The Other Side Of Roe

A week ago today, the country marked the fortieth anniversary of the Supreme Court’s landmark abortion decision, Roe v. Wade, 410 U.S. 113 (1973). Roe, of course, held, “the [constitutional] right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation,” 410 U.S. at 154, thereby unleashing forty years and counting of legal jousting over every conceivable type of regulation that state governments (and occasionally the federal government) could dream up.

But this disturbing piece by my friend Emily Hauser at The Daily Beast should serve as a reminder that the Roe decision involves so much more than abortion:

On Sunday it was reported that Israel has finally admitted to systematically depressing the fertility of the Ethiopian immigrant community (information first reported five years ago) by injecting Ethiopian-Israeli women with the long-acting birth control drug Depo-Provera without informed consent.

In some cases, women were first given the drug while still in transit camps; in other cases, it seems women were regularly injected after arriving in Israel. Some women apparently knew they were being given birth control but were told they wouldn’t be let into Israel if they didn’t agree; others report being told the shots were “inoculations.”

There are aspects to this story that I can’t fully wrap my head around – most obviously, the racism behind it. I am in no position to fully comprehend it, only to point at it and say, Oh, my god! Fortunately, we have Emily Hauser, a woman who is an expatriate Israeli and who knows more about the region than anyone I know. So I urge you to read her piece, along with this post on her blog, Emily L. Hauser – In My Head, on the challenges that have faced Ethiopian immigrants in Israel.

But aside from the horrid racial overtones, what happened in Israel – forcing long-acting birth control on women without their knowledge or their consent – cannot happen here. Not legally, anyway. And the reason it can’t happen here is: Roe v. Wade.

That’s because the Court in Roe did not merely say the Constitution grants women the right to have abortions. Instead, the Court found that the constitutional right to privacy encompassed the decision whether or not to have an abortion. The Court explained the right to privacy this way:

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8 -9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484 -485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541 -542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453 -454; id., at 460, 463-465 (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.

410 U.S. at 152-152.

Then, turning to abortion, the Court said:

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent.

410 U.S. at 153 (emphasis supplied).

Two things are apparent from the quoted passages: First that decisions involving conception, pregnancy, child birth, child-rearing and so forth all fall squarely within the constitutional notion of “privacy”; and second, what the right to privacy means, fundamentally, is that the state cannot interfere with those decisions – unless, as Roe teaches, there exist some countervailing “important state interests.” Id. at 154.

As I said at the outset, what is or isn’t an “important state interest” sufficient to override the right of privacy – in this context, the right to make certain decisions about pregnancy – has been the subject of unending controversy, and likely will continue to be. But it’s safe to say that after Roe, the state cannot arbitrarily sterilize or force birth control on women (or men) without their knowledge or consent.

And before you say, Whoa, slow down Dave, that’d never happen in these United States! you may want to familiarize yourself with a couple of pre-Roe Supreme Court decisions that involve … well … precisely that. I’m referring, firstly, to Buck v. Bell, 247 U.S. 200 (1927), in which “the Circuit Court of Amherst County, [Virginia,] [ordered] … the superintendent of the State Colony for Epileptics and Feeble Minded … to perform the operation of salpingectomy upon Carrie Buck,” (whom the Supreme Court described as “a feeble-minded white woman”) “for the purpose of making her sterile.” 247 U.S. at 205. The Honorable Justice Oliver Wendell Holmes thought that ways a-okay, because, after all, “[t]hree generations of imbeciles are enough.” Id. at 207.

No, I’m not kidding. He said that.

And then there was Skinner v. Oklahoma, 316 U.S. 535 (1942), in which the Court considered Oklahoma’s Habitual Criminal Sterilization Act, which allowed the state to seek sterilization of any “person who, having been convicted two or more times for crimes ‘amounting to felonies involving moral turpitude’ either in an Oklahoma court or in a court of any other State, is thereafter convicted of such a felony in Oklahoma and is sentenced to a term of imprisonment in an Oklahoma penal institution.” 316 U.S. at 536. Talk about a three-strikes law. Ouch.

That, apparently, was a bridge too far for the Supreme Court. Skinner struck down the Oklahoma statue on equal protection grounds (although it did not overrule Buck v. Bell), stating:

We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, farreaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty.

316 U.S. at 541.

Ultimately, though, the Court’s decision in Skinner was not based solely on the fact that the statute interfered with “one of the basic civil rights of man,” but that the law was applied in a manner that violated equal protection:

We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly or otherwise invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws. The guaranty of ‘equal protection of the laws is a pledge of the protection of equal laws.’ Yick Wo v. Hopkins, 118 U.S. 356, 369 , 6 S.Ct. 1064, 1070. When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as an invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment. Yick Wo v. Hopkins, supra; Gaines v. Canada, 305 U.S. 337 , 59 S.Ct. 232.

316 U.S. at 541.

So we have this in our history. This has happened in our country. Our government has attempted to forcibly sterilize those it deemed “feeble-minded” and those it labeled “habitual criminals” – successfully in the former case, unsuccessfully in the latter. But that was before Roe.

No matter how you feel about abortion itself, this aspect of Roe is certainly nothing to scoff at: Roe may protect the right of a woman to choose to have an abortion, but it equally prevents the government from forcing that choice on her. Or from forcibly sterilizing her, because that, too, would take away the very choice protected by the right to privacy.

And guess what, fellas? In that sense, Roe protects you, too. 

[CORRECTION: After discussing the matter further with Emily Hauser last night over Twitter, I realize I that I misstated what happened in Israel. Initially, I characterized it as Israel’s actions as “forcing [Ethiopian Israeli] women to become sterile.” In fact, Israel used Depo-Provera, which is a long-term birth control medication. It rendered them unable to conceive for a period of time, but not sterile. I have corrected the error. This does not affect my analysis of Roe.]