410 U.S. 179 (1973), 70-18, Roe v. Wade
|Citation:||410 U.S. 179, 93 S.Ct. 756, 35 L.Ed.2d 147|
|Party Name:||Roe v. Wade|
|Case Date:||January 22, 1973|
|Court:||United States Supreme Court|
For opinions of the Court see 93 S.Ct. 705, 739.
[93 S.Ct. 756] Mr. Justice DOUGLAS, concurring.
While I join the opinion of the Court,1 I add a few words.
The questions presented in the present cases go far beyond the issues of vagueness, which we considered in United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601. They involve the right of privacy, one aspect of which we considered in Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510, when we held that various guarantees in the Bill of Rights create zones of privacy. 2
[93 S.Ct. 757]
The Griswold case involved a law forbidding the use of contraceptives. We held that law as applied to married people unconstitutional:
'We deal with a right of privacy older than the Bill of Rights--older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.' Id., at 486, 85 S.Ct. at 1682.
The District Court in Doe held that Griswold and related cases 'establish a Constitutional right to privacy broad enough to encompass the right of a woman to terminate an unwanted pregnancy in its early stages, by obtaining an abortion.' 319 F.Supp. 1048, 1054.
The Ninth Amendment obviously does not create federally enforceable rights. It merely says, 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.' But a catalogue of these rights includes customary, traditional, and time-honored rights, amenities, privileges, and immunities that come within the sweep of 'the Blessings of Liberty' mentioned in the preamble to the Constitution. Many of them, in my view, come
within the meaning of the term 'liberty' as used in the Fourteenth Amendment.
First is the autonomous control over the development and expression of one's intellect, interests, tastes, and personality.
These are rights protected by the First Amendment and, in my view, they are absolute, permitting of no exceptions. See Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131; Roth v. United States, 354 U.S. 476, 508, 77 S.Ct. 1304, 1321, 1 L.Ed.2d 1498 (dissent); Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 697, 79 S.Ct. 1362, 1369, 3 L.Ed.2d 1512 (concurring); New York Times Co. v. Sullivan, 376 U.S. 254, 293, 84 S.Ct. 710, 733, 11 L.Ed.2d 686 (Black, J., concurring, in which I joined). The Free Exercise Clause of the First Amendment is one facet of this constitutional right. The right to remain silent as respects one's own beliefs, Watkins v. United States, 354 U.S. 178, 196--199, 77 S.Ct. 1173, 1183--1185, 1 L.Ed.2d 1273, is protected by the First and the Fifth. The First Amendment grants the privacy of first-class mail, United States v. Van Leeuwen, 397 U.S. 249, 253, 90 S.Ct. 1029, 1032, 25 L.Ed.2d 282. All of these aspects of the right of privacy are rights 'retained by the people' in the meaning of the Ninth Amendment.
Second is freedom of choice in the basic decisions of one's life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children.
These rights, unlike those protected by the First Amendment, are subject to some control by the police power. Thus, the Fourth Amendment speaks only of 'unreasonable searches and seizures' and of 'probable cause.' These rights are 'fundamental,' and we have held that in order to support legislative action the statute must be narrowly and precisely drawn and that a 'compelling state interest' must be shown in support of the limitation. E.g., Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583; Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600;
Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675; Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965; NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488.
[93 S.Ct. 758] The liberty to marry a person of one's own choosing, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010; the right of procreation, Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655; the liberty to direct the education of one's children, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, and the privacy of the marital relation, Griswold v. Connecticut, supra, are in this category. 4
'It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional make up. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.' Id., at 453.
This right of privacy was called by Mr. Justice Brandeis the right 'to be let alone.' Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (dissenting opinion). That right includes the privilege of an individual to plan his own affairs, for, "outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases." Kent v. Dulles, 357 U.S. 116, 126, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204.
Third is the freedom to care for one's health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf.
These rights, though fundamental, are likewise subject to regulation on a showing of 'compelling state interest.' We stated in Papachristou v. City of Jacksonville, 405 U.S. 156, 164, 92 S.Ct. 839, 844, 31 L.Ed.2d 110, that walking, strolling, and wandering 'are historically part of the amenities of life as we have known (them).' As stated in Jacobson v. Massachusetts, 197 U.S. 11, 29, 25 S.Ct. 358, 362, 49 L.Ed. 643 [93 S.Ct. 759] :
'There is, of course, a sphere within which the individual may assert the supremacy of his own will
and rightfully dispute the authority of any human government,--especially of any free government existing under a written constitution, to interfere with the exercise of that will.'
In Union Pacific R. Co. v. Botsford, 141 U.S. 250, 252, 11 S.Ct. 1000, 1001, 35 L.Ed. 734, the Court said, 'The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow.'
In Terry v. Ohio, 392 U.S. 1, 8--9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889, the Court, in speaking of the Fourth Amendment, stated, 'This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs.'
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