their lead when the Court decided Roe a mere three years later.[23]

In short, the text of the Constitution, as well as the history and purpose of criminal abortion laws, help demonstrate that Roe is consistent with both the Framer’s intent and the historical place of abortion in society.

The Supreme Court Should Continue to Reaffirm Roe

Although many critics, including Wills, may genuinely disagree with the outcome of Roe v. Wade, they are wrong to suggest that the landmark decision is anything but solid constitutional law. More than three decades of Supreme Court Justices, appointed by presidents from both political parties, have consistently reaffirmed the core holding of Roe not simply in deference to the principle of stare decisis but because “the soundness of the . . . analysis is apparent from a consideration of the alternative.”[24] In addition, the American Bar Association, the American Law Institute, and thousands of legal scholars—as well as the American Medical Association and the American Public Health Association—have supported a woman’s legal right to safely terminate a pregnancy. The Court should continue to reaffirm Roe. To do otherwise would impair the Supreme Court’s standing and reputation and would impose an unjust hardship on women nationwide.

Notes

[1] Justice Louis Brandeis, quoted in Laurence H. Tribe, Abortion: The Clash of Absolutes (New York: W. W. Norton and Company, 1990), 92.

[2] Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925).

[3] Skinner v. Oklahoma, 316 U.S. 535 (1942).

[4] Loving v. Virginia, 388 U.S. 1 (1967); Tribe, 92–93; David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (Berkeley, Calif.: University of California Press, 1998), 590.

[5] Griswold v. Connecticut, 382 U.S. 479, 485 (1965).

[6] Eisenstadt v. Baird, 405 U.S. 438 (1972).

[7] Garrow, Liberty and Sexuality, 576.

[8] Tribe, Abortion, 88–89.

[9] Ibid. 89.

[10] Griswold, 479, 488 (Goldberg, concurring).

[11] Ibid., 479, 490–91.

[12] Garrow, Liberty and Sexuality, 587.

[13] Roe v. Wade, 410 U.S. 113, 116–17 (1973).

[14] Tribe, Abortion, 109.

[15] Ibid.

[16] Justice Harry Blackmun, quoted Garrow, Liberty and Sexuality, 585.

[17] Ibid., 586.

[18] Ibid., 585–86.

[19] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 877 (1992).

[20] Tribe, Abortion, 110.

[21] Roe, 113, 157–58.

[22] Tribe, Abortion, 28–29.

[23] Ibid., 34–47.

[24] Casey, 833, 859.

Part 3: Susan E. Wills: Blackmun and Co Miss the Point

One could fill a book with evidence refuting Ederlina Co’s attempts to defend the Roe v. Wade opinion on its own terms. I would like to mention two books in particular in this rebuttal essay.The first book is What Roe v. Wade Should Have Said (edited by pro-choice Yale law professor Jack M. Balkin).[1] In this volume, eight pro-choice law professors offer “concurring opinions” in which they attempt to justify Roe’s legal outcome on constitutional grounds, something Justice Harry Blackmun famously failed to do. Trying to divine a right to abortion in the Constitution on the basis of women’s equal protection, the privileges and immunities clause, sexual or reproductive freedom, privacy, autonomy, or any other theory (e.g., Harvard law professor Laurence Tribe’s pet theory of abortion as part of religious freedom, since repudiated by him) is an interesting academic exercise but one doomed to fail from the get-go.By default, only Balkin undertook the utterly impossible task of justifying Blackmun’s opinion on the spurious grounds Blackmun chose: the Ninth Amendment’s reservation of rights to the people or the Fourteenth Amendment’s concept of personal liberty on substantive due process grounds. Balkin produces a more coherent opinion than Roe—it could hardly be less so—but one too like the original in its misleading and tortured interpretation of constitutional text, history, and legal precedent.

Ms. Co posits that the Roe Court’s holding and reasoning “deserve the utmost respect from both future Courts and genuine legal scholars.” But where is the “genuine legal scholar” (other than Balkin, playing an intellectual parlor game for his publisher) who will defend Roe’s reasoning? Despite the atmosphere of pro-choice political correctness that permeates the groves of legal academe, anyone who publishes a defense of Roe’s reasoning would be a laughingstock. No, respect will forever elude this opinion.

The Role of Revisionist Abortion History in Roe v. Wade

The second book is the 1,283-page Dispelling the Myths of Abortion History by Villanova law professor Joseph W. Dellapenna.[2] Citing over 2,000 legal cases and offering about 9,000 footnotes, Dellapenna’s book systematically demolishes the fraudulent version of abortion “history” that takes up fully half of the Roe opinion.

Blackmun’s rendition of abortion law and practice through the millennia was concocted by Cyril Means, Jr., general counsel for the National Association for the Repeal of Abortion Laws (NARAL), the predecessor to Co’s NARAL Pro-Choice America. Blackmun relied heavily on two articles by Means, citing them seven times. Sarah Weddington, representing “Jane Roe,” stated that “the Justices had copies of Means’ articles on the bench with them during the oral arguments.”[3] And Weddington referred to Means’s version of abortion history three times in her oral argument.

Co echoes Means in claiming that “at the beginning of the nineteenth century—and at the time the Constitution was adopted—no state had banned abortion.” Not so. Dellapenna describes dozens of prosecutions for injury abortions and “ingestive” abortions in both ecclesiastical and lay courts in England in the late fifteenth and sixteenth centuries.[4] Legal records by the end of the sixteenth century “indicate that both forms of abortion were capital felonies regardless of consent or (more typically) lack of consent by the woman undergoing the abortion attempt.”[5] He also describes abortion prosecutions in the American colonies that were “consistent with the law of England” or were “more restrictive of abortion.”[6]

Concerning these laws, Co echoes the false claim made by Means/Blackmun that such laws were enacted “not to protect the unborn but to protect women’s health.” Evidence for that assertion rests on an isolated comment selectively plucked by Means, which described an 1858 New Jersey statute’s purpose as protecting the mother’s life. In a passage immediately preceding that statement, however, the New Jersey court explained that the protection of the child’s life was the purpose of the prohibition against abortion in the common law, and the statute was meant to supplement common law by adding protection for the mother.[7]

Means also claimed he could find no nineteenth-century abortion case that reflected a legislative intent other than protecting the mother. Dellapenna, however, found seventeen cases in the nineteenth century that describe the protection of fetal life as the primary reason for statutes prohibiting abortion.[8]

A Privacy Right to Abortion?

Co relies, as Blackmun did in Roe, on a string of non sequiturs. Here’s one: From the fact that the Supreme Court has found “zones of privacy” in certain amendments to the Constitution—e.g., dealing with the privacy of one’s home, papers, and lawful personal communications—one is also bound to declare abortion a constitutionally mandated privacy right. If that were true, one would also have to conclude that any action performed within the home (child abuse, incest, illicit drug use, possession of child pornography) is also, therefore, constitutional.

Here’s another non sequitur: On the basis of privacy understood as personal autonomy, one can conclude that any act one deems essential to one’s “concept of existence, of meaning, of the universe, and of the mystery of human life,”[9] i.e., one’s personal moral code, cannot be infringed by law. This is just plain silly. That would mean that one could punish only those criminals who admit they violated standards of conduct to which they subscribe. And under this theory of privacy, if pedophilia gave meaning to a man’s life and he objects to its legal prohibition, he could not be prosecuted.

Co next refers to a line of cases that, she believes, were based on a “right of privacy.” Except for the cases involving contraception (Griswold and Eisenstadt) which were immediate predecessors to Roe, other cases cited by the Court and Co relied not on privacy per se but on the protection of parental rights and marriage.Loving v. Virginia struck down a ban on interracial marriage. Meyer v. Nebraska and Pierce v. Society of Sisters upheld parental decision-making regarding their children’s education. Skinner v. Oklahoma found unconstitutional a state law mandating sterilization of inmates found guilty of certain crimes. And even Griswold v. Connecticut, striking a ban on contraceptive use by a married couple, mentions privacy only in the context of posing this rhetorical question: “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?”

But abortion does not fit neatly among these marital and parental rights. It negates them.

The right to procreate in Skinner is nullified by a pregnant woman’s right to abort. After Roe, a man no longer has the right the Supreme Court acknowledged in Skinner to bring children into the world. He now has only a “right” to fertilize an ovum, creating an embryonic human being whom his partner then has nine months to destroy without his knowledge or consent.

The fear of government intruding into the marital bedroom searching for evidence of contraceptive use drove the Griswold Court to find a privacy right for married couples to use contraception in the “penumbras, formed by emanations from” various guarantees in the Bill of Rights. But however closely abortion and contraception may be linked in purpose and effect, they are worlds apart in terms of privacy. Abortions do not take place in the “sacred precincts of marital bedrooms”; preventing abortion does not require investigation of private sexual behavior; and, finally, abortions involve personnel other than spouses.

Co is left with the dubious Eisenstadt decision, which has been read to extend the marital privacy right to use contraceptives to unmarried people. Yet the 4-2-1 decision involves overturning the conviction of a college lecturer for the illegal distribution of a can of contraceptive foam to a woman whose marital status was not even in the record. Extending the use and distribution of contraception to unmarried people was therefore not warranted by the facts of the case and should be considered “dicta,” therefore not controlling in future cases. The can of foam was also readily available over-the-counter. In short, this is a strange decision (in a trumped up “test case”) on which to base the entire justification for abortion being a “privacy right.”

Is There a Right to Abortion in the Fourteenth Amendment?

Co accuses me of being too “restrictive” and “simplistic” in stating that the Fourteenth Amendment was not intended to create any new rights but to secure to all persons the rights and liberties already guaranteed by the Constitution. Intentionally misconstruing my point, she cites the “incorporation doctrine” of the Fourteenth Amendment as proof that this amendment creates new rights by extending recognized constitutional rights and liberties to citizens of the states. But these are not substantively new rights and liberties, simply because states will also be forbidden from violating them. Nor are “fundamental rights” in any sense “new rights.”

From time to time, such fundamental rights have been acknowledged by the Supreme Court, according to a specific methodology articulated most recently in the assisted suicide decisions—Washington v. Glucksberg and Vacco v. Quill (finding no substantive due process liberty to commit suicide or have assistance in doing so).Glucksberg reiterates the Court’s inquiry for determining if a fundamental right exists that should be acknowledged in the Fourteenth Amendment:

Our established method of substantive due process analysis has two primary features: First, we have regularly observed that the due process clause specially protects those fundamental rights and liberties that are, objectively, “deeply rooted in this nation’s history and tradition” … [and] “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” … Second, we have required in substantive due process cases a “careful description” of the asserted fundamental liberty interest. … Our nation’s history, legal traditions, and practices thus provide the crucial “guideposts for responsible decisionmaking” … that direct and restrain our exposition of the due process clause.[10]

The right to own property, to marry, to bear and rear children, and to refuse unwanted medical procedures are examples of such fundamental rights acknowledged—not newly minted—under the Fourteenth Amendment. Killing fellow humans by abortion and assisted suicide flunk the test of being deeply rooted in this nation’s history and tradition.

To be sure, there is precedent for finding new “substantive due process” rights in the Bill of Rights, but unfortunately for Co, those precedents have been thoroughly discredited. The prime examples of new substantive due process rights found in Supreme Court jurisprudence are Dred Scott v. Sandford and Lochner v. New York. The former is considered to be one of the two or three worst abominations in the history of the Supreme Court, and the “Lochner era” ended in the doctrine’s repudiation in 1937.

One final point about Justice Blackmun’s presumed reliance on the Fourteenth Amendment: In assessing constitutionality, it’s customary for a judge to look at the text, historical context, and legislative history of a provision of the Constitution. Blackmun and Co have made apparent no effort to do this. Professor Jeffrey Rosen of the George Washington University School of Law provides historical context to the adoption of the Fourteenth Amendment, which alone argues strongly against the notion that the amendment was intended to recognize a “right” like abortion:

When the Fourteenth Amendment was ratified in 1868, thirty of the thirty-seven states in the Union had passed laws restricting abortion. All but three of these states—Arkansas, Minnesota, and Mississippi—banned abortion throughout pregnancy. Seven of the twenty-seven states that banned abortion throughout pregnancy punished abortions after quickening more severely than those before quickening, but the other twenty states punished abortions equally regardless of when they were performed. The effect of these laws was to ban abortion from conception, unless necessary to save a mother’s life—precisely like the Texas law before [the Court in Roe]. Since the statute before [the Court in Roe] had been adopted by a majority of states when the Fourteenth Amendment was ratified, it clearly does not violate the Fourteenth Amendment as originally understood.[11]

The Ninth Amendment as a Source of Abortion “Rights”?

Co chastens me for ignoring the Ninth Amendment as a source of the abortion “right.” Hers is not the prevailing understanding of the Ninth Amendment as taught, one must suppose, in every accredited law school.

The distinguished law professor Michael Stokes Paulsen, with customary clarity, provides a succinct explanation of why the Ninth Amendment could never be reasonably considered a source for a right of abortion:

[The] Ninth Amendment to the Constitution … is plainly not itself a grant of (unspecified) further rights but a rule of construction about the legal effect of the Constitution’s enumeration of other rights. The Ninth Amendment is a rule of non-pre-emption; the enumeration of certain federal constitutional rights does not itself operate to displace or vitiate other legal rights resting on other legal authority. Most obviously, such retained rights consist of individual rights that exist by virtue of state law, including state common law and state constitutions. The enactment of a federal Bill of Rights, the Ninth Amendment says, does not repeal such other rights. But the amendment scarcely creates new, unspecified, substantive federal constitutional rights. …

The Ninth Amendment is a cognate provision with the Tenth Amendment, which adopts an analogous rule of non-pre-emption by clarifying that unenumerated governmental powers are reserved to the states or to the people. The Tenth Amendment clarifies for state powers what the Ninth Amendment clarifies for state citizens’ rights.[12]

The Fourteenth Amendment and the Unborn

Both Justice Blackmun and Co find it dispositive that under the language of the Fourteenth Amendment the word person does not specifically include unborn children. In their view, by failing to be defined as a person under that amendment, unborn children have no claim on the government to protect their lives, liberty, or property. This point, argued extensively in Roe, is a monumental red herring, calculated to draw attention away from two salient points they miss.

First, as Yale law professor John Hart Ely artfully observed: “The argument that fetuses lack constitutional rights is simply irrelevant. … Dogs are not ‘persons in the whole sense’ nor have they constitutional rights, but that does not mean the state cannot prohibit killing them.”[13]

Second—and here’s the crux of the abortion problem for all defenders of Roe: Abortion takes the life of a living human being. If the Court had had the integrity to acknowledge this self-evident and indisputable scientific fact—one all the more obvious today to anyone who’s seen an ultrasound image or fetal photo (one could visit, for example, www.secondlookproject.org/tslp_fetal.html) or glanced through a biology textbook or read a factual description of partial-birth abortion—there would have been no protracted discussion of balancing the privacy or liberty interests of a mother against the life of her child. Western legal tradition does not allow lesser rights, like privacy or sexual freedom, to trump more fundamental rights, like the right to life.

Moreover, if abortion were just another surgical procedure, like removing an appendix, wisdom tooth, or tumor, there would be no need for a fifty-page legal opinion (and countless books and journal articles) trying to justify the surgery on constitutional grounds.

Surely this cognitive dissonance must come to an end, and soon. How long can our legal system deny an unborn child his inalienable right to life simply because someone wants him dead? How many 4-D ultrasounds or heartbreaking stories of unrelenting grief following the abortion loss of a child will it take to convince educated and well-intentioned people like Co of the reality human life before birth? Please God, no longer.

Notes

[1] Jack M. Balkin, What Roe v. Wade Should Have Said (New York: New York University Press, 2005).

[2] Joseph W. Dellapenna, Dispelling the Myths of Abortion History (Durham, N.C.: Carolina Academic Press, 2006).

[3] Ibid., 144.

[4] Ibid., 176–183.

[5] Ibid., 185.

[6] Ibid., 228.

[7] Ibid., 286.

[8] Ibid.

[9] Planned Parenthood v.Casey, 505 U.S.833 (1992).

[10] Washington v. Glucksberg, 521 U.S. 702, 720–721 (1997).

[11] Jeffrey Rosen, “Rosen, J., dissenting,” in Balkin, What Roe v. Wade Should Have Said, 173-174, note 1.

[12] Michael Stokes Paulsen, “Paulsen, J., dissenting,” in Balkin, What Roe v. Wade Should Have Said, 198, note 1.

[13] John Hart Ely, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” Yale Law Journal 82 (1973): 926.

Part 4: Ederlina Co: The Legal Merits of Roe

For more than thirty years, the Supreme Court has consistently reaffirmed the core holding of Roe v. Wade. Yet volumes of Supreme Court case law written by Justices nominated by presidents from both parties and confirmed by Senates controlled by Democrats and Republicans are insufficient to persuade Wills that the decision is a sound one. Why? Wills opines rather emphatically that “abortion takes the life of a living human being.” Therein lies the heart of Wills’s disagreement with Roe.Wills’s criticism and analysis of Roe is largely dictated not by the law but by the outcome she seeks to achieve. As a result, throughout her essays, Wills puts forward a series of strained interpretations of the Constitution and Court precedent and a number of personal opinions about abortion that are irrelevant as a matter of law. For example, on the right to privacy, Wills mischaracterizes or minimizes seminal cases like Loving v. Virginia, Griswold v. Connecticut, and Eisenstadt v. Baird; viewing each case in a vacuum, Wills fails to recognize the legal doctrine as a rational continuum or progression of cases that the Court has built on over time. Similarly, on the Fourteenth Amendment and substantive due process, Wills advances arguments in favor of original intent and a cramped analysis of the meaning of “liberty” that would limit our constitutional rights to reflect the concerns of a small group of men living in a largely agrarian society more than two centuries ago.

Wills disagrees with abortion and hence the outcome of Roe. But the decision itself is well reasoned, balanced, and based on the Constitution. As much as Wills may desire, the Court’s role does not involve answering questions like when life begins. As the Roe Court recognized, “when those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”[1] The Court’s role is to interpret the Constitution—a living, breathing document—and decide the legal merits of cases. On the legal merits of Roe, the Court reached the proper conclusion.

Understanding the Right to Privacy

Wills misunderstands the history and progression of the Supreme Court’s right to privacy jurisprudence and Roe’s logical outgrowth from it. For example, Wills claims that Loving v. Virginia relies on the right to marry, not the right to privacy. However, if not found in the Fourteenth Amendment’s liberty clause and implicit right to privacy, where can one find the right to marry in the Constitution?

A cursory review of Loving and its progeny demonstrates that the right to marry is part and parcel of the right to privacy. In Loving, the Supreme Court invalidated Virginia’s law prohibiting interracial marriage. The Court held that such statutes deprived the plaintiffs of “liberty” in violation of the Fourteenth Amendment and explained that the state could not infringe on a person’s freedom to marry a person of another race. Noting that marriage is a basic civil right, the Court explained that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”[2]

Since Loving, the Supreme Court has consistently held that the “personal rights” recognized in the case are protected by the right to privacy. For example, in Carey v. Population Services (involving the right to contraception) and Zablocki v. Redhail (involving the right to marry), the Supreme Court reiterated:

While the outer limits of this aspect of privacy have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage, Loving v. Virginia; procreation, Skinner v. Oklahoma ex rel. Williamson; contraception, Eisenstadt v. Baird; family relationships, Prince v. Massachusetts [and]Meyer v. Nebraska.[3]

A woman’s right to choose to have an abortion flows logically from other privacy rights, including the right to marry and procreate. If not apparent from those decisions, Griswold v. Connecticut and Eisenstadt v. Baird, the Court’s right-to-contraception cases, make the point—whether and when to have a child is a personal, private decision constitutionally protected from undue government infringement.

Yet Wills minimizes both Griswold and Eisenstadt. She mistakenly claims that the Griswold Court mentions privacy only in a rhetorical question: “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?” Actually, the Court devotes significant portions of its decision discussing the right to privacy. First, answering its own rhetorical question, the Court explained that “the very idea [of allowing the police to search marital bedrooms for contraceptives] is repulsive to the notions of privacy surrounding the marriage relationship” (emphasis added). Then, citing at least half a dozen cases, including Skinner v. Oklahoma, the Court emphasized that “the right of privacy which presses for recognition here is a legitimate one.”[4] Finally, the Court concluded that Griswold concerned “a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.” The Court instructed:“We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system.”[5]

Wills also dismisses Eisenstadt v. Baird and maintains that the case should be considered “dicta” because the underlying facts did not warrant the decision. In Eisenstadt, the Court extended the marital right to privacy in Griswold to unmarried individuals and explained that “if the right to privacy means anything, it is the right of an 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.”[6] Wills notes that the record did not reflect the marital status of the woman who received the contraceptive and that the contraceptive was over-the-counter, not prescription-only.

Even assuming Wills’s recitation of the facts is true, the Court correctly decided Eisenstadt on both procedural and substantive grounds. Regardless of the woman’s marital status or the contraceptive device at issue, Bill Baird met the requirements of standing to challenge the law. As Justices Brennan and White explained, Baird could challenge the law that put him in jail.[7] The Massachusetts courts as well as the federal courts that considered Eisenstadt also determined that standing was not a bar to the suit.[8]

Wills may believe Eisenstadt is a “dubious” and “strange decision” unworthy of precedential value, but fortunately, not many agree with this assessment. No Justice on the Eisenstadt Court objected to the “bear or beget” language, which has since been used in hundreds of state and federal court decisions.[9] All of the U.S. Courts of Appeals, as well as the highest courts of all fifty states and the District of Columbia, have cited Eisenstadt as authority.[10] Even other countries, including Canada and Ireland, have cited Eisenstadt in their right to privacy cases.[11]

After much downplaying of Griswold and Eisenstadt, Wills acknowledges that the Griswold Court found “a privacy right for married couples to use contraception” but complains that “however closely abortion and contraception may be linked in purpose and effect, they are worlds apart in terms of privacy.” Not true. The common thread that weaves through the Court’s privacy jurisprudence up to Roe (and after Roe) is that the decisions at issue are “central to personal dignity and autonomy”[12] and involve “freedom of choice in the basic decisions of one’s life.”[13] As foreshadowed in Loving and established in Griswold and Eisenstadt, whether to have a child is certainly within the purview of the personal decisions protected.

In short, the constitutional rights recognized in Loving, Griswold, Eisenstadt, and Roe are all central to the right to privacy. These cases do not stand alone as isolated points; rather, they fall along a continuum—built upon each other by successor Courts that recognized the need to protect our most private decisions from government intrusion.

Making Sense of the Court’s Substantive Due Process Jurisprudence

Wills’s substantive due process analysis allows for only a narrow, unrecognizable interpretation of “liberty.” She maintains that the Court has properly recognized the fundamental rights to marry, to refuse unwanted medical treatment, and to rear and bear children, but she insists that the right to abortion fails to meet the Court’s substantive due process test.

The Court has properly recognized that a woman’s right to choose to have an abortion is at the core of personal autonomy. As the Supreme Court noted in Washington v. Glucksberg, unlike assisted suicide, the right to decide whether to have a child recognized in Griswold, Eisenstadt, and Roe is indeed “deeply rooted in our history and traditions” and “fundamental to our concept of constitutionally ordered liberty.”[14] In contrast to the assisted suicide interest in Glucksberg, the nation’s history does not reflect any outright rejection of the right to decide whether to have an abortion. Quite the contrary.

When our nation declared its independence and ratified the Constitution, we adopted English common law, which defined pregnancy at “quickening” or when a woman could first feel a fetus move. During the era of colonial and post-revolutionary America, abortion was legal at least until that point in pregnancy.[15] Subsequent laws regulating abortion in the nineteenth century were motivated by concerns regarding women’s health, not fetal life. For example, evidence indicates that America’s first law on the topic banned giving a woman a “potion” that would terminate a pregnancy after quickening; this law appears to be the result of an effort by physicians to ban homemade remedies because they were too dangerous.[16] By the mid-twentieth century, and at the time of Roe, physicians, religious groups, and women’s rights advocates were gaining momentum and experiencing success in repealing obsolete abortion laws—they were no longer necessary in light of medical advances.[17]

In reaffirming Roe’s central holding and recognizing that the right to abortion is protected while other rights like assisted-suicide are not, the Court does not now “have to conclude that any action performed within the home (child abuse, incest, illicit drug use, possession of child pornography) is also, therefore, constitutional,” as Wills claims. Both pre- and post-Roe, the Court has employed the “utmost care” in this area of the law, always expressing reluctance to expand substantive due process rights. Glucksberg is one example of the Court refusing to recognize a substantive due process right. Michael H. v. Gerald D., a case in which the Court refused to recognize a biological father’s right to visit with his daughter because he had committed adultery, is yet another example.[18]

Wills takes the slippery slope argument to the extreme, ignoring the Court’s established substantive due process boundaries. If the Court has refused to find constitutional protection for certain personal decisions involving one’s death and childrearing, why would the Court allow protection for long-standing criminal acts like incest and child pornography? The thought is simply too far-fetched and insulting to a Court that has painstakingly established a principled line of substantive due process cases.[19]

Original Intent of the Fourteenth Amendment

Wills claims that the original intent of the Fourteenth Amendment argues against recognition of the right to abortion. Although the Court should consider the history and purpose of the Fourteenth Amendment, it would face an impossible task trying to ascertain the original intent of the authors of an amendment. Each constitutional amendment has multiple authors. Which author’s intent is dispositive? In addition, constitutional amendments do not become the law of the land until the states ratify the language. Although the states reached the same conclusion to ratify the Fourteenth Amendment, surely Northerners and Southerners did not make the same assumptions or have the same intentions as each other or the original authors of the Fourteenth Amendment.[20]

Even some of the Court’s most conservative members recognized the pitfalls of original intent. In Thornburgh v. American College of Obstetricians and Gynecologists, Justice White joined by Justice Rehnquist wrote:

This Court does not subscribe to the simplistic view that constitutional interpretation can possibly be limited to the “plain meaning” of the Constitution’s text or to the subjective intention of the Framers. The Constitution is not a deed setting forth the precise metes and bounds of its subject matter; rather it is a document announcing fundamental principles in value-laden terms that leave ample scope for the exercise of normative judgment by those charged with interpreting it and applying it. In particular, the Due Process Clause of the Fourteenth Amendment, which forbids the deprivation of “life, liberty, or property without due process of law,” has been read by the majority of the Court to be broad enough to provide substantive protection against state infringement of a broad range of individual interests.[21]

Moreover, even if the Court could ascertain the original intent of the Fourteenth Amendment, it should resist giving it undue weight. As Laurence Tribe has explained, “those who view original understanding as a rigid talisman would plunge our nation into a deep freeze.”[22] For example, if the original intent behind the Fourteenth Amendment governed the Court’s analysis, schools under the authority of the states would be integrated under Brown v. Board of Education, but schools in the District of Columbia could still be segregated. The equal protection clause of the Fourteenth Amendment reads: “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws” (emphasis added). The original intent of the Fourteenth Amendment authors, as indicated by the text of the amendment, could allow segregation in Washington, D.C., because the Fourteenth Amendment applies only to states. Indeed, the same Congress that passed the Fourteenth Amendment was the same Congress that operated segregated schools in the nation’s capital.[23]

The Ninth Amendment Is a Rule of Construction

Wills misunderstands my point about the Ninth Amendment, so I will clarify it here. As I previously explained, the Ninth Amendment provides courts with a clear rule of construction for the Constitution and tells us that we should not construe the Constitution or limit individual rights based on what the Constitution does not explicitly list. As a rule of construction, the Ninth Amendment does not expressly grant specific rights. But, as Justice Goldberg explained in his Griswold concurrence, the Ninth Amendment lends strong support to the notion that constitutional protections extend beyond the guarantees in the Constitution.[24] He explained:

The Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive. As any student of this Court’s opinions knows, this Court has held, often unanimously, that the Fifth and Fourteenth Amendments protect certain fundamental personal liberties from abridgment by the Federal Government or the States. The Ninth Amendment simply shows the intent of the Constitution’s authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments. I do not see how this broadens the authority of the Court; rather it serves to support what this Court has been doing in protecting fundamental rights.[25]

Roe Is Solid Constitutional Law

In light of the text of Constitution and well-reasoned interpretations of it by previous Courts, the Roe Court logically recognized a woman’s right to choose to have an abortion. The Fourteenth Amendment and Ninth Amendment read together, as well as the Court’s line of privacy and substantive due process cases precedingRoe, command Roe’s outcome. In upholding the core parts of the decision for more than thirty years, the Court has properly held steadfast to its role as final arbiter of the Constitution and has focused on the legal merits of cases rather than on political or religious arguments regarding the abortion issue. The result is solid constitutional law worthy of respect and reaffirming.

Notes

[1] Roe v. Wade, 410 U.S. 113, 159 (1973). Even Justice Scalia—a vocal critic Roe—acknowledged that the Court is incapable of determining when life begins. In his Casey opinion, he wrote: “The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn child is a human life.Thus, whatever answer Roe came up with after conducting its ‘balancing’ is bound to be wrong, unless it is correct that the human fetus is in some critical sense merely potentially human. There is of course no way to determine that as a legal matter; it is in fact a value judgment. Some societies have considered newborn children not yet human, or the incompetent elderly no longer so.” Planned Parenthood v. Casey, 505 U.S. 833, 982 (1992) (Scalia, J. concurring in part, dissenting in part).

[2] Loving v. Virginia, 388 U.S. 1, 12 (1967).

[3] Carey v. Population Services, 431 U.S. 678, 684–85 (1977) (quoting Roe v. Wade); Zablocki v. Redhail, 434 U.S. 374, 385 (1978) (quoting Carey v. Population Services).

[4] Griswold v. Connecticut, 381 U.S. 479, 485 (1965).

[5] Ibid., 485–86.

[6] Eisenstadt v. Baird, 405 U.S. 438 (1972).

[7] Roy Lucas, New Historical Insights on the Curious Case of Baird v. Eisenstadt, 9 Roger Williams U. L. Rev. 9, 36.

[8] Ibid.

[9] Ibid., 43.

[10] Ibid., 48.

[11] Ibid., 49–52.

[12] Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992).

[13] Doe v. Bolton, 410 U.S. 179, 212 (1973) (Douglas, J. concurring).

[14] Washington v. Glucksberg, 521 U.S. 702, 721, 727 (1997).

[15] Alexander Sanger, Beyond Choice: Reproductive Freedom in the 21st Century (New York: PublicAffairs, 2003), 22–23.

[16] Ibid., 25.

[17] Laurence H. Tribe, Abortion: The Clash of Absolutes (New York: W. W. Norton and Company, 1990), 28–29. In contrast, assisted-suicide has never been part of nation’s history and legal traditions. The early colonies adopted the common law approach to suicide: either prohibiting or punishing it. Throughout the nineteenth century and early twentieth century, state legislatures and courts continued to treat suicide as a public wrong. Even at the time of Glucksberg, many states had reconsidered and reaffirmed their assisted-suicide statutes. The Court, therefore, refused to recognize a protected liberty interest in assisted suicide.

[18] Michael H. v. Gerald D., 491 U.S. 110 (1989).

[19] Nor does the Court need to revisit misguided decisions that represent abominations of the law like Lochner v. New York. The Supreme Court in Griswold made a plain distinction between personal liberties and so-called economic liberties and refused to revive Lochner, noting “We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.” Griswold v. Connecticut, 479, 482.

[20] Tribe, Abortion, 107.

[21] Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 789 (1986) (White, J. concurring), overruled in part by Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992).

[22] Tribe, Abortion, 107.

[23] Ibid., 107–108. Of course, the Supreme Court in Bolling v. Sharpe held that the Fifth Amendment prohibits the federal government from segregating schools by race, recognizing that the same Constitution that bars states from running segregated schools could not require less from the federal government. Nevertheless, the example helps illustrate how backward our nation would be if original intent governed the Court’s analysis.

[24] Griswold v. Connecticut, 381 U.S. 479, 491–93 (1965) (Goldberg, J. concurring); David Helscher, Griswold v. Connecticut and the Unenumerated Right to Privacy, 15 N. Ill. U. L. Rev. 33, 37 (1994).

[25] Griswold v. Connecticut, 381 U.S. 479, 492–93 (1965) (Goldberg, J. concurring).