What are the modern debates at the Supreme Court over the right to privacy, contraception, and abortion?

0:03The most important case to start with here, I would say in 1965 is the Griswold v. Connecticut case, a case that strikes down a prohibition on the sale of contraception in the State of Connecticut. The court there holds that the Bill of Rights, the first 10 Amendments of the constitution have in them, what the court describes as penumbras, that there are things that emanate out of various guarantees in the Bill of Rights.

0:29The first Amendment, which guarantees the right to speak and has been understood to encompass the right to associate and to contain freedom of expression. The Third Amendment which protects the home against having soldiers quartered, the government from keeping soldiers in your home against your will, the fourth and fifth and sixth amendments, which all protect criminal defendants from various invasive activity by government, including searches and seizures of the home, that emanating, and finally, the ninth Amendment, which essentially provides that rights that are not specifically granted to various components of the federal government are retained by the people. All of these different provisions of Bill of Rights are understood to have emanations that together create what the court describes as a right to privacy. The court announces that the constitution protects the right of privacy and that that right of privacy encompasses the right of married couples to use

1:25contraception if they wish not to become pregnant or parents at a particular time. It's an important case in that the majority opinion really talks about the right to privacy. There are a couple of important concurring opinions. One of which talks about not privacy so much as liberty, the liberty guaranteed by the due process clause as having substance to it, and that substance encompassing the right to choose with your spouse, in this case, whether to not become pregnant, not become parents.

1:56The court thereafter, extends the right to use contraception announced in Griswold. Which the Griswold opinion is about married couples. But the court in a case called Eisenstadt v. Baird, says, the right to decide whether to bear or beget a child isn't one that just married couples enjoy, but single individuals as well. In both of those cases, the court strikes down laws that really restrict the availability of contraceptives. Those cases lay the foundation for the 1973 opinion in Roe v. Wade, in which the court finds using much of the logic of Griswold and also the logic in Eisenstadt, that the liberty and privacy protected by the constitution encompasses a right of a pregnant woman to decide whether to terminate a pregnancy, subject to limits. The court describes this fairly complex three part scheme in which a woman has essentially complete control over whether

2:57to continue with or to terminate a pregnancy in the beginning of a pregnancy, less control, more space for state regulation, in the middle part of a pregnancy, and in the third trimester of a pregnancy, the state is able to prohibit abortion, so long as it makes exceptions if the life or the health of the woman will be endangered if she's required to carry a pregnancy to term. That's the 1973 opinion in Roe v. Wade.

3:22But 20 years later in Planned Parenthood v. Casey, the Supreme court revisits the opinion in Roe. There have been a number of personnel changes on the court in their intervening years, and there is a real and live question about whether the court will reaffirm or overrule the holding of Roe. In Casey, the court surprises many people by issuing an opinion, and it's a jointly authored opinion by three Republican appointees, Justice Ser Da O'Connor, Justice David Souter, and Justice Anthony Kennedy. Reaffirming the core holding of Roe, largely citing the importance of SR Decisis. The idea that the court abides by its prior cases and does not lightly overrule itself. Pointing to the importance of Sri decisis as a principle and the importance of the court not appearing to buckle to political pressure, that is the pressure to overrule Roe. The court reaffirms the core holding of Roe.

4:16But reformulates the framework of Roe, essentially to provide that states have a lot of latitude to regulate abortion, even to regulate abortion in ways that try to steer women towards continuing pregnancies, not terminating pregnancies. Long as the laws that they pass and enforce do not constitute what the opinion describes as an undue burden. But critically, the core holding of Roe is reaffirmed, and what the court says is states can regulate.

4:49Long as they don't impose undue burdens up until the point of viability, the point at which a fetus could live outside the bomb. But after viability, states can restrict abortion, again, so long as they do make exceptions for life and health. That was the state of the law until June of 2022, when the Supreme court overturned both Roe and Casey and held that. Essentially, the court went astray when it concluded that the constitution protected the right to terminate a pregnancy, and in fact that the constitution contains no such protections, and states essentially have full latitude to regulate and even to prohibit abortion. All they must show is that the law is based on some rational reason. The rational basis review the court explicitly announces, is the review to which state laws regulating abortion should be subject in the wake of Dobbs.