MR. JUSTICE BLACKMUN delivered the opinion of the Court.
MR. JUSTICE REHNQUIST, dissenting.
MR. JUSTICE STEWART, concurring.
In 1963, this Court, in Ferguson v. Skrupa, 372 U.S. 726, purported
to sound the death knell for the doctrine of substantive due process,
a doctrine under which many state laws had in the past been held
to violate the Fourteenth Amendment. As Mr. Justice Black's opinion
for the Court in Skrupa put it: "We have returned to the
original constitutional proposition that courts do not substitute
their social and economic beliefs for the judgment of legislative
bodies, who are elected to pass laws." Id., at 730. 1
Barely two years later, in Griswold v. Connecticut, 381 U.S. 479,
the Court held a Connecticut birth control law unconstitutional.
In view of what had been so recently said in Skrupa, the Court's
opinion in Griswold understandably did its best to avoid reliance
on the Due Process Clause of the Fourteenth Amendment as the ground
for decision. Yet, the Connecticut law did not violate any provision
of the Bill of Rights, nor any other specific provision of the
Constitution. 2 So it was clear
to me then, and it is equally clear to me now, that the Griswold
decision can be rationally understood only as a holding that the
Connecticut statute substantively invaded the "liberty"
that is protected by the Due Process Clause of the Fourteenth
Amendment. 3 As so understood,
Griswold stands as one in a long line of pre-Skrupa cases Decided
under the doctrine of substantive due process, and I now accept
it as such.
"In a Constitution for a free people, there can be no doubt
that the meaning of 'liberty' must be broad indeed." Board
of Regents v. Roth, 408 U.S. 564, 572. The Constitution nowhere
mentions a specific right of personal choice in matters of marriage
and family life, but the "liberty" protected by the
Due Process Clause of the Fourteenth Amendment covers more than
those freedoms explicitly named in the Bill of Rights. See Schware
v. Board of Bar Examiners, 353 U.S. 232, 238-239; Pierce v. Society
of Sisters, 268 U.S. 510, 534-535; Meyer v. Nebraska, 262 U.S.
390, 399-400. Cf. Shapiro v. Thompson, 394 U.S. 618, 629-630;
United States v. Guest, 383 U.S. 745, 757-758; Carrington v. Rash,
380 U.S. 89, 96; Aptheker v. Secretary of State, 378 U.S. 500,
505; Kent v. Dulles, 357 U.S. 116, 127; Bolling v. Sharpe, 347
U.S. 497, 499-500; Truax v. Raich, 239 U.S. 33, 41.
As Mr. Justice Harlan once wrote: "The full scope of the
liberty guaranteed by the Due Process Clause cannot be found in
or limited by the precise terms of the specific guarantees elsewhere
provided in the Constitution. This 'liberty' is not a series of
isolated points pricked out in terms of the taking of property;
the freedom of speech, press, and religion; the right to keep
and bear arms; the freedom from unreasonable searches and seizures;
and so on. It is a rational continuum which, broadly speaking,
includes a freedom from all substantial arbitrary impositions
and purposeless restraints . . . and which also recognizes, what
a reasonable and sensitive judgment must, that certain interests
require particularly careful scrutiny of the state needs asserted
to justify their abridgment." Poe v. Ullman, 367 U.S.
497, 543 (opinion dissenting from dismissal of appeal) (citations
omitted). In the words of Mr. Justice Frankfurter, "Great
concepts like . . . 'liberty' . . . were purposely left to gather
meaning from experience. For they relate to the whole domain of
social and economic fact, and the statesmen who founded this Nation
knew too well that only a stagnant society remains unchanged."
National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582,
646 (dissenting opinion).
Several decisions of this Court make clear that freedom of personal
choice in matters of marriage and family life is one of the liberties
protected by the Due Process Clause of the Fourteenth Amendment.
Loving v. Virginia, 388 U.S. 1, 12; Griswold v. Connecticut, supra;
Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra.
See also Prince v. Massachusetts, 321 U.S. 158, 166; Skinner v.
Oklahoma, 316 U.S. 535, 541. As recently as last Term, in Eisenstadt
v. Baird, 405 U.S. 438, 453, we recognized "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."
That right necessarily includes the right of a woman to decide
whether or not to terminate her pregnancy. "Certainly the
interests of a woman in giving of her physical and emotional self
during pregnancy and the interests that will be affected throughout
her life by the birth and raising of a child are of a far greater
degree of significance and personal intimacy than the right to
send a child to private school protected in Pierce v. Society
of Sisters, 268 U.S. 510 (1925), or the right to teach a foreign
language protected in Meyer v. Nebraska, 262 U.S. 390 (1923)."
Abele v. Markle, 351 F.Supp. 224, 227 (Conn. 1972).
Clearly, therefore, the Court today is correct in holding that
the right asserted by Jane Roe is embraced within the personal
liberty protected by the Due Process Clause of the Fourteenth
It is evident that the Texas abortion statute infringes that right
directly. Indeed, it is difficult to imagine a more complete abridgment
of a constitutional freedom than that worked by the inflexible
criminal statute now in force in Texas. The question then becomes
whether the state interests advanced to justify this abridgment
can survive the "particularly careful scrutiny" that
the Fourteenth Amendment here requires.
The asserted state interests are protection of the health and safety of the pregnant woman, and protection of the potential future human life within her. These are legitimate objectives, amply sufficient to permit a State to regulate abortions as it does other surgical procedures, and perhaps sufficient to permit a State to regulate abortions more stringently or even to prohibit them in the late stages of pregnancy. But such legislation is not before us, and I think the Court today has thoroughly demonstrated that these state interests cannot constitutionally support the broad abridgment of personal liberty worked by the existing Texas law. Accordingly, I join the Court's opinion holding that that law is invalid under the Due Process Clause of the Fourteenth Amendment.
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1 Only Mr. Justice Harlan failed
to join the Court's opinion, 372 U.S., at 733.
2 There is no constitutional
right of privacy, as such. "[The Fourth] Amendment protects
individual privacy against certain kinds of governmental intrusion,
but its protections go further, and often have nothing to do with
privacy at all. Other provisions of the Constitution protect personal
privacy from other forms of governmental invasion. But the protection
of a person's general right to privacy -- his right to be let
alone by other people -- is, like the protection of his property
and of his very life, left largely to the law of the individual
States." Katz v. United States, 389 U.S. 347, 350-351 (footnotes
3 This was also clear to Mr.
Justice Black, 381 U.S., at 507 (dissenting opinion); to Mr. Justice
Harlan, 381 U.S., at 499 (opinion concurring in the judgment);
and to MR. JUSTICE WHITE, 381 U.S., at 502 (opinion concurring
in the judgment). See also Mr. Justice Harlan's thorough and thoughtful
opinion dissenting from dismissal of the appeal in Poe v. Ullman,
367 U.S. 497, 522.