The Right To Choose: A Fundamental Liberty

American Civil Liberties Union
Briefing Paper Number 15

The Bill of Rights of the United States Constitution guarantees individuals the right to personal autonomy, which means that a person's decisions regarding his or her personal life are none of the government's business. That right, which is part of the right to privacy, encompasses decisions about parenthood, including a woman's right to decide for herself whether to complete or terminate a pregnancy, as well as the right to use contraception, freedom from forced sterilization and freedom from employment discrimination based on childbearing capacity.

As early as 1923, the U.S. Supreme Court ruled that the Constitution protects personal decisions regarding marriage and the family from governmental intrusion. In 1965, the Court ruled that a state cannot prohibit a married couple from practicing contraception. In 1972, it extended the right to use birth control to all people, married or single. And in its 1973 ruling in _Roe v. Wade_, the Court held that the Constitution's protections of privacy as a fundamental right encompass a woman's decision to have an abortion.

The _Roe_ decision, which legalized abortion nationwide, led to a dramatic improvement in the lives and health of women. Before _Roe_, women experiencing unwanted or crisis pregnancies faced the perils and indignities of self-induced abortion, back-alley abortion, or forced childbirth. Today, _Roe_ protects the right of women to make life choices in keeping with their conscience or religious beliefs, consistent with American tradition. And by relieving American women of the burden of unwanted pregnancies, _Roe_ has permitted them to pursue economic opportunities on a more equal basis with men.

The movement to newly restrict reproductive choice is, therefore, not only an attack on personal autonomy but also on the principle of equality for women, and it is a grave threat to all Americans' cherished right to privacy, bodily integrity and religious liberty.

Here are the American Civil Liberties Union's answers to questions frequently asked by the public about reproductive freedom and the Constitution.

How does the Constitution protect our right to privacy, including reproductive freedom, if that right isn't explicitly named in the Constitution?

Even though a right to privacy is not named, the Ninth Amendment states that the naming of certain rights in the Constitution does not mean that other, unnamed rights are not "retained by the people." The Supreme Court has long held that the Bill of Rights protects certain liberties that, though unenumerated, are "fundamental" to an individual's ability to function in society. These include the right to privacy, the right to travel, the right to vote and the right to marry. The Court has articulated various constitutional bases for these liberties, including the First, Fourth, Fifth, Ninth and Fourteenth Amendments. And in recent years, the Court has viewed the privacy right as an essential part of liberty, specifically protected by the Fifth and Fourteenth Amendments.

The Court has also held that the government may not restrict fundamental rights without a compelling reason, and it has repeatedly struck down various state restrictions on birth control and abortion as being unjustified by a compelling reason.

Is reproductive choice protected by constitutional principles other than the right to privacy?

Although the Supreme Court has not so held, the ACLU believes that reproductive choice is not only protected by the right to privacy, but by several other constitutional principles, including the Fourteenth Amendment's guarantee of "equal protection of the laws" and the First Amendment's guarantee of freedom of religion.

Since only women can become pregnant, only women are affected by laws that dictate whether and under what conditions childbearing should occur. By precluding only women's exercise of personal decision-making, laws that prohibit or restrict abortion discriminate on the basis of sex in violation of the Fourteenth Amendment's Equal Protection Clause.

All of the world's major religions regard abortion as a theological issue, although their doctrines on the issue differ. Some religions teach that abortion is a sin; others, that it is a woman's duty if a pregnancy imperils her life or health. Bans on abortion force all citizens to conform to particular religious beliefs. Thus, the ACLU believes that such laws violate the First Amendment's Free Exercise Clause, which prohibits governmental encroachment on an individual's right to act according to her own beliefs or conscience. Abortion bans that establish, as a matter of law, that a fetus is a person violate the First Amendment's stricture against "an establishment of religion."

Have restrictions on abortion always existed?

No. Abortion was legal under common law -- except in late pregnancy -- for hundreds of years, including the period when our Constitution was written.

Not until the late 1800s did a movement seeking to curtail women's reproductive choices arise in the United States, spearheaded by two groups: white Protestant nativists and medical doctors. The nativists opposed abortion out of fear that permitting limits on childbearing would cause the nation's white Protestant population to be "overrun" by immigrant Catholics, who had been entering the U.S. in great numbers since the 1830s and '40s. Doctors opposed it partly because they wanted to exclude midwives and traditional practitioners from performing abortions or any other medical practice, and partly because abortion in those days raised legitimate health concerns.

Societal changes also spurred opposition to abortion. The average size of families was shrinking, and the movement for women's suffrage and equality that had emerged in the 1840s was growing. These developments fueled fears of an imminent breakdown in women's purely domestic roles.

All of these factors prompted the passage of anti-abortion laws. But only in the late 20th century have anti-choice forces based their support for such laws on the concept of "protecting the fetus as a person."

Shouldn't the abortion question be left to state legislatures, or voted on by the people in referenda?

No. The Bill of Rights guarantees that _fundmental_ rights cannot be abrogated by the will of the majority. For example, even if the majority of a state's citizens wanted to ban the practice of Catholicism, the constitutional right to free exercise of religion would forbid the legislature from enacting such a ban. Similarly, the privacy right that encompasses reproductive freedom, including the choices of abortion and contraception, cannot be overruled by referenda or legislation.

Moreover, we learned during the years before _Roe v. Wade_ how women suffered in states where abortion was illegal. Affluent women were able to obtain safe abortions by traveling to states where they were legal, while poor, rural and young women -- a disproportionate number of them women of color -- were left to dangerous, back-alley abortions or forced childbirth. Such discriminatory conditions are unacceptable.

Do abortion bans also outlaw birth control?

Sometimes. Criminal abortion laws that define a fertilized egg as a "person" outlaw birth control methods that sometimes act to prevent pregnancy after fertilization, such as the intrauterine device (IUD), Norplant, and the most popular birth control pill. In addition, because abortion bans are criminal statutes that provide for long jail terms, when implemented they have a chilling effect on contraceptive research and other reproductive technologies, such as in vitro fertilization.

Why are poor women and women of color especially hurt by anti-choice laws?

In 1972, before _Roe v. Wade_, 64 percent of the women who died from illegal abortion were women of color. Middle class and white women could more readily travel to obtain a legal abortion, pay a private physician to perform it, or convince typically all-white hospital committees that the procedure was necessary to preserve their mental health (one of the claims under which some states allowed abortion before _Roe_). Poor and non-white women would once again suffer, die or bear unwanted children in disproportionate numbers if the Supreme Court were to overturn _Roe_.

In addition, it is low-income women and, therefore, disproportionate numbers of non-white women, who suffer the most when the government prohibits the use of public funds for abortion and abortion information, or otherwise blocks women's access to abortion. Indeed, the restrictive laws that govern public funding of medical care in effect coerce poor women to "choose" childbirth over abortion.

Why shouldn't the government be able to force a woman to carry a pregnancy to term for the sake of a fetus?

Our courts have always held that the government cannot compel an individual to use his or her body as an instrument for preserving people who are already born, much less for preserving a fetus in the womb. For example, the government cannot force a relative of a child afflicted with cancer to donate bone marrow or an organ to the child, even if the child is sure to die without the donation.

Obviously, if the state cannot force someone to undergo a bone marrow or organ transplant for a person already born, it cannot force a woman to continue a pregnancy that might entail great health risks for the sake of a fetus. As the Court of Appeals for the District of Columbia stated in a 1989 decision, "surely a fetus cannot have rights superior to those of a person who has already been born."

Enforcement of the idea that a fetus has legal rights superseding those of the woman who carries it would make pregnant women second class citizens with fewer rights, and more obligations, than others. Moreover, application of the "fetal rights" concept has already had devastating effects on women's right to bodily integrity. For example, cancer patient Angela Carder, forced by the District of Columbia Superior Court to undergo a caesarean delivery of her 26-week-old fetus, died prematurely as a result. Under the banner of "fetal rights," pregnant women have been prosecuted for failing to follow medical advice, and even for failing to get to a hospital quickly enough after the onset of labor. The concept also inspired industrial employers to adopt "fetal protection" policies, whereby the capacity to become pregnant and pregnancy itself became the bases for closing off certain jobs to all women of childbearing age who refused to be sterilized. Fortunately, the Supreme Court struck down this discriminatory practice in a 1991 decision.

Shouldn't pregnant women who drink or use other drugs be prosecuted for "child abuse?"

Absolutely not, for several reasons. Prosecutions of women for their behavior during pregnancy threaten all women's rights because, again, they are based on the "fetal rights" concept. Acceptance of that concept in law could bring about government spying and restrictions on a wide range of private behavior, in the name of "fetal protection." Having one's privacy invaded would become the price of pregnancy.

Prosecutions of pregnant women for allegedly harming their fetuses through drug use contribute nothing to solving the problem of drug abuse. Instead, they create a climate of fear that deters pregnant women from seeking prenatal care, and from informing doctors about their drug use. The waste of taxpayers' money on these prosecutions is especially cynical, given the scarcity of prenatal care services for poor women.

Although 85 percent of the people who use drugs are white, 80 percent of the women criminally prosecuted for drug use during pregnancy are women of color. At least one study showed that African American women are ten times more likely than white women to be reported to civil authorities for allegedly harming a fetus by using drugs.

What would really help pregnant women, and help them deliver healthy babies, is access to affordable drug treatment programs. Pregnant women are often excluded from the few such programs that exist.

Why do laws requiring parental involvement in a minor's abortion decision infringe upon fundamental rights?

The Constitution protects all of us but especially those who are powerless to protect themselves. A minor who has good reasons for not wanting her parents to know she is pregnant is just such a powerless person.

Laws that require young women to inform their parents before obtaining an abortion are, at best, unnecessary since most young women automatically turn to their parents without prodding from the law. At worst, such laws are tragically misguided. Consider the plight of the underaged who become pregnant through incest (a 1970s study showed that, of girls 12 years-old and younger seeking abortions, 65 percent were victims of incest). Confidentiality in such cases can be a life or death matter: In 1989, the day before she was scheduled to obtain an abortion, 13 year-old Spring Adams was shot to death by her father. Family members claimed he had been feeling guilty about impregnating his daughter.

Pregnant minors who cannot turn to their parents need extra legal protection that ensures their access to safe, confidential abortions, rather than laws that limit such access, since minors already face greater economic and privacy barriers to medical care than adult women do. (For more information about parental notification/consent laws, see ACLU Briefing Paper #7, "Reproductive Freedom: The Rights of Minors.")

In what ways have the opponents of choice attacked the right to choose abortion and birth control?

The right to choose has been under attack ever since contraception and abortion were first legalized. But the attacks have become more common and more extreme in recent years, in part because our last two presidents have supported them. They have taken the following forms:

> Opponents of choice have tried to limit the ability of federal or state health care programs to deliver abortion information and services to low-income women. First, in the late 1970s, Congress prohibited Medicaid coverage of abortion even though Medicaid fully funds all other health care, including childbirth. In 1980, the Supreme Court found this discriminatory policy to be constitutional. Since then, the federal government and many states have limited access to abortion and abortion information in a wide range of public programs. In 1991, the Supreme Court upheld federal regulations forbidding the staffs of family planning clinics that receive federal funds under Title X of the Public Health Service Act from providing their patients with accurate information about, or referrals for, abortion.

> States have erected such obstacles as mandatory waiting periods, restrictions on late abortions, parental notification/consent laws, and laws that force doctors to give anti-abortion lectures, or that require married women to involve their husbands in their abortion choice. These laws directly restrict women's right to choose and, by increasing medical costs and physicians' liability, make access to abortion more difficult.

> Some states (Louisiana and Utah, for example) have enacted laws that criminalize nearly all abortions. These laws literally turn back the clock to the days before _Roe_ when physicians, and sometimes patients, faced jail for performing and seeking abortions.

What can I do to help protect reproductive choice?

Some cases headed for Supreme Court review could well lead to the total elimination of constitutional protection for the fundamental right to choose abortion and allow states, once again, to ban abortion and birth control. If this happens, Congress can pass a constitutional amendment or enact a federal law, which would preempt state laws, to protect reproductive choice. You can help preserve the right to choose by urging your Congressional representatives to support federal protection of this right for all women, without exception, through the Freedom of Choice Act and the Reproductive Health Equity Act, and by letting your state legislators know that you support reproductive choice. For more information, contact your local ACLU or the national ACLU Reproductive Freedom Project.

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