THE RIGHT TO CHOOSE: A FUNDAMENTAL LIBERTY
ACLU Briefing Paper Number 15
"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
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
* How does the Constitution protect our right to privacy, including
reproductive freedom, if that right isn't explicitly named in the
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
* Why are poor women and women of color especially hurt by anti-choice
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
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 beforeRoe_ 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.
American Civil Liberties Union
132 West 43rd Street
New York, NY 10036
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