Source: The Supreme Court:" The Rehnquist Revolution"
Griswold v. Connecticut
(Video)
This video segment from The Supreme Court provides background on the landmark case Roe v. Wade. In the early 1970s, at a time when many Americans believed a woman’s place was in the home, the women’s movement was sweeping the nation. Women wanted the right to make choices not only about careers but also about when and even if they would have children. For the women’s movement, abortion rights meant that women did have choice. The video goes on to explore how conservative Justice Harry Blackmon came to write the liberal opinion that legalized abortion.
Download and ShareIn the latter part of the 19th century and the first half of the 20th century, most states adopted laws strictly regulating the availability of abortions. Many states outlawed abortion except in cases where the mother’s life was in jeopardy. Illegal abortions were widespread and often dangerous for women who undertook them because they were performed in unsanitary conditions.
The sexual revolution that began in the second half of the twentieth century resulted in public pressure to ease abortion laws. As some states began to relax abortion restrictions, some women found it relatively easy to travel to a state where the laws were less restrictive or where a doctor was willing to certify medical necessity.
However, poor women often could not travel outside their state to receive treatment, raising questions of equality. Statutes were often vague, so that doctors did not really know whether they were committing a felony by providing an abortion. In addition, government interference in sexual matters was beginning to be called into question by a changing conception of privacy.
There is no right to privacy specifically guaranteed in the Constitution. However, the Supreme Court has long acknowledged some right to privacy, but usually associated that right with a particular location, like a person’s home. However, during the 1960s, the Court’s position on privacy changed so that it was connected with a person, not a location.
In the case of Griswold v. Connecticut (1965), the Supreme Court ruled that a Connecticut law outlawing access to contraception violated the U.S. Constitution because it invaded the privacy of married couples to make decisions about their families. In that ruling, the Court identified privacy as a fundamental value for the American way of life, and for the other basic rights outlined in the Bill of Rights.
Jane Roe, a pseudonym used to protect her identity, was an unmarried and pregnant Texas resident in 1970. She wanted to have an abortion, but Texas abortion law made it a felony to abort a fetus unless “on medical advice for the purpose of saving the life of the mother.” Roe filed suit against Wade, the district attorney of Dallas County, Texas to challenge the statute outlawing abortion.
Roe contested the statute on the grounds that it violated the Fourteenth Amendment mandating equal protection of the laws and the guarantee of personal liberty, and a mother’s right to privacy implicitly guaranteed in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The state argued that “the right to life of the unborn child is superior to the right to privacy of the mother.” The state also argued that in previous decisions where the Court protected individual or marital privacy, that right was not absolute. The state argued that this is a policy matter best left to the legislature to decide. A three-judge federal district court ruled the Texas abortion law unconstitutional, and the case was then appealed directly to the U.S. Supreme Court.
--from the website Landmark Supreme Court Cases
BISKUPIC: You have a case coming from Texas begun by a woman who, on paper at least, is named Jane Roe. She was 21 years old, she was pregnant and she didn't wanna have this baby.
The Texas law was one of the strictest in the nation. It allowed abortion only in cases to save the life of the mother. So even if you had a situation where a young woman had been raped or the victim of incest, she still could not get an abortion in Texas.
PROTESTORS: Equal pay for equal work. Join our crowd.
ALLEN: Women were, by definition, by nature intended, many people believed, to take care of homes and children. And to say that's not true but that women have a right to be lawyers and doctors and police officers, that was radical.
BISKUPIC: You have the Equal Rights Amendment moving through the Senate and the House. You have Ms. Magazine being started by Gloria Steinem. You have the American Civil Liberties Union starting a woman's rights project. There's a lot of agitation in America over women's rights.
PROTESTORS: Abortion is our right...you can't deny...abortion is our right...
ALLEN: In those days there was an assumption that if you had a baby, if you were a mother, you were no longer entitled to pursue a career. Abortion rights meant, symbolically, that women did have choice. Women could say not now, later-or not at all.
POWE: I think the justices believed that the women's rights movement was so clearly the wave of the future that was just about to happen that everybody's for abortion, because everybody's for women's rights.
PROTESTORS: ...What do we want...
NARRATOR: In fact, in conference, there was an easy majority for striking down the Texas law.
BISKUPIC: Warren Burger gives the opinion to his friend, Harry Blackmun. Harry Blackmun and Warren Burger had been childhood chums in Minnesota. Warren Burger, I think, believes that he could have more control over the opinion.
NARRATOR: Blackmun didn't know why Burger assigned the opinion to him. Maybe because he'd been counsel to the Mayo Clinic back in Minnesota. But what would his doctor friends think about this case? Blackmun was in turmoil.
At home, his three grown daughters happened to be visiting, so at supper Blackmun put the question: "What are your views on abortion?" By the time his wife and three daughters sounded off on him, Blackmun announced, "I think I'll go lie down. I'm getting a headache."
BISKUPIC: Justice Blackmun was a, very green justice at this point in his career. The workload is very tough for him. This is a very hard case. It's very much of a burden within the marble walls.
CBS ANNOUNCER: From CBS News headquarters in New York, this is the CBS evening news with Walter Cronkite.
WALTER CRONKITE: Good evening. In a landmark ruling, the Supreme Court today legalized abortions. The majority in cases from Texas and Georgia said that the decision to end the pregnancy during first three months belongs to the woman and her doctor, not the government. Thus the anti-abortion laws of 46 states were rendered unconstitutional.
KLARMAN: How in the world did such a conservative justice write this incredibly activist, liberal opinion in Roe? Well if you go back and read the opinion, it doesn't read as some sort of charter of feminist rights; it reads as a charter of doctors' rights. He actually researched the history of abortion, and his visceral response was, "The state ought not to be telling doctors how to regulate pregnancy."
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