From: kadie@cs.uiuc.edu (Carl M. Kadie)
Subject: [ACLU] Reproductive Freedom
Organization: University of Illinois, Dept. of Comp. Sci., Urbana, IL
Date: Mon, 14 Dec 1992 19:00:42 GMT

[Info on on-line access to other ACLU briefing papers is appended. -cmk]

Published by the Department of Public Education
American Civil Liberties Union
132 West 43rd Street
New York, NY 10036
(212) 944-9800

ACLU Briefing Paper Number 15
Reproductive Freedom


The Right to Choose: A Fundamental Liberty

"Neither slavery nor involuntary servitude.... shall exist within the United
States." 
                      -- The Thirteenth Amendment

The Bill of Rights of the United States Constitution guarantees individuals
the right to personal autonomy, which means that a person's decisions
regarding his or her personal life are none of the government's business.
That right, which is part of the right to privacy, encompasses decisions
about parenthood, including a woman's right to decide for herself
whether to complete or terminate a pregnancy, as well as the right to use
contraception, freedom from forced sterilization and freedom from
employment discrimination based on childbearing capacity. 

As early as 1923, the U.S. Supreme Court ruled that the Constitution
protects personal decisions regarding marriage and the family from
governmental intrusion. In 1965, the Court ruled that a state cannot
prohibit a married couple from practicing contraception. In 1972, it
extended the right to use birth control to all people, married or single.
And in its 1973 ruling in _Roe v. Wade_, the Court held that the
Constitution's protections of privacy as a fundamental right encompass a
woman's decision to have an abortion. 

The _Roe_ decision, which legalized abortion nationwide, led to a
dramatic improvement in the lives and health of women. Before _Roe_,
women experiencing unwanted or crisis pregnancies faced the perils and
indignities of self-induced abortion, back-alley abortion, or forced
childbirth. Today, _Roe_ protects the right of women to make life choices
in keeping with their conscience or religious beliefs, consistent with
American tradition. And by relieving American women of the burden of
unwanted pregnancies, _Roe_ has permitted them to pursue economic
opportunities on a more equal basis with men.

The movement to newly restrict reproductive choice is, therefore, not
only an attack on personal autonomy but also on the principle of equality
for women, and it is a grave threat to all Americans' cherished right to
privacy, bodily integrity and religious liberty.

Here are the American Civil Liberties Union's answers to questions
frequently asked by the public about reproductive freedom and the
Constitution. 


---
How does the Constitution protect our right to privacy, including
reproductive freedom, if that right isn't explicitly named in the
Constitution?
---

Even though a right to privacy is not named, the Ninth Amendment
states that the naming of certain rights in the Constitution does not mean
that other, unnamed rights are not "retained by the people." The
Supreme Court has long held that the Bill of Rights protects certain
liberties that, though unspecified, are "fundamental to an individual's
ability to function in society." These include the right to privacy, the right
to travel, the right to vote and the right to marry. The Court has
articulated various constitutional bases for these liberties, including the
First, Fourth, Fifth, Ninth and Fourteenth Amendments. And in recent
years, the Court has viewed the privacy right as an essential part of
liberty, specifically protected by the Fifth and Fourteenth Amendments.

The Court has also held that the government may not restrict
fundamental rights without a compelling reason, and it has repeatedly
struck down various state restrictions on birth control and abortion as
being unjustified by a compelling reason.


---
Is reproductive choice protected by constitutional principles other than
the right to privacy?
---

Although the Supreme Court has not so held, ACLU believes that
reproductive choice is not only protected by the right to privacy, but by
several other constitutional principles, including the Fourteenth
Amendment's guarantee of "equal protection of the laws" and the First
Amendment's guarantee of freedom of religion.

          ==========================================
          Laws that force women to bear children not only rob women of
          their bodily integrity but make women, as a class,
          involuntary servants to fetuses.
          ==========================================

Since only women can become pregnant, only women are affected by
laws that dictate whether and under what conditions childbearing should
occur. By limiting only women's right to make personal decisions, laws
that prohibit or restrict abortion discriminate on the basis of sex in
violation of the Fourteenth Amendment's Equal Protection Clause. 

All of the world's major religions regard abortion as a theological issue,
although their doctrines on the issue differ. Some religions teach that
abortion is a sin; others, that it is a woman's duty if a pregnancy imperils
her life or health. Bans on abortion force all citizens to conform to
particular religious beliefs. Thus, the ACLU believes that such laws
violate the First Amendment's Free Exercise Clause, which prohibits
governmental encroachment on an individual's right to act according to
her own beliefs or conscience. Abortion bans that establish, as a matter
of law, that a fetus is a person violate the First Amendment's stricture
against "an establishment of religion." 


---
Have restrictions on abortion always existed?
---

No. Abortion was legal under common law -- except in late pregnancy --
for hundreds of years, including the period when our Constitution was
written. 

Not until the late 1800s did a movement seeking to curtail women's
reproductive choices arise in the United States, spearheaded by two
groups: protestant nativists and medical doctors. The nativists opposed
abortion out of fear that permitting limits on childbearing would cause the
nation's white Protestant population to be "overrun" by ignorant
Catholics, who had been entering the U.S. in great numbers since the
1830s and '40s. Doctors opposed it partly because they wanted to
exclude midwives and traditional practitioners from performing  abortions
or any other medical practice, and partly because abortion in those days
raised legitimate health concerns. 

Societal changes also spurred opposition to abortion. The average size
of families was shrinking, and the movement for women's suffrage and
equality that had emerged in the 1840s was growing. These
developments fueled fears of an imminent breakdown in women's purely
domestic roles. 

All of these factors prompted the passage of anti-abortion laws. But only
in the late 20th century have anti-choice forces based their support for
such laws on the concept of protecting the fetus as a person.

---
Shouldn't the abortion question be left to state legislatures, or voted on
by the people in referenda?
---

No. The Bill of Rights guarantees that fundamental rights cannot be
abrogated by the will of the majority. For example, even if the majority of
a state's citizens wanted to ban the practice of Catholicism, the
constitutional right to free exercise of religion would forbid the legislature
from enacting such a ban. Similarly, the privacy right that encompasses
reproductive freedom, including the choices of abortion and
contraception, cannot be overruled by referenda or legislation. 

Moreover, we learned during the years before _Roe v. Wade_ how
women suffered in states where abortion was illegal. Affluent women
were able to obtain safe abortions by traveling to states where they were
legal, while poor, rural and young women -- a disproportionate number of
them women of color -- were left to dangerous, back-alley abortions or
forced childbirth. Such discriminatory conditions are unacceptable.  


---
Do abortion bans also outlaw birth control?  
---

Sometimes. Criminal abortion laws that define a fertilized egg as a
"person" outlaw birth control methods that sometimes act to prevent
pregnancy after fertilization, such as the intrauterine device (IUD),
Norplant and the most popular birth control pill. 

In addition, because abortion bans are criminal statutes that provide for
long jail terms, when implemented they have a chilling effect on
contraceptive research and other reproductive technologies, such as _in
vitro_ fertilization.  


---
Why are poor women and women of color especially hurt by anti-choice laws? 
---

In 1972, before _Roe v. Wade_, 64 percent of the women who died from
illegal abortion were women of color. Middle-class and white women
could more readily travel to obtain a legal abortion, pay a private
physician to perform it, or convince typically all-white hospital committees
that the procedure was necessary to preserve their mental health (one of
the claims under which some states allowed abortion before _Roe_).
Poor and nonwhite women would once again suffer, die or bear
unwanted children in disproportionate numbers if the Supreme Court
were to overturn _Roe_. 

In addition, it is low-income women and, therefore, a disproportionate
number of nonwhite women, who suffer the most when the government
prohibits the use of public funds for abortion and abortion information, or
otherwise blocks women's access to abortion. Indeed, the restrictive laws
that govern public funding of medical care in effect coerce poor women
to "choose" childbirth over abortion.


---
Why shouldn't the government be able to force a woman to carry a
pregnancy to term for the sake of a fetus? 
---

Our courts have always held that the government cannot compel an
individual to use his or her body as an instrument for preserving people
who are already born, much less for preserving a fetus in the womb. For
example, the government cannot force a relative of a child afflicted with
cancer to donate bone marrow or an organ to the child, even if the child
is sure to die without the donation. 

Obviously, if the state cannot force someone to undergo a bone marrow
or organ transplant for a person already born, it cannot force a woman to
continue a pregnancy that might entail great health risks for the sake of a
fetus. As the Court of Appeals for the District of Columbia stated in a
1989 decision, "surely a fetus cannot have rights superior to those of a
person who has already been born." 

Enforcement of the idea that a fetus has legal rights superseding those
of the woman who carries it would make pregnant women second-class
citizens with fewer rights, and more obligations, than others. Moreover,
application of the "fetal rights" concept has already had devastating
effects on women's right to bodily integrity. For example, cancer patient
Angela Carder, forced by the District of Columbia Superior Court to
undergo a caesarean delivery of her 26-week-old fetus, died prematurely
as a result. Under the banner of "fetal rights," pregnant women have
been prosecuted for failing to follow medical advice, and even for failing
to get to a hospital quickly enough after the onset of labor. The concept
also inspired industrial employers to adopt "fetal protection" policies,
whereby the capacity to become pregnant, and pregnancy itself, became
the bases for closing off certain jobs to all women of childbearing age
who refused to be sterilized. Fortunately, the Supreme Court struck down
this discriminatory practice in a 1991 decision.


---
Shouldn't pregnant women who drink or use other drugs be prosecuted
for "child abuse"?
---

Absolutely not, for several reasons. Prosecutions of women for their
behavior during pregnancy threaten all women's rights because, again,
they are based on the "fetal rights" concept. Acceptance of that concept
in law could bring about government spying and restrictions on a wide
range of private behavior, in the name of "fetal protection." Having one's
privacy invaded would become the price of pregnancy. 

          ==========================================
          "One's right to life, liberty.... free speech.... freedom of
          worship and assembly, and other fundamental rights may not
          be submitted to vote; they depend on the outcome of no
          elections."

          (1943 Supreme Court decision in _West Virginia State Board
          of Elections v. Barnette_)
          ==========================================


Prosecutions of pregnant women for allegedly harming their fetuses
through drug use contribute nothing to solving the problem of drug
abuse. Instead, they create a climate of fear that deters pregnant women
from seeking prenatal care and from informing doctors about their drug
use. The waste of taxpayers' money on these prosecutions is especially
cynical, given the scarcity of prenatal care services for poor women.

Although 85 percent of the people who use drugs are white, 80 percent
of the women criminally prosecuted for drug use during pregnancy are
women of color. At least one study showed that African American women
are ten times more likely than white women to be reported to civil
authorities for allegedly harming a fetus by using drugs.

What would really help pregnant women, and help them deliver healthy
babies, is access to affordable drug treatment programs. Pregnant
women are often excluded from the few such programs that exist.


---
Why do laws that require parental involvement in a minor's abortion
decision infringe upon fundamental rights?
---

The Constitution protects all of us but especially those who are
powerless to protect themselves. A minor who has good reasons for not
wanting her parents to know she is pregnant is just such a powerless
person.

Laws that require young women to inform their parents before obtaining
an abortion are, at best, unnecessary since most young women
automatically turn to their parents without prodding from the law. At
worst, such laws are tragically misguided. Consider the plight of the
underaged who become pregnant through incest (a 1970s study showed
that, of girls 12 years old and younger seeking abortions, 65 percent
were victims of incest). Confidentiality in such cases can be a life or
death matter: In 1989, the day before she was scheduled to obtain an
abortion, 13-year-old Spring Adams was shot to death by her father.
Family members claimed he had been feeling guilty about impregnating
his daughter.

Pregnant minors who cannot turn to their parents need extra legal
protection that ensures their access to safe, confidential abortions, rather
than laws that limit such access, since minors already face greater
economic and privacy barriers to medical care than adult women do. (For
more information about parental notification/consent laws, see ACLU
Briefing Paper #7, "Reproductive Freedom: The Rights of Minors.")


---
In what ways have the opponents of choice attacked the right to choose
abortion and birth control?
---

The right to choose has been under attack ever since contraception and
abortion were first legalized. But the attacks have become more common
and more extreme in recent years, in part because our last two
presidents have supported them. They have taken the following forms:

Opponents of choice have tried to limit the ability of federal or state
health care programs to deliver abortion information and services to low-
income women. First, in the late 1970s, Congress prohibited medicaid
coverage of abortion even though Medicaid fully funds all other health
care, including childbirth. In 1980, the Supreme Court fund this
discriminatory policy to constitutional. Since then, the federal government
and many states have limited access to abortion and abortion information
in a wide range of public programs. In 1991, the Supreme Court upheld
federal regulations forbidding the staffs of family planning clinics that
receive federal funds under Title X of the Public Health Service Act from
providing their patients with accurate information about, or referrals for,
abortion. States have erected such obstacles as mandatory waiting
periods, restrictions on late abortions, parental notification/consent laws
and laws that force doctors to give anti-abortion lectures, or that require
married women to involve their husbands in their abortion choice. These
laws directly restrict women's right to choose, and by increasing medical
costs and physicians' liability, make access to abortion more difficult. 

Some states (Louisiana and Utah, for example) have enacted laws that
criminalize nearly all abortions. These laws literally turn back the clock to
the days before _Roe_ when physicians, and sometimes patients, faced
jail for performing and seeking abortions.


---
What can I do to help protect reproductive choice? 
---

Some cases headed for Supreme Court review could well lead to the
total elimination of constitutional protection for the fundamental right to
choose abortion and allow states, once again, to ban abortion and birth
control. If this happens, Congress can pass a constitutional amendment
or enact a federal law, which would preempt state laws, to protect
reproductive choice. You can help preserve the right to choose by urging
your Congressional representatives to support federal protection of this
right for all women, without exception, through the Freedom of Choice
Act and the Reproductive Health Equity Act, and by letting your state
legislators know that you support reproductive choice. For more
information, contact your local ACLU or the national ACLU Reproductive
Freedom Project.


ACLU
American Civil Liberties Union
132 West 43rd Street
New York, NY 10036


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aclu.aclu
=================
* Guardian of Liberty: American Civil Liberties Union -- ACLU Briefing Paper #1

=================
aclu.history
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* A History of the ACLU -- Ira Glasser Speech

A transcript of a speech by Ira Glasser (ACLU national director, at the time),
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details the history of the ACLU and its work.

=================
aids.aclu
=================
* AIDS and Civil-Liberties -- ACLU Briefing Paper #13

=================
artistic-freedom.aclu
=================
* Artistic Freedom -- ACLU Briefing Paper #14

=================
bill-of-rights.history.aclu
=================
* A History of the Bill of Rights -- ACLU Briefing Paper #9

=================
campaign-92.aclu
=================
* Campaign for the Bill of Rights '92 -- ACLU

The American Civil Liberties Union's planks for its "Campaign for the
Bill of Rights '92". The planks are 1) a national campaign against
bigotry and racism, 2) constitutional protection for a woman's right
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=================
censorship.survey
=================
* Censorship of Books at Public Schools -- Survey Results

=================
church-and-state.aclu
=================
* Church and State -- ACLU Briefing Paper #3

=================
crime.aclu
=================
* Crime and Civil Liberties -- ACLU Briefing Paper #2

=================
drug-testing.workplace.aclu
=================
* Drug Testing in the Workplace -- ACLU Briefing Paper #5

=================
english-only.aclu
=================
* "English Only" -- ACLU Briefing Paper #6

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faq.pointer
=================
* Pointer to Civil Liberties FAQ

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=================
freedom-of-expression.aclu
=================
* Freedom of Expression -- ACLU Briefing Paper #10

=================
freedom.essay
=================
* Essay on the Freedoms Protected by the Bill of Rights

An essay by Richard Criley of the Bill of Rights Foundation, examining the
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=================
human-rights.un
=================
* Universal Declaration of Human Rights -- United Nations

The full text of the Universal Declaration of Human Rights, adopted by
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=================
lie-detectors.aclu
=================
* Lie Detector Testing -- ACLU Briefing Paper #4

=================
pledge.history
=================
* A History of the Pledge of Allegiance

An essay examining the origins of the Pledge of Allegiance and the history
of its introduction into public schools, written by John W. Baer of
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=================
reproductive-freedom.aclu
=================
* Reproductive Freedom -- ACLU Briefing Paper #15

=================
reproductive-freedom.minors.aclu
=================
* Reproductive Freedom: The Rights of Minors -- ACLU Briefing Paper #7

=================
top.art.censors.1992
=================
* Top Art Censors of 1992

An article reporting the ACLU's list of the "1992 Arts Censors of
the Year."  The list cites governmental officials and private
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  Anne-Imelda Radice (chair of the NEA),
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  and The Rev. Donald Wildmon, head of the American Family Association.


=================
women-against-censorship
=================
* Women Against Censorship -- Excerpts

Edited by Varda Burstyn. Douglas & McIntyre Limited, 1985.

=================
womens-rights.1848
=================
* Declaration of Sentiments from 1st Women's Rights Convention

in the United States, held in Seneca Falls, New York, the nineteenth
and twentieth of July, 1848. Among the famous who signed are Elizabeth
Cady Stanton, whose home in Seneca Falls is now part of the Women's
Rights National Park, and Frederick Douglass.

=================
=================
Last update
Thu Nov 19 16:07:22 EST 1992
-- 
Carl Kadie -- I do not represent any organization; this is just me.
 = kadie@cs.uiuc.edu =
Newsgroups: talk.abortion,talk.religion.misc,alt.atheism