Lecture 7: The Right to Privacy and Abortion
Green = Privacy
Yellow = Marital Privacy
-------------------------------------
1965, Griswold v. Connecticut, U. S. Supreme Court
Majority opinion by Justice Douglas
(1) "specific guarantees in the Bill of Rights have penumbras... [these penumbras are] formed by emanations from those guarantees that help give them life and sustenance"
(2) "Various guarantees create zones of privacy"
(3) "The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner"
(4) "The Fourth Amendment explicitly affirms the "right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.""
(5) "The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy under which government may not force him to surrender to his detriment."
(6) "The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.""
(7) "The present case [law banning the use of contraceptives], then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means of having a maximum destructive impact on that relationship."
(8) "We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred."
Q: Is Justice Douglas talking about:
(a) A Right to Privacy?
(b) A Right to Marital Privacy?
--------------------------------------------
Justice Goldberg, concurring:
(9) "Connecticut's birth-control law unconstitutionally intrudes upon the right of marital privacy"
(10) "the concept of liberty protects those personal rights that are fundamental, and not confined to the specific terms of the Bill of Rights"
(11) "To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever."
(12) "Rather the Ninth Amendment simply lends support to the view that the "liberty" protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government is not restricted to rights specifically mentioned in the first eight amendments."
(13) "Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection."
(14) ""Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling."... The law must be shown "necessary, and not merely rationally related, to the accomplishment of a permissible state policy.""
(15) "The State of Connecticut does have statutes, the constitutionality of which is beyond doubt, which prohibit adultery and fornication. These statutes demonstrate that means for achieving the same basic purpose of protecting marital fidelity are available to Connecticut without the need to "invade the area of protected freedoms.""
(16) "In sum, I believe that the right to privacy in the marital relation is fundamental and basic -- a personal right "retained by the people" within the meaning of the Ninth Amendment. Connecticut cannot constitutionally abridge this fundamental right".
Q: Is Justice Goldberg talking about:
(a) A Right to Privacy?
(b) A Right to Marital Privacy?
------------------------------------------
Justice Harlan, concurring
(17) "I wholly fail to see how the ban on the use of contraceptives by married couples in any way reinforces the State's ban on illicit sexual relationships."
----------------------------------------------
Justice Black, dissenting
(18) "The Court talks about a constitutional "right of privacy" as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the "privacy" of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the Fourth Amendment's guarantee against "unreasonable searches and seizures". But I think that it belittles that Amendment to talk about it as though it protects nothing but "privacy"". [...]
(19) "One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. ... "Privacy" is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. ... For these reasons I get nowhere in this case by talk about a constitutional "right of privacy" as an emanation from one or more constitutional provisions. I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision."
Question: Is Justice Black talking about:
(a) A Right to Privacy?
(b) A Right to Marital Privacy?
Justice Stewart, dissenting
(20) "[i] think that this is an uncommonly silly law. [But] we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates [the] Constitution. And that I cannot do. [...] [What] provision of the Constitution, then, does make this state law invalid? The Court says it is the right of privacy "created by several fundamental constitutional guarantees." With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this [Court]."
Question: Is Justice Stewart talking about:
(a) A Right to Privacy?
(b) A Right to Marital Privacy?
------------------------------------------------
1973: Roe v. Wade, U.S. Supreme Court
Majority opinion by Justice Blackmun
(1) "[The] principal thrust of the appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy."
(2) "The Constitution does not explicitly mention any right of privacy. [But] the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones or privacy, does exist under the Constitution. ... The decisions [ e.g. Griswold] make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty" are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, procreation, contraception, and family relationships."
(3) "This right of privacy, whether it be founded in the 14th Amendment's concept of personal liberty [as] we feel it is, or, as the District Court determined, in the [Ninth Amendment], is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation."
------------------------------------------------
Justice White, dissenting
(4) "At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are nevertheless unwanted for any one or more of a variety of reasons -- convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake [it]. The Court for the most part sustains this position: During the period prior to the time the fetus becomes viable, [the Constitution] values the convenience, whim or caprice of the putative mother more than the life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother. [I] dissent. I find nothing in the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 states are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus on the one hand against a spectrum of possible impacts on the mother on the other hand."
--------------------------------------------
Justice Rehnquist, dissenting
(5) "[I] have difficulty in concluding [that] the right of "privacy" is involved in this case. [Texas] bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not "private" in the ordinary usage of the word. Nor is the "privacy" which the Court finds here even a distant relative of the [Fourth Amendment freedom from searches and seizures]. If the Court means by the term "privacy" no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of "liberty" protected by the 14th Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree [that "liberty"] embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, but only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. [...] the Court's sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that [standard]."
(6) "[By] the time of the Adoption of the 14th Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. [The] only conclusion possible from this history is that the drafters did not intend to have the 14th Amendment withdraw from the States the power to legislate with respect to this [matter]."