Roe v. Wade: Finding the Right to Privacy
Thirty-five years ago this week, Supreme Court Justice Harry Blackmun delivered the majority opinion in the case of Roe v. Wade, finding for Norma McCorvey, a 23-year-old divorced mother who had challenged the constitutionality of a Texas statute that criminalized abortions except when the life of the expectant mother was at stake. The Court’s ruling barred states from interfering with abortion rights during the first trimester of pregnancy and placed sharp restrictions on the states’ say on women’s reproductive rights before the point of fetal viability, which Blackmun—a former general counsel for the Mayo Clinic in Rochester, Minnesota—located somewhere between six and seven months. From the start, the decision proved an ideological lightning rod.
The lead attorneys for McCorvey—Sarah Weddington, Linda Coffey, and Roy Lucas—had built their argument on a paper that Lucas had written as a New York University law student, in which he found in the Bill of Rights “a fundamental right of marital privacy, human dignity, and personal autonomy reserved to the pregnant woman acting on the advice of a licensed physician.” Thus, he argued, the state had no legal right to proscribe reproductive service. Acknowledging that the Constitution made no mention of abortion, per se, Lucas maintained that “the values implicit in the Bill of Rights suggest that the decision to bear or not bear a child is a fundamental individual right not subject to legislative abridgement—particularly in light of Griswold.”
Lucas was referring to the Court’s landmark decision in 1965 in the case of Griswold v. Connecticut, which struck down parts of a Connecticut statute that prevented even married couples from purchasing birth control products. The Court had found that the statute violated citizens’ “right to privacy.” Justice William Douglas, a Roosevelt appointee and staunch defender of liberal causes, wrote in the majority opinion that while the Constitution did not specifically mention a right to privacy, “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance . . . Various guarantees create zones of privacy.”
In other words, the Constitution carried numerous guarantees that suggested a larger constellation of rights reserved to individual citizens. Douglas reasoned, “The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment.” Douglas ruled that the shadows case by these privacy provisions shielded citizens against unwarranted state intrusion in other aspects of their lives as well.
Apart from its precedent-setting discussion of “penumbras,” “emanations,” and “zones of privacy,” the majority in Griswold also found that the Connecticut statute interfered with the longstanding right of married couples to regulate their own sex lives and family-planning strategies. According to Douglas, because the institution of marriage long preceded the Constitution, these rights were protected by the Ninth Amendment, which read: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” As Justice Arthur Goldberg elaborated in his concurring decision, “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.” In other words, according to Douglas and Goldberg, the Constitution listed some but not all of the rights that American citizens enjoy. Some rights are implicit. These rights, according to Goldberg, included the sanctity and privacy of marital relations.
Seven years later, as he prepared to draft the majority decision in Roe, Harry Blackmun scribbled down several thoughts, among them: “A fundamental personal liberty is involved here—much precedent for this sort of thing—Griswold, etc.,” and “Historically there was no barrier. Thus state has no traditional interest.” In effect, the privacy right that the Court had examined in Griswold had taken on a life of its own. If the state had no right to proscribe certain forms of birth control, it also had no right to interfere with a woman’s right to make her own reproductive decisions.
The last point was the key. Having spent several weeks reviewing the history of abortion in America, Blackmun believed that among the unenumerated rights that the Ninth Amendment reserved to the people was the qualified right to terminate a pregnancy. As he ultimately wrote for the majority, “It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman’s life, are not of ancient or even of common law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th Century.” He added that in 1787, when the Constitution was framed, as a matter of “common law, abortion performed before ‘quickening’—the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy—was not an indictable offense.”
As Blackmun explained, doctors in the mid-1800s led a protracted and ultimately successful struggle to introduce new, proscriptive laws governing abortion, in part to bolster their professional standing against increasing numbers of untrained, uneducated medical practitioners, and in part because abortion, as it was performed in the nineteenth century, posed very serious dangers to the health of the mother. In the context of 1870, states may have had a compelling interest in banning abortion in the first trimester to protect the lives of expectant mothers, but, in 1973, with abortion a fundamentally safe and routine medical procedure, the state’s interest in protecting mothers in the earliest stages of pregnancy was diminished. The question remained whether the Ninth Amendment or the Fourteenth Amendment protected the right to privacy, but Blackmun sidestepped it, writing, “This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”
As expected, Blackmun’s decision provoked much response. Alan Guttmacher, the president of the Planned Parenthood Federation of America, saluted the Court’s “wise and courageous” ruling, while Terence Cardinal Cooke, the Catholic archbishop of New York, declared it “shocking” and morally “horrifying.” The conservative journalist William F. Buckley, Jr. likened Blackmun’s text to that of the Dred Scott decision of 1857, which had cast aside the rights of black Americans much as Roe seemed to assault the rights of the unborn, while Christianity Today attacked the justices for “reject[ing] Christian moral teaching” in favor of “paganism.” By and large, the big-city papers approved of Roe, with The Washington Post hailing it as “wise and sound” and The Wall Street Journal concluding that the Court “struck a reasonable balance on an exceedingly difficult question;” Time took a more neutral position, describing the decision as “bold and uncompromising.” Of the 33,000 physicians who responded to an unscientific survey in Modern Medicine magazine, 64 percent endorsed Roe. Yet a Gallup poll conducted in the wake of the decision found Americans evenly split on whether abortion ought to be legal in the first trimester, indicating that even if the Court had concluded one legal battle, the cultural one was far from over.
Over the next several years, proponents and opponents of Roe organized direct action groups and took their disagreement into the political arena. There the struggle has continued for the past 35 years. An issue that the Court hoped to resolve in 1973 remained hotly contested a generation later.