The explanation of the true basis for the unconstitutionality of so many statutes begins with the sentence, “The Constitution does not explicitly mention any right of privacy.”22 The existence of such a right is nonetheless defended by citing a series of cases to demonstrate that “the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.” Nobody has ever quarreled with the proposition that certain zones or aspects of privacy or freedom are protected by the Constitution. Justice Blackmun cited cases decided under the first, fourth, and fifth amendments. But those differed entirely from the right he was creating in that they had specific textual support. He got closer to his solution when he moved to concepts previously employed by Courts that lacked support in the actual Constitution for what they wanted to do. The opinion cited the “penumbras of the Bill of Rights,” relied upon by Justice Douglas in Griswold v. Connecticut, Justice Goldberg’s reliance upon the ninth amendment in the same case, and the concept of liberty in the due process clause of the fourteenth amendment. Roe continued:
These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty [Palko v. Connecticut],” are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage [Loving v. Virginia]; procreation [Skinner v. Oklahoma]; contraception [Eisenstadt v. Baird]; family relationships [Prince v. Massachusetts]; and child rearing and education [Pierce v. Society of Sisters; Meyer v. Nebraska].
Skinner23 and Eisenstadt,24 as we have seen in this chapter and the one preceding, involved the Court’s creation of new rights without support in constitutional text or history. Pierce25 and Meyer,26 as we saw two chapters back, used the same methodology of creating rights but at least reflected the first amendment. Prince27 denied claims by a Jehovah’s Witness to be free of the state’s child labor laws on grounds of religious freedom and the equal protection of the laws. The case related to marriage, Loving,28 struck down an antimiscegenation law on the grounds that the racial classification violated the equal protection clause and also the right of liberty under the due process clause, though the latter holding also seemed to depend upon the invidious racial classification. This is not a very impressive list of cases to support the claimed right of abortion. They do not bear upon the subject at all. Some of the cases were clearly instances of judicial rewriting of the Constitution, others at least enforced values found in actual provisions of the Constitution, and still others denied the rights claimed. None of them remotely addresses the issue of abortion, and none of them even mentions a right of privacy. It is difficult, therefore, to understand why the Roe opinion supposes that these cases show the extension or reach of the right of privacy. They do nothing of the sort. Marshaling these decisions as if they were precedents merely emphasized the absence of support for the right. The invented right of privacy had not been applied in any Supreme Court case other than ones involving contraception.
Nonetheless, without any analysis, the Roe opinion then immediately decided the issue before the Court by simple assertion:
This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.29
That is it. That is the crux of the opinion. The Court did not even feel obliged to settle the question of where the right of privacy or the subsidiary right to abort is to be attached to the Constitution’s text. The opinion seems to regard that as a technicality that really does not matter, and indeed it does not, since the right does not come out of the Constitution but is forced into it. The opinion does not once say what principle defines the new right so that we might know both why it covers a liberty to abort and what else it might cover in the future. We are told only that wherever the right may be located and whatever it may cover, it is “broad enough” for present purposes. This is not legal reasoning but fiat.
The Roe opinion then legislated the rules the Court considered appropriate for abortions by balancing the interests of the woman and those of the state. To do that, of course, the Court had implicitly to decide which interests were legitimate and how much weight should be ascribed to each one. That, being unguided by the Constitution, was an exercise in moral and political philosophy, or would have been if some reasoning had been articulated. The upshot, in any event, was that in the first trimester of pregnancy the abortion decision must be left to the woman and the medical judgment of her physician. After that and up to the point where the fetus can live outside the womb, the point of viability, the state may regulate the abortion procedure but only in ways related to the health of the mother. Subsequent to viability, “the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion” except where it is necessary to preserve the mother’s life or health.
Justice Rehnquist’s dissent pointed out that it was very curious to decide the case under the rubric of privacy since a transaction resulting in an operation by a physician is not “private.”30 Justice White’s dissent, which Justice Rehnquist joined, summed up the trouble with Roe:
I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. 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 that the Constitution extends to this Court.31
In the years since 1973, no one, however pro-abortion, has ever thought of an argument that even remotely begins to justify Roe v. Wade as a constitutional decision. Justice Blackmun frequently discusses the case in public, but the only justification he offers is not legal but moral: the case, he says, is a milestone on women’s march to equality. There is certainly room for argument about that. There is no room for argument about the conclusion that the decision was the assumption of illegitimate judicial power and a usurpation of the democratic authority of the American people.
On the last day it sat in 1989, a bitterly divided Court decided Webster v. Reproductive Health Services,32 a challenge to statutory restrictions Missouri has placed upon the abortion procedure. The crucial restriction was the law’s requirement that before performing an abortion on a woman twenty or more weeks pregnant, the physician first determine whether the unborn child is viable. Five Justices upheld that regulation, which seemed to narrow the scope of Roe. Three Justices, Rehnquist, White, and Kennedy, employed a standard of review which necessarily, though not explicitly, completely undermines Roe,33 while one Justice, Scalia,34 stated that Roe should expressly be overruled. Justice O’Connor upheld the statute but stated that that could be done without bringing Roe into question.35 Both sides in the abortion controversy at once announced that the Court had made a momentous decision. It is true enough that states now appear to have some unknown degree of additional power to control the incidents of abortion but Webster was neither the calamity that the pro-abortion groups bewailed (“the Court is waging war on women”) nor the great victory that the anti-abortionists proclaimed (“we will produce an avalanche of legislation”). Though Webster altered little that was fundamental, it does signal the potential for such change. In Roe, the Justices split seven to two in favor o
f a right to abort. Now there are four Justices who favor that right, four who think it does not exist, and one who does not reach the issue.
Attempts to overturn Roe will continue as long as the Court adheres to it. And, just so long as the decision remains, the Court will be perceived, correctly, as political and will continue to be the target of demonstrations, marches, television advertisements, mass mailings, and the like. Roe, as the greatest example and symbol of the judicial usurpation of democratic prerogatives in this century, should be overturned. The Court’s integrity requires that. But even if the case is relegated to the dustbin of history where Dred Scott and Lochner lie, the right of privacy and the judicial techniques and attitudes it represents are likely to remain. A more fundamental rethinking of legitimate judicial power than the mere demise of Roe would signify is required.
The privacy right had come to another crucial point three years earlier in Bowers v. Hardwick36 A narrow majority of the Court there upheld, at least as to homosexual sodomy, a Georgia statute making all sodomy criminal. This was significant, and may even have presaged Webster, for there seems little doubt that the impulse, it was no more than that, underlying Roe would have struck down the sodomy statute in Hardwick.
A police officer, who entered Hardwick’s home lawfully, observed Hardwick engaged in homosexual sodomy and made an arrest. The district attorney, however, decided not to prosecute—there had been no criminal prosecutions under the statute for decades—and so Hardwick brought suit to have the law declared unconstitutional. Though he alleged that he was in imminent danger of arrest as a practicing homosexual, that was obviously not so, and the suit was surely brought to seek a declaration that would equate the constitutionality, and hence the presumed morality, of homosexual and heterosexual conduct. Hardwick’s suit, in a word, rested upon nothing in the Constitution and so was one more sortie in our cultural war.
The Supreme Court upheld the law by a five-to-four vote. Justice White, writing for the majority, stated: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.”37 This statement of the issue was somewhat problematical, because the statute on its face applied to all forms of sodomy, heterosexual as well as homosexual, and, given the history of its enforcement, Hardwick was in no greater danger of prosecution than any heterosexual.
The court of appeals had found the statute unconstitutional by relying on Supreme Court precedent that we have already canvassed in this and previous chapters. Justice White found those precedents inapplicable, however, by categorizing them as dealing with child rearing and education, family relationships, procreation, marriage, contraception, and abortion. There was, he said, no connection between those subjects and homosexual sodomy. That was true enough, though, since those cases never did offer a rationale, it is hard to put them into categories except retroactively and as a matter of description rather than analysis.
But Hardwick, quite aside from the precedent, asked the Court to announce a fundamental right to engage in homosexual sodomy. Justice White’s response showed that he knew the Court had long been performing a questionable function in this area. “It is true that despite the language of the Due Process Clauses of the Fifth and Fourteenth Amendments, which appears to focus only on the processes by which life, liberty, or property is taken, the cases are legion in which those Clauses have been interpreted to have substantive content. … Among such cases are those recognizing rights that have little or no textual support in the constitutional language.”38 Then:
Striving to assure itself and the public that announcing rights not readily identifiable in the Constitution’s text involves much more than the imposition of the Justices’ own values on the States and the Federal Government, the Court has sought to identify the nature of the rights qualifying for heightened judicial protection.
That passage contains no suggestion that the Court had succeeded in its striving. Justice White noted two formulations of the Justices’ attempts to assure themselves, and us, that they were not merely imposing their own values. In Palko v. Connecticut, a 1937 decision, it was said that the fundamental liberties to be protected, though not found in the text of the Constitution, included those “implicit in the concept of ordered liberty,” so that “neither liberty nor justice would exist if [they] were sacrificed.”39 Forty years later, in Moore v. East Cleveland, the formulation of protected freedoms was those that are “deeply rooted in this Nation’s history and tradition.”40
This is pretty vaporous stuff. Compare the phrases used by Palko and Moore with the provisions of the Bill of Rights. The latter at least specify what liberty is to be protected. Whatever line-drawing must be done starts from a solid base, the guarantee of freedom of speech, of freedom from unreasonable searches and seizures, and the like. By contrast, the judge-created phrases specify no particular freedom, but merely assure us, in sonorous phrases, that they, the judges, will know what freedoms are required when the time comes. One would think something more is required as the starting place for a line of reasoning that leads to the negation of statutes duly enacted by elected representatives. “Ordered liberty” is a splendid phrase but not a major premise. It might be thought that ordered liberty is just what the Constitution was intended to establish for the nation and that it is therefore more than a little surprising, and perhaps presumptuous, that Justices should describe their task in a way that suggests they are completing a design the Founders left unfinished. Both the amendment process, specified in the Constitution, and the processes of legislation are means by which the design of order and liberty can be elaborated and improved. The phrase Palko used rather too clearly indicates that the Justices may rewrite the Constitution. Nor is it terribly reassuring to be told they will rewrite it only to save liberties the Founders overlooked but which are nevertheless so essential that neither liberty nor justice can exist without them. The suggestion that such rights were overlooked in the Constitution and then systematically overlooked through two centuries of amendments is, to be candid, preposterous.
The Moore formulation is less grandiose but hardly offers more guidance. Liberties that are deeply rooted in our history and tradition and that now need protection must be matters the Founders left to the legislature, either because they assumed no legislature would be mad enough to do away with them or because they wished to allow the legislature discretion to regulate the area as they saw fit. In any event, history is not binding, and tradition is useful to remind us of the wisdom and folly of the past, not to chain us to either. No constitutional doctrine holds that history and tradition may not be departed from when the people think there is good reason to do so. Our history and tradition, like those of any nation, display not only adherence to great moral principles but also instances of profound immorality. Opinions about which is which will differ at any one time and change over time. The judge who states that tradition and morality are his guides, therefore, leaves himself free to pick through them for those particular freedoms that he prefers. History and tradition are very capacious suitcases, and a judge may find a good deal pleasing to himself packed into them, if only because he has packed the bags himself.
Because homosexual sodomy has been proscribed for centuries, Justice White said the claim that such conduct was “deeply rooted in this Nation’s history and tradition” was “at best, facetious.”41 He expressed the Bowers majority’s unwillingness to take a more expansive view of its authority to discover new fundamental rights in the due process clause. “The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.” That is quite right, or almost so. Perhaps he had to put the matter as one of coming “nearest to illegitimacy” in order not to offend members of the majority who had joined decisions that had no roots in the “la
nguage or design of the Constitution,” but on this topic there is no question of near or far. When constitutional law is judge-made and not rooted in the text or structure of the Constitution, it does not approach illegitimacy, it is illegitimate, root and branch
Justice Blackmun wrote for the four dissenters.42 His opinion has been widely praised by the commentators of the popular press with such terms as “eloquent̶ and “passionate.” Those things it may be. But eloquence and passion are poor substitutes for judicial reasoning, and the Bowers dissent, the natural outcome of Griswold v. Connecticut and Roe v. Wade, is a constitutional debacle. The opinion will repay close examination nonetheless, for here, for the first time, a Justice embarks upon the enterprise law school theorists have been urging upon the Court as its proper function—the enterprise of articulated moral philosophy. Blackmun began with the observation that the case was not about a fundamental right to engage in homosexual sodomy but about “ ‘the most comprehensive of rights and the right most valued by civilized men,’ namely, ‘the right to be let alone.’ ” There is, of course, no general constitutional right to be let alone, or there would be no law. This was merely the general, undefined right of privacy again. Though it is difficult to be sure, Justice Blackmun seems to have located this free-floating right, or rather free-floating judicial power, alternatively in the due process clause of the fourteenth amendment or in the ninth amendment. We have discussed the due process clause’s lack of substance, and the ninth amendment, as will be shown in Chapter 8, simply does not create any rights a court may enforce against any government. In Roe, Justice Blackmun had attached privacy to the due process clause of the fourteenth amendment. But, as in Roe, where in the Constitution a Justice chooses to insert a right he has made up is of small importance, more a matter of aesthetic preference than of legal significance.
The Tempting of America Page 16