Webster v. Reproductive Health Services

Charles Fried, arguing for the Bush administration, asked the Court to overturn Roe v. Wade. He insisted that such a ruling would not undermine Americans' other privacy rights and that legislatures and communities were entitled to frame laws based on the assumption that a fetus was a person, whether or not the Constitution specifically addressed that question. He insisted that the Court was not being asked to "unravel the fabric of unenumerated and privacy rights which this Court has woven . . . Rather, we are asking the Court to pull this one thread . . . Abortion is different."

Abortion means the deliberate ending of a potential life, Fried pointed out. To many legislators, it is actual life, he added, and "though we do not believe that the Fourteenth Amendment takes any position . . . it is an utter non sequitur to say that, therefore, the organized community must also take no position . . . and may not use such a position as a premise for regulation."

Kennedy asked Fried whether he thought Griswold v. Connecticut (1964), which legalized the use of contraceptives by married couples and enunciated the right to privacy upon which Roe was largely based, should stand. When Fried agreed that Griswold should stand, Kennedy asked if there was "a fundamental right involved in that case."

In Fried's opinion, Griswold involved a "right which was well established in a whole fabric of quite concrete matters . . . not an abstraction such as the right to control one's body, an abstraction such as the right to be let alone; it involved quite concrete intrusions into the details of marital intimacy."