Abortion and the Constitution

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The story of abortion and the Constitution is in part an episode in the saga of substantive due process. During the period from the early 1900s to the mid-1930s, the Supreme Court employed the principle of substantive due process—the principle that governmental action abridging a person's life, liberty, or property interests must serve a legitimate governmental policy—to invalidate much state and federal legislation that offended the Court's views of legitimate policy, particularly socioeconomic policy. In the late 1930s and early 1940s, the Court, with a new majority composed in part of Justices appointed by President franklin d. roosevelt, reacted to the perceived judicial excesses of the preceding generation by refusing to employ substantive due process to invalidate any state or federal legislation. During the next quarter century—the period between the demise of the "old" substantive due process and the birth of the "new"—the Court did not formally reject the principle of substantive due process; from time to time the Court inquired whether challenged legislation was consistent with the principle. But the Court's substantive due process review was so deferential to the legislation in question as to be largely inconsequential, as, for example, in williamson v. lee optical co. (1955).

Then, in the mid-1960s, the Court changed direction. In griswold v. connecticut (1965) the Court relied on a constitutional right of privacy to rule that a state could not ban the use of contraceptives by married persons. In Eisenstadt v. Baird (1972), on equal protection grounds, it ruled that a state may not ban the distribution of contraceptives to unmarried persons. Despite the rhetoric of the Court's opinions, there is no doubt that both were substantive due process decisions in the methodological (if not the rhetorical) sense: in each case the Court invalidated legislation that offended not any specific prohibition of the Constitution but simply the Court's views of the governmental policies asserted in justification of the states' regulations.

If any doubt remained about whether the Court had returned to substantive due process, that doubt could not survive the Court's decision in roe v. wade (1973), which employed substantive due process in both the rhetorical and the methodological senses. The Court ruled in Roe that the due process clause of the fourteenth amendment prohibited a state from forbidding a woman to obtain an abortion in the period of pregnancy prior to the fetus's viability. Indeed, in Roe the Court applied a particularly strong version of the substantive-due-process requirement: because the criminal ban on abortion challenged in Roe abridged a "fundamental" liberty interest of the woman—specifically, her "privacy" interest in deciding whether to terminate her pregnancy—the Court insisted that the legislation not merely serve a legitimate governmental policy but that it be necessary to serve a compelling state interest. The Court concluded that only after viability was government's interest in protecting the life of the fetus sufficiently strong to permit it to ban abortion.

Obviously the written Constitution says nothing about abortion, and no plausible "interpretation" or "application" of any determinate value judgment fairly attributable to the framers of the Fourteenth Amendment prohibits state government from forbidding a woman to obtain an abortion. In that sense, the Supreme Court's decision in Roe v. Wade is an exemplar of judicial activism. Thus, it was not surprising that the decision—the Court's constitutionalization of the matter of abortion—ignited one of those periodic explosions about the legitimacy of judicial activism in a democracy. (Earlier such explosions attended the Court's activism in the period from Lochner v. New York (1905) to the late 1930s and, more recently, the Court's decision in Brown v. Board of Education (1954) outlawing racially segregated public schooling.)

Many critics of the Court's decision in Roe complained about the judicial activism underlying the decision. In the view of most such critics, Roe v. Wade is simply a contemporary analogue of the almost universally discredited Lochner v. New York (1905), and no one who opposes the activist mode of judicial review exemplified by Lochner can consistently support the activist mode exemplified by Roe. Of course, the force of this argument depends on one's perception of what is wrong with Lochner: the activist mode of review exemplified by it or simply the Court's answer in Lochner to the question of economic liberty addressed there. There is no inconsistency in opposing Lochner's doctrinal conclusions and supporting the activist mode of review exemplified by Roe (and by Lochner). Indeed, one might support the activist mode of review exemplified by Roe and at the same time oppose Roe' s reasoning and result.

A second, distinct criticism of the Court's decision in Roe concerns not the legitimacy of judicial activism but the soundness of the Court's answer to the political-moral question it addressed. Because many persons believe, often on religious grounds, that the Court gave the wrong answer to the question whether state government should be permitted to ban abortion, there was, in the decade following Roe, a vigorous political movement to overrule Roe legislatively—either by taking away the Court's jurisdiction to review state abortion laws, or by constitutional amendment or even simple congressional legislation to the effect that a fetus is a person within the meaning of the Fourteenth Amendment and that therefore state government may ban abortion to protect the life of the fetus. The proposals to limit the jurisdiction of the Court and to overrule Roe by simple congressional legislation, as opposed to constitutional amendment, became subjects of vigorous political and constitutional controversy.

The vigor of the political controversy over abortion cannot be fully comprehended—indeed, the Court's decision to constitutionalize the matter of abortion cannot be fully comprehended—without reference to an important development in American society that gained momentum in the 1970s and 1980s: a fundamental shift in attitudes toward the role of women in society. Many of those who opposed abortion and the "liberalization" of public policy regarding abortion did so as part of a larger agenda based on a "traditional" vision of woman's place and of the family. Many of those on the other side of the issue were seeking to implement a different vision—a feminist vision in which women are free to determine for themselves what shapes their lives will take, and therefore free to determine whether, and when, they will bear children.

Not surprisingly, this basic shift in attitudes toward women—from patriarchal to feminist—has been an occasion for deep division in American society. "Abortion politics" was merely one manifestation of that division (although an important one, to be sure). Thus, a controversy that sometimes seemed on the surface to consist mainly of a philosophical-theological dispute over the question, "When does 'life' begin?," actually involved much more. The complexity of the abortion controversy was dramatically evidenced by the fact that even within the Roman Catholic Church in the United States, which was the most powerful institutional opponent of abortion, attitudes toward abortion were deeply divided precisely because attitudes toward women were deeply divided.

As a consequence of its decision in Roe v. Wade, the Court has had to resolve many troublesome, controversial issues regarding abortion. For example, in planned parenthoodof missouri v. danforth (1976) the Court ruled that a state may not require a woman to obtain the consent of her spouse before she terminates her pregnancy. The Court's rulings with respect to parental-consent and parental-notification requirements have not been a model of clarity, in part because the rulings have been fragmented. In Bellotti v. Baird (1979), for example, an 8–1 decision striking down the parental consent requirement, the majority split 4–4 as to the proper rationale. This much, however, is clear: state government may not require every minor, whatever her level of independence or maturity, to obtain parental consent before she terminates her pregnancy.

Undoubtedly the most controversial issue concerning abortion that the Court has addressed since Roe v. Wade involved abortion funding. In maher v. roe (1977), the Court ruled that a state government that spends welfare funds to subsidize medical expenses incident to pregnancy and childbirth may decline to subsidize medical expenses incident to nontherapeutic abortion even if its sole reason for doing so is to discourage abortion. In a companion case, Poelker v. Doe (1977), the Court ruled that a public hospital that provides medical services relating to pregnancy and childbirth may decline to provide nontherapeutic abortions even if its sole reason for doing so is to discourage abortion. Three years later, in harris v. mcrae (1980), the Court sustained the hyde amendment (to appropriations for the Medicaid program), which prohibited federal funding of abortion, including therapeutic abortion, even though the sole purpose of the amendment was to discourage abortion.

Some commentators have claimed that, notwithstanding the Court's arguments to the contrary, these abortion-funding cases cannot be reconciled with Roe v. Wade. They reason that the Court's decision in Roe can be satisfactorily explained only on the ground that government may not take action predicated on the view that abortion (in the pre-viability period) is morally objectionable, but that the governmental policies sustained in Maher, Poelker, and McRae were all manifestly predicated on just that view. There is probably no final explanation of the Court's decisions in the abortion-funding cases except in terms of judicial Realpolitik—that is, as an effort to retrench in the face of vigorous, often bitter, and widespread criticism of its decision in Roe v. Wade and threats to overrule Roe legislatively.

Its decision, in Roe v. Wade, to constitutionalize the deeply controversial issue of abortion represents one of the Supreme Court's most problematic ventures in recent times. Other moves by the Court were as controversial when initially taken—for example, the Court's choice in Brown v. Board of Education (1954) to begin to disestablish racially segregated public schooling—but few have been so persistently controversial. Whatever their eventual fate, Roe and its progeny have served as an occasion for some of the most fruitful thinking in this century on the proper role of the Supreme Court in American government.

Michael J. Perry

(see also: Anti-abortion Movement; Reproductive Autonomy.)


Ely, John Hart 1973 The Wages of Crying Wolf: A Comment on Roe v. Wade. Yale Law Journal 82:920.

Perry, Michael 1980 Why the Supreme Court was Plainly Wrong in the Hyde Amendment Case: A Brief Comment on Harris v. McRae. Stanford Law Review 32:1113–1128.

Regan, Donald 1979 Rewriting Roe v. Wade. Michigan Law Review 77:1569–1646.

Tribe, Laurence H. 1978 American Constitutional Law. Pages 921–934. Mineola, N.Y.: Foundation Press.

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Abortion and the Constitution