The Recent Upsurge of Anti-Abortion Sentiments and the Constitutional Right of Privacy

By John W. Johnson

This year has already emerged as the year that anti-abortion activists have achieved their greatest triumphs since the U.S. Supreme Court’s landmark ruling in Roe v. Wade (1973). As of this writing, eight state legislatures–mainly in the South and Midwest–have passed laws in the last five months hostile to a woman’s constitutional right to terminate a pregnancy. Some of these laws have limited the grounds for abortion; some have stipulated that an abortion may only legally be performed in the very early weeks of a pregnancy; some have criminalized a physician’s performance of abortions; and others have placed onerous burdens in the path of women’s seeking abortions. A number of additional states are presently considering the passage of similar legislation.

Emboldened by the statements of President Donald Trump, who regularly voices the rhetoric of the right to life movement, and strengthened by the recent appointment and confirmation of over 100 “pro-life” federal judges, the constitutionally-established right of a woman to end a pregnancy is in question as it has not been for almost a half century.

Roe v. Wade would not have come to pass without a precedent enunciated in a 1965 Supreme Court decision known as Griswold v. Connecticut. About 20 years ago I became interested in the Griswold case, eventually completing a book published by the University Press of Kansas in 2005. In light of the current challenges to Roe v. Wade and the right to an abortion, it makes sense to recall the Griswold decision, its role in the run-up to Roe v. Wade, and the current state of constitutional issues serving as the foundation for both decisions.

Griswold emerged from a successful legal challenge to an 1879 statute forbidding the use of birth control in the state of Connecticut. The named plaintiffs in the case were Estelle Griswold, the director of the Planned Parent League of Connecticut (PPLC), and Lee Buxton, a Connecticut physician and Yale Medical School professor.

Griswold and Buxton saw injustices to Connecticut women presented by the old state anti-abortion law. For example, the law did not prohibit contraception out-right: it permitted efforts to block pregnancies for the purpose of preventing the spread of sexually-transmitted diseases (STDs), but it did not allow women to seek reproductive hegemony over their own bodies through medically-prescribed artificial efforts or devices. What this disjunction meant, in fact, was that a man or woman could walk into a gas station and, without any oversight or advice, purchase a condom from a dispenser for the purpose of preventing an STD; but a married couple could not seek a prescription from a licensed Connecticut physician for a diaphragm or birth control pills for the purpose of family planning. One of the least publicized services provided by the PPLC was to drive, in their personal automobiles, financially-strapped married couples to a state that permitted physician-supervised birth control (usually New York) to obtain contraceptive counseling.

Griswold and Buxton wanted to take birth control out of the shadows and make it routinely available to married couples. So, in 1961, they opened a birth control clinic in New Haven. They were shortly arrested for violating the state anticontraception statute and the clinic was shut down. The Connecticut courts upheld the conviction and Griswold and Buxton appealed their case to the U.S. Supreme Court.

The ultimate Supreme Court ruling in Griswold v. Connecticut was one of the most unusual and debated decisions of the 1960s. The Court’s 7-2 majority, in an opinion written by Justice William Douglas, held that the 19th century Connecticut anti-abortion law was unconstitutional as a violation of a newly enunciated “right of privacy.” Although privacy is not explicitly guaranteed by the words of the U.S. Constitution or its amendments, Douglas found that the “penumbras” and “emanations” of some of the Bill or Rights afforded a constitutionally-protected right of privacy. For example, Douglas wrote, a right of privacy was implied by the Fourth Amendment’s protections against “unreasonable searches and seizures.” Justices joining Douglas in the majority found that the right of privacy could be teased out of other provisions of the Constitution, such as the Due Process Clause of the Fourteenth Amendment or the “certain rights . . . retained by the people” in the Ninth Amendment. A few years after Griswold, the right of privacy was extended to unmarried individuals seeking birth control information and prescriptions.

Ultimately, in Roe v. Wade, Justice Harry Blackmun ruled that the right of privacy in the first three months of a woman’s pregnancy was protected by the Due Process Clause of the Fourteenth Amendment. Since Roe in 1973, the Court has revisited the constitutional right to an abortion on several occasions. Notably, in 1992 in Planned Parenthood v. Casey, a Court majority determined that state regulations of the right to an abortion could not impose “undue burdens” on women seeking termination of pregnancies. Despite the nuances of Supreme Court abortion decisions of the last generation, the essential core of Roe v. Wade remains the law of the land.

Back to the present: What’s to make of the recent spate of anti-abortion legislation and the future of Roe v. Wade? Based upon my research on the right of privacy and Griswold v. Connecticut, I have some observations.

  • Is Roe v. Wade in jeopardy? Probably not. The precedent is well-established and, at the same time, malleable. The “undue burden” modification of the right to an abortion, for example, gives states some additional latitude to modify Roe. In addition, some of the new laws are more predicated on the language of state constitutions than the federal constitution. So, it bears watching whether the challenges to Roe emerge from state supreme courts or the federal courts.  At the Supreme Court level, my guess is that the strong institutional leadership of Chief Justice John Roberts will serve as a last gasp source of protection for what some have termed the “super precedent” of Roe v. Wade. Also, of course, any assault on the legitimacy of Roe v. Wade will be met by the resistance of well-financed and well-organized interest groups which will be quick to remind the justices that public opinion polls consistently show majority popular support for a woman’s right to an abortion.

 

  • Is the right of privacy imperiled by anti-abortion sentiment sweeping the country? In spite of the rather shaky emergence of the right of privacy in the “penumbra” language of Justice Douglas in Griswold, the right has found, in recent decisions, a more stable mooring in the Fourteenth Amendment’s Due Process Clause.   The right of privacy has also gained traction in appellate court decisions involving LGBTQ rights; such protections would be hard to undercut or undo at this time in our nation’s history.  Americans will not give up without a major legal battle their recently-obtained right of privacy.

 

  • Even if Roe v. Wade survives impending legal challenges, has damage to abortion rights from the 2019 statutes already taken a toll? A qualified yes. Planned Parenthood is currently on the defensive, being forced by public and legal pressure in some states to curtail its reproductive health services. As of this writing, Missouri is about to shutter its Planned Parenthood clinic in St. Louis, leaving no abortion providers in the state. Many largely rural states, such as Nebraska, now only offer abortions in small urban corridors. Moreover, ghastly accounts of rare late term abortions have somewhat undercut the support for reproductive rights among Americans. In addition, pregnant women with limited financial resources are finding it increasingly difficult to travel hundreds of miles to seek out a dwindling number of abortion-providers. Nevertheless, no matter what transpires in constitutional tests of the recently-enacted anti-abortion laws, organizations that support a woman’s right to control her own body will have powerful legal and emotional issues to present to the electorate in 2020 and beyond.

 

John Johnson is an emeritus professor of History at the University of Northern Iowa. In his 46-year academic career, he taught courses on Recent U.S. History, American Civil Liberties, and Critical Thinking.  He is also the author of a number of books and articles, including Griswold v. Connecticut: Birth Control and the Constitutional Right of Privacy (University Press of Kansas, 2005).

What Women Want? Women’s Representation and Reproductive Rights Legislation.

by Kaitlin Sidorsky, author of All Roads Lead to Power: Appointed and Elected Paths to Public Office for US Women

Last year we questioned whether a “Pink Wave” was coming for women’s representation in elected offices across the United States. This year, after seeing significant gains in the numbers of women serving in both Congress and the State Legislatures, we stand confused by recent abortion legislation passed in Alabama, Georgia, and Missouri. Across the United States, there are 2,129 women serving in our State Legislatures, putting the percentage of women legislators at 28.8 percent – the highest it has ever been in United States history (Center for American Women in Politics 2019). Over 23 percent of congressional members are women, up from 20 percent a year ago. Nine of our 50 governors are women, one of whom signed into law the Alabama abortion legislation. Despite the gains made in women’s representation since the 2018 election, we are still far from gender parity in our electoral institutions – an issue that has become painfully clear during this year’s state legislative sessions.

In an effort to take advantage of a potentially anti-Roe v. Wade Supreme Court, conservative states across the nation are writing restrictive abortion laws. Every day media outlets report on yet another state passing “the most restrictive abortion law in the nation.” These laws range from fetal heartbeat bills that ban abortions as soon as a heartbeat can be detected, (6-8 weeks, regardless if the pregnancy resulted from rape or incest), to outright abortion bans (Alabama).

So much of our attention has been on the passage of these anti-abortion laws that we have overlooked the states that are trying to increase protections for a woman’s right to choose. In January, New York passed a law that allows abortions after 24 weeks of pregnancy, allowing doctors to avoid criminal prosecution as long as the fetus is not viable or the mother’s life is in danger. Vermont is working on a state constitutional amendment to protect a woman’s right to an abortion – the first state to ever do so. Maine is attempting to pass a law to expand the kinds of medical professionals who can perform abortions, and Nevada is legislating a bill that removes a requirement that forces doctors to tell their patients about the “physical and emotional implications” of having an abortion, as well as removing other restrictive requirements.

What makes these states different from states like Alabama, Ohio, and Georgia? A large part of the answer is representation. Only 15.7 percent of Alabama legislators are women, compared to 40 percent of Vermont legislators. In fact, besides Georgia, all of the states that have passed or are trying to pass anti-abortion legislation are below the national average of 28.8 percent of female legislators (30.5 percent of Georgia’s legislature are women). Over 32 percent of New York’s legislature are women, and 38.2 percent of Maine’s. Most importantly, the first state to ever achieve gender parity – Nevada – has 52.4 percent of its legislature as female.

Inevitably, the majority of women who serve are Democrats, meaning any legislation about women’s rights is not just one of gender, but party as well. Even with the recognition that party identification is a major driving force in this policy arena, we must consider the implications of legislatures that are overwhelmingly dominated by men making health care decisions for the countless women in their states. This does not mean that all women are pro-choice, Alabama Republican Governor Kay Ivey is the prime example of the significant percent of women who do not support access to abortions across the United States. But it is moments like these, when the policies are so gendered, the stakes are so high, and the numbers of women serving in elected office are so unequivocally low across the United States that we should consider the importance of women’s representation. This means both parties making concerted efforts in recruiting women to run, more women throwing their hat in the ring to seek elected office, and all constituents realizing the importance of women serving as their representatives.

Kaitlin N. Sidorsky has a Ph.D. and M.A. in Political Science from Brown University and a BA in Politics and Law from Bryant University. Sidorsky is an assistant professor of Politics at Coastal Carolina University in Conway, South Carolina. All Roads Lead to Power: Appointed and Elected Paths to Public Office for US Women is her first book.

A Quick Reaction to John Singleton’s Death

By Dr. Lisa Doris Alexander

(Photo by AP Photo)

I was late to John Singleton’s cinematic view of the world. When his critically acclaimed debut film Boyz n the Hood was released in 1991, I was fifteen years old and not quite old enough to see the film in theaters. The first film of his that I saw in theaters was Rosewood and I still remember the anger and sadness I felt watching that film. As cinephiles grapple with the loss of Singleton, I want to reflect on one of his films that flew under the radar.

Growing up in Chicago, I fell in love sports before I fell in love with film. Like many sports fans, I was drawn to ESPN’s 30 for 30 series which chronicles high-profile sports figures and events. In 2010, John Singleton directed and narrated the 30 for 30 episode “Marion Jones: Press Pause.” It was one of the few episodes that focused on a female athlete.

In retrospect, Singleton’s take on Jones is fascinating. The documentary doesn’t focus on Jones’ fall from grace due to her use of Performance Enhancing Drugs. At the time of the film’s release, that portion of Jones’ life story was well-worn territory. Instead, Singleton seemed to be interested in exploring whether Jones could redeem her legacy. Let’s be clear, there is no attempt by Jones or Singleton to downplay or dismiss Jones’ mistakes. Yes, she took PEDs. Yes, she lied about it to the public and to the feds. Yes, she paid a stiff price: Jones served six months in Carswell Federal Prison. Both Singleton and Jones want the audience to believe that Jones’ story doesn’t end there. As I re-watched the documentary, I thought about how much Jones must have trusted Singleton. Given her ordeal, I doubt Jones would have agreed to go back to Carswell with someone she did not trust. Jones and her husband probably wouldn’t share video of Jones in labor with their third child with someone they did not trust. The documentary doesn’t need either of those moments; however, they tell us as much about Singleton and his approach to filmmaking as it does about Jones. Singleton could have had Jones tell her story of spending more than 45 days in solitary confinement from any location. Having Jones tell that story while the prison itself looms large in the background makes the low point in Jones’ life even more visceral. Singleton doesn’t leave the audience in that low point; we move almost immediately to one of the high points of Jones’ life: the birth of her daughter. Jones could have faded into the background and devoted herself solely to her family. Instead, Jones begins another chapter of her life by signing to play professional basketball four months after giving birth. Singleton ends his documentary here showing the audience that the future looks bright for Jones (her WNBA career only lasted two seasons, but Singleton makes you root for her).

Like most, if not all of Singleton’s protagonists, Jones isn’t just one thing. Whether his work spoke to you or not, Singleton was not here for one-dimensional African American subjects. He was often interested in exploring the people that mainstream society wasn’t interested in or had written off. We will miss his voice and his vision.

Lisa Doris Alexander is associate professor of African American studies at Wayne State University. She is the author of When Baseball Isn’t White, Straight, and Male: The Media and Difference in the National Pastime. Her book Expanding the Expanding the Black Film Canon; Race and Genre across Six Decades will publish in September.