Roe v. Wade: A Legal History | Part Two: The Right to Privacy
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Roe v. Wade: A Legal History | Part Two: The Right to Privacy

By the time Roe v. Wade came down, she’d actually
already had the baby, so the reason the case continued was because there was a desire both
by litigants and by the Supreme Court to address the issue, not because it was a individual
pressing case that someone brought. The first argument was in the winter of 1971
but two Justices had suddenly died prior to that argument so they were short on the bench. They have the oral argument in Roe. Shortly after, they have the oral argument
in a case called Eisenstadt versus Baird, which was about extending the right to use
contraception beyond married couples to single people. The right to privacy, uh, as invented by the
Supreme Court, is the absolute foundation for the modern jurisprudence on abortion. Privacy is a bit of a lightning rod and had
been a bit of a lightning rod because it is not clearly established in the Constitution. In fact there’s no references to privacy of
the sort that would remotely have to do with contraception or other public morals laws
of that nature. Substantive due process is not actually described
in Roe. It’s invoked. It’s the underlying doctrine that gives us
the right to privacy. So the Fourteenth Amendment has a due process
clause as is, as does the Fifth Amendment. The Fifth Amendment applies that the federal
government, the Fourteenth to the states, and says that no state shall deprive any person
of life, liberty or property without due process of law and basically substantive due process
says that there are some rights that are sufficiently important that the legislature can’t take
them away, uh, arbitrarily without violating the due process clause. Locational privacy is clearly in the text
of the Constitution and I think it’s fair to say freedom of thought has a privacy element. Then we move to this decisional privacy, which
is the right to make decisions without the government directing the outcome of the decision-making
process. And then we get to the right to act on the
decision, regardless of the community’s beliefs that that action is contrary to the public
good or contrary to what we would call state interest. The first opinion to suggest that there’s
a fundamental right to privacy was Griswold versus Connecticut, which was a 1965 case
holding that married couples have a right to use contraception with a doctor’s prescription,
contrary to a Connecticut law that banned such contraceptive uses. It’s a violation of a right to privacy. It’s a violation of substantive due process
because this is the kind of intimate decision, no different from who you marry or whether
you have children or how you raise your children, that should be given to the individual and
the state shouldn’t be able to interfere with that. Where did the Court purport to find this right
to marital privacy, which includes a right to contraceptives? Well, since the Court couldn’t find it in
the text, the majority said that they found it in penumbras, formed by emanations of various
constitutional guarantees. Unsurprisingly, what followed was a case that
said, “Well, why should only married people have a right to access contraception? Single people should have that right as well. And that was Eisenstadt versus Baird. Eisenstadt laid a far firmer foundation,
at least rhetorically, for the Court to sit on in Roe. The Griswold versus Connecticut opinion had said
that married couples have a right of privacy that endures in marriage and that
is in the marital bedroom. These are sacred places you don’t interfere
with as the state. Eisenstadt said, “You know, we’re not gonna
use that penumbras and emanations of other elements in the Bill Of Rights. There was a constitutional right for people
to make decisions that are very, very important to them. We call this a right of privacy. So what you have is a situation where what
seemed to be a limited right to privacy in Griswold that only applied to marital relationships,
now applies to all relationships and then the next step in Roe is to suggest that rather
than only applying to contraceptives, it applies more generally to the right of whether you
want to have children or not. The Court, having heard Eisenstadt in between
the two arguments and having decided it, can now say, “Well, don’t you see? We’ve just announced a substantive due process
right of privacy about matters so fundamental as the right to decide whether to bear or
beget a child. And gee, abortion is about the decision whether
or not to bear or beget a child.” It fits perfectly. There was a practical reason for the re-argument,
but it ended up suiting the decision to invent a right to abortion to a T.
The arguments in favor of Roe versus Wade which finally persuaded the Justices were
that abortion is a purely private matter, and when matters are purely private, general
constitutional principles forbid the government from intruding into them. The state of Texas responded that in fact,
there was no basis in the Constitution itself for a right to abortion. That state governments had regulated abortion
either through the common law crimes or at least beginning in 1832, through statutory
crime. To suggest that the Fourteenth Amendment, uh, included some sort of protection against the
prohibition of abortion, it simply disregarded the historical record. Instead of making a relatively limited argument,
uh, about the state’s ability to regulate abortion, they said the states must regulate
abortion, which no court, in the United States at least, has ever held to be the case. That was kind of an surprising argument in
retrospect. So for Texas it was really a states’ rights
issue and it was also an issue about the obligation that we usually say the state has, to protect
people who can’t protect themselves. Roe versus Wade seems crafted to stoke the
debate on abortion. Its analysis of the right of privacy is controversial
in the first place. Is there such a thing as a right of privacy? Its extension of it to abortion. Roe said, “We are not deciding questions about
the value of life before birth.” But it did.

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