Reproductive Rights

The Court’s recognition of a constitutional right to privacy in Griswold served as the basis for a line of divisive rulings on reproductive rights. In Roe v. Wade (1973) the Court held that the right to privacy encompasses a woman’s right to choose whether or not to terminate her pregnancy. Besides recognizing the right of women to obtain an abortion, the Court outlined the permissible restrictions a state might impose on that right, and prescribed a trimester framework within which abortions might be regulated. Critics denounced the holding as judicial legislation, and opposition to the decision divides the country down to the present.

Public Funding for Abortion

State and federal legislators responded to Roe by limiting public funding for abortions. In some states, public funding was available only for abortions deemed medically necessary. The Hyde Amendment prohibited the use of federal funds even for therapeutic abortions. The Supreme Court upheld the funding restrictions, reasoning that the constitutional right to an abortion does not include a constitutional right to publicly funded abortions.

While the states need not facilitate abortions, neither may they obstruct the right to obtain them. In Akron v. Akron Center for Reproductive Health (1983), the Court struck down a state measure requiring women seeking an abortion to be hospitalized for the procedure, and for physicians to read them a statement that “the unborn child is a human life from the moment of conception[.]” The Court invalidated the law as an obstacle to abortion without any medical justification.

Attempts to Circumvent Roe

Similarly, the Court struck down a Pennsylvania statute requiring physicians to advise women of alternatives to abortion and to record personal information about women seeking abortions. The 5–4 majority held that the law had the effect of intimidating women seeking abortions and preventing them from making a free choice whether or not to terminate the pregnancy. But three years later, a new majority emerged on the Court more willing to allow the states greater latitude in regulating reproductive rights. By a 5–4 margin in Webster v. Reproductive Health Services (1989), the Court upheld a Missouri statute declaring that fetuses have the same rights as other persons, and banning nontherapeutic abortions in medical facilities receiving public funds.

Roe v. Wade Modified

The Court’s ruling in Webster prompted a flurry of state legislation restricting access to abortions and imposing requirements on the physicians who performed them, setting the stage for a review of Roe. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the court reaffirmed Roe by a narrow 5–4 margin. But the Court also upheld the right of the states to regulate abortions more closely than before. The Court held that regulations touching upon abortion are invalid only if they impose an “undue burden” on the woman’s right to obtain an abortion. It also rejected the trimester framework prescribed by the Roe court, nor did it require government to assume a neutral stance on the abortion decision. That this modified version of Roe survived by a single vote underscores the unsettled state of reproductive rights in America.

Partial-Birth Abortions

In Stenberg v. Carhart (2000), the Court invalidated a Nebraska statute categorically prohibiting partial-birth abortions on the ground that the statute imposed an undue burden on the right of abortion by failing to include an exception to preserve the health as well as the life of the woman. The ruling made no new law, but it underscored the sharp divisions that exist both on the Court and in the nation with respect to abortion rights.

The Right to Die

In Cruzan v. Missouri Department of Health (1990) all nine justices of the Court recognized the right to refuse medical treatment under the common-law doctrine of informed consent. However, the justices were divided on the issue of whether anyone other than the patient could make that decision. By a 5–4 margin, the Court held that only the patient can decide to refuse medical treatment.

Assisted Suicide

While Cruzan recognized the right to refuse medical treatment, it said nothing about whether a terminally ill patient might obtain medical assistance to bring about death. The Court upheld state prohibitions on physician-assisted suicides on the ground that the liberty protected by the Fourteenth Amendment does not include a constitutional right to assisted suicide. That issue, according to Chief Justice Rehnquist, is better left to the political process. Indeed, in Gonzales v. Oregon (2006), the Court upheld a state statute legalizing physician-assisted suicide.

Medical Use of Marijuana

In Gonzales v. Raich (2005) the Supreme Court held that the federal Controlled Substances Act trumps state laws legalizing the use of doctor-prescribed marijuana for medical conditions. Justices Rehnquist, O’Connor, and Thomas wrote spirited dissents, rejecting the majority’s interpretation of the commerce power as outdated and over-broad. The issue will likely be revisited in the near future, as the Obama administration has signaled that it will not challenge certain state laws legalizing medical and/or recreational marijuana.

Gay and Lesbian Rights

In Bowers v. Hardwick (1986), the Court held that the Constitution does not afford homosexuals a right to engage in sodomy. But in 2003, the Court overturned that ruling on the ground that homosexuals’ “right to liberty under the Due Process Clause gives them the full right to engage in this conduct without intervention of the government.” The change in public attitudes toward homosexuality within the space of two decades had much to do with the ruling. While the Court recognized the right of private organizations to exclude people on the basis of their sexual orientation, it struck down state measures penalizing individuals for homosexual conduct.