Opening Argument – Problems With ‘Privacy,’ And What To Do About Roe

National Journal

"Under our constitutional system, courts stand against any winds that blow, as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement." So wrote Justice Hugo Black, a liberal hero, in 1940, in one of the most eloquent defenses of forceful judicial protection of constitutional rights ever penned. But a Hugo Black could not be confirmed today — not if his views were known. He would be voted down by Democrats, and some Republicans, for the sin of rejecting the nebulous "right of privacy" that has become holy writ and, for some, codespeak for abortion rights and gay rights. "The Court talks about a constitutional ‘right of privacy,’ " Black wrote in dissent from the 1965 decision in Griswold v. Connecticut, "as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the ‘privacy’ of individuals. But there is not…. I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision." In Griswold, the Court held by 7-2 that a Connecticut law barring contraceptive use even by married couples violated an ill-defined "right of privacy" that Justice William Douglas derived from "penumbras, formed by emanations from" various provisions of the Bill of Rights. Black agreed that the anti-contraception law was unwise and "offensive." But he insisted that the Court had no power "to invalidate any legislative act which the judges find irrational, unreasonable, or offensive." Since then, the fuzzily benign-sounding right of privacy has acquired such cachet that any judicial nominee who wants to be confirmed must pay it obeisance, at least in the context of the safely uncontroversial use of contraceptives. So it was no surprise when John Roberts did just that in his confirmation testimony. He danced away from his dismissive reference to the "so-called right to privacy" in a 1981 memo and he endorsed the outcomes of Griswold and Eisenstadt v. Baird, a 1972 decision extending the right to use contraceptives to unmarried couples. Clarence Thomas had given similar testimony in 1991. Both nominees cited post-Griswold opinions locating the privacy right in the 14th Amendment’s prohibition of state deprivations of "liberty … without due process of law," for lack of a more plausible location. But while the right of privacy has been firmly embedded in our constitutional mythology by precedent and popular demand, it is a relatively weak force, with too tenuous a connection to the Constitution’s text, history, and structure to push aside weighty countervailing governmental interests. The privacy/"liberty" right is strong enough, in my view, to justify overturning the few remaining state laws making homosexual sodomy a crime, as the Court did in 2003. Those laws served no weighty governmental interest and were almost never enforced. And as conservative Harvard Law professor Charles Fried has written: "To criminalize any enjoyment of their sexual powers by a whole category of persons is either an imposition of a very great cruelty or an exercise in hypocrisy inviting arbitrary and abusive applications of the criminal law." But not many of us would extend the privacy right to the point of endorsing absolute personal autonomy, even in matters of consensual sex, family life, control of our own bodies, or assisted suicide. Such a right would legalize, respectively, prostitution and adult incest; bigamy and polygamy; shooting heroin; and accommodating any chronically depressed adult who asks for a lethal dose of barbiturates. When it comes to abortion, the woman’s interest in avoiding the life-changing, health-risking experience of involuntarily carrying and giving birth to an unwanted child is especially strong. But so is the governmental interest — which becomes more and more compelling as the growing fetus looks more and more like a newborn baby — in preventing what many see as the taking of innocent human life, even as murder. I strongly support permissive abortion laws as a matter of policy. But I share the views held by most scholars (including all anti-abortion scholars) in 1973, and by many today, that Roe v. Wade crossed the line into raw judicial fiat. The Court disenfranchised us all as far as abortion is concerned, by sweeping away laws of all 50 states and holding that the "right to privacy [is] broad enough to encompass" an almost unlimited right to abortion. As John Hart Ely, a steadfast defender of the liberal Warren Court, wrote in 1974, Justice Harry Blackmun’s opinion for the 7-2 Roe majority "lacks even colorable support in the constitutional text, history, or any other appropriate source of constitutional doctrine" and "is bad constitutional law, or rather it is not constitutional law and gives almost no sense of an obligation to try to be." Even current Justice Ruth Bader Ginsburg, the leading feminist lawyer of the 20th century, wrote in 1985, "The Court ventured too far in the change it ordered and presented an incomplete justification." At least five of the other current justices have also said or implied that Roe was, at best, flawed. Abortion-rights advocates have tried for decades to justify the Roe result by improving on Blackmun’s opinion, most recently in a compilation of essays titled What Roe v. Wade Should Have Said. (The book also includes three "dissenting opinions.") Many scholars have invoked women’s rights to equal protection of the laws, as well as (or instead of) privacy and liberty. But none has succeeded in disguising the fact that Roe was more an amendment than an interpretation of the Constitution. And while the initial public backlash against Brown v. Board of Education gave way to almost universal acceptance, the even larger backlash against Roe persists, and has long distorted our politics. So should Roe be overruled? For those who see every abortion as the moral equivalent of murder, the answer is obviously yes. For those of us who respect but do not share that view, it’s a closer question. My answer is that Roe should be narrowed but not overruled. First, Roe is entitled to unusual precedential weight. Seven justices — appointed by Presidents Roosevelt, Eisenhower, Johnson, and Nixon — joined Blackmun’s opinion in 1973. Since then, another six justices — appointed by Presidents Ford, Reagan, George H.W. Bush, and Clinton — have reaffirmed Roe or its "essential holding." Only current Justices Antonin Scalia and Clarence Thomas, and the late Chief Justice William Rehnquist and Justice Byron White, have voted to overrule Roe. Second, over the past 32 years, tens of millions of women have grown up with and organized their lives around the belief that abortion rights are carved in constitutional stone, and will always be available if contraception fails. It’s true that relatively few abortions would be prevented (and relatively few fetuses saved) if Roe were overruled; most states would have fairly permissive laws, at least in the first trimester. But in anti-abortion states, some unknown number of women and girls would end up bearing unwanted children or putting their lives and health in the hands of illegal, amateur local abortionists. Third, overruling a precedent as important as Roe would not only be a "jolt to the legal system," to borrow from John Roberts. It would also be a huge jolt to the political system. Polls show consistent public opposition to overruling Roe, by roughly 2-to-1. This explains why no president has ever pushed hard for an anti-abortion constitutional amendment and why, I would wager, no nominee known to believe that Roe should be overruled could win Senate confirmation, even in a 55-Republican Senate. To be sure, most people don’t understand how nearly absolute was the abortion right that Roe created. And most people favor substantially greater restrictions than current case law allows, especially on late-term abortions. But there is room for the Court to uphold some such restrictions — by narrowing or even overruling some of its lesser abortion precedents — without overruling Roe itself. Indeed, the justices started down this road in 1992. In Planned Parenthood v. Casey, while famously reaffirming Roe’s "essential holding," the Court also upheld some restrictions that it had previously forbidden, including Pennsylvania’s 24-hour waiting period. The Roberts Court may further enlarge the ambit of democratic choice in its coming term, by upholding a New Hampshire parental-notification law and the 2003 congressional ban on "partial-birth" abortion. And in the long run, perhaps, the abortion war will fade away, as improved contraception, morning-after pills, and other nonsurgical methods enable women to end unwanted pregnancies early, safely, and in the privacy of their homes.