Twenty years ago this month, a bitterly divided Supreme Court handed down Planned Parenthood v. Casey, one of the most important opinions delivered by the Court on the meaning of the Constitution’s protection of liberty and equality for all Americans.  In a landmark joint opinion, authored by Justices Anthony Kennedy, Sandra Day O’Connor, and David Souter, a narrow five-Justice majority reaffirmed what they called the “essential holding of Roe,” beating back a twenty-year assault on the Supreme Court’s decision in Roe v. Wade and the notion that the Constitution protects substantive fundamental rights not enumerated elsewhere in the Constitution.  In the process, the Justices rooted protection of a woman’s right to reproductive choice, not in a generalized right of privacy as Roe had, but in a woman’s right to bodily integrity, to personal liberty, and to equal citizenship.  (For more discussion, see CAC’s Crossroads Chapter on Reproductive Freedom).  As a senior in college at the time, I had the incredibly good fortune of working on the legal team representing Planned Parenthood at the Supreme Court – alongside brilliant and courageous attorneys Kitty Kolbert and Linda Wharton – and to this day my work on Casey is still one of the proudest moments of my career in the law.        

Casey’s understanding of constitutional protection for personal liberty and equality drew on the Court’s precedents going back 70 years and the doctrine of stare decisis.  The joint opinion forcefully demonstrated that keeping faith with the Court’s precedents required reaffirming constitutional protection for a woman’s right to reproductive choice, while the dissenters argued that these  precedents had to be jettisoned.  Two decades later, thanks to the work of Jack Balkin, Reva Siegel, Dawn Johnsen and others, there is more basic foundation of support for Casey’s understanding of fundamental constitutional principles: the Constitution’s text and history.  Contrary to conventional wisdom, both Casey’s analysis of the protection of substantive fundamental rights and of gender equality has deep roots in our Constitution’s text and history.  Supporters of Roe and Casey should embrace these sources – just as much as precedent – in defending a woman’s right to reproductive freedom against attacks by conservatives.     

First, as we explained in CAC’s first text and history narrative, The Gem of the Constitution, the Constitution affirmatively protects substantive fundamental rights, including rights not explicitly enumerated elsewhere in the Constitution.  The Framers of the Fourteenth Amendment wrote its Privileges or Immunities Clause to be an explicit textual guarantee of substantive fundamental rights “to restrain the power of the States and compel them to respect these fundamental guarantees.”  As the Framers explained, the Privileges or Immunities Clause was designed to guarantee directly in the text of the Constitution protection of the “unalienable rights” that the Declaration of Independence had promised as the birthright of all Americans.  Once ratified, the Fourteenth Amendment would be the “Gem of the Constitution” that would finally write the Declaration’s fundamental principles into the text of the Constitution.  The importance of this text and history cannot be overestimated:  by demonstrating that the Framers established protection for substantive fundamental rights directly in the text of the Constitution, this history responds to the core of the conservative attack on Roe – the idea that judges should not be protecting unenumerated rights in the first place – and provides a stronger textual foundation for a woman’s right to reproductive freedom.

Indeed, two years ago, in McDonald v. City of Chicago, the Supreme Court recognized the force of this history, demonstrating that protection of substantive fundamental rights was not the invention of the Court but was, in fact, deeply rooted in the text and history of the Fourteenth Amendment.  While the Court did not revisit the Privileges or Immunities Clause, the lead opinion, authored by Justice Samuel Alito, concluded that a robust interpretation should be given to the liberty protected by Due Process Clause.  Indeed, every member of the Court agreed with the proposition that the Fourteenth Amendment protects substantive fundamental rights, dividing only on the question whether the right to bear arms was such a right. 

Text and history not only make clear that there is an explicit textual foundation for protection of substantive fundamental rights in the Fourteenth Amendment, but that the Framers expected the courts to safeguard the very unenumerated fundamental rights at the center of Roe and Casey.  The Framers of the Fourteenth Amendment recoiled at the treatment of slave families – women were forced to bear children, parents were denied the right to marry and often separated, and children were taken from them – and they wrote the Privileges or Immunities Clause to protect these liberties of heart and home.   These were core rights of personal liberty that belong to “citizens of all free governments;” it did not matter that they were not enumerated elsewhere in the Constitution.  The Framers’ thinking should hardly be surprising. The Ninth Amendment affirms that the Constitution protects unenumerated rights; as Steven Calabresi, a Federalist Society co-founder has reported, more than three-quarters of state constitutions at the time of the ratification of the Fourteenth Amendment did the same.  Given this history, it comes as no surprise that the Supreme Court in Roe, Casey and many other cases has recognized that the right to bodily integrity, the right to choose to marry, to bear and raise children, and to establish a family are among the fundamental rights at the core of personal liberty.      

Second, our Constitution’s text and history also buttress Casey’s recognition that a woman’s right to reproductive freedom is essential to the Fourteenth Amendment’s promise of equality for all persons.  If women were to be truly equal citizens, the Casey joint opinion explained, the State could not “insist upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture.”   Justice Ruth Bader Ginsburg has built upon this aspect of Casey in more recent opinions discussing women’s “equal citizenship stature”: as equal citizens, Justice Ginsburg argues, women have the right to choose their own destiny and cannot be denied rights and opportunities based on the assumption that their proper role is to bear children.

This aspect of Casey, particularly as it has subsequently been developed by Justice Ginsburg, also draws considerable support from our constitutional text and history.   Recent work on the Fourteenth and Nineteenth Amendments, highlighted in CAC’s report Perfecting the Declaration, and fleshed out further in a remarkable recent law journal article co-authored by Steven Calabresi, demonstrates that, under the Constitution, women cannot be treated as a subordinate caste.    Indeed, the Framers of the Fourteenth Amendment’s Equal Protection Clause deliberately went beyond the promise of liberty and equality in the Declaration of Independence – using the term “persons,” not “men” – and clearly guaranteed both the privileges and immunities of citizenship and the equal protection of the laws to women as well as men. The Nineteenth Amendment strengthened the Constitution’s protection of equality for women by prohibiting discrimination against women in voting and, just as important, by effectively excising from the Constitution a clause in Section 2 of the Fourteenth Amendment that appeared to permit gender discrimination at the ballot box.   

In approving the Nineteenth Amendment, the American people buried the notion that women were second-class citizens, concluding that a woman was no longer to be “ruled by a male head” and have “her place in the world . . . determined by the place held by this head . . . .”  Women’s destiny was no longer to be confined within the four walls of a home.  The Nineteenth Amendment affirmed that women are the equals of men entitled to the right to vote, not subordinate citizens whose proper role was to bear and raise children: in short, women have, as Justice Ginsburg puts it, “equal citizenship stature.”

These arguments will not sway the entrenched opponents of Roe – nothing will – but they do answer some of the most far reaching and prevalent arguments about the Constitution’s protection of reproductive choice.  Properly interpreted, the Constitution’s text and history strengthen the foundation for a woman’s right to reproductive choice.