The constitutional right to abortion is, in reality, a variation of a “right of privacy” that has its origins in the late 19th Century. Americans think of abortion rights as having begun with the Supreme Court’s 1973 decision in Roe v. Wade, but another point of origin might well be in the Supreme Court’s 1891 ruling in the case of Clara L. Botsford – Union Pacific Railway v. Botsford.
“No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” So wrote Justice Horace Gray for the Court in that case.
The case arose after Clara Botsford suffered serious head injuries when, asleep in the lower berth of a Union Pacific sleeping car, the upper berth came loose and fell on her. She sued the railroad for negligence. Ultimately, the jury ruled for her, and awarded $10,000 in damages. Before the trial, the railroad demanded that she undergo surgery to determine the exact nature of her injuries. She resisted, and won a ruling from the judge barring the procedure. The Supreme Court ended the case in her favor after the railroad appealed the verdict.
Justice Gray traced her right of privacy back to an 1871 treatise by Thomas M. Cooley, a famous state Supreme Court Justice in Michigan and a highly regarded scholar of the law. Cooley had written: “The right to one’s person may be said to be a right of complete immunity; to be let alone.”
In 1890, another scholarly work, “The Right to Privacy,” appeared in the Harvard Law Review, written by Boston lawyers Samuel D. Warren and Louis D. Brandeis (who later became one of the Supreme Court’s most influential Justices). Their article began: “That the individual shall have full protection in person and in property is a principle as old as the common law.” Those authors, too, relied in part on Judge Cooley.
Later, serving on the Court, Justice Brandeis again borrowed Cooley’s phrase in arguing that the Constitution should guarantee “a right to be let alone – the most comprehensive of rights and the right most favored by civilized men.”
It is noteworthy, however, that Brandeis was making that point in a dissenting opinion in 1928, in the case of Olmstead v. United States. The decision rejected a claim that government use of wiretapping to enforce liquor prohibition laws was unconstitutional under the Fourth Amendment.
At that time, and for another 37 years, a “right of privacy” was not acknowledged by the Court to be a constitutional right. From Thomas Cooley’s treatise in 1871 onward, such a “right to be let alone” existed only as part of traditional “common law” principles or as a “tort” (a legal wrong) that could be the basis for private lawsuits.
It was not until 1965, when the Court decided the case of Griswold v. Connecticut, that the right was accepted explicitly as a part of the Constitution. That decision, striking down a state law that made it a crime to dispense birth control devices, was made up of a combination of constitutional theories based on implications from various parts of the Bill of Rights.
Incidentally, there appears to be no more than a metaphysical difference between a right OF privacy and a right TO privacy; in the law, they seem to be used interchangeably in discussing a “zone of privacy” in which the individual is insulated from state interference.
It thus is clear that the right did not emerge as a new invention of Justice Harry A. Blackmun when he wrote the Court’s 1973 opinion for a 7-to-2 majority in Roe v. Wade, establishing a constitutional right for a woman to end a pregnancy. Indeed, Clara Botsford’s case, with its principle of bodily integrity, was the first one cited by Blackmun in a recounting of the legal history of privacy.
Opponents of abortion, and conservative scholars and politicians, are quick to note that the word “privacy” appears nowhere in the Constitution; that is correct. And they speak with derision of this passage written by Justice William O. Douglas in the 1965 Griswold privacy ruling: “Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” (Conservative Justice Clarence Thomas, an unrelenting critic of Roe v. Wade, has noted sarcastically that he has a framed version of that quotation on the wall in his chambers.)
Perhaps talk of “penumbras” and “emanations” makes the right of privacy an easy target for its critics, but the reality is that the right over time has taken on quite definite meanings, and has proved to be remarkably resilient.
Consider this litany, which is taken from Justice Blackmun’s recital in his Roe opinion of prior Supreme Court precedents – some of which pre-dated the formal recognition of a constitutional right of privacy in 1965:
** A right to read what one wishes within one’s own home.
** A right to live peacefully in one’s own home without police intrusion.
** A right to use a public telephone in a booth without being wiretapped.
** A right to decide what kind of education one’s children will receive, including a right to send the children to a parochial school.
** A right to choose one’s marital partner, without restrictions as to race.
** A right to use birth-control measures without state interference.
Blackmun’s opinion noted the wide array of constitutional provisions that had been read – at least by implication — as the foundations for those rights, including specific rights protected by the First, Third, Fourth and Fifth Amendments, and even the Ninth Amendment – a catchall provision that says that other rights may exist even if not specifically enumerated in the Constitution.
For Blackmun, the key constitutional provision was the Fourteenth Amendment, and what he called that provision’s “concept of personal liberty and restrictions on state action.” (That Amendment’s liberty and due process clauses have been interpreted repeatedly by the Court to embrace nearly all of the specific rights that were first laid down in 1791 in the Bill of Rights as checks on the federal government. Those rights are now considered “incorporated” into the Fourteenth Amendment as checks on state government, too. Roe v. Wade, like most abortion decisions by the Court, involved state laws.)
The Fourteenth Amendment’s principles, according to the Blackmun opinion, are “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” A state, the decision said, cannot “deny this choice altogether” – in short, a state can regulate abortion to some extent, but cannot ban it outright.
The opinion declared that the right to decide to have an abortion was not an “absolute” right that a woman can act upon “at whatever time, in whatever way, and for whatever reason she alone chooses….Some state regulation is appropriate.”
The Roe decision went on to spell out a three-trimester formula:
In the first trimester (12 or 13 weeks into pregnancy), the woman is free to choose to end her pregnancy if she consults with a doctor.
In the second trimester (after about 12 or 13 weeks and up to 24 weeks), the decision may be regulated by a state law that seeks to protect the pregnant woman’s health. (The 24th week is generally understood in medical practice to be the earliest point at which a fetus is “viable” – that is, capable of surviving if delivered at that gestational age.)
In the third trimester (after fetal viability), the state may regulate the woman’s choice in order to protect fetal life; if it chooses to ban abortion at that point, it can do so only if it assures protection of the woman’s life or health, as determined by her doctor.
In abortion rulings after Roe, the Court applied the three-trimester formula up until it decided the case of Planned Parenthood v. Casey in 1992. In that ruling, the constitutional right of privacy that was the foundation of the Roe decision had become a sweeping affirmation of the woman’s right to “liberty” under the Fourteenth Amendment’s Due Process Clause. That single word, “liberty,” appears over and over again throughout the main Casey opinion, which was written by a coalition of Justices Anthony M. Kennedy, Sandra Day O’Connor and David H. Souter.
That ruling, though, did declare that the Court had now found that the three-trimester formula was too rigid, so it said it would from then on weigh each restriction by a test of whether it imposed an “undue burden” on the woman’s right to decide to end a pregnancy.
Even so, that opinion put particular stress on one conclusion: the “undue burden standard” does not disturb the part of the Roe decision that “a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability….The woman’s right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce.”
In other words, a flat ban on abortion would clearly be unconstitutional if imposed before about 24 weeks of pregnancy. The Court, in the 48 years since the Roe decision, has never abandoned that approach. That is exactly what the state of Mississippi has asked the Court to do in the case that comes up for a hearing next week.
Tomorrow, the third article appearing in this series will closely examine the issues in the Mississippi case.