Constitutional
Law Class Notes
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
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
Scalia
or Bork would say that this might be a wonderful right to protect, and we’re
not
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.