Reproductive Autonomy

• Author: Ruth Bader Ginsburg
• Pages: 2203-2209

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Commencing in 1942 in SKINNER V. OKLAHOMA, and most intrepidly in 1973 in ROE V. WADE, the Supreme Court has secured against unwarranted governmental intrusion a decision fundamental to the course of an individual's life?the decision whether to beget or bear a child. Government action in this area bears significantly on the ability of women, particularly, to plan and control their lives. Official policy on reproductive choice may effectively facilitate or retard women's opportunities to participate in full partnership with men in the nation's social, political, and economic life. Supreme Court decisions concerning BIRTH CONTROL, however, have not yet adverted to evolving sex equality-equal protection doctrine. Instead, high court opinions rest dominantly on SUBSTANTIVE DUE PROCESS analysis; they invoke basic liberty-autonomy values difficult to tie directly to the Constitution's text, history, or structure.

Skinner marked the first occasion on which the Court referred to an individual's procreative choice as "a basic liberty." The Court invalidated a state statute providing for compulsory STERILIZATION of habitual offenders. The statute applied after a third conviction for a FELONY "involving moral turpitude," defined to include grand larceny but exclude embezzlement. The decision ultimately rested on an EQUAL PROTECTION ground: "Sterilization of those who have thrice committed grand larceny, with immunity for those who are embezzlers, is a clear, pointed, unmistakable discrimination." Justice WILLIAM O. DOUGLAS'S opinion for the Court, however, is infused with substantive due process tones: "We are dealing here with legislation which involves one of the basic CIVIL RIGHTS of man. Marriage and procreation are fundamental to the very existence and survival of the race." Gerald Gunther has noted that, in a period marked by a judicial hands-off approach to economic and social legislation, Skinner stood virtually alone in applying a stringent review standard favoring a "basic liberty" unconnected to a particular constitutional guarantee.

Over two decades later, in GRISWOLD V. CONNECTICUT (1965), the Court grappled with a state law banning the use of contraceptives. The Court condemned the statute's application to married persons. Justice Douglas's opinion for the Court located protected "zones of privacy" in the penumbras of several specific BILL OF RIGHTS guarantees. The law in question impermissibly intruded on the marriage relationship, a privacy zone "older than the Bill of Rights" and "intimate to the degree of being sacred."

In EISENSTADT V. BAIRD (1972) the Court confronted a Massachusetts law prohibiting the distribution of contraceptives, except by a registered pharmacist on a doctor's prescription to a married person. The Court avoided explicitly

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extending the right announced in Griswold beyond use to distribution. Writing for the majority, Justice WILLIAM J. BRENNAN rested the decision on an equal protection ground: "whatever the rights of the individual to access to contraceptives may be," the Court said, "the right must be the same for the unmarried and the married alike." Eisenstadt thus carried constitutional doctrine a considerable distance from "the sacred precincts of marital bedrooms" featured in Griswold.

The Court's reasoning in Eisenstadt did not imply that laws prohibiting fornication, because they treat married and unmarried persons dissimilarly, were in immediate jeopardy. Rather, Justice Brennan declined to attribute to Massachusetts the base purpose of "prescrib[ing] pregnancy and the birth of an unwanted child as punishment for fornication."

In 1977, in CAREY V. POPULATION SERVICES INTERNATIONAL, the Court invalidated a New York law prohibiting the sale of contraceptives to minors under age sixteen and forbidding commercial distribution of even nonprescription contraceptives by anyone other than a licensed pharmacist. Justice Brennan reinterpreted the pathmarking precedent. Griswold, he noted, addressed a "particularly "repulsive" intrusion, but "subsequent decisions have made clear that the constitutional protection of individual autonomy in matters of childbearing is not dependent on [the marital privacy] element." Accordingly, " Griswold may no longer be read as holding only that a State may not prohibit a married couple's use of contraceptives. Read in light of [ Eisenstadt and Roe v. Wade ], the teaching of Griswold is that the Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the State."

Roe v. Wade declared that a woman, guided by the medical judgment of her physician, has a FUNDAMENTAL RIGHT to abort her pregnancy, a right subject to state interference only upon demonstration of a COMPELLING STATE INTEREST. The right so recognized, Justice HARRY L. BLACKMUN wrote for the Court, falls within the sphere of personal privacy recognized or suggested in prior decisions relating to marriage, procreation, contraception, family relationships, child-rearing and education. The "privacy" or individual autonomy right advanced in Roe v. Wade is not explicit in our fundamental instrument of government, Justice Blackmun acknowledged; however, the Court viewed it as "founded in the FOURTEENTH AMENDMENT'S [and presumably the FIFTH AMENDMENT 's] concept of personal liberty and restrictions upon state action." Justice Blackmun mentioned, too, the district court's view, derived from Justice ARTHUR J. GOLDBERG'S concurring opinion in Griswold, that the liberty at stake could be located in the NINTH AMENDMENT'S reservation of rights to the people.

The Texas criminal abortion law at issue in ROE V. WADE was severely restrictive; it excepted from criminality "only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved." In the several years immediately preceding the Roe v. Wade decision, the Court noted, the trend in the states had been "toward liberalization of abortion statutes." Nonetheless, the Court's rulings in Roe v. Wade and in a companion case decided the same day, Doe v. Bolton (1973), called into question the validity of the criminal abortion statutes of every state, even those with the least restrictive provisions.

The sweeping impact of the 1973 rulings on state laws resulted from the precision with which Justice Blackmun defined the state interests that the Court would recognize as compelling. In the first two trimesters of a pregnancy, the state's interest was confined to protecting the woman's health: during the first trimester, "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician"; in the next three-month stage, the state may, if it chooses, require other measures protective of the woman's health. During "the stage subsequent to viability" (roughly, the third trimester), the state may protect the "potentiality of human life"; at that stage, the state "may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."

Sylvia Law has commented that no Supreme Court decision has meant more to women. Wendy Williams has noted that a society intent on holding women in their traditional role would attempt to deny them reproductive autonomy. Justice Blackmun's opinion indicates sensitivity to the severe burdens, mental and physical, immediately carried by a woman unable to terminate an unwanted pregnancy, and the distressful life she and others in her household may suffer when she lacks the physical or psychological ability or financial resources necessary for child-rearing. But Roe v. Wade bypassed the equal protection argument presented for the female plaintiffs. Instead, the Court anchored stringent review to the personal autonomy concept found in Griswold. Moreover, Roe v. Wade did not declare an individual right; in the Court's words, the decision stated a joint right of "the woman and her responsible physician ? in consultation."

The 1973 abortion rulings have been called aberrational...