The Supreme Court invented a constitutional ‘right to privacy’ out of thin air — and an epidemic of abortion came not long after.
Justice Thomas’s May 28th concurring opinion in the case of Box v. Planned Parenthood, expressing concern about the eugenic roots and implications of “sex-, race-, and disability-selective abortions,” has inspired strong reactions on both ends of the spectrum. To Daily Wire editor-at-large Josh Hammer, it proves that “Clarence Thomas is the single greatest living American.” To Bess Levin of Vanity Fair, Thomas is “insane” and living in an “alternate universe.”
The opinion’s most heated critics, including Levin, are taking issue particularly with Thomas’s inclusion of contraception, rather than just abortion, in his examination of the intertwined histories of eugenics and the so-called reproductive-rights movement. From the beginning of that section:
The foundations for legalizing abortion in America were laid during the early 20th-century birth-control movement. That movement developed alongside the American eugenics movement. And significantly, Planned Parenthood founder Margaret Sanger recognized the eugenic potential of her cause. She emphasized and embraced the notion that birth control “opens the way to the eugenist.” Sanger, Birth Control and Racial Betterment, Birth Control Rev., Feb. 1919, p. 12 (Racial Betterment). As a means of reducing the “ever increasing, unceasingly spawning class of human beings who never should have been born at all,” Sanger argued that “Birth Control . . . is really the greatest and most truly eugenic method” of “human generation.” M. Sanger, Pivot of Civilization 187, 189 (1922) (Pivot of Civilization). In her view, birth control had been “accepted by the most clear thinking and far seeing of the Eugenists themselves as the most constructive and necessary of the means to racial health.
Thomas is quite clear that he is not equating the moral status of contraception with the evil of abortion. Nonetheless, his detractors do raise an important point: Thomas uses the term “birth control” 36 times throughout his 20-page opinion — though, to be fair, this is only half as many as the 72 appearances of “abortion.” He may not be equating it to abortion (he isn’t), but he is certainly saying something about birth control. Critics are concerned that he might be hinting at a desire to overturn Griswold v. Connecticut, the landmark 1965 Supreme Court ruling that declared laws prohibiting birth control unconstitutional. Pro-choice writer Asha Dahya warned: “When they scream ‘Roe,’ they whisper ‘Griswold.’”
Let’s hope so.
Griswold v. Connecticut is among the most indefensible bits of jurisprudential acrobatics in the entire American legal tradition. And a good portion of the other rulings that could possibly challenge it for that dishonor are those later decisions — Roe v. Wade is the prime example — that cite the supposed “right to privacy” that the Court invented out of thin air in order to justify its ruling in Griswold.
In his dissenting opinion to Griswold, Justice Hugo Black observed, “The Court talks about a constitutional ‘right of privacy’ as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the ‘privacy’ of individuals. But there is not.” To claim that there was, the majority, led by Justice William O. Douglas, employed a highly questionable method of jurisprudence known as “penumbral reasoning.” Named after the half-darkened fringe at the edge of a shadow (the penumbra), this tactic attempts to discover other rights supposedly implied by those few actually enumerated in the Constitution, and from there it claims that these “penumbral” rights are, by extension, constitutionally enshrined as well. Thus, for instance, a right to privacy is supposedly deduced from explicitly protected rights such as due process, free speech, and freedom from self-incrimination. There is no end to what a court might be able to rationalize using this strategy. And (as Justice Black realized) there is no clear and consistent standard by which the rights thus constructed could be applied without corroding the rule of law.
The most outrageous application of such a right is Roe v. Wade, in which the Court somehow determined that the fictitious right to privacy enables a woman to procure an abortion and that any attempt by the government to protect the life of a preborn child must be weighed against that right. The Roe v. Wade decision, though enabled by the penumbral right to privacy articulated in Griswold, is justified mostly on another, no less problematic basis: substantive due process. Erwin Chemerinsky has described substantive due process as “the question of whether the government’s deprivation of a person’s life, liberty, or property is justified by a sufficient purpose.” According to substantive due process, the Court can overturn a law based not only on the propriety of the process by which it was passed (procedural due process), but even on a claim that the law — no matter the textual or procedural validity of its institution — infringes on some right the Court perceives to be fundamental. Claims of substantive due process have been employed in some of the Supreme Court’s most controversial rulings — most notably, Dred Scott. Though explicitly rejected in the opinion of the Court in Griswold (in favor of Douglas’s penumbral-rights invention), it was mentioned as a justification for the ruling in Justice Harlan’s concurrence.
Chemerinsky observed: “Eight years [after Griswold v. Connecticut], the Supreme Court expressly declared that the right to privacy is safeguarded in the Due Process Clauses of the Fourteenth and Ninth Amendments. Roe was unquestionably a substantive due process case.” Regardless of the argument used to defend it — penumbral reasoning or substantive due process, both are merely means to insert ideas into the Constitution that cannot be found there — the right to privacy ties Roe and Griswold inextricably together.
Recent developments in the Supreme Court and a host of challenges from new state laws have led many to wonder whether Roe’s days are numbered. They probably are; let’s hope so. The outcry at Justice Thomas’s opinion brings up the question of whether Griswold will go with it. As a strictly legal matter, it seems nearly inevitable: The shoddy constitutional justification for Roe is basically the entirety of the Griswold ruling. To say that the foundations of Roe are unjustified is to say that Griswold itself is unjustified.
Of course, overturning Griswold would not outlaw contraception nationwide, just as overturning Roe would not automatically outlaw abortion; it would simply return the issue to the states. Most states would probably leave birth control legal for the most part, and this probably isn’t the hill for social conservatives to die on. But there is a road straight through it to a hill as worth dying on as any.
It is no coincidence that Roe v. Wade followed just a few years after Griswold v. Connecticut. Griswold didn’t just lay the legal groundwork for the Roe ruling. It helped establish a cultural climate — admittedly, amid the larger context of the Sexual Revolution — that not only separated sex from its natural purpose but marked that separation as a public guarantee. It is not a very long leap at all from consequence-free sex as a constitutional right, and birth as a burden to be avoided when one so chooses, to the epidemic of abortion in which we now find ourselves. In 1968 — in the interim between the two Supreme Court cases — the inevitability of this development was predicted in Pope Paul VI’s Humanae Vitae. Any attempt to combat the evils of Roe and abortion will require a change not just in law but in culture. And any culture that hopes to successfully and consistently reject Roe will find it immensely difficult to do so if Griswold remains. In 1965, the Supreme Court whispered, “Griswold.” But all along the devil was screaming, “Roe.”