Abortion Rights Background Essay

Federalism Case Study: Abortion Rights 

One of the most fundamental questions of the American system of self-government is which level and which branch of government has the authority and is best suited to act on a particular issue. The question becomes even more pressing when it is a highly controversial issue that divides the public. Abortion is one clear example in which answering these questions has proven difficult. Over the past several decades, the Supreme Court made a number of decisions on abortion and related issues. While it did so in the context of asserting certain fundamental rights, such as the right to privacy and right to abortion, questions of federalism were also at the forefront.

Until the 1960s, states exercised their “police powers” to regulate abortion. Elected state representatives passed laws regarding the legality of abortion. This led to some broadly consistent laws in states across the country but also allowed states to have diverse laws reflecting local values. At the time of the Roe v. Wade (1973) Supreme Court decision, 42 states had laws banning abortion, though most also had an exception for instances in which the life of the mother was in danger, and some states had recently changed their laws to make it easier to get an abortion for fetal abnormalities or pregnancies resulting from rape or incest.

But the federal government had also made some laws relating to reproduction. In 1873, Congress had passed the Comstock Act, which effectively banned dissemination of birth control across state lines and through the mail, and many states, including Connecticut, passed similar laws consistent with the federal law. In the early 1960s, Estelle Griswold, the Executive Director of the Planned Parenthood League of Connecticut, worked with a Yale School of Medicine physician to open a birth control clinic for married couples in New Haven, Connecticut. Griswold was prosecuted under Connecticut law and appealed the case to the Supreme Court.

In Griswold v. Connecticut (1965), the Court decided that the state law was unconstitutional because it violated the marital right to privacy. Since the right to privacy is not specified in the Constitution, the Court argued that the right came from “emanations” flowing from several of the amendments of the Bill of Rights. The Bill of Rights created “zones of privacy” that were fundamental to the individual as determined by the “conscience of our people.”

Justices Potter Stewart and Hugo Black dissented with an argument about federalism. Justice Black wrote that “unrestrained judicial control as to the wisdom of legislative enactments would, I fear…threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have.” Justice Stewart wrote that the Connecticut law might be “an uncommonly silly law,” but they could “find no such general right of privacy in the Bill of Rights, in any other part of the Constitution.”

The Griswold case and the right to privacy set a precedent for the Roe v. Wade (1973) decision. In Roe, the Court ruled in a 7-2 decision that a Texas law banning abortions except to save the life of the mother was unconstitutional. Justice Harry Blackmun stated that the Due Process Clause of the Fourteenth Amendment protected a fundamental right of liberty including the right to terminate a pregnancy. However, the Court recognized that the states had a “compelling interest” in the life of the child at the point of “viability.” The states were permitted to “regulate, and even proscribe, abortion” in the second and especially the third trimester.

Justices Byron White and William Rehnquist dissented and asserted that the Court was   exercising “raw judicial power” by announcing the existence of a new constitutional right. An argument about federalism played a prominent role in their dissent. They stated that “the upshot is that the people and the legislatures of the 50 states are constitutionally disentitled [not allowed] to weigh” the interests of the life of the fetus with the impact on the mother.

The Supreme Court decision in Roe remained controversial for decades as many Americans split into the pro-choice or pro-life sides. In 1992, the Court reaffirmed the right to abortion, though it dispensed with the trimester framework. That decision, Planned Parenthood of Southeastern PA v. Casey (1992), held that states could still pass regulations on the procedure but not place an undue burden on a woman seeking an abortion. The decision read: “The undue burden standard is the appropriate means of reconciling the State’s interest with the woman’s constitutionally protected liberty.”

In 2022, the Court overturned the Roe precedent with its decision in Dobbs v. Jackson Women’s Health Organization. The majority stated that a constitutional right to abortion was not clearly protected by any constitutional clause. The Court majority again appealed to the principle of federalism in writing, “The Court usurped the power to address a question of profound moral and social importance that the Constitution leaves for the people….those who sought to advance the State’s interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe.”

Three dissenting justices argued that women were losing an established constitutional right and would be subject to the power of the states to coerce (or force) them to bring pregnancies to term. They feared that oppressive majorities in state legislatures would impose burdens upon women. “A State can force her to bring a pregnancy to term…An abortion restriction, the majority holds, is permissible whenever rational, the lowest level of scrutiny known to the law. And because, as the Court has often stated, protecting fetal life is rational, States will feel free to enact all manner of restrictions.”

The abortion debate has raged for decades and continues to rage, even after the Dobbs decision. As long as the American people have debated this issue, it has been related to the question of federalism. The voice of the people and the role of representatives in state legislatures, the compelling interests of the states, the exercise of state police powers, and fundamental individual rights have all been central to the story.