Teacher Supports for Abortion Case Study

This case study centers on the conflict between laws made by representatives in state legislatures and decisions of the Supreme Court regarding access to abortion. This teacher guide contains the following supports:

• Overview of Primary Sources
  • Griswold v. Connecticut (1965)
  • Roe v. Wade (1973)
  • Dobbs v. Jackson Women’s Health Organization (2022)
• External links for Additional Support
• Discussion Questions
• Planning for and Managing Charged Conversations in the Classroom

Overview of Primary Sources

Griswold v. Connecticut (1965)

• Central question: Does the Constitution protect the right of marital privacy against state restrictions on a couple’s ability to be counseled in the use of birth control?
• Case background: In 1879, Connecticut passed a law effectively banning the use of contraception. Estelle Griswold, the Executive Director of the Planned Parenthood League of Connecticut, and C. Lee Buxton, a gynecologist at the Yale School of Medicine, opened a birth control clinic in New Haven that counseled married couples on the use of birth control. They were arrested for violating the law, and higher state courts affirmed their convictions.
• Ruling: The Supreme Court ruled 7-2 that the Connecticut law that banned the use of contraception was unconstitutional because it violated a fundamental right to privacy guaranteed by the penumbra of the Constitution. The term penumbra is key to interpreting the decision: in the decision, it means the Constitution implies a right to privacy through the First, Third, Fourth, Fifth, Ninth and Fourteenth Amendments. The majority opinion also stated that the case dealt with a “privacy older than the Bill of Rights” because of the importance and sanctity of marriage. This ruling established a precedent for a constitutional right to privacy for the Roe v. Wade (1973) decision.
• Connections to federalism: The Court decided that privacy is a constitutional right, and that the federal government had the power to overrule state laws in more than 40 states that violated it. The dissenting opinion stated that the Connecticut law in question was foolish and unenforceable but did not violate the Constitution. It also argued that the Court should defer certain questions to state legislatures to decide.

Roe v. Wade (1973)

• Central question: Does the Constitution recognize a woman’s right to have an abortion?
• Case background: A Texas law made abortion illegal except by a doctor’s orders to save a woman’s life. Jane Roe (a pseudonym) challenged the Texas law, alleging that it violated her right to privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
• Ruling: The Court ruled 7-2 in favor of Jane Roe, arguing that the Due Process Clause of the Fourteenth Amendment provides a fundamental “right to privacy” that protects a pregnant woman’s choice whether to have an abortion. However, this right is balanced against the government’s interests in protecting women’s health and protecting “the potentiality of human life.”
• Connections to federalism: The Court used the precedent set in Griswold for a right to privacy and applied that right to the legal right to an abortion. In both cases, the Court overturned the laws of more than 40 states to uphold the right to privacy.

Dobbs v. Jackson Women’s Health Organization (2022)

• Central question: Is a Mississippi law banning most abortions after 15 weeks gestational age unconstitutional?
• Case background: A 2018 Mississippi law prohibited all abortions, with few exceptions, after 15 weeks gestational age. Jackson Women’s Health Organization, the only licensed abortion clinic in Mississippi, challenged the law.
• Ruling: The Court ruled 6-3 that the Constitution does not confer a right to abortion. Roe v. Wade was overturned.
• Connections to federalism: The majority opinion stated that Roe was an example of “raw judicial power” that “short-circuited democracy” by allowing the courts to impose a restriction that was best left to state legislatures elected by the people. The dissent argued that the Framers of the Constitution expected the rights contained within the document would evolve to keep pace with society.

External Links for Additional Support

• Case Documents from Oyez. The Oyez Project is an unofficial archive website for the Supreme Court of the United States, which offers helpful overviews of court cases with links to oral arguments and opinions. The term “oyez” (hear ye) dates to medieval courts and is still used by the Marshal of the Supreme Court to announce the opening of the court session.
  • Griswold v. Connecticut (1965)
  • Roe v. Wade (1973)
  • Dobbs v. Jackson Women’s Health Organization (2022)
• ConSource: ConSource provides a breakdown of the U.S. Constitution by Section, Amendment, Clause, and additional topics and themes. ConSource Library resources include annotations that link to Constitutional Index topics. The information is provided by scholars and law students and can be helpful to understand the amendments referenced in the opinions of Griswold, Roe, and Dobbs.
• SCOTUSblog: SCOTUSblog covers every case before the Supreme Court “without bias and according to the highest journalistic and legal ethical standards.”

Discussion Questions

You may use the following questions when discussing the abortion case study with your students. Here are suggestions on how to lead discussions in your classroom: Discussion Protocols

• Should abortion regulations be determined by the state or by the federal government? Why?
• Which branch of government is best suited to deciding constitutional questions about abortion? Why?
• How do these cases reflect tensions about the federalism principle? Consider the conflict between laws made by representatives in state legislatures and decisions of the Supreme Court.
• How do these cases address the following question: which branch or level (federal, state, local) of government is best suited to deciding constitutional questions about abortion?
• How have interest groups responded to recent abortion-related court rulings? What are these interest groups’ major concerns and suggested remedies?
• Is a right to privacy guaranteed by the Constitution? What are the arguments for and against a right to privacy?
• From this excerpt of the majority opinion, to what extent was the Dobbs decision based upon federalism?

“Roe was on a collision course with the Constitution from the day it was decided…. Rather, wielding nothing but “raw judicial power,” Roe, 410 U. S., at 222 (White, J., dissenting), the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people. Casey described itself as calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—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.”

• How does the debate over abortion relate to the broader question of the balance between national and local decision-making and between the judiciary and legislature over various policies?
• What civic virtues are needed to debate the constitutionality of abortion? Are these virtues present in our society today? Explain.

Planning for and Managing Charged Conversations in the Classroom

Teachers have the opportunity to engage students in topics they are often eager to explore. It is far better to have students discuss heated topics with the teacher available as a guide and facilitator than without that support. Beyond exploring the content of this activity, using discussion will help teach students how to voice their opinions and respect diverse viewpoints while remaining civil to one another. The following suggestions will help prepare you and your students to engage in civil discourse surrounding federalism and abortion.

• Discussing contentious topics in the classroom begins with a positive classroom climate. Building this climate begins on the first day of the class and is ongoing. Be clear with students that the classroom is a place to learn, explore diverse viewpoints, and engage in respectful conversation. As a teacher, model this every day.
• Civil discourse takes practice. Incorporate discussion strategies throughout the course, and not only for contentious topics.
• Ensure students are comfortable with the rules of discussion before engaging in these topics. Set discussion norms, such as starting each statement with “I respect your idea, but my view is different because…” Have students create these norms with you. Post norms in the room so they are always visible.
• Practice your discussion strategy with low-stakes questions so that students are familiar with the structure of the conversation. This works especially well with Socratic seminars and Structured Academic Controversies. Sample practice questions could include:

Seminar Question	Structured Academic Controversy Statement
Should extra credit be allowed?	Extra credit should be allowed.
Should homework be assigned?	Homework should be required.
Should school uniforms be mandatory?	School uniforms should be mandatory.
Should college athletes be paid?	College athletes should be paid.
Are cats better than dogs?	Cats are better than dogs.

 

• Be transparent with students that they will be discussing contentious content. Ask them to talk about why it is important to have these conversations. If applicable, post a note on your classroom site so students and parents are aware that the conversation is happening. In addition, inform your administrator.
• Give students time to understand and process the realities of the topic. Students may be familiar with abortion issues through family or friends—it is a sensitive topic and should be treated as such. Be sure to allow individual reflection, not only on the content but in the process of discussing a topic that can bring up heated opinions.
• Encourage or require students to refer to the primary sources rather than their own opinions.
  • Reinforce to students that they likely have personal opinions about abortion.  However, the focus of this discussion is whether the national government or the state governments should hold decision-making authority over access to abortion.  Using primary sources, such as U.S. Supreme Court opinions and the Constitution, including amendments, to support a focus on abortion rights and regulation.
• Offering “brain breaks,” which may take the form of scheduled breaks throughout the discussion or allowing students to take a break when requested, may keep the discussion focused on the topic.
• Step in and facilitate when needed. End the conversation if needed but be transparent about why you are doing so. Ask students to write an individual reflection about why the conversation did not work and what will be needed the next time they participate in a conversation to ensure that it is more productive.
• Prepare scripts you can use with a student who becomes upset or a student who is preventing the conversation from remaining civil. Remain calm but be direct.
• If students are unwilling to participate in the discussion, offer them an observer role. Have them take notes on the discussion, noting what is effective and what is not.
• Close the topic on a positive note about the future, the impact that students can have, and why they need to be versed in the arguments surrounding this topic.
• For additional support on having difficult conversations with students, consider enrolling in BRI’s Advanced Socratic Practice Badge.