Eisenstadt V. Baird

• Brennan 1972. Extended the right of contraception to single persons.

• Holding and Significance. Much of the expansion of the meaning of Griswold came in this case, where SCt invalidated a statute which, by permitting contraceptives to be distributed only by registered physicians and pharmacists, and only to married persons, discriminated against the unmarried.

• Rationale. In striking down the statute, the majority invoked equal protection as well as substantive due process grounds. SCt observed that “whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and married alike. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

• Critique - AK. This holding is hard to reconcile with Griswold’s emphasis on the sanctity of marriage. If marriage is the reason why contraceptive is protected in that case, then it doesn’t make much sense to say that there is an equal protection violation when the state discriminates in favor of married people in authorizing contraception.

Abortion

• Cases following Eisenstadt have followed Harlan’s line more than Douglas’, by looking to whether the right in question is “deeply rooted in our nation’s history and traditions.”

• The big exception is abortion. But there has also been a tendency to ask, without any particular reference to history, how important the asserted liberty is. Roe surveyed history and shared morality in good Harlanesque fashion, but made no connection between them and the right in question. Instead, it looked to the importance to the individual of the decision involved. The key text here is Planned Parenthood v. Casey [part II of O’Connor plurality]. Is the following an appropriate description of constitutionally protected liberty?

• Our precedents have respected the private realm of family life which state cannot enter.

• These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the 14^th Amendment.

• At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.

Roe V. Wade

• Blackmun 1973. Held that there is a fundamental right to abortion, and that there is no state interest sufficiently fundamental to override that fundamental right.

• Holding. Blackmun’s majority opinion held, without much explanation, that a woman’s right to privacy is a “fundamental” right under the 14^th Amendment, and that this right of privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Therefore, the legislature has only a limited right to regulate – and may not completely proscribe – abortions. The actual result of this case was to invalidate, on privacy grounds, Texas’ nearly-complete ban on abortions.

• Precise Holding. Majority held that abortion is a matter of right in the first trimester, can be regulated in the second trimester, and can be prohibited in the third trimester.

• First Trimester. During the first trimester, a state may not ban, or even closely regulate, abortions. The decision to have an abortion, and the manner in which it is to be carried out, are to be left to the pregnant woman and her physician.

1. Rationale. At present, the mortality rate for mother’s having abortions during the first trimester is lower than the rate for full-term pregnancies. Therefore, the state has no valid (or at least no compelling) interest in protecting the mother’s health by banning or closely regulating abortions during this period. (But the statute may require that abortions be performed only by licenses physicians.)

• Second Trimester. During the second trimester, the state may protect its interest in the mother’s health, by regulating the abortion procedure in ways that are “reasonably related” to her health. Such regulation might include a requirement that the operation take place in a hospital rather than a clinic. (SCt here implied that during this second trimester, the risk of maternal health through abortion was higher than that in full-term pregnancies.)

1. No protection of fetus. The state may protect only the mother’s health, not the fetus’ life, during this period. Therefore, a flat ban on second trimester abortions is not permitted. Nor may the state regulate in ways that protect the fetus rather than the mother’s health.

• Third Trimester. At the beginning of the third trimester, the fetus typically becomes viable. That is, it has a “capability of meaningful life outside the mother’s womb.” Therefore, after viability the state has a “compelling” interest in protecting the fetus. It may therefore regulate, or even proscribe, abortion. However, abortion must be permitted where it is necessary to preserve the life or the health of the mother.

• Rationale. Decision was premised upon the right of privacy. SCt here pointed to Griswold, as well as to other privacy-derived holdings (Pierce v. Society of Sisters and Meyer v. Nebraska), recognizing freedom in child-rearing and education. This right of privacy, which the SCt found to be part of the “liberty” guaranteed by the 14^th Amendment, was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

• Standard of Review. In fact, a woman’s interest in deciding this issue was a “fundamental” one, which could only be outweighed if (1) there was a “compelling state interest” in barring or restricting abortion; and (2) the state statute was “narrowly drawn” so that it fulfilled only that legitimate state interest.

• Countervailing state interest. SCt found that the state had two interests which, in particular circumstances, might be compelling: protecting the health of the mother, and protecting the viability of the fetus. The former would only be compelling after the first trimester (when abortion-related dangers outweigh the live-birth-related ones); the latter only applied during the last trimester, when the fetus was viable. From these two postulates, the SCt drew its three-part rule.

1. Fetus not person. SCt explicitly rejected the argument that the state had a compelling interest, even before viability, in protecting the fetus as a “person” as that term is used in the 14^th Amendment. The SCt reached this conclusion largely on historical grounds.

• Concurrences

• Stewart. Reversed his dissenting position in Griswold, and accepted both Griswold and Roe as substantive due process cases; substantive due process is alive and well; these and other decisions “make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the 14^th Amendment.” Prohibition of abortion violates the privacy right described in Eisenstadt.

• Douglas. Asserted broad judicial role in the protection of liberty. 14^th Amendment protected “freedom of choice in the basic decisions of one’s life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children.” Douglas conceded that this freedom of choice was subject to regulation where there was a compelling state interest, but found that Texas’ nearly-complete proscription of abortion in Roe went beyond such state interest.

• Burger. Tried to construe the majority opinion as narrowly as possible, arguing that SCt has rejected “abortion on demand.” This is, of course, precisely what the decisions did amount to. It seemed likely that the only thing that prevented Burger from dissenting was the prospect that Douglas would then be the senior judge in the majority, that Douglas would then have assigned the decision to himself, and that the result would be a far broader opinion of SCt than the one Blackmun wrote.

• Dissents. Both White and Rehnquist argued that this was Lochner again.

• White. Objected to what he called the SCt’s imposition of its own value scheme, preferring the “convenience, whim or caprice of the putative mother [over] the life or potential life of the fetus” prior to viability. He though that the relative weights should be assigned to these two interests and should be left to “the people and to the political processes.”

• Rehnquist. Argued that only a “mere rationality” test, rather than a strict scrutiny one, ought to be used here. At least some of the abortion prohibitions and regulations forbidden by the majority could meet a minimum rationality standard. Criticized the majority’s 3-part result as “judicial legislation.”