Whose Rights, What Privacy?

Contraception and Abortion in the 19th century

• Not regulated by states until 1830s

• Prior to that abortions performed prior to “quickening” (fetal movement as felt by mother)

• Became safer and widespread

White women

• Began to obtain abortions in great numbers, called “race suicide”

• Birthrate fell by 50% 1800-1900

• 1850s: 1 out of 5 pregnancies aborted

• 1870s: 1 out of 3 pregnancies aborted

• Overall 19th century rate: 1 out of 4

• Mortality issue

Declining Birthrate, 1860-1980

19th Century Contraception/Abortion Ads

19th Century Devices

Comstock laws (1873)

• Women’s rights advocates who believed abortion represented “degradation” and would be unnecessary if not for male lust

• Physicians seeking control over female reproduction

• Moral reformers who sought to regulate “obscene” materials

Anthony Comstock

• Head of New York Society for the Supression of Vice

• Postmaster

• Targeted educational and promotional materials, and pornography

• Not judicially challenged until 1938

Abortion criminalized in all states by 1900

Ironically, women’s rights advocates and physicians would be

most vocal constituents of the campaign to decriminalize it in the

1960s

Dietrich v. Northamptom, Mass. (1884)

• Set precedent

• Woman sued for damages

• Lost “before s/he became a person”

• Law recognized only limited rights for fetus and only after live birth

Margaret Sanger and Sons

Sanger’s argument

• “Feminine spirit” hindered by unwanted children

• Decision should be that of “mother and potential mother”

• Women and men have same right to property in their own bodies

“No woman can call herself free who does not own and control her own body. No woman call call herself free until she can

choose consciously whether she will or will not be a mother.”

Margaret Sanger,

The Woman Rebel, 1931

Buck v. Bell (1927)

• Eugenicists gained compulsory sterilization laws in 2/3 of states by 1930s

• U.S. Supreme Court upheld compulsory sterilization laws as constitutional

• Cited as precedent case in the Nuremburg trials—on the side of Nazis

Compulsory sterilization

• 1907-1960 more than 60,000 women sterilized without consent

• The Great Depression influenced gender and age distribution

• “Prevent parenthood in individuals… unable to care for children… reduce new burdens on the public purse”

Liberalization of contraception/abortion laws

• By 1940s “planned parenthood” advocates est. more than 800 clinics through USPHS funds leftover from WWII campaign against VD

• Between 1967 and 1972 14 states decriminalized therapeutic abortion (threats to maternal health)

Bonbrest v. Kotz (1946)

• Eroded Dietrich

• Allowed father to recover for fetal harm by physician during delivery

• Established limited rights for fetus prior to live birth

Sherri Finkbine incident

• 1962

• Host of Romper Room, married mother of 3, wanted another child

• Had used legal trank thalidomide

• Texas statute criminalized abortion

• Flew to Sweden where grossly deformed fetus was aborted

Brennan v. Smith (1960)

• Granted parents damages for fetus harmed in car accident

• Stated “the viability distinction has no relevance to the injustice of denying recovery for harm” from third party

• “Whether viable or not, the child sustains the same harm after birth.”

The U.S. Supreme Court interprets “liberty”

to include fundamental rights not explicitly listed in the Bill of

Rights.These rights are called “substantive due process,” and are rooted in the

14th Amendment

Due Process Clause.

Alderman and Kennedy, p. 55

“Would we allow the police to search the sacred precincts of marital bedrooms for telltale

signs of the use of contraceptives?”

Griswold v. Connecticut (1965)

“The very idea is repulsive to the notions of privacy surrounding

the marriage relationship.”

Griswold v. Connecticut (1965)

“We deal with a right of privacy that is older than the Bill of

Rights.”

Griswold v. Connecticut (1965)

PENUMBRA

• Semi-shadows cast by each part of the Bill of Rights and Amendments

• Creates a “zone of privacy” that guarantees freedom of association and privacy (freedom from gov’t intrusion)

“If the right of privacy means anything, it is the right of the

individual, married or single, to be free from unwarranted intrusion into matters so

fundamentally affecting a person as the decision whether

to bear or beget a child.”

Eisenstadt v. Baird (1972)

Decriminalization of adult sexual and reproductive

activity

• By 1973 14 states and Washington, DC had either legislated against abortion bans

• Or state Supreme Courts had declared them unconstitutional

“The poor are being denied a service which is lawfully

available to others [therapeutic abortion]; the service is of great

importance to their lives and health; the denial is because of

artificial barriers created by the state.”Hastings Law Review, 1971

Writ of Certiorari

• Writ of common law issued by superior to inferior court

• Now used to refer to Supreme Court

• Used as discretionary device so Court can choose the cases it wishes to hear

Roe v. Wade, Doe v. Bolton (1973)

• Jane Roe, unmarried and pregnant, wanted a SAFE clinical abortion

• Unable to do so in Texas, unable to travel

• Supreme Court investigated history of abortion

• Found abortion was regarded less unfavorably when Constitution adopted

Historical arguments, acc to S Court

• Victorian regulation of sexual conduct irrelevant

• Mortality high then, negligible now

• State interest or duty to protect fetal life potentially relevant but only in last trimester

Privacy• 14th Amendment recognizes personal

liberty and restrictions upon state action

• “The detriment that the State would impose on the pregnant woman by denying this choice is altogether apparent.”

• Taxing nature of child care

• Distress of unwanted child

• Continuing stigma of unwed motherhood

Person

• Used in due process clause of 14th A

• Did not include the unborn, nor have “prenatal applications”

• Pregnant woman “not isolated in her privacy”

• Texas could not adopt a theory of life that overrode the interests of the pregnant woman

Trimester framework

• Different “prevailing justifications” in different trimesters

• Fetal viability was moment when state interest entered

• Except in cases where mother’s health or life were compromised

Funding issues immediate

Countermovement emerges