This is a difficult subject not only because many people’s views on the underlying moral questions are sharply opposed, but also because the issue for many is salient. I recall the episode on Seinfeld where Elaine terminates a budding romance because her beau opposes abortion. Many opponents think abortion is murder. Proponents think the prohibition of abortion is one step short of reducing women to the status of chattels.
My purpose here is not to bridge this gap, nor to advocate what legislators, if freed from the constitutionalized rule of Roe, should enact, but to discuss the legal theories underlying the main abortion cases. These have assumed an overarching significance because in reality, the debate about the confirmation of Supreme Court appointees such as Samuel Alito has boiled down almost entirely to the question of what he’s said about Roe in the past (he was agin’ it) and what he might do in the future if confirmed (hinted he would at least hesitate to overrule what is now an entrenched precedent).
Recall that in my first post on the subject I began to describe the process by which the Court has interpreted the post-Civil-War Fourteenth Amendment as incorporating most of the Bill of Rights as restrictions on the power of the states.
In my second post, I went on to discuss “substantive due process,” a doctrine the Court has used to overrule certain state laws as violating constitutional due process even when they are not matters of procedure. Although in economic regulation cases this doctrine went out with Roosevelt’s New Deal, in certain non-economic areas it is not dead.
I went on to discuss the “right of privacy,” which originated as a new concept in the law of torts.
These concepts bring us to the key Supreme Court case of Griswold v. Connecticut, 381 U.S. 479 (1965). Griswold concerned an obsolete and rarely enforced Connecticut law that prohibited the distribution of birth control devices even to married couples. Opponents maneuvered to create a test case, which found its way to the Supreme Court, based on $ 100 fines imposed upon the plaintiffs.
Fundamental to the outcome was the conviction of all the justices that Connecticut had on its books what dissenting Justice Potter Stewart called “an uncommonly silly law.”
It fell to William O. Douglas, an irascible and determinedly liberal justice, to write the majority opinion.
Douglas reasoned that a right of privacy existed in the Bill of Rights, even though it appears nowhere in the text. Douglas based his conclusion not on the text, but on his belief that
“specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”Although many liberals now treat the “right of privacy” is a sacred cow that might as well be in the constitutional text, it is a term derived from the law of torts, that Douglas almost mystically discerned in such prohibitions as the rules against unreasonable searches and seizures, and whose method he argued had analogies in “peripheral” rights such as that to send one’s children to a religious school, and not to have one’s membership in an organization such as the NAACP, which Douglas concluded were also derived not from the text but from the policies and philosophy that underlay the First Amendment.
Douglas concluded that marriage lies “within the zone of privacy created by several fundamental constitutional guarantees,” and ends his brief opinion with a paean to the sacredness of marriage.
Douglas mentions the due process clause of the Fourteenth Amendment, but does not analyze the incorporation issues. He simply assumes that incorporation applies.
It fell to Justice Arthur Goldberg, who concurred in the opinion and the judgment, to discuss incorporation. Goldberg had not come around to the view that the entire Bill of Rights was incorporated into the Fourteenth Amendment, but agreed with Douglas that incorporation applied to this case, which involved “personal rights that are fundamental,” and he agreed that incorporation “is not confined to the specific terms of the Bill of Rights.”
Goldberg’s concurrence emphasized the Ninth Amendment, which reads
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”Although Goldberg is careful not to say that the Bill of Rights is not completely incorporated in the Fourteenth Amendment, or that the Ninth Amendment is applied against the states or is an independent source of rights. Goldberg claims simply to be saying that the Ninth Amendment shows that the framers understood that there were fundamental rights beyond those specifically enumerated.
Goldberg’s analysis shows a certain anxiety about the reliability of Douglas’s constitutional aura detector, and attempts to buttress Douglas’s rather cavalier exegesis on a right of privacy nowhere explicitly mentioned in the constitutional text.
Goldberg goes on to reason that the fact that the state asserted that the statute had a “rational basis” was not sufficient to uphold the statute, when narrower means, such as a prohibition on adultery, would be sufficient to vindicate the state’s interest in marital fidelity.
Stewart’s dissent is sharp and reasoned. He points out that the majority nowhere states which of the amendments in the Bill of Rights the Connecticut law infringes. In his brief but pointed dissent, Stewart says
With all deference, I can find no such general right of privacy y in the Bill of Rights, in any other part of the Constitutions, or in any case ever before decided by this Court.That is the gist of the argument. The Connecticut law was a dead letter. Court intervention was not really needed to protect anyone. The political process and jury nullification would soon have resolved the matter.
At the oral argument in this case we were told that the Connecticut law does not "conform to current community standards." But it is not the function of this Court to decide cases on the basis of community standards. We are here to decide cases "agreeably to the Constitution and laws of the United States." It is the essence of judicial duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not. If, as I should surely hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books.
For unelected judges to infer the existence of rights not remotely found in the text, was an attack on democracy, and a breach of any reasonable canon of interpretation. The views of the “enlightened,” not even those of the law professoriate, should not, in a republic, become part of the Constitution except through the political process. To allow judges to use a virtual Geiger counter to detect emanations and penumbras, is a source, as we shall see in future installments, of great mischief.