Sarah Benowich
Information Privacy Law
Professor Ira Rubinstein
February 24, 2017
Norma McCorvey, the anonymous plaintiff in the landmark case Roe v. Wade, died on February 18, 2017, bringing renewed attention to the case that established that the constitutional right to privacy extends to a woman’s right to an abortion, and continued a long line of jurisprudence shaping a woman’s constitutional right to privacy and abortion.
Although by the end of her life she actively opposed abortion, McCorvey will always be connected with the monumental decision of Roe v. Wade, 410 U.S. 113 (1973). Before becoming the plaintiff in Roe, then 22-year-old McCorvey had already suffered through sexual abuse, homelessness, and bouts of suicidal depression. Her case arose when she sought to terminate her third pregnancy by abortion, which in Texas was restricted only to instances in which abortion was necessary to save the life of the mother.
Ultimately, a 7-2 majority of the Court held that the constitutional right to privacy inherent in the 14th Amendment to the United States Constitution guarantees a woman’s right to an abortion, particularly within the first trimester of the pregnancy. See also Griswold v. Connecticut, 381 U.S. 479 (1965). While Roe established this right for women, it was also very focused on doctors’ own autonomy and privacy rights under the fundamental rights approach that had been developing. See Skinner v. Oklahoma, 316 U.S. 535 (1942). The case also defined varying levels of state interest for regulating abortions based for the second and third trimesters.
This test was later changed in Planned Parenthood v. Casey, where a plurality of the Court upheld the central tenets of Roe, but held that the appropriate standard was whether a particular statute or regulation imposes an undue burden on a woman seeking an abortion of a nonviable fetus. 505 U.S. 833. In Casey, the only provision that the Court struck as unconstitutional was one requiring women seeking abortions to inform their husbands, focusing on the possibility for abuse and emphasizing the social utility in promoting and protecting inter-spousal communications. Justice Scalia’s dissent in Casey is of renewed relevance as Judge Neil Gorsuch of the 10th Circuit undergoes confirmation hearings to be a Supreme Court justice and lawmakers seek insight into his views on privacy and abortion. Gorsuch, many argue, is an ideological peer of Justice Scalia, who, in Casey, wrote that there is no constitutional right to abortion because it is not in the Constitution and states have a long history of restricting access to abortion.
This constitutional right to privacy was limited in 2003 with the passage of the Partial-Birth Abortion Act, which Gonzales, a late-term abortion provider who had been the target of arson and other violence, challenged in Gonzales v. Carhart, 550 U.S. 124 (2007). Writing for a 5-4 majority, Justice Kennedy upheld the provision – a significant narrowing of Roe – finding that because the law only restricted one type of popular abortion technique, it did not impose an undue burden.
Most recently, however, the Court rejected Texas HB2 as imposing an undue burden on women in Whole Women’s Health v. Hellerstedt, 136 S.Ct. 2292 (2016). In Whole Women’s Health, clinicians, on behalf of themselves and their patients, challenged HB2 alleging that the two main requirements – that clinics providing abortions have admitting privileges at hospitals within 30 miles of the clinic and maintain the standards of an ambulatory surgical center – imposed an undue burden on women seeking abortions while proponents of the bill argued that HB2 attempted to protect women’s health. The Court, finding that these requirements were medically unnecessary and would have dramatically reduced the number of clinics available, found that HB2 imposed an undue burden on women seeking to exercise their right to abortion as protected by the constitutional right to privacy.
In the absence of federal guidelines or laws, there is great variation among the states with respect to abortion and women’s privacy laws. A recent challenge against an Alaska law effectively banning outpatient health centers from providing second-trimester abortions builds on the jurisprudence of a woman’s right to privacy protecting her ability to seek and obtain an abortion free from undue burdens. Of course, the privacy implications of a woman’s choice to seek or obtain an abortion involve some of the most intimate and sensitive areas in life: medical decisions, sexual activity, religious beliefs and ideological leanings. With the recent death of Norma McCorvey and the impending confirmation hearings for Judge Gorsuch, the discussion of a woman’s right to privacy and abortion remain ever-relevant.
Sources:
https://www.nytimes.com/2017/02/18/obituaries/norma-mccorvey-dead-roe-v-wade.html
https://www.aclu.org/legal-document/ak-complaint-declaratory-or-injunctive-relief