Estelle Griswold and Cornelia Jahncke of Planned Parenthood League of Connecticut
Federal abortion law centers around four main issues:
As David Garrow observes in Liberty and Sexuality--the most comprehensive study of the legal aspects of the pro-choice movement --abortion rights activists rapidly concluded that the judicial rather than the political arena represented their most promising route for success. After several setbacks, they scored their first important victory in the 1965 case Griswold v. Connecticut [and take a look at the oral argument]. Please read both. In striking down (7-2) a Connecticut law banning the distribution and use of contraceptives, the majority opinion written by Justice William O. Douglas, held that certain rights, though fundamental and not actually written in the Bill of Rights or the 14th amendment, nonetheless existed in the Constitution. Douglas wrote that the fundamental right to marital privacy lay between the gaps of the 1st, 3d, 4th, 5th, and 9th amendments. Other Justices searched elsewhere in the Constitution to justify what became the "right to privacy." This legal reason proved to be among the most controversial in the Court's history--critics attacked it as the perfect example of an activist Court.
Griwsold established the ideological basis on which later abortion rights decisions were based. But there were two other important points in the development: Eisenstadt v. Baird (1972) invalidated a Massachusetts statute making it a crime for anyone to distribute contraceptives other than doctors and pharmacists prescribing them to married persons. Going beyond Griswold's findinds, Justice William Brennan, speaking for a four-vote plurality, held, "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child"; and, of course, Roe v. Wade (1973), which voided the abortion laws of nearly every state. Striking down a Texas statute that prohibited all abortions except to save the mother's life, a 7-2 majority of the Supreme Court held that abortion was a constitutional right that the states could only abridge after the first six months of pregnancy. More specifically, the Court held that the right to privacy included the right to abortion and the word "person" in the 14th amendment did not apply to the unborn.
But, like the civil rights movement, the pro-choice movement soon came under strong attack, coordinated by the Catholic Church and by newly energized social conservatives in the Republican Party. By 1989, it appeared as if the Court might overturn Roe. It did not, but, in the two decisions below, it came very close.
The Challenges: Webster, Casey
Webster v. Reproductive Health Services (1989) In the first key departure from Roe, a 5-4 Court majority upheld a Missouri statute stating that human life began at conception, barring use of state property for abortions, and requiring viability tests for advanced pregnancies. But, because Justice Sandra Day O'Connor declined to join the plurality opinion, the case did not explicitly overturn Roe, although both sides in the abortion debate expected that the Court soon would do so.
Planned Parenthood v. Casey (1992) A Court sharply divided into three factions upheld a Pennsylvania law that contained a 24-hour waiting period provision for an abortion, an informed consent requirement, a parental consent provision for minors, and a recordkeeping requirement. But the majority also invoked the principle of stare decisis, the political need for judicial credibility and a consistent constitutional vision, to go on record against overturning Roe.
Bakke and Affirmative Action
Both of these problems came back to haunt the rights-related agenda in the early 1970s, when the Supreme Court quite suddenly exhibited a very different ideological bent than that of the Warren Court. Earl Warren had retired, replaced as Chief Justice by Warren Burger. The newly appointed moderate Lewis Powell and conservative William Rehnquist further shifted the Court's center of gravity to the right. The Burger court almost instantly adopted a more restrictive interpretation of court-ordered busing. But, given the contentious nature of the case and the issue's contemporary relevance, perhaps the most appropriate point to examine the changing nature of civil rights law comes with today's assignment: the Bakke case of 1978.
A badly fractured Court produced a confusing decision that did little to quiet the simmering debate over affirmative action. There was no single majority opinion. Four of the justices contended that any racial quota system supported by government violated Title VI of the Civil Rights Act of 1964. Justice Lewis F. Powell, Jr., agreed, casting the deciding vote ordering the medical school to admit Bakke. But Powell reached his decision on the grounds that the rigid use of racial quotas as employed at the school violated the equal protection clause of the Fourteenth Amendment. The remaining four justices held that the use of race as a criterion in admissions decisions in higher education was constitutionally permissible, as one of several admission criteria. At the same time, Justice Thurgood Marshall took pains to distance himself from Powell's unwillingness to more completely defend the concept of affirmative action.