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purported to find the statutes in violation of the equal protection clause, 44 thereby leaving open the issue of whether states could totally forbid distribution of contraceptives. In fact the opinion made it clear that any regulation of contraception would be very strictly scrutinized.46 Significantly, the Court also rejected a limitation of Griswold to the marriage relation:

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.46

It may be that these cases could, with some effort, have been individually distinguished on narrow grounds; 47 taken together, however, they clearly delineate a sphere of interests—which the Court now groups and denominates "privacy"-implicit in the "liberty" protected by the fourteenth amendment. At the core of this sphere is the right of the individual to make for himself-except where a very good reason exists for placing the decision in society's hands—the fundamental decisions that shape family life: whom to marry; whether and when to have children; and with what values to rear those children.

It is hardly surprising that the Court has come to protect these interests over the last half century. Our political system is superimposed on and presupposes a social system of family units, not just of isolated individuals. No assumption more deeply underlies our society than the assumption that it is the individual who decides whether to raise a family, with whom to raise a family, and, in broad measure, what values and beliefs to inculcate in the children who will later exercise the rights and responsibilities of citizens and heads of families. Any sharp departure from this assumption would cut as deeply at the underlying conditions of acceptance of our society and governing institutions as a broad restriction on the right to vote or hold office.

This point is as important as it is easy to overlook. It is, of course, obvious that the family has historically been a fundamental unit of our society for such purposes as socialization and nurture, and that it ranks in importance with the individual as a unit of economic and political decision making. 48 What is far less obvious is that the family unit does not simply

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48 Id.

ried persons to obtain contraceptives for the prevention of pregnancy only from a doctor or druggist; (2) did not allow single persons to obtain contraceptives for that purpose; but (3) did allow anyone to obtain contraceptives from any source to prevent the spread of disease, Id. at 441-42.

44 See Gunther, supra note 21, at 34-35.

46 405 U.S. at 453. While the Court in Eisenstadt avoids a direct confrontation with the issues left open in Griswold, it seems clear that state restrictions on use of contra. ceptives by unmarried persons, or on distribution, would be unlikely to survive strict Court scrutiny. See Note, The Supreme Court, 1971 Term, 86 Harv. L. Rev. 52, 119-22 (1972).

47 See notes 29, 33, 37, 39, 41, 45 & 46 supra.

48 To adduce one simple example, parents are expected to represent whole families for governmental purposes ranging from taxation to voting.

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co-exist with our constitutional system; it is an integral part of it. In democratic theory as well as in practice, it is in the family that children are expected to learn the values and beliefs that democratic institutions later draw on to determine group directions. The immensely important power of deciding about matters of early socialization has been allocated to the family, not to the government. Thus, if a state government decided that all children would be reared and educated from birth under such complete control of a state official that the parental role would be minimal, the effect on our present notions of democratic government would be immense. The form of our government would not change; elections would go on in the same way and group decisions would be arrived at by the same processes as are now used. The substance of our system, however, would be vastly different. The outcomes of the political system would be radically altered, for the government would then be vested with the capacity to influence powerfully, through socialization, the future outcomes of democratic political processes. The fact that individuals would remain legally free to believe and speak as they wished would not diminish the immense impact of centralizing the processes through which values and beliefs are instilled in the people who will later participate in group decision making. A similar, if less thoroughgoing, alteration of the present allocation of powers in our society could be provided by controlling who is allowed to have children or otherwise regulating the selection of marital partners.49

In this light, the long line of precedent in this area under the fourteenth amendment is entirely principled. For the Court to have declined strict review of state legislation that limits the private right to choose whom to marry and whether to raise a family, or to decide within wide bounds how to rear one's children, would have been to leave the most basic substructure of our society and government subject to change at political whim. To have treated these matters as rather remote emanations of protections found in the first amendment or elsewhere in the Bill of Rights would have been disingenuous at best, ineffective at worst.

The similarity of the protected rights in the areas of marriage, procreation and child rearing to the expressly protected rights in the area of religion is striking. Like religious beliefs, beliefs in these areas are often deeply held, 50 involving loyalties fully as powerful as those that bind the citizen to the state. Decisions on these matters tend to affect the quality of an entire lifetime, and may not easily be reversed. The choice of whom to marry or whether or not to have a child, once taken, will have as strong an impact on the life patterns of the individuals involved for years to come as any adoption of a religious belief or viewpoint. Decisions of families in the area of “privacy,” like decisions of individuals in the area of religion, cannot easily be controlled by the state; and the devices needed for effective

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49 See, e.g., the statute involved in Skinner, 316 U.S. at 536-37.

80 As is true of all fundamental rights, these may be deeply important to some and irrelevant to others.


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enforcement of state policy may themselves be so intrusive as to be deeply offensive. At the same time, the impact of an individual's decisions on questions of marriage, procreation and child rearing diminishes greatly beyond the setting of the family itself, just as most religious practices affect primarily those who adopt and engage in them.61 In other words, the impact of such decisions falls largely within one of the basic units of our society and thus does not involve the powerful interest of society in regulating the relationships among its familial and individual units.62

In these ways the area that the Court has come to call "privacy" shares with the area of religion sharp distinctions from the areas that the states may regulate with greater freedom.68 Regulation of economic interests does not invade the basic units of society, nor does it touch emotions as deeply held as those in the areas of religion and family, nor, short of the unconstitutional taking of private property without compensation,54 does it generally involve decisions with far-reaching effects on the entire life of the individual. Further, economic regulation, unlike regulation of "privacy" interests, deals directly with that interaction among units which is the primary concern of political arrangements.68 Similarly, the Court would not be required to find that either all consensual sexual activity or the use of soft drugs was protected. To whatever degree such behavior may be socially harmless, it certainly does not produce the same kind of nearly irrevocable effects, nor spring from the same deep well of cultural values as do decisions about marriage, procreation, or child rearing 56

Like many matters of constitutional law, the boundaries separating these areas are not marked off by nature in sharp outline, yet they can be drawn. Laws forbidding couples to have more than two children or requiring sterilization under certain circumstances do differ importantly from regulation of economic arrangements, more transient sexual activity, or the use of drugs. The former deserve strict scrutiny; the latter do not. This is not to say that there will not be hard cases, but rather that the Court's decisions from Meyer through Eisenstadt fall clearly within a principled framework that can be applied in determining whether the interests pressed

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61 Even where very important societal interests exist, as in education and child welfare, they may have to yield to such parental interests. Wisconsin v. Yoder, 406 U.S. at 224-29.

62 This distinction was recognized in Stanley v. Georgia, 394 U.S. 557, 567 (1969), in which the Court distinguished between the state's proper interest in regulating public distribution of obscene material, upheld in Roth v. United States, 354 U.S. 476 (1957), and its attempt to regulate private enjoyment of such material. But cf. United States v. Reidel, 402 U.S. 351 (1971).

83 Obviously, this does not imply that either area is free from regulation. See Braunfeld v. Brown, 366 U.S. 599 (1961); Prince v. Massachusetts, 321 U.S. 158 (1944).

84 The Constitution specifically prohibits the taking of property without just compensation, U.S. Const. amends. V, XIV.

65 See, e.g., Emerson, Nine Justices in Search of a Doctrine, 64 Mich. L. Rev. 219, 224 (1965).

66 The Court in Roe recognized as much, 410 U.S. at 154, in observing that the right to "privacy" in this area does not include "an unlimited right to do with one's body as one pleases."

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forward in future contexts deserve similar protection. Difficulties in drawing lines will appear, but they will be no greater than the present difficulties in defining the scope of "religious" belief or practice under the free exercise clause of the first amendment.57 In both cases the importance of the protection justifies the effort required in defining its boundaries. C. The Court's Decision in Roe Was Justified by the Precedent and Prin

ciples That, over Fifty Years, Have Led to a Recognition of "Privacy"

Rights Plainly the right of a couple to decide whether or not to prevent the birth of a child by abortion falls within the class of interests involving marriage, procreation and child rearing which the Court has considered "fundamental" in Meyer, Pierce, Prince, Skinner, Griswold, Loving, Boddie and Eisenstadt. The question of constitutionality in the case of abortion statutes is a more difficult one than that involved in Griswold and Eisenstadt only because the asserted state interest is more important, not because of any difference in the individual interests involved. The couple's right to decide whether to have a family is the very same right as that established and protected in the cases dealing with contraception; considerations identical to those that justify protecting the broader class require careful scrutiny of regulations concerning abortion. The point is made most clearly by considering what a conclusion that abortion did not fall within a category of specially protected interests would have meant. A state, on a slender showing of rationality, could have required abortions—perhaps as incident to limiting a woman to two children--unless of course the fetus' rights were fundamental even though the mother's were not. It could have forced a woman to carry the child of her rapist to term; it could have conditioned the right to an abortion on the payment of a fee or the discretionary approval of a state official.

Recognizing that abortion falls within the class of fundamental interests of “privacy" does not mean that statutes prohibiting abortion had to be considered unconstitutional-only that they had to be justified by compelling state interests. The Court might logically have concluded that the state's interest in protecting the unborn was compelling enough to override the parents' rights, 68 without seriously threatening the broad range of individual rights already established under the line of decisions from Meyer through Eisenstadt. What it could not do, unless it was prepared to discard the principles of those cases, was to avoid evaluating the state's interest to see if it justified taking from the mother all discretion in the matter of abortion. Striking the necessary balance plainly required an agonizingly

67 See Wisconsin v. Yoder, 406 U.S. 205, 215-19 (1972); Welsh v. United States, 398 U.S. 333 (1970); United States v. Seeger, 380 U.S. 163 (1965). Cf. People v. Woody, 61 Cal. 2d 716, 394 P.2d 813, 40 Cal. Rptr. 69 (1964).

88 The Roe Court makes clear that it is not reaching or deciding the question whether it would reach the same result were the father's decision to be contrary to that of the , mother with respect to the abortion. 410 U.S. at 165 n.67.




difficult decision, involving as it did drawing the line where protection of life may begin, a subject on which public opinion was stridently divided. Yet neither the difficulty nor the impassioned setting of the decision was a principled ground on which the Court could refuse to make an evaluation it was otherwise called upon to make.

The final step of the Court's argument was forced upon it by the prior steps. What the Court had to decide was whether there is an early stage at which the potential of the embryo or fetus is not of sufficient importance to warrant abridging the constitutional right of a woman to decide whether she shall bear children. The Court decided that there was such a stage, and that it ended at about the point at which the fetus was capable of sustaining life outside the womb. One cannot deny, and the Court did not deny, that some would attach great weight to the prospect of life from its earliest days when we have little more than a handful of cells possessing a rich genetic code. But much that we associate with the value of human life is not present at the earliest stages. There is no feeling nor thought of which we know. There is no reciprocal relationship to others that is reflected in need or love. There is no memory or fear. What most of us mean by life, what most of us care about when we think of protecting life, is not true of the 12 or 16 cells present on the third or fourth day after pregnancy nor is it present for some time thereafter. Indeed, so much has always been recognized by each of the 50 states in making abortion a lesser crime than homicide.

It is, of course, important that a sharp line be drawn to show where human life begins and ends if we are to maintain a respect for life without regard to differences in intelligence, age, capacity and experience. One may fault the Court for not having drawn such a line with sufficient clarity, 69 but surely it was right that the line can safely be drawn well after the emergence of a fertilized egg. Sometime thereafter there comes a point at which the social interest in the protection of life becomes at least as important as any burden the mother may then have to bear. Clearly, that point has been reached by birth; the Court finds that it may be reached at the point at which life becomes capable of sustaining itself. Perhaps this line is further along than some would like it to be, but that is unlikely to have great practical significance. The overwhelming proportion of abortions will take place in the first few months. What is crucial is the correctness of the Court's determination that there is an early stage at which the potential of the embryo or fetus does not justify overriding the right of the woman to decide whether she will bear a child.

The Court had to go as far as finding that human life with all its claims to importance had not begun in the early days of the embryo and the fetus. But in a very important sense, that is not the consequence of the decision. The consequence is that, subject to the restrictions that states may impose

89 See note 12 supra.

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