Abortion Rights Case Study Primary Sources

Griswold v. Connecticut (1965)

Building context: The federal Comstock Act, passed in 1873, banned the interstate distribution of “obscene, lewd, or lascivious” materials. The regulations effectively outlawed the dissemination of birth control devices and information. More than 20 states passed laws consistent with the federal law. One such law was a Connecticut statute, adopted in 1879, which banned the use of “any drug, medicinal article or instrument for the purpose of preventing conception.” The law punished people who offered advice or counseling on birth control as well as the offenders who used it.

In the early twentieth century, birth control advocates like Margaret Sanger challenged laws preventing access to conception. Sanger popularized the term “birth control” and founded Planned Parenthood. In the 1960s, Estelle Griswold, the Executive Director of the Planned Parenthood League of Connecticut, together with a physician colleague from Yale School of Medicine, opened a birth control clinic for married couples in New Haven, Connecticut. The clinic was staffed with doctors and nurses who provided counseling on birth control to married women only. Griswold was prosecuted, and the case eventually went to the Supreme Court. Griswold argued that the right to privacy, even though not listed in the Constitution or the Bill of Rights, was protected. It was a natural right protected by the “emanations,” or general ideas, of several other amendments in the Bill of Rights, the Ninth Amendment, and the Due Process Clause of the Fourteenth Amendment. The Court ruled in favor of Griswold, 7-2.

Vocabulary:

• Penumbra: a shadow that covers and includes other things; in this case, an implied right generally derived from other rights explicitly protected or enumerated in the Bill of Rights
• Emanations: feelings or qualities coming from another source

Caption: Justice William O. Douglas

Majority Opinion Excerpt, Justice William O. Douglas

“[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one. … The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The Fourth and Fifth Amendments were described … as protection against all governmental invasions “of the sanctity of a man’s home and the privacies of life.”

We have had many controversies over these penumbral rights of “privacy and repose.” These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.

The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a “governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.”

Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. We deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred…”

Caption: Justice Arthur Goldberg

Concurring Opinion Excerpt, Justice Arthur Goldberg, joined by Chief Justice Earl Warren and Justice William Brennan

“I agree with the Court that Connecticut’s birth control law unconstitutionally intrudes upon the right of marital privacy, and I join in its opinion and judgment. Although I have not accepted the view that “due process,” as used in the Fourteenth Amendment, incorporates all of the first eight Amendments, I do agree that the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights. My conclusion that the concept of liberty is not so restricted, and that it embraces the right of marital privacy, though that right is not mentioned explicitly in the Constitution, is supported both by numerous decisions of this Court, referred to in the Court’s opinion, and by the language and history of the Ninth Amendment. In reaching the conclusion that the right of marital privacy is protected as being within the protected penumbra of specific guarantees of the Bill of Rights, the Court refers to the Ninth Amendment. I add these words to emphasize the relevance of that Amendment to the Court’s holding.

The Court stated many years ago that the Due Process Clause protects those liberties that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental”…”For present purposes, we may and do assume that freedom of speech and of the press — which are protected by the First Amendment from abridgment by Congress — are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”

…

Since 1791 [the Ninth Amendment] has been a basic part of the Constitution which we are sworn to uphold. To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment, which specifically states that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. (emphasis added).”

Concurring Opinion Excerpt, Justice John Marshall Harlan II

“I fully agree with the judgment of reversal, but find myself unable to join the Court’s opinion. The reason is that it seems to me to evince an approach to this case very much like that taken by my Brothers BLACK and STEWART in dissent, namely: the Due Process Clause of the Fourteenth Amendment does not touch this Connecticut statute unless the enactment is found to violate some right assured by the letter or penumbra of the Bill of Rights.”

Caption: Justice Potter Stewart

Dissenting Opinion Excerpt, Justice Potter Stewart, joined by Justice Hugo Black

“Since 1879 Connecticut has had on its books a law which forbids the use of contraceptives by anyone. I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual’s moral, ethical, and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual’s choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine [stupid]. We are asked to hold that it violates the United States Constitution. And that I cannot do.

Comprehension and Analysis Questions:

• What does the Court mean by a “zone of privacy”?
• How does the Bill of Rights support the concept of a right to privacy, according to the majority opinion?
• What do the concurring opinions add to the rationale for ruling in favor of Griswold? What is the significance of the Ninth Amendment? The Fourteenth Amendment?
• How does the dissenting opinion distinguish between an unwise law and the constitutionality of a law?
• How does Griswold v. Connecticut reflect tension in the federalism principle?

 

Roe v. Wade (1973)

Building Context: In 1970, a woman using the pseudonym, or fictional name, Jane Roe filed a lawsuit challenging a Texas law making abortion illegal except by a doctor’s orders to save a woman’s life. In her lawsuit, Roe alleged that the state laws were unconstitutionally vague and abridged her right to privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The court ruled 7-2 in favor of Roe. The Court based its ruling on the precedent of Griswold v. Connecticut (1965), in which the Court stated that the Constitution protected the right to privacy. The Court attempted to balance the right of the mother to privacy with the interest of the state in protecting the life of the fetus. The principle of federalism played a prominent role in the case, since the Court’s decision overturned abortion laws in over 40 states.

For more context on Roe v. Wade, watch this Homework Help video.

Original Source

Caption: Justice Harry Blackmun

Majority Opinion Excerpt, Justice Harry Blackmun

“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 Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate….a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute…

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.

….

To summarize and to repeat:

1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life 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.”

Caption: Justice William Rehnquist

Dissenting Opinion Excerpt, Justice William Rehnquist

“I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not “private” in the ordinary usage of that word. Nor is the “privacy” that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy.

The Court eschews the history of the Fourteenth Amendment in its reliance on the “compelling state interest” test… But the Court adds a new wrinkle to this test by transposing it from the legal considerations associated with the Equal Protection Clause of the Fourteenth Amendment to this case arising under the Due Process Clause of the Fourteenth Amendment. Unless I misapprehend the consequences of this transplanting of the “compelling state interest test,” the Court’s opinion will accomplish the seemingly impossible feat of leaving this area of the law more confused than it found it.”

 

Comprehension and Analysis Questions

• How does the Roe v. Wade decision connect to the penumbras of the First Amendment, the Ninth Amendment, and Fourteenth Amendment?
• Although the Court ruled in Roe’s favor, what limits or qualifiers did the Court list on the role of states and abortion rights?
• Explain the main argument of the dissenting opinion in your own words.
• Why does Justice Rehnquist say that the Court’s decision will “accomplish the seemingly impossible feat of leaving this area of the law more confused than it found it”?
• How does Roe v. Wade illustrate the dynamics and tensions of federalism?

 

Dobbs v. Jackson Women’s Health Organization (2022)

Building context: A 2018 Mississippi law called the “Gestational Age Act” prohibited abortions after 15 weeks of pregnancy, with few exceptions. A doctor with the Jackson Women’s Health Organization, Mississippi’s only licensed abortion clinic, filed a lawsuit in federal district court challenging the law. In June 2022, the court officially announced its decision: it ruled 6-3 that the Constitution does not confer a right to abortion; Roe v. Wade was overruled. The case was again rooted in the principle of federalism, as the Court grappled with the role of state legislatures and fundamental rights.

Vocabulary:

• Casey: a reference to Planned Parenthood v. Casey (1992), which upheld the right to have an abortion because of precedent but allowed the states greater latitude to regulate the procedure
• Stare decisis: the legal doctrine in which courts follow legal precedents in similar cases

Caption: Justice Samuel Alito

Majority Opinion Excerpt, Justice Samuel Alito

“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” …

The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”

Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.

It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Casey, 505 U. S., at 979 (Scalia, J., concurring in judgment in part and dissenting in part). That is what the Constitution and the rule of law demand.

Roe was on a collision course with the Constitution from the day it was decided…. Rather, wielding nothing but “raw judicial power,” Roe, 410 U. S., at 222 (White, J., dissenting), the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people. Casey described itself as calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the State’s interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe. “Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since.” Casey, 505 U. S., at 995–996 (opinion of Scalia, J.). Together, Roe and Casey represent an error that cannot be allowed to stand.”

Caption: Justice Stephen Breyer

Dissenting Opinion Excerpt, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan 

“The majority would allow States to ban abortion from conception onward because it does not think forced childbirth at all implicates a woman’s rights to equality and freedom. Today’s Court, that is, does not think there is anything of constitutional significance attached to a woman’s control of her body and the path of her life. Roe and Casey thought that one-sided view misguided. In some sense, that is the difference in a nutshell between our precedents and the majority opinion. The constitutional regime we have lived in for the last 50 years recognized competing interests, and sought a balance between them. The constitutional regime we enter today erases the woman’s interest and recognizes only the State’s (or the Federal Government’s)…

…..

There was a time,” Casey explained, when the Constitution did not protect “men and women alike.” 505 U. S., at 896. But times had changed. A woman’s place in society had changed, and constitutional law had changed along with it. The relegation of women to inferior status in either the public sphere or the family was “no longer consistent with our understanding” of the Constitution. Id., at 897. Now, “[t]he Constitution protects all individuals, male or female,” from “the abuse of governmental power” or “unjustified state interference.” Id., at 896, 898.

So how is it that, as Casey said, our Constitution, read now, grants rights to women, though it did not in 1868? How is it that our Constitution subjects discrimination against them to heightened judicial scrutiny? How is it that our Constitution, through the Fourteenth Amendment’s liberty clause, guarantees access to contraception (also not legally protected in 1868) so that women can decide for themselves whether and when to bear a child? How is it that until today, that same constitutional clause protected a woman’s right, in the event contraception failed, to end a pregnancy in its earlier stages?

The answer is that this Court has rejected the majority’s pinched view of how to read our Constitution. “The Founders,” we recently wrote, “knew they were writing a document designed to apply to ever-changing circumstances over centuries.” NLRB v. Noel Canning, 573 U.S. 513, 533–534 (2014). Or in the words of the great Chief Justice John Marshall, our Constitution is “intended to endure for ages to come,” and must adapt itself to a future “seen dimly,” if at all. McCulloch v. Maryland, 4 Wheat. 316, 415 (1819). That is indeed why our Constitution is written as it is. The Framers (both in 1788 and 1868) understood that the world changes. So they did not define rights by reference to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framers’ invitation. It has kept true to the Framers’ principles by applying them in new ways, responsive to new societal understandings and conditions.

….

With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.”

Comprehension and Analysis Questions:

• According to the majority opinion, which two Fourteenth Amendment provisions do not apply in this case? How does Justice Alito justify this reasoning?
• What is the proper way to decide abortion regulations, according to the majority opinion?
• Summarize the main arguments of the dissenting opinion in your own words.
• How do the opinions in this case reflect the tension in the principle of federalism?