From Buck v
Bell to Roe v Wade: The Supreme Court, Childbirth,
and Choice The
choice to bear a child is one of the most personal
choices a person can make. That hasn’t stopped
governments from trying to
regulate it. Forced
sterilization, bans
on the distribution or use of contraceptives, and
restrictions on abortion have
been—and some cases, still are—part of our history. Of
course, some forms of
regulation in this area are foreign to our traditions. Never, for
example, has the United States
seen anything like the “one child policy” adopted in
China in 1979. In this
lecture, we
will consider each of the possible choices relating to
childbirth—the choice to
try to become pregnant or father a child, the choice not to become pregnant, and the choice
to terminate a
pregnancy. Each
of these personal
choices—personal liberties, as they came to be
seen—has been the subject of the
Supreme Court’s attention during the past century. We
begin in 1924 with the story of Carrie Buck. Carrie was
an 18-year old patient at the
Virginia State Colony for Epileptics and the
Feebleminded. She
probably never belonged there, but that’s
where she was. According to the superintendent of the
institution, Carrie had a
mental age of 9.
She had attended school
only through sixth grade. Carrie’s
birth
mother was said to have a mental age of 8 and Carrie
had been adopted. Shortly
before entering the institution, Carrie had given
birth to an illegitimate child. This, it
seems, was the reason her adopted family sent her
there. But
Carrie could scarcely be blamed for the
pregnancy. She
had been raped by a
nephew of her adopted mother. Her
commitment later that year was most likely an effort
by the family to save its
reputation. In
that year of 1924, Virginia had adopted a
sterilization
statute. The
new Virginia law authorized
the sterilization of the intellectually disabled. The law had
been pushed by proponents of
eugenics. (That
is, of course, the bunch
that believed in perfecting the human race by
controlling breeding.) Supporters
of the law believed physicians were refusing to
sterilize women that deserved
sterilization because they were afraid of later
prosecution. The
new law was meant to remove that threat. Dr.
Albert Priddy saw Carrie Buck as a genetic threat to
society. He
called her “incorrigible”
and said that without sterilization, there was a high
risk she would produce
offspring. So
Dr. Priddy filed the
necessary paperwork to sterilize Carrie.
His request was approved by his institution’s
Board of Directors.
But Carrie’s legal guardian challenged the
sterilization order in court. And that
challenge eventually made its way to the United States
Supreme Court. Carrie
and her guardian made the argument that involuntary
sterilization
would violate her right to due process and equal
protection under the 14th
Amendment. The
right to procreate, they
argued, was a fundamental right—and it was a right
that could not be denied by
state law. But
the Supreme Court, by an 8 to 1 vote, disagreed. The Court
accepted that Carrie
was—quote—“feeble-minded” and “promiscuous”—and that
it was in the best
interest of the state to sterilize her.
Writing for the Court, Justice Oliver Wendell
Holmes wrote that the
state’s interest in preserving the public welfare
outweighed Carrie’s interest
in bodily integrity and personal choice.
In the words of Justice Holmes, “We have seen
more than once that the
public welfare may call upon the best citizens for
their lives. It would be
strange if it could not call upon those who already
sap the strength of the
State for these lesser sacrifices, often not felt to
be such by those
concerned, to prevent our being swamped with
incompetence.” He
added, infamously, "Three generations
of imbeciles are enough.” Carrie
Buck received a tubal ligation. She was later released
from the institution.
Carrie, by the
way, became an avid reader, and was so until her death
in 1983. And her
daughter, who had erroneously been labeled
“feeble-minded” after a quick
examination by a eugenics field worker, turned out to
be a solid student, even
being listed on her school’s honor roll. After
the Court’s ruling in Buck versus Bell, dozens of
additional states enacted compulsory sterilization
laws. Virginia’s
sterilization law remained on the
books until its repeal in 1974. Buck
v Bell was not the only Supreme Court case to consider
mandatory sterilization.
In 1942, the
Court considered an Oklahoma law that required the
sterilization of all
three-time felons.
A sort of “three
strikes and you’re snipped” law. An Oklahoman by the
name of Skinner made the
mistake of stealing some chickens. It
was Skinner’s third felony, and as part of his
punishment he was ordered to
undergo a vasectomy.
Skinner sued to
keep his childbirth options open. And,
in the case of Skinner v Oklahoma, the Supreme Court
sided with Skinner.
Different justices had different reasons for
reaching their conclusion. The majority
felt the law violated Skinner’s right to equal
protection of the laws.
The Court said the choice to procreate was so
fundamental that the state needed a strong reason to
take it away—a reason that
Oklahoma didn’t have.
Chief Justice
Stone believed the law violated Skinner’s due process
rights. He
was entitled to a hearing on the question
of whether his criminal tendencies were of the
inheritable type—and he never
got such a hearing.
And for Justice
Jackson, Oklahoma’s law violated both equal protection
and due process.
Justice Jackson wrote, “There are limits to
the extent to which a legislatively represented
majority may conduct biological
experiments at the expense of the dignity and
personality and natural powers of
a minority -- even those who have been guilty of what
the majority define as
crimes.” After
Skinner, and after the
public came to understand the eugenics program of Nazi
Germany, sterilization
rate under eugenic laws dropped dramatically.
By
the 1960s, restrictions on the use of contraceptives
were
more of an issue than sterilization laws.
Two cases challenging restrictions on the
distribution of contraceptives
reached the Court and were decided on their merits. The
first was the well-known case of Griswold v
Connecticut.
In Griswold, the Court found a state law banning the
distribution of
contraceptives to be an unconstitutional burden on
“the right of marital
privacy” which Justice William O. Douglas found to be
implicit in the Bill of
Rights. In
a wonderfully metaphysical
opinion, Justice Douglas talked about the various
protections of the Bill of
Rights having penumbras and emanations that
effectively extended their
reach. Granted,
nothing in the
Constitution specifically says states can’t regulate
the use of contraceptives,
but no matter. Douglas
argued that the
emanations of the 1st, 3rd, 4th,
and 5th
amendments made obvious the framers intended to create
“a zone of privacy” that
the state could not invade. And
threatening married couples with jail time for using
contraceptives was just
such an unconstitutional invasion. In a
concurring opinion, the usually conservative Justice
John Harlan conjured up the image of police officers
snooping around what he
called ‘the sacred precincts” of the marital bedroom
for telltale evidence of
contraceptive use. In
another interesting concurring opinion, Justice Arthur
Goldberg saw the Connecticut law as a violation of the
Ninth Amendment.
The 9th Amendment reads: "The
enumeration in the Constitution, of certain rights,
shall not be construed to
deny or disparage others retained by the people." Goldberg
quoted James Madison’s reasons for drafting the
Ninth Amendment.
Madison said: "It
has been objected also against a bill of rights that,
by enumerating particular
exceptions to the grant of power, it would disparage
those rights which were
not placed in that enumeration, and it might follow,
by implication, that those
rights which were not singled out were intended to be
assigned into the hands
of the General Government, and were consequently
insecure. This is one of the
most plausible arguments I have ever heard urged
against the admission of a
bill of rights into this system, but I conceive that
it may be guarded against.
I have attempted it, as gentlemen may see by turning
to the last clause of the
fourth resolution [the Ninth Amendment]." Over
the years, many judges and legal scholars from the
Originalist school of interpretation have begged to
criticized Griswold v
Connecticut. Famously,
Judge Robert
Bork’s criticism of the decision and its recognition
of a privacy right proved
to be his undoing in the hearings on his nomination to
the Supreme Court by
President Reagan.
Judge Bork compared
the 9th Amendment to “an inkblot on the
Constitution.” We can’t
figure out what Madison and the framers meant, so
let’s not even try.
To do so would give too much power to judges,
in Bork’s view. Griswold
recognized a right of marital privacy—a right that
included the right to possess and use contraceptives. But it left
open the question of whether the
Constitution protected the right of unmarried persons
to use
contraceptives. Some
states argued
strongly that allowing single people to use
contraceptives would lead to
promiscuity. William
Baird was a former medical student. In May 1965,
Baird engaged in an unusual form
of civil disobedience.
He handed out
contraceptives to anyone who wanted them in a New York
town. It
was illegal, at the time, to distribute contraceptives
without a license.
Baird was arrested
and prosecuted. And, as a result of his protest, he
lost his job with a
pharmaceutical company. But
Baird remained undeterred. Two years
later, in Massachusetts, he was at
it again. Massachusetts
law allowed only
married persons to obtain contraceptives, and then
only with a doctor’s
prescription. Baird
had a speaking
engagement at Boston University. About
2,000 people, mostly students, attended.
Baird brought with him to the auditorium boxes
of contraceptives.
During his speech, he asked for volunteers
from the audience to come forward to distribute
contraceptives to anyone in the
audience who wanted them. Then he
asked
the police officers in the hall to arrest him.
His goal, of course, was to bring a test case
challenging the
Massachusetts ban on the distribution of
contraceptives to unmarried persons.
He was arrested and booked. Baird
entered a not guilty plea and was released on bail. Things
did not work out well in the state courts for Baird. He was
convicted after a nonjury trial of
violating the state statute. And the
Massachusetts Supreme Court, on a 4 to 3 vote, upheld
his conviction and three
month prison sentence. Baird
spent 35 days in the Charles Street Jail before the U.
S. Supreme Court agreed to hear his appeal.
Justice Brennan wrote the opinion overturning
Baird’s conviction in
1971. Brennan
inserted language in the
opinion that would prove useful in another majority
opinion decided soon
thereafter, Roe v Wade. Brennan
wrote: “It is true that, in Griswold, the right of
privacy in question inhered in the marital
relationship. Yet the marital couple
is not an independent entity, with a mind and heart of
its own, but an
association of two individuals, each with a separate
intellectual and emotional
makeup. 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.” Norma
McCorvey could do one thing well: shoot pool. In 1969, at
age 21, she liked to play at a
mostly lesbian bar called the White Carriage in
Dallas. McCorvey
organized tournaments, held the
bets, and divided up the prize money. Some
straight men liked to go to the Carriage to shoot with
the women. One
Saturday night, a man who
McCorvey thought to be about 50 years old, asked to be
her pool partner.
Norma later gave the man the name “Carl,” but
that wasn’t his real name. Carl was a
good pool player.
McCorvey and Carl won
their matches that evening and took home $100. The two
began to play together
regularly at bars around Dallas. Eventually
McCorvey started sleeping with Carl. They drank
together, dropped some acid
together. McCorvey
wrote later of her
relationship: “We were rebels, outlaws together.” But she knew
it wouldn’t last.
It
ended when Carl dropped Norma off at her mother’s
trailer
in Louisiana. He
waved and headed out,
on his way to Las Vegas.
Norma would
never see Carl again. In
Louisiana, McCorvey landed a job running an animal
freak
show at a traveling carnival. She stood
outside a tent each evening pitching the show and
selling tickets.
With $30 to her name, sleeping in a carnival
trunk, Norma realized she was pregnant.
She described herself as numb, past caring—“a
pregnant, redneck, hippie
carnie.” She
took a bus back to Dallas. Writing
about her feelings at the time, Norma
said she couldn’t bear to think of carrying a baby. It was
simply “a thing growing inside me,
getting bigger every day.” She didn’t
want the child “to be born with me as its mother.” A
friend told McCorvey that a doctor might be able to
terminate her pregnancy.
Interestingly, the
word “abortion” was completely foreign to her.
She visited her obstetrician—the same doctor
that had delivered two
previous babies she had given up for adoption.
The doctor told her he did not perform
abortions. In
fact, if he learned of anyone doing them,
he’d be obligated to report them. He
told her, “You really should have thought of this
before you got pregnant.” But
before she left, the doctor gave him the phone number
of a lawyer. Norma
McCorvey met the lawyer in his office. At first, he
tried to talk McCorvey into
putting the baby up for adoption.
McCorvey said she’d prefer to get an
abortion—“wherever she can find
it.” You
might well get yourself killed,
he warned. Then
he said, “I know a
couple of young lawyers who are looking for a pregnant
woman who wants an
abortion. A
woman just like you.
They need a plaintiff in a lawsuit, to help
them overturn the Texas law against abortions.” In
February 1970, in an Italian restaurant in Dallas,
McCorvey met the two lawyers who would take her case
to the Supreme Court of
the United States, Linda Coffee and Sarah Weddington. Weddington
asked McCorvey if she really
wanted an abortion—and why. McCorvey
said the pregnancy was making her life miserable. It make it
almost impossible for her to find
work. Mostly,
though, she complained she
didn’t want “this thing” (as she called it) growing
inside her body. Weddington
told McCovey stories of shady doctors and botched
back alley abortions.
Then she asked
Norma if she agreed that all women should have access
to safe and legal
abortions. She
said, “Sure, of
course.” And
then she began to cry. Norma
McCorvey became the lead plaintiff, Jane Roe, in the
case that would eventually become known as Roe versus
Wade. But McCorvey was
already two and a half months pregnant. And getting a
case to the Supreme Court
takes years, not months.
McCorvey
spent the next few months smoking dope, drinking
wine, and living with what she called a group of
hippies. She
tried not to think about her
pregnancy. Her
trial, before a panel of
three federal district court judges, took place
without her. She
won, but she lost.
The panel struck down the Texas abortion law,
which prohibited abortions except when necessary to
save the life of the
mother. But
District Attorney Henry Wade
appealed the case, and the order was stayed pending
the appeal. Wade
announced that he would prosecute any
doctor who performed an abortion. McCorvey
then realized what would have been obvious to a
first-year law student.
This case was
not really about her.
She felt used, and
took the news hard. Three
months later, Norma’s water broke in the middle of the
night. Her
baby was delivered within
minutes after arrival in the emergency room.
Her baby was put up for adoption.
She felt depressed and spent the next several
day drinking heavily.
She swallowed dozens of pills to end it
all. She
hallucinated, lost
consciousness, but woke up a day later, still alive. The
birth of Jane Roe’s, Norma McCorvey’s, baby did not
moot
the case. The
suit was brought as a
class action, on behalf of not only McCorvey, but also
unnamed pregnant women
in the state of Texas who might desire an abortion. In
March 1971, the Supreme Court announced that it would
hear the case of Roe v Wade. Sarah
Weddington moved from Austin to New York City to work
with women’s rights lawyers
on preparation for argument. The
Court actually taken the Roe case not to decide the
abortion issue, but rather consider another question
raised by the case.
Specifically, whether women and doctors who
wished to challenge state abortion laws could go first
to federal court, rather
than going through all possible appeals at the state
level first. In
oral argument, Sarah Weddington seemed surprised by
the
Court’s focus on the jurisdictional issue.
And on the substantive question of what
provision in the Constitution
supported a right to abortion, she seemed unsure of
where to point. After
Weddington rattled off a long list of potential
economic and psychological harms potentially
associated with giving birth to an
unwanted child, Justice Potter Stewart tried to steer
her to the constitutional
text. He
noted, rather
paternalistically, “Sometimes in the Court -- we would
like to, sometimes but
we cannot here be involved simply with matters of
policy, as you know.”
Weddington took the hint. “We originally
brought the suit alleging the due process clause, the
equal protection clause,
the Ninth Amendment, and a variety of others,” she
said. Justice
Potter Stewart interrupted and asked
sarcastically, “And anything else that might be
applicable?” “Yes, yeah,”
Weddington answered, as many in the courtroom laughed. Justice
Byron White asked whether Weddington was claiming
that women had a right to choose an abortion even late
in their
pregnancies. “Well,
do you or don’t you
say that the constitutional right you insist on
reaches up to the time of
birth?” Weddington
gave the most radical
answer possible, suggesting that the Constitution
“gives protection to people”
only after birth—until then the woman’s right to
choose should be in force. Birth
is not the point at which the Court could ever draw
the line. An
abortion at eight and a
half months just seems to close to infanticide.
But
the Court seemed equally uncomfortable with the line
proposed by the Assistant Attorney General of Texas,
Jay Floyd. Asked when a
fetus has full constitutional protection, Floyd
answered, “At any time.
There is life from the moment of
impregnation.” When
Floyd pointed to a
section of the state’s bried showing the development
of the fetus beginning at
seven days after conception, Justice Thurgood Marshall
jumped in. “Well,
what about six days?”
“We don’t know,” Floyd replied. “But this
statue goes all the way back to one
hour,” Marshall pointed out. “There are
unanswerable questions in this field,” Floyd conceded. Only
seven justices gathered in the Supreme Court
conference
room to decide the Roe case. Two
vacancies remained unfilled. The next
year, Justices Rehnquist and Powell would join the
Court. To
the surprise of the three most liberal
justices on the Court, the jurisdictional issue was
suddenly off the
table. Swing
justice Potter Stewart
joined them in another case decided the same day
allowing a bookstore owner to
challenge a state obscenity law in federal court
before exhausting state court
remedies. The
same principle would apply
in Roe. So
the Court would reach the
merits after all. And
on the merits, there were three solid votes to strike
down the Texas law, Justices Marshall, Brennan, and
Douglas. Two
justices favored a narrower ruling
against portions of the law. Justices
Blackmun
and Stewart seemed ready to base their decision on the
right of doctors, not
women—a right to exercise their professional judgment
free of state
interference. Chief
Justice Warren
Burger assigned the task of writing the Court’s
opinion to Justice Harry
Blackmun. Blackmun,
at this early point in his Supreme Court career,
had a mostly conservative voting record.
But before joining the Court he had served as
the general counsel to the
Mayo Clinic in Rochester, Minnesota. He
had a great respect for doctors and saw the
doctor-patient relationship as
something close to sacred. Blackmun
loved working with the surgical staff. He called his
ten years at Mayo the best
of his life. One
of his jobs had been to
advise the staff on the legality of abortions the
hospital performed—and many
of those he approved would not have been legal in the
state of Texas. Blackmun
poured hundreds of hours into crafting an
opinion. He
worked through the fall in
winter doing research in the Court’s library.
He read both medical and legal texts, taking
careful notes. He
discovered that abortion had generally
been legal in the United States until the 19th
century. The
bans were put in place to protect
pregnant woman against what was, at the time, a
dangerous operation.
But now abortions were safer than
childbirth. To
Blackmun, that fact
argued strongly in favor of legalizing early
abortions. In
May, Blackmun finally circulated his draft opinion in
Roe
to the other justices.
But the opinion
was short on analysis.
It indicated that
women had a right to privacy that included a right to
choose an abortion, but
it didn’t say where in the Constitution that right
came from. The
opinion simply concluded the Texas law
was too vague to be constitutional. Blackmun seemed to
suggest that abortions
should be legal until the time the fetus became viable
outside the womb.
But it didn’t directly say laws against early
abortions were always unconstitutional.
Hardly the sort of guidance the medical
profession would like. Blackmun
became convinced, especially after reading a
dissent from Justice White. He decided
to withdraw his opinion.
Meanwhile,
Justices Rehnquist and Powell took their seats on the
Court. Lewis Powell’s
father-in-law had been a prominent obstetrician.
Convinced that he could get
Powell’s vote, Blackmun urged that Roe be reargued the
next term. Over the
strong objection of Justice William O. Douglas, the
Court voted to do just
that. Douglas
wrote an intemperate dissent to the order. He wrote
that the decision to reargue Roe “dilutes
the integrity of the Court.” He said
that prolonging the abortion decision until after that
year’s election would be
seen by many as “a political gesture unworthy of the
Court.” In
the end, Douglas decided not to publish
his dissent. Blackmun
spent much of the summer of 1972 in Minnesota
researching abortion at the Mayo Clinic’s library. He reworked
his draft to make the right of
privacy explicit.
Women had a
constitutional right to choose whether or not to bear
a child. Here,
the contraceptives cases provided
precedent. The
Court said in Eisenstadt
women should be able to choose whether or not
to bear a child. The
right to an abortion, he wrote, was not absolute. The state
had compelling interests in
regulating abortions to protect women’s
health—especially after three months,
when risks increased.
And at some point,
the interest of the state in protecting the life of
the fetus overrode the privacy
interest. For
lack of a better place to
draw the line, Blackmun said that point came about six
months into a pregnancy.
So Roe’s “trimester” framework emerged. Blackmun
also declared that a fetus was not a person in the
constitutional sense.
The right to
liberty under the Constitution attaches only after
birth. Of
course, if fetuses were persons within the
meaning of the Constitution, abortions would be a
gross violation of rights. The
case was reargued in October, but it was a nearly
pointless exercise.
The votes were in. Justice
White wrote a dissent.
He wrote, “I find nothing in the language or
history of the Constitution to support the Court's
judgment. . . . As an
exercise of raw judicial power, the Court perhaps has
authority to do what it
does today; but, in my view, its judgment is an
improvident and extravagant
exercise of the power of judicial review.” January
22, 1973 was decision day. It was also
the day former President Lyndon
Johnson died. And
that turned out to be
the bigger story. But
the public reaction was strong. Cardinal
Clarence Cook asked, “How many
millions of children…will never live to see the light
of day because of this
shocking decision of the Supreme Court today?”
Cardinal Krol said it “was hard
to think of any decision in the 200 years of our
history that had more
disastrous implications for our stability as a
civilized society.”
The state of Texas filed a petition for
rehearing comparing the decision to Dred Scott. Norma
McCorvey found out she won her case at the kitchen
table in a house she shared with Connie, the woman who
became her lover and
partner. She
read the story on the front
page of the Dallas Times-Herald. Norma
had never told Connie about her role in the abortion
case. She
pointed out the reference to the
plaintiff Jane Roe in the story. And
then she asked Connie, “How would you like to meet
Jane Roe?” Of
course, Roe v Wade was more the beginning of the
abortion
debate than the end of it. The core
liberty protected by Roe remains (at least as of the
time of this lecture,
2019). But
the Court has abandoned Roe’s
trimester framework.
It now upholds
state regulations which do not pose a—quote—“undue
burden” on the right. Roe v
Wade has changed America’s politics in ways too
numerous to mention.
It has become a
litmus test for candidates in both major parties. It is
a highly emotional and complicated issue. Abortions
are, perhaps most Americans agree,
at least morally dubious. And one
can ask whether societal acceptance of morally dubious
actions makes it more
likely we will come to accept morally wrong
decisions—infanticide perhaps. On the other
hand, many Americans might
understand that pregnancies and childbirth greatly
affect the lives of women. And they
might believe that when a woman and
a doctor decide abortion is the better option, little
is to be gained by
locking the doctor ink jail. Ultimately,
as they say, that’s where the rubber meets the road. Anyone who says the abortion question is an easy one isn’t thinking very hard about the issue. It’s tough—damn tough. |