The right to privacy and the road to Roe v. Wade

The Supreme Court’s watershed decision in Griswold v. Connecticut (1965) which, as we have seen, introduced a general constitutional right to privacy, sufficient to protect a married couples’ right to use contraceptive devices, has exerted tremendous influence over the past half-century.

Roe v. Wade (1973), very likely the most controversial ruling ever rendered by the High Tribunal, rests on Griswold and the right to privacy. In Roe, the Court’s opinion, authored by Justice Harry Blackmun, held that the right to privacy, whether grounded in the concept of “personal liberty,” protected by the Due Process Clause of the 14th Amendment, or in the Ninth Amendment, “is broad enough to protect a woman’s decision whether to terminate her pregnancy.”

In a “Memorandum to the Conference,” — the meeting of the Supreme Court Justices to discuss cases — Chief Justice Warren Burger, nominated by President Richard Nixon, justly wrote of Roe and the issue of reproductive rights, “This is as sensitive and difficult an issue as any in this Court in my time.” At issue in Roe was a Texas statute that prohibited abortions except for the purpose of saving the mother’s life.

The Court’s decision that reproductive rights are “fundamental” does not imply that the right is absolute or unqualified. Indeed, no constitutional right, enumerated or unenumerated, is absolute. Rather, every right is limited, as is every governmental power. In Roe, and in virtually every subsequent case involving abortion rights, the primary concern has been to strike a balance between a woman’s privacy interest and the state’s interest in the regulation of “potential human life.”

In Roe, the Court determined that the state’s interest in future life becomes “compelling” at the point of fetal viability. After the first trimester, in which a woman’s privacy right, manifested as “personal autonomy” over her reproductive organs, is primary, and the state’s interest secondary, the state may begin to regulate or even proscribe abortions, except in cases where abortion is necessary to save the life or protect the health of the mother. As the pregnancy lengthens, the Court said, the state is free to place increasing restrictions on abortion rights.

The laws governing reproductive rights continue to spike controversy across America. The status of Roe v. Wade and a woman’s fundamental right to an abortion is in doubt. In fact, when the Court begins its new Term on October 4, it will soon hear a case that may compel the Justices to reassess whether there is a constitutional right to abortion, a challenge that will remind the citizenry of Chief Justice Burger’s description of abortion rights cases as presenting the most “sensitive” and “difficult” issues that the Court confronts.

The constitutional right to privacy, unmentioned in the Constitution, but embraced by virtually every American, plumbs the very depths of our conception of freedom and liberty, no matter how contentious or difficult its application is. What focuses our attention, of course, is whether there is, in a free nation, a “right to be let alone.”

That phrase, which reduces a right to privacy to its most fundamental basis, was developed by Justice Louis Brandeis. On the right of personal autonomy, Brandeis wrote in 1928, in Olmstead v. United States, in words quoted many times over: “The makers of our Constitution conferred, as against the Government, the right to be let alone — the most comprehensive right and the most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Constitution.”

Precisely how we are to define “unjustifiable” intrusions will be discussed and debated as long as America remains a constitutional democracy, but the lack of certainty does not preclude some guidelines. Consider, for your own deliberation, a list created in a Dec. 30, 1971 letter from Justice William Brennan to Justice William O. Douglas. Justice Brennan suggested that the right to privacy is a species of “liberty” that protects three groups of fundamental freedoms encompassed by “liberty.” In this list, he considered “freedom of choice” pertaining to “basic decisions of life,” including marriage, divorce, procreation, contraception and raising children.

To these rights, we may add others, suggested by Justice Douglas: “the freedom to walk, stroll or loaf.” None of these rights is mentioned in the Constitution, of course, but neither is there, as Justice Arthur Goldberg declared, a “provision in the Constitution that specifically prevents the Government from curtailing the marital right to bear children and raise a family.” Goldberg added that Americans “would find it shocking to believe that the personal liberty guaranteed by the Constitution does not include protection against such totalitarian limitation of family size, which is at complete variance with our constitutional concepts.”

However we identify a right to privacy, there must exist in our world a right to live, as the Walt Whitman’s “simple separate person” — freedom from arbitrary intervention and intrusion.