Fourteenth Amendment: Right of Privacy/Liberty Interests

In Roe v. Wade (1973), the Court extended the right to include a woman’s freedom to obtain an abortion. It also identified the Fourteenth Amendment Due Process Clause as the source of the right. The ruling in Roe v. Wade has been a lightning rod for critics who cite it as a leading example of judicial overreaching. Although the target of repeated challenges that have narrowed its range somewhat, the central meaning of Roe v. Wade has remained largely intact.. Among the significant decisions in these regards are Webster v. Reproductive Health Services (1989) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).

Two significant changes in abortion law jurisprudence, however, have developed in recent years. In Gonzales v. Carhart (2007), the Court upheld the federal Partial–Birth Abortion Ban Act that prohibits abortions in the later stages of pregnancy. That case also restricted the occasions when the “health of the mother” exception can be used to justify late-term abortions. As a broader jurisprudential matter, the Court (or at least the liberal branch of the Court) has moved away from describing the right to an abortion as a privacy right (or as a fundamental right, for that matter), and now seems to prefer the term “liberty interest.” This jurisprudential change appears to track the same preference for the term “liberty interest” that appears in the Court’s substantive due process decisions, such as Lawrence v. Texas and United States v. Windsor, discussed in the next section.

Just as the Court in Planned Parenthood and Gonzales abandoned the terms “right to privacy” or “fundamental right,” so the Court in Lawrence and Windsor refuses to refer to homosexual lifestyle or marriage choices as “fundamental” in nature, but rather part of some broader notion of “liberty.” While the language employed by the Supreme Court in its abortions decisions appears to be changing, the deep divisions over the issue that continue to divide the Court, as well as the general public, are sure to remain with us for the foreseeable future.

Among the landmark cases of the late twentieth century, none has been a source of as much ongoing and intense controversy as Roe v. Wade. Unlike Brown v. Board of Education (1954), which initially generated widespread resistance but eventually was ratified by civil rights legislation and gradually gained broad public acceptance, the Court’s decision recognizing a woman’s freedom to obtain an abortion has been consistently challenged and cited as an example of raw judicial power. Consistent with divisions over the Court’s proper role, it is a decision that has been both hailed and vilified.

Regulation of abortion was not widespread at the time of the republic’s founding, but it had become pervasive within the next century. By the twentieth century, abortion had become strictly regulated throughout the nation. As time progressed, numerous states relaxed their laws in response to pressure for political change. Typical grounds for allowing abortion included pregnancies that presented danger to the mother’s life, resulted from rape or incest, or carried the likelihood of birth defects. In an effort to establish a woman’s freedom to choose as a fundamental national right, advocates of a woman’s freedom to choose expanded their agenda from the legislatures to the courts.

In Roe v. Wade (1973), the Court reviewed a Texas law prohibiting abortion unless the mother’s life was imperiled. The state justified the restriction on grounds that a fetus is a person and thus has a life interest that is protected under the Due Process Clause of the Fourteenth Amendment.

Justice Harry Blackmun, writing for the majority, refused to accept this premise. Although acknowledging that a fetus may be a life in some religions or under some moral codes, the majority concluded that it was not so in a constitutional sense. The Court conceded that no general right of privacy is enumerated by the Constitution, but stated that it is of constitutional significance. Finding that the Due Process Clause of the Fourteenth Amendment was the appropriate source for this right, the Court determined that it also “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

Based upon this model, a state may not prohibit abortion during the first three months of pregnancy and may regulate only to protect the mother’s health. This balance reflected the Court’s sense that, during the first trimester, abortion is less perilous to the mother than childbirth. Examples of permissible regulation include licensing requirements for facilities where abortions are performed and for personnel who perform abortions. Over the course of the second trimester, a woman’s freedom remains largely unrestricted. Based upon its sense that a fetus becomes viable at the seventh month, the Court determined that the state’s interest in prohibiting abortion became compelling at that point. Given the increased significance in life in the third trimester, the Court determined that the state could prohibit abortion during the final term of pregnancy.

The Court’s decision established the proposition that freedom to elect an abortion is an incident of the right of privacy. The woman’s interest in this regard, therefore, is constitutional. This determination has roiled critics, who maintain that there is no constitutional foundation for the decision and that unelected judges are imposing their values upon the people. In this regard, the Court’s detractors argue that the Roe v. Wade decision resurrected the discredited model of due process review. Citing decisions in the early twentieth century that established economic rights as barriers to social and market reform, critics maintained that the Court had reverted to antidemocratic ways. The majority anticipated these concerns by asserting that the right of privacy was not just a favored moral premise but “implicit in the concept of ordered liberty.”

This effort to explain the right of privacy in terms other than a mere ideological preference has not converted critics. Judge Robert Bork, a leading detractor, has characterized the Court’s principle of review as “pretty vaporous stuff.” In his mind, it does not hide what he perceives to be “an exercise in moral and political philosophy” and “assumption of illegitimate judicial power and a usurpation of the democratic authority of the American people.”

The decision in Roe v. Wade is one of the most controversial rulings in the Court’s history. A central theme of criticism is that a woman’s liberty to choose an abortion was judicially invented rather than grounded in the Constitution. Among Roe v. Wade’s detractors are some who, although favoring limited regulation of abortion, believe that the Court stretched and warped the Constitution to achieve a desired result. Despite extensive criticism, the decision has been a generally effective barrier against regulation that would limit a woman’s freedom to obtain an abortion. The Court regularly struck down laws it perceived as roadblocks, including regulation that imposed unnecessary licensing requirements, required spousal consent, or established first trimester waiting periods. Regulations that the Court upheld, however, included laws denying public funding for abortions and requiring minors to obtain the approval of a parent or court prior to obtaining an abortion.

Constitutional decisions resolve controversies by reference to the nation’s highest law. The ruling in Roe v. Wade, however, extended and intensified the debate over abortion. The decision also created an aftermath that includes the Court’s centrality to the controversy. The decades since Roe v. Wade have been characterized by numerous challenges by states seeking to reclaim control over the availability of abortion. Although later decisions have come close to overturning Roe v. Wade, and some have trimmed its reach, a woman’s freedom to choose an abortion remains a part of constitutional law.

Mr. Justice BLACKMUN delivered the opinion of the Court.

This Texas federal appeal and its Georgia companion, Doe v. Bolton, present constitutional challenges to state criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in many States for approximately a century. The Georgia statutes, in contrast, have a modern cast and are a legislative product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical knowledge and techniques, and of new thinking about an old issue.

The principal thrust of 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. Appellant would discover this right in the concept of personal ‘liberty’ embodied in the Fourteenth Amendment’s Due Process Clause; or in personal marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, or among those rights reserved to the people by the Ninth Amendment. . . .

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, in the Fourth and Fifth Amendments, in the penumbras of the Bill of Rights, in the Ninth Amendment, or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment. These decisions 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, family relationships, and child rearing and education.

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. 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.

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation. . . .

Although the results are divided, most of these [state] courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.

Where certain ‘fundamental rights’ are involved, the Court has held that regulation limiting these rights may be justified only by a ‘compelling state interest,’ and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. . . .

With respect to the State’s important and legitimate interest in the health of the mother, the ‘compelling’ point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.

This means, on the other hand, that, for the period of pregnancy prior to this ‘compelling’ point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

To summarize and to repeat:

Mr. Justice REHNQUIST, dissenting.

The fact that a majority of the States reflecting, after all the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the ‘right’ to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the Scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and ‘has remained substantially unchanged to the present time.’

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.

For all of the foregoing reasons, I respectfully dissent.

Bibliography

Bork, Robert H. The Tempting of America. New York: Free Press, 1990.

Ely, John H. Democracy and Distrust: A Theory of Judicial Review. Cambridge, MA: Harvard University Press, 1980.

Erdreich, Sarah. Generation Roe: Inside the Future of the Pro-Choice Movement. New York: Seven Stories, 2013.

Karst, Kenneth. Belonging to America. New Haven, CT: Yale University Press, 1989.

Kulczycki, Andrzej, ed. Critical Issues in Reproductive Health. New York: Springer, 2014.

McBride, Dorothy E. Abortion in the United States: A Reference Handbook. Santa Barbara, CA: ABC-CLIO, 2007.

Ziegler, Mary. After Roe: The Lost History of the Abortion Debate. Cambridge, MA: Harvard University Press, 2015.

Countering the perception of Roe v. Wade as “bad constitutional law” are the observations of other scholars, like Sylvia Law, who contends that “[n]othing the Supreme Court has ever done has been more concretely important for women.”

If Roe v. Wade were to be assessed merely on the basis of policy, it actually would approximate closely public views on abortion. Critics argue, however, that it is the role of the legislature to develop policy consistent with the will of the people. The role of the Court, as they see it, is not to engage in policy debate or review but simply to interpret the Constitution when it is relevant.

Mirroring the belief that Roe v. Wade was illegitimate, some states controlled by conservative lawmakers enacted laws that flouted it. These regulations consistently were invalidated in the decade following Roe v. Wade. Instead of removing abortion from politics, the Court’s decision actually intensified the debate in this context. Abortion opponents in some instances became increasingly militant and violent. The major political parties adopted sharply differing positions, with Democrats supporting the freedom to choose and Republicans opposing it. Congress considered but did not enact legislation that would end the courts’ jurisdiction over abortion. A proposed constitutional amendment protecting the “right to life” also was contemplated but not passed.

The abortion controversy became a focus of the 1980 presidential campaign, when Ronald Reagan promised to appoint “strict constructionist” federal judges who would support “family values.” The political implications of abortion were evidenced further by widespread demonstrations and rallies by both sides and heavy volumes of mail directed to the Supreme Court. With the Court as a target of political activity for and against abortion as a constitutional freedom, critics of the Roe v. Wade ruling cited more evidence that the judiciary had strayed too far from its proper function. This point was made with particular force in a concurring opinion by Justice Antonin Scalia who, in Webster v. Reproductive Health Services, asserted that the Court’s role

The challenged regulation, in addition to its substantive provisions, had a preamble that represented a direct repudiation of Roe v. Wade. It set forth legislative findings to the effect that life begins at conception and the unborn have constitutionally protected interests in life and liberty. Despite this frontal assault on the premises of Roe v. Wade, the Court responded in a way that minimized the preamble’s significance. Although acknowledging that the preamble made “a value judgment favoring childbirth over abortion,” the Court found that it “impose[d] no substantive restrictions on abortions.” It thus bypassed the need to rule on the preamble’s constitutionality.

No significant stretch was required for the Court to uphold the prohibition against abortions in public hospitals. This result was supported by precedent that had upheld restrictions on public funding of abortions. The requirement for viability testing during the second trimester, however, represented a much greater challenge to the trimester framework established in Roe v Wade. This requirement effectively enabled the state to regulate abortion more extensively at an earlier stage of pregnancy. The trimester framework assumed that the beginning of the third trimester marked fetal viability. Under state law, viability could commence during the fifth month of pregnancy. Such a requirement might have been viewed as a roadblock to a woman’s freedom to elect an abortion, particularly insofar as it may have created a deterrent to abortion providers. Chief Justice William Rehnquist, in a plurality opinion, concluded that viability testing merely and properly accounted for post-Roe v. Wade advances in medical technology. Upholding this provision simply evolved the law in a manner that was consistent with the relevance of viability, which the Court in Roe v. Wade itself had established as the relevant benchmark.

Despite the government’s push to have Roe v. Wade overturned, the Court declined. Given the state’s utilization of viability as its reference point for when life begins, the Rehnquist plurality determined that the case was not appropriate for reconsidering the constitutional premise of Roe v. Wade. Justice Sandra Day O’Connor, in a concurring opinion, agreed that the Missouri law did not present the right case for overruling Roe v. Wade. She found no inconsistency between the requirement of viability testing and viability as the point at which the state had a compelling interest in protecting the potential of life. Justice O’Connor indicated support for any enactment that would protect life when viability was a possibility.

Justice Blackmun, who had authored the majority opinion in Roe v. Wade, was distressed by the result. He viewed the outcome to be undermining of Roe v. Wade but in a less than principled way. Justice Blackmun expressed concern that the Court had relaxed the standard for reviewing abortion regulation by asking not whether the reason for it was compelling but whether it was legitimate. He would have been more comfortable had the Court determined that advances in medical technology provided a “compelling” basis for viability testing. Merely asking whether it was a “legitimate reason” indicated to Justice Blackmun that future review of abortion laws would be more relaxed than in the past.

Justice Blackmun also was concerned that the cost of additional medical testing would impose an undue burden upon a woman’s freedom to choose. Noting arguments that the trimester framework of Roe v. Wade was not prescribed by the Constitution, he countered with the point that constitutional standards for reviewing laws typically are created by the judiciary. Although Justice Blackmun is correct on this point, it does not respond to the central question of whether the Court should establish a right that is not constitutionally enumerated.

Summarizing his concerns with the direction that the Court was taking, Justice Blackmun warned that a woman’s freedom to choose an abortion had become more uncertain. The primary danger he saw was the state’s potential ability to make its regulatory interests compelling even before viability was established. Justice Blackmun thus noted that “[f]or today, at least, the law of abortion stands undisturbed. For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows.” The Court’s ruling left Roe v. Wade modified but still intact. It also ensured that future challenges lay ahead.

Chief Justice REHNQUIST announced the judgment of the Court and delivered the opinion of the Court in its principal parts.

In Roe v. Wade, the Court recognized that the State has “important and legitimate” interests in protecting maternal health and in the potentiality of human life. During the second trimester, the State “may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.” After viability, when the State’s interest in potential human life was held to become compelling, the State “may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” . . .

Stare decisis is a cornerstone of our legal system, but it has less power in constitutional cases, where, save for constitutional amendments, this Court is the only body able to make needed changes. We have not refrained from reconsideration of a prior construction of the Constitution that has proved “unsound in principle and unworkable in practice.” We think the Roe trimester framework falls into that category.

In the first place, the rigid Roe framework is hardly consistent with the notion of a Constitution cast in general terms, as ours is, and usually speaking in general principles, as ours does. 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. Since the bounds of the inquiry are essentially indeterminate, 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.”

In the second place, we do not see why the State’s interest in protecting potential human life should come into existence only at the point of viability, and that there should therefore be a rigid line allowing state regulation after viability but prohibiting it before viability. The dissenters in Thornburgh, writing in the context of the Roe trimester analysis, would have recognized this fact by positing against the “fundamental right” recognized in Roe the State’s “compelling interest” in protecting potential human life throughout pregnancy. “[T]he State’s interest, if compelling after viability, is equally compelling before viability.”

The tests that [the law] requires the physician to perform are designed to determine viability. The State here has chosen viability as the point at which its interest in potential human life must be safeguarded. It is true that the tests in question increase the expense of abortion, and regulate the discretion of the physician in determining the viability of the fetus. Since the tests will undoubtedly show in many cases that the fetus is not viable, the tests will have been performed for what were in fact second-trimester abortions. But we are satisfied that the requirement of these tests permissibly furthers the State’s interest in protecting potential human life, and we therefore believe [the law] to be constitutional.

Justice BLACKMUN also accuses us, inter alia, of cowardice and illegitimacy in dealing with “the most politically divisive domestic legal issue of our time.” There is no doubt that our holding today will allow some governmental regulation of abortion that would have been prohibited under the language of [previous] cases. But the goal of constitutional adjudication is surely not to remove inexorably “politically divisive” issues from the ambit of the legislative process, whereby the people through their elected representatives deal with matters of concern to them. The goal of constitutional adjudication is to hold true the balance between that which the Constitution puts beyond the reach of the democratic process and that which it does not. We think we have done that today. Justice BLACKMUN’s suggestion that legislative bodies, in a Nation where more than half of our population is women, will treat our decision today as an invitation to enact abortion regulation reminiscent of the Dark Ages not only misreads our views but does scant justice to those who serve in such bodies and the people who elect them.

Both appellants and the United States as amicus curiae have urged that we overrule our decision in Roe v. Wade. The facts of the present case, however, differ from those at issue in Roe. Here, Missouri has determined that viability is the point at which its interest in potential human life must be safeguarded. In Roe, on the other hand, the Texas statute criminalized the performance of all abortions, except when the mother’s life was at stake. This case therefore affords us no occasion to revisit the holding of Roe, which was that the Texas statute unconstitutionally infringed the right to an abortion derived from the Due Process Clause, id., and we leave it undisturbed. To the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases. . . .

Today, Roe v. Wade, and the fundamental constitutional right of women to decide whether to terminate a pregnancy, survive but are not secure. Although the Court extricates itself from this case without making a single, even incremental, change in the law of abortion, the plurality and Justice SCALIA would overrule Roe (the first silently, the other explicitly) and would return to the States virtually unfettered authority to control the quintessentially intimate, personal, and life-directing decision whether to carry a fetus to term. Although today, no less than yesterday, the Constitution and the decisions of this Court prohibit a State from enacting laws that inhibit women from the meaningful exercise of that right, a plurality of this Court implicitly invites every state legislature to enact more and more restrictive abortion regulations in order to provoke more and more test cases, in the hope that sometime down the line the Court will return the law of procreative freedom to the severe limitations that generally prevailed in this country before January 22, 1973. Never in my memory has a plurality announced a judgment of this Court that so foments disregard for the law and for our standing decisions.

Nor in my memory has a plurality gone about its business in such a deceptive fashion. At every level of its review, from its effort to read the real meaning out of the Missouri statute, to its intended evisceration of precedents and its deafening silence about the constitutional protections that it would jettison, the plurality obscures the portent of its analysis. With feigned restraint, the plurality announces that its analysis leaves Roe “undisturbed,” albeit “modif[ied] and narrow[ed].” But this disclaimer is totally meaningless. The plurality opinion is filled with winks, and nods, and knowing glances to those who would do away with Roe explicitly, but turns a stone face to anyone in search of what the plurality conceives as the scope of a woman’s right under the Due Process Clause to terminate a pregnancy free from the coercive and brooding influence of the State. The simple truth is that Roe would not survive the plurality’s analysis, and that the plurality provides no substitute for Roe’s protective umbrella.

I fear for the future. I fear for the liberty and equality of the millions of women who have lived and come of age in the 16 years since Roe was decided. I fear for the integrity of, and public esteem for, this Court.

I dissent. . . .

The plurality opinion is far more remarkable for the arguments that it does not advance than for those that it does. The plurality does not even mention, much less join, the true jurisprudential debate underlying this case: whether the Constitution includes an “unenumerated” general right to privacy as recognized in many of our decisions, most notably Griswold v. Connecticut, and Roe, and, more specifically, whether, and to what extent, such a right to privacy extends to matters of childbearing and family life, including abortion. These are questions of unsurpassed significance in this Court’s interpretation of the Constitution, and mark the battleground upon which this case was fought, by the parties, by the United States as amicus on behalf of petitioners, and by an unprecedented number of amici. On these grounds, abandoned by the plurality, the Court should decide this case.

With respect to the Roe framework, the general constitutional principle, indeed the fundamental constitutional right, for which it was developed is the right to privacy, a species of “liberty” protected by the Due Process Clause, which under our past decisions safeguards the right of women to exercise some control over their own role in procreation. The trimester framework simply defines and limits that right to privacy in the abortion context to accommodate, not destroy, a State’s legitimate interest in protecting the health of pregnant women and in preserving potential human life. Fashioning such accommodations between individual rights and the legitimate interests of government, establishing benchmarks and standards with which to evaluate the competing claims of individuals and government, lies at the very heart of constitutional adjudication. To the extent that the trimester framework is useful in this enterprise, it is not only consistent with constitutional interpretation, but necessary to the wise and just exercise of this Court’s paramount authority to define the scope of constitutional rights. . . .

Thus, “not with a bang, but a whimper,” the plurality discards a landmark case of the last generation, and casts into darkness the hopes and visions of every woman in this country who had come to believe that the Constitution guaranteed her the right to exercise some control over her unique ability to bear children. The plurality does so either oblivious or insensitive to the fact that millions of women, and their families, have ordered their lives around the right to reproductive choice, and that this right has become vital to the full participation of women in the economic and political walks of American life. The plurality would clear the way once again for government to force upon women the physical labor and specific and direct medical and psychological harms that may accompany carrying a fetus to term. The plurality would clear the way again for the State to conscript a woman’s body and to force upon her a “distressful life and future.”

Of the aspirations and settled understandings of American women, of the inevitable and brutal consequences of what it is doing, the tough-approach plurality utters not a word. This silence is callous. It is also profoundly destructive of this Court as an institution. To overturn a constitutional decision is a rare and grave undertaking. To overturn a constitutional decision that secured a fundamental personal liberty to millions of persons would be unprecedented in our 200 years of constitutional history. Although the doctrine of stare decisis applies with somewhat diminished force in constitutional cases generally, even in ordinary constitutional cases “any departure from . . . stare decisis demands special justification.” This requirement of justification applies with unique force where, as here, the Court’s abrogation of precedent would destroy people’s firm belief, based on past decisions of this Court, that they possess an unabridgeable right to undertake certain conduct.

As discussed at perhaps too great length above, the plurality makes no serious attempt to carry “the heavy burden of persuading . . . that changes in society or in the law dictate” the abandonment of Roe and its numerous progeny, much less the greater burden of explaining the abrogation of a fundamental personal freedom. Instead, the plurality pretends that it leaves Roe standing, and refuses even to discuss the real issue underlying this case: whether the Constitution includes an unenumerated right to privacy that encompasses a woman’s right to decide whether to terminate a pregnancy. To the extent that the plurality does criticize the Roe framework, these criticisms are pure ipse dixit.

This comes at a cost. The doctrine of stare decisis “permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact.” Today’s decision involves the most politically divisive domestic legal issue of our time. By refusing to explain or to justify its proposed revolutionary revision in the law of abortion, and by refusing to abide not only by our precedents, but also by our canons for reconsidering those precedents, the plurality invites charges of cowardice and illegitimacy to our door. I cannot say that these would be undeserved.

For today, at least, the law of abortion stands undisturbed. For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows.

Bibliography

Blanchard, Dallas. The Anti-Abortion Movement and the Rise of the Religious Right: From Polite to Fiery Protest. New York: Maxwell Macmillan, 1994.

Pollitt, Katha. Pro: Reclaiming Abortion Rights. New York: Picador, 2014.

Tribe, Laurence H. Abortion: The Clash of Absolutes. New York: Norton, 1990.

Ziegler, Mary. After Roe: The Lost History of the Abortion Debate. Cambridge, MA: Harvard University Press, 2015.

Despite affirming Roe’s “central” meaning, the plurality determined that the trimester framework was too “rigid.” As a result, state interests had not been given due weight, and laws were struck down even though they did not meaningfully impair a woman’s freedom to terminate her pregnancy. Based upon these assessments, the plurality maintained that the assessment of abortion regulations should focus upon whether they “unduly burden” a woman’s freedom to choose prior to viability. In measuring the spousal notification requirement against this standard, the plurality determined that it was unconstitutional. The condition effectively transferred power from the woman to a third party that was less affected by the pregnancy and the regulation. The plurality noted that it was especially problematic for women with abusive spouses, some of whom might forego an abortion to avoid harm to themselves or to their children.

The plurality found all other provisions of the state law to be constitutionally permissible. Requiring that patients receive information on the physical and psychological risks of abortion was not viewed as unduly burdensome. Rather, the plurality found it to be an appropriate means of ensuring an informed decision on whether to proceed with an abortion. The 24-hour waiting period also was upheld, albeit with the acknowledgment that it might increase the time and money cost of an abortion. Without evidence indicating that the delay would interfere unreasonably with a woman’s freedom to choose, the plurality was satisfied that the waiting period also advanced the objective of informed judgment. The plurality determined that the parental consent requirement was supported by existing case law, so long as it provided minors with the opportunity to bypass their parents and obtain a court order. Insofar as the reporting requirements had been set on the basis of their value to medical research and maternal well-being, they also were found to be acceptable.

Both Chief Justice William Rehnquist and Justice Antonin Scalia authored pointed dissents that called for the outright overturning of Roe v. Wade. The Chief Justice maintained that the Court missed the point of stare decisis. As he saw it, the Court’s reputation would be enhanced rather than lessened by a forthright acknowledgment of error. Consistent with his original dissent in Roe v. Wade, Chief Justice Rehnquist restated his persistent concern that deep public divisions on abortion demonstrated a lack of consensus necessary to define a fundamental right. To the extent that the Court had any role at all, he favored a standard of review that allowed states to regulate abortion on the basis of any reasonable justification. Pursuant to this criterion, Chief Justice Rehnquist thus would have upheld all provisions of the Pennsylvania law. Even the spousal notification requirement, which the plurality was concerned could be risky for women with abusive spouses, was reasonably justified from Chief Justice Rehnquist’s perspective. As he viewed it, the provision reflected the husband’s legitimate interests, facilitated marital integrity, and accounted for potential life. Even if the wisdom of the policy might be debated, Chief Justice Rehnquist stressed that the Court’s role was not to debate politics but to interpret the Fourteenth Amendment, which does not set forth a comprehensive right of privacy.

Like other significant decisions since the Court declared a woman’s freedom to terminate an unwanted pregnancy, the ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey did not end the controversy over abortion or the Court’s role in it. The “central meaning” of Roe v. Wade, which the Court reaffirmed, is that fetal viability is the factor that determines whether the mother’s or state’s interest is dominant. No longer is the formal trimester framework the basis for balancing, however, the competing interests of state power and individual liberty. Instead, the focus is upon whether a regulation is “unduly burdensome.” Perspective on how this standard operates varies. Justices Stevens and Blackmun viewed it as too relaxed and reference analysis of the Pennsylvania law as proof of their point. Justice Scalia argued that the criterion endangers any abortion regulation merely because a court dislikes it. These mixed readings, coupled with the lessening of abortion cases under review in following decade, might indicate that the Court has established a midpoint between the poles of the controversy. Continuing debate over and attention to judicial appointments in the early twenty-first century, particularly with respect to a candidate’s position on abortion, suggest that the controversy over abortion is far from over.

Justice O’CONNOR, Justice KENNEDY, and Justice SOUTER announced the judgment of the Court and delivered the opinion of the Court with respect to its principal parts.

Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe. . . .

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Our cases recognize “the right of the 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.” Our precedents “have respected the private realm of family life which the state cannot enter.” These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. . . .

From what we have said so far it follows that it is a constitutional liberty of the woman to have some freedom to terminate her pregnancy. We conclude that the basic decision in Roe was based on a constitutional analysis which we cannot now repudiate. The woman’s liberty is not so unlimited, however, that from the outset the State cannot show its concern for the life of the unborn, and at a later point in fetal development the State’s interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted.

That brings us, of course, to the point where much criticism has been directed at Roe, a criticism that always inheres when the Court draws a specific rule from what in the Constitution is but a general standard. We conclude, however, that the urgent claims of the woman to retain the ultimate control over her destiny and her body, claims implicit in the meaning of liberty, require us to perform that function. Liberty must not be extinguished for want of a line that is clear. And it falls to us to give some real substance to the woman’s liberty to determine whether to carry her pregnancy to full term.

We conclude the line should be drawn at viability, so that before that time the woman has a right to choose to terminate her pregnancy. We adhere to this principle for two reasons. First, as we have said, is the doctrine of stare decisis. Any judicial act of line-drawing may seem somewhat arbitrary, but Roe was a reasoned statement, elaborated with great care. We have twice reaffirmed it in the face of great opposition. Although we must overrule those parts of Thornburgh and Akron I which, in our view, are inconsistent with Roe’s statement that the State has a legitimate interest in promoting the life or potential life of the unborn, the central premise of those cases represents an unbroken commitment by this Court to the essential holding of Roe. It is that premise which we reaffirm today.

The woman’s right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce. . . .

Yet it must be remembered that Roe v. Wade speaks with clarity in establishing not only the woman’s liberty but also the State’s “important and legitimate interest in potential life.” That portion of the decision in Roe has been given too little acknowledgment and implementation by the Court in its subsequent cases. Those cases decided that any regulation touching upon the abortion decision must survive strict scrutiny, to be sustained only if drawn in narrow terms to further a compelling state interest. Not all of the cases decided under that formulation can be reconciled with the holding in Roe itself that the State has legitimate interests in the health of the woman and in protecting the potential life within her. In resolving this tension, we choose to rely upon Roe, as against the later cases.

Roe established a trimester framework to govern abortion regulations. Under this elaborate but rigid construct, almost no regulation at all is permitted during the first trimester of pregnancy; regulations designed to protect the woman’s health, but not to further the State’s interest in potential life, are permitted during the second trimester; and during the third trimester, when the fetus is viable, prohibitions are permitted provided the life or health of the mother is not at stake.

The trimester framework no doubt was erected to ensure that the woman’s right to choose not become so subordinate to the State’s interest in promoting fetal life that her choice exists in theory but not in fact. We do not agree, however, that the trimester approach is necessary to accomplish this objective. A framework of this rigidity was unnecessary and in its later interpretation sometimes contradicted the State’s permissible exercise of its powers.

We reject the trimester framework, which we do not consider to be part of the essential holding of Roe. Measures aimed at ensuring that a woman’s choice contemplates the consequences for the fetus do not necessarily interfere with the right recognized in Roe, although those measures have been found to be inconsistent with the rigid trimester framework announced in that case. A logical reading of the central holding in Roe itself, and a necessary reconciliation of the liberty of the woman and the interest of the State in promoting prenatal life, require, in our view, that we abandon the trimester framework as a rigid prohibition on all previability regulation aimed at the protection of fetal life. The trimester framework suffers from these basic flaws: in its formulation it misconceives the nature of the pregnant woman’s interest; and in practice it undervalues the State’s interest in potential life, as recognized in Roe. . . .

A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends. . . .

Some guiding principles should emerge. What is at stake is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose. Unless it has that effect on her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal. Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden. . . .

Justice SCALIA, with whom THE CHIEF JUSTICE, Justice WHITE, and Justice THOMAS join, concurring in the judgment in part and dissenting in part.

There is a poignant aspect to today’s opinion. Its length, and what might be called its epic tone, suggest that its authors believe they are bringing to an end a troublesome era in the history of our Nation and of our Court. “It is the dimension” of authority, they say, to “cal[l] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer and staring straight out. There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case—its already apparent consequences for the Court and its soon-to-be-played-out consequences for the Nation—burning on his mind. I expect that two years earlier he, too, had thought himself “call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

It is no more realistic for us in this litigation, than it was for him in that, to think that an issue of the sort they both involved—an issue involving life and death, freedom and subjugation—can be “speedily and finally settled” by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be. See Inaugural Addresses of the Presidents of the United States, Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.

We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.

Bibliography

Fried, Charles. “Constitutional Doctrine.” Harvard Law Review 107 (1994): 1140.

Sunstein, Cass. The Partial Constitution. Cambridge, MA: Harvard University Press, 1994.