Privacy rights 141and the Ninth Amendment’s catchall statement “The enumeration in the Constitution,
of certain rights, shall not be construed to deny or disparage others retained by the
people.” These all seem like reasonable grounds for implicit privacy rights except the
First Amendment right of association—since the Founders clearly meant political
association, not an association with your spouse in bed.
The Griswold v. Connecticut case was significant for establishing the constitutional
basis for a right to privacy, but the dissenters in the case were concerned about where
this right would lead. Justice Black warned that privacy “is a broad, abstract and
ambiguous concept” that can be shrunk or expanded in subsequent decisions. He said
that Douglas’s argument “require[d] judges to determine what is or is not constitutional
on the basis of their own appraisal of what laws are unwise or unnecessary. The power
to make such decisions is of course that of a legislative body. Surely it has to be admitted
that no provision of the Constitution specifically gives such blanket power to courts to
exercise such a supervisory veto over the wisdom and value of legislative policies and to
hold unconstitutional those laws which they believe to be unwise or dangerous.”^152Abortion Rights
Justice Black’s prediction came true eight years later in Roe v. Wade, the landmark
ruling that struck down laws in 46 states that limited abortion. Twelve of those states
allowed abortions for pregnancies due to rape or incest, to protect the life of the mother,
and in cases of severe fetal handicap. The much-criticized trimester analysis in the
Roe ruling said that in the first trimester, states could not limit abortions; in the second
trimester, states could regulate abortions in the interests of the health of the mother;
and in the third trimester, states could forbid all abortions except those necessary
to protect the health or life of the mother. The justices cited a constitutional basis for
abortion rights in the general right to privacy outlined in Griswold; the concept of
“personal liberty” in the Fourteenth Amendment’s due process clause; and the “rights
reserved to the people” in the Ninth Amendment.^153
Subsequent decisions have upheld Roe but endorsed state restrictions on abortion,
such as requiring parental consent, a waiting period, or counseling sessions aimed at
convincing the woman not to have an abortion (see the What Do the Facts Say? feature
for more on restrictions currently in effect). Most significantly, Roe’s trimester analysis
has been replaced by a focus on the viability of the fetus. When the fetus would be viable
(generally at 22 or 23 weeks), states can ban abortions “except where it is necessary, in
appropriate medical judgment, for the preservation of the life or health of the mother.”^154
Laws passed in 2013 by Arkansas and North Dakota limiting abortions as soon as a fetal
heartbeat can be detected (as early as 6 weeks) were struck down by federal courts, but laws
in 19 states now ban abortions at 20 weeks, in apparent contradiction with Roe v. Wade.
Since Roe, most political action concerning abortion has been in the courts, but that
could change if the Supreme Court overturns the decision. Opponents of abortion
are hoping that Roe will be overturned, which would shift the politics of abortion back
to state legislatures and make it an even more contested political issue. One effort to
challenge Roe was a “personhood amendment” to the Mississippi constitution that
defined life as beginning at conception. But the amendment was soundly defeated
in a statewide vote in 2011.^155 The pace of state restrictions on abortions accelerated
from 2011 to 2013, with more than 200 limitations on abortion services. In 2013, 22
states enacted 70 new restrictions, including a requirement that abortion doctors have
admitting privileges at local hospitals—which would close up to one-third of abortion
clinics in affected states.^156 In 2016, the Supreme Court struck down the latter as an
“undue burden” on the right to an abortion.^157Full_05_APT_64431_ch04_102-147.indd 141 16/11/18 1:31 PM