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).