Abortion, Part II: Abortion and the Law (the “right to privacy” & Roe v. Wade)

Remember, today’s post will be reissued as an episode on PPFA’s new podcast feed, available on Anchor, Spotify, and Apple. Go become a subscriber so you know when the episode drops!

Now that we’ve considered some of the political and philosophical opinions on abortion, let’s examine the legal ones. Today’s post has three phases:

  1. A brief history of abortion law in America, from the colonial era through the 1960s
  2. Griswold v. Connecticut (1965), which identified a right to privacy under the Constitution
  3. Roe v. Wade (1973), which used a right to privacy as a premise for decriminalizing abortions

Due to the subject matter, I’m going to avoid any jokey writing.

Okay, I’ll have one joke. See if you can find it. (Starting now.)

1. A Brief History of Abortion in America

Abortion has a long history, including here in the US. The practice, which usually involved abortifacient herbs, has been around since the ancient world. Back in colonial times, when we inherited English common law, abortions, although discouraged socially, were legally permissible prior to “quickening” — or when the mother can feel the baby moving — often around four or five months gestation.

It was not until the mid-19th century when abortion restrictions started spreading across the US. The most direct cause was physicians lobbying on a state-by-state basis. Doctors’ opposition to abortion had both moral reasons and practical ones. Morally, science had determined that the quickening threshold was arbitrary and imprecise; a baby in utero develops on a consistent, even basis, so a baby one week before the mother feels it is not all that different from a baby at the first moment of quickening. That being the case, it was hard to justify terminating the pregnancy along such a demarcation, particularly if such a line was based solely on the mother’s perceptions. Thinner women, for example, feel quickening earlier, and so a fetus’s life could well depend on his or her mother’s body shape, a troubling layer of subjectivity.

Meanwhile, doctors had more practical concerns. Abortions were usually conducted by midwives and other less credentialed providers. Any kind of mistakes made by these alternative practitioners often led to suffering women showing up in doctors’ offices, sometimes beyond saving. Further, these alternatives were competition for doctors. In response, the early American Medical Association — not coincidentally founded in 1847, shortly before abortion’s criminalization — lobbied for abortion prohibitions. They often found common cause with conservatives skeptical of the changing social mores that accompanied the fledgling women’s rights movement, which championed not only women’s suffrage but also a more independent woman — one made possible only by “voluntary motherhood.”

What began as state-by-state restrictions ultimately went federal in 1873. The Comstock laws, a series of morality legislation, prohibited using the US Postal Service to transport contraceptives or abortifacients (among other “indecent” materials), which severely hampered abortion providers’ ability to receive and distribute such products. Later, a new federal law added that such products also couldn’t be transported on any common carrier between states, such as railroads, which further hampered the interstate traffic of abortive necessities. In D.C., where the federal government had direct oversight, even transacting any written materials related to abortion — whether by sale or giveaway — was prohibited, including in the medical field. Many states — 24 of 37 — mirrored this legislation with their own “Comstock laws,” which then hampered intrastate abortion-related commerce and written information as well.

Just because federal and state governments cracked down on abortions doesn’t mean abortions stopped. In the 1930s, despite the above restrictions, about 800,000 abortions were conducted annually. Some states still permitted them in certain cases. Meanwhile, in states with stricter abortion laws, women still sought abortions in unsanctioned, often dangerous settings, or through their own means, sometimes by ingesting substances such as turpentine and Chlorox, and other times by inserting pointy instruments, such as knitting needles or coat-hangers, in a hope to self-terminate the pregnancy. During the 1940s, about a thousand women died annually and painfully from mishandled abortions.

In the 1950s, Margaret Sanger’s Planned Parenthood Foundation of America (obviously a far lesser known PPFA than the website you’re now reading) began lobbying for abortion law reform. It also continued trying to spread favorable contraceptive legislation, which it had done since its days as the American Birth Control League, founded in 1921. (The ABCL had been nominally anti-abortion itself, as they felt this party line would be a strong talking point when working to convince states to allow contraception as a means to avoid abortions, but PPFA evolved the group’s position.)

It was this push for contraception access that lay a cornerstone around which pro-choice advocates could build a case for the eventual decriminalization of abortion as well.

2. Griswold v. Connecticut (1965)

Perhaps thanks to its puritanical roots, my home state of Connecticut embraced Comstock laws. One such law, on the books since 1873, stated, “Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.” Thus, heading into the 1960s, using contraception in Connecticut was still against the law.

The Planned Parenthood League of Connecticut pushed back when its executive director, Estelle Griswold, led a challenge. In 1961, they opened a clinic in New Haven that began advocating for and prescribing contraception to its patients. Connecticut law enforcement soon interfered, and both Griswold and the clinic’s co-founder, Dr. C. Lee Buxton, were charged and fined.

It was all part of the plan. Officials charged and convicted Griswold, and she appealed. A state court of appeals and the Connecticut Supreme Court, accurately reading state law, upheld the conviction. Griswold’s lawyers successfully appealed up to the U.S. Supreme Court, convincing the Court to hear their case because they argued it was a Constitutional issue, and so the case belonged at the federal court level. Their case was that the law was a violation of a couple’s right to privacy when making reproductive decisions.

But… is there a Constitutional right to “privacy”? Now here is where scholars and ideologues part ways, and so here is where it gets interesting.

It certainly feels like we have a right to privacy. However, what or where is the source of that right? The word never actually shows up in the Constitution! That’s a compelling argument that privacy isn’t a Constitutional right at all. That being so, many argue it’s a question that should be left to the states to legislate on their own. (You might already know that this position foreshadows forthcoming abortion arguments.)

And yet, in Griswold v. Connecticut, the Supreme Court, by a 7-2 vote, sided with Griswold and did indeed find Constitutional justification for a right to privacy. Justice William O. Douglas, who wrote the opinion, reasoned his way there by examining our Bill of Rights and combining pieces of five separate amendments in an equation that could look something like this:

(1 + 3 + 4 + 5) X 9 = Right to privacy

Justice Douglas opined that the First Amendment “has a penumbra where privacy is protected from government intrusion.” In other words, our ability to worship, speak, and assemble without unreasonable government restriction is essentially keeping the government out of our freedom to think and associate, which in a way protects our privacy. The explicit text in the First Amendment, he reasoned, creates “penumbras,” or shadows, “formed by emanations from those guarantees.”

Meanwhile, the Third Amendment, which forbids the government from quartering soldiers in our homes, clearly protects our homes from government intrusion. The Fourth Amendment, which restricts unreasonable search and seizure of our belongings, further protects us from government interference into our personal lives. And then the Fifth Amendment includes the Self-Incrimination Clause, which Justice Douglas argues “enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment.” All of these, argues Douglas, imply we have a right to privacy.

Douglas then combined the First, Third, Fourth, and Fifth amendments with the lynchpin Ninth Amendment, which says American retain “unenumerated rights” — that is, rights not written in the Constitution. With the Ninth Amendment, the drafters of the Bill of Rights were careful to note that just because a right isn’t written doesn’t mean we automatically give it up. Across American history, it has often fallen to the Supreme Court to determine what some of those unenumerated rights are.

In Griswold v. Connecticut, the Court determined the right to privacy as one of those rights, and a married couple determining whether to use contraception falls into the scope of their right to privacy. As a result, the Comstock laws were deemed unconstitutional, Griswold was exonerated, and contraception became legal for married couples in Connecticut and across the country.

This case became crucial precedent to later cases. Seven years later, Eisenstadt v. Baird extended the right to contraception to unmarried couples as well. In 2003’s Lawrence v. Texas, the Court used right to privacy as the basis to strike down a Texas law against sodomy and homosexuality.

Most importantly for today’s post, a right to privacy opened a door for pro-choice advocates. They soon stepped through it.

3. Roe v. Wade (1973)

In 1970, Jane Roe, a pseudonym for Norma McCorvey, wanted an abortion, but her home state of Texas only allowed them in cases where the life of the mother was at stake, and hers was not. She filed a lawsuit against Dallas County’s district attorney, Henry Wade, arguing the Texas law was unconstitutional. Her lawsuit said she sought a “competent, licensed physician, under safe, clinical conditions,” and that she was in no position to travel to a state that would give her one. McCorvey won at the federal district court level, but Texas appealed to the Supreme Court.

The Supreme Court agreed to hear the case and finally issued its ruling in 1973. (In the intervening time, McCorvey was forced to give birth, and she gave up the baby to adoption. This development brought about the question of “mootness” — whether her ceasing to be pregnant made the case “moot,” or no longer relevant — but the Court determined that McCorvey could always become pregnant again, and the appellate process takes longer than a pregnancy, so it was reasonable to see the case through to the end rather than re-start it every time a woman wants to challenge an abortion law.)

In another 7-2 decision, the court sided with Roe. It determined that an abortion conducted within the first trimester was a private decision between a woman and her doctor. Writing for the majority, Justice Harry Blackmun not only used the precedent set in Griswold, but he, too, channeled the Ninth Amendment’s acknowledgement of unenumerated rights, arguing that the amendment “is broad enough to encompass a woman’s decision whether to terminate her pregnancy.”

Further, the Court also applied the all-important Fourteenth Amendment, which stated that due process of law must be followed by not only the federal government (which the Fifth Amendment had already mandated) but also by state governments as well. Included in due process of law is not only the more familiar procedural due process — the steps the government must take to prove someone’s guilt — but also substantive due process, which is essentially an evaluation of whether the substance of the law does not deprive someone of their rights, even if the proper procedures are followed when finding someone guilty of that law. (Imagine a state law that forbids African Americans, Jews, or people over 80 from walking down the street. Even following procedural due process — a trial, an attorney, evidence, et cetera — a state could easily convict someone from one of those groups who has broken the law. Substantive due process would determine that the law is a violation of their rights, even if the state or local government followed the proper procedure when convicting them.) In the Court’s opinion, Texas’s abortion law violated Texans’ right to privacy, including their “personal liberty and restrictions upon state action,” a violation of substantive due process. The law was therefore struck down, and so were state abortion laws across the country.

At the same time, the Court also acknowledged that one’s right to an abortion was not “absolute.” The majority did not agree with McCorvey’s lawyers that a woman is “entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.” The Court acknowledged that there is, in fact, a “valid interest” in a state having reasonable abortion regulations.

The result of these competing acknowledgements — that a woman has a right to privacy regarding her abortion choices and that a state has an interest in regulating abortion — created an awkward “balancing test” prescribed by the Court. When crafting the test, they took into account many pages of testimony and briefs to determine when, exactly, abortions could be regulated.

What they came up with looks, controversially, like specific legislation — something our judicial branch is not supposed to do. Specifically, the Court determined that excuse-free, first trimester abortions must be allowed in all states; that a state could regulate second trimester abortions if the laws were tied to “interest in the health of the mother”; and that a state could prohibit third trimester abortions, short of when the mother’s life is at risk.

Blackmun wrote that allowing third trimester abortion prohibitions came down to when it was thought that a fetus was becoming “viable” — that it could exist outside the womb. (Whether the Court should honor Blackmun’s dicta here will be discussed in Part III.) It was at this third trimester that a fetus could be protected by law. In the language of Part I, it was then that a baby was finally developing its own “narrative” independent of the mother.

Many were displeased at the sudden decriminalization of abortion coast-to-coast. Writing a dissent, Justice Byron White made the obvious argument — the Court went way beyond the Constitution. “I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.”

In contrast to all the complicated talk of “penumbras” and cobbling together different parts of amendments into some sort of Frankenstein’s Constitutional monster, conservatives said it simply took one amendment to reach the opposite conclusion — the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

As argued by White and countless other conservatives, because abortion isn’t addressed in the Constitution, it should be left to the states to decide. The people elect the political branches to make these sorts of decisions, and we had seen that since the late 1800s, many state legislatures decided to pass abortion prohibitions. If a majority of voters in those states didn’t like those laws, they had the ability, at the next state elections, to vote in new representatives to pass new laws. But they didn’t do that.

Instead, seven unelected guys in robes issued a decree from Washington, and now states across the country had to follow it.

It was a frustrating development for conservatives. Not only did Roe v. Wade spit in the face of social conservatives’ moral position that the unborn have rights and human life should be protected by law, but it was also an unacceptable development for the political conservative. An activist Supreme Court overturned the will of the people as reflected through their state legislatures.

And so, social and political conservatives alike found common cause, working together to promote pro-life values through conservative media, elections, and judicial appointments. As a result, in the 50 years since Roe v. Wade, the precedent has had to withstand many challenges, and abortion-related cases are regularly offered to the Supreme Court. However, rarely has the Court granted a writ of certiorari to hear the kind of case that could roll back the precedent set by Roe. Instead, a lower federal court strikes down these laws and the Supreme Court doesn’t see sufficient cause to hear the appeal.

A notable exception to that pattern is the highest profile abortion case between Roe and this year’s Dobbs v. Jackson (the subject of Part III): 1992’s Planned Parenthood v. Casey. At the heart of the case was Pennsylvania’s Abortion Control Act, which placed several hurdles between a woman and an abortion, including a 24-hour waiting period, the requirement for “informed consent” (a woman must first hear information about the fetus and possible impacts on her health), parental consent if the woman were a minor, and spousal consent. In sum, although Pennsylvania wasn’t allowed to criminalize all abortions, it did try to make them more difficult to get.

The case went to the Supreme Court, and all the work conservatives put into reshaping the Court seemed ready to pay off. By this point, Republican presidents Ronald Reagan and George HW Bush had appointed six justices across three consecutive presidential terms. Meanwhile, Justice White — who, remember, had authored a dissent in Roe — was still on the bench. The hope was that this new Court could defang Roe or maybe even overturn it completely.

But that’s not what happened. In a narrow 5-4 ruling, the Court reaffirmed the “essential holding” of Roe, agreeing that women had the right to abortion before the fetus’s viability but that the state has a legitimate interest in restricting abortion access after viability. However, the Court also accepted more recent science that viability occurred earlier than the third trimester; whereas before the viability line was estimated to be at 28 weeks, more recent empirical data suggested it could be as earlier. Thus, rather than a trimester demarcation, the dividing line became fetal viability at about 24 weeks.

The Court also allowed some parts of the Pennsylvania Abortion Control Act to stand, agreeing that parental consent and a 24-hour waiting period were reasonable requirements. At the same time, the Court rejected “spousal consent” as an unrealistic barrier.

The difference, said the Court, was that the latter placed an “undue burden” on the woman, and it’s this “undue burden” that became the new litmus test of when pre-viability abortion laws were permissible. If a state law was too burdensome for a woman — if it made accessing a pre-viability abortion too difficult — then it would be regarded as unconstitutional. If the law still allowed a woman realistic access to an abortion, then the Court would likely allow it.

It was but the slightest erosion of Roe. On balance, the Griswold and Roe precedents survived into the 21st century. In the meantime, conservatives still worked to achieve a more favorable balance on the Court. During President George W. Bush’s presidency, moderate Justice Sandra Day O’Connor, who in Casey had voted to uphold Roe, was replaced by conservative Samuel Alito. Late in Barack Obama’s second term, when Justice Antonin Scalia passed away, a year-long vacancy followed when Obama’s left-leaning nominee wasn’t given a hearing by the Republican-controlled Senate. Obama’s successor, Donald Trump, was then able to appoint conservative Neil Gorsuch. Later in Trump’s term, moderate Justice Anthony Kennedy, who had also voted to uphold Roe in Casey, retired, and he was replaced by the conservative Brett Kavanaugh. And then, at the end of Trump’s presidency, he was able to replace liberal Ruth Bader Ginsburg with the conservative Amy Coney Barrett.

The bench was reshaped. Since late 2020, the Supreme Court’s ideology has looked like this:

  • Conservatives (6): Chief Justice John Roberts, associate justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett
  • Liberals (3): Associate justices Stephen Breyer (slated to retire, but still on the Court through the end of this term), Sonia Sotomayor, and Elena Kagan

All this conservative bench needed to re-examine Roe was the right case to come to it.

In 2021, that’s what happened. The case was Dobbs v. Jackson Women’s Health Organization. This June, we’re expected to hear the Supreme Court’s ruling, and it might transform abortion law as we know it.

In Part III, we’ll look at the facts of the case, the oral arguments at the Court, and consider what the Court might say. I’ll see you then.

Today’s featured image was pulled from this Youtube video.

11 thoughts on “Abortion, Part II: Abortion and the Law (the “right to privacy” & Roe v. Wade)”

  1. I’d say the court makeup is as follows:
    Two Conservatives: Alito & Thomas
    Three Liberals: Kagan, Sotomayor & Breyer
    Four swing votes: Roberts, Kavanaugh, Gorsuch & Barrett


    1. If you mean in general, I think there’s enough evidence to say Kavanaugh, Gorsuch, and Barrett are conservative. Roberts is closer to the middle, and he gets a lot of attention in the media when he breaks from the other conservative justices, but he votes with the conservatives more than he votes with the liberals.

      If you mean just for this case, however, we’re nearly in agreement. I’m going to get into it more with my next post, but the way I see it, just on Dobbs v. Jackson:
      3 liberals (Breyer, Sotomayor, Kagan)
      3 conservatives (your 2 plus Kavanaugh)
      3 ??? (Roberts, Gorsuch, Barrett)


  2. I would say in general. The swing votes I listed may lean conservative, but they are all willing to vote with either side. The Liberals almost always vote in a unified block, the same with Alito and Thomas.


    1. Ah, yes, by that measurement, conservative justices do more often cross over than do liberal justices, so we can call them “more swingy” than the liberals.

      But that’s just in comparison to the liberals, who aren’t swingy at all. That’s not enough for me to call them “swing justices” anymore than Indiana is currently a “swing state” just because it voted for Obama in 2008. Is Indiana “more swingy” than Massachusetts? Of course. But it’s not a swing state.

      The six conservative justices much more often than not vote together. The most moderate of the six conservatives, Roberts still sides with the most conservative, Thomas, more than 80% of the time, so I’d call that conservative.

      Perhaps the language we could then agree upon is that Roberts and some other conservative are the “median” justices, but they’re still the median justices of a conservative court. Your breakdown of 3 liberals, 2 conservatives, and 4 swing justices we can’t predict implies that it’s still a left-leaning court, which does not read as accurate to me.


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