Women's Rights

The reproductive rights of women were recognized by the Supreme Court in the 1960s and 1970s, overturning one hundred years of legislation that restricted birth control and banned legal abortions. In the 1980s and 1990s, however, the Court retreated, allowing states to place restrictions on abortion.

In GRISWOLD V. STATE OF CONNECTICUT, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), the Court struck down a Connecticut law that made the sale and possession of birth control devices to married couples a misdemeanor. The law also prohibited anyone from assisting, abetting, or counseling another in the use of birth control devices. In Griswold, the Court announced that the Constitution contained a general, independent right of privacy.

Seven years later, in Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972), the Court struck down a Massachusetts law that banned the distribution of birth control devices. In this case, the Court established that the right of privacy is an individual right, not a right enjoyed only by married couples.

These two cases paved the way for ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), which struck down a Texas law that banned abortions. Writing for the majority, Justice HARRY A. BLACKMUN concluded that the right to privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." More importantly, he stated that the right of privacy is a fundamental right. This meant that the state of Texas had to meet the strict scrutiny test of constitutional review. The Court held that Texas' interest in preventing abortion did not become compelling until that point in pregnancy when the fetus becomes "viable" (capable of "meaningful life outside the mother's womb"). Beyond the point of viability, the Court held that the state may prohibit abortion, except in cases where it is necessary to preserve the life or health of the mother.

The Roe decision provided women with the right to continue or terminate a pregnancy, at least up to the point of viability. However, by the 1980s, a more conservative Supreme Court began upholding state laws that placed restrictions on this right. In WEBSTER V. REPRODUCTIVE HEALTH SERVICES, 492 U.S. 490, 109 S. Ct. 3040, 106 L. Ed. 2d 410 (1989), the Court upheld a Missouri law that forbids state employees from performing or assisting in abortions, or counseling women to have abortions. It also prohibited the use of state facilities for these purposes and required all doctors who would perform abortions to conduct viability tests on fetuses at or beyond 20 weeks' gestation. Though it appeared that the Court might overturn Roe in Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992), it reaffirmed the essential holding of Roe that the constitutional right of privacy is broad enough to include a woman's decision to terminate her pregnancy.