Stewart, J. -- Concurring
[For concurring opinion of MR. CHIEF JUSTICE BURGER, see post, p. 207.]
[For concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 209.]
[For dissenting opinion of MR. JUSTICE WHITE, see post, p. 221.]
MR. JUSTICE STEWART, concurring.
In 1963, this Court, in Ferguson v. Skrupa, 372 U. S. 726, purported to
sound the death knell for the doctrine of substantive due process, a
doctrine under which many state laws had in the past been held to violate
the Fourteenth Amendment. As Mr. Justice Black's opinion for the Court in
Skrupa put it: "We have returned to the original constitutional proposition
that courts do not substitute their social and economic beliefs for the
judgment of legislative bodies, who are elected to pass Iaws." Id., at
Barely two years later, in Griswold v. Connecticut, 381 U. S. 479, the
Court held a Connecticut birth control law unconstitutional. In view of
what had been so recently said in Skrupa, the Court's opinion in Griswold
understandably did its best to avoid reliance on the Due Process Clause of
the Fourteenth Amendment as the ground for decision. Yet, the Connecticut
law did not violate any provision of the Bill of Rights, nor any other
specific provision of the Constitution.(2) So it was clear [*168] to me
then, and it is equally clear to me now, that the Griswold decision can be
rationally understood only as a holding that the Connecticut statute
substantively invaded the "liberty" that is protected by the Due Process
Clause of the Fourteenth Amendment.(3) As so understood, Griswold stands as
one in a long line of pre-Skrupa cases decided under the doctrine of
substantive due process, and I now accept it as such.
"In a Constitution for a free people, there can be no doubt that the
meaning of `liberty' must be broad indeed." Board of Regents v. Roth, 408
U. S. 564, 572. The Constitution nowhere mentions a specific right of
personal choice in matters of marriage and family life, but the "liberty"
protected by the Due Process Clause of the Fourteenth Amendment covers more
than those freedoms explicitly named in the Bill of Rights. See Schware v.
Board of Bar Examiners, 353 U. S. 232, 238-239; Pierce v. Society of
Sisters, 268 U. S. 510, 534-535; Meyer v. Nebraska, 262 U. S. 390, 399-400.
Cf. Shapiro v. Thompson, 394 U. S. 618, 629- 630; United States v. Guest,
383 U. S. 745, 757-758; Carrington v. Rash, 380 U. S. 89, 96; Aptheker v.
Secretary of State, 378 U. S. 500, 505; Kent v. Dulles, 357 U. S. 116, 127;
Bolling v. Sharpe, 347 U. S. 497, 499-500; Truax v. Raich, 239 U. S. 33,
As Mr. Justice Harlan once wrote: "[T]he full scope of the liberty
guaranteed by the Due Process Clause cannot be found in or limited by the
precise terms of the specific guarantees elsewhere provided in the
Constitution. This `liberty' is not a series of isolated points pricked out
in terms of the taking of property; the freedom of speech, press, and
religion; the right to keep and bear arms; the freedom from unreasonable
searches and seizures; and so on. It is a rational continuum which, broadly
speaking, includes a freedom from all substantial arbitrary impositions and
purposeless restraints . . . and which also recognizes, what a reasonable
and sensitive judgment must, that certain interests require particularly
careful scrutiny of the state needs asserted to justify their abridgment."
Poe v. Ullman, 367 U. S. 497, 543 (opinion dissenting from dismissal of
appeal) (citations omitted). In the words of Mr. Justice Frankfurter,
"Great concepts like . . . `liberty' . . . were purposely left to gather
meaning from experience. For they relate to the whole domain of social and
economic fact, and the statesmen who founded this Nation knew too well that
only a stagnant society remains unchanged." National Mutual Ins. Co. v.
Tidewater Transfer Co., 337 U. S. 582, 646 (dissenting opinion).
Several decisions of this Court make clear that freedom of personal choice
in matters of marriage and family life is one of the liberties protected by
the Due Process Clause of the Fourteenth Amendment. Loving v. Virginia, 388
U. S. 1, 12; Griswold v. Connecticut, supra; Pierce v. Society of Sisters,
supra; Meyer v. Nebraska, supra. See also Prince v. Massachusetts, 321 U.
S. 158, 166; Skinner v. Oklahoma, 316 U. S. 535, 541. As recently as last
Term, in Eisenstadt v. Baird, 405 U. S. 438, 453, we recognized "the right
of the individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a person as
the decision whether to bear or beget a child." That right [*170]
necessarily includes the right of a woman to decide whether or not to
terminate her pregnancy. "Certainly the interests of a woman in giving of
her physical and emotional self during pregnancy and the interests that
will be affected throughout her life by the birth and raising of a child
are of a far greater degree of significance and personal intimacy than the
right to send a child to private school protected in Pierce v. Society of
Sisters, 268 U. S. 510 (1925), or the right to teach a foreign language
protected in Meyer v. Nebraska, 262 U. S. 390 (1923)." Abele v. Markle, 351
F. Supp. 224, 227 (Conn. 1972).
Clearly, therefore, the Court today is correct in holding that the right
asserted by Jane Roe is embraced within the personal liberty protected by
the Due Process Clause of the Fourteenth Amendment.
It is evident that the Texas abortion statute infringes that right
directly. Indeed, it is difficult to imagine a more complete abridgment of
a constitutional freedom than that worked by the inflexible criminal
statute now in force in Texas. The question then becomes whether the state
interests advanced to justify this abridgment can survive the "particularly
careful scrutiny" that the Fourteenth Amendment here requires.
The asserted state interests are protection of the health and safety of the
pregnant woman, and protection of the potential future human life within
her. These are legitimate objectives, amply sufficient to permit a State to
regulate abortions as it does other surgical procedures, and perhaps
sufficient to permit a State to regulate abortions more stringently or even
to prohibit them in the late stages of pregnancy. But such legislation is
not before us, and I think the Court today has thoroughly demonstrated that
these state interests cannot constitutionally support the broad abridgment
of personal [*171] liberty worked by the existing Texas law. Accordingly, I
join the Court's opinion holding that that law is invalid under the Due
Process Clause of the Fourteenth Amendment.
[Case overview (Syllabus)]
1 Only Mr. Justice Harlan failed to join the Court's opinion, 372 U. S., at
733. [Return to text]
2 There is no constitutional right of privacy, as such. "[The Fourth]
Amendment protects individual privacy against certain kinds of governmental
intrusion, but its protections go further, and often have nothing to do
with privacy at all. Other provisions of the Constitution protect personal
privacy from other forms of govermnental invasion. But the protection of a
person's general right to privacy--his right to be let alone by other
people--is, like the protection of his property and of his very life, left
largely to the law of the individual States." Katz v. United States, 389 U.
S. 347, 350-51 (footnotes omitted). [Return to text]
3 This was also clear to Mr. Justice Black, 381 U. S., at 507 (dissenting
opinion); to Mr. Justice Harlan, 381 U. S., at 499 (opinion concurring in
the judgment); and to MR. JUSTICE WHITE, 381 U. S., at 502 (opinion
concurring in the judgment). See also Mr. Justice Harlan's thorough and
thoughtful opinion dissenting from dismissal of the appeal in Poe v.
Ullman, 367 U. S. 497, 522. [Return to text]