ROE-WADE.003

Stewart, J. -- Concurring



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[For concurring opinion of MR. CHIEF JUSTICE BURGER, see post, p. 207.]



[For concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 209.]



[For dissenting opinion of MR. JUSTICE WHITE, see post, p. 221.]



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 Iaws." 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 [*168] 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. [*169]



As Mr. Justice Harlan once wrote: "[T]he 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 [*170]

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 Amendment.



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 [*171] 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.



[Case overview (Syllabus)]



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1 Only Mr. Justice Harlan failed to join the Court's opinion, 372 U. S., at

733. [Return to text]



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 govermnental 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, 350-51 (footnotes omitted). [Return to text]



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. [Return to text]



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