American Civil Liberties Union Briefing Paper Number 15
The Right To Choose: A Fundamental Liberty
The Bill of Rights of the United States Constitution guarantees
individuals the right to personal autonomy, which means that a
person's decisions regarding his or her personal life are none of
the government's business. That right, which is part of the right
to privacy, encompasses decisions about parenthood, including a
woman's right to decide for herself whether to complete or
terminate a pregnancy, as well as the right to use contraception,
freedom from forced sterilization and freedom from employment
discrimination based on childbearing capacity.
As early as 1923, the U.S. Supreme Court ruled that the
Constitution protects personal decisions regarding marriage and the
family from governmental intrusion. In 1965, the Court ruled that
a state cannot prohibit a married couple from practicing
contraception. In 1972, it extended the right to use birth control
to all people, married or single. And in its 1973 ruling in _Roe
v. Wade_, the Court held that the Constitution's protections of
privacy as a fundamental right encompass a woman's decision to have
The _Roe_ decision, which legalized abortion nationwide, led to a
dramatic improvement in the lives and health of women. Before
_Roe_, women experiencing unwanted or crisis pregnancies faced the
perils and indignities of self-induced abortion, back-alley
abortion, or forced childbirth. Today, _Roe_ protects the right of
women to make life choices in keeping with their conscience or
religious beliefs, consistent with American tradition. And by
relieving American women of the burden of unwanted pregnancies,
_Roe_ has permitted them to pursue economic opportunities on a more
equal basis with men.
The movement to newly restrict reproductive choice is, therefore,
not only an attack on personal autonomy but also on the principle
of equality for women, and it is a grave threat to all Americans'
cherished right to privacy, bodily integrity and religious liberty.
Here are the American Civil Liberties Union's answers to questions
frequently asked by the public about reproductive freedom and the
How does the Constitution protect our right to privacy, including
reproductive freedom, if that right isn't explicitly named in the
Even though a right to privacy is not named, the Ninth Amendment
states that the naming of certain rights in the Constitution does
not mean that other, unnamed rights are not "retained by the
people." The Supreme Court has long held that the Bill of Rights
protects certain liberties that, though unenumerated, are
"fundamental" to an individual's ability to function in society.
These include the right to privacy, the right to travel, the right
to vote and the right to marry. The Court has articulated various
constitutional bases for these liberties, including the First,
Fourth, Fifth, Ninth and Fourteenth Amendments. And in recent
years, the Court has viewed the privacy right as an essential part
of liberty, specifically protected by the Fifth and Fourteenth
The Court has also held that the government may not restrict
fundamental rights without a compelling reason, and it has
repeatedly struck down various state restrictions on birth control
and abortion as being unjustified by a compelling reason.
Is reproductive choice protected by constitutional principles other
than the right to privacy?
Although the Supreme Court has not so held, the ACLU believes that
reproductive choice is not only protected by the right to privacy,
but by several other constitutional principles, including the
Fourteenth Amendment's guarantee of "equal protection of the laws"
and the First Amendment's guarantee of freedom of religion.
Since only women can become pregnant, only women are affected by
laws that dictate whether and under what conditions childbearing
should occur. By precluding only women's exercise of personal
decision-making, laws that prohibit or restrict abortion
discriminate on the basis of sex in violation of the Fourteenth
Amendment's Equal Protection Clause.
All of the world's major religions regard abortion as a theological
issue, although their doctrines on the issue differ. Some
religions teach that abortion is a sin; others, that it is a
woman's duty if a pregnancy imperils her life or health. Bans on
abortion force all citizens to conform to particular religious
beliefs. Thus, the ACLU believes that such laws violate the First
Amendment's Free Exercise Clause, which prohibits governmental
encroachment on an individual's right to act according to her own
beliefs or conscience. Abortion bans that establish, as a matter
of law, that a fetus is a person violate the First Amendment's
stricture against "an establishment of religion."
Have restrictions on abortion always existed?
No. Abortion was legal under common law -- except in late
pregnancy -- for hundreds of years, including the period when our
Constitution was written.
Not until the late 1800s did a movement seeking to curtail women's
reproductive choices arise in the United States, spearheaded by two
groups: white Protestant nativists and medical doctors. The
nativists opposed abortion out of fear that permitting limits on
childbearing would cause the nation's white Protestant population
to be "overrun" by immigrant Catholics, who had been entering the
U.S. in great numbers since the 1830s and '40s. Doctors opposed it
partly because they wanted to exclude midwives and traditional
practitioners from performing abortions or any other medical
practice, and partly because abortion in those days raised
legitimate health concerns.
Societal changes also spurred opposition to abortion. The average
size of families was shrinking, and the movement for women's
suffrage and equality that had emerged in the 1840s was growing.
These developments fueled fears of an imminent breakdown in women's
purely domestic roles.
All of these factors prompted the passage of anti-abortion laws.
But only in the late 20th century have anti-choice forces based
their support for such laws on the concept of "protecting the fetus
as a person."
Shouldn't the abortion question be left to state legislatures, or
voted on by the people in referenda?
No. The Bill of Rights guarantees that _fundmental_ rights cannot
be abrogated by the will of the majority. For example, even if the
majority of a state's citizens wanted to ban the practice of
Catholicism, the constitutional right to free exercise of religion
would forbid the legislature from enacting such a ban. Similarly,
the privacy right that encompasses reproductive freedom, including
the choices of abortion and contraception, cannot be overruled by
referenda or legislation.
Moreover, we learned during the years before _Roe v. Wade_ how
women suffered in states where abortion was illegal. Affluent
women were able to obtain safe abortions by traveling to states
where they were legal, while poor, rural and young women -- a
disproportionate number of them women of color -- were left to
dangerous, back-alley abortions or forced childbirth. Such
discriminatory conditions are unacceptable.
Do abortion bans also outlaw birth control?
Sometimes. Criminal abortion laws that define a fertilized egg as
a "person" outlaw birth control methods that sometimes act to
prevent pregnancy after fertilization, such as the intrauterine
device (IUD), Norplant, and the most popular birth control pill.
In addition, because abortion bans are criminal statutes that
provide for long jail terms, when implemented they have a chilling
effect on contraceptive research and other reproductive
technologies, such as in vitro fertilization.
Why are poor women and women of color especially hurt by anti-
In 1972, before _Roe v. Wade_, 64 percent of the women who died
from illegal abortion were women of color. Middle class and white
women could more readily travel to obtain a legal abortion, pay a
private physician to perform it, or convince typically all-white
hospital committees that the procedure was necessary to preserve
their mental health (one of the claims under which some states
allowed abortion before _Roe_). Poor and non-white women would
once again suffer, die or bear unwanted children in
disproportionate numbers if the Supreme Court were to overturn
In addition, it is low-income women and, therefore,
disproportionate numbers of non-white women, who suffer the most
when the government prohibits the use of public funds for abortion
and abortion information, or otherwise blocks women's access to
abortion. Indeed, the restrictive laws that govern public funding
of medical care in effect coerce poor women to "choose" childbirth
Why shouldn't the government be able to force a woman to carry a
pregnancy to term for the sake of a fetus?
Our courts have always held that the government cannot compel an
individual to use his or her body as an instrument for preserving
people who are already born, much less for preserving a fetus in
the womb. For example, the government cannot force a relative of
a child afflicted with cancer to donate bone marrow or an organ to
the child, even if the child is sure to die without the donation.
Obviously, if the state cannot force someone to undergo a bone
marrow or organ transplant for a person already born, it cannot
force a woman to continue a pregnancy that might entail great
health risks for the sake of a fetus. As the Court of Appeals for
the District of Columbia stated in a 1989 decision, "surely a fetus
cannot have rights superior to those of a person who has already
Enforcement of the idea that a fetus has legal rights superseding
those of the woman who carries it would make pregnant women second
class citizens with fewer rights, and more obligations, than
others. Moreover, application of the "fetal rights" concept has
already had devastating effects on women's right to bodily
integrity. For example, cancer patient Angela Carder, forced by
the District of Columbia Superior Court to undergo a caesarean
delivery of her 26-week-old fetus, died prematurely as a result.
Under the banner of "fetal rights," pregnant women have been
prosecuted for failing to follow medical advice, and even for
failing to get to a hospital quickly enough after the onset of
labor. The concept also inspired industrial employers to adopt
"fetal protection" policies, whereby the capacity to become
pregnant and pregnancy itself became the bases for closing off
certain jobs to all women of childbearing age who refused to be
sterilized. Fortunately, the Supreme Court struck down this
discriminatory practice in a 1991 decision.
Shouldn't pregnant women who drink or use other drugs be prosecuted
for "child abuse?"
Absolutely not, for several reasons. Prosecutions of women for
their behavior during pregnancy threaten all women's rights
because, again, they are based on the "fetal rights" concept.
Acceptance of that concept in law could bring about government
spying and restrictions on a wide range of private behavior, in the
name of "fetal protection." Having one's privacy invaded would
become the price of pregnancy.
Prosecutions of pregnant women for allegedly harming their fetuses
through drug use contribute nothing to solving the problem of drug
abuse. Instead, they create a climate of fear that deters pregnant
women from seeking prenatal care, and from informing doctors about
their drug use. The waste of taxpayers' money on these
prosecutions is especially cynical, given the scarcity of prenatal
care services for poor women.
Although 85 percent of the people who use drugs are white, 80
percent of the women criminally prosecuted for drug use during
pregnancy are women of color. At least one study showed that
African American women are ten times more likely than white women
to be reported to civil authorities for allegedly harming a fetus
by using drugs.
What would really help pregnant women, and help them deliver
healthy babies, is access to affordable drug treatment programs.
Pregnant women are often excluded from the few such programs that
Why do laws requiring parental involvement in a minor's abortion
decision infringe upon fundamental rights?
The Constitution protects all of us but especially those who are
powerless to protect themselves. A minor who has good reasons for
not wanting her parents to know she is pregnant is just such a
Laws that require young women to inform their parents before
obtaining an abortion are, at best, unnecessary since most young
women automatically turn to their parents without prodding from the
law. At worst, such laws are tragically misguided. Consider the
plight of the underaged who become pregnant through incest (a 1970s
study showed that, of girls 12 years-old and younger seeking
abortions, 65 percent were victims of incest). Confidentiality in
such cases can be a life or death matter: In 1989, the day before
she was scheduled to obtain an abortion, 13 year-old Spring Adams
was shot to death by her father. Family members claimed he had
been feeling guilty about impregnating his daughter.
Pregnant minors who cannot turn to their parents need extra legal
protection that ensures their access to safe, confidential
abortions, rather than laws that limit such access, since minors
already face greater economic and privacy barriers to medical care
than adult women do. (For more information about parental
notification/consent laws, see ACLU Briefing Paper #7,
"Reproductive Freedom: The Rights of Minors.")
In what ways have the opponents of choice attacked the right to
choose abortion and birth control?
The right to choose has been under attack ever since contraception
and abortion were first legalized. But the attacks have become
more common and more extreme in recent years, in part because our
last two presidents have supported them. They have taken the
> Opponents of choice have tried to limit the ability of federal or
state health care programs to deliver abortion information and
services to low-income women. First, in the late 1970s, Congress
prohibited Medicaid coverage of abortion even though Medicaid fully
funds all other health care, including childbirth. In 1980, the
Supreme Court found this discriminatory policy to be
constitutional. Since then, the federal government and many states
have limited access to abortion and abortion information in a wide
range of public programs. In 1991, the Supreme Court upheld
federal regulations forbidding the staffs of family planning
clinics that receive federal funds under Title X of the Public
Health Service Act from providing their patients with accurate
information about, or referrals for, abortion.
> States have erected such obstacles as mandatory waiting periods,
restrictions on late abortions, parental notification/consent laws,
and laws that force doctors to give anti-abortion lectures, or that
require married women to involve their husbands in their abortion
choice. These laws directly restrict women's right to choose and,
by increasing medical costs and physicians' liability, make access
to abortion more difficult.
> Some states (Louisiana and Utah, for example) have enacted laws
that criminalize nearly all abortions. These laws literally turn
back the clock to the days before _Roe_ when physicians, and
sometimes patients, faced jail for performing and seeking
What can I do to help protect reproductive choice?
Some cases headed for Supreme Court review could well lead to the
total elimination of constitutional protection for the fundamental
right to choose abortion and allow states, once again, to ban
abortion and birth control. If this happens, Congress can pass a
constitutional amendment or enact a federal law, which would
preempt state laws, to protect reproductive choice. You can help
preserve the right to choose by urging your Congressional
representatives to support federal protection of this right for all
women, without exception, through the Freedom of Choice Act and the
Reproductive Health Equity Act, and by letting your state
legislators know that you support reproductive choice. For more
information, contact your local ACLU or the national ACLU
Reproductive Freedom Project.
A C L U
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