Reproductive Freedom

Sterilization and Contraception The Supreme Court’s constitutional treatment of reproduction has addressed rights to have children as well as rights not to. State-sponsored involuntary sterilization in the early 1900s received constitutional approval in Buck v. Bell (1927), in which the Supreme Court sustained Virginia’s sterilization of Carrie Buck who, like her mother and grandmother, had been officially deemed ‘‘feeble minded.’’ Justice Holmes notoriously quipped in his opinion that ‘‘three generations of imbeciles are enough.’’ In Skinner v. Oklahoma (1942), however, the Court invalidated involuntary sterilization of ‘‘habitual criminals’’ because the law arbitrarily exempted certain white-collar crimes. Without expressly overruling Buck, the Skinner Court recognized the ‘‘right to have offspring’’ as ‘‘a sensitive and important area of human rights,’’ and described marriage and procreation as ‘‘basic civil rights of man.’’ Contraceptive devices have been legally available in most of the United States since the 1930s, and by the time the Supreme Court decided Griswold v. Connecticut (1965), Connecticut and Massachusetts were the only states with criminal bans on contraceptives. Connecticut prosecuted Planned Parenthood staff for providing contraceptives to married couples, and the defendants in Griswold successfully challenged the ban. The Court recognized a ‘‘right of privacy older than the bill of rights’’ protecting married couples’ use of contraceptives. Griswold located the privacy right in various constitutional provisions, including the First, Third, Fourth, Fifth, and Ninth Amendments, which it held created ‘‘zones of privacy’’ in their ‘‘penumbras, formed by emanations from those guarantees that help give them life and substance.’’ In Eisendstadt v. Baird (1972), the Court extended contraceptive rights to unmarried persons, recasting the analysis in terms of women’s fundamental autonomy rights: ‘‘If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’’ The Key Abortion Cases: Roe, Webster, Casey, and Stenberg The Supreme Court first recognized a fundamental constitutional right to an abortion in Roe v. Wade (1973). Justice Blackmun, writing for a seven-member majority, struck down an 1854 Texas law that prohibited abortion except when it was necessary to save the mother’s life. In the companion case, Doe v. Bolton (1973), the same majority invalidated Georgia’s abortion reform law, modeled on the American Law Institute’s Model Penal Code, which provided exceptions for cases of rape or incest, serious fetal deformity, or to protect the mother’s health or life. The Court held that a privacy right ‘‘founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action ... is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.’’ The Court noted the broad medical, philosophical and theological disagreement on the ‘‘difficult question of when life begins,’’ and so declined to resolve it in any categorical manner. Laws prohibiting abortion infringe a woman’s fundamental rights, the Court explained, in part because ‘‘[m]aternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child.’’

Roe’s abortion right, however, was ‘‘not unqualified’’ and the Court held that it ‘‘must be considered against important state interests in regulations.’’ As a pregnancy progresses, the Court held, two state interests become sufficiently compelling to justify narrowly drawn regulations: (1) protecting the life and health of the mother, and (2) protecting potential life. The Court explained the impact of those interests on the abortion right in terms of the medically current ‘‘trimester’’ framework. Under Roe, a State’s interest in the woman’s health and life could support regulation of abortion after the first trimester (approximately twelve weeks), and by the third trimester (starting at approximately twenty-four to twenty-eight weeks) a state could regulate to protect fetal life, provided that, if fetal and maternal interests conflict, the woman’s freedom to choose to protect her own health and life remained paramount. The two dissenters in Roe would have left the issue to be resolved by state legislation, subject only to highly deferential judicial review.

Even though Roe recognized a fundamental constitutional right to abortion protected by strict constitutional scrutiny, the right has never been made fully effective for poor women. The Court in several cases, including Maher v. Roe (1977) and Harris v. McRae (1980), has consistently upheld governmental health care funding schemes that pay poor women’s childbirth expenses while denying funding for even medically necessary abortions. The Court reasoned that it is women’s own indigence, as opposed to limits on government funding, which makes abortion inaccessible to poor women. Critics of the funding decisions contend that abortion generally is less costly than childbirth, and that it is inconsistent with women’s reproductive rights to use government funds with the purpose and effect of pressuring women where the Constitution ostensibly protects their freedom to decide.

Government remains free to use its resources to discourage the exercise of the abortion right first announced in Roe, yet generations of women have come to rely on that right as a cornerstone of our ability to plan and control the most important aspects of our lives, and to participate fully in public as well as family life. Roe has, however, been the subject of prolonged and heated debate, and has become a defining and polarizing issue in national politics. Opponents criticize Roe as lacking adequate bases in the Constitution’s text or history, as illegitimately displacing the legislative authority of the States, and even as countenancing murder. At their most extreme, antiabortion activists have hindered abortions through harassment, obstruction, and assault of providers and patients, and even bombings of abortion clinics and murders of abortion providers. Roe’s supporters contend that the Court has uncontroversially protected many individual rights not spelled out in the Constitution, and that Roe followed logically from previous cases recognizing a right to privacy in reproductive autonomy. They also emphasize that reproductive choice is key to women’s liberty and equality, and that such a basic right must not be left to the vagaries of majoritarian politics. Even supporters of abortion rights, however, have not been entirely uncritical of Roe, viewing it, for example, as overly solicitous of the judgments of medical doctors as opposed to pregnant women themselves, and faulting its failure adequately to ground the right in equality as well as autonomy, or for taking the wind out of the sails of a broad-based political mobilization in support of abortion rights that some claim would have made the right available to women across the country in due time.

As the abortion debate continued, the composition of the Court was changing. With three new justices on the Court, President Ronald Reagan’s lawyers joined the State of Missouri in Webster v. Reproductive Health Services (1989), to urge the Supreme Court to overrule Roe. In a set of fractured opinions, the Court upheld Missouri’s law declaring that life begins at conception, restricting public funding for abortions, and requiring viability testing. Four justices expressed their willingness to overturn Roe. Justice O’Connor provided the fifth vote, but read Missouri’s restrictions narrowly so as to comport with Roe, and concluded that ‘‘there is no necessity to accept the state’s invitation to reexamine the constitutional validity of Roe.’’ The four dissenters noted that the abortion right remained intact ‘‘for today,’’ but expressed ‘‘fear for the future,’’ and warned that ‘‘the signs are evident and very ominous, and a chill wind blows.’’

By the early 1990s, with two new justices appointed by the first President Bush, commentators speculated that there might be a fifth vote to overturn Roe. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Bush administration urged the Court to overrule Roe. In an unusual move, however, three justices—O’Connor, Kennedy, and Souter— jointly authored an opinion (also joined by Justices Blackmun and Stevens) that reaffirmed Roe’s previability abortion right, albeit with a less stringent level of constitutional protection. The Court held that ‘‘the essential holding of Roe v. Wade should be retained and once again reaffirmed.’’ The majority emphasized the importance of stare decisis, declaring at the outset that ‘‘liberty finds no refuge in a jurisprudence of doubt,’’ and decrying the fact that ‘‘19 years after our holding [in Roe] that the Constitution protects a woman’s right to terminate her pregnancy in its early stages ... that definition of liberty is still questioned.’’

While preserving Roe’s core, however, Casey reformulated and narrowed the abortion right. The plurality scrapped the trimester framework and no longer applied traditional fundamental-rights analysis. It instead focused on the viability line, and replaced strict scrutiny with an ‘‘undue burden’’ standard that gave states more leeway to regulate. A state regulation that ‘‘has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus’’ would, under the Court’s definition, pose an undue burden. Justices Blackmun and Stevens, concurring in the judgment, would have reaffirmed Roe’s trimester framework and fundamental right approach.

The decrease in constitutional protection for abortion rights under the undue burden standard was immediately apparent. The Court under Roe had consistently invalidated mandatory waiting periods on the ground that they render abortions more costly and delay them for women who must arrange time off from school or work, who must travel, or who face harassment or opposition. It had also consistently struck down laws requiring that specific, abortiondiscouraging information be provided as part of ‘‘informed consent.’’ Casey, however, upheld a biased counseling provision and a mandatory twenty-fourhour delay.

At the same time the Court in Casey, as it had under Roe, struck down a requirement that women notify their husbands prior to getting an abortion, even while it upheld a parental-consent requirement. The plurality noted that the vast majority of married women voluntarily tell their husbands when they become pregnant, but also acknowledged that Domestic violence is widespread and is often triggered by news of an unplanned pregnancy, such that the subgroup of women affected by the notice requirement (that is, those who would not otherwise tell their husbands) is unduly burdened by it. The Court continued to recognize, as it had under Roe, that when spousal preferences conflict, women must be permitted to make their own choices about their bodies. The Court upheld the parental consent requirement, however, because the statute excepted cases of medical emergency, and provided for a ‘‘judicial bypass’’—a procedure by which a court may authorize an abortion for a pregnant minor when it finds her mature enough to make the decision, or that an abortion would be in her best interests. The Court’s decision to sustain a requirement of parental involvement even while it invalidated a spousal-involvement provision recognized that states validly may reinforce parents’ authority over children, but may not ‘‘give a man dominion over his wife.’’

Chief Justice Rehnquist, and Justices Scalia, White, and Thomas concurred in the judgment in Casey to the extent that it sustained the abortion regulations, and dissented from invalidation of the spousal notice rule. These four justices would have applied rational-basis review. They would have distinguished abortion from the constitutionally fundamental rights of marriage, procreation and contraception on the basis that abortion involves termination of a potential life.

The ‘‘undue burden’’ standard has been criticized as unclear. Indeed, while the majority saw itself as embracing Roe’s ‘‘essential holding,’’ Chief Justice Rehnquist characterized the plurality as having retained only ‘‘the outer shell’’ of Roe while ‘‘beat [ing] a wholesale retreat from the substance of that case.’’ Some Roe supporters agreed. The following decade yielded little Supreme Court guidance on Casey’s application, with President Clinton appointing two Justices to replace Justices Blackmun and White, and the Court deciding only one additional abortion case.

Stenberg v. Carhart (2000), invalidated Nebraska’s effort to criminalize an abortion method except where the procedure was necessary to save a woman’s life. The so-called ‘‘partial birth abortion’’ law barred ‘‘deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child.’’ As Justice Ginsburg saw it, Nebraska’s law, which neither protects women’s health nor saves any fetus from destruction, was enacted ‘‘because the State legislators wish to chip away at the private choice shielded in Roe v. Wade.’’ The Court struck it down for want of a health exception, which rendered it an undue burden on women’s reproductive rights. The Court also held that the law was unconstitutional because its prohibition was written so broadly that it would have prohibited abortions using the most common method of previability second-trimester abortions, used as early as twelve weeks of pregnancy, called the dilation and evacuation (D&E) method, in addition to a variation of the D&E sometimes referred to as intact D&E, or dilation and extraction (D&X).

Whereas Casey was a six-to-three decision, Stenberg was five to four, and the difference between the opinions of Justice O’Connor, concurring, and Justice Kennedy, dissenting, may illuminate the degree to which abortion rights jurisprudence stands to shift in light of Justice O’Connor’s resignation. Justice O’Connor in Stenberg focused on women’s right to a health exception and doctors’ need for clear statutory guidance. Justice Kennedy, in contrast, rejected the lower courts’ factual findings that intact D&E is sometimes necessary to protect a woman’s health. Eschewing what he viewed as too neutral clinical language, Justice Kennedy took pains to describe in vivid detail both the D&E and intact D&E procedures, apparently viewing both procedures as morally reprehensible even if, in the case of D&E, constitutionally protected under the Court’s precedents. The other three dissenting justices persisted in their conviction that Roe should be overruled and abortion regulation broadly permitted.

Current Law and Future Directions

The states have continued to enact abortion regulations, many of which are subject to constitutional challenge. Common types of laws impose mandatory delay and biased counseling laws, parental involvement requirements, record-keeping and reporting mandates, special medical procedure regulations, public funding restrictions, and bans (including a federal ban) on procedures, like that at issue in Stenberg. These various types of abortion restrictions have simultaneously discouraged doctors from providing abortions and intensified the burdens on women seeking them. Those burdens are especially acute for women who are young or poor, or who face domestic abuse. For many women, the need for repeated trips to clinics or hospitals that are fewer and farther between, and whose services are more costly and elaborate, delays and hampers abortions and may even make them unavailable as a practical matter. Some states have only one doctor willing to perform abortions. Meanwhile, bills in Congress propose to restrict underage women’s ability to obtain abortions outside their home states.

Legal restrictions on reproductive choice reach beyond the abortion procedure itself. In many states, women have been criminally prosecuted for neglect or even manslaughter if they consumed alcohol or controlled substances while pregnant; South Carolina is, however, the only state whose high court has thus far upheld such a prosecution. The federal Unborn Victims of Violence Act treats crimes against pregnant women as crimes against two people—the woman and the fetus—thereby expressly conferring personhood on a fetus. Laws in several states now grant ‘‘conscience rights’’ to pharmacists and health care providers to refuse to facilitate abortions or even to fill prescriptions for contraceptives if they personally are opposed to such practices. Other states have responded by enacting laws to protect women’s access to prescription medication notwithstanding the beliefs of individual personnel within the health care system.

Meanwhile, women have lobbied for state laws and brought federal sex discrimination lawsuits seeking ‘‘contraceptive equity,’’ that is, to require that health insurers cover prescription contraception (which thus far has only been developed for women) in otherwise comprehensive plans that typically pay for male-only medications such as Viagra. Medical development of emergency contraception, or ‘‘Plan B,’’ which a woman can take in the privacy of her own home, has the potential to facilitate reproductive choice for women. The Food and Drug Administration (FDA), however, under political pressure from the religious right, has denied approval for over-the-counter sales of emergency contraception. Another drug that has facilitated reproductive choice, the early-abortion pill, mifepristone, or RU-486, was approved by the FDA in 2000 for prescription use.

Accurate health education can help to make abortion less necessary by teaching teens about reproduction and Birth Control; such education has, however, been vigorously opposed by the religious right, leaving some states requiring uninformative, ‘‘abstinence only’’ programs. Social support for parenting also can make childbirth a tenable choice, even for women with unplanned pregnancies, by ameliorating the conflicts between women’s autonomy and well-being and the demands of caring for children. Fathers’ willingness to share equally in childrearing; government child-support enforcement, family leave entitlements, and parental tax benefits; employers offering flextime, flex-place, and part-time jobs with benefits; and programs providing affordable childcare and extended-day school programs, all have potential to ease parenting burdens. Federal, state, and private sector support for such measures remains equivocal.

As of this writing, the second President Bush has appointed two additional justices, one of them replacing the moderately pro-choice Justice O’Connor, speculation about the fate of women’s reproductive choice has again intensified. Most commentators agree that, whether the Court overrules Roe altogether or continues to cut it back incrementally, the Supreme Court will limit abortion rights increasingly in the years to come. One issue of fundamental importance will be whether the Court leaves reproductive rights up to Congress and to the states, under their own constitutions and laws, or whether, alternatively, the Court will announce a fundamental fetal right to life, which could foreclose recognition of abortion rights even by the states or the political process.

NINA PILLARD

References and Further Reading

• Balkin, Jack M., ed. What Roe Should Have Said. New York: New York University Press, 2005. Bradford, C. Steven, What Happens If Roe Is Overruled? Extraterritorial Regulation of Abortion by the States, Arizona Law Review 35 (1993): 87.
• Cherry, April L., Roe’s Legacy: The Nonconsensual Medical Treatment of Pregnant Women and Implications for Citizenship, University of Pennsylvania Journal of Constitutional Law 6 (2004): 723.
• Ely, John Hart, The Wages of Crying Wolf: A Comment on Roe v. Wade, Yale Law Journal 82 (1973): 920.
• Ginsburg, Ruth Bader, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, North Carolina Law Review 63 (1985): 375.
• McDonagh, Eileen, Breaking the Abortion Deadlock: From Choice to Consent. New York: Oxford University Press, 1996.
• Noonan, John, Jr., The Root and Branch of Roe v. Wade, Nebraska Law Review 63 (1984): 668.
• Olsen, Frances, Unraveling Compromise, Harvard Law Review 103 (1989): 105.
• Siegel, Reva B., Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, Stanford Law Review 44 (1992): 261. Thompson, Judith Jarvis. ‘‘A Defense of Abortion.’’ Philosophy and Public Affairs 1 (1971): 47.
• Tribe, Laurence H. Abortion: The Clash of Absolutes. New York: Norton, 1990.
• Williams, Joan C., and Shauna L. Shames, Mothers’ Dreams: Abortion and the High Price of Motherhood, University of Pennsylvania Journal of Constitutional Law 6 (2004): 818.

Cases and Statutes Cited

• Buck v. Bell, 274 U.S. 200 (1927)
• Doe v. Bolton, 410 U.S. 179 (1973)
• Eisenstadt v. Baird, 405 U.S. 438 (1972)
• Griswold v. Connecticut, 381 U.S. 479 (1965)
• Harris v. McRae, 448 U.S. 297 (1980)
• Maher v. Roe, 432 U.S. 464 (1977)
• Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
• Roe v. Wade, 410 U.S. 113 (1973)
• Skinner v. Oklahoma, 316 U.S. 535 (1942)
• Stenberg v. Carhart, 530 U.S. 914 (2000)
• Webster v. Reproductive Health Services, 452 U.S. 450 (1989)

See also Buck v. Bell, 274 U.S. 200 (1927); Doe v. Bolton, 410 U.S. 179 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965); Harris v. McRae, 448 U.S. 297 (1980); Maher v. Roe, 432 U.S. 464 (1977); Privacy; Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992); Roe v. Wade, 410 U.S. 113 (1973); Skinner v. Oklahoma, 316 U.S. 535 (1942); Stenberg v. Carhart, 530 U.S. 914 (2000); Webster v. Reproductive Health Services, 492 U.S. 490 (1989)