From Buck v
Bell to Roe v Wade: The Supreme Court, Childbirth,
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.
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
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.