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ROE V. WADE AND ITS CRITICS
protections that are granted an individual whenever a state purports to regulate or abridge any form of his liberty, however unimportant-protections against invidious distinctions, unfair procedures and wholly irrational or arbitrary state impositions are not the only types of protections the fourteenth amendment accords. Some few private interests and liberties have, throughout this century, been declared entitled to a much greater measure of respect at the hands of state legislatures and have been afforded a far more protective measure of judicial scrutiny and concern. Nor has this list of interests specially protected under the vague words of the fourteenth amendment been limited to those mentioned or plainly implied in some other clause of the Constitution.
In 1927, Justice Brandeis was able to summarize the matter in this way: Despite arguments to the contrary which have seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the states. The right of free speech, the right to teach, and the right of assembly are of course fundamental rights. . . . These may not be denied or
abridged.18 The summary itself included “the right to teach,” an interest that is not specified in the Constitution. Even the right of free speech is, by the specific terms of the Bill of Rights, protected only against federal intrusion; it has been judicial construction, over a number of years, that has found protection for this right in the ill-defined words of the fourteenth amendment.14 The same is true of the right of assembly, as well as of other guarantees of the Bill of Rights.16
The special protection afforded particular rights has gone far beyond the explicit provisions of the first eight amendments. The right of association is not mentioned in the first amendment, but the Court has deemed its protection implicit in the several guarantees of that amendment.16 The Court has also treated the right to travel as fundamental, requiring a showing of a compelling interest to support a state's burdening of the right.17 Yet no such right is specified in the Constitution; it is apparently
13 Whitney v. California, 274 U.S. 357, 373 (1927).
17 See, e.g., Dunn v. Blumstein, 405 U.S. 330 (1972); Shapiro v. Thompson, 394 U.S. 618 (1969). For cases grounding the right to travel in the due process clause, see Aptheker v. Secretary of State, 378 U.S. 500 (1964); Kent v. Dulles, 357 U.S. 116 (1958). While the Court in Aptheker recognized that first amendment rights were implicated in the broad congressional ban on issuance of passports to Communists, it had to find as a threshold matter that the right to travel was specially protected under the due process clause of the fifth amendment. It then went on to find a strong countervailing governmental interest, that of national security, which would justify some restrictions on travel but not those that also unnecessarily infringed protected first amendment rights. Zemel v. Rusk, 381 U.S. 1 (1965), followed this same analytic pattern, citing Kent and Aptheker for the proposition that "'[t]he right to travel is a part of the “liberty" of which the citizen cannot be deprived with. out due process of law under the Fifth Amendment.'” Id. at 14, quoting Kent v. Dulles,
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enough that it has come to be recognized in a series of cases as "fundamental to the concept of our Federal Union."18 Indeed, the Court went even further in the instance of voting rights. While acknowledging that there is no constitutional right, explicit or implicit, to vote in state elections, it nonetheless found a constitutionally protected right "to participate in elections on an equal basis with other citizens in the jurisdiction"19 against which state interference must be strictly scrutinized. This is so, apparently, because the question of distribution of the franchise goes to the heart of the legitimacy of government, posing "the danger of denying some citizens any effective voice in the governmental affairs which substantially affect their lives."20
The consequences of recognizing certain interests as "fundamental" have been much the same for cases arising under the due process and equal protection clauses. An unusually strong state interest has been required to justify particular state laws or executive action when the issue has arisen under the due process clause. On other occasions, the consequence has been to apply an unusually rigorous scrutiny to legislative classifications, striking down classifications under the "equal protection" clause that would have been entirely acceptable had there been a less important interest at stake. Though the formulations of the appropriate standard of review have varied, 21 the import of the judicial determination that an interest is "fundamental” is the same in both classes of cases: some interests are judicially protected against the political whim which suffices to determine most matters in a democracy.22
supra, at 125; quoted in Aptheker v. Secretary of State, supra, at 505. The Court then went on to find the restrictions on travel to certain countries justified by “the weightiest considerations of national security,” id. at 16, and to find that the restrictions did not sweep overbroadly its protected first amendment areas.
18 United States v. Guest, 383 U.S. 745, 757 (1966). Whatever may be the merits of the argument that the founders intended to protect the right to interstate travel under the privileges and immunities clause, Ely, supra note 3, at 927, the Court has not relied on this theory. Shapiro v. Thompson, 394 U.S. 618, 630 (1969) (footnote omitted): "We have no occasion to ascribe the source of this right to travel interstate to a particular constitutional provision."
19 Dunn v. Blumstein, 405 U.S. at 336.
21 See United States v. O'Brien, 391 U.S. 367, 376-77 (1968). The "compelling state interest" standard has been invoked in both due process and equal protection cases. Compare Eisenstadt v. Baird, 405 U.S. 438, 447 n.7 (1972), with Shapiro v. Thompson, 394 U.S. 618, 634 (1969), and Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 627 (1969). Usually, however, the equal protection test is phrased in terms of “strict scrutiny." See, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 670 (1966); Gunther, The Supreme Court, 1971 Term, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 passim (1972).
22 Precisely how the Court treats such specially protected interests depends upon a number of factors. See United States v. O'Brien, 391 U.S. 367, 376-77 (1968) (seeks to distinguish among degrees of impact on protected rights). See also Braunfeld v. Brown, 366 U.S. 599 (1961). But cf. Sherbert v. Verner, 374 U.S. 398 (1963).
As to the basic philosophy behind strict protection of "fundamental” rights, Justice Jackson, speaking in West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1945), of the Bill of Rights, saw in it a purpose “to withdraw certain subjects from the vicissitudes
ROE V. WADE AND ITS CRITICS
In short, the criticism that has been directed at the Court's opinion in Roe is not and could hardly be addressed to the first two steps of its argument. It is generally conceded that there are certain interests of individuals that a state cannot abridge without very good reason and that these interests have not been limited to those that were stated explicitly by the Framers of the fourteenth amendment nor even to this category as supplemented by a judicial power to incorporate some of the first eight amendments. What was said by Justice Harlan in his dissent in Poe v. Ullman23 remains true a dozen years later.
[T]wo views of the [Fourteenth] Amendment have not been accepted by this Court as delineating its scope. One view, which was ably and insistently argued in response to what were felt to be abuses by this Court of its reviewing power, sought to limit the provision to a guarantee of procedural fairness. . . . The other view which has been rejected would have it that the Fourteenth Amendment, whether by way of the Privileges and Immunities Clause or the Due Process Clause, applied against the States only and precisely those restraints which had prior to the Amendment been applicable merely to federal action. However, "due process" in the consistent view of this Court has ever been a broader concept than the first view and more flexible than the second.24
Though it is thus clear that the fourteenth amendment must be interpreted more broadly than a mere protection of fair procedure, and more flexibly than a mere license to incorporate some of the first eight amendments, a crucially important question remains. At the heart of scholarly debate in this area of constitutional law is the problem of defining the boundaries of the judicial power to limit legislative action. Before turning to this issue, however, let us look at the remaining steps of the Court's argument in Roe.
B. The Court Has Long Recognized and Treated as "Fundamental” a
Realm of Private Decision as to Matters of Marriage, Procreation and
Child Rearing The Court in Roe held that among the "fundamental” fourteenth amendment rights is a category that encompasses protection of individual freedom of choice in matters of marriage, procreation and child rearing. 28 The line of precedent on which it relied begins almost half a century ago. In the first of these cases, Meyer v. Nebraska,26 a state ordinance forbade the teaching of German in any school to anyone who had not passed the eighth grade. The Court found that the right of parents to control the
of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts."
28 367 U.S. 497 (1961).
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education of their children was within the concept of "liberty" under the fourteenth amendment,27 and went on to condemn the statute, as it affected a teacher and child in a private school, as inadequately related to a legitimate state purpose. Two years later, in Pierce v. Society of Sisters,2 the fourteenth amendment "liberty of parents and guardians to direct the upbringing and education of children under their control,"29 was invoked to strike down a state statute requiring that children be sent to public schools. And, in Prince v. Massachusetts,30 the Court-while sustaining the state action—again affirmed the existence of a “private realm of family life which the state cannot enter"31 without substantial justification.
Skinner v. Oklahoma32 involved a state law compelling sterilization of “habitual criminals.” While framing the case in equal protection terms, the Court recognized the presence of an interest that calls for a much stricter scrutiny than that normally given in equal protection cases: “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."33 This sentiment was echoed in Griswold v. Connecticut,34 where the Court noted that “[w]e deal with a right of privacy older than the Bill of Rights . . ..”36 In Griswold, statutes that forbade the use of contraceptives by married couples, and the giving of
27 Id. at 399.
29 Id. at 534-35. Although the Court has in recent years discerned first amendment elements in Meyer and Pierce, see Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (freedom of thought), Wisconsin v. Yoder, 406 U.S. 205 (1972) (freedom of religion), the cases themselves were not framed in such terms. And, though they are products of the Lochner era, see Ely, supra note 3, at 932 n.79, they have been a constant point of reference down to the present day. In addition to the cases discussed in the text accompanying notes 30-47 infra, see, e.g., United States v. Kras, 409 U.S. 434 (1973); Wisconsin v. Yoder, supra, at 232-34. Though the Court in Yoder found in Pierce a free exercise dimension, it did not thus limit its reading of the case; nor could it have, since the case involved not just a parochial school but also a secular military academy. Id. at 239 (White, J., concurring).
30 321 U.S. 158 (1944). 31 Id. at 166: It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. This special relationship between parent and child was reaffirmed in Levy v. Louisiana, 391 U.S. 68, 71 (1968), a decision which is not otherwise explicable on normal equal protection grounds: "The rights asserted here involve the intimate, familial relationship between a child and his own mother.”
82 316 U.S. 535 (1942).
88 Id. at 541. This reading of the case was expressly confirmed in San Antonio Ind. School Dist. v. Rodriguez, 93 S. Ct. 1278, 1297 n.76 (1973): "Implicit in the Court's opinion is the recognition that the right of procreation is among the rights of personal privacy protected under the Constitution.” Though the Court in Skinner spoke in traditional equal protection terms, it in fact exercised a very close scrutiny of the statute involved. Indeed, the larceny-embezzlement distinction that Oklahoma drew would not be deemed irrational if the power of the state to punish one by a more severe prison term than the other were in question.
84 881 U.S. 479 (1965). 86 Id. at 486.
ROE V. WADE AND ITS CRITICS
advice as to such use, were struck down as a violation of the marital right to privacy. While seven of the Justices agreed as to the existence of such a right, they divided as to its source.36 Nonetheless it is apparent that, whatever the source, the right of a married couple to make its own decisions about contraception was clearly linked with the zone of protection from unwarranted government intrusion in familial and procreative affairs established by Meyer, Pierce, Prince and Skinner.37
Two years later, in Loving v. Virginia,38 the Court reaffirmed the protected status of marital interests under the due process clause, noting that "[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."'89 Marriage interests were also at the core of the due process protection in Boddie v. Connecticut,40 in which the Court held that access to the courts in a divorce case could not, in contrast to such access in an ordinary civil suit, be conditioned on the payment of fees by an indigent.“
Contraception was again a central issue in Eisenstadt v. Baird,42 in which a number of the questions left open in Griswold were raised. The Massachusetts statutes, unlike those considered in Griswold, proscribed distribution of contraceptives, although not in all circumstances.48 The decision
36 Justice Douglas, for the Court, found the underpinnings of a general right to privacy in the “penumbras” of the Bill of Rights, id. at 484-85; Justice Goldberg (with Warren, C.J., & Brennan, J.) found the right of privacy in the marital relation to be implicit in the constitutional scheme, and not tied to particular enumerated guarantees, seeing in the ninth amendment an indication that the category of “fundamental" rights extended be. yond those specifically mentioned in the Bill of Rights. Id. at 494-96. For Justice Harlan (and apparently for Justice White), "[t]he Due Process Clause of the Fourteenth Amendment stands ... on its own bottom." Id. at 500.
87 While the Court raised the specter of police intrusion in the bedroom, id. at 48586, this should not mislead one into thinking that this case involved no more than the possibility of outrageous government prying. The Court could have forbidden police in. trusions without striking down the statute. Otherwise valid regulations do not usually stand or fall on the possibility of unconstitutional enforcement–indeed, if this was the Court's logic, it has shown no disposition to follow that logic the short step to protecting other sexual activity against similarly outrageous possibilities. In fact, the "right" which the case affirmed implicitly included a right of access to information about contraception (plaintiffs were the operators of a birth-control clinic). See Dixon, The Griswold Penumbra: Constitutional Charter for an Expanded Law of Privacy, 64 Mich. L. Rev. 197, 212-13 (1965). As Eisenstadt v. Baird, 405 U.S. 438 (1972), later implicitly made clear, this right of access precludes much state regulation of distribution of contraceptives, a question the Court in Griswold explicitly left open. See note 46 infra.
88 388 U.S. 1 (1967).
39 Id. at 12. The due process clause was an alternatė ground of decision in this case striking down Virginia's anti-miscegenation laws; the Court's decision placed primary emphasis on the equal protection clause.
40 401 U.S. 371 (1970). Alone among the cases under discussion, Boddie was not cited in Roe.
41 Although there is language in this case that indicates that the decision turned on the availability of alternative forums of resolution, that was only one aspect of the decision, as the Court's discussion of Boddie in United States v. Kras, 409 U.S. at 440-46, makes clear. Indeed, Justice Douglas' concurrence in Boddie, 401 U.S. at 385, vigorously attacks what he recognizes as Justice Harlan's characterization of marriage as a fundamental interest.
42 405 U.S. 438 (1972). 43 Specifically, the statute as construed by the Supreme Judicial Court (1) allowed mar