U.S. Supreme Court Case Summaries: Griswold and Leading Abortion Cases

  1. Griswold v. Connecticut
  2. Roe v. Wade
  3. Bellotti v. Baird II
  4. Harris v. McRae
  5. Planned Parenthood of Southeastern Pennsylvania v. Casey
  6. Stenberg v. Carhart
  7. Ayotte v. Planned Parenthood of Northern New England
  8. Gonzales v. Carhart

Griswold v. Connecticut, 381 U.S. 479 (1965)

Holding:  7–2 decision invalidating a Connecticut law, as applied to married couples, which prohibited the use of contraceptives.

Majority: Douglas, Goldberg, Brennan, White, Harlan, Clark, Warren.  In Griswold, the Supreme Court explicitly recognized the constitutional right of marital privacy, thereby laying the foundation for subsequent recognition of reproductive privacy.  By a vote of 7-2, the Supreme Court invalidated a Connecticut statute that prohibited the use of contraceptives as it applied to married persons, noting that the law “operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation.”   

In extending constitutional protection to marital privacy, the Court relied on other decisions recognizing rights not explicitly mentioned in the constitution.  Justice William O. Douglas, writing for the majority, wrote that “specific guarantees in the Bill of Rights have penumbras, formed by the emanations from those guarantees that give them life and substance” and that these “(v)arious guarantees create zones of privacy.”  Finding that the ban on contraceptives by married persons “concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees,” the majority concluded that the intrusion permitted by the law was “repulsive to the notions of privacy surrounding the marriage relationship.”  

Concurrence:  Justice Goldberg.  Justice Goldberg relied extensively on the Ninth Amendment, which states that the specific rights enumerated in the Bill of Rights are not exhaustive.  He remarked: To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever.”  Justice Goldberg further noted that the marital right includes decisions whether to “bear children and raise a family.”

Dissent:  Black and Stewart.  Justices Black and Stewart took a literalist approach, arguing that a right of privacy did not exist in the Constitution because it was not specifically written into the text. Each was harshly critical of the flexible approaches used to discover a constitutional right to personal privacy.  

Subsequent Decisions:  Although in Griswold the majority’s analysis focused on the privacy rights of married couples, six years later in Eisenstadt v. Baird, 405 U.S. 921 (1972), the Court relied on Griswold to strike down a ban on contraceptives applicable only to single people, stating, “[i]f the right to 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.”

Roe v. Wade, 410 U.S. 113 (1973)

Holding:  7–2 decision invalidating a Texas law that prohibited abortions except when necessary to save the life of the mother.  

Majority:  Blackmun, Burger, Douglas, Brennan, Stewart, Marshall, and Powell.  In Roe, the Supreme Court recognized that a woman’s right to terminate her pregnancy comes within the constitutional protection afforded to individual autonomy and privacy.  Writing for the majority, Justice Blackmun described the right of personal privacy as fundamental, and concluded that the right “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”  At the same time, the Court rejected arguments that a fetus is “person” for purposes of the Fourteenth Amendment and therefore endowed with a constitutionally protected right to life.  Nonetheless, the Court determined that a woman’s right to seek an abortion is not absolute.  Her interests can be balanced against the State’s interest in potential life and maternal health.  

With these competing interests in mind, the Court afforded the highest degree of constitutional protection – strict scrutiny -- to laws limiting abortion, and established the so-called “trimester” framework for analyzing restrictions on abortion.  During the first trimester of a woman's pregnancy, “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.”  During the second trimester, “the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.”  During the last trimester, or beginning roughly at the point of viability, the State’s interest in potential life becomes compelling and “the State . . . may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”  

Applying this analysis, the Court invalidated the Texas statute at issue, which banned all abortions except those done “for the purpose of saving the life of the mother.”  In doing so, the court noted that similar statutes were on the books in a majority of the states.  Thus, the effect of the ruling was to invalidate bans on abortion throughout the country.    

Dissent:  White and Rehnquist.  Justice Rehnquist expressed his “difficulty in concluding . . . that the right of ‘privacy’ [was] involved in this case,” and argued that the rational basis test “traditionally applied in the area of social and economic legislation” was the more appropriate standard.  Justice White argued for fetal personhood and accused the majority of an exercise of “raw judicial power.”

Related Case:  At the time that Roe was decided, the Court also issued its opinion in Doe v. Bolton, 410 U.S.179 (1973), upholding against a vagueness challenge a Georgia statute permitting physicians to provide abortions when necessary in their “best medical judgment.”  In doing so, the Court noted that the term “health” as relevant to the statute, could encompass consideration of a broad range of factors, including “physical, emotional, psychological, familial, and the woman's age.”  The Court struck down requirements subjecting abortions to approval by a committee or other concurring physicians.


Bellotti v. Baird II, 443 U.S. 662 (1979)

Holding:  8-1 decision invalidating a Massachusetts law that required the consent of both parents or judicial authorization prior to the performance of an abortion on a minor.

MajorityBurger, Stewart, Rehnquist, Powell, Brennan, Marshall, Blackmun, Stevens.  In Bellotti II, the majority made clear that states may impose parental consent requirements on minors seeking abortions, so long as a mechanism is provided for an alternate decision maker to approve the procedure.  The decision builds on Planned Parenthood v. Danforth, 428 U.S. 52 (1976), holding that abortion restrictions cannot give an “absolute, and possibly arbitrary veto” to a third party (spouse or parents) over a woman’s decision to have an abortion.

The Bellotti II majority acknowledged that “[a] child, merely on account of [her] minority, was not beyond the protection of the Constitution.”  Nonetheless, the Court determined that “the constitutional rights of children cannot be equated with those of adults” based on “the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.”  The majority therefore concluded that “the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.”

The Court balanced these different interests by requiring that states seeking to require parental consent “provide an alternative procedure whereby authorization for the abortion can be obtained.”  That alternative, most commonly provided in the form of a judicial bypass, must afford an expeditious and confidential process by which a minor can obtain authorization for the abortion without parental involvement if she can demonstrate that she is mature enough to make the decision or that the abortion would be in her best interests.  Applying these requirements, the Court struck down the Massachusetts law under review because it allowed authorization for an abortion to be withheld even after a showing of maturity and violated the confidentiality requirement by permitting notification to the parents that the minor was seeking a bypass.

Concurrence:  Stevens, Brennan, Marshall, and Blackmun.  The concurring Justices spoke out against the judicial bypass, writing, “That a need to commence judicial proceedings in order to obtain a legal abortion would impose a burden at least as great as, and probably greater than that imposed on the minor child by the need to obtain the consent of a parent.”  These four Justices stated that they would find the judicial bypass procedure suggested by the majority unconstitutional.

Dissent: White.  Justice White argued that the law did not violate the constitutional rights of minors seeking aboriton.  

Subsequent Cases:  Since Bellotti II, the Court has extended the requirement for a bypass procedure to laws requiring notification to both parents, but has explicitly left open the question of whether that requirement extends to laws requiring notification to only parent.  See Hodgson v. Minnesota, 497 U.S. 417 (1990); Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990).


Harris v. McRae, 297 U.S. 323 (1980)

Holding:  5-4 decision upholding the “Hyde Amendment,” which prohibited the use of federal Medicaid funds for abortion unless necessary to save a woman’s life.
MajorityStewart, White, Rehnquist, Powell, Burger.  In Harris, the Supreme Court upheld the Hyde Amendment, which limited Medicaid funding for abortion to circumstances in which the mother’s life was endangered, even though the program generally paid for other “medically necessary,” services.  The Court ruled that the funding restriction did not impinge on the right to seek abortion recognized in Roe, writing, “[a]though the liberty protected by the Due Process Clause affords protection against unwarranted government interference with freedom of choice . . . it does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom.”  The Court also determined that the Hyde Amendment did not violate the Equal Protection clause because it “leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care cost at all.”   

The majority determined that the Hyde Amendment did not violate women’s constitutional privacy right to seek abortion because the government’s refusal to subsidize abortions does not create “a government obstacle in the path of a woman who chooses to terminate her pregnancy.”   The majority upheld the provision, therefore, because the government has no “affirmative funding obligation” and the Hyde Amendment does not restrict a women’s right to terminate her pregnancy.  

The majority also rejected the claim that exclusion of medically necessary abortions from Medicaid coverage violated the Equal Protection clause, stating that “[t]he financial constraints that restrict an indigent woman’s ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency.”  The majority further found that the principle impact of the Hyde Amendment “falls on the indigent,” a class not entitled to heightened protection under the Equal protection clause.  As a result, the majority upheld the Hyde Amendment, concluding that its goal of encouraging childbirth by subsidizing the costs for indigent women who carry their pregnancies to term was “rationally related to the legitimate governmental objective of protecting potential life.”

Dissents: Brennan, Marshall, Blackmun, Stevens.  All four dissenting justices filed separate opinions.  Justice Brennan’s dissent criticized the Court for failing to recognize that the government’s “denial of public funds for medically necessary abortions . . . serves to coerce indigent pregnant women to bear children that they would otherwise elect not to have,” and therefore to “achieve indirectly what Roe v. Wade said it could not do directly.”  Justice Marshall explained that for poor woman the “denial of Medicaid-funded abortion is equivalent to denial of legal abortion altogether.”


Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 883 (1992)

Holding:  fractured decision, controlled by a three-Justice plurality opinion, refused to overturn Roe v. Wade; upheld provisions of Pennsylvania law imposing mandatory 24 hour delay and biased counseling requirement and striking down spousal notification provision.      

Joint Opinion: O’Connor, Kennedy, and Souter.  In Casey, a majority of Justices rejected a request to overturn Roe.  Justices O’Connor, Souter, and Kennedy issued a joint opinion which is currently controlling law governing review of abortion restrictions.  The plurality Justices reaffirmed what they characterized as Roe’s central holding:  “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”  Subsequent to viability, the State may regulate or ban abortion, “except where it is necessary … for the preservation of the life or health of the mother.”    

Although declining to overturn Roe, the plurality found that the trimester framework adopted in Roe undervalued the State’s interest in potential life by limiting its expression prior to viability.  The plurality replaced Roe’s strict scrutiny standard with the less protective “undue burden” standard.  “An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”  Applying this test, the Court struck down Pennsylvania’s spousal notification provision, but upheld previously unconstitutional requirements that doctors furnish state-mandated information 24 hours prior to an abortion.

The Casey undue burden standard made it more difficult to prevail on a facial challenge to an abortion statute by shifting the burden of proof from the State to the individuals challenging the statute.  Moreover, under the undue burden standard a facial challenge to an abortion restriction will only succeed if the plaintiff shows that the regulation will operate as a “substantial obstacle” in a “large fraction of cases.”

Dissent and concurrenceRehnquist, Scalia, White, and Thomas.  These four Justices voted to overturn Roe and send the abortion issue back to the states.  Rehnquist boldly stated, “[w]e believe that Roe was wrongly decided…and that it can and should be overruled.”  These Justices would have upheld the spousal notification requirement, in addition to the other restrictions.    

Dissent and concurrence Blackmun. Justice Blackmun would have retained the strictest judicial scrutiny for restrictions placed on women’s reproductive rights and therefore would have invalidated the mandatory delay and biased counseling requirements.  


Stenberg v. Carhart, 530 U.S. 914 (2000)

Holding:  5-4 decision invalidating a Nebraska ban on so-called “partial-birth” abortions.

MajorityBreyer, Stevens, O’Connor, Souter, Ginsburg.  In Stenberg, by a vote of 5-4, the Court invalidated a Nebraska law banning so-called “partial-birth” abortions.  The Court found that the statute was unconstitutional under Roe and Casey because it did not include an exception allowing the banned procedure when necessary to preserve a woman’s health.  The Court also ruled that because that law banned the safest and most common procedures used for abortions performed after 12 weeks of pregnancy, it imposed an undue burden on a woman’s right to choose an abortion.

The majority reiterated a principle announced in previous cases that “a State may promote but not endanger a woman's health when it regulates the methods of abortion,” and rejected Nebraska’s argument that no health exception was needed because safe alternative procedures were available.  The majority concluded that “where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women's health, Casey requires the statute to include a health exception when the procedure is “’necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’”  In reaching this conclusion, the majority did not utilize the undue burden analysis, leading several Circuit Courts of Appeals in subsequent cases to conclude that health exceptions in abortion restrictions are a per se constitutional requirement. See Planned Parenthood v. Owens, 287 F.3d 910 (2002).  

The majority also found that the “partial-birth” ban was broad enough to cover dilation and evacuation procedures, “the most commonly used method for performing previability second trimester abortions.”  As a result, “[a]ll those who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment.  The result is an undue burden upon a woman's right to make an abortion decision.”   

Concurrence O'Connor.  Justice O’Connor stated that in her view “a ban on partial-birth abortion that only proscribed the D & X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional.”  

Dissent: Kennedy, Rehnquist, Scalia, and Thomas.  Justice Kennedy, who had joined the plurality opinion in Casey, dissented, arguing that the majority’s opinion failed to give adequate weight to the State’s asserted interests, including its right to legislate based on “moral differences” between abortion procedures.   In Justice Kennedy’s view, the division of opinion among medical authorities, combined with the State’s interests, justified the ban.


Ayotte v. Planned Parenthood of Northern New England, 126 S. Ct. 961 (2006)

Holding:  unanimous decision remanding for consideration of proper judicial remedy a New Hampshire parental notification law that unconstitutionally failed to provide an exception for medical emergencies.

Unanimous:  Justice O’Connor delivered opinion of the Supreme Court in Ayotte, which addressed a New Hampshire parental notification law, which the State conceded was unconstitutional because it did not provide an exception for medical emergencies when delay caused by the notification requirement would threaten the health of young women seeking abortions.  The Court did not question New Hampshire’s concession that in a small percentage of cases minors need immediate abortions to avert serious damage to their health or prevent their death and that it would be unconstitutional to apply the Act in a way which would subject minors to significant health risks.  The Court focused instead on whether it was appropriate for the lower courts to have invalidated the New Hampshire statute in its entirety, or if they could have rendered more narrow declaratory and injunctive relief to prevent enforcement of the unconstitutional applications of the law while permitting enforcement in situations in which the law was unquestionably valid.  The Court explained that, as a general rule, when a statute is unconstitutional in some but not all of its applications, partial invalidation, rather than complete invalidation, is the preferred remedy.  The Court noted, however, three limitations on the general rule.  First, a court must avoid substantial rewriting of a statute.  Second, a court must avoid any remedy that would be inconsistent with legislative intent.  Third, a court must be wary of legislatures that would draft broad statutes without regard to constitutional parameters and then rely on the judiciary to define the proper scope of their application.  Applying these three criteria to the New Hampshire law, the Court held that it was unable to determine whether the New Hampshire legislature would have preferred that the statute’s unconstitutional applications be severed or that the statute be invalidated in its entirety.  As a result, the Court remanded the case to the lower courts for further consideration.

The Court noted that in Stenberg v. Carhart, 530 U.S. 914 (2000), it had previously invalidated an abortion statute in its entirety because of the same constitutional flaw.  The Court distinguished Stenberg explaining that the parties in Ayotte contemplated partial invalidation of the state statute whereas the parties in Stenberg did not and, therefore, the Court did not consider a more finely drawn remedy in connection with the Nebraska statute.


Gonzales v. Carhart, 550 U.S. 124 (2007)

Holding:  5-4 decision upholding the federal ban on so-called “partial-birth” abortions.

Majority: Kennedy Roberts, Scalia, Thomas, and Alito.  In Gonzales, by a vote of 5-4, the Supreme Court upheld the federal “partial-birth” abortion ban against a challenge asserting that it was unconstitutional on its face because it did not contain a health exception.  In contrast to the decision in Stenberg, which held that a similar Nebraska ban did not further any interest in “the potentiality of human life,” the Gonzales majority focused primarily on “whether the Act furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child” in finding that the absence of a health exception did not render the federal ban facially unconstitutional.  
Justice Kennedy, writing for the majority, did not attempt to distinguish the Stenberg decision.  Rather, the Court stated that the characterization of that opinion as requiring “that an abortion regulation must contain a health exception if ‘substantial medical authority supports the proposition that banning a particular procedure could endanger women’s health.’” “leave[s] no margin of error for legislatures to act in the face of medical uncertainty.”  The Court acknowledged that both district courts to hear the cases below had found, as a matter of fact after reviewing conflicting evidence, that in some instances the procedures banned by the law would be the safest method of abortion, but stated that “[t]he Act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman’s health, given the availability of other abortion procedures that are considered to be safe alternatives.”  

The Court further held that the “partial-birth” abortion ban only prohibited “dilation and extraction” abortions and not “standard” dilation and evacuation procedures, the most commonly used procedure for second trimester abortions.  As a result, the Court held that the federal ban did not constitute an undue burden upon a woman’s right to choose an abortion.

Dissent: Ginsburg, Stevens, Souter, and Breyer.  Justice Ginsburg, writing for the dissent, noted that “[t]oday’s decision is alarming. It refuses to take Casey and Stenberg seriously. … [F]or the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.”  Finding that the federal ban, like the Nebraska ban in Stenberg, failed to meet established constitutional standards, Justice Ginsburg went on to state that the majority’s opinion was “hardly faithful to our earlier invocations of ‘the rule of law’ and ‘the principles of stare decisis’” and that it deferred “to the legislative override of our Constitution-based rulings.”  

Justice Ginsburg concluded that the federal ban failed to further any legitimate state interest and that the majority’s validation of it “cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court—and with increasing comprehension of its centrality to women’s lives.”