Abortion and Reproductive Rights: Roe V. Wade & The Supreme Court

Since its founding in 1920, the ACLU has recognized that personal privacy and reproductive rights are among our most important constitutional liberties. In its earliest years, the ACLU defended activists like Margaret Sanger and Mary Ware Dennett when officials tried to prevent them from speaking and publishing about human sexuality, reproduction, and contraception. In the succeeding decades, we were pioneering legal advocates for the right to contraception, the right to abortion, and the right to bear a child.

When we go to court to defend these principles, we litigate in association with our affiliates around the nation and often with other allies as well. In 1974, the ACLU created its Reproductive Freedom Project to defend and expand the right to choose. As the following list indicates, we have been involved, in one way or another, with virtually all of the major Supreme Court cases dealing with reproductive freedom.

1965

Griswold v. Connecticut
381 U.S. 479
The ACLU filed a friend-of-the court brief in this landmark case in which the Supreme Court struck down a state prohibition against the prescription, sale, or use of contraceptives, even for married couples. In Griswold v. Connecticut, the Court held that the Constitution guarantees a “right to privacy” when individuals make decisions about intimate, personal matters such as childbearing.

1971

United States v. Vuitch
402 US 62
The ACLU’s general counsel, Norman Dorsen, argued this case — the first about abortion to reach the Supreme Court. In United States v. Vuitch, a doctor challenged the constitutionality of a District of Columbia law permitting abortion only to preserve a woman’s life or health. The Court rejected the claim that the statute was unconstitutionally vague, concluding that “health” should be understood to include considerations of psychological as well as physical well-being. The Court also held that the burden of proof should be on the prosecutor who brought charges, not on the doctor.

1972

Eisenstadt v. Baird
405 US 438
The ACLU filed a friend-of-the-court brief in Eisenstadt v. Baird, in which the Supreme Court struck down a Massachusetts law limiting the distribution of contraceptives to married couples whose physicians had prescribed them. This decision established the right of unmarried individuals to obtain contraceptives.

1973

Roe v. Wade
410 US 113
The ACLU’s general counsel, Norman Dorsen, was a member of the team of lawyers representing the plaintiffs in the landmark abortion rights case, Roe v. Wade. This case challenged a Texas law prohibiting all but lifesaving abortions. The Supreme Court invalidated the law on the ground that the constitutional right to privacy encompasses a woman’s decision whether or not to terminate her pregnancy. Characterizing this right as “fundamental” to a woman’s “life and future,” the Court held that the state could not interfere with the abortion decision unless it had a compelling reason for regulation. A compelling interest in protecting the potential life of the fetus could be asserted only once it became “viable” (usually at the beginning of the last trimester of pregnancy), and even then a woman had to have access to an abortion if it were necessary to preserve her life or health.

Doe v. Bolton
410 US 179
The ACLU argued Roe’s companion case, Doe v. Bolton, in which the Supreme Court overturned a Georgia law regulating abortion. The law prohibited abortions except when necessary to preserve a woman’s life or health or in cases of fetal abnormality or rape. Among other conditions, the law also required that all abortions be performed in accredited hospitals and that a hospital committee and two doctors in addition to the woman’s own doctor give their approval. The Court held the Georgia law unconstitutional because it imposed too many restrictions and interfered with a woman’s right to decide, in consultation with her physician, to terminate her pregnancy.

1975

Bigelow v. Virginia
421 US 809
In Bigelow v. Virginia, an ACLU case, the Supreme Court ruled that states could not ban advertising by abortion clinics. Such bans violate the First Amendment’s guarantees of freedom of speech and freedom of the press.

1979

Bellotti v. Baird
443 US 622
The ACLU represented plaintiffs challenging a Massachusetts statute requiring women under 18 to obtain parental or judicial consent prior to having an abortion. The Court found the statute unconstitutional because, as it was interpreted by the state’s highest court, it gave either a parent or a judge absolute veto power over a minor’s abortion decision, no matter how mature she was and notwithstanding that an abortion might be in her best interests. Bellotti v. Baird established that all minors must have the opportunity to approach a court for authorization to have an abortion, without first seeking the consent of their parents, and that these alternative proceedings must be confidential and expeditious.

1980

Harris v. McRae
448 US 297
In Harris v. McRae, the Supreme Court rejected a challenge to the Hyde Amendment, which banned the use of federal Medicaid funds for abortion except when the life of the woman would be endangered by carrying the pregnancy to term. The ACLU was co-counsel in this case and played a pivotal role in coordinating challenges to similar state funding bans. Although the lawsuit challenging the federal ban was unsuccessful, the ACLU and its allies did succeed in the ensuing years in overturning many state funding bans.

1983

City of Akron v. Akron Center for Reproductive Health
462 US 416
In City of Akron v. Akron Center for Reproductive Health, the ACLU scored an important victory when the Supreme Court struck down all ofthe challenged provisions of an Akron, Ohio, ordinance restricting abortion. Among other holdings, the Court ruled that the city could not: require minors under 15 to obtain parental or judicial consent for an abortion; require physicians to give women information designed to dissuade them from having abortions; impose a 24-hour waiting period after the signing of the consent form; or require that all second-trimester abortions be performed in a hospital.

Bolger v. Youngs Drug Products Corporation
463 US 60
The ACLU filed a friend-of-the-court brief in this challenge to a federal law that made it a crime to send unsolicited advertisements for contraceptives through the mail. The Supreme Court held the law to be unconstitutional because it violated the First Amendment’s protection of “commercial speech” and impeded the transmission of information relevant to the “important social issues” of family planning and the prevention of venereal disease.

1986

Thornburgh v. American College of Obstetricians and Gynecologists
476 US 747
The ACLU participated in this case, in which the Supreme Court struck down, among other abortion restrictions, a provision of a Pennsylvania statute requiring doctors to use abortion techniques that maximized the chance of fetal survival, even when such techniques increased the medical risks to the pregnant woman’s life or health.

1988

Bowen v. Kendrick
487 US 589
The ACLU represented plaintiffs who challenged the Adolescent Family Life Act, which authorized the use of federal funds to teach the value of “chastity” in the context of social and educational services for adolescents. Many of the grantees were religious organizations. The Court rejected the claim that the Act, on its face, violated the First Amendment’s prohibition of the establishment of religion. It sent the case back to a lower court to determine whether the Act was unconstitutional as administered — whether actual grants made under the Act were used impermissibly to promote religious views or to engage in religious practices.

1989

Webster v. Reproductive Health Services
492 US 490
The ACLU participated both in representing the plaintiffs and in coordinating the production of more than 30 friend-of-the-court briefs in Webster v. Reproductive Health Services. The case was a challenge to a Missouri law that forbade the use of public facilities for all abortions except those necessary to save a woman’s life, required physicians to perform tests to determine the viability of fetuses after 20 weeks of gestation, and imposed other restrictions on abortion. The Supreme Court upheld these anti-choice provisions, opening the door to greater state regulation of abortion. The Court did not, however, accept the invitation of the United States Solicitor General and others to use the case as a vehicle for overruling Roe v. Wade.

1990

Hodgson v. Minnesota
497 US 417
This case was a challenge to a state law that required a minor to notify both biological parents before having an abortion. It made no exception for parents who were divorced, who had not married, or who were unknown to their daughters. In Hodgson v. Minnesota, the ACLU secured for teenagers the option of going to court to obtain authorization for an abortion, when they could not or would not comply with a parental notification law.

1991

Rust v. Sullivan
500 US 173
The ACLU represented Dr. Irving Rust and other family planning providers who challenged the Reagan Administration’s “gag rule” barring abortion counseling and referral by family planning programs funded under Title X of the federal Public Health Service Act. Under the new rule, clinic staff could no longer discuss all of the options available to women facing unintended pregnancies, but could only refer them for prenatal care. Even though the rule reversed 18 years of policies that had allowed non-directive, comprehensive options counseling, the Court upheld it. (President Clinton rescinded the “gag rule” by executive order shortly after his inauguration in 1993.)

1992

Planned Parenthood of Southeastern Pennsylvania v. Casey
505 US 833
This case was a challenge to a set of onerous restrictions on abortion enacted in Pennsylvania. As in 1989, the ACLU fought to prevent the Supreme Court from overruling the core holdings of Roe v. Wade. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court preserved constitutional protection for the right to choose. But it adopted a new and weaker test for evaluating restrictive abortion laws. Under the “undue burden test,” state regulations can survive constitutional review so long as they do not place a “substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

1997

Schenck v. Pro-Choice Network of Western New York
519 U.S. 357
In this case, the ACLU filed a friend-of-the-court brief defending the constitutionality of two provisions of an injunction obtained by abortion clinics in western New York as a remedy against blockades and other disruptive forms of protest. The Supreme Court upheld a fixed 15-foot buffer zone around clinic doorways, driveways, and parking lot entrances. It struck down a floating 15-foot buffer zone around people or vehicles entering or leaving a clinic.

2000

Stenberg v. Carhart (Carhart I)
530 U.S. 914
In this case, the ACLU filed a friend-of-the-court brief calling on the Court to invalidate Nebraska’s so-called “partial-birth abortion” ban. Sending a strong message regarding the paramount importance of women’s health, the Court struck Nebraska’s law on two independent grounds: the ban’s failure to include a health exception threatened women’s health, and the ban’s language encompassed the most common method of second-trimester abortion, placing a substantial obstacle in the path of women seeking abortions and thereby imposing an “undue burden.”

2001

Ferguson v. City of Charleston
532 U.S. 67
In this case, the ACLU filed a friend-of-the-court brief urging the Court to void a South Carolina public hospital policy mandating drug testing of pregnant women. In a 6-3 decision, the Court held that the Fourth Amendment does not permit the state, acting without either a warrant or individualized suspicion, to drug test pregnant women who seek prenatal care in a public hospital. Furthermore, the Court insisted on the importance of confidentiality in the medical context. dissent, Justice Ruth Bader Ginsburg attacked the majority for placing women’s health at risk and for undermining women’s struggle for equality. She wrote, “[women’s] ability to realize their full potential . . . is intimately connected to ‘their ability to control their reproductive lives.'”

2006

Ayotte v. Planned Parenthood of Northern New England
546 U.S. 320
The ACLU argued this case before the Supreme Court on behalf of the New Hampshire clinics and physician who brought this legal challenge. In a unanimous ruling, the Court reiterated its long-standing principle that abortion restrictions must include protections for women’s health. The case began as a challenge to a New Hampshire law that required doctors to delay a teenager’s abortion until 48 hours after a parent was notified, but lacked a medical emergency exception to protect a pregnant teenager’s health. The lower courts struck down the law because of this omission. The Supreme Court vacated and remanded the case, instructing the lower court to consider whether the New Hampshire legislature would have wanted this law with a medical emergency exception. If not, the Court said the law should be struck down in its entirety. No matter what, the Court said the law must be blocked in those cases where teens face medical emergencies.

2007

Gonzales v. Carhart and Gonzales v. Planned Parenthood Federation of America, Inc. (Carhart II)
127 S. Ct. 1610
The ACLU filed friend-of-the-court briefs in both cases urging the Court to strike down the first-ever federal ban on abortion methods. Notably, the ban fails to include an exception to protect women’s health. (Three legal challenges were brought against the ban, called the “Partial-Birth Abortion Ban Act of 2003.” The ACLU’s challenge, National Abortion Federation v. Gonzales, remained on hold in the U.S. Court of Appeals for the Second Circuit while the U.S. Supreme Court considered the other two cases.) In a 5-4 decision, the Court upheld the federal ban, undermining a core principle of Roe v. Wade: that women’s health must remain paramount. In so doing, the Court essentially overturned its decision in Stenberg v. Carhart (Carhart I), issued only seven years earlier. Writing for the majority, Justice Kennedy evoked antiquated notions of women’s place in society and called in to question their decision-making ability. Furthermore, Kennedy held that in the face of “medical uncertainty” lawmakers could overrule a doctor’s medical judgment and that the “State’s interest in promoting respect for human life at all stages in the pregnancy” could outweigh a woman’s interest in protecting her health. In an impassioned