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January 01, 2007

Reproductive Privacy Rights: What Direction Does the Chill Wind Blow?

by Sarah Weddington and Seth Kretzer

As the Section of Individual Rights and Responsibilities (IRR) celebrates its fortieth anniversary, it is appropriate to take a Janus-like look at the right of reproductive privacy, from its legal origins to its uncertain future in light of current trends.

The U.S. Supreme Court decisions of Griswold v. Connecticut, 381 U.S. 479 (1965), and Roe v. Wade, 410 U.S. 113 (1973), recognized the right of a person to decide whether to use contraception and whether to continue or terminate a pregnancy. Passing years have brought intensified assaults on the right of personal decision making protected by Griswold and Roe. In 1989, in another key reproductive rights case, Justice Harry Blackmun, author of the Roe opinion, warned: “For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows.” Webster v. Reproductive Health Services, 492 U.S. 490 (1989).

Today, ever chillier winds are blowing. The three most salient current concerns are (1) the recent changes in the composition of the Court, with two new justices and the possibility of others; (2) increasing state efforts to limit the legality and availability of abortions; and (3) two cases pending in the Court this term involving congressionally established limitations on the availability of abortions.

Changes to the Court

After many years of consistency, the Court changed significantly in 2005. On September 29, following the death of Chief Justice William Rehnquist, who dissented in Roe and consistently voted against its principles and progeny, John G. Roberts Jr. became chief justice. Earlier, on July 1, Justice Sandra Day O’Connor had notified President George W. Bush of her decision to retire. During twenty-four terms on the Court, she had become the fulcrum on a 5–4 Court split on reproductive rights cases, generally on the side of respecting the privacy legacy. She remained on the Court until Samuel A. Alito Jr. became the newest associate justice in January 2006.

Although questions at Roberts’s and Alito’s Senate confirmation hearings frequently had focused on reproductive issues, the hearings did not truly clarify the nominees’ positions on those issues. However, there are indications that the new justices will look skeptically on continuing the principles of Roe.

We may know more soon. On February 21, 2006, shortly after Alito joined the bench, the Court granted certiorari to an Eighth Circuit case in Gonzales v. Carhart, 126 S. Ct. 1314. On June 19, 2006, the Court agreed to hear a second abortion-related case, this one from the Ninth Circuit, Gonzales v. Planned Parenthood Federation of America, Inc., 126 S. Ct. 2901. The Court heard oral arguments in both cases on November 8, 2006, and most likely will issue its decisions by summer 2007.

Attempts to Limit Abortions

Both Carhart and Planned Parenthood have their legal roots in the Court’s decision in Stenberg v. Carhart, 530 U.S. 914 (2000). That case involved a challenge to the very restrictive abortion law of Nebraska, home to Dr. LeRoy Carhart, one of a handful of doctors nationwide with the expertise to perform an abortion after the first tri­mester of pregnancy. The 1999 Nebraska law barred most second and third trimester abortions, and in the eight years preceding the Stenberg decision, at least thirty other states had passed similar laws. At the federal level, Congress enacted similar prohibitions in both 1996 and 1997, but President Bill Clinton vetoed them, preventing them from becoming law. Proponents of such legislation called the laws “partial birth abortion” statutes; some opponents pejoratively called them “partial abortion ban” statutes.

Ruling on Stenberg on June 28, 2000, the Supreme Court found Nebraska’s law unconstitutional because it did not contain an exception to allow abortion to protect the health of a pregnant woman. The Court also held that the statutory language was so broad that it covered the vast majority of late term abortions and thus imposed an undue burden on the right to abortion itself.

However, the 2000 elections brought both a new president to the White House and more abortion opponents to Congress. The Partial-Birth Abortion Ban Act of 2003, 18 U.S.C. § 1531, passed both chambers of Congress by two-to-one margins, and Bush signed it into law. In part, the act exposes “any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus” to up to two years of imprisonment. Id. § 1531(a).

The act was immediately challenged in three federal courts. All courts that have considered it to date have found it unconstitutional, but not always for the same reasons. The two cases argued on November 8, generally known as the Gonzales cases, therefore could be deciding the scope of reproductive privacy rights for the foreseeable future.

In 2004, the U.S. District Court for the Northern District of California struck down this act and permanently enjoined its enforcement on three separate grounds. Planned Parenthood Federation of America v. Ashcroft, 320 F. Supp. 2d 957 (N.D. Cal. 2004). First, the act was unconstitutionally vague because it could be read to ban other safe, previability second trimester procedures. Second, it did not distinguish between previability and postviability, and therefore imposed an undue burden on a woman’s right to choose an abortion. Third, the act’s “life exception” did not meet Stenberg’s “health exception” requirement. On January 31, 2006, the Ninth Circuit affirmed the lower court holding on all three grounds. Planned Parenthood Federation of America, Inc. v. Gonzales, 435 F.3d 1163 (9th Cir. 2006).

Also in 2004, the U.S. District Court for the District of Nebraska held in Carhart v. Ashcroft, 331 F. Supp. 2d 805 (D. Neb. 2004), that “the overwhelming weight of the trial evidence proves that the banned procedure is safe and medically necessary in order to preserve the health of women under certain circumstances. In the absence of an exception for the health of a woman, banning the procedure constitutes a significant health hazard to women.” Id. at 1017. The court added, however, that “[t]he court does not determine whether the Partial-Birth Abortion Ban Act of 2003 is constitutional or unconstitutional when the fetus is indisputably viable.” Id. at 1048. The Eight Circuit affirmed, Carhart v. Gonzales, 413 F.3d 791 (8th Cir. 2005), but on narrower grounds than the Ninth Circuit opinion. “Because the Act does not contain a health exception, it is unconstitutional. We therefore do not reach the district court’s conclusion of the Act imposing an undue burden on a woman’s right to have an abortion.” Id. at 803.

The Gonzales Cases and Beyond

Because the Gonzales cases will be the Roberts Court’s first major opinions on abortion and privacy, they will receive intense focus and interest. The cases also are likely to spotlight the key role of Justice Anthony Kennedy as the “swing” vote on the Roberts Court, as O’Connor was on the Rehnquist Court.

Speculation also continues about the Court’s future makeup. Among those who generally have voted for Roe’s progeny are the Court’s oldest members, including Justice John Paul Stevens, 87, and Justice Ruth Bader Ginsburg, 74. Any departure from the bench or some ­ thing else entirely unexpected would create a vacancy, giving Bush the opportunity to appoint another anti- Roe justice before he leaves office—or perhaps more than one. However, the fact that Senator Patrick Leahy (D-VT) now heads the Senate Judiciary Committee is likely to have a significant impact on confirmation hearings of future Supreme Court nominees.

Opponents of legalized abortion have been planning ways to take advantage of possible Court changes in their favor. In 2006, the South Dakota legislature passed a bill making all abortion procedures illegal unless necessary to save the life of a pregnant woman. Because similar Texas provisions had been declared unconstitutional in Roe, the South Dakota law clearly seemed designed to invite challenges that would give the Court an opportunity to overturn Roe. But opponents of this law successfully sought a referendum on the measure in the November 2006 elections, and South Dakota voters rejected the law, 54 percent to 46 percent, despite the state’s political profile as a religious, conservative, predominantly Republican state.

Although that statute was blocked, other contentious issues remain in the public sphere, including access to contraception and emergency contraception and federal funding for clinics created to counsel women against the abortion option. State laws that would lengthen the waiting period for women seeking abortions, change abortion clinic regulations, expand parental notification requirements, or ban abortions in almost all circumstances are being introduced or enacted at a rapid rate.

What would happen if the Court were to overturn Roe? Initially, each state’s laws would control the legality of abortion in that state, pending possible enactment of any federal legislation on the matter. George Washington University law professor Jeffrey Rosen has predicted that, “in many of the 50 states, and ultimately in Congress, the overturning of Roe would probably ignite one of the most explosive political battles since the civil rights movement, if not the Civil War.” Jeffrey Rosen, And Then, One Day, Roe v. Wade Was Gone . . ., Austin Am.-Statesman, May 28, 2006, at 21.

As the IRR Section celebrates its fortieth anniversary, the right of privacy established during the period of the Section’s founding seems to hang by a thread. It appears at times that Blackmun’s chill wind could become an arctic blast.


Sarah Weddington, adjunct professor at the University of Texas at Austin and member of the IRR Section Council, argued and won Roe v. Wade . Seth Kretzer is an attorney with Fulbright & Jaworski in Houston who previously clerked for Judge Thomas M. Reavley of the U.S. Court of Appeals for the Fifth Circuit and Judge David Folsom of the U.S. District Court for the Eastern District of Texas.