Print

E-mail

Synopsis

January 17, 2007

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 Willis 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 preceding Roe, 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.