Module 11 Discussion: Birth Control and the Right to Privacy

By primarily invoking the 4th Amendment to the U.S. Constitution, the U.S. Supreme Court made a landmark decision in 1973 in Roe v. Wade, ruling that American women have the right to have an abortion. Roe v. Wade represented the culmination of several federal cases and laws regarding women, sexuality, and reproductive rights, beginning with the Comstock Act of 1873, which made circulating “Obscene Literature and Articles of Immoral Use” illegal. Congress unequivocally targeted the use of contraceptives in this law, which classified information about contraception as “obscene literature.” Further, Congress empowered the U.S. Postal Service to confiscate and report on any information about contraceptives and/or birth control devices sent by U.S. mail. Despite protests from reproductive rights activists—including the vociferous birth control advocate Margaret Sanger—to overturn the Comstock Law, over fifty years passed before Judge Grover Moscowitz of the U.S. District Court, Southern District of New York, overturned the law, ruling in 1938 that the prescription and importing of contraceptives by physicians for the health and well-being of their patients is legal. The U.S. Circuit Court of Appeals for the Second Circuit affirmed Judge Moscowitz’s decision.

The Supreme Court did not begin to fully overturn the Comstock Law until nearly one century after its passage, when the Court ruled in Griswold v. Connecticut (1965) that the U.S. Constitution protects the use of birth control. This landmark Supreme Court decision officially legalized the use of contraceptives by married couples to control reproduction by classifying the use of birth control as a right to privacy issue protected by the U.S. Constitution. (Per the Fourth Amendment, a bedroom is a private place that in theory requires a warrant for intrusion.) Seven years later, SCOTUS recognized the reproductive rights of all Americans in Eisenstadt v. Baird (1972), which legalized the purchase and use of contraceptives by unmarried Americans.

Harry A. Blackmun to Warren E. Burger, 16 Jan. 1973. Manuscript Div., Lib. of Cong.

QUESTIONS:

1. Read the above excerpt from the draft of the opinion for Roe v. Wade (1973) composed by Associate Justice Harry Blackmun. (Chief Justice Warren Burger penned the handwritten comments in the opinion.) Why did the Supreme Court invoke “right to privacy” as the main tenet to legalize abortion in Roe V. Wade?

2. The controversial Roe v. Wade decision has incited bitter debates and even violence over the past fifty years. One major reason why Roe v. Wadewas and remains tendentious is because the decision required SCOTUS to determine when personhood begins, which has major legal, medical, moral, and philosophical ramifications. SCOTUS determined that viability begins at twenty- three weeks in the womb. Why did so many Americans disagree with this?

3. What does Roe v. Wade reveal about the intersection between the history of the women’s rights movement and the core idea that all Americans have the right to life, liberty, and the pursuit of happiness?

To read the entire Roe v. Wade decision, which traces the history of abortion law and provides insight into the Supreme Court’s decision-making process for this landmark case, see Roe v. Wade (1973), (Links to an external site.)provided by Cornell University Law School’s Legal Information Institute.