Commencing in 1942 in skinner v. oklahoma, and most intrepidly in 1973 in roe v. wade, the Supreme Court has secured against unwarranted governmental intrusion a decision fundamental to the course of an individual's life—the decision whether to beget or bear a child. Government action in this area bears significantly on the ability of women, particularly, to plan and control their lives. Official policy on reproductive choice may effectively facilitate or retard women's opportunities to participate in full partnership with men in the nation's social, political, and economic life. Supreme Court decisions concerning birth control, however, have not yet adverted to evolving sex equality-equal protection doctrine. Instead, high court opinions rest dominantly on substantive due process analysis; they invoke basic liberty-autonomy values difficult to tie directly to the Constitution's text, history, or structure.
Skinner marked the first occasion on which the Court referred to an individual's procreative choice as "a basic liberty." The Court invalidated a state statute providing for compulsory sterilization of habitual offenders. The statute applied after a third conviction for a felony "involving moral turpitude," defined to include grand larceny but exclude embezzlement. The decision ultimately rested on an equal protection ground: "Sterilization of those who have thrice committed grand larceny, with immunity for those who are embezzlers, is a clear, pointed, unmistakable discrimination." Justice william o. douglas's opinion for the Court, however, is infused with substantive due process tones: "We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race." Gerald Gunther has noted that, in a period marked by a judicial hands-off approach to economic and social legislation, Skinner stood virtually alone in applying a stringent review standard favoring a "basic liberty" unconnected to a particular constitutional guarantee.
Over two decades later, in griswold v. connecticut (1965), the Court grappled with a state law banning the use of contraceptives. The Court condemned the statute's application to married persons. Justice Douglas's opinion for the Court located protected "zones of privacy" in the penumbras of several specific bill of rights guarantees. The law in question impermissibly intruded on the marriage relationship, a privacy zone "older than the Bill of Rights" and "intimate to the degree of being sacred."
In eisenstadt v. baird (1972) the Court confronted a Massachusetts law prohibiting the distribution of contraceptives, except by a registered pharmacist on a doctor's prescription to a married person. The Court avoided explicitly extending the right announced in Griswold beyond use to distribution. Writing for the majority, Justice william j. brennan rested the decision on an equal protection ground: "whatever the rights of the individual to access to contraceptives may be," the Court said, "the right must be the same for the unmarried and the married alike." Eisenstadt thus carried constitutional doctrine a considerable distance from "the sacred precincts of marital bedrooms" featured in Griswold.
The Court's reasoning in Eisenstadt did not imply that laws prohibiting fornication, because they treat married and unmarried persons dissimilarly, were in immediate jeopardy. Rather, Justice Brennan declined to attribute to Massachusetts the base purpose of "prescrib[ing] pregnancy and the birth of an unwanted child as punishment for fornication."
In 1977, in carey v. population services international, the Court invalidated a New York law prohibiting the sale of contraceptives to minors under age sixteen and forbidding commercial distribution of even nonprescription contraceptives by anyone other than a licensed pharmacist. Justice Brennan reinterpreted the pathmarking precedent. Griswold, he noted, addressed a "particularly "repulsive" intrusion, but "subsequent decisions have made clear that the constitutional protection of individual autonomy in matters of childbearing is not dependent on [the marital privacy] element." Accordingly, " Griswold may no longer be read as holding only that a State may not prohibit a married couple's use of contraceptives. Read in light of [ Eisenstadt and Roe v. Wade ], the teaching of Griswold is that the Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the State."
Roe v. Wade declared that a woman, guided by the medical judgment of her physician, has a fundamental right to abort her pregnancy, a right subject to state interference only upon demonstration of a compelling state interest. The right so recognized, Justice harry l. blackmun wrote for the Court, falls within the sphere of personal privacy recognized or suggested in prior decisions relating to marriage, procreation, contraception, family relationships, child-rearing and education. The "privacy" or individual autonomy right advanced in Roe v. Wade is not explicit in our fundamental instrument of government, Justice Blackmun acknowledged; however, the Court viewed it as "founded in the fourteenth amendment's [and presumably the fifth amendment 's] concept of personal liberty and restrictions upon state action." Justice Blackmun mentioned, too, the district court's view, derived from Justice arthur j. goldberg's concurring opinion in Griswold, that the liberty at stake could be located in the ninth amendment's reservation of rights to the people.
The Texas criminal abortion law at issue in roe v. wade was severely restrictive; it excepted from criminality "only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved." In the several years immediately preceding the Roe v. Wade decision, the Court noted, the trend in the states had been "toward liberalization of abortion statutes." Nonetheless, the Court's rulings in Roe v. Wade and in a companion case decided the same day, Doe v. Bolton (1973), called into question the validity of the criminal abortion statutes of every state, even those with the least restrictive provisions.
The sweeping impact of the 1973 rulings on state laws resulted from the precision with which Justice Blackmun defined the state interests that the Court would recognize as compelling. In the first two trimesters of a pregnancy, the state's interest was confined to protecting the woman's health: during the first trimester, "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician"; in the next three-month stage, the state may, if it chooses, require other measures protective of the woman's health. During "the stage subsequent to viability" (roughly, the third trimester), the state may protect the "potentiality of human life"; at that stage, the state "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."
Sylvia Law has commented that no Supreme Court decision has meant more to women. Wendy Williams has noted that a society intent on holding women in their traditional role would attempt to deny them reproductive autonomy. Justice Blackmun's opinion indicates sensitivity to the severe burdens, mental and physical, immediately carried by a woman unable to terminate an unwanted pregnancy, and the distressful life she and others in her household may suffer when she lacks the physical or psychological ability or financial resources necessary for child-rearing. But Roe v. Wade bypassed the equal protection argument presented for the female plaintiffs. Instead, the Court anchored stringent review to the personal autonomy concept found in Griswold. Moreover, Roe v. Wade did not declare an individual right; in the Court's words, the decision stated a joint right of "the woman and her responsible physician … in consultation."
The 1973 abortion rulings have been called aberrational, extraordinarily activist interventions by a Court reputedly deferential to states ' rights and legislative judgments. John Hart Ely criticized Roe v. Wade as a decision the Court had no business making because freedom to have an abortion "lacks connection with any value the Constitution marks as special."
Archibald Cox described his own view of Roe v. Wadeas "less rigid" then Ely's. He said in a 1975 lecture: "The Court's persistent resort to notions of substantive due process for almost a century attests the strength of our natural law inheritance in constitutional adjudication." Cox considered it "unwise as well as hopeless to resist" that strong tradition. Roe v. Wade nevertheless foundered, in his judgment, because the Court did not (and, he believed, could not) articulate an acceptable "precept of sufficient abstractness." The critical parts of the opinion, he commented, "read like a set of hospital rules and regulations."
Paul Freund expressed a similar concern in 1982. He thought Roe v. Wade epitomized a tendency of the modern Supreme Court (under Chief Justice warren e. burger as well as Chief Justice earl warren) "to specify by a kind of legislative code the one alternative pattern which will satisfy the Constitution, foreclosing further experimentation by Congress or the states." In his view, "a law which absolutely made criminal all kinds and forms of abortion could not stand up; it is not a reasonable accommodation of interests." But the Court "adopted what could be called the medical point of view—making distinctions that turn on trimesters." The Court might have drawn other lines, Freund suggested; it might have adopted an ethical rather than a medical approach, for example, by immunizing abortions, in a manner resembling the American Law Institute proposal, "where the pregnancy was the result of rape or incest, where the fetus was severely abnormal, or where the mother's health, physical or mental, would be seriously impaired by bringing the fetus to term." (The Georgia statutes struck down in Doe v. Bolton, companion case to Roe v. Wade, were patterned on the American Law Institute's model.) If the Court had proceeded that way, Freund commented, perhaps "some of the bitter debate on the issue might … have been averted; at any rate the animus against the Court might have been diverted to the legislative halls."
Animus there has been, in the form of anti-abortion constitutional amendments introduced in Congress in 1973 and each session thereafter; proposals for "human life" legislation, in which Congress, upon the vote of a simple majority, would declare that the Fourteenth Amendment protects the life of "persons" from the moment of conception; and bills to strip the Supreme Court of jurisdiction to decide abortion cases. State legislatures reacted as well, adopting measures aimed at minimizing the impact of the 1973 ruling, including notice and consent requirements, prescriptions for the protection of fetal life, and bans on public expenditures or access to public facilities for abortion.
Some speculated that the 7–2 judgments in the 1973 cases (Justices byron r. white and william h. rehnquist dissented) were motivated in part by population concerns and the specter of unwanted children born to women living in grinding poverty. But in 1977, the Court voted 6–3 against pleas to extend the 1973 rulings to require public assistance for an indigent woman's elective (not medically necessary) abortion. First, in Beal v. Doe, the Court held that the federally established Medicaid program did not require Pennsylvania, as a condition of participation, to fund elective abortions. Second, in maher v. roe the Court ruled that the equal protection clause did not command Connecticut, which furnished Medicaid funds for childbirth, to pay as well for elective abortions. Finally, Poelker v. Doe held that the city of St. Louis did not violate the equal protection clause by providing publicly financed hospital services for childbirth but not for elective abortions.
The impoverished Connecticut women who sought Medicaid assistance in Maher maintained that, so long as their state subsidized childbirth, it could not withhold subsidy for abortion, a far less expensive and, at least in the first trimester, less risky procedure. Stringent equal protection review was required, they urged, because the state had intruded on the "fundamental right" declared in Roe v. Wade. Justice lewis f. powell, writing for the Court, responded that the right recognized in Roe did not require government neutrality as to the abortion decision; it was not a right to make a choice unchecked by substantive government control. Rather, it was a right restraining government from obstructing a woman's access to private sources to effectuate her decision. Because the right Roe v. Wade secured, as explained in Maher, was not impinged upon (and because disadvantageous treatment of needy persons does not alone identify suspect classification requiring close scrutiny), Connecticut's funding refusal could be sustained if it related "rationally" to a "constitutionally permissible" purpose. The policies to encourage childbirth in preference to abortion and to protect potential life supported the Maher regulation. There was, in the Court's view, no issue here, as there had been in Roe v. Wade, of an attempt "to impose [the state's] will by force of law."
Although criticized as irrational in the reproductive choice context, the distinction Justice Powell drew between government carrot and government stick had been made previously in other settings. But in Maher, unlike other cases in which the carrotstick distinction had figured, the state could not justify its funding bar as an attempt to conserve public funds. In comparison to the medical costs of childbirth and the subsequent costs of child-rearing borne by public welfare programs, the costs of elective abortions are insubstantial.
The Maher logic was carried further in harris v. mcrae (1980). The federal law at issue, known as the hyde amendment, excluded even therapeutic (medically needed) abortions from the Medicaid program. In holding, 5–4, that the Hyde Amendment survived constitutional review, the Court reiterated the distinction drawn in Maher. Justice john paul stevens, who had joined the majority in Maher, switched sides in McRae because he discerned a critical difference between elective and therapeutic abortions in the context of the Medicaid program. Congress had established two neutral criteria for Medicaid benefits—financial need and medical need. The pregnant women who challenged the Hyde Amendment met both criteria. By creating an exception to the medical need criterion for the sole purpose of deterring exercise of the right declared "fundamental" in Roe v. Wade, Justice Stevens reasoned, the sovereign had violated its "duty to govern impartially."
Following the bold step in the 1973 abortion rulings, the public funding rulings appear incongruous. The direct, practical effect of the funding rulings will not endure, however, if the legislative trend again turns in the direction discernible at the time of the Roe v. Wade decision. National and state legislators may come to question the wisdom of a childbirth-encouragement policy trained on Medicaid-eligible women, and to comprehend more completely the centrality of reproductive autonomy to a woman's control of her life's course.
May the state require spousal consent to the abortion decision of a woman and her physician when the state itself may not override that decision? In planned parenthood v. danforth (1976) the Court held unconstitutional Missouri's requirement of spousal consent to a firsttrimester abortion. Justice Blackmun, for the six-member majority, declared that the state may not delegate authority to any person, even a spouse, to veto abortions which the state may not proscribe or regulate. A husband, of course, has a vital interest in his wife's pregnancy, Justice Blackmun acknowledged. But the woman's stake is more compelling; therefore the final decision must rest with her.
Although government may not remove the abortion decision from the woman and her physician unless its action demonstrably serves a compelling interest in the woman's health or in potential life, a state may act to ensure the quality of the decision. In Danforth the Court unanimously upheld Missouri's requirement that, prior to a firsttrimester abortion, a woman certify that she has given her informed, uncoerced consent. The abortion decision is stressful, the Court observed; it should be made with "full knowledge of its nature and consequences." A state's authority in this regard, however, is limited. Regulations must be genuinely necessary to secure enlightened consent; they must be designed to inform rather than persuade; and they must not interfere with the physician's counseling discretion.
In Akron v. Akron Center for Reproductive Health (1983) the Court, 6–3, speaking through Justice Powell, struck down a series of regulations that exceeded these limits. One regulation required the physician to tell any woman contemplating an abortion that the unborn child is a human life from conception; to tell her the details of the anatomical characteristics of the fetus; and to enumerate the physical and psychological risks of abortion. The Court held this regulation invalid because it was designed to persuade women to forgo abortions, and because it encroached upon the physician's discretion to decide how best to advise the patient. The Court also invalidated as unnecessary to secure informed, uncoerced consent a twenty-four-hour waiting period between consent and abortion and a requirement that the physician personally convey information to the woman.
The Court has not yet had occasion to pass upon a regulation designed to render the birth-control-through-contraception decision an informed one. In Bolger v. Youngs Drug Product Corporation (1983), however, a majority held that government may not block dissemination of information relevant to that decision. At issue was a federal statute (the Comstock Act) prohibiting the mailing of contraceptive advertisements. All eight participating Justices held the statute unconstitutional as applied to the promotional and informational literature in question because the legislation impermissibly regulated commercial speech. (Earlier, in Carey, the Court had invalidated an analogous state regulation on the same ground.) Five Justices joined in a further ruling that the federal statute violated the right to reproductive autonomy because it denied adults truthful information relevant to informed contraception decisions.
The trimester scheme established in Roe v. Wade has guided the Court's ruling on state regulation of abortion procedures. Under that scheme, the state may not interfere with a physician's medical judgment concerning the place and manner of first-trimester abortions because abortions performed at that stage are less risky than childbirth. Thus in Doe v. Bolton (1973), the companion case to Roe v. Wade, the Court invalidated a Georgia requirement that even first-trimester abortions be performed in a full-service hospital. In Connecticut v. Menillo (1975), however, the Court, per curiam, explicitly relied upon one of the underpinnings of Roe v. Wade, the need for a physician's medical judgment, to uphold a state's conviction of a nonphysician for performing an abortion.
The ban on state regulation of a physician's performance of first-trimester abortions is not absolute; it does not exclude regulation serving an important state health interest without significantly affecting the abortion decision. A unanimous bench in Danforth so indicated in upholding a Missouri regulation requiring maintenance of records of all abortions, for disclosure only to public health officials, for seven years.
Roe v. Wade declared that after the first trimester, because an abortion entails greater risks, the state's interest in women's health could justify "place and manner" regulations even if the abortion decision itself might be affected. However, the Court has attentively scrutinized procedural regulations applicable after the first trimester to determine whether, in fact, they are reasonably related to the protection of the patient's health in light of current medical knowledge. Several regulations have failed to survive the court's scrutiny. In Doe v. Bolton, for example, the Court struck down Georgia's requirement that a hospital committee and two doctors, in addition to the woman's physician, concur in the abortion decision. And in Danforth, the Court struck down a Missouri ban on use, after the first trimester, of saline amniocentesis, then the most widely used second-trimester abortion procedure. Justice Blackmun, for the majority, observed that although safer procedures existed, they were not generally available. Consequently, the regulation in practice would either require the use of more dangerous techniques or compel women to forgo abortions.
The Court had three 1983 encounters with regulations alleged to connect sufficiently with a women's health: Akron, Planned Parenthood Association v. Ashcroft, and Simopoulos v. Virginia. In Akron and Ashcroft, the Court invalidated regulations requiring that abortions, after the first trimester, be performed in licensed acute-care hospitals. Justice Powell, for the majority, said that although current medical knowledge justified this requirement during much of the relevant period, it was unnecessary during the first four weeks of the second trimester; medical advances had rendered abortions safe at that stage even when performed in less elaborate facilities. The hospital requirement significantly burdened a woman's access to an abortion by raising costs substantially; therefore it must be tied more precisely to the period in which it was necessary. In Simopoulos, on the other hand, the Court upheld the limitation of second-trimester abortions to licensed facilities (including nonacute care facilities licensed to perform abortions during the first four to six weeks of the second trimester).
These three decisions indicate the Court's readiness to test specific second-trimester regulations that increase the cost of abortions against advances in medical technology. However, the majority in Akron, although aware that medical advances had rendered early second-trimester abortions safer than childbirth, explicitly refused to extend beyond the first trimester an across-the-board proscription of burdensome "place and manner" regulations.
Only in the last stage of pregnancy, after viability, does the state's interest in potential life become sufficiently compelling to allow the state to forbid all abortions except those necessary to preserve the woman's health. The point at which viability occurs is a medical judgment, the Court said in Roe v. Wade, Danforth, and Colautti v. Franklin (1979); the state may not establish a fixed measure of that point after which nontherapeutic abortions are illegal.
When postviability abortions occur, may the state impose manner requirements in the interest of preserving a viable fetus? The answer appears to be yes, if the regulations are not overbroad. In Danforth the Court invalidated a regulation requiring the physician to exercise due care to preserve the fetus; the regulation was not limited to postviability abortions. In Ashcroft, however, a 5–4 majority sustained a law requiring a second physician to attend a postviability abortion and attempt to preserve the life of the fetus. Even the dissenters agreed that such a regulation could stand if trimmed; they objected to Missouri's regulation because it required a second physician even at abortions using techniques that eliminated any possibility of fetal survival.
Dissenting in Akron, Justice sandra day o'connor, joined by Justices White and Rehnquist, strongly criticized the Court's trimester approach to the regulation of abortion procedures. Roe v. Wade's medical model, she maintained, had been revealed as unworkable in subsequent cases. Advances in medical technology would continue to move forward the point during pregnancy when regulation could be justified as protective of a woman's health, and to move backward the point of viability, when the state could forbid abortions unless they were necessary to preserve the patient's life or health. The Roe v. Wade framework thus impelled legislatures to adjust their laws to changing medical practices, and called upon courts to examine legislative judgments, not as jurists applying "neutral principles" but as "science review boards."
More fundamentally, Justice O'Connor disapproved the interest balancing exhibited by the Court in the 1973 decisions. Throughout pregnancy, she said, the state has "compelling interests in the protection of potential human life and in maternal health." (In Beal the Court had said that the state does have an interest in potential life throughout a pregnancy, but that the interest becomes compelling only in the postviability stage.) Justice O'Connor's analysis, it appears, would permit from the beginning of pregnancy the regulation Roe v. Wade permits only in the final trimester: state proscription of abortion except to preserve a woman's health.
Vagueness doctrine has occasionally figured in the Court's review of state regulation of abortion procedures. In Colautti, the Court invalidated as too vague to supply adequate notice a statute attaching a criminal sanction to a physician's failure to exercise due care to preserve a fetus when there is "sufficient reason to believe that the fetus may be viable." And in Akron, a vagueness handle was employed to strike down a provision mandating the sanitary and "humane" disposal of aborted fetuses.
Minors have constitutional rights, but state authority over children ' srights is greater than over adults'; the state may protect minors because of their immaturity and "peculiar vulnerability," and in recognition of "the importance of the parental role in child rearing." Justice Powell so observed in his plurality opinion in Bellotti v. Baird (1979), and no Justice has disagreed with these general statements. In concrete cases concerning the reproductive autonomy of minors, however, the Court has been splintered.
In Danforth, the Court invalidated, 5–4, a law requiring a parent's consent for most abortions performed on unmarried women under the age of eighteen. The majority did not foreclose a parental consent requirement for minors unable to make the abortion decision in an informed, mature manner.
The Court "continue[d] the inquiry" in Bellotti. Massachusetts required unmarried minors to obtain the consent of both parents or, failing that, the authorization of a state judge "for good cause shown." The Court voted 8–1 to invalidate the law, but split 4–4 on the rationale. Justice Stevens, writing for four Justices, thought the case governed by Danforth. Justice Powell, writing for four other Justices, attempted to provide guidance for state legislators. The abortion decision is unique among decisions facing a minor, he observed; it cannot be postponed until attainment of majority, and if the fetus is carried to term, the new mother will immediately face adult responsibilities. A blanket requirement of parental consent, using age as a proxy for maturity, was too sweeping. Yet the state's interest in ensuring the quality of a minor's abortion decision and in encouraging family participation in that decision would justify a law requiring either parental consent or the determination of an independent decision maker that abortion is in the minor's best interest, or that she is mature enough to decide for herself.
Justice Powell's Bellotti framework, although by 1983 only a two-member view, became, in Akron and Ashcroft, the de facto standard governing consent statutes. In Ashcroft, the Court upheld, 5–4, a statute conditioning a minor's abortion on either parental consent or a juvenile court order. Justice Powell and Chief Justice Burger voted to uphold the provision because, as indicated in Bellotti, the juvenile court must authorize an abortion upon finding that the abortion is in the minor's best interest or that the minor is mature enough to make her own decision. Three other Justices viewed the consent requirement as imposing "no undue burden on any right that a minor [arguably] may have to undergo an abortion." Four Justices dissented because the statute permitted an absolute veto, by parent or judge, "over the decision of the physician and his patient."
In Akron, however, the Court struck down, 6–3, an ordinance requiring all minors under age fifteen to have either parental or judicial consent. Because Akron failed to provide explicitly for a judicial determination of the minor's maturity, Justice Powell and the Chief Justice joined the four Ashcroft dissenters in condemning the consent provision.
With respect to contraception, no clear statement has emerged from the Court on the extent of state and parental authority over minors. In Carey the Court, 7–2, struck down a ban on the distribution of contraceptives to persons under age sixteen. The state sought to justify the measure as a means of deterring sexual activity by minors. There was no majority decision, but six Justices recognized that banning birth control would not in fact deter sexual activity.
May the state require parental consent to the minor's use of contraceptives? At least five Justices, it appears from the Carey decision, would state unequivocally that minors have no right to engage in sexual activity in face of disapproval of the state and of their parents. But it is hardly apparent that any minor-protective interest supports stopping the young from effectuating a decision to use nonhazardous contraceptives when, despite the views or commands of the state and their parents, they do engage in sexual activity.
Arguably, such a provision would serve to preserve parental authority over a decision many people consider a moral one. Danforth indicated that this end is insufficient to justify requiring parental consent for an abortion. Yet, as Justice Powell's Bellotti opinion illustrates, at least some Justices consider the abortion decision unique. Perhaps the issue will remain undecided. For practical reasons, lawmakers may be deterred from conditioning a minor's access to contraceptives on parental consent or notification. Many minors whose parents would wish them to use birth control if they engaged in sexual activity would nevertheless fail to seek parental consent for fear of disclosing their sexual activities. As five Justices indicated in Carey, deliberate state policy exposing minors to the risk of unwanted pregnancies is of questionable rationality.
In Akron, which came to the Court a decade after Roe v. Wade, Justice Powell acknowledged the continuing argument that the Court "erred in interpreting the Constitution." Nevertheless, Akron commenced with a reaffirmation of the 1973 precedent. As Akron itself illustrates, the Court typically has applied Roe v. Wade to restrict state efforts to impede privately financed access to contraceptives and abortions.
It appears safe to predict continued "adher[ence] to stare decisis in applying the principles of Roe v. Wade." But other issues remain beyond the zone of secure prediction. Current opinions do not indicate whether the Court eventually will relate its reproductive autonomy decisions to evolving law on the equal status of men and women. Nor can one forecast reliably how science and population will influence the next decades' legislative and judicial decisions in this area.
The development of a safe, efficient, inexpensive morning-after pill, for example, may alter the reproductive autonomy debate by further blurring distinctions between contraceptives and abortifacients, and by sharply reducing occasions for resort to clinical procedures. A development of this order may diminish in incidence and detail both legislative activity and constitutional review of the kind sparked in the decade following Roe v. Wade. Moreover, it is at least possible that a different question will confront the Court by the turn of the century: If population size becomes a larger governmental concern, legislators may change course, and measures designed to limit childbirth may become the focus of constitutional controversy.
Ruth Bader Ginsburg
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