Constitutional Law Class Notes 4/6/04


More on Griswold


For this week, focus the most on Glucksburg v. Washington.  How do we identify which rights get protected as a matter of substantive due process?  Glucksburg is an important case for addressing that methodological issue.  It’s not the only one: Lawrence v. Texas is important too.  In fact, all three readings for the rest of this week are really setting the stage for an extended discussion of Lawrence next week.  We’re using a series of “stepping stones” to Lawrence.  Bowers is important, however, it gets overruled in Lawrence.


We left off talking about Griswold.  Now we will talk about the relationship of contraception to abortion.  To understand that discussion, Foley will give us a bit of history: the history concerning the status of Griswold.  Griswold was the main precedent relied upon in Roe v. Wade when the right to abortion was recognized under the substantive due process doctrine.  Some of the intermediate precedents had expanded the Griswold precedent from married to unmarried couples.  When, in the 1980s, the Reagan Administration and the Department of Justice under Attorney General Meese asked the Supreme Court to overrule Roe, there was a lot of discussion about what is right or wrong in Constitutional Law.  The question came up when President Reagan nominated Robert Bork for the U.S. Supreme Court when Justice Powell retired in 1986.  Bork was known to be an opponent of Roe v. Wade.  The Senate hearings discussed the extent of his opposition.  Sen. Specter in particular asked Bork whether he disagreed with Griswold also.  Bork said that he did disagree, saying that the entire doctrine of substantive due process was illegitimate, whether as articulated in Lochner or in Griswold.  Since neither contraception nor abortion is specified in the Constitution, Bork felt that there shouldn’t be any such rights.  Bork was rejected by the Senate, and then Kennedy was nominated.  He refused to take Bork’s position that substantive due process is wrong always and under all circumstances.  With respect to Griswold v. Connecticut, he clearly embraced the decision and accepted it as correct governing precedent.


The Senate accepted Kennedy even though he didn’t say what he thought about Roe.  Kennedy’s vote is the crucial vote in reaffirming Roe in the Casey decision.  Kennedy changed his mind about overruling Roe and joined a plurality opinion to sustain Roe.  So how do we understand the relationship of the Griswold decision to abortion?  Kennedy changed his mind about this: can the Constitution protect the right to contraception as Griswold holds, yet not protect a right to abortion as Roe holds?  Meese and others argued that the Court was not right to protect a right to abortion even though it was right to protect the right to contraception.


So what’s the difference between contraception and abortion?  Contraception is preventative, while abortion terminates an existing pregnancy.  However, it does prevent a birth.  Griswold prevented any form of birth control, including IUDs.  IUDs are considered a contraceptive in common parlance, but they work by preventing implantation, rather than preventing fertilization.  In some sense, that could be considered abortion rather than contraception depending on how you define things.  Also, the “morning after pill” works up to 72 hours after fertilization.  So some forms of birth control prevent fertilization and some do not.  We will find that viability becomes an important turning point.


Griswold did not decide the question of what should happen when a woman is 12 weeks into a pregnancy.  The Roe and Casey decisions cover a woman who is 12 weeks pregnant, but Griswold did not purport to cover such a factual pattern.  As far as the morning-after pill and IUD go, Griswold explicitly covers at least the IUD, even though it is post-fertilization.  But is RU-486 within Griswold or beyond Griswold?  Is it a Griswold-covered case or a Roe-covered case?  Does it make a difference when you take RU-486?  Where do we draw the line?  Should this be a purely legislative decision?  Is the Court simply making value judgments?


We must address this as a constitutional issue as lawyers.  If we suppose that the Court had overruled Roe in Casey, or if it does so in the future, and thus abortion is no longer protected, then what is the legally correct scope of Griswold?  Most people today, partly because of the history of Bork losing his nomination, say that Griswold has to remain accepted as Constitutional Law.  Purists like Scalia can no longer make it to the Court, and every nominee coming before the Senate must accept Griswold as good law.  Souter ducked the question.  But the political compromise in the Senate is the Griswold must stand.  If Roe were overturned, we would still have to figure out what Griswold would still mean.  One argument made in favor of Griswold and Roe as precedent is that these cases stand for a “zone of personal privacy” with respect to reproductive choices.  As long as these decisions stand, it is argued, the United States will never be like China where you may only have a certain number of children.


Scalia or Bork would say that this might be a wonderful right to protect, and we’re not China because our legislatures would not adopt forced sterilization laws.  However, they would argue that we don’t have protection in the Constitution against forced sterilization because that’s not in the Constitution.  They would say that we could amend the Constitution if we wanted to.  But the Constitution doesn’t dictate a specific answer!


If Griswold meant to protect the use of IUDs, then it must protect contraception/abortion for up to 72 hours after fertilization, according to Foley.  The language of Griswold focuses on privacy in the home, and in the bedroom in particular.  What is the impact of this precedent on the regulation of RU-486?  One of the virtues of RU-486 is that it can be available in an emergency when the need for contraception was not anticipated.


Just as Lochner was overruled, there is the chance for this branch of substantive due process to get overruled too.  But if Roe gets overruled, does the whole modern substantive due process apparatus fall as well?  Or will Griswold stand?  Does the Constitution protect sexual freedom on the one hand, or reproductive freedom on the other?  In the old days, sex and reproduction went together.  But with modern technology, we can have sex without reproduction and reproduction without sex.  Constitutional Law has to try to think through how to deal with these issues.


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