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CRS Annotated Constitution

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Abortion.—Laws limiting or prohibiting abortions in practically all the States, the District of Columbia, and the territories were invalidated by a ruling recognizing a right of personal privacy protected by the due process clause that included a qualified right of a woman to determine whether or not to bear a child. On the basis of its analysis of the competing individual rights and state interests, the Court in Roe v. Wade201 discerned a three–stage balancing of rights and interests extending over the full nine–month term of pregnancy.

“(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,[p.1670]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.”202

A lengthy history of the medical and legal views of abortion apparently convinced the Court that the prohibition of abortion lacked the solid foundation necessary to preserve such prohibitions from constitutional review.203 Similarly, a review of the concept of “person” as protected in the due process clause and in other provisions of the Constitution established to the Court’s satisfaction that the word “person” did not include the unborn, and therefore that the unborn lacked federal constitutional protection.204 Without treating the question in more than summary fashion, the Court announced that “a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist in the Constitution” and that it is “founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action.”205 “This right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”206 Moreover, this right of privacy is “fundamental” and, drawing upon the strict standard of review in equal protection litigation, the Court held that the due process clause required that the regulations limiting this fundamental right may be justified only by a “compelling state interest” and must be narrowly drawn to express only the legitimate state interests at stake.207 Assessing the possible interests of the States, the Court rejected as unsupported in the record and ill–served by the laws in question justifications relating to the promotion of morality and the protection of women from the medical hazards of abortions. The state interest in protecting the life of the fetus was held to be limited by the lack of a social consensus with regard to the issue when life begins. Two valid state interests were recognized, however. “[T]he State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman . . . [and] it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.”’208

[p.1671]

This approach led to the three–stage concept quoted above. Because medical data indicated that abortion prior to the end of the first trimester is relatively safe, the mortality rate being lower than the rates for normal childbirth, and because the fetus has no capability of meaningful life outside the mother’s womb, the State has no “compelling interest” in the first trimester and “the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated.”209 In the intermediate trimester, the danger to the woman increases and the State may therefore regulate the abortion procedure “to the extent that the regulation reasonably relates to the preservation and protection of maternal health,” but the fetus is still not able to survive outside the womb, and consequently the actual decision to have an abortion cannot be otherwise impeded.210 “With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.”211

In a companion case, the Court struck down three procedural provisions of a permissive state abortion statute.212 These required that the abortion be performed in a hospital accredited by a private accrediting organization, that the operation be approved by the hospital staff abortion committee, and that the performing physician’s judgment be confirmed by the independent examination of the patient by two other licensed physicians. These provisions were held not to be justified by the State’s interest in maternal health because they were not reasonably related to that interest.213 And a residency provision was struck down as violating the privileges and immunities clause.214 But a clause making the performance of an abortion a crime except when it is based upon the doctor’s “best clinical judgment that an abortion is necessary” was upheld against vagueness attack and was further held to benefit women seeking[p.1672]abortions inasmuch as the doctor could utilize his best clinical judgment in light of all the attendant circumstances.215

These decisions were reaffirmed and extended when the Court was faced with a restrictive state statute enacted after Roe making access to abortions contingent upon spousal or parental consent and imposing restraints upon methods.216 Striking down all the substantial limitations, the Court held (1) that the spousal consent provision was an attempt by the State to delegate a veto power over the decision of the woman and her doctor that the State itself could not exercise,217 (2) that no significant state interests justified the imposition of a blanket parental consent requirement as a condition of the obtaining of an abortion by an unmarried minor during the first 12 weeks of pregnancy,218 and (3) that a criminal pro[p.1673]vision requiring the attending physician to exercise all care and diligence to preserve the life and health of the fetus without regard to the stage of viability was inconsistent with Roe.219 Sustained were provisions that required the woman’s written consent to an abortion with assurances that it is informed and freely given, and provisions mandating reporting and recordkeeping for public health purposes with adequate assurances of confidentiality. A provision that barred the use of the most commonly used method of abortion after the first 12 weeks of pregnancy was declared unconstitutional since in the absence of another comparably safe technique it did not qualify as a reasonble protection of maternal health and it instead operated to deny the vast majority of abortions after the first 12 weeks.220

In other rulings applying Roe, the Court struck down some requirements and upheld others. A requirement that all abortions performed after the first trimester be performed in a hospital was invalidated as imposing “a heavy, and unnecessary, burden on women’s access to a relatively inexpensive, otherwise accessible, and [at least during the first few weeks of the second trimester] safe abortion procedure.”221 A state may, however, require that abortions be performed in hospitals or licensed outpatient clinics, as long as licensing standards do not “depart from accepted medical practice.”222 Various “informed consent” requirements were struck down as intruding upon the discretion of the physician, and as being aimed at discouraging abortions rather than at informing the pregnant woman’s decision;223 while the state has a legitimate in[p.1674]terest in ensuring that the woman’s consent is informed, the Court explained, it may not demand of the physician “a recitation of an inflexible list of information” unrelated to the particular patient’s health, and, for that matter, may not demand that the physician rather than some other qualified person render the counseling.224 The Court also invalidated a 24–hour waiting period following a woman’s written, informed consent.225 On the other hand, the Court upheld a requirement that tissue removed in clinic abortions be submitted to a pathologist for examination, since the same requirements were imposed for in– hospital abortions and for almost all other in–hospital surgery.226 Also, the Court upheld a requirement that a second physician be present at abortions performed after viability in order to assist in saving the life of the fetus.227

The Court refused to extend Roe to the area of public funding to pay for abortions for the pregnant indigent, holding that neither due process nor equal protection requires government to use public funds for this purpose.228 Due process, the Court held, does not obligate the States to pay the pregnancy–related medical expenses of indigent women, even though both abortion and the right to bear the child to birth are “fundamental” rights.229 But the more critical question was the equal protection restraint imposed when government does provide public funds for medical care to indigents; may it accord differential treatment to abortion and childbirth and prefer the latter? The States may do so, the Court continued, because it is rationally related to a lawful purpose to encourage normal childbirth. The use of the rational basis test required a rejection of the compelling state interest test in the following manner. First, the more severe test was not activated by a classification impacting on a suspect class, neither wealth nor indigency being such a class. Second, and most significant for abortion adjudication, the Court held that state refusal to pay for abortions did not impinge upon a fundamental right. Prior state restrictions which had been invalidated, the Court continued, had created absolute obstacles to the[p.1675]obtaining of an abortion. While a state–created obstacle need not be absolute to be impermissible, it must at a minimum “unduly burden” the right to terminate a pregnancy. To allocate public funds so as to further a state interest in normal childbirth does not create an absolute obstacle to obtaining an abortion nor does it unduly burden the right. The condition—indigency—that is the barrier to getting an abortion was not created by government nor does the State add to the burden that exists already. “An indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut’s decision to fund childbirth; she continues as before to be dependent on private sources for the services she desires. The State may have made childbirth a more attractive alternative, thereby influencing the woman’s decision, but it has imposed no restriction on access to abortions that was not already there.”230 Applying the same principles, the Court held that a municipal hospital could constitutionally provide hospital services for indigent women for childbirth but deny services for abortion.231

In 1983 the Court expressly reaffirmed Roe v. Wade,232 and continued to apply its principles to a variety of state statutes attempting to regulate the circumstances of abortions. The Court’s 1989 decision in Webster v. Reproductive Health Services,233 however, signalled a break with the past even though Roe v. Wade was not overruled.

Webster upheld two aspects of Missouri’s statute regulating abortions: a prohibition on the use of public facilities and employees to perform abortions not necessary to save the life of the mother; and a requirement that a physician, before performing an abortion on a fetus she has reason to believe has reached a gestational[p.1676]age of 20 weeks, make an actual viability determination.234 In two 1990 cases the Court then upheld parental notification requirements. Ohio’s requirement that one parent be notified of a minor’s intent to obtain an abortion, or that the minor use a judicial bypass procedure to obtain the approval of a juvenile court, was approved.235 And, while the Court ruled that Minnesota’s requirement that both parents be notified was invalid standing alone, the statute was saved by a judicial bypass alternative.236

The Webster Court was split in its approach to Missouri’s viability determination requirement, and in its approach to Roe v. Wade. The plurality opinion by Chief Justice Rehnquist, joined in that part by Justices White and Kennedy, was highly critical of Roe, but found no occasion to overrule it. Instead, the plurality’s approach would water down Roe by applying a less stringent standard of review. The viability testing requirement is valid, the plurality contended, because it “permissibly furthers the State’s interest in protecting potential human life.”237 Justice O’Connor concurred in the result because in her view the requirement did not impose “an undue burden” on a woman’s right to an abortion, and Justice Scalia concurred in the result while urging that Roe be overruled outright. That Webster may have changed the focus of debate was illustrated by the Court’s approach to the parental notification issue. A Court majority in Hodgson invalidated Minnesota’s alternative procedure requiring notification of both parents without judicial bypass, not because it burdened a fundamental right, but because it did “not reasonably further any legitimate state interest.”238

Roe was not confronted more directly in Webster because the viability testing requirement, as characterized by the plurality, merely asserted a state interest in protecting potential human life from the point of viability, and hence did not challenge Roe’s trimester framework.239 Nonetheless, a majority of Justices appeared[p.1677]ready to reject a strict trimester approach. The plurality asserted a compelling state interest in protecting human life throughout pregnancy, rejecting the notion that the state interest “should come into existence only at the point of viability;”240 Justice O’Connor repeated her view that the trimester approach is “problematic;”241 and, as mentioned, Justice Scalia would do away with Roe altogether.

Three years later the Court, invoking principles of stare decisis, reaffirmed Roe’s “essential holding,” but restated that holding in terms of undue burden and also abandoned Roe’s reliance on the trimester approach. Roe’s “essential holding,” said the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey,242 has three parts. “First is a recognition of the right of a woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.”

This restatement of Roe’s essentials, recognizing a legitimate state interest in protecting fetal life throughout pregnancy, necessarily eliminated the rigid trimester analysis permitting almost no regulation in the first trimester. Viability still marked “the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions,”243 but less burdensome regulations could be applied before viability. “What is at stake,” the three–Justice plurality asserted, “is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State . . . may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s ex[p.1678]ercise of the right to choose.” Thus, unless an undue burden is imposed, states may adopt measures “designed to persuade [a woman] to choose childbirth over abortion.”244

Application of these principles led the Court to uphold several aspects of Pennslyvania’s abortion control law, in the process overruling precedent, but to invalidate what was arguably the most restrictive provision. Four challenged provisions of the law were upheld: a definition of “medical emergency” controlling exemptions from the Act’s other limitations; recordkeeping and reporting requirements imposed on facilities that perform abortions; an informed consent and 24–hour waiting period requirement; and a parental consent requirment, with possibility for judicial bypass, applicable to minors. Invalidated as an undue burden on a woman’s right to an abortion was a spousal notification requirement.

It was a new alignment of Justices that restated and preserved Roe. Joining Justice O’Connor in a jointly authored opinion adopting and applying Justice O’Connor’s “undue burden” analysis were Justices Kennedy and Souter. Justices Blackmun and Stevens joined parts of the plurality opinion, but dissented from other parts. Justice Stevens would not have abandoned trimester analysis, and would have invalidated the 24–hour waiting period and aspects of the informed consent requirement. Justice Blackmun, author of the Court’s opinion in Roe, asserted that “the right to reproductive choice is entitled to the full protection afforded by this Court before Webster,”245 and would have invalidated all of the challenged provisions. Chief Justice Rehnquist, joined by Justices White, Scalia, and Thomas, would have overruled Roe and upheld all challenged aspects of the Pennsylvania law.

Overruled in Casey were earlier decisions that had struck down informed consent and 24–hour waiting periods.246 Given the state’s legitimate interests in protecting the life of the unborn and the health of the potential mother, and applying “undue burden” analysis, the three–Justice plurality found these requirements permissible. Requiring informed consent for medical procedures is both commonplace and reasonable, and, in the absence of any evidence of burden, the state could require that information relevant to informed consent be provided by a physician rather than an assistant. The 24–hour waiting period was approved both in theory (it[p.1679]being reasonable to assume “that important decisions will be more informed and deliberate if they follow some period of reflection”) and in practice (in spite of “troubling” findings of increased burdens on poorer women who must travel significant distances to obtain abortions, and on all women who must twice rather than once brave harassment by anti–abortion protesters).247 The Court also upheld application of an additional requirement that women under age 18 obtain the consent of one parent or avail themselves of a judicial bypass alternative.

On the other hand, the Court248 distinguished Pennsylvania’s spousal notification provision as constituting an undue burden on a woman’s right to choose an abortion. “A State may not give to a man the kind of dominion over his wife that parents exercise over their children” (and that men exercised over their wives at common law).249 Although there was an exception for a woman who believed that notifying her husband would subject her to bodily injury, this exception was not broad enough to cover other forms of abusive retaliation, e.g., psychological intimidation, bodily harm to children, or financial deprivation. To require a wife to notify her husband in spite of her fear of such abuse would unduly burden the wife’s liberty interest as an individual to decide whether to bear a child.

Supplement: [P. 1679, add to text at end of section:]

The passage of various state laws restricting so– called “partial birth abortions” gave observers an opportunity to see if the “undue burden” standard was in fact likely to lead to a major retrenchment in abortion regulation. In Stenberg v. Carhart,5 the Court reviewed a Nebraska statute which forbade “partially delivering vaginally a living unborn child before killing the unborn child and completing the delivery.” The Court noted that the prohibition appeared to apply to abortions performed throughout a pregnancy, and that the lone exception was for an abortion necessary to preserve the life of the mother.6 Thus the statute brought into question both the distinction maintained in Casey between pre–viability and post–viability abortions, and the oft–repeated language from Roe, which provides that abortion restrictions must contain exceptions for situations where there is a threat to either the life or health of a pregnant woman.7 The Court, however, reaffirmed these central tenets of its abortion decisions, striking down the Nebraska law because its possible application to pre–viability abortions was too broad and the exception for threats to the life of the mother was too narrow.

Privacy: Its Constitutional Dimensions.—Roe v. Wade and its progeny could have had significant effect outside the abortion area in the general area of personal liberties, inasmuch as the revitalization of substantive due process in the noneconomic regulation area, overlaid with the compelling state interest test, could call into question many governmental restraints upon the person. Roe’s emphasis upon the privacy rationale seemed to presage an active judicial role in defining and protecting the interests of persons “to be let alone.” Those developments have not occurred, however, and the cases reflect the intention of the Court to curb the expansion of any doctrinal ramifications flowing beyond the abortion cases.

Privacy has in a number of cases been identified as a core value of the Bill of Rights,250 but it was not until Griswold v. Connecticut251 that an independent right of privacy, derived from the confluence of several provisions of the Bill of Rights or discovered in the “penumbras” of these provisions, was expounded by the[p.1680]Court and actually used to strike down a governmental restraint. The abortion cases extended Griswold many degrees in several respects. First, the cases removed any lingering possibility that the right is a marital one that depends upon that relationship.252 Second, the right of privacy was denominated a liberty which found its source and its protection in the due process clause of the Fourteenth Amendment.253 Third, by designating the right as a “fundamental” right, the Court required a governmental restraint to be justified by a “compelling state interest.” Necessary to assessment of the effect of this development is a close analysis of the limits of the right thus protected as well as of its contents.

“The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, . . . 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. . . . These decisions make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ Palko v. Connecticut, 302 U.S. 319, 325 (1937) , are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967) ; procreation, Skinner v. Oklahoma, 316 U.S. 535, 541– 42 (1942); contraception, Eisenstadt v. Baird, 405U.S. at 453–54 405U.S. at 453–54; id. at 460, 463–65 (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944) ; and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925) , Meyer v. Nebraska, supra.”254 In the pornography cases decided later in the same Term, the Court denied the existence of any privacy right of customers to view unprotected material in commercial establishments, repeating the above descriptive language from Roe, and saying further: “the constitutionally protected privacy of family, marriage, motherhood, procreation, and child rearing is not just concerned with a particular place, but with a protected intimate relationship. Such protected privacy extends to the doctor’s office, the hospital, the hotel room, or as otherwise required to safeguard the right to intimacy involved.”255

[p.1681]

What is apparent from the Court’s approach in these cases is that its concept of privacy is descriptive rather than analytical, making difficult an assessment of the potential of the doctrine. Privacy as a concept appears to encompass at least two different but related aspects. First, it relates to the right or the ability of individuals to determine how much and what information about themselves is to be revealed to others. Second, it relates to the idea of autonomy, the freedom of individuals to perform or not perform certain acts or subject themselves to certain experiences.256 Governmental commands to do or not to do something may well implicate one or the other or both of these aspects, and judicial decision about the validity of such governmental commands must necessarily be informed by use of an analytical framework balancing the governmental interests against the individual interests in maintaining freedom in one or both aspects of privacy. That framework cannot now be constructed on the basis of the Court’s decided cases.

Griswold v. Connecticut,257 voiding a state statute proscribing the use of contraceptives, seems primarily to be based upon a judicial concept of privacy flowing from the first aspect of privacy described above. That is, the predominant concern flowing through the several opinions is the threat of forced disclosure about the private and intimate lives of persons through the pervasive surveillance and investigative efforts that would be needed to enforce such a law; moreover, the concern was not limited to the outward pressures upon the confines of such provisions as the Fourth Amendment’s search and seizure clause, but extended to techniques that would have been within the range of permissible investigation. Subsequent cases, however, have returned to Fourth and Fifth Amendment principles to regulate official invasions of privacy.258

For example, in United States v. Miller,259 the Court evaluated in Fourth Amendment terms the right of privacy of depositors in restricting Government access to their cancelled checks maintained by the bank as required by the Bank Secrecy Act. The cancelled checks, the Court held, were business records of the bank in which the depositors had no expectation of privacy and therefore no[p.1682]Fourth Amendment standing to challenge government legal process directed to the bank, and this status was unchanged by the fact that the banks kept the records under government mandate in the first place. And in Fisher v. United States,260 the Court denied that the Fifth Amendment’s self–incrimination clause operated in any way to prevent the IRS from obtaining by summons income tax records prepared by accountants and in the hands of either the taxpayer or his attorney, no matter how incriminating, because the Amendment only protects against compelled testimonial self–incrimination. “[T]he Court has never suggested that every invasion of privacy violates the privilege. Within the limits imposed by the language of the Fifth Amendment, which we necessarily observe, the privilege truly serves privacy interests; but the Court has never on any ground, personal privacy included, applied the Fifth Amendment to prevent the otherwise proper acquisition or use of evidence which, in the Court’s view, did not involve compelled testimonial self– incrimination of some sort.”261 Further, “[w]e cannot cut the Fifth Amendment completely loose from the moorings of its language, and make it serve as a general protector of privacy—a word not mentioned in its text and a concept directly addressed in the Fourth Amendment.”262 The First Amendment itself affords some limitation upon governmental acquisition of information but here again the gravamen is a violation of speech or association or the like concomitant with exposure of personal information, and not exposure itself.263

A cryptic opinion in Whalen v. Roe264 may indicate the Court’s willingness to recognize privacy interests as independent constitutional rights. At issue was a state’s pervasive regulation of prescription drugs that could be abused, and the centralized recordkeeping through computers of all such prescriptions identifying the patients. The scheme was attacked on the basis that it invaded privacy interests against disclosure and privacy interests involving autonomy of persons in choosing whether to have the medication. The Court appeared to agree that both interests are protected, but because the scheme was surrounded with extensive security protection against disclosure beyond that necessary to achieve the purposes of the program it was not thought to “pose a sufficiently[p.1683]grievous threat to either interest to establish a constitutional violation.”265

Not the method of enforcement but the fact of enforcement was the issue in Roe and Doe. That is, the power of the State to deny women all access to abortions, the power to proscribe effectuation of the will and desire of women to terminate pregnancy, was at issue. Because the Court determined that the will and desire constituted a protected “liberty,” the State was required to justify its proscription by a compelling interest. Once the question of the personhood of the fetus was resolved, the Court confronted in effect only two asserted state interests. Protecting the health of the mother was recognized as a valid interest, the Court thereby departing from a laissez faire “free will” approach to individual autonomy. A state interest in morality was mentioned by the Court, not because the State had raised it, but simply to defer deciding it; however, the noted morality issue involved not the morality of abortion, but instead the promotion of sexual morality through making abortion unavailable.266

Stanley v. Georgia,267 holding that government may not make private possession of obscene materials for private use a crime, approached a judicial recognition of the autonomy aspect of privacy. True it is that the possession there was in Stanley’s home, a fact heavily relied on by the Court, but the police had lawfully invaded his privacy upon the authority of a valid warrant and a subsidiary Fourth Amendment issue that was available for decision was passed over in favor of a broader resolution. Inasmuch as the materials were obscene, they were outside the scope of First Amendment protection. But the Court premised its decision upon one’s protected right to receive what information and ideas he wished and upon one’s protected “right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s[p.1684]privacy.”268 These rights were held superior to the interests Georgia asserted to override them. That is, first, the State was held to have no authority to protect an individual’s mind from the effects of obscenity, to promote the moral content of one’s thoughts. Second, the State’s assertion that exposure to obscenity may lead to deviant sexual behavior was rejected on the basis of a lack of empirical support and, more important, on the basis that less intrusive deterrents were available. Thus, a right to be free of governmental regulation in this area was clearly recognized.

Stanley was quickly restricted to its facts, to possession of pornography in the home.269 But in its important reconsideration of and reaffirmation of governmental interests in the control of pornography, the Court went beyond this restriction and recognized governmental interests that included the promotion of public morality, protection of the individual’s psychological health, and improving the quality of life. “It is argued that individual ‘free will’ must govern, even in activities beyond the protection of the First Amendment and other constitutional guarantees of privacy, and that government cannot legitimately impede an individual’s desire to see or acquire obscene plays, movies, and books. We do indeed base our society on certain assumptions that people have the capacity for free choice. Most exercises of individual free choice—those in politics, religion, and expression of ideas—are explicitly protected by the Constitution. Totally unlimited play for free will, however, is not allowed in our or any other society. . . . [Many laws are enacted] to protect the weak, the uninformed, the unsuspecting, and the gullible from the exercise of their own volition.” Furthermore, continued the Court: “Our Constitution establishes a broad range of conditions on the exercise of power by the States, but for us to say that our Constitution incorporates the proposition that conduct involving consenting adults is always beyond state regulation is a step we are unable to take. . . . The issue in this context goes beyond whether someone, or even the majority, considers the conduct depicted as ‘wrong’ or ‘sinful.’ The States have the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize . . . the States’ ‘right . . . to maintain a decent society.”’270

[p.1685]

Stanley was further distinguished in Bowers v. Hardwick as being “firmly grounded in the First Amendment.”271 Thus, the Court held in Bowers, there is no protected right to engage in homosexual sodomy in the privacy of the home, and Stanley did not implicitly create protection for “voluntary sexual conduct [in the home] between consenting adults.”272

Evidently, then, the fundamental right of privacy that is protected by the due process clause is one functionally related to “family, marriage, motherhood, procreation, and child rearing.”273 Even so limited, the concept can have numerous significant aspects occasioning major constitutional decisions. Thus, in Carey v. Population Services International,274 the Griswold–Baird line of cases was significantly extended so as to make the “decision whether or not to beget or bear a child” a “constitutionally protected right of privacy” interest that government may not forbid or burden without justifying the limitation by a compelling state interest and by a regulation narrowly drawn to express only that interest or interests. This “constitutional protection of individual autonomy in matters of childbearing” led the Court to invalidate a state statute that banned the distribution of contraceptives to adults except by licensed pharmacists and that forbade any person to sell or distribute contraceptives to a minor under 16.275 The limitation of the number of outlets to adults “imposes a significant burden on the right of the individuals to use contraceptives if they choose to do so” and was unjustified by any interest put forward by the State. The prohibition on sale to minors was judged not by the compelling state interest test, but instead by inquiring whether the restrictions serve “any significant state interest . . . that is not present in the case of an adult.” This test is “apparently less rigorous” than the test used with adults, a distinction justified by the greater governmental latitude in regulating the conduct of children and the lesser capability of children in making important decisions. The at[p.1686]tempted justification for the ban was rejected. Doubting the permissibility of a ban on access to contraceptives to deter minors’ sexual activity, the Court even more doubted, because the State presented no evidence, that limiting access would deter minors from engaging in sexual activity.276

In Bowers v. Hardwick,277 the Court by 5–4 vote roundly rejected the suggestion that the privacy cases protecting “family, marriage, or procreation” extend any protection for private consensual homosexual sodomy,278 and also rejected the more comprehensive claim that the cases “stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription.”279 Moreover, the Court refused to create any such fundamental right. Justice White’s opinion for the Court in Hardwick sounded the same opposition to “announcing rights not readily identifiable in the Constitution’s text” that underlay his dissents in the abortion cases.280 In addition, the Court concluded that rationales relied upon in the earlier privacy cases do not extend “a fundamental right to homosexuals to engage in acts of consensual sodomy.”281 Heavy reliance was placed on the fact that prohibitions on sodomy have “ancient roots,” and on the fact that half of the states still prohibit the practices.282 The privacy of the home does not immunize all behavior from state regulation, and the Court was “unwilling to start down [the] road” of im[p.1687]munizing “voluntary sexual conduct between consenting adults.”283 Justice Blackmun’s dissent was critical of the Court’s phrasing of the issue as one of homosexual sodomy,284 and asserted that the basic issue was the individual’s privacy right “to be let alone.” The privacy cases are not limited to protection of the family and the right to procreation, he asserted, but instead stand for the broader principle of individual autonomy and choice in matters of sexual intimacy.285

Similarly, the extent to which governmental regulation of the sexual activities of minors is subject to constitutional scrutiny is of great and continuing importance.286 Analysis of these questions is hampered because the Court has not told us what about the particular facets of human relationships—marriage, family, procreation—gives rise to a protected liberty and what does not, and how indeed these factors vary significantly enough from other human relationships to result in differing constitutional treatment. The Court’s observation in the abortion cases “that only personal rights that can be deemed ‘fundamental’ are included in this guarantee of personal privacy,” occasioning justification by a “compelling” interest,287 little elucidates the answers inasmuch as in the same Term the Court significantly restricted its equal protection doctrine of “fundamental” interests—“compelling” interest justification by holding that the “key” to discovering whether an interest or a relationship is a “fundamental” one is whether it is “explicitly or implicitly guaranteed by the Constitution.”288


Footnotes

201 Roe v. Wade, 410 U.S. 113 (1973) . A companion case was Doe v. Bolton, 410 U.S. 179 (1973) . The opinion by Justice Blackman was concurred in by Justices Douglas, Brennan, Stewart, Marshall, and Powell, and Chief Justice Burger. Justices White and Rehnquist dissented, id. at 171, 221, arguing that the Court should follow the traditional due process test of determining whether a law has a rational relation to a valid state objective and that so judged the statute was valid. Justice Rehnquist was willing to consider an absolute ban on abortions even when the mother’s life is in jeopardy to be a denial of due process, id. at 173, while Justice White left the issue open. Id. at 223.
202 Roe v. Wade, 410 U.S. 113, 164–65 (1973) .
203 Id. at 129–47.
204 Id. at 156–59.
205 Id. at 152–53.
206 Id.
207 Id. at 152, 155–56. The “compelling state interest” test in equal protection cases is reviewed infra, pp. 1809–14.
208 410U.S. at 147–52, 159–63 410U.S. at 147–52, 159–63.
209 Id. at 163.
210 Id.
211 Id. at 163–164. A fetus becomes “viable” when it is “potentially able to live outside the mother’s womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” Id. at 160 (footnotes omitted).
212 Doe v. Bolton, 410 U.S. 179 (1973) .
213 Id. at 192–200.
214 Id. at 200. The clause is Article IV, Sec. 2. See supra, pp. 867–77.
215 410U.S. at 191–92 410U.S. at 191–92. “[T]he medical judgment may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well–being of the patient. All these factors may relate to health.” Id. at 192. Presumably this discussion applies to the Court’s ruling in Roe holding that even in the third trimester the woman may not be forbidden to have an abortion if it is necessary to preserve her health as well as her life, 410U.S. at 163–64 410U.S. at 163–64, a holding which is unelaborated in the opinion. See also United States v. Vuitch, 402 U.S. 62 (1971) .
216 Planned Parenthood v. Danforth, 428 U.S. 52 (1976) . See also Bellotti v. Baird, 443 U.S. 622 (1979) (parental consent to minor’s abortion); Colautti v. Franklin, 439 U.S. 379 (1979) (imposition on doctor determination of viability of fetus and obligation to take life– saving steps); Singleton v. Wulff, 428 U.S. 106 (1976) (standing of doctors to litigate right of patients to Medicaid–financed abortions); Bigelow v. Virginia, 421 U.S. 809 (1975) (ban on newspaper ads for abortions); Connecticut v. Menillo, 423 U.S. 9 (1975) (state ban on performance of abortion by “any person” may constitutionally be applied to prosecute nonphysicians performing abortions).
217 Planned Parenthood v. Danforth, 428 U.S. 52, 67–72 (1976) . The Court recognized the husband’s interests and the state interest in promoting marital harmony. But the latter was deemed not served by the requirement, and, since when the spouses disagree on the abortion decision one has to prevail, the Court thought the person who bears the child and who is the more directly affected should be the one to prevail. Justices White and Rehnquist and Chief Justice Burger dissented. Id. at 92.
218 Id. at 72–75. Minors have rights protected by the Constitution, but the States have broader authority to regulate their activities than those of adults. Here, the Court perceived no state interest served by the requirement that overcomes the woman’s right to make her own decision; it emphasized that it was not holding that every minor, regardless of age or maturity, could give effective consent for an abortion. Justice Stevens joined the other dissenters on this part of the holding. Id. at 101. In Bellotti v. Baird, 443 U.S. 622 (1979) , eight Justices agreed that a parental consent law, applied to a mature minor, found to be capable of making, and having made, an informed and reasonable decision to have an abortion, was void but split on the reasoning. Four Justices would hold that neither parents nor a court could be given an absolute veto over a mature minor’s decision, while four others would hold that if parental consent is required the State must afford an expeditious access to court to review the parental determination and set it aside in appropriate cases. In H. L. v. Matheson, 450 U.S. 398 (1981) , the Court upheld, as applied to an unemancipated minor living at home and dependent on her parents, a statute requiring a physician, “if possible,” to notify the parents or guardians of a minor seeking an abortion. The decisions leave open a variety of questions, addressed by some concurring and dissenting Justices, dealing with when it would not be in the minor’s best interest to avoid notifying her parents and with the alternatives to parental notification and consent. In two 1983 cases the Court applied the Bellotti v. Baird standard for determining whether judicial substitutes for parental consent requirements permit a pregnant minor to demonstrate that she is sufficiently mature to make her own decision on abortion. Compare City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) (no opportunity for case–by–case determinations); with Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476 (1983) (adequate individualized consideration).
219 Planned Parenthood v. Danforth, 428 U.S. 52, 81–84 (1976) . A law requiring a doctor, subject to penal sanction, to determine if a fetus is viable or may be viable and to take steps to preserve the life and health of viable fetuses was held to be unconstitutionally vague. Colautti v. Franklin, 439 U.S. 379 (1979) .
220 Planned Parenthood v. Danforth, 428 U.S. 52, 75–79 (1976) .
221 City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 438 (1983) ; Accord, Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476 (1983) . The Court in Akron relied on evidence that “dilation and evacuation” (D&E) abortions performed in clinics cost less than half as much as hospital abortions, and that common use of the D&E procedure had “increased dramatically” the safety of second trimester abortions in the 10 years since Roe v. Wade. 462U.S. at 435–36 462U.S. at 435–36.
222 Simopoulos v. Virginia, 462 U.S. 506, 516 (1983) .
223 City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 444–45 (1983) ; Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) .
224 City of Akron, 462 U.S. 416, 448–49 (1983) .
225 City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 450–51 (1983) . But see Hodgson v. Minnesota, 497 U.S. 417 (1990) (upholding a 48–hour waiting period following notification of parents by a minor).
226 Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476, 486–90 (1983) .
227 Id. at 482–86, 505.
228 Maher v. Roe, 432 U.S. 464 (1977) ; Harris v. McRae, 448 U.S. 297 (1980) . See also Beal v. Doe, 432 U.S. 438 (1977) (states are not required by federal law to fund abortions); Harris v. McRae, supra, at 306–11 (same). The state restriction in Maher supra at 466, applied to nontheraputic abortions, whereas the federal law barred funding for most medically necessary abortions as well, a distinction the Court deemed irrelevant, Harris, at supra, 323, although it provided Justice Stevens with the basis for reaching different results. Id. at 349 (dissenting).
229 Maher, 432U.S. at 469 432U.S. at 469 & n.5; Harris, 448U.S. at 312–18 448U.S. at 312–18.
230 Maher, 432U.S. at 469–74 432U.S. at 469–74 (the quoted sentence is at 474); Harris, 448U.S. at 321–26 448U.S. at 321–26. Justices Brennan, Marshall, and Blackmun dissented in both cases and Justice Stevens joined them in Harris.
231 Poelker v. Doe, 432 U.S. 519 (1977) .
232 City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 419–20 (1983) . In refusing to overrule Roe v. Wade, the Court merely cited the principle of stare decisis. Justice Powell’s opinion of the Court was joined by Chief Justice Burger, and by Justices Brennan, Marshall, Blackmun, and Stevens. Justice O’Connor, joined by Justices White and Rehnquist, dissented, voicing disagreement with the trimester approach and suggesting instead that throughout pregnancy the test should be the same: whether state regulation constitutes “unduly burdensome interference with [a woman’s] freedom to decide whether to terminate her pregnancy.” 462U.S. at 452, 461 462U.S. at 452, 461. In the 1986 case of Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) , Justice White, joined by Justice Rehnquist, advocated overruling of Roe v. Wade, Chief Justice Burger thought Roe v. Wade had been extended to the point where it should be reexamined, and Justice O’Connor repeated misgivings expressed in her Akron dissent.
233 492 U.S. 490 (1989) .
234 The Court declined to rule on several other aspects of Missouri’s law, including a preamble stating that life begins at conception, and a prohibition on the use of public funds to encourage or counsel a woman to have a nontherapeutic abortion.
235 Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990) .
236 Hodgson v. Minnesota, 497 U.S. 417 (1990) .
237 492U.S. at 519–20 492U.S. at 519–20. Dissenting Justice Blackmun, joined by Justices Brennan and Marshall, argued that this “permissibly furthers” standard “completely disregards the irreducible minimum of Roe . . . that a woman has a limited fundamental constitutional right to decide whether to terminate a pregnancy,” and instead balances “a lead weight” (the State’s interest in fetal life) against a “feather” (a woman’s liberty interest). Id. at 555, 556 n.11.
238 497U.S. at 450 497U.S. at 450.
239 492U.S. at 521 492U.S. at 521. Concurring Justice O’Connor agreed that “no decision of this Court has held that the State may not directly promote its interest in potential life when viability is possible.” Id. at 528.
240 Id. at 519.
241 Id. at 529. Previously, dissenting in City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 458 (1983) , Justice O’Connor had suggested that the Roe trimester framework “is clearly on a collision course with itself. As the medical risks of various abortion procedures decrease, the point at which the State may regulate for reasons of maternal health is moved further forward to actual childbirth. As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception.”
242 112 Ct. 2791, 2804 (1992).
243 Id. at 2811.
244 Id. at 2821.
245 Id. at 2844.
246 City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) (invalidating “informed consent” and 24–hour waiting period); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) (invalidating informed consent requirement).
247 112 S. Ct. at 2835.
248 The plurality Justices were joined in this part of their opinion by Justices Blackmun and Stevens.
249 Id. at 2831.
250 E.g., the Fourth Amendment.
251 381 U.S. 479 (1965) .
252 In Eisenstadt v. Baird, 405 U.S. 438 (1972) , the court had declined to extend the Griswold principle to the unmarried on privacy grounds, relying on an equal protection analysis instead.
253 Roe v. Wade, 410 U.S. 113, 153 (1973) . See id. at 167–71 (Justice Stewart concurring). Justice Douglas continued to deny that substantive due process is the basis of the decisions. Doe v. Bolton, 410 U.S. 179, 209, 212 n.4 (1973) (concurring).
254 Roe v. Wade, 410 U.S. 113, 152 (1973) .
255 Paris Adult Theatre v. Slaton, 413 U.S. 49, 66 n.13 (1973) .
256 Whalen v. Roe, 429 U.S. 589, 598–600 (1977) .
257 381 U.S. 479 (1965) .
258 E.g., California Bankers Ass’n v. Schultz, 416 U.S. 21 (1974) . See also Laird v. Tatum, 408 U.S. 1 (1972) ; United States v. United States District Court, 407 U.S. 297 (1972) ; United States v. Dionisio, 410 U.S. 1 (1973) ; Zurcher v. Stanford Daily, 436 U.S. 547 (1978) .
259 425 U.S. 435 (1976) . See also Fisher v. United States, 425 U.S. 391, 401 (1976) ; Paul v. Davis, 424 U.S. 693, 712–13 (1976) ; United States v. Bisceglia, 420 U.S. 141 (1975) .
260 425 U.S. 391 (1976) .
261 Id. at 399.
262 Id. at 401.
263 See Buckley v. Valeo, 424 U.S. 1, 60–82 (1976) ; Whalen v. Roe, 429 U.S. 589, 601 n.27, 604 n.32 (1977); United States v. Miller, 425 U.S. 435, 444 n.6 (1976) . The Court continues to reserve the question of the “[s]pecial problems of privacy which might be presented by subpoena of a personal diary.” Fisher v. United States, 425 U.S. 391, 401 n.7 (1976) .
264 429 U.S. 589 (1977) .
265 Id. at 598–604. The Court cautioned that it had decided nothing about the privacy implications of the accumulation and disclosure of vast amounts of information in data banks. Safeguarding such information from disclosure “arguably has its roots in the Constitution,” at least “in some circumstances,” the Court seemed to indicate. Id. at 605. Compare id. at 606 (Justice Brennan concurring). What the Court’s careful circumscription of the privacy issue through balancing does to the concept is unclear after Nixon v. Administrator of General Services, 433 U.S. 425, 455–65 (1977) , but note the dissents. Id. at 504, 525–36 (Chief Justice Burger), and 545 n.1 (Justice Rehnquist).
266 Roe v. Wade, 410 U.S. 113, 148 (1972) . Additionally, if the purpose of the statute was to deter illicit sexual conduct, the law was overbroad since it included both unmarried and married women. This morality rationale also fell afoul of overinclusion and underinclusion in Eisenstadt v. Baird, 405 U.S. 438, 477–50 (1972) .
267 394 U.S. 557 (1969) .
268 Id. at 564–65.
269 United States v. Reidel, 402 U.S. 351, 354–56 (1971) ; United States v. Thirty–seven Photographs, 402 U.S. 363, 375–76 (1971) .
270 Paris Adult Theatre v. Slaton, 413 U.S. 49, 57–63, 63–64, 68–69 (1973) ; and see id. at 68 n.15.
271 478 U.S. 186, 195 (1986) .
272 478U.S. at 195–96 478U.S. at 195–96. Dissenting Justice Blackmun challenged the Court’s characterization of Stanley, suggesting that it had rested as much on the Fourth as on the First Amendment, and that “the right of an individual to conduct intimate relationships in . . . his or her own home [is] at the heart of the Constitution’s protection of privacy.” Id. at at 207–08.
273 Id. at 66 n.13. See also Paul v. Davis, 424 U.S. 693, 713 (1976) .
274 431 U.S. 678 (1977) .
275 Id. at 684–91. The opinion of the Court on the general principles drew the support of Justices Brennan, Stewart, Marshall, Blackmun, and Stevens. Justice White concurred in the result in the voiding of the ban on access to adults while not expressing an opinion on the Court’s general principles. Id. at 702. Justice Powell agreed the ban on access to adults was void but concurred in an opinion significantly more restrained than the opinion of the Court. Id. at 703. Chief Justice Burger, id. at 702, and Justice Rehnquist, id. at 717, dissented.
276 Id. at 691–99. This portion of the opinion was supported by only Justices Brennan, Stewart, Marshall, and Blackmun. Justices White, Powell, and Stevens concurred in the result, id. at 702, 703, 712, each on more narrow grounds than the plurality. Again, Chief Justice Burger and Justice Rehnquist dissented. Id. at 702, 717.
277 478 U.S. 186 (1986) . The Court’s opinion was written by Justice White, and joined by Chief Justice Burger and by Justices Powell, Rehnquist, and O’Connor. The Chief Justice and Justice Powell added brief concurring opinions. Justice Blackmun dissented, joined by Justices Brennan, Marshall, and Stevens, and Justice Stevens, joined by Justices Brennan and Marshall, added a separate dissenting opinion.
278 “[N]one of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy.” 478U.S. at 190–91 478U.S. at 190–91.
279 Id. at 191. The Court asserted that Carey v. Population Services Int’l, 431 U.S. 678, 694 n.17 (1977) , which had reserved decision on the issue, had established that the privacy right “did not reach so far.”
280 478U.S. at 191 478U.S. at 191.
281 In the Court’s view, homosexual sodomy is neither a fundamental liberty “implicit in the concept of ordered liberty” nor is it “deeply rooted in this Nation’s history and tradition.” Id. at at 191–92.
282 Id. Chief Justice Burger’s brief concurring opinion amplified on this theme, concluding that constitutional protection for “the act of homosexual sodomy . . . would . . . cast aside millennia of moral teaching.” Id. at at 197. Justice Powell cautioned that Eighth Amendment proportionality principles might limit the severity with which states can punish the practices (Hardwick had been charged but not prosecuted, and had initiated the action to have the statute under which he had been charged declared unconstitutional). Id.
283 The Court voiced concern that “it would be difficult . . . to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home.” Id. at 195–96. Dissenting Justices Blackmun (id. at 209 n.4) and Stevens (id. at 217–18) suggested that these crimes are readily distinguishable.
284 Id. at 199. The Georgia statute at issue, like most sodomy statutes, prohibits the practices regardless of the sex or marital status of the participants. See Id. at 188 n.1. Justice Stevens too focused on this aspect, suggesting that the earlier privacy cases clearly bar a state from prohibiting sodomous acts by married couples, and that Georgia had not justified selective application to homosexuals. Id. at 219.
285 Id. at 204–06.
286 The Court reserved this question in Carey, 431 U.S., 694 n.17 (plurality opinion), although Justices White, Powell, and Stevens in concurrence seemed to see no barrier to state prohibition of sexual relations by minors. Id. at 702, 703, 712.
287 Roe v. Wade, 410 U.S. 113, 152 (1973) . The language is quoted in full in Carey, supra, 431 U.S. 684–85.
288 San Antonio School District v. Rodriguez, 411 U.S. 1, 33–34 (1973) . That this restriction is not holding with respect to equal protection analysis or due process analysis can be discerned easily. Compare Zablocki v. Redhail, 434 U.S. 374 (1978) (opinion of Court), with id. at 391 (Justice Stewart concurring), and id. at 396 (Justice Powell concurring).

Supplement Footnotes

5 120S. Ct. 2597 (2000).
6 The Nebraska law provided that such procedures could be performed where “necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life– endangering physical condition caused by or arising from the pregnancy itself.” Neb. Rev. Stat. Ann. § 28–328(1).
7 Roe v. Wade, 410 U.S. 113, 164 (1973) .
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