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Thornburgh v. American College of Obstetricians and Gynecologists/Concurrence Stevens

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Justice Stevens, concurring.

The scope of the individual interest in liberty that is given protection by the Due Process Clause of the Fourteenth Amendment is a matter about which conscientious judges have long disagreed. Although I believe that that interest is significantly broader than Justice White does,[1] I have always had the highest respect for his views on this subject.[2] In this case, although our ultimate conclusions differ, it may be useful to emphasize some of our areas of agreement in order to ensure that the clarity of certain fundamental propositions not be obscured by his forceful rhetoric.

Let me begin with a reference to Griswold v. Connecticut, 381 U.S. 479 (1965), the case holding that a State may not totally forbid the use of birth control devices. Although the Court's opinion relied on a "right of marital privacy" within the "penumbra" of the Bill of Rights, id., at 481-486, Justice White's concurring opinion went right to the heart of the issue. He wrote:

"It would be unduly repetitious, and belaboring the obvious, to expound on the impact of this statute on the liberty guaranteed by the Fourteenth Amendment against arbitrary or capricious denials or on the nature of this liberty. Suffice it to say that this is not the first time this Court has had occasion to articulate that the liberty entitled to protection under the Fourteenth Amendment includes the right 'to marry, establish a home and bring up children,' Meyer v. Nebraska, 262 U.S. 390, 399, and 'the direct the upbringing and education of children,' Pierce v. Society of Sisters, 268 U.S. 510, 534-535, and that these are among 'the basic civil rights of man.' Skinner v. Oklahoma, 316 U.S. 535, 541. These decisions affirm that there is a 'realm of family life which the state cannot enter' without substantial justification. Prince v. Massachusetts, 321 U.S. 158, 166. Surely the right invoked in this case, to be free of regulation of the intimacies of the marriage relationship, 'come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.' Kovacs v. Cooper, 336 U.S. 77, 95 (opinion of Frankfurter, J.)." Id., at 502-503 (White, J., concurring in the judgment).

He concluded that the statute could not be constitutionally applied to married persons, explaining:

"I find nothing in this record justifying the sweeping scope of this statute, with its telling effect on the freedoms of married persons, and therefore conclude that it deprives such persons of liberty without due process of law." Id., at 507.

That conclusion relied in part on the fact that the statute involved "sensitive areas of liberty"[3] and in part on the absence of any colorable justification for applying the statute to married couples.

In Eisenstadt v. Baird, 405 U.S. 438 (1972), Justice White concluded that a similar Massachusetts statute was invalid as applied to a person whom the record did not identify as either married or unmarried, id., at 464-465, and in Carey v. Population Services International, 431 U.S. 678 (1977), he subscribed to this explanation of the holdings in Griswold and Eisenstadt:

"The fatal fallacy in [the appellants'] argument is that it overlooks the underlying premise of those decisions that the Constitution protects 'the right of the be free from unwarranted governmental intrusion into...the decision whether to bear or beget a child.' [Eisenstadt v. Baird, 405 U.S.] at 453. Griswold did state that by 'forbidding the use of contraceptives rather than regulating their manufacture or sale,' the Connecticut statute there had 'a maximum destructive impact' on privacy rights. 381 U.S., at 485. This intrusion into 'the sacred precincts of marital bedrooms' made that statute particularly 'repulsive.' Id., at 485-486. But subsequent decisions have made clear that the constitutional protection of individual autonomy in matters of childbearing is not dependent on that element. Eisenstadt v. Baird, holding that the protection is not limited to married couples, characterized the protected right as the ' decision whether to bear or beget a child.' 405 U.S., at 453 (emphasis added). Similarly, Roe v. Wade, held that the Constitution protects 'a woman's decision whether or not to terminate her pregnancy.' 410 U.S., at 153 (emphasis added). See also Whalen v. Roe, [ 429 U.S. 589,] 599-600, and n. 26. These decisions put Griswold in proper perspective. Griswold may no longer be read as holding only that a State may not prohibit a married couple's use of contraceptives. Read in light of its progeny, the teaching of Griswold is that the Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the State." 431 U.S., at 687; id., at 702 (White, J., concurring in pertinent part and concurring in result).

Thus, the aspect of liberty at stake in this case is the freedom from unwarranted governmental intrusion into individual decisions in matters of childbearing. As Justice White explained in Griswold, that aspect of liberty comes to this Court with a momentum for respect that is lacking when appeal is made to liberties which derive merely from shifting economic arrangements.

Like the birth control statutes involved in Griswold and Baird, the abortion statutes involved in Roe v. Wade, 410 U.S. 113 (1973), and in the case before us today apply equally to decisions made by married persons and by unmarried persons. Consistently with his views in those cases, Justice White agrees that "a woman's ability to choose an abortion is a species of 'liberty' that is subject to the general protections of the Due Process Clause." Post, at 790. His agreement with that "indisputable" proposition, ibid., is not qualified or limited to decisions made by pregnant women who are married and, indeed, it would be a strange form of liberty if it were so limited.

Up to this point in Justice White's analysis, his opinion is fully consistent with the accepted teachings of the Court and with the major premises of Roe v. Wade. For reasons that are not entirely clear, however, Justice White abruptly announces that the interest in "liberty" that is implicated by a decision not to bear a child that is made a few days after conception is less fundamental than a comparable decision made before conception. Post, at 791-792. There may, of course, be a significant difference in the strength of the countervailing state interest, but I fail to see how a decision on childbearing becomes less important the day after conception than the day before. Indeed, if one decision is more "fundamental" to the individual's freedom than the other, surely it is the postconception decision that is the more serious. Thus, it is difficult for me to understand how Justice White reaches the conclusion that restraints upon this aspect of a woman's liberty do not "call into play anything more than the most minimal judicial scrutiny." Post, at 790.[4]

If Justice White were correct in regarding the post-conception decision of the question whether to bear a child as a relatively unimportant, second-class sort of interest, I might agree with his view that the individual should be required to conform her decision to the will of the majority. But if that decision commands the respect that is traditionally associated with the "sensitive areas of liberty" protected by the Constitution, as Justice White characterized reproductive decisions in Griswold, 381 U.S., at 503, no individual should be compelled to surrender the freedom to make that decision for herself simply because her "value preferences" are not shared by the majority.[5] In a sense, the basic question is whether the "abortion decision" should be made by the individual or by the majority "in the unrestrained imposition of its own, extraconstitutional value preferences." Post, at 794. But surely Justice White is quite wrong in suggesting that the Court is imposing value preferences on anyone else. Ibid.[6]

Justice White is also surely wrong in suggesting that the governmental interest in protecting fetal life is equally compelling during the entire period from the moment of conception until the moment of birth. Post, at 795. Again, I recognize that a powerful theological argument can be made for that position, but I believe our jurisdiction is limited to the evaluation of secular state interests.[7] I should think it obvious that the State's interest in the protection of an embryo--even if that interest is defined as "protecting those who will be citizens," ibid.--increases progressively and dramatically as the organism's capacity to feel pain, to experience pleasure, to survive, and to react to its surroundings increases day by day. The development of a fetus--and pregnancy itself--are not static conditions, and the assertion that the government's interest is static simply ignores this reality.

Nor is it an answer to argue that life itself is not a static condition, and that "there is no nonarbitrary line separating a fetus from a child, or indeed, an adult human being," post, at 792. For, unless the religious view that a fetus is a "person" is adopted--a view Justice White refuses to embrace, ibid.--there is a fundamental and well-recognized difference between a fetus and a human being; indeed, if there is not such a difference, the permissibility of terminating the life of a fetus could scarcely be left to the will of the state legislatures.[8] And if distinctions may be drawn between a fetus and a human being in terms of the state interest in their protection--even though the fetus represents one of "those who will be citizens"--it seems to me quite odd to argue that distinctions may not also be drawn between the state interest in protecting the freshly fertilized egg and the state interest in protecting the 9-month-gestated, fully sentient fetus on the eve of birth. Recognition of this distinction is supported not only by logic, but also by history[9] and by our shared experiences.

Turning to Justice White's comments on stare decisis, he is of course correct in pointing out that the Court "has not hesitated to overrule decisions, or even whole lines of cases, where experience, scholarship, and reflection demonstrated that their fundamental premises were not to be found in the Constitution." Post, at 787. But Justice White has not disavowed the "fundamental premises" on which the decision in Roe v. Wade rests. He has not disavowed the Court's prior approach to the interpretation of the word "liberty" or, more narrowly, the line of cases that culminated in the unequivocal holding, applied to unmarried persons and married persons alike, "that the Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the State." Carey, 431 U.S., at 687; id., at 702 (White, J., concurring in pertinent part).[10]

Nor does the fact that the doctrine of stare decisis is not an absolute bar to the reexamination of past interpretations of the Constitution mean that the values underlying that doctrine may be summarily put to one side. There is a strong public interest in stability, and in the orderly conduct of our affairs, that is served by a consistent course of constitutional adjudication. Acceptance of the fundamental premises that underlie the decision in Roe v. Wade, as well as the application of those premises in that case, places the primary responsibility for decision in matters of childbearing squarely in the private sector of our society.[11] The majority remains free to preach the evils of birth control and abortion and to persuade others to make correct decisions while the individual faced with the reality of a difficult choice having serious and personal consequences of major importance to her own future--perhaps to the salvation of her own immortal soul--remains free to seek and to obtain sympathetic guidance from those who share her own value preferences.

In the final analysis, the holding in Roe v. Wade presumes that it is far better to permit some individuals to make incorrect decisions than to deny all individuals the right to make decisions that have a profound effect upon their destiny. Arguably a very primitive society would have been protected from evil by a rule against eating apples; a majority familiar with Adam's experience might favor such a rule. But the lawmakers who placed a special premium on the protection of individual liberty have recognized that certain values are more important than the will of a transient majority.[12]


^ . Compare, e. g., his opinion for the Court in Meachum v. Fano, 427 U.S. 215 (1976), with my dissent in that case, id., at 229.

^ . See, e. g., Stevens, Judicial Restraint, 22 San Diego L. Rev. 437, 449-450 (1985).

^ . "The nature of the right invaded is pertinent, to be sure, for statutes regulating sensitive areas of liberty do, under the cases of this Court, require 'strict scrutiny,' Skinner v. Oklahoma, 316 U.S. 535, 541, and 'must be viewed in the light of less drastic means for achieving the same basic purpose.' Shelton v. Tucker, 364 U.S. 479, 488. 'Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.' Bates v. Little Rock, 361 U.S. 516, 524. See also McLaughlin v. Florida, 379 U.S. 184. But such statutes, if reasonably necessary for the effectuation of a legitimate and substantial state interest, and not arbitrary or capricious in application, are not invalid under the Due Process Clause. Zemel v. Rusk, 381 U.S. 1." 381 U.S., at 503-504.

^ . At times Justice White's rhetoric conflicts with his own analysis. For instance, his emphasis on the lack of a decision by "the 1787, 1791, 1868, or any time since," post, at 797, stands in sharp contrast to his earlier, forthright rejection of "the simplistic view that constitutional interpretation can possibly be limited to 'the plain meaning' of the Constitution's text or to the subjective intention of the Framers." Post, at 789. Similarly, his statement that an abortion decision should be subject to "the will of the people," post, at 796, does not take us very far in determining which people--the majorities in state legislatures or the individuals confronted with unwanted pregnancies. In view of his agreement that the decision about abortion is "a species of liberty" protected by the Constitution, moreover, post, at 790, and in view of the fact that "liberty" plays a rather prominent role in our Constitution, his suggestion that the Court's evaluation of that interest represents the imposition of "extraconstitutional value preferences," post, at 794, seems to me inexplicable. This characterization of the Court's analysis as "extraconstitutional" also does not reflect Justice White's simultaneous recognition that "[t]he a document announcing fundamental principles in value-laden terms that leave ample scope for the exercise of normative judgment by those charged with interpreting and applying it." Post, at 789. Finally, I fail to see how the fact that "men and women of good will and high commitment to constitutional government," post, at 793, are on both sides of the abortion issue helps to resolve the difficult constitutional question before us; I take it that the disputants in most constitutional controversies in our free society can be similarly characterized.

^ . "What a person is, what he wants, the determination of his life plan, of his concept of the good, are the most intimate expressions of self-determination, and by asserting a person's responsibility for the results of this self-determination we give substance to the concept of liberty." C. Fried, Right and Wrong, 146-147 (1978).

See also Fried, Correspondence, 6 Phil. & Pub. Aff. 288-289 (1977) (the concept of privacy embodies the "moral fact that a person belongs to himself and not others nor to society as a whole").

^ . Justice White's characterization of the governmental interest as "protecting those who will be citizens if their lives are not ended in the womb," post, at 795, reveals that his opinion may be influenced as much by his own value preferences as by his view about the proper allocation of decisionmaking responsibilities between the individual and the State. For if federal judges must allow the State to make the abortion decision, presumably the State is free to decide that a woman may never abort, may sometimes abort, or, as in the People's Republic of China, must always abort if her family is already too large. In contrast, our cases represent a consistent view that the individual is primarily responsible for reproductive decisions, whether the State seeks to prohibit reproduction, Skinner v. Oklahoma, 316 U.S. 535 (1942), or to require it, Roe v. Wade, 410 U.S. 113 (1973).

^ . The responsibility for nurturing the soul of the newly born, as well as the unborn, rests with individual parents, not with the State. No matter how important a sacrament such as baptism may be, a State surely could not punish a mother for refusing to baptize her child.

^ . No Member of this Court has ever suggested that a fetus is a "person" within the meaning of the Fourteenth Amendment.

^ . See Roe v. Wade, supra, at 129-147.

^ . He has, however, suggested that the concept of "liberty" is limited by two basic "definitions" of the values at stake. Post, at 790-791. Like Justice White, I share Justice Harlan's concern about "judges...roaming at large in the constitutional field." Ibid.; see also Stevens, 22 San Diego L. Rev., at 449-450. But I am convinced that Justice White's use of "definitions" is an inadequate substitute for the difficult process of analysis and judgment that the guarantee of liberty requires, a process nowhere better expressed than by Justice Harlan:

"Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.


"Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed. Though we exercise limited and sharply restrained judgment, yet there is no 'mechanical yardstick,' no 'mechanical answer.' The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take 'its place in relation to what went before and further [cut] a channel for what is to come.' Irvine v. California, 347 U.S. 128, 147 (dissenting opinion)." Poe v. Ullman, 367 U.S. 497, 542-544 (1961) (Harlan, J., dissenting).

^ . "These cases do not deal with the individual's interest in protection from unwarranted public attention, comment, or exploitation. They deal, rather, with the individual's right to make certain unusually important decisions that will affect his own, or his family's, destiny. The Court has referred to such decisions as implicating 'basic values,' as being 'fundamental,' and as being dignified by history and tradition. The character of the Court's language in these cases brings to mind the origins of the American heritage of freedom--the abiding interest in individual liberty that makes certain state intrusions on the citizen's right to decide how he will live his own life intolerable. Guided by history, our tradition of respect for the dignity of individual choice in matters of conscience and the restraints implicit in the federal system, federal judges have accepted the responsibility for recognition and protection of these rights in appropriate cases." Fitzgerald v. Porter Memorial Hospital, 523 F.2d 716, 719-720 (CA7 1975) (footnotes omitted), cert. denied, 425 U.S. 916 (1976).

^ . "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." West Virginia Board of Education v. Barnette, 319 U.S. 624, 638 (1943).