On January 22, 1973, Roe v. Wade (410 U.S. 113) was decided by the U.S. Supreme Court.
A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribed abortions except on medical advice for the purpose of saving the mother’s life. In Roe, the Court found:
State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy.”
Justice Harry Blackmun (a Nixon nominee), writing for the majority, explained:
This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
Justice Blackmun’s explanation was necessary because the Constitution does not in fact explicitly mention any right of privacy. Thus Justice Blackmun pointed out that he was relying on “a line of decisions … going back perhaps as far as … 1891 [in which] the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution” [Citations omitted].
How could the Court invalidate a statute that did not limit any right enumerated in the Constitution? First the Court made a point of disavowing the doctrine of “substantive due process” expressed in Lochner v. New York, 198 U.S. 45, 76 (1905). (Substantive due process was a theory under which the Court held some statutes unconstitutional on the basis of the substance of legislation, thereby superimposing its judgment over that of the legislature. This doctrine was widely criticized as “countermajoritarian,” and was rejected in principle in most cases after the 1930’s.)
Because Blackmun rejected substantive due process, he had to overturn the Texas statute on other constitutional grounds. He listed a series of cases that found the roots of the right to privacy in the First Amendment, the Fourth and Fifth Amendments, “the penumbras of the Bill of Rights, the Ninth Amendment, and the first section of the Fourteenth Amendment.”
What are these “penumbras,” and how far do they extend beyond the rights specifically enumerated in the Constitution? The concept was first articulated by Justice William Douglas (a Roosevelt nominee) in Griswold v. Connecticut (381 U.S. 479, 1965), a seminal precedent that paved the way for Roe.
In Griswold, appellants filed suit after they were fined for giving “information, instruction, and medical advice to married persons as to the means of preventing conception” in violation of a Connecticut statute.
The Court seemed predisposed to find the statute unconstitutional, but struggled for a rationale. None of the rights specifically delineated in the Constitution had been infringed, and, as indicated above, the Court had long ago vitiated the principle of “substantive due process,” under which it invalidated laws solely on their “wisdom, need, and propriety.” Nevertheless, Justice Douglas found that some rights not specifically listed in the Constitution and in the Bill of Rights were created by implication.
The Court contended that the express guarantees of the Bill of Rights were not meaningful unless those rights had “penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.” In other words, it can be rather difficult pursuing “life, liberty and property” without a little privacy, especially when it comes to regulating ones’ own sex life and family-planning strategy.
Although in Griswold, Douglas recognized a “right of privacy,” his ruling was limited to the right to use contraceptives or advise on their use. Furthermore, his language provided very little guidance on the boundaries or extent of the penumbras.
However, his rationale could be used to expand the right indefinitely, at least to the extent that any other statute “operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.”
In seeking therefore to find a constitutional reason to declare the Texas abortion restrictions unconstitutional, Roe goes beyond the specific limited language of Griswold, yet applies the rationale of Griswold. Specifically, the Court holds that the penumbras of various specific Constitutional guarantees also include another right, namely the right to abortion in the first trimester.
The appellants in Roe used another line of attack besides the right to privacy implied by the penumbras referenced in Griswold. They also appealed to the rights reserved under the Ninth Amendment, which provides, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Note that this language provides absolutely no guidance whatsoever to what those rights might be. Justice Blackmun may have been reluctant to base the Roe decision on the Ninth Amendment for this reason. Moreover, he wanted to make access to abortion subject to some regulation in later months as the fetus becomes more viable.
The Roe Court perforce had to find that the word “person” in the Fourteenth Amendment does not apply to the unborn, at least not in the first trimester. (The Fourteenth Amendment protects the guarantees of the first ten amendments from infringement by the States.)
These issues were not resolved definitively. Because Justices Douglas and Blackmun relied on the very indefinite language of penumbras, zones, and emanations, the door was left open for different factions to contest the decision. The questions of what other aspects of life are protected under the right of privacy, what constitutes a “marriage,” and when a fetus becomes a “person” are still unresolved.