We hate to disappoint you, but we won't be talking much here about the right to life or the right to choose. We won't be talking about murdering the unborn or a woman's inviolable right to control her body. As much as this sort of language and these sorts of claims fill the abortion debate, they are not really central to the way the Supreme Court has addressed the issue of abortion. For the Court, abortion is a "privacy right" and a "liberty claim." It is protected by the Fourteenth Amendment, which is informed, in this case, by the First, Third, Fourth, Fifth and Ninth Amendments. You may find this evasive—some have argued that this approach only obscures more fundamental moral or philosophical questions—but this is the way the Court has ruled. If you want to understand the state of abortion law in America, this is the way you have to think.
The Supreme Court established this position in 1973 in Roe v. Wade. But before we can discuss that ruling we need to back up a bit.
Since the late nineteenth century, legal scholars have argued that there is a legal right to privacy. In 1890, Louis Brandeis, who was later named to the Supreme Court, defined this right as "the right to be let alone." Brandeis's interest was in the damage done by an intrusive and sensational press, and he looked for remedies in the common law. But the broader discussion of privacy led some to find a right to it in the Constitution. While conceding that the word "privacy" did not appear in the Constitution, they argued that it was implicit within other expressed guarantees. The Fourth Amendment offered, many suggested, perhaps the most concrete privacy guarantee in protecting "the right of the people to be secure in their persons, houses, papers, and effects." But the First and Fifth Amendments were equally important, if more subtle, is suggesting zones of belief, activity, and information that were closed to government intrusion.
The Supreme Court eventually embraced and even expanded this privacy right by holding that, in addition to the implicit guarantees of the Bill of Rights, privacy was a "liberty claim" protected under the Fourteenth Amendment. This amendment, passed in 1868, declared that no state could deny a person life, liberty, or property without due process of law, and in a series of cases the Court held that privacy was one of the fundamental liberties subject to this protection.
The Court advanced this argument first in 1923 in Meyer v. Nebraska, a case prompted by a 1919 Nebraska law that forbade children younger than high school age to be taught a foreign language. Inspired by the anti-German sentiments of World War I, the law was challenged by Robert Meyer who taught German in a Lutheran grammar school. In a 7-2 decision, the Court held that the law violated the terms of the Fourteenth Amendment. And in explaining its decision, the Court drew more fully the connection between privacy and liberty, between the implicit protections of the Bill of Rights and the explicit demands of the Fourteenth Amendment.
The Court recognized that it was heading into new territory here; it had "never attempted to define, with exactness, the liberty guaranteed by the Fourteenth Amendment." But "without doubt," the Court continued, "it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."16 In other words, liberty meant more than freedom of movement or even thought. It meant the freedom to make the most personal and private decisions about marriage and childrearing without government interference. Moreover, the Fourteenth Amendment required that the federal government protect this sort of liberty of privacy from interference by the states.
Four years later, the Court used the same reasoning in striking down an Oregon law that required parents to send their children to public schools. Like the Nebraska law regarding foreign language instruction, this Oregon law was rooted in anxieties about supposedly "un-American" (in this case, Catholic) influences on traditional society. But in Pierce v. Society of Sisters, a case initiated by a Catholic teaching order, the Court argued that Oregon's law violated the Fourteenth Amendment by interfering with "the liberty of parents and guardians to direct the upbringing and education of children under their control."17 In other words, like the question of what language to teach a child, school choice was a decision belonging to the parents alone; it fell within a certain zone of privacy into which the government could not tread.
With the legal groundwork laid in these two cases dealing with parents' childrearing rights, it was a relatively short step from the application of these ideas about privacy to other issues involving marriage. In 1965, in Griswold v. Connecticut, the Supreme Court was asked to consider a Connecticut law that forbade discussion, distribution, and the use of contraceptives. The case was prompted by the arrest of the director of a Planned Parenthood clinic for providing contraceptive literature and counseling.
In a 7-2 vote, the Court struck down the Connecticut law as unconstitutional. Yet, while the majority agreed that the Connecticut law violated a "right to marital privacy," the justices disagreed on the extent and location of that right. Justice William Douglas, who wrote the decision, argued that from the expressed guarantees of the Bill of Rights a number of others could be deduced. Douglas suggested that these other rights were contained within the "penumbras," or shadows, existing along the edges of the Bill of Rights. These penumbras were "formed by emanations from those guarantees that help give them life and substance." In other words, the First, Third, Fourth, Fifth, and Ninth amendments, Douglas argued, protected more than the specific rights contained within each of them. They also established "zones of privacy" that the government was equally bound to protect.18
Rooted as it was in the Bill of Rights, the right to privacy, Douglas argued, was "fundamental" in demanding vigorous protection from the Court. Using unusually passionate language, Douglass argued that it was inconceivable that the government would have some role in the private, marital decisions of childbearing. Even more "repulsive" was the threat, implicit within the Connecticut law, that the government would "search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives."19
Not every justice agreed with the specifics within Douglas's opinion. Several acknowledged that there was a right to marital privacy, but they did not see Douglas's "penumbras" sitting along the edges of the Constitution. Justice Arthur Goldberg said the right was one of those left unspecified and yet protected by the Ninth Amendment. Justice White argued that it was one of the liberties protected by the Fourteenth Amendment. Yet, while their legal reasoning was different, they accepted the existence of a constitutionally protected right to privacy.
In 1967, the Court applied the same reasoning in striking down a Virginia law forbidding interracial marriage. In Loving v. Virginia, the Court held that the choice of a spouse was also a decision protected by the sort of zone of privacy described by Douglass. And in 1972, the Court stretched the Griswold logic still further in holding that single persons possessed the same privacy right earlier extended to married couples under Griswold. In Eisenstadt v. Baird, the Court held that "if the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or begat a child."20