Ederlina Co is counsel for NARAL Pro-Choice America. She provides legal and policy assistance to NARAL Pro-Choice America’s Government Relations department and state affiliate network. Her primary focus is on the organization’s Prevention First initiative, which seeks to reduce unintended pregnancy and the need for abortion.

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Synopsis

January 17, 2007

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; in Pierce, 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 [emphasis added].

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 term person 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 in Roe, 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.