law, but what? In his characteristically terse style, Douglas appeared to be searching for a rationale. The law was not a violation of due process of law or freedom of speech, he said, though clearly the values underlying those provisions were implicated. He also believed the case was not really about freedom of association either, though that too was involved. Rather, Douglas concluded, it wasn’t a single provision of the Constitution that was violated by this law. Instead, he wrote, in one of the most famous (and infamous) passages in Supreme Court history: “Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.” The Connecticut law interfered with this zone of privacy and thus had to be struck down. (McCain mocked this passage in his campaign speech about the courts.)
Roe
relied on Douglas’s
Griswold
opinion to establish a woman’s right to choose abortion. In
Roe
, Justice Harry Blackmun wrote for the Court, “The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as [1891], the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.” This right of privacy, Blackmun went on, “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
In Blackmun’s opinion, though, the abortion decision was as much about the physician as about the woman. “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,” he wrote. “The abortion decision in all its aspects isinherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.” (Blackmun had once been general counsel to the Mayo Clinic, and he maintained a reverence for doctors throughout his tenure on the Court.)
Liberals have long regarded the right to privacy, and Blackmun’s opinion, as a touchstone of American liberty—a vindication of what Justice Louis Brandeis called “the right to be let alone—the most comprehensive of rights andthe right most valued by civilized men.” Conservatives have always reviled
Roe
as the ultimate power grab by a liberal judiciary. As Robert Bork summed up the conservative critique of Roe, the right to privacy “does not come out of the Constitution but is forced into it.… This isnot legal reasoning but fiat.”
Ginsburg favored abortion rights, but she departed from the liberal orthodoxy in her distaste for the privacy rationale undergirding
Roe v. Wade
. She believed abortion rights were about equality, not privacy. Ginsburg regarded the denial of abortion rights to women as just another form of the broader denial of equal rights. As she said in 1984, the right to abortion places in the balance “a woman’s autonomous charge of her full life’s course—her ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen.” Ginsburg also resented Blackmun’s patronizing emphasis on the rights of doctors, rather than of women. As she put it in an interview later, “It’s the woman in consultation with her doctor. So the view you get isthe tall doctor and the little woman who needs him.”
Against this backdrop Ginsburg—and the Court—weighed the abortion case of 2006.
The specific issue was not a new one. Indeed, the Court had considered a nearly identical case just a few years earlier.
In the modern post
-Roe
era, the anti-abortion movement focused its efforts on limiting what it called “partial birth” abortion. The medical details were complex, but the movement had seized on a procedure, which usually took place late in a pregnancy, that many ordinary people
Roe
relied on Douglas’s
Griswold
opinion to establish a woman’s right to choose abortion. In
Roe
, Justice Harry Blackmun wrote for the Court, “The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as [1891], the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.” This right of privacy, Blackmun went on, “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
In Blackmun’s opinion, though, the abortion decision was as much about the physician as about the woman. “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,” he wrote. “The abortion decision in all its aspects isinherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.” (Blackmun had once been general counsel to the Mayo Clinic, and he maintained a reverence for doctors throughout his tenure on the Court.)
Liberals have long regarded the right to privacy, and Blackmun’s opinion, as a touchstone of American liberty—a vindication of what Justice Louis Brandeis called “the right to be let alone—the most comprehensive of rights andthe right most valued by civilized men.” Conservatives have always reviled
Roe
as the ultimate power grab by a liberal judiciary. As Robert Bork summed up the conservative critique of Roe, the right to privacy “does not come out of the Constitution but is forced into it.… This isnot legal reasoning but fiat.”
Ginsburg favored abortion rights, but she departed from the liberal orthodoxy in her distaste for the privacy rationale undergirding
Roe v. Wade
. She believed abortion rights were about equality, not privacy. Ginsburg regarded the denial of abortion rights to women as just another form of the broader denial of equal rights. As she said in 1984, the right to abortion places in the balance “a woman’s autonomous charge of her full life’s course—her ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen.” Ginsburg also resented Blackmun’s patronizing emphasis on the rights of doctors, rather than of women. As she put it in an interview later, “It’s the woman in consultation with her doctor. So the view you get isthe tall doctor and the little woman who needs him.”
Against this backdrop Ginsburg—and the Court—weighed the abortion case of 2006.
The specific issue was not a new one. Indeed, the Court had considered a nearly identical case just a few years earlier.
In the modern post
-Roe
era, the anti-abortion movement focused its efforts on limiting what it called “partial birth” abortion. The medical details were complex, but the movement had seized on a procedure, which usually took place late in a pregnancy, that many ordinary people
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