Roe v. Wade than the psychological phenomenon that keeps bombardiers sane-the fact that it is somehow easier to "terminate" those you cannot seeand am inclined to think it does: that the mother, unlike the unborn child, has begun to imagine a future for herself strikes me as morally quite significant. But God knows I'm not happy with that resolution. Abortion is too much like infanticide on the one hand, and too much like contraception on the other, to leave one comfortable with any answer; and the moral issue it poses is as fiendish as any philosopher's hypothetical.51 Of course, the Court often resolves difficult moral questions, and difficult questions yield controversial answers. I doubt, for example, that most people would agree that letting a drug peddler go unapprehended is morally preferable to letting the police kick down his door without probable cause. The difference, of course, is that the Constitution, which legitimates and theoretically controls judicial intervention, has some rather pointed things to say about this choice. There will of course be difficult questions about the applicability of its language to specific facts, but at least the document's special concern with one of the values in conflict is manifest. It simply says nothing, clear or fuzzy, about abortion.52 The matter cannot end there, however. The Burger Court, like the Warren Court before it, has been especially solicitous of the right to travel from state to state, demanding a compelling state interest if it is to be inhibited. 53 Yet nowhere in the Constitution is such a right mentioned. It is, however, as clear as such things can be that this right was one the framers intended to protect, most specifically54 by the Privileges and Immunities Clause of Article IV.55 The right is, moreover, plausibly inferable from the system of government, and the citizen's role therein, contemplated by the Constitution.50 The Court serious thought-though the practical difference here is not likely to be great-to placing the critical line at quickening rather than viability. See note 40 supra. 51. Some of us who fought for the right to abortion did so with a divided spirit. We have always felt that the decision to abort was a human tragedy to be accepted only because an unwanted pregnancy was even more tragic. Stone, supra note 22. 52. Of course the opportunity to have an abortion should be considered part of the "liberty" protected by the Fourteenth Amendment. See p. 935 infra. 53. See, e.g., Dunn v. Blumstein, 405 U.S. 330 (1972); Shapiro v. Thompson, 394 U.S. 618 (1969). 54. See also Edwards v. California, 314 U.S. 160 (1941). 55. See United States v. Whecler, 254 U.S. 281, 294 (1920); Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, 75 (1872); U.S. ARTS. CONFED. art. IV; 3 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 112 (1911); cf. THE FEDERALIST, No. 42, at 307 (Wright cd. 1961). 56. See Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1867); C. BLACK, STRUCTURE AND Relationship IN CONSTITUTIONAL LAW (1969). The Court seems to regard the opportunity to travel outside the United States as merely an aspect of the "liberty" that under the Fifth and Fourteenth Amendments cannot be denied without due process. See Zemel v. Rusk, 381 U.S. 1, 14 (1965). Cf. p. 935 infra. 57-782 O 76 18 The Yale Law Journal Vol. 82: 920, 1973 in Roe suggests an inference of neither sort-from the intent of the framers,57 or from the governmental system contemplated by the Constitution-in support of the constitutional right to an abortion. What the Court does assert is that there is a general right of privacy granted special protection—that is, protection above and beyond the baseline requirement of "rationality"-by the Fourteenth Amend ment,58 and that that right "is broad enough to encompass" the right to an abortion. The general right of privacy is inferred, as it was in Griswold v. Connecticut,59 from various provisions of the Bill of Rights manifesting a concern with privacy, notably the Fourth Amendment's guarantee against unreasonable searches, the Fifth Amendment's privilege against self-incrimination, and the right, inferred from the First Amendment, to keep one's political associations secret.0 One possible response is that all this proves is that the things explicitly mentioned are forbidden, if indeed it does not actually demonstrate a disposition not to enshrine anything that might be called a general right of privacy.61 In fact the Court takes this view when it suits its purposes. (On the same day it decided Roe, the Court held that a showing of reasonableness was not needed to force someone to provide a grand jury with a voice exemplar, reasoning that the Fifth Amendment was not implicated because the evidence was not "testi 57. Abortions had, of course, been performed, and intermittently proscribed, for centuries prior to the framing of the Constitution. That alone, however, need not be dispositive. See p. 929 infra & note 97 infra. 58. The Court does not seem entirely certain about which provision protects the right to privacy and its included right to an abortion. Appellant would discover this right in the concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras or among those rights reserved to the people by the Ninth Amendment. 93 S. Ct. at 715. ... ... This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. Id. at 727. This inability to pigeonhole confidently the right involved is not important in and of itself. It might, however, have alerted the Court to what is an important question: whether the Constitution speaks to the matter at all. 59. 381 U.S. 479 (1965). 60. See NAACP v. Alabama, 357 U.S. 449 (1958), relied on in Griswold, 381 U.S. at 483. The Roe Court's reference to Justice Goldberg's concurrence in Griswold for the proposition that "the roots of" the right of privacy can be found in the Ninth Amendment, 93 S. Ct. at 726, misconceives the use the earlier opinion made of that Amendment. See 381 U.S. at 492-93. A reference to "the penumbras of the Bill of Rights," 93 S. Ct. at 726, can have no content independent of a description of some general value or values inferable from the provisions involved (and therefore assignable to their penumbras). See San Antonio Independent School Dist. v. Rodriguez, 41 U.S.L.W. 4407, 4438 (U.S. March 21, 1973) (Marshall, J., dissenting); pp. 929-30 infra. 61. See Katz v. United States, 389 U.S. 347, 364 (1967) (Black, J., dissenting); Griswold v. Connecticut, 381 U.S. 479, 529 (Stewart, J., dissenting). monial” and that the Fourth Amendment did not apply because there was no “seizure."62) But this approach is unduly crabbed. Surely the Court is entitled, indeed I think it is obligated, to seek out the sorts of evils the framers meant to combat and to move against their twentieth century counterparts." 64 63 Thus it seems to me entirely proper to infer a general right of privacy, so long as some care is taken in defining the sort of right the inference will support. Those aspects of the First, Fourth and Fifth Amendments to which the Court refers all limit the ways in which, and the circumstances under which, the government can go about gathering information about a person he would rather it did not have. Katz v. United States,65 limiting governmental tapping of telephones, may not involve what the framers would have called a “search," but it plainly involves this general concern with privacy.66 Griswold is a long step, even a leap, beyond this, but at least the connection is discernible. Had it been a case that purported to discover in the Constitution a "right to contraception," it would have been Roe's strongest precedent. But the Court in Roe gives no evidence of so regarding it,68 and rightly not.69 Commentators tend to forget, though the Court 67 62. United States v. Dionisio, 93 S. Ct. 764 (1973). See also United States v. Mara, 93 S. Ct. 774 (1973) (handwriting exemplars), also decided the same day as Roe, and Couch v. United States, 93 S. Ct. 611 (1973) (finding no privacy interest in records a taxpayer had turned over to her accountant) decided thirteen days earlier. 63. [T]he proper scope of [a constitutional provision], and its relevance to contemporary problems, must ultimately be sought by attempting to discern the rea. sons for its inclusion in the Constitution, and the evils it was designed to eliminate. United States v. Brown, 381 U.S. 437, 442 (1965). See also Weems v. United States, 217 U.S. 349, 373 (1910); Reich, Mr. Justice Black and the Living Constitution, 76 HARV. L. REV. 673 (1963); Note, The Bounds of Legislative Specification: A Suggested Approach to the Bill of Attainder Clause, 72 YALE L.J. 330 (1962). 64. Cf. Fried, Privacy, 77 YALE L.J. 475 (1968). The Third Amendment, mentioned in Griswold though not in Roe, surely has this aspect to it as well, though it probably grew in even larger measure out of a general concern with the pervasiveness of military power. 65. 389 U.S. 347 (1967). 66. Cf. Schmerber v. California, 384 U.S. 757 (1966). 67. Contraception and at least early abortion obviously have much in common. See Stone, supra note 22. 68. The Roe opinion does not rely on the obvious contraception-abortion comparison and indeed gives no sign that it finds Griswold stronger precedent than a number of other cases. See 93 S. Ct. at 726-27; note 79 infra. In fact it seems to go out of its way to characterize Griswold and Eisenstadt v. Baird, 405 U.S. 438 (1972), as cases concerned with the privacy of the bedroom. See 93 S. Ct. at 730; note 79 infra. It is true that in Eisenstadt the Court at one point characterized Griswold as protecting the "decision whether to bear and beget a child," 405 U.S. at 453, but it also, mysteriously in light of that characterization, pointedly refused to decide whether the earlier case extended beyond use, to the distribution of contraceptives. Id. at 452-53. Nor is there any possibility the refusal to extend Griswold in this way was ill-considered; such an extension would have obviated the Eisenstadt Court's obviously strained performance respecting the Equal Protection Clause. 69. Admittedly the Griswold opinion is vague and openended, but the language quoted in the text at note 72 infra seems plainly inconsistent with the view that it is a case not about likely invasions of the privacy of the bedroom but rather directly enshrining a right to contraception. The Yale Law Journal Vol. 82: 920, 1973 plainly has not,70 that the Court in Griswold stressed that it was invalidating only that portion of the Connecticut law that proscribed the use, as opposed to the manufacture, sale, or other distribution of contraceptives. That distinction (which would be silly were the right to contraception being constitutionally enshrined) makes sense if the case is rationalized on the ground that the section of the law whose constitutionality was in issue was such that its enforcement would have been virtually impossible without the most outrageous sort of governmental prying into the privacy of the home.71 And this, indeed, is the theory on which the Court appeared rather explicitly to settle: The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that "a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." NAACP v. Alabama, 377 U.S. 288, 307. Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.72 Thus even assuming (as the Court surely seemed to) that a state can constitutionally seek to minimize or eliminate the circulation and use of contraceptives, Connecticut had acted unconstitutionally by selecting a means, that is a direct ban on use, that would generate intolerably intrusive modes of data-gathering.73 No such rationalization is attempted by the Court in Roe-and understandably not, for whatever else may be involved, it is not a case about governmental snooping.74 70. See Eisenstadt v. Baird, 405 U.S. 438, 443 (1972). Cf. 93 S. Ct. at 730; note 79 infra. 71. Stanley v. Georgia, 394 U.S. 557 (1969), cited by the Court in Roe, might also be rationalized on such a theory, cf. id. at 565, though it reads more like a "pure" First Amendment case concerned with governmental attempts at thought control. 72. 381 U.S. at 485-86 (emphasis in original). 73. See also Poe v. Ullman, 367 U.S. 497, 548-49, 553-54 (1961) (Harlan, J., dissenting). That the Court in Griswold saw fit to quote Boyd v. United States, 116 U.S. 616, 630 (1886), is also significant. See 381 U.S. at 484-85 n.*. See also United States v. Grunewald, 233 F.2d 556, 581-82 (2d Cir. 1956) (Frank, J., dissenting). The theory suggested in Poe v. Ullman, supra, at 551-52 (Harlan, J., dissenting), extending heightened protection to activities (though it turns out to be some activities, note 31 supra) customarily performed in the home, is also inapplicable to Roe. 74. Of course in individual cases the government might seek to enforce legislation restricting abortion, as indeed it might seek to enforce any law, in ways that violate the Roe v. Wade The Court reports that some amici curiae argued for an unlimited right to do as one wishes with one's body. This theory holds, for me at any rate, much appeal. However, there would have been serious problems with its invocation in this case. In the first place, more than the mother's own body is involved in a decision to have an abortion; a fetus may not be a "person in the whole sense," but it is certainly not nothing. Second, it is difficult to find a basis for thinking that the theory was meant to be given constitutional sanction: Surely it is no part of the "privacy" interest the Bill of Rights suggests.76 75 [I]t is not clear to us that the claim . . . that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy....77 Unfortunately, having thus rejected the amici's attempt to define the bounds of the general constitutional right of which the right to an abortion is a part,78 on the theory that the general right described has little to do with privacy, the Court provides neither an alternative definition nor an account of why it thinks privacy is involved. It Fourth Amendment or otherwise intrude upon the general privacy interest the Bill of Rights suggests. The Court does not suggest, however, that the laws at issue in Roe are in any sense unusually calculated to generate such intrusions. 75. 76. See pp. 925-26 supra. See pp. 929-30 supra. 77. 93 S. Ct. at 727. 78. The Court's rejection of the "non-paternalism” argument is of course underlined by the health regulations it is prepared to allow during the second trimester, before the interest in protecting the fetus is cognizable. See p. 921 supra. only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967), procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-42 (1942), contraception, Eisenstadt v. Baird, 405 U.S. 438, 453-54 (1972); id. at 460, 463-65 (White, J., concurring), family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944), and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, [262 U.S. 390, 399 (1923)]. 93 S. Ct. at 726-27. The Palko test was stated and has heretofore been taken as a definition (of questionable contemporary vitality) of due process generally, not of privacy. Loving was a case involving explicit racial discrimination and therefore decidable (and decided) by a rather straightforward application of the Equal Protection Clause. See Ely, supra note 28, at 1230. And while the Loving Court did, inexplicably, append a reference to due process, it did not mention privacy. Skinner invalidated the Oklahoma criminal sterilization act's distinction between larcenists and embezzlers. Although it too did not allude to privacy, it did suggest it was applying a higher equal protection standard than usual. Why it did so is unclear. "Faced with the possibility of a finding of cruel and unusual punishment and the virtual certainty of invalidation under the clause proscribing ex post facto laws, the state declined to argue the case on the theory that the... Act was a penal statute, and therefore tried to justify the distinction in 'regulatory' terms." Ely, supra, at 1235 n.101. That being so, the state was unable to come up with even a plausible justification for the distinction. Eisenstadt was a case applying "traditional" equal protection standards, albeit in a less than satisfactory way. See Note, Legislative Purpose, Rationality, and Equal Protection, 82 YALE L.J. 123 (1972). The |