Justice Hugo Black’s warnings become reality

Whole Woman’s Health v. Hellerstedt was recently decided 5-3 by the U.S. Supreme Court. It struck down the Texas legislature’s regulations requiring abortion clinics to meet the same standards as any other Texas ambulatory surgical center and to have their physicians obtain admitting privileges at nearby hospitals.

The court majority caved in to the abortionists and ignored Texas’ reasonable efforts to protect the safety of women choosing abortion. The court thus continued its unrelenting march away from the actual language of the Constitution, creating confusion and uncertainty in its wake. One former justice, Hugo Black, clearly saw the beginnings of this unfortunate journey a half century ago in Griswold v. Connecticut (1965). The Black dissent was uncanny in its prediction of what would happen to a jurisprudence that concocted a new right—the right to privacy—which had no grounding in the Constitution itself.

Readers may not be familiar with Griswold because Roe v. Wade receives the bulk of attention from pro-life advocates. Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, along with a doctor, C. Lee Buxton, who taught at the Yale Medical School, opened a birth-control clinic. The activity of providing contraceptives technically violated an 1879 Connecticut law that had been challenged before but which had not been enforced over its 80-plus-year life. In defiance, Griswold and Buxton sought to be arrested, and were successful within a few days after opening the clinic. They wanted a case testing the validity of the Connecticut law, and their arrest forced the court to address the constitutionality of the statute. Seven out of nine justices voted to strike it down.

Justice Douglas penned the majority opinion in which he unveiled a new right, the “right of privacy.” Despite the fact that no specific language in the Constitution, nor its amendments, could be found announcing the existence of such a right, Douglas maintained boldly that the new right was produced by “penumbras” formed by the “emanations” from various provisions in the Bill of Rights.

A term most often used in astronomy or optics, “penumbra” describes the glow that is produced around the edges of a candle flame or a heavenly body. Therefore, Douglas maintained that the Third Amendment—prohibiting the quartering of soldiers—contains an emanation or glow of “privacy.” In like manner, the Fourth Amendment’s prohibition of unreasonable searches and seizures “emits,” so to speak, a “privacy” glow, as does the Fifth Amendment’s restriction on self-incrimination. Combine these penumbras and a new right is born.

What Douglas did would have huge implications.

Douglas also misused the Ninth Amendment, seeing it as a blank check for the court to protect un-enumerated rights like the new one he had created.

Justice Black dissented from this far-fetched interpretation. He wrote, “The Court talks about a constitutional ‘right of privacy’ as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the ‘privacy’ of individuals. But there is not.” Black gave a warning as well. “One of the most effective ways of … expanding a constitutionally guaranteed right is to substitute for the crucial word or words … another word or words, more or less flexible…. Privacy is a broad, abstract and ambiguous concept which can … easily be interpreted as a constitutional ban on many things.”

Black’s contention was that there were no clear parameters to this new right. No one was sure what it meant.

Besides exposing the lack of a clear definition of “privacy,” Black’s dissent in Griswold also raised the question of the separation of powers. “No provision of the Constitution specifically gives such blanket power to courts to … hold unconstitutional those laws which they believe unwise or dangerous.” To do so “takes away from Congress and States the power to make laws … and transfers that power to the Court for ultimate determination.”

Just seven years later—in Roe v. Wade—lawyers fighting for legalized abortion convinced the court to amplify the right of privacy. The court’s majority thought they saw privacy as part of the “liberty” protected by the Due Process clause of the 14^th Amendment. In doing so, the court returned to an approach which it had repudiated over three decades earlier. That approach, which the court now revived, allowed judges to discover new, heretofore unknown substantive rights within the Due Process clause. The new right spawned in Roe—the right to a non-therapeutic abortion—was fashioned by Justice Harry Blackmun from flimsy notions of privacy, mixed with an ill-defined concept of liberty. With one decision, the court thereby negated state laws against abortion in 20 plus states. This made Justice Black a prophet. The boundaries of privacy had become unpredictably broad and state legislative power was trampled by a court eager to embrace new rights of its own making.

The court continued moving farther and farther from language of the Constitution in abortion cases like Planned Parenthood v. Casey (1992), defining “liberty” as “the right to define one’s own existence, of meaning, of the universe, and of the mystery of human life.” (This was the majority opinion led by Justice Anthony Kennedy.) Regardless of the lofty language, the court still allowed state legislatures to reasonably regulate abortion to further safety as long as the regulations did not unduly burden the woman’s right to abortion. Even that concession to state authority has now been seriously weakened by the court’s decision in Whole Woman’s Health. The court converted the undue burden test into a balancing test between burdens and benefits which gives practically no guidance to the lower federal courts. Then to make matters worse, it squarely placed the duty to assess the burdens and benefits of particular regulations on the courts—not the legislatures.

Justice Hugo Black correctly predicted this clash between state legislatures and the majorities they represent, and federal judges who are arrogating more and more power to themselves. The cruel irony of Whole Woman’s Health is that in a misguided effort to protect a contrived constitutional right—abortion—the U.S. Supreme Court has made the health of women less, not more, secure.