The Constitution explicitly protects a range of individual rights from governmental intrusion. In defending those core values, all three branches make important contributions. A general right of privacy is not mentioned in the Constitution. Instead, it is defined by agency regulation, congressional statute, or court decision, with no branch having the final say. Increasingly, state legislatures, governors, and state courts are advancing their own concepts of privacy, drawing from different provisions in state constitutions. The driving force behind these actions, whether at the national or state level, are individuals and groups pressing their privacy interests.
In recent decades, the Supreme Court has adopted sweeping notions of fundamental rights related to or flowing from a general right to privacy: contraception, abortion, and gay rights. But under the pressure of public condemnation—reaching to core questions of judicial abuse and illegitimate power—the Justices had to carve out a more modest role while recognizing a larger function for elected branches and the states. Today, abortion, gay rights, and the right to die dominate the privacy wars. This chapter will detail these battles and, in so doing, call attention to the instrumental role state and federal officials have played in shaping privacy, sometimes limiting and other times expanding the availability of privacy rights.
The Specter of Lochner
The judicial tradition that serves as a backdrop to privacy issues is the Lochner era, a period from 1905 to 1937 in which the Court shoehorned laissez-faire economics into the due process clause to strike down roughly 200 social and economic laws. By empowering itself to strike down laws that it deemed to be “arbitrary,” “capricious,” or “unreasonable,” the Court functioned as self-appointed czar over social and economic legislation.1
What the Court did in Lochner v. New York (1905) was to embrace a “liberty of contract” nowhere found in the Constitution.2 A bare 5 to 4 majority converted the general common law right to make a contract into a constitutional bar against any law that interfered with the freedom of employees and employers to agree to whatever terms they chose. Laws on maximum hours, minimum wages, and working conditions were routinely invalidated by the courts. In his dissent in Lochner, Justice Holmes accused the Court of embracing a particular economic theory (laissez-faire) that is not found in the text of the Constitution or the intent of the framers. Until abandoned in the 1930s, Lochner became a symbol of judicial overreach.
Congress, the President, labor unions, the press, and a host of social and economic groups openly challenged the Court. Most striking, with the claim that the Supreme Court was unable to function effectively, Franklin Roosevelt proposed legislation that would allow him—for every Justice over 70 years of age—to appoint an additional Justice until the number of Supreme Court Justices reached 15.3 Although this plan was rejected, a judicial veto over economic legislation was put to rest by Roosevelt’s landslide victory in the 1936 election, the repudiation of Lochner’s free market, self-adjusting philosophy by the enduring Depression, and Roosevelt’s opportunity to add his own Justices to the Court.
Yet Lochner had a second life in a new context. The debate about judicial lawmaking again took center stage with Griswold v. Connecticut, a 1965 Supreme Court decision invalidating a Connecticut statute that criminalized the use by married persons of any drug, medicinal article, or instrument to prevent conception. The statute applied to any person, including physicians, who assisted in the distribution of contraceptives. Writing for the Court, Justice William O. Douglas (a Roosevelt loyalist) wanted to uphold the privacy rights of married couples without appearing to revive the discredited Lochner philosophy. In particular, Douglas’s disdain for Lochner compelled him to ground his decision in constitutional protections, not natural law theories. Instead of relying on the Fourteenth Amendment, which would have suggested a reliance on the Lochner approach, he argued that a “zone of privacy [was] created by several fundamental constitutional guarantees,” including the “penumbras, formed by emanations” of the First, Third, Fourth, Fifth, and Ninth Amendments.4
Griswold, while reinvigorating privacy, did not suggest that a constitutional right to abortion was on the horizon. Birth control pioneer Margaret Sanger, in explaining her opposition to Connecticut’s anti-contraception law, emphasized that advocates of birth control did not favor abortion; they wanted only to prevent the beginning of life.5 When the Court heard Griswold, Planned Parenthood attorney and Yale law professor Thomas Emerson argued that invalidation of the state law would not create a right to abortion.6 In the Court’s private deliberations in Griswold, moreover, Earl Warren went out of his way to distinguish the Connecticut statute from antiabortion measures, “implying that he thought such laws were valid.”7
But in 1973, the Supreme Court issued its decision in Roe v. Wade.8 Holding that a woman’s right to terminate her pregnancy in the early months outweighed state interests in maternal health and fetal protection, the Court struck down a Texas law permitting abortions only to save the life of the mother. The Court concluded both that the state’s interest in potential human life is not compelling until the third trimester of pregnancy (once the fetus becomes viable) and that during the first trimester, the abortion decision is left to the woman (in consultation with her physician).
By valuing a woman’s right to privacy over potential human life and by imposing a trimester standard that reads like a legislative abortion code, Roe became a lightning rod for critics of judge-made rights. William Rehnquist’s dissent analogized Roe to Lochner and condemned the trimester standard as little more than “judicial legislation.” Byron White, in his dissent, likewise spoke of “raw judicial power.” Many legal academics, some of whom supported abortion rights, deemed Roe an illegitimate, unprincipled, and offensive exercise of raw judicial power. As John Hart Ely put it: “The Court continues to disavow the philosophy of Lochner. Yet … it is impossible candidly to regard Roe as anything else.”9 While the Court may have tried to tip-toe quietly through Roe, it found itself—fully aware of the Lochner debacle—back in the soup.
Reagan Nominates Bork
With the 1980 election of Ronald Reagan, the power of federal courts was again under attack. In 1980 and 1984, presidential candidate Ronald Reagan pledged to appoint judges who would return “non-essential federal functions … to the States and localities … who respect traditional family values and the sanctity of innocent human life….”10 The most visible mechanism for putting this philosophy of “judicial restraint” into action consisted of administration attacks on Supreme Court decisions on privacy.
Attorney General William French Smith summarized the administration’s position on privacy, arguing that the judiciary is wrong to “discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label ‘fundamental,’ and then resort to it as, in the words of one of Justice Black’s dissents, a ‘loose, flexible, uncontrolled standard for holding laws unconstitutional.’ ”11 With respect to Roe v. Wade, Reagan often spoke of the need to “[a]ffirm the humanity of the unborn child in our society” and criticized Roe as an unjustified “usurpation of the role of legislatures and State courts.”12
The defining moment in the Reagan administration’s attack on judicial theories of privacy was the July 1987 nomination of Robert Bork to the U.S. Supreme Court. Bork would replace judicial moderate, Lewis Powell, the swing vote on a sharply divided Court and the Justice who often stymied much of the Reagan revolution through decisive votes on abortion, affirmative action, and church-state matters. The Bork nomination, then, threatened to alter fundamental doctrines of the Court. Indeed, Senate Judiciary Committee Chairman Joseph Biden (D-Del.) suggested that the Bork controversy was more about the loss of Justice Powell than about Bork himself, remarking that if “Bork were about to replace Rehnquist or … Scalia, this would be a whole different ball game.”13
Bork’s attack on Griswold, calling it “an unprincipled decision” that “fails every test of neutrality,”14 was not lost on his opponents. Although their principal concern was abortion, the Block Bork Coalition feared that using the confirmation hearings to debate abortion would be too divisive and contentious. The solution was to “pluck the heartstrings of [the] middle class” by having abortion subsumed into the larger issue of privacy.15 This strategy was implemented in a full-page ad that appeared in The Washington Post and other newspapers on September 14, 1987. Planned Parenthood warned that the stakes of the Bork nomination were “[d]ecades of Supreme Court decisions uphold[ing] your freedom to make your own decisions about marriage and family, childbearing and parenting” and that “[i]f the Senate confirms Robert Bork, it will be too late. Your personal privacy, one of the most cherished and unique features of American life, has never been in greater danger.”16
Competing reports prepared by the White House and Senate Judiciary Committee Chairman Joseph Biden served as an opening volley in this debate. But the real battle began on September 15, 1987, when Bork and members of the Senate Judiciary Committee went head-to-head on the privacy issue. Senator Biden pressed Bork on his assertion that “the economic gratification of a utility company is as worthy of as much protection as the sexual gratification of a married couple, because neither is mentioned in the Constitution.” Senator Edward Kennedy (D-Mass.) told Bork that he had “serious questions … about placing someone on the Supreme Court that … find[s] some rationale not to respect [privacy rights].” Bork responded that the founders “banked a good deal upon the good sense of the people [and their elected representatives]” and asked rhetorically: “Privacy to do to what [?] … to use cocaine in private? Privacy for businessmen to fix prices in a hotel room?”17
The Senate Judiciary Committee voted 9 to 5 against Bork’s nomination. In explaining why Bork was unacceptable, the majority report emphasized his “narrow definition of liberty” being at odds with “[t]he image of human dignity [which] has been associated throughout our history with the idea that the Constitution recognizes ‘unenumerated rights.’ ”18 Although Senators such as Robert Dole (R-Kan.) labeled this privacy attack as “unfair” and “absurd,” the Senate defeated the Bork nomination 58 to 42, in large measure because of the privacy issue.
After Bork, it seems unlikely that a judicial nominee will challenge the idea of a general constitutional right to privacy in such a direct manner. In the wake of Bork’s defeat, Anthony Kennedy quickly embraced privacy at his confirmation hearings, noting that “the concept of liberty in the due process clause is quite expansive, quite sufficient, to protect the values of privacy that Americans legitimately think are part of their constitutional heritage.”19 At his confirmation hearing, David Souter remarked: “I believe that the Due Process Clause of the 14th Amendment does recognize and does protect an unenumerated right of privacy.”20 Clarence Thomas told Senator Biden on the first day of his hearings that “[m]y view is that there is a right to privacy in the Fourteenth Amendment.”21 Similar support for privacy as a constitutional value has come from all other post-Bork Supreme Court nominees. How they perform their judicial functions, once confirmed, is another matter.
Abortion and American Politics
Although the Reagan administration argued that Roe should be overturned either by the Court or constitutional amendment, it defended Griswold in court and declined to involve itself in non-abortion privacy cases, including Bowers v. Hardwick (homosexual sodomy) and Michael H. v. Gerald D. (unwed fathers). When asked about its failure to participate in these cases, Solicitor General Charles Fried said that administration actions were “not an attack against privacy.” He further stated that the Reagan administration and the Department of Justice felt “no particular concern about privacy in general.” Their concern about privacy, he said, came only from a desire to narrow its scope in regards to Roe.22
By overturning 46 state abortion laws, Roe triggered unprecedented legislative and administrative activism at both the federal and state level. Roe helps to explain the rise in the number of legal abortions from 586,800 in 1972 to 1,553,900 in 1980.23 By freeing the market (especially in authorizing nonhospital abortions), Roe spurred changes in access to abortion in the most restrictive states (due to increased availability) and among poor women (due to increased affordability).24 Increasing the number of legal abortions and access to abortion services helped catalyze pro-life efforts to overturn Roe. The Court thought that Roe would end the abortion dispute, but its decision intensified the battle.
The Court did not take into account the inevitable backlash from elected government and the public at both the state and federal level. “Judges,” as Ruth Bader Ginsburg has remarked, “play an interdependent part in our democracy. They do not alone shape legal doctrine but … they participate in a dialogue with other organs of government, and the people as well.” Indeed, Ginsburg went so far as to suggest that Roe “prolonged divisiveness and deferred stable settlement of the [abortion] issue” by short-circuiting early 1970’s legislative reform efforts.25 Although her claim has been challenged, there is no doubt that Roe is a starting point, not a final point, in studying the constitutionality of abortion.
Congress Responds to Roe
Congress has repeatedly shied away from taking extreme positions on abortion. It rejected “human life” legislation and a proposed constitutional amendment, each of which would have defined the beginning of life as conception and treated fetuses as persons for Fourteenth Amendment purposes. Congress refused to strip federal courts, including the U.S. Supreme Court, of jurisdiction in abortion cases. Congress also rejected pro-choice absolutism. Efforts to enact freedom of choice legislation—to statutorily codify Roe v. Wade—stalled after the Supreme Court’s decision in Planned Parenthood v. Casey (1992).
Casey adopted a moderate stance that better reflected the beliefs of Americans than did the absolutist Freedom of Choice Act (FOCA). On one hand, Casey reaffirmed Roe’s guarantee of the right of abortion; on the other hand, Casey substituted a deferential “undue burden” test for the rigid trimester test embraced in Roe, opening the door to regulation of abortion. Two Gallup polls taken in December 1991 and January 1992 indicated that 64 percent of Americans would not want Roe overturned, but a larger majority, ranging from 70 percent to 86 percent favored some restrictions on the abortion right.26 By making FOCA look extremist by comparison, Casey caused a great many pro-choice lawmakers to abandon FOCA after the Casey decision.
Yet Congress agreed to pass legislation limiting funds for abortion. Starting in 1976, Congress, through the Hyde Amendment, has allowed the use of Medicaid funds only for certain types of abortions, such as when the life of the mother is in jeopardy and in cases of rape and incest.27 Congress also used its appropriations powers to set abortion-related restrictions on programs involving family planning, foreign aid, legal services, military hospitals, the Bureau of Prisons, and the Peace Corps. Congress, finally, limited the use of federal and local funds for abortions in the District of Columbia. In 2015, Senate Republicans held up the confirmation of Attorney General designate Loretta Lynch in order to push through an anti-abortion funding restriction in anti-human trafficking legislation, but she was eventually confirmed.
Congress’s heavy reliance on appropriations-based policymaking is quite understandable. Because appropriations are enacted every year, anti-abortion forces, through a simple floor amendment, were able to force a majority to vote up or down on Medicaid funding. Unlike proposals that sought to nullify Roe, a ban on public funding leaves the individual’s right to abortion intact and hence appears to be more moderate. Congress has approved a handful of measures that affect abortion rights outside the context of federal funding prohibitions. Congress encouraged alternatives to abortion by passing the Adolescent Family Life Act.28 This legislation, better known as the “chastity act,” offered religious organizations federal funds to promote sexual abstinence as a method of birth control among teenagers. The Freedom of Access to Clinic Entrances Act nullified a 1993 Supreme Court’s decision by making it a federal crime for pro-life groups to obstruct the entrance to an abortion clinic.29 The Partial Birth Ban Abortion Act of 2003 limited the Supreme Court’s 2000 rejection of state partial birth abortion bans.30
Through its participation in litigation, Congress seeks to shape the abortion debate. When the Supreme Court upheld the constitutionality of the Hyde Amendment, a bipartisan coalition of 242 congressional amici (136 Republicans and 106 Democrats) argued that “[t]o tamper with [the inviolable and exclusive power of the purse] is to tamper with the very essence of constitutional, representative government.”31More recently, Democratic and Republican lawmakers generally line up on opposite sides of abortion regulation cases. These filings, although principally symbolic, are nonetheless instructive in measuring legislative attitudes. In the 2000 state partial-birth abortion case, Stenberg v. Carhart, 30 Republicans and 3 Democrats filed a brief supporting the law; 78 Democrats and 5 Republicans filed an opposing pro-choice brief. In a 2007 challenge to the federal partial birth law, Gonzales v. Carhart, 52 Democrats filed a pro-choice brief and 72 Republicans a pro-life brief.
Ever since the 1981 nomination of Sandra Day O’Connor, the Senate Judiciary Committee has made a nominee’s views on abortion the sine qua non of the confirmation process, though nominees do not always provide clear answers. Starting with the Carter administration, presidential appointees for such positions as Secretary of Health and Human Services, Surgeon General, Attorney General, Solicitor General, and Director of the Office of Personnel Management have had their track record on abortion scrutinized by the Senate.
Congressional decision-making is highly visible, greatly observed, and much criticized. Although the Hyde Amendment was subject to prolonged, fierce, and emotional debate, discussion by lawmakers of the amendment’s constitutionality were rare and never rose above the level of conclusory rhetoric.32 Congress paid scant attention to the constitutionality of the Adolescent Family Life Act (AFLA). Indeed, when AFLA was reauthorized in 1984, a Senate subcommittee dismissed a serious constitutional challenge against the measure as something “[t]he courts will have to decide.”33 Such comments embraced the myth of the judiciary’s exclusive role to decide constitutional questions.
Constitutional concerns did, however, pervade congressional attacks on Roe that occurred in the early 1980s. In 1981, the Senate Judiciary Committee actively considered human life legislation, court-stripping proposals, and constitutional amendment proposals. In each case, extensive hearings featured the views of constitutional law experts. Committee and subcommittee reports too were replete with citations to this expert testimony, as well as Supreme Court decisions and law review articles.
In 1998, in considering Congress’s authority to punish individuals who frustrate parental notification laws by transporting minors across state lines, the House and Senate Judiciary committees called upon constitutional law experts.34 When considering partial birth abortion legislation, lawmakers examined whether Congress was constrained by a 2000 Supreme Court decision overturning a state ban on this procedure. By finding that “partial-birth abortion is never necessary to preserve the health of a woman,” an April 2003 House Judiciary Committee report concluded that Congress could, compatible with the Constitution, outlaw this procedure.35
Pro-choice legislators also paid careful attention to constitutional concerns during the 1990s. The Freedom of Choice Act was amended in 1992 to shore up its constitutional foundations. Freedom of access legislation was also modified in the face of constitutional attacks.
Before the election of Ronald Reagan, abortion was an important but not front-burner issue for the executive branch. Prior to Roe, the White House saw abortion as a states-rights issue and left it alone. After Roe, abortion was too potent a national issue to be ignored by the White House. In the 1976 election, both Ford and Carter spoke out against public funding of abortion.36 However, abortion did not figure prominently in their judicial appointments; they did not ask the courts to either affirm or disavow Roe; legislation and constitutional amendments were not proposed; regulatory initiatives were modest in scope and sweep.
The 1980 election of Ronald Reagan changed the political dynamics. By advancing his pro-life agenda through spiritual leadership, regulatory reform, judicial appointments, arguments in court, and legislative and constitutional amendment proposals, “the Reagan administration not only fundamentally changed the national debate over abortion but set the stage for how the controversy [would] play out in the 1990s.”37 Once in office, as Charles Fried put it, “[t]he Reagan administration made Roe v. Wade the symbol of everything that had gone wrong in law, particularly in constitutional law.”38 In Reagan’s view, Roe was as divisive and as wrong as Dred Scott.39
Unable to push through a pro-life legislative agenda, Reagan turned to administrative remedies, the most controversial of which was the so-called “gag rule.” The story begins in 1970 when Congress added to a comprehensive family planning statute (Title X) an explicit prohibition against appropriating funds “where abortion is a method of family planning.”40 The Carter administration interpreted the funding ban narrowly, mandating that Title X recipients provide “non-directive counseling” on “pregnancy termination.” The Reagan administration chose to limit the use of federal funds for family-planning activities and abortion counseling.
The Supreme Court approved the Reagan policy because “substantial deference is accorded” to the executive in its interpretation of statutes.41 The Reagan—and later the George H. W. Bush—administration invoked its regulatory authority to advance a pro-life agenda. Policies on fetal tissue research, USAID grant recipients, the importation of the abortifacient RU-486, and restrictions on abortions in military hospitals were all promulgated pursuant to the executive’s authority to implement the laws.
Another significant presidential weapon is the veto power, which can be used in two ways. First, the President can block congressionally supported programs that he disfavors unless Congress musters a two-thirds majority in each house for an override. Bush’s vetoes in 1992 of legislative efforts to reinstate fetal tissue research and suspend the gag rule fit this category. Second, the veto power can be used to force Congress to adopt a presidentially supported program. That is precisely what occurred in 1989 when Congress passed the D.C. spending bill to allow the use of city funds to pay for abortions. Bush vetoed the bill and demanded that Congress reinsert the city funding prohibition. After two vetoes of the D.C. funding bill, Congress ultimately capitulated and reinserted the prohibition of both federal and city abortion expenditures.42
Abortion’s continuing relevance in presidential politics is evident in the remarkable speed and vigor with which the Clinton, George W. Bush, and Obama administrations put their policies into effect. On January 22, 1993, two days after his inauguration, Clinton dismantled the pro-life regulatory initiatives of the Reagan and Bush administrations. Speaking of the national “[goal] to protect individual freedom” and his vision “of an America where abortion is safe and legal, but rare,” Clinton lifted the ban on fetal tissue research, suspended limits on the ability of family planning programs to mention abortion, permitted privately funded abortions at military hospitals, suspended the moratorium on the importation of RU-486, and suspended limitations on the use of private funds by pro-choice organizations that also receive AID funds. He later advanced his pro-choice agenda through legislative initiatives, court filings, vetoes, and judicial appointments. In a bitter battle with the Republican Congress, Clinton repeatedly vetoed legislation outlawing partial birth abortions. In 2000, with its first major ruling on abortion since Casey, the Court in Stenberg v. Carhart held that Nebraska’s partial birth abortion statute violated the Constitution as interpreted in Casey and Roe.43
When President George W. Bush took office in 2001, he began to reverse some of the Clinton policies on abortion. One of his first actions, on January 22, was to reimpose a ban on federal aid to international organizations that perform or “actively promote abortion” as a method of family planning.44 He thus restored the “Mexico City policy” that was in effect under his father. Bush also backed state and federal efforts to ban partial birth abortions. In February 2002, his Justice Department filed a brief defending an Ohio law banning all but medically necessary partial-birth abortions.
In November 2003, Bush spoke of “the unalienable right to life” when signing the Partial Birth Abortion Act of 2003.45 In Gonzales v. Carhart (2007), the Court upheld the statute. Divided 5 to 4, the Court distinguished the federal statute from the Nebraska law at issue in its 2000 invalidation of state partial birth bans in Stenberg. An important change in the Court helped propel the Court’s decision. In the 2000 case, Sandra Day O’Connor had voted to strike down the Nebraska law. In the 2006 case, her replacement, George W. Bush appointee Samuel Alito was part of a five-Justice majority that approved the federal partial birth ban.
The 2008 presidential election shifted the abortion pendulum. Barack Obama took several steps to dismantle the anti-abortion policies of George W. Bush. In January 2009, Obama reversed the stem cell funding ban, repealed the gag rule, and rescinded the ban on USAID funds going to groups that lobby foreign governments or otherwise pursue activities to make abortion available overseas. When announcing these policy changes, Obama argued that Republican policies have “been used as a political wedge … that has served only to divide us” and that his administration would reach out to all sides to reduce unintended pregnancies” and would also “promote safe motherhood” and reduce “maternal and infant mortality rates.”46
Independent State Action
The states have been as prominent as the federal government in shaping the abortion dispute. Prior to Roe, abortion battles were the near exclusive province of the states. Since Roe, the states have taken advantage of “multiple opportunities for thwarting compliance with, or implementation of [Roe].”47
Although setting in motion the contemporary abortion debate, Roe was influenced by many factors. Actions in the 1960s by the American Law Institute, American Medical Association, and various religious organizations spurred 19 states to liberalize their criminal statutes governing abortion. Only three states (Louisiana, New Hampshire, and Pennsylvania) prohibited all abortions. In the early 1970s, although 34 states had rejected reform initiatives,48 more dramatic change seemed possible. The National Conference on Commissioners on Uniform State Laws drafted a Uniform Abortion Act, which would have placed no limitations on abortion during the first twenty weeks of pregnancy.
The Court in Roe sought to extend these reform efforts. State responses to Roe, however, reveal that the nation was not prepared to tolerate a Court decision that appeared little more than judicial legislation. From 1973 to 1989, 306 abortion measures were passed by 48 states.49
Too much should not be read into state resistance to Roe. Many elected officials were quietly pleased by Roe. John Hart Ely spoke of “the sighs of relief as this particular albatross was cut from the legislative and executive necks.”50 That an avalanche of abortion restrictions were enacted may only mean that legislators saw no downside in catering to pro-life interest groups, for pro-choice organizations were content to seek judicial relief.
Most states, moreover, are unwilling to play a leadership role in enacting stringent abortion laws. Instead, they wait to see if the courts will approve the anti-abortion initiatives of one of a handful of “challenger” states. Furthermore, most of these challenges are not clearly at odds with court decisions, but rather test the limits of those decisions. For example, Roe did not explicitly address parental or spousal consent, public funding, hospital-only abortions, or waiting periods. State action on those subjects engages the judiciary in a dialogue on the sweep of abortion rights.
Just as Roe transformed state abortion politics in 1973, a 1989 decision signaled a new era in abortion politics. On the brink of overturning Roe, the Court declared “the rigid Roe framework” unworkable and opened the door to anti-abortion legislation by approving, among other things, second trimester fetal viability tests.51