March 1, 2006
Griswold v. Connecticut
1965
The Law
 A Connecticut law, passed in 1879, restricted
the use of “any drug, medicinal article or
instrument for the purpose of preventing
conception.”
 It was mostly not enforced.
 People still brought the law to court in
various cases, but it was always upheld on a
technical basis.
 Estelle Griswold, of Planned Parenthood of
Connecticut, and Dr. C. Lee Buxton, doctor
and professor at Yale, opened a birth control
clinic in Connecticut to try the courts again.
 They were arrested, tried, and found guilty.
 They appealed the conviction, but the ruling
was upheld until Griswold took her case to
the Supreme Court.
 The Court ruled 7-2 that a Connecticut law
making contraceptives illegal was
unconstitutional based on a “right to marital
privacy.”
Concurring Opinion
 Justice Douglas: The Bill of Rights does not directly
include a right to privacy, but it is alluded to in the
“penumbras” (“an area in which something exists to
a lesser or uncertain degree”- dictionary.com) of
other parts of the constitution.
 Justice Goldberg: Ninth Amendment – “The
enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others
retained by the people.”
 Justice Harlan: Privacy should be protected as
stated in the due process clause of the Fourteenth
Amendment
Dissenting Opinion
 Justice Black: A “right to privacy” does not exist
in the Constitution.
 Did not agree with the other Justice’s
interpretations of the Ninth and Fourteenth
Amendments.
 Justice Stewart said it was “an uncommonly silly
law,” but was still constitutional.
Consequences
 Stated that the Constitution included a “right to
privacy.”
 Set a precedent for other Supreme Court rulings
about sexual privacy.
 These other rulings, including Roe v. Wade
(1973), were made based on the due process
argument from Griswold v. Connecticut.
Due process means the government will
uphold the entirety of a person’s legal rights at
all times.
What each side says…
 Planned Parenthood’s take on Griswold v.
Connecticut: “While challenges remain in the
struggle to provide universal access to birth control,
the court's 1965 decision in Griswold granted
constitutional protection to the life-enhancing work of
Planned Parenthood and other advocates of
reproductive freedom in the U.S.”
 Opponents to the ruling, who argue there is no “right
to privacy” in the U.S. Constitution, see Griswold v.
Connecticut as a case of “judicial activism”, judges
attempting to “legislate from the bench” instead of
interpreting the constitution.
Roe v. Wade
1973
"We need not resolve the difficult
question of when life begins."
~Justice Blackmun
Background
• Texas law stated that abortions could be
performed to save the life of the mother, and
only on this condition
• “Roe,” a single pregnant woman, challenged this
position in the district court of northern Texas
Texas Results
• Abortion statutes were declared void, as
infringing on ninth and fourteenth amendment
rights
• Roe was granted declaratory relief (clarification
of her rights), but not injunctive (court order,
executory process), and the case was appealed
Supreme Court
• Held that state criminal abortion laws were
unconstitutional, particularly in light of the “Due
Process Clause” which protects right to privacy
• Permitted states to define “physician” as
someone licensed by the state and prohibit
unlicensed individuals from performing abortions
• Declared that the state has an interest in
protecting both the mother’s life and “potential”
life, and that these interests become more or
less compelling at different points in the
pregnancy
– Established the three trimester system
Three-Trimester System
• 1st Trimester: the decision to abort may be left
up to the woman and her physician
• 2nd Trimester: states can regulate abortion in
reasonable ways as it relates to the health of the
mother
• 3rd Trimester/viability: states can regulate or
prohibit abortion except in cases where the
mother’s life is in danger
Doe v. Bolton
1973
Health: “all factors—
physical, emotional,
psychological,
familial, and the
woman’s age—
relevant to the wellbeing of the patient.”
~Justice Blackmun
Background
• Georgia law prohibited abortion except on
medical advice to preserve the life or health of
the mother, when the fetus would likely be born
defective, or when the pregnancy had resulted
from rape
• Doe challenged Georgia law after she was
denied an abortion at eight weeks because her
pregnancy did not fall into any of the above
categories
Georgia Results
• The court granted declaratory, not injunctive relief,
deciding that the conditions stipulated for procuring
an abortion were unconstitutional as violations of
privacy and personal liberty
• Held that the state had an interest in the protection of
“potential independent human existence,” and this
interest…
– “justified regulation through 26-1202 (b) of the
‘manner of performance as well as the quality of
the final decision to abort.’”
• Doe appealed, seeking broader relief
Supreme Court
• Held
– state criminal abortion laws were
unconstitutional
– the Georgia residence requirement was invalid
– the required acquiescence by two
copractitioners was also invalid, on grounds
that it had no bearing on the patient’s needs
– the requirement to perform abortions in a
hospital setting was invalid
Broader Implications
• “Health” of the mother, already a vague
term, became vaguer
• By virtue of this, abortion is legal during all
nine months of pregnancy for essentially
any reason, as long as it can be declared
necessary for a woman’s “health”
Planned Parenthood of
Southeastern Pennsylvania
v. Casey
June 29th, 1992
• The plaintiffs:
– 5 abortion clinics
– a class action of physicians who provide
abortions,
– 1 independently represented physician
• The suit: Certain provisions of the Pennsylvania
Abortion Control Act of 1982 unconstitutional
after Roe v. Wade
Pennsylvania Abortion Control Act
of 1982
• Informed Consent
– Doctors must provide information about
the health risks of abortions
• Spousal Notification
• Parental Notification
• 24 waiting period prior to abortion
• District Court Ruling:
– All four provisions declared unconstitutional
• Third Circuit Court of Appeals:
– All provisions upheld except spousal
notification
– Alito dissents from the invalidation of the
spousal notification regulation
• Supreme Court urged to overturn Roe…
Supreme Court Decision
Plurality opinion: O’Connor, Kennedy, Souter
1. Roe upheld
– “grounded in the general sense of liberty”
2. Overturns Roe’s trimester formula
– Viability now recognized as 22-23 wks (2nd
trimester)
– Viability: when the state’s interests outweigh
a woman’s rights and abortion may be
banned
Supreme Court Opinion, cont…
3. Defined a new standard for abortion regulations: “undue
burden”
– “a substantial obstacle in the path of a woman
seeking an abortion of a non-viable fetus”
4. Upheld: Informed consent
Parental notification
24-hour waiting period
5. Struck: Spousal notification requirement
Stenberg v. Carhart
2000
Background
• In 1997, Nebraska placed a ban on partialbirth abortion (D&X)
• Physician Leroy Carhart sued Nebraska
Attorney General Don Stenberg, seeking
declaratory judgment that the ban violated
the “undue burden” standard set in Casey
• A federal district court and the Court of
Appeals ruled in favor of Carhart; Stenberg
appealed to the Supreme Court
Supreme Court Arguments
• Noting the lack of a health exception in the
ban, Stenberg argued that partial-birth
abortions were never necessary
• The Court questioned whether the ban
was broad enough to ban other types of
abortion, which would violate the “right to
privacy” in Roe and Casey
Supreme Court Ruling
• In a narrow 5-4 ruling, Nebraska’s ban
was struck down
• Thus, all other state laws banning partialbirth abortion were overturned
Supreme Court Opinion
• Majority: ban violated “undue burden”
standard and hence was unconstitutional
• Dissent: American Medical Association
had concluded D&X was very different
from other types of abortion and bordered
on infanticide
– Scalia pointed out the decision was perfectly
logical, following from Casey; he denounced
“undue burden” as illegitimate
Gonzales v. Carhart
2006
The issue
• The Supreme Court will review the July
2005 ruling by the 8th Circuit Court of
Appeals that overturned the federal PartialBirth Abortion Ban Act on the basis of
Stenberg
• The ban does not have a health exception,
but it does allow an abortion if it were
necessary to save the mother’s life
The question
• The Court will answer:
– “Whether, notwithstanding Congress’s
determination that a health exception was
unnecessary to preserve the health of the
mother, the Partial-Birth Abortion Ban Act of
2003 is invalid because it lacks a health
exception or is otherwise unconstitutional
on its face.”
Health exception?
• Congress cited in its bill a panel from the
American Medical Association, which could
not find any circumstance where partialbirth abortion would be necessary to
protect the mother's health
• Instead, it said partial-birth abortions can
pose health risks, including cervical
damage, trauma to the uterus, and
hemorrhaging
The Court at present
• The Court will hear the case during its next
term, beginning in October of this year
• Decision may come next December or
January
• Five current justices have voted in favor of
Roe: Breyer, Ginsburg, Souter, Stevens,
and Kennedy
• Scalia and Thomas have voted to overturn
Roe, and Roberts and Alito have not voted
on it yet
Sources
 http://en.wikipedia.org/wiki
 http://www.plannedparenthood.
org
 http://www.law.cornell.edu/sup
ct/html/historics/USSC_CR_04
10_0113_ZS.html
 http://biotech.law.lsu.edu/case
s/reproduction/bolton.htm