The Abortion Cases - Part One

Supreme Court Nominee Elena Kagan

This week the spotlight will be on abortion cases. When the Congress returns the Senate will eventually get to work on hearings for President Obama's second pick to fill a vacancy on the United States Supreme Court, Elena Kagan.

Along the seismic fault line which abortion has become lay two great opposing forces. One is the anti-abortion crowd, whose extreme members bomb clinics and assassinate physicians. The other is the group that think all abortions should be permitted all the time. Both sides stand firm in their conviction, both sides want the law to something other than it is.

Today we get a history lessons about procreative rights with a focus on the law as the United States Supreme Court has interpreted it. We speak about procreative rights because the pertinent lineage of the law precedes the decision in Roe v. Wade.

Our review begins on the flip side a State prohibiting abortion. Once upon a time the folks widely known for producing manure by tightly squeezing a Buffalo nickel got tired of habitual criminals making babies. The issue hit the Supreme Court in the matter of Skinner v. Oklahoma.

Associate Justice William O. Douglas

The majority opinion was written by Associate Justice William O. Douglas. The Court decided to review the Oklahoma statute because "[t]his case touches a sensitive and important area of human rights. Oklahoma deprives certain individuals of a right which is basic to the perpetuation of a race-the right to have offspring. Oklahoma has decreed the enforcement of its law against petitioner, overruling his claim that it violated the Fourteenth Amendment. Because that decision raised grave and substantial constitutional questions, we granted the petition for certiorari."

Under Oklahoma's Criminal Sterilization Act the state to was permitted to sterilize a person who had been convicted three or more times of crimes amounting to felonies involving moral turpitude.

In his opinion for a unanimous Court Douglas said: "[t]he instant legislation runs afoul of the equal protection clause, though we give Oklahoma that large deference which the rule of the foregoing cases requires. We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty. We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly or otherwise invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws. The guaranty of 'equal protection of the laws is a pledge of the protection of equal laws.' Yick Wo v. Hopkins, 1187 U.S. 356, 369. When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as an invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment. Yick Wo v. Hopkins, supra; Gaines v. Canada, 305 U.S. 337. Sterilization of those who have thrice committed grand larceny with immunity for those who are embezzlers is a clear, pointed, unmistakable discrimination. Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks. Oklahoma's line between larceny by fraud and embezzlement is determined, as we have noted, 'with reference to the time when the fraudulent intent to convert the property to the taker's own use' arises. Riley v. State, supra. We have not the slightest basis for inferring that that line has any significance in eugenics nor that the inheritability of criminal traits follows the neat legal distinctions which the law has marked between those two offenses. In terms of fines and imprisonment the crimes of larceny and embezzlement rate the same under the Oklahoma code. Only when it comes to sterilization are the pains and penalties of the law different. The equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn. See Smith v. Wayne Probate Judge, 231 Mich. 409, 420, 421, 204 N.W. 140, 40 A.L.R. 515. In Buck v. Bell, supra, the Virginia statute was upheld though it applied only to feebleminded persons in institutions of the State. But it was pointed out that 'so far as the operations enable those who otherwise must be kept confined to be returned to the world, and thus open the asylum to others, the equality aimed at will be more nearly reached. Here there is no such saving feature. Embezzlers are forever free. Those who steal or take in other ways are not. If such a classification were permitted, the technical common law concept of a 'trespass' (Bishop, Criminal Law, 9th Ed., vol. 1, 566, 567) based on distinctions which are 'very largely dependent upon history for explanation' (Holmes, The Common Law, p. 73) could readily become a rule of human genetics.

Skinner v. Oklahoma was decided in 1942.

Associate Justice William O. Douglas also delivered the opinion of the Court's 7-2 majority in the matter of Griswold v. Connecticut. Connecticut passed a statute which forbade family planning options using contraception. Estelle Griswold was the Executive Director of the Planned Parenthood League of Connecticut. The pertinent question was whether Connecticut's statute violated the privacy of married couples on the issue of contraception.

Estelle Griswold

Justice Douglas said: "We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation." Gee, doesn't that sound a lot like Justice Sotomayor in Hui v. Casteneda, see: the blog post on this site for June 3rd.

For those interested in a primer on the origins of the right to privacy from the Constitutional Law perspective, this decision is a must read.

The ultimate answer was that Connecticut's statute was overly broad, a state may only regulate a Fundamental Right to achieve a legitimate state interest when the statute, or regulation, is narrowly tailored. Douglas, speaking for the Court said: "We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions."

Griswold v. Connecticut was decided in 1965.

Justice Hugo Black

In the case of United States v. Vuitch came on appeal from the United States District Court for the District of Columbia. Milan Vuitch was a physician who was charged with violating the District of Columbia's law prohibiting abortions. The District Court ruled the statute was unconstitutional since the word "health" was overly vague; and that once the abortion was proved the burden shifted from the District to the doctor to prove the health of the mother required the procedure.

Associate Justice Hugo Black delivered the Court's opinion. He disagreed with the District Court. The opinion explained how the word health, in the context of medical procedures, was easily understood considering general usage and modern understanding. The term is broad enough to encompass psychological as well as physical well being. The case was reversed and remanded.

United States v. Vuitch was decided in 1971.

The case of Eisenstadt v, Baird presented the issue of privacy. William Baird gave a lecture at Boston University on population control. After the lecture he gave a young woman a package of "Emko vaginal foam." He was charged with violating Massachusetts' CRIMES AGAINST CHASTITY, first for giving the lecture and secondly for giving the contraceptive foam to a single person.

Justice William J. Brennan

The question asked was whether Baird 's conduct was protected by the right of privacy as enunciated in Griswold v. Connecticut. Justice William J. Brennan, Jr. delivered the opinion for the Court's 6 to 1 majority. Chief Justice Burger filed a dissent. Associate Justices Powell and Rehnquist did not take part in the matter.

Justice Brennan's opinion said that Massachusetts' statute violated the Equal Protection Clause of the Fourteenth Amendment because it stated no rational basis for treating married couples different from single persons with regard to contraceptives.

Massachusetts' State Supreme Judicial Court had held that the statute provided first that only a physician or druggist could dispense contraceptives for the purpose of birth control and only to married persons. Secondly singles persons could not be given contraceptives by anyone. Finally, that married or single persons may obtain contraceptives from anyone to prevent not pregnancy, but the spread of disease.

The disputatious aspect of the statute revolved around the varying purposes of the act. The State Supreme Judicial Court, in one case, essentially ruled that it was a law protecting the health of the citizens of Massachusetts. In an altogether different case the same court ruled that the statute was intended to protect morals through regulating the private sexual lives of single persons. Brennan said: "...the goals of deterring premarital sex and regulating the distribution of potentially harmful articles cannot reasonably be regarded as legislative aims of §§ 21 and 21A. And we hold that the statute, viewed as a prohibition on contraception per se, violates the rights of single persons under the Equal Protection Clause of the Fourteenth Amendment.

Brennan went on to say that: "[t]he Equal Protection Clause of [the Fourteenth] amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike."

Eisenstadt v, Baird was decided in 1972.

Next we take up Roe v. Wade.

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