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see substantive due process

abortion law

Constitutional Law               

     Federal Constitutional Law is, of course, the central point of concern for abortion issues. Roe v. Wade is the centerpiece of abortion law in the United States. But it relied on many earlier cases, and has itself been significantly superseded by more recent ones. Furthermore, the constitutional issues at stake are complex and not widely understood.

There are four main categories of contention:

  • Is a right to "privacy"--embracing abortion--included in the substantive rights assured by the United States Constitution? Penumbraism andSubstantive Due Process
  • If there is, does it apply to the states? FederalismIncorporation
  • By what standard of review is it enforced? Compelling State Interest, Undue Burden or Rational Basis
  • Is birth a prerequisite for legal personhood under the 14th Amendment? Legal Persons

United States Constitution

Early and Misc. Privacy cases and general Federalism/Due Process cases are at Con. Law II


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The Griswold-Roe line of cases:


Poe v. Ullman, 367 U.S. 497 (1961),  In a 5-4 decision, the U.S. Supreme Court dismissed this challenge to a Connecticut criminal statute prohibiting using and counseling the use of contraceptives.  The Court dismissed the case on grounds justiciability, holding that there was no actual controversy for the court to decide because the statute was un-enforced.  As a result, the Court did not decide the substantive constitutional issue of whether Connecticut’s law was unconstitutional or not.  Justice Frankfurter’s lead opinion got four votes, with Justice Brennan concurring in the judgment.  Justices Black and Stewart both dissented on the justiciability issue and wanted to reach the constitutional questions. However, none of the foregoing seven Justices stated what their position would be on the underlying constitutional question.

     The important part of the case comes with the opinions of Justice Douglas and Justice Harlan who, beginning at 515 and 539, respectively, argue, at length, that the statute violates the Fourteenth Amendment's Due Process Clause.  Douglas emphasized and expansive view of “due process” and interpolations of the Bill of Rights.  Similarly, Harlan emphasized a expansive notion of “due process” and its protection of “liberty.”  Critically, both arguments would be adopted by the Court majority in Griswold four years later and used to strike down the same Connecticuit law and establish the Privacy doctrine, which is so central to abortion law.  [Compare the relationship of Poe and Griswold to that of Vuitch and Roe.]

Griswold v. Connecticut, 381 U.S. 470 (1965), [Transcript of Oral Argument] in striking down (7-2) a Connecticut law banning the distribution, use, etc., of contraceptives, the court, per Douglas, developed the "penumbra" ["shadow"] doctrine, which held that certain rights, though fundamental and not actually written in the Bill of Rights or the 14th Amendment, nonetheless exist in the Constitution and are enforceable against the federal and state governments. This doctrine states that new rights can be found between the gaps, or "between the lines" of the rights actually written in or "enumerated" by the Constitution. Douglas wrote that the right to marital privacy is fundamental and lies between the gaps of the 1st, 3rd, 4th, 5th, and 9th Amendments. Other Justices concurred centering particularly on the Due Process Clause of the 14th Amendment (Harlan and White) and the 9th Amendment (Goldberg) as the source of privacy. Black and Stewart dissented at length, holding that a right that is not in the Constitution can not be a "Constitutional right," and that just because a law is bad or stupid, does not make it "unconstitutional."

This case was the genesis of the "right to privacy," being the first time a majority of the court had embraced it. It also breathed new life into the doctrine ofSubstantive Due Process, which the court, per Black (8-1), had repudiated two years before in Ferguson v. Skrupa, 372 U.S. 726 (1962).  The court's aversion to the unveiled use of the Substantive Due Process doctrine is often suggested as the cause of the dissonance in the court's reasoning behind the privacy right.  In the 1910's, 20's and 30's, during the so called "Lochner-Era," the court struck down a wide variety of state economic reform legislation for violating a mythical 14th Amendment Due Process "Right to Contract."  By the mid-30's this had brought the court into wide disrepute, until, under intense pressure, the court finally repudiated the doctrine.  In Griswold, only two of the Justices actually use a direct Substantive Due Process theory as the basis for the Right to Privacy.

United States v. Vuitch, 402 U.S. 62 (1971), [District Court opinion] In this frequently overlooked pre-Roe abortion case, the court, per Black (5-4, part I on jurisdiction and 5-4, part II on the merits) in a mixed coalition reversing a district court decision, upheld a District of Columbia abortion statute against Procedural Due Process claims. A majority of the court (Black, C.J.Burger, Harlan, White and Blackmun) held that the "health" exception was not unconstitutionally vague.

This case did not consider substantive or privacy claims--these would appear in Roe. Originally, abortion law opponents tried to undermine restrictive laws that had "health" exceptions by arguing that the word "health" was unenforceablly vague. This did not work in Vuitch, but it did in California. See, (4-3 decision of state Supreme Court) People v. Belous, 80 Cal.Rptr. 354, 458 P.2d 194 (1969)cert. denied 397 U.S. 915 (1970). It is somewhat interesting in that Blackmun, Roe's author, cast the deciding vote [at 98] to uphold the statute, which is quite similar to the Texas statute invalidated in Roe. Most interesting is Douglas's partial dissent where he takes the opportunity to make a prophetic dry-run on the Roe argument, even citing the Texas district court opinion in that case. See Vuitch, at 74. Black dismisses this as a mis-placed procedural argument, at 73. [Black would die before Roe could be decided.]

Eisenstadt v. Baird, 405 U.S. 438 (1972), this crucial (6-1) decision invalidated a Massachusetts statute making it a crime for anyone to distribute contraceptives, other than doctors and pharmacists prescribing them to married persons. The lead opinion, written by Brennan and getting the vote of three others, went far past the limited right of "marital privacy" found in Griswold by holding that the right to privacy inheres in the individual not married couples--and that the law therefore violates the Equal Protection Clause by discriminating against unmarried people.

Brennan's oft quoted opinion says: "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt at 453. This language was clearly setting the stage for Roe, which, when Eisenstadt came down, had already been argued before the Supreme Court.  White and Blackmun concurred on other grounds, holding that reversal was justified by the fact that the record did not disclose whether the contraceptive distributed by Baird was given to a married or an unmarried person. Powell and Rehnquist did not participate. Chief Justice Burger dissented holding that the court's opinion would "seriously invade the constitutional prerogatives of the States and regrettably hark back to the heyday of substantive due process." He held that there was a legitimate health purpose for the statute's doctor/pharmacist requirement and that therefore the married/single issue is not legitimately before the court.

Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) [alternate] [District Court opinion] [Transcripts of Oral Argument (#1) (#2)] the landmark (7-2) abortion decision voided the abortion laws of nearly every state. Striking down a Texas statute that prohibited all abortions except to save the mother's life, the Supreme Court, per Blackmun, held that abortion was a constitutional right that the states could only abridge after the first six months of pregnancy. More specifically, the Court held that: (1) the Court had jurisdiction; (2) Roe's case was not moot, despite the birth of her child, because the case was "capable of repetition, yet evading review;" (3) the right to privacy includes the right to abortion; (4) since abortion is a fundamental right, state regulation must meet the "strict scrutiny" standard, which means the state must show it has a "compelling interest" in having the law; (5) the word "person" in the 14th Amendment, does not apply to the unborn; (6) the state has an important interest in both preserving the heath of a pregnant woman and in protecting fetal life; (7) the state's interest in maternal health becomes compelling at three months; (8) the state's interest in fetal life becomes compelling at viability--six months; (9) the state may not regulate abortion at all during the first trimester; (10) the state may regulate abortion during the second three months, but only for the protection of the woman's health; (11) the state may regulate or ban abortion during the third trimester to protect fetal life.

Roe, the only successful suit of a group of test cases designed to challenge validity of the Texas abortion statute, was brought by Norma McCorvey (alias "Jane Roe") and her lawyer, Sarah Weddington. It was heard twice by the Court because the retirement of Black and Harlan had left two vacancies. With Powell and Rehnquist added, the case was then re-heard. Though Douglas was rightly the intellectual father of Roe, it was Blackmun who worked feverishly behind the scenes to build a consensus for the ruling that he would ultimately write for the Court. [Recently released internal memoranda, while shedding fascinating light on the workings of the Roe Court, have also resulted in stark criticism of the majority's conduct.] The two dissenters, Rehnquist and Whitewould champion the cause against Roe for more than twenty years to come. Though legally it has been eclipsed by Casey, it remains as the essential centerpiece of constitutional jurisprudence on abortion.

The Roe Court: 
Burger, C.J.(Nixon'69), Douglas (Roosevelt'39), Brennan (Eisenhower'56), Stewart (Eisenhower'58), White (Kennedy'62), Marshall (Johnson'67),Blackmun (Nixon'70), Powell (Nixon'71), Rehnquist (Nixon'71). 
(Only Rehnquist, now Chief Justice, is still on the court.)

Doe v. Bolton, 410 U.S. 179 (1973) Companion case to Roe, striking down parts of a "liberalized" statute from Georgia with health/rape/incest exceptions. Holding, (7-2) per Blackmun, that a woman has a constitutional right to abortion from six months to birth, if her doctor "in his best clinical judgment," in light of the patient's age, "physical, emotional, psychological [and] familial" circumstances, finds it "necessary for her physical or mental health."

Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976) While upholding recordkeeping and consent form requirements, the Court, per Blackmun, struck down Missouri laws that mandated (1) written spousal consent for elective abortions, (2) parental consent for minors, (3) that late-term abortions be performed in a manner that best permits a viable child's survival and a law that (4) banned second trimester saline abortions as a danger to maternal health.

This case examined the first set of "Post-Roe" statutes to reach the Court.

Harris v. McRae, 448 U.S. 297 (1980) A divided Court held (5-4) per Stewart that, although abortion is held to be a Constitutional right, that does not mean that the state is obliged to pay for abortions. The Court held that the Equal Protection and Due Process Clauses simply do not require the state to fund the exercise of protected liberties--since this protection is against state interference, not private economic hardship. Brennan, Marshall, Blackmun and Stevens all filled vociferous dissenting opinions.

Thornburg v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) (5-4) per Blackmun. The last case where a majority of the Court would adhere completely to Roe.  C.J. Burger, White, Rehnquist and O'Connor dissenting.  The Court struck down provisions of a Pennsylvania state law requiring (1) that a woman receive information on abortion alternatives and human development in utero; (2) that a woman receive information about the possible health dangers of abortion; (3) the keeping detailed statistical records of abortions; (4) that post-viability abortions be performed in such a way as to allow a child to survive the procedure, unless  this would significantly increase risk to the woman; (5) that a second physician be present at post-viability abortions to care for a child who survives the procedure.  The Court held that these provisions (1) invaded the privacy of the woman and her doctor; (2) were calculated by the Pennsylvania legislature to "intimidate" women and try to dissuade them from having abortions; (3) impermissibly put the lives of viable fetuses over the health concerns of women.  

Blackmun's opinion is peculiarly acrimonious, as he sees in these statutes a conscious refusal of the Pennsylvania Legislature to heed the constitutional mandate of Roe.  Even prior supporters of Roe (like C.J. Burger) seem to think that Blackmun's opinion has gone too far in rejecting even limited state regulation, including informed consent mandates.

Webster v. Reproductive Health Services, 492 U.S. 490 (1989) The first sharp departure from Roe. Abortion law would never be the same. The court, (5-4) per Rehnquist, let stand a Missouri statute stating that human life began at conception, barring use of state property for abortions, and requiring viability tests for advanced pregnancies. Pointing to Thornburg dissents by White and O'Connor, Rehnquist, writing for a plurality, held [at 519] that the state has a "compelling" interest in fetal life throughout pregnancy and that the trimester framework of Roe and its viability line ought to be discarded. This proposition, if accepted by five Justices, would have amount to a tacit yet wholesale evisceration of Roe. If states had a "compelling interest" in preserving life in utero throughout pregnancy--then by Roe's own terms a State could proscribe all non-therapeutic abortions. Justice O'Connor declined to join this part of the opinion, though her earlier opinion in Akron I had expressly held the same thing. So the Court declined to play out this position by overturning Roe (as Justice Scalia urged in his concurrence). Instead, the Court merely upheld the legislation in front of it. The Court left abortion law in flux--not expressly overturning Roe, but not following it either. In the eyes of many, the Court seemed poised to do away with Roe. A number of legislatures took the cue and began to pass new abortion restrictions.

Hodgson v. Minnesota, 497 U.S. 417 (1990) (5-4 against absolute notice, 5-4 for by-pass) The Court held that the 14th Amendment requires a judicial by-pass process in a law mandating parental notice to both parents of an underage girl. The law may require a 48-hour waiting period between notification and the abortion to give the parents a "realistic opportunity" to talk to the daughter.

Ohio v Akron Ctr for Reproductive Health, 497 U.S. 502 (1990) (6-3)
A state may require parental notification before an abortion is performed on an underage girl, provided that the law allows a judicial by-pass if the judge believes it is in her best interest.

Planned Parenthood v. Casey, 505 U.S. 833 (1992)  [Transcript of Oral Argument]  the Court (5-4) upheld a 24-hour waiting period, an informed consent requirement, a parental consent provision for minors and a recordkeeping requirement, while striking down the spousal notice requirement of a Pennsylvania statute. Invoking stare decisis, the political need for judicial credibility and a consistent Constitutional vision, the Court's middle wing (O'Connor, Kennedy and Souter), while retaining the "central holding" of Roe v. Wade, overturned its trimester framework and its "strict scrutiny" standard of review, in favor of a new "undue burden" standard, proposed by Justice O'Connor, and a floating viability line where the state's interest in fetal life becomes "compelling." Blackmun and Stevens both dissented in part, favoring upholding more of Roe. Chief Justice Rehnquist, with Justices White, Scalia and Thomas, dissented, arguing that Roe had no Constitutional basis and ought to be overturned and that the "rational basis" standard should be applied to uphold the statute. The dissenter's reasoned that if Roe was wrongly decided, there is no way to justify upholding it. Scalia also authored a dissenting opinionin which Rehnquist, White, and Thomas joined. Crucial to the survival of Roe in this case was O'Connor and Kennedy's decision to retreat from their prior holdings that the state's interest in protecting non-viable fetal life was "compelling." O'Connor's "undue burden" standard is a pragmatic compromise, allowing limited (and politically popular) state regulation of abortion, yet effectively preserving the general access to abortion that was the goal of Roe.

This decision has replaced Roe v. Wade as the dominant precedent on abortion in this country. It is long and comprehensive and is probably the best single examination of all the legal perspectives available. The dissents of Blackmun and Scalia are particularly argumentative and worth reading. This case (if notWebster) may represent the closest Roe v. Wade has ever come to being overturned. Rehnquist and White--the two original dissenters--and Blackmun--the opinion's author--were the only members of the Roe court left.

The Casey Court:
, C.J.(Nixon'71), White (Kennedy'62), Blackmun (Nixon'70), Stevens (Ford'75), O'Connor (Reagan'81), Scalia (Reagan'86), Kennedy(Reagan'88), Souter (Bush'90), Thomas (Bush'91)


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