I want to thank the Subcommittee for inviting me to present this testimony on the origins and scope of the Supreme Court's abortion decisions. A full-scale discussion would deal with two issues. First, what is the justification for treating abortion as a constitutional issue at all? Ordinarily, when the Constitution does not mention an issue, our constitutional system leaves the issue for legislatures to resolve, state-by-state or on the national level. Courts step in to limit what legislatures do only when the Constitution places some limit on legislative power. Where in the Constitution can such a limit be found on legislative power to regulate the availability of abortions? There is after all no "privacy amendment" to the Constitution, no constitutional provision specifically mentioning a right to privacy as the First Amendment mentions a right to free speech.
Even if abortion somehow is a constitutional issue rather than one of legislative policy, one would still have to address a second question: What should the constitutional rule be? Precisely how much should legislative discretion be limited? As we now know, the possibilities include the relatively substantial restrictions on legislative authority imposed in Roe v. Wade to the less substantial restrictions imposed by the standard in Planned Parenthood of Southeastern Pennsylvania v. Casey, allowing state regulations to the extent that they do not impose "undue burdens" of a woman's right to choose to have an abortion. In my view this second question is less important than the first, which is the focus of this statement.
Discussions of constitutional issues begin with the Constitution's words. As I have noted, the Constitution does not refer to abortion or privacy. There are, nonetheless, several constitutional provisions that support the conclusion that abortion is properly treated as a constitutional issue.
When the Constitution was first proposed, its opponents discovered that many people were upset that the Constitution gave power to the new national government but included few explicit restrictions on the new government's power. Taking advantage of this concern, the Constitution's opponents mounted a sustained campaign against the Constitution's failure to include a bill of rights. James Madison, leading the Constitution's supporters in Virginia, and his colleagues in other states promised that their first act once the new government went into operation would be to propose a set of amendments that would expressly limit the national government's powers.
Madison was not enthusiastic about the Bill of Rights he did introduce. He thought that the unamended Constitution actually did limit the government's power appropriately, by its system of checks and balances and by some specific limits like a ban on retroactive criminal laws. He was also concerned, though, that if the Constitution listed specific constitutional rights, like a right to free expression, it might be interpreted to mean that no other rights existed. This distinction between constitutionally enumerated rights and unenumerated rights lies at the heart of the constitutional controversy over abortion.
The first Congress, which proposed the Bill of Rights, attempted to deal with Madison's concern by adopting the Ninth Amendment. The first eight amendments are what we usually call the Bill of Rights. They list a set of rather specific constitutional rights--to free speech (First Amendment), to keep and bear arms (Second Amendment), to confront witnesses against defendants in criminal trials (Sixth Amendment). Of course interpreting these provisions is not always easy, but the Constitution's words do provide some guidance.
The Ninth Amendment is different. It says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." What does this mean? Most obviously, it tries to rule out a certain kind of argument. Suppose someone says that the Constitution protects a right to privacy. An opponent responds, "Because the right to privacy is not listed in the first eight amendments or anywhere else, the Constitution does not protect such a right." This response takes the enumeration of rights in the first eight amendments and elsewhere in the Constitution as an argument against the existence of a right to privacy, or as an argument that courts should not enforce a right to privacy as vigorously as they enforce free speech rights. The Ninth Amendment says that such a response is inadequate: The response quite literally construes the enumeration to deny or disparage other rights.
The Ninth Amendment seems to do more than that, however. At the very least, it acknowledges that there are some unenumerated rights retained by the people, although it does not tell us what those rights are, or how to identify them. For Judge Robert Bork, it was as if a giant inkblot covered the words that would tell us what the Ninth Amendment meant.
The first step in understanding the Ninth Amendment is to figure out which government it addresses. The First Amendment is explicitly directed at Congress: "Congress shall make no law respecting an establishment of religion. . . ." Most of the other provisions of the Bill of Rights are stated more generally, and might have been interpreted to acknowledge rights that both the national and state governments had to respect. So, for example, the Fifth Amendment's statement that no one shall "be deprived of life, liberty, or property, without due process of law" does not refer explicitly to Congress or the national government. In 1833 the Supreme Court held that the Fifth Amendment restricted only the national government (Barron v. Baltimore, 1833).
If the Bill of Rights restricts only the national government, the Ninth Amendment becomes a real puzzle. Scholars have identified two sources of unenumerated rights. They might originate in state law, or they might originate in what has been called a "higher law," a natural law of fundamental rights.
If unenumerated rights are founded in the laws of each individual state, states could get deny them. Unenumerated rights could not be invoked against state governments: States could use their ordinary police powers to regulate abortions or any other aspect of privacy. The difficulty with saying that the rights the Ninth Amendment refers to are founded in state law is that it then becomes hard to understand the Ninth Amendment's legal effect: What restrictions does it place on the national government?
Suppose a state constitution protected the right of its residents to engage in gambling. No one would contend that such a state constitutional right had any effect on Congress's power to regulate interstate commerce by prohibiting gambling. More generally, Congress can use its powers to override state law, even if the state law is described as a state-based constitutional right. Unenumerated rights based only on state law, then, really cannot restrict national power.
The alternative is to say that unenumerated rights are founded on some higher law. Historians and legal scholars have described that higher law by a number of terms: natural rights, God-given rights, background rights, fundamental rights. Once we recognize unenumerated rights based on a higher law, it is hard to understand why only the national government has to respect those rights. If you have a natural or God-given or fundamental right to engage in your chosen profession, for example, it is hard to see why it is wrong for the national government to restrict that right but permissible for a state government to do so.
Constitutional scholars remain divided over the source of the unenumerated rights recognized in the Ninth Amendment. Until about a generation ago, there was a substantial consensus that those rights were based on state law. Today, opinion is much more divided; probably a slight majority of those who have studied the question believe that the Ninth Amendment recognizes rights based on a higher law, and that it therefore restricts state governments as well as the national government.
The Ninth Amendment is not the only textual basis for protecting unenumerated rights. Courts, scholars, and litigants have relied on several other provisions, the most important of which is the Fourteenth Amendment's due process clause.
The Constitution twice says that government may not deprive people of liberty without due process of law. Although the Supreme Court held in 1833 that the Fifth Amendment's due process clause restricted only the national government, after the Civil War a due process provision was written into the Fourteenth Amendment, where it expressly restricts state governments.
The words of the due process clause seem to give it only a procedural meaning: If a state is going to take my liberty or property, it has to use fair procedures. Understood in that way, the due process clause would not limit the substance of what government could do, but would simply regulate the way it went about doing what it wanted.
A purely procedural interpretation of the due process clause is particularly well suited to the Fourteenth Amendment. That Amendment has three clauses: the privileges and immunities clause, the due process clause, and a ban on state actions that deny the equal protection of the laws. These could be understood to deal with the three ways a government could oppress its citizens. It could adopt oppressive substantive laws, but the privileges and immunities clause bans that. Or, it could use unfair procedures to take people's liberty or property, but the due process clause bans that. Or, finally, it could administer the law unevenly, oppressing a portion of the population, but the equal protection clause bans that.
The Supreme Court gave a narrow interpretation of the privileges and immunities clause in the Slaughterhouse Cases (1873). As a result, that clause could not check oppressive substantive laws. The pressure to have some constitutional barrier to such laws, though, persisted. Within a generation of the Slaughterhouse Cases the Supreme Court began to invoke the due process clause to protect unenumerated fundamental rights. These so-called "substantive due process" cases became the foundation for the Court's protection of an unenumerated right of privacy--even though, as one scholar has said, the term "substantive due process" is "a contradiction in terms--sort of like 'green pastel redness.'"
In fact, however, the notion of substantive due process has deep roots in Anglo-American law. The term usually is traced to the Magna Carta of 1215, which barred the King from acting without "process of law." Over the centuries the term due process began to refer to a requirement that governments avoid arbitrary actions. Before the Civil War, one state court had held government regulation of business--a ban on use or possession of liquor, for example--to violate the state's due process clause. In the notorious Dred Scott case, the United States Supreme Court said that a congressional statute banning slavery in federal territories would violate the Fifth Amendment's due process clause.
By 1868, when the Fourteenth Amendment was adopted, the notion that governments could not act arbitrarily was universally accepted, and it was not a distortion of the era's legal language to say that the due process clause banned arbitrary action. Of course, saying that the due process clause bans arbitrary action does not tell us what actions are arbitrary and therefore unconstitutional. It does, however, provide additional textual support for the proposition that the Constitution protects unenumerated rights.
A final argument for treating abortion as a constitutional issue emphasizes equality and the equal protection clause of the Fourteenth Amendment. Without a right to choose, burdens are imposed on women, but in our society we almost never impose similar burdens on men. Since the early 1970s the Supreme Court has been developing a constitutional law of gender equality. Under that law, states must apply the same rules to men and women unless they can show that different rules "serve important government purposes and [are] . . . substantially related to achievement of those objectives."
If laws restricting the availability of abortions are treated as forms of gender discrimination, would they satisfy the Court's requirements? Of course, no one questions that preserving human life is an important government purpose. That, however, is not really the question. Rather, the question is whether there is an important government purpose in imposing burdens associated with restrictive abortion laws on women but not imposing burdens on men in similar situations. In particular, is there an important government purpose in restricting the availability of abortions--described for these purposes as "coerced continuation of pregnancy"--but not coercing men (and women) to donate their organs when that would save another person's life?
The argument for treating abortion as a constitutional issue takes the answer to be, "No." Most scholars who have addressed the question agree, but some argue that the law in fact does treat men and women equally. They note that traditionally American draft laws have coerced men into serving in the military while exempting women. The draft thus serves as an example for the proposition that men as well as women are coerced into risking their lives in the service of some public goal.
Law professor Cass Sunstein has responded to these arguments, in support of the equality argument against restrictive abortion laws. For Sunstein, the courts give intermediate scrutiny to laws discriminating against women to ensure that the laws do not perpetuate what the Court has called "archaic and overbroad generalizations" about women and men. But, Sunstein argues, when we look at the gender-discriminatory draft law together with restrictive abortion laws, we see the law being used precisely to reaffirm traditional, stereotypical views about the appropriate roles of women--as mothers--and men--as fighters.
Further, Sunstein argues, the argument comparing restrictive abortion laws and coerced organ donations is more complex. The Supreme Court's intermediate scrutiny not only requires that a law's distinctions between men and women serve an important government goal, but also that the distinctions are "substantially related to achievement of those goals." Taking the goal to be preserving human life, Sunstein argues that restrictive abortion laws in fact do rather little to "achieve" or promote that goal. True, restrictive abortion laws may reduce the number of legal abortions performed, but they may have relatively little effect on the total number of abortions performed. And, because illegal abortions are performed under circumstances that pose greater risks to the women, the total number of lives lost (counting fetuses as human) may be greater if the abortion laws are restrictive than if they are not.
Except for the period between 1937 and 1965, the Supreme Court has consistently stated that there are unenumerated constitutional rights, and it sometimes enforced them. In 1798, within a decade of the Constitution's adoption, one Supreme Court justice explicitly stated that the Court should invalidate laws that violate "certain vital principles in our free republican governments" (Justice Samuel Chase, in Calder v. Bull, 1798). For Chase, those principles limited legislative power, whether or not they were stated in the Constitution. His examples were statutes that punished citizens for innocent actions, made a person a judge in his own cause, or took property from one person and gave it to another. "It is against all reason and justice," according to Chase, "for a people to entrust a legislature with such powers; and therefore, it cannot be presumed that they have done it."
A little more than a decade later, Chief Justice John Marshall justified a Court decision invalidating a state legislature's attempt to rescind land grants by invoking "general principles which are common to our free institutions" (Fletcher v. Peck, 1810).
These early hints of a natural law Constitution with judicially enforceable unenumerated rights show that early justices were not averse to invoking unenumerated rights. They are not strong precedents, though. Justice Chase actually voted to uphold the challenged statute in Calder. Most of his examples could be unconstitutional because they violated enumerated rights: procedural due process for the "judge in his own case" statute, the clause prohibiting a legislature from taking property for public use without just compensation in the "take from A to give to B" statute. Chief Justice Marshall found the land grant statute unconstitutional because it violated the provision barring statutes from impairing the obligation of contracts (the contract between the legislature and the bribers). Still, something seems to be wrong with those statutes, unless there is a decent police power justification for them, but nothing in the Constitution seems to acknowledge rights the statutes violate.
Responding to a period in which the Court limited legislative authority to regulate economic affairs, the Supreme court in 1937 officially repudiated the proposition that the due process clause authorized the courts to enforce unenumerated constitutional rights. Only a few years later, however, the language of fundamental rights cropped up again. In 1942 the Supreme Court considered the constitutionality of an Oklahoma statute permitting the state to sterilize "habitual criminals," which the statute defined as those who had committed three "felonies involving moral turpitude" (Skinner v. Oklahoma, 1942). Justice William O. Douglas wrote the Court's opinion invalidating the statute. He wrote that the statute dealt with "one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence of the race." Instead of finding the statute unconstitutional because it restricted fundamental rights, though, the Court relied on the Fourteenth Amendment's equal protection clause. The Oklahoma statute excluded violations of the prohibition laws and embezzlement from the definition of "felonies involving moral turpitude." And, according to Justice Douglas, "strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly, or otherwise, invidious discriminations are made against groups. . . ."
Justice Douglas's opinion in Skinner once again showed the Court willing to identify certain rights as fundamental. The Court continued to identify unenumerated fundamental rights. In a series of decisions in the 1950s, for example, the Court held that people had a fundamental right of access to the courts. As a result, statutes that made it impossible for poor people to exercise that right--by imposing a fee they could not afford--could not survive the strict scrutiny given to statutes that provided access to the courts to one group--the well-to-do--and denied it to the poor. Thus, even as the Court's official theory rejected any claim that it could directly enforce fundamental rights, the Court continued to do so indirectly.
Running underneath Supreme Court decisions invalidating statutes because they violate enumerated constitutional rights, there has been a subterranean stream acknowledging that the courts could, and sometimes would, invalidate statutes because they violate unenumerated rights. What, though, are those rights?
Courts and scholars have relied on several general sources for identifying unenumerated or fundamental rights. Here I address two: tradition and precedent.
The argument for relying on tradition to identify fundamental rights is straightforward: The fact that for a long time we as a people have not let our government regulate some activity indicates that we believe we have a fundamental right to engage in it. That simple statement conceals one major difficulty in invoking tradition against statutes restricting the availability of abortion. A tradition-based argument could not possibly justify the courts in striking down legislation, like laws restricting the availability of abortions, that have been on the statute books for a long time. At most, the argument justifies invalidating new laws, or laws that only one or two cities or states have adopted. In Roe v. Wade, the dissents by Justices Rehnquist and White pointed out how widespread and long-standing abortion laws were. They believed that this was enough to show that the Court's decision could not be justified by invoking a fundamental right founded in tradition.
As judges and scholars have worked out the argument for identifying fundamental rights through tradition, the response offered by Justices Rehnquist and White has turned out to be weaker than they thought. The difficulty lies in what has come to be called the level of generality problem. Everything turns on how specifically or abstractly we define the right claimed to be fundamental. If the right is "the right to choose to have an abortion"--a relatively specific right--then a tradition-based analysis will lead to the conclusion that the right is not fundamental. But, if the right is "privacy" or "the right to make basic decisions central to a woman's life"--more general rights--perhaps a tradition-based analysis will lead to the conclusion that the right is fundamental. How, then, do we decide on what level of generality to specify the claimed right?
Justice Scalia suggested one answer: Choose "the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified" (Michael H. v. Gerald D., 1989). This solves the problem where the person asserting the right is challenging widely adopted laws on the ground that they violate tradition, as in the abortion context.
The so-called "right to die" controversy, renewed by recent appellate court decisions, helps identify one problem with Justice Scalia's proposal. Suppose we know that someone, who has been fully informed about her medical condition, decides that all things considered, she would prefer to end her life now rather than endure what she expects to be an excruciating period of decline and dying. She therefore directs that, when she loses consciousness, she wants to be denied the nutrition that would keep her "alive." If the hospital asks a state court what it is legally allowed to do, what is the answer? The state might take the position that denying the patient nutrition amounts to allowing her to commit suicide, contrary to state law. The patient claims that she has a constitutionally protected right based on tradition, to determine the course of her own medical treatment where matters of life and death are at stake. The state responds that she has no constitutionally protected right to commit suicide. Which tradition is more specific, the one denying protection to all forms of suicide, the one protecting patient choice in all matters of medical care, or the one protecting patient choice in the narrow circumstances presented here? It is not at all clear how to answer that question within Justice Scalia's framework.
Even more, consider the person challenging a novel form of regulation, such as a ban on extended families in areas zoned for single families. The challenger might say that, because there is no tradition denying protection to the underlying activity of living in an extended family, we must move to a higher level of abstraction, such as the right to live with your family as you define it. That right is protected by tradition, and so the zoning ordinance should be unconstitutional.
Those who defend the ordinance will reply, however, that the challenger has wrongly identified the underlying activity. It is not "living in an extended family," but "having living arrangements that cause the kinds of social problems to which the zoning ordinance responds." That activity includes vagrancy and other activities that governments have traditionally regulated. As a result, there is a tradition of denying protection to the activity.
As two critics have put it, "there is no universal metric of specificity against which to measure an asserted right." The difficulty with Justice Scalia's suggested solution to the level of generality problem is that it shifts the focus of concern, and does so in a one-sided way. Instead of worrying about specifying the right at the proper level of generality, we now have to worry about specifying the underlying activity at the proper level of generality. No matter what the activity, there will always be a way of specifying it so that we can locate a tradition denying protection to it. Justice Scalia's solution to the level of generality problem is therefore a prescription for affirming all government regulations against claims that they violate tradition-based fundamental rights. As such, it moves outside the boundary of the effort to determine a method of identifying unenumerated fundamental rights protected against government regulation.
At present, there appears to be no solution to the level of generality problem in sight. If judges are to rely on tradition as a basis for invalidating widely adopted laws, they will have to defend their specification of the relevant tradition by referring to some other sources such as precedent.
One solution to the problem of identifying "the traditions of the people" lies in looking to the decisions governments have actually made. Statutes endorsed by the people's representatives are only one set of such decisions. Another are the decisions by the courts themselves. Perhaps, by examining the limits the courts have placed on government, we can identify fundamental rights that underlie or justify the courts' decisions.
Justice William O. Douglas provided the best example of this approach in his opinion for the Court in Griswold v. Connecticut (1965). There the Court held unconstitutional a state statute making it a crime to use contraceptives. Examining the Court's prior decisions, Justice Douglas identified several in which the Court had protected rights that were not specifically enumerated. He relied on cases from the era of substantive due process protecting parents' rights to send their children to private schools. He also noted that the Court had given constitutional protection to a right of association, barring a state from forcing the National Association for the Advancement of Colored People to disclose its membership lists. The right of association may be related to rights of free expression, but it is not specifically enumerated.
According to Douglas, these opinions showed that the Court was willing to protect unenumerated rights that were somehow related to enumerated ones. He used the widely criticized metaphor that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." Probably a better way to understand Douglas's argument is that specific guarantees were inserted into the Constitution because of the framers' concerns about particular kinds of government oppression. When the same concerns were triggered by government acts not specifically covered by the guarantees, the courts should still be ready to hold them unconstitutional.
What, then, were the concerns underlying the specific constitutional guarantees? Douglas argued that the concerns could be described as an interest in privacy. As he put it, "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship."
The idea of privacy in Griswold might have been confined to a concept of secrecy or informational privacy. In a separate opinion in Doe v. Bolton, Justice Douglas extended the argument by drawing on additional cases. He relied on classic free speech cases to support the proposition that "liberty" included "the autonomous control over the development and expression of one's intellect, interests, tastes, and personality." He relied on Griswold to show that it included "freedom of choice in the basic decisions of one's like respecting marriage, divorce, procreation, contraception, and the education and upbringing of children." And, finally, he relied on Skinner and cases striking laws aimed at vagrants to show that it included "the freedom to care for one's health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf."
These interests might be described as interests in decisional autonomy--the right of each person to make decisions important to his or her life--rather than informational privacy. The Court's decisions, Douglas argued, established that the Constitution barred states from infringing on decisional autonomy. He agreed with the majority in Roe v. Wade that the interest in decisional autonomy was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
Douglas's approach is vulnerable to criticisms, but these generally go to difficulties in identifying the scope of the unenumerated rights by those who use Douglas's method. The criticisms do not substantially impair the conclusion that the courts can enforce unenumerated rights, and therefore do not undermine the conclusion that abortion is properly treated as a constitutional rather than a purely political issue.
As I indicated at the outset of this statement, my point in these comments is not to show that the Supreme Court correctly assessed the competing interests of women, unborn children (or fetuses), and state legislatures in devising the rules it invoked in Roe and Casey. Rather, I have tried to show that it was well within traditional notions of proper judicial activity to treat abortion as a constitutional issue rather, as I have said, than as an issue to be left entirely to the political process for resolution. In the long run, I believe, understanding that abortion is properly treated as a constitutional issue may be more important than accepting any particular resolution of questions about the constitutionality of one or another restriction on the availability of abortion.