First Among Equals (18 page)
T
HE
C
ONSTITUTIONAL
“R
IGHT
”
OF
P
RIVACY
:
A
BORTION AND
B
EYOND
J
OE
B
IDEN WAS ON A MISSION
. AS I was sitting in the witness chair, the chairman of the Senate Judiciary Committee was justifying, after the fact, his successful assault two years earlier on the Supreme Court nomination of Robert Bork. Judge Bork was, at the time of his nomination in 1987, singularly qualified to serve on the Supreme Court. He had served, with great distinction, as a judge on the D.C. Circuit, as solicitor general, and as a professor of law at the Yale Law School. But Chairman Biden skillfully engineered Judge Bork's defeat.
It was now 1989, and I was a convenient vehicle for Biden to make his points. He was looking to history to justify himself. My role, as President George Bush's nominee for solicitor general, was fundamentally to listen to what the chairman had to say and then, if there was a need, to respond. Confirmation hearings are not infrequently opportunities for the senators doing the “questioning” to be “heard.” It is, in truth, “the senators' ‘hearing.’”
This exchange, however, was a genuine give-and-take. The subject was “liberty.” More precisely, the question was whether the Constitution's protection of liberty (as contained in the Fifth Amendment and the Fourteenth Amendment in the Due Process Clause, which prohibit a deprivation of “liberty … without due process of law”) carried with it real, enforceable “rights,” not just a guarantee that the government will provide basic procedures, such as notifying an individual of the government's proposed action in a timely manner and affording the person an opportunity to be heard, such as at a trial.
I had thought about this long and hard, first as a law clerk, then in my work for Attorney General Smith, and, above all, as a judge (and Judge Bork's colleague) on the D.C. Circuit. My view as to the meaning of “liberty,” as protected by the Due Process Clause, was guided by history and tradition. It had long been settled that due process of law meant that certain liberties of the people, for example, the right to marry, merited constitutional protection.
To that extent, I agreed with Chairman Biden. And that sliver of agreement was all that was needed for him to win his point about the concept of liberty. Not a word was mentioned about abortion generally or
Roe v. Wade
specifically. All I needed to say to the chairman in the context of a lengthy colloquy over the meaning of this provision was, modestly, “I believe in the concept of ‘substantive’ due process.” That “concession” was seen, rightly or wrongly, as separating me from my much-admired friend and judicial colleague, Bob Bork. Judge Bork was skeptical of that notion of due process. The phrase more naturally meant procedural protections, such as a fair opportunity to be heard before being deprived of liberty or property. Judge Bork, as we will see, resisted expanding the idea of due process to include protections, say, of family life, such as how to educate one's children. I bowed to history, and the century-old interpretation of the Due Process Clause as protecting various unenumerated liberties.
Confirmation thus assured, I was relieved, yet sorrowful for what had happened to Judge Bork's nomination. The defeat of Bob Bork still hovered over the halls of the Senate.
In a case destined to loom large in Judge Bork's 1987 confirmation hearings, the Warren Court in 1965 struck down a Connecticut law that outlawed contraceptives. The case was
Griswold v. Connecticut.
The Court held that the law unconstitutionally intruded on
married persons'
rights to marital privacy. Eight years later, relying on the principles in
Griswold,
the Burger Court in
Roe v. Wade
declared that the Constitution's protection of privacy encompasses a woman's right to abortion. The decision invalidated virtually every state abortion law and ignited a firestorm of controversy that continues still today. Indeed, few decisions in the modern history of the Court rank higher than
Roe
on the controversy meter—not even
Bush v. Gore.
At a minimum, very few decisions have so deeply affected the Court, or our politics, especially in the selection and confirmation of judges.
Since
Roe,
the Court has declined to press the logic of personal privacy to create a broad right to individual autonomy so as to encompass, for example, homosexuality or a right to assisted suicide. The Court also has declined to make abortion an absolute right and has approved numerous regulations of abortion, such as parental notification provisions. Yet when the Court was explicitly asked to overrule
Roe
—as, in my capacity as solicitor general, I did ask in the 1992 case of
Planned Parenthood v. Casey
—the Court adamantly refused.
Roe,
which built—wrongly, I believe—on
Griswold,
remains the law of the land.
Abortion is a big story, one of the biggest of our time. As a constitutional matter, the issue in
Roe
concerned “liberty.” That was also the issue in the earlier
Griswold
case and, many years later, in the cases on homosexuality and assisted suicide. These cases, in sum, all involve the same idea: liberty as protected by the Due Process Clause. That is why, in trying to understand what the Court did in
Roe
and subsequent abortion cases, it's important also to consider the modern series of liberty cases starting with the Warren Court's marquee decision,
Griswold.
Today's Court, if it had been asked to decide
Roe
as an initial matter, likely would have come out the other way.
Roe,
though, is on the books, and once rooted it's proven hard to eradicate and to return abortion policy, like assisted suicide, to the states. But what the Rehnquist Court clearly is unwilling to do is use the reasoning and logic of
Roe v. Wade
in deciding other divisive issues involving the concept of liberty.
This is emphatically not a Court anxious to announce some new constitutional right that pitches the nation into another lengthy and bitter debate over the decision's consequences and legitimacy. A case making a “liberty” claim invokes the Fifth Amendment, which says, again, that the federal government may not deprive anyone of liberty without due process of law, or the Fourteenth Amendment, which imposes the same obligation upon the states. The question for the Court in a case of this kind is to determine the meaning of the term
liberty.
The justices don't simply (or at least they shouldn't) define liberty any way they want; they aren't legislators or members of the executive branch. Because the justices are judges, their role is quite different. When called upon to decide whether a federal or state law is constitutional, they are being asked to decide whether the law at issue is at odds with our highest law, the Constitution. That is why, in explaining a constitutional decision to the world, the Court is obligated to justify its result by citing the part of the Constitution at issue and engaging in legal reasoning as to its meaning and how it should be applied. What will not do is to make a political appeal such as “the American people want…”. That's politics, not law.
A basic criticism of the Warren Court was that it scanted the task of legal reasoning, offering too little or even none at all. The Court under Chief Justice Warren, it was often said, acted not as judges but as reformers, moved by what the Yale Law School's Alexander Bickel called the idea of progress. Making things better, moving society forward, doing the right thing—this was what the Warren Court appeared to be up to, and this was what it shouldn't have been doing.
Roe v. Wade
was decided in 1973, four years after Earl Warren stepped down. But to many observers it seemed like just the kind of decision the Warren Court would have rendered. The justices were asked to decide the constitutionality of a state law largely outlawing abortion. In striking down the law, the Court, with Justice Blackmun writing for the majority, held that a woman's liberty interest was greater than the government's interest in the life in the womb. The Court declared that the Constitution included a right of privacy broad enough to protect a woman's right to choose an abortion up to the point (very late in the second trimester if not the beginning of the third) when the unborn could live outside the womb—what is known as viability. States could still prohibit abortions, but only those, in effect, in the third trimester of a pregnancy, and even then subject to the health and safety of the mother.
However you might judge the outcome in
Roe,
and I do not admire that outcome, the Court's opinion suffered from a grave deficiency in legal reasoning. Even to observers who liked the pro-choice result, the Court's opinion seemed more like legislation than adjudication—a blast from the Warren Court past. The Court reached its conclusion, that pre-viability abortions may not be prohibited, by consulting history and citing precedents. As we have seen, history and precedent are two of the principal tools the Court uses in deciding constitutional issues. But the problem in
Roe
was that the particular tools the Court used couldn't do what the Court wanted. The history Justice Blackmun surveyed at length—the history of abortion regulation—was inconclusive. And the main case Justice Blackmun invoked,
Griswold v. Connecticut,
did not provide a basis for the new constitutional right he announced.
Griswold,
again, was the case striking down what Justice Potter Stewart called an “uncommonly silly” law, a Connecticut statute prohibiting physicians from providing contraceptives to married couples. The law was not only antiquated but obviously intruded into the marital relationship. That was the critical fact in the case. The issue was not whether unmarried persons could buy contraceptives but whether married persons could under the care of their physician. More precisely, it was whether doctors could be criminally prosecuted for providing, or prescribing, contraceptives to married individuals. How was such a law deemed unconstitutional? Because the Court, looking to history, found that marriage had enjoyed legal protection for centuries. There was thus a “liberty interest” at stake—the liberty that married couples by law had long enjoyed. It was a liberty that the Constitution (specifically, the Due Process Clause of the Fourteenth Amendment) protected, and Connecticut had violated it with its anti-contraception prohibition.
In
Roe,
the Court expanded the liberty protected in
Griswold
to include the new right to an abortion. The obvious problem with this extension was that
Griswold
directly involved the marriage relationship while
Roe
did not, and while marriage had been protected by law for centuries, the “right to choose” had not.
Griswold
was, as lawyers and judges say, distinguishable. Its reasoning did not readily answer all questions as to reproductive freedom specifically or bodily autonomy more generally.
The dissenting justices, led by the legendary football hero Justice White (appointed by President Kennedy), were quick to point all of this out. The Court, the dissenters complained, had invented rights not found in American law or in the history and traditions of the American people. Nothing in the concept of liberty prevented the states, if they wished, to outlaw abortion. States were as free, constitutionally speaking, to do with abortion as they were to do with myriad social-policy matters. The states mandated compulsory education and compulsory health vaccinations, for example, and enacted statutory rape laws. They prohibited euthanasia. That being so, states could also regulate, and even outlaw, abortion.
What separated the justices was not a policy disagreement but a disagreement over legal reasoning of a kind often seen when the Court decides some of the most controversial cases on its docket. While the majority was less precise in its approach, the dissenters were clear about how a case like
Roe
should be decided. For the dissenters, constitutional liberty was defined as the right or prerogative of the individual to carry on activities or to enjoy human relationships that historically had been protected by law (such as the common law or statutes) in clearly articulated ways. The common law elaborated by courts over decades and even centuries might provide protections. Or protection might be provided by laws enacted by state legislatures, ordinances by city councils, and the like. Or, in the absence of relevant common or statutory law, the liberty might be protected less formally—in the history and traditions of the American people. These are, in short, culturally based protections. The dissenters thus would be willing to protect a liberty claim even if it did not enjoy specific legal rooting.
Taking this approach, the dissenters charged that abortion did not enjoy constitutional protection because the “right to choose” had never been firmly established in either common law or in legislation. Nor did history or tradition provide protection for the abortion decision. To the contrary, abortion was mainly forbidden by the majority of states, enforced by the criminal law. What is striking about the dissents in
Roe
is that they foreshadowed the approach that would prevail in later cases in which the Court
refused
to extend the protection of liberty in new contexts—homosexual conduct and assisted suicide—conduct argued to involve fundamental liberties like the “right” to abortion. But before the Court engaged those issues it had more abortion cases to decide. Here, as in other areas during the Burger Court years, Justice Lewis Powell became the justice to watch in these cases.
Having joined the majority in
Roe,
Powell was a pivotal member of narrow majorities that rejected efforts to extend
Roe’
s logic. For Powell, the Constitution protected the abortion liberty, but this “right” did not prevent government from making basic policy choices, including ones that might be deemed pro-life. Powell-led majorities concluded, for example, that Congress and the states could discriminate against abortion by refusing to finance it. Justice Blackmun,
Roe’
s author, was exceedingly displeased with the Court's refusal to establish an absolute, or near-absolute, abortion right. Blackmun, together with Justices Brennan and Marshall, found himself in dissent in most of the post-
Roe
abortion cases. For example, the Court upheld various restrictions, such as waiting periods before the abortion could be performed.
