A short thread on the history of the right to privacy in the US Constitution, which should serve as a background to discussion in a future hearing with Judge Barrett. (1/n)

The original right to privacy case is called Griswold v. Connecticut. It was decided by SCOTUS in 1965. The law at issue, one written, believe it or not, by PT Barnum back in the 19th C., outlawed the sale of contraception in Connecticut. (2/n)

Griswold illustrated a problem that should be apparent to all lovers of liberty, as well as just plain lovers. The CT law hadn't been enforced in decades. A previous case, Poe v. Ullman, in 1961, had been dismissed by SCOTUS because of that. Nobody arrested, no case. (3/n)

Needless to say, it's kind of scary to have a law on the books that hasn't been enforced, because sooner or later, it will be. So Planned Parenthood opened up a birth control clinic *for married people* in New Haven, booked appointments, and sooner or later, got busted. (4/n)

The Supreme Court decided, 7-2, that Connecticut's law violated "marital privacy." There were two constitutional theories in the 7, and one more in the dissent. They're interesting to look at a little more closely, and are all likely to come up. (5/n)

The majority opinion, written by Justice Douglas, found that there was a right to privacy in the "penumbras" of the Bill of Rights. That is, in the shadows. There are elements of privacy in the right to be free from searches and seizures without a warrant, for example. (6/n)

As well as in the right to association, in the First Amendment. For this reason, the law in CT couldn't stand. Justice Goldberg agreed the law should go, but disagreed with the penumbrae. This is straight Ninth Amendment, he said. (7/n)

The Ninth Amendment says that the Bill of Rights isn't an exhaustive list: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." (8/n)

The dissenters were Justice Black and Justice Potter. The dissent is interesting to read to see where we've come as a country. The dissent thinks the law is utterly silly, but not unconstitutional, so not within the power of the Court to strike down. (9/n)

This is what lawyers talk about with the theory of judicial restraint. Judges shouldn't insert themselves into the place of the legislature. You'll note that religious stances relating to birth control are mentioned only in passing, (10/n)

and then only to note that *neither side argued that religious belief had any bearing on the law.* So that's Griswold. There's a right to "marital privacy." But what about unmarried people? How did they get the right to buy birth control? (11/n)

That's due to a *1972* case, Eisenstadt v. Baird. Bill Baird, an absolutely heroic gentleman who's still alive at 88, gave a lecture at Boston University about birth control. At the end of the lecture, while talking with students, he gave a packet of contraceptive foam (12/n)

and a condom to an undergraduate who asked for them. He was promptly arrested under a Massachusetts law which said that only doctors or pharmacists could give out birth control, and then only to married couples. (13/n)

The case came up to a Supreme Court that was missing two justices, so it's a 6-1 decision. The majority opinion was written this time by Justice Brennan. It says that first off, there's no rational basis for the Massachusetts law. (14/n)

Fornication was still on the books in Mass. at the time, but it was a misdemeanor, and surely the punishment of a misdemeanor with an unwanted child is completely insane. (15/n)

Secondly, the marital restriction is equally irrational. How can you guarantee that a married person will get birth control and then not use it with an adulterous partner? (16/n)

Thirdly, if Griswold applied a right to privacy to married couples, you can't deny equal protection to those who aren't married. (17/n)

Finally, if the state had an interest in health risks caused by contraceptives themselves, you can't logically argue that those risks apply differently to married and unmarried couples. (18/n)

There were two concurrences (Douglas, who felt the whole case was a free speech case bc they wouldn't have arrested Bill Baird except for investigating after his speech offended the cops, and White, who thought the limitation to pharmacists and doctors was irrational.) (19/n)

Let's look at the dissent, which was from Chief Justice Burger. He said simply that he didn't think that the argument about the health risks of foam had been argued before, and that maybe the pharmacist/doctor rule was a good one because it ensured good medical advice. (20/n)

That leads us up to Roe v. Wade. Which is actually two cases, Roe, and a case called Doe v. Bolton. Let's look at Doe, first, because it's not as well known. First, as background, you should know that Justice Blackmun, who wrote both decisions, had been general counsel (21/n)

for the Mayo Clinic for a number of years before becoming a judge. So when the case got assigned to him, he went to the medical books as well as the law books. (22/n)

Doe v. Bolton involved a married woman. Roe v. Wade involved a single woman. The Plaintiff in Doe had had two prior children-- both were placed in foster care because she was too poor to support them. (23/n)

She was nine weeks pregnant when she filed suit-- the law in Georgia at the time only allowed abortion for rape, incest, or endangerment of the life of the pregnant woman. (24/n)

It also had restrictions which should sound familiar: had to be done in a hospital, had to be approved by a hospital committee, could only be done to bona fide Georgia residents. (25/n)

Doe ended up being decided by the same 7 and the same 2 that Roe were. Blackmun for the majority: right to privacy as stated in Griswold and Eisenstadt apply; this is a discussion for a woman and her doctor, nobody else. (26/n)

The woman's doctor has the clinical judgment as to whether it's medically appropriate, no need for an independent panel or a hospital setting if it's not necessary. (Blackmun emphasises, in both Roe and Doe, medical judgment, based on his experience with Mayo.) (27/n)

Georgia residency requirements were also struck down as discriminatory under equal protection. He emphasized the right to abortion was not absolute (with a cite to Roe, which we'll get to next), and that people who had moral or religious problems with it weren't forced. (28/n)

Concurrences by CJ Burger (who argues that the criminal component of the abortion law is part of the reason it should go) and Douglas (who emphasizes his penumbra formulation from Griswold again). Now to the dissents, which, like Roe's dissent, you'll note are different. (29/n)

Potter Stewart argues that with Griswald and its progeny, the Court has reintroduced "substantive due process" to its arsenal. This is about as low as you can go in constitutional circles at the time and still be cordial. Substantive due process comes from Lochner v. NY (30/n)

In Lochner, which was decided in 1905, the SCOTUS decided that a law that limited the hours of bakers for health reasons to 60/hrs a week was unconstitutional because it violated the due process clause in infringing on the liberty of free contract. (!) (31/n)

While Lochner itself was overturned, substantive due process has become shorthand for the Court deciding anything based on liberty issues that are only the opinion of the judges who are deciding the case. (32/n)

This is a low blow-- Lochner is a genuinely despised case. Lawyers were recently shocked when a Trump appointee cited it while striking down the Pennsylvania quarantine order. It's usually a case you only accuse your opponents of following. (33/n)

Rehnquist, later Chief Justice Rehnquist, in his dissent, agrees with Stewart and also thinks that the "compelling state interest" doctrine set up in Roe (which we'll get to, I promise) is a bad test. (34/n)

One thing you should notice. Neither Rehnquist or White *ever* pulls out the "killing babies" argument or the religious argument. It simply didn't exist in 1973. (35/n)

On to Roe. Where Doe v. Bolton was a test with a married plaintiff living in Georgia (which, believe it or not, had a *modern* abortion statute), Roe lived in Texas, which had a law that dated back to the 19th C. (36/n)

The woman who was Jane Roe was 21 years old and pregnant with her third child. She'd been married at 16, and had left her husband at 20. The other two kids had been put up for adoption. (37/n)

Texas' law defined life at conception. Basically all abortions were banned. Jane Roe tried to get an illegal one, but the cops had beaten her to the clinic-- the one she knew about had been raided a few days before. California had legalized abortion in 1967... (38/n)

in a law signed by a governor named Ronald Reagan, but not everybody had the money to fly to California. Jane Roe didn't. So she sued. (39/n)

Wade, in this case was the DA of Dallas, Texas. If you look him up, you'll recognize him. He was DA back when JFK was shot, and he's in a lot of the footage of the days surrounding the assassination. (40/n)

Before the opinion in Roe, go google the oral argument audio. They've been recording oral arguments at the Supreme Court for decades, and Roe's audio is widely available. Why should you listen? Because it tells us a lot about where women were in 1972 in the US. (41/n)

Roe's lawyers were both women, and this was *highly* unusual back then. At one point, the lawyer making the argument for Texas makes a joke about the "pretty women" arguing against him. It went completely flat in front of this Court. (42/n)

Blackmun's opinion starts off by quoting Justice Holmes in his *dissent* in that Lochner case I talked about above. He obviously knew where the dissent was going to go. (43/n)

The Texas law had one exception: to save the life of the mother. Blackmun emphasizes that Roe was unmarried and that she couldn't afford to go to another state with more liberal laws (which in 1973 was about 3-4 states). (44/n)

Blackmun makes note of a doctor who intervened in the case, who had been prosecuted under the Texas laws before and who stated that based on the Texas law, he often *didn't know* which abortions were legal and which were illegal. (45/n)

This is Blackmun circling back to the doctors, which we'll see him do again and again. He next goes into whether the case is still a real case, because in the time it's taken for the case to get to SCOTUS, Jane Roe had a baby and put it up for adoption. (46/n)

He decides that the fact that it was a real issue *when the case began* gives her the right to argue. He turns again to the doctor. The doctor who intervened is tossed out of the case because Federal court didn't have the right to hear the case at the time he filed it. (47/n)

Jane Roe is attacking the Texas statute on the basis that like the contraception cases, Eisenstadt and Griswold, the restrictions in Texas invade her right to privacy. (48/n)

Blackmun next goes through the history of abortion laws. The original Hippocratic oath also outlawed abortion. But this had to do with the fact that Hippocrates was a Pythagorean, and in fact most ancient Greeks had no issue with abortion. (49/n)

The Hippocratic oath came into Western Medicine through Christianity. The Christians liked the Pythagoreans because they echoed a similar morality. (50/n)

Galen, who was the other expert physician of the Greek period, had no issue about abortion. And what's more, the ban didn't exist at common law before "quickening," when the fetus starts to move, generally 16-18 weeks. (51/n)

It was considered less than murder throughout the English era, and Blackstone didn't consider it any great crime. England, in fact, had no statute abolishing abortion until 1803, had laws with the quickening distinction until 1929, when it was changed to...(52/n).

the ability for the fetus to survive outside the womb. Current English law dated from 1967, and related largely to physical or mental health of mother, or birth defects. Decisions mostly made by....doctors. (53/n)

None of the US states had abortion laws on the books until 1821. Most of the states that adopted them thereafter were fairly lenient. In fact, "a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. " (54/n)

The restrictive laws started coming in after the Civil War. This was because the AMA got interested in the issue and started lobbying. In 1967, the AMA reversed itself and started suggesting laws like the one struck down in Doe v. Bolton, with panels of doctors. (55/n)

In 1970, the AMA went even further, and pretty much wanted abortion legalized, albeit in hospitals. (56/n)

Now, from the doctors to the lawyers. The ABA issued a report on abortion laws in 1972. It found they were put in for several reasons which did not apply today. (57/n)

The first reason was Victorian sexual morality. Not applicable in 1972. The second reason was health of women-- sepsis was still common before antibiotics came in at the time of WWII. Third reason was protecting fetal life. Let's talk about that. (58/n)

None of the abortion decisions from courts in the 19th C said anything about fetal life. Fetal life before quickening was not considered human life. Life that begins at conception is not discussed. (59/n)

Blackmun moves on to the right of privacy. Adopted in Griswold. Implied in Loving v. VA (interracial marriage). Continued in Eisenstadt. Jane Roe's lawyers argued for abortion on demand, no restrictions whatsoever. (60/n)

Privacy is never absolute. Blackmun goes through all the abortion decisions in courts around the country, and concludes that where there is a "compelling state interest" to restrict a fundamental right like privacy, a line must be drawn. (61/n)

Blackmun discusses the argument that a fetus is a person under the 14th Amendment. Dismisses it because every reference to a person in the Constitution is to a born or statutorily created person. What's more, the argument never existed for much of US history. (62/n)

Let's look at philosophy and religion. Stoics had no problem with abortion. Neither do Jews, or most Protestants (he's writing this in 1973). It seems to be largely a Catholic issue, based on their traditions. (63/n)

But the law has never recognized life beginning at conception, and Texas can't do it. Instead, we have to look at where the "compelling state interest" starts. That would be at viability of the fetus. (64/n)

Here Blackmun goes back to medicine. The first trimester seems to be the point at which mortality in abortions is less than mortality in childbirth. So that should be largely allowed. (65/n)

"For the period of pregnancy prior to this "compelling" point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated." (66/n)

From the first trimester to the onset of viability, the state may regulate only for the health and safety of the patient. After viability, states can ban abortion, provided that the life and safety of the mother is preserved. (67/n)

There are four concurrences and two dissents in Roe. Let's do the concurrences first. Stewart starts by warning of substantive due process. However, he'd strike down the Texas statute as inflexible and incompatible with liberty. (68/n)

Douglas, Burger, and White refer the reader to their concurrences in Doe v. Bolton, not wanting to repeat themselves. (69/n)