Motley Moose – Archive

Since 2008 – Progress Through Politics

The Trump Card: the Joker in the Deck

Donald Trump unabashedly calls himself a genius.


Mr. Trump’s alleged genius, if it exists, clearly does not extend to Constitutional jurisprudence.

Well, that’s a pretty strange way of getting to pro-life. I mean, it’s a very unique way of asking about pro-life. What does that have to do with privacy? How are you equating pro-life with privacy?


The right to privacy is the foundation of a woman’s right to decide whether to carry a pregnancy to term.  The landmark case of Roe v. Wade, 410 U.S. 113 (1973) recognized the right of a woman to make that decision in the first trimester.……

In arguing against the constitutionality of the Texas abortion statute, the Roe appellant relied to a large degree on the holding in a Supreme Court decision that issued eight years earlier,  Griswold v. Connecticut, 381 U.S. 479 (1965).

The principal thrust of appellant’s attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal “liberty” embodied in the Fourteenth Amendment’s Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); id. at 460 (WHITE, J., concurring in result); or among those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S. at 486 (Goldberg, J., concurring).

In reaching its decision, the Roe Court also relied on Griswold.

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 [p153] (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and childrearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.

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. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

In Griswold, the Supreme Court of the United States recognized the right to privacy in reproductive matters, striking down an 1879 statute that criminalized the provision of contraceptives.

The Connecticut statute had provided that:

any person who uses any drug, medicinal article or instrument for the purposes of preventing conception shall be fined not less than forty dollars or imprisoned not less than sixty days.

The Connecticut law further provided that:

any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principle offender.

So, physicians and the employees of Planned Parenthood could be charged just as well as a husband or wife who sought contraceptives.  So could the pharamacist who filled prescriptions or sold condoms or diaphragms.

The Griswold in Griswold v. Conecticut was Estelle Griswold, the executive director of the Planned Parenthood League of Connecticut.  She and Dr. C. Lee Buxton, a professor at Yale University’s Medical School, had been arrested by local authorities for violating the law.  At trial, they were found guilty as accessories to providing illegal contraception. Each was fined $100.

Ms. Griswold and Dr. Buxton appealed to the Supreme Court of Errors of the State of Connecticut.  Their theory on appeal was that the statute in question violated the federal Constitution. The Connecticut high court upheld the conviction.  Ms. Griswold and Dr. Buxton then appealed to the Supreme Court of the United States.

The Supreme Court, voting 7-2, struck down the Connecticut statute.  Justice William O. Douglas, a personal hero of mine, wrote the majority decision.  That decision held that the law violated the right to marital privacy and that Connecticut could not enforce the statute against married couples, and by extension, to clinics, physicians, and pharmacists who provided them with contraceptives.

Justice Douglas wrote that the specific guarantees enshrined in the Bill of Rights have penumbras …. emanations from th[o]se guarantees that help give them life and opinion.

The spirit of the First Amendment (which guarantees free speech and free religious observance or non-observance), the spirit of the Third Amendment (which prohibits the forced quartering of troops), the spirit of the Fourth Amendment (which grants freedom from unreasonable searches and seizures), the spirit of the Fifth Amendment (which guarantees the freedom from self-incrimination), and the spirit of the Ninth Amendment (which recognizes other rights), as assertable against each of the several States by way of the Reconstruction-Er
a Fourteenth Amendment, all act to create a general right to privacy that the States cannot unduly infringe.

This right to privacy is fundamental with respect to the intimate lives of spouses, because it:

is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of our civil and political institutions.

Because a married couple’s use of contraception was a fundamental right, strict scrutiny applied.  Connecticut had to prove to the Court that its law was compelling and absolutely necessary.   Connecticut failed to satisfy that heavy burden of proof, so the Supreme Court struck down the statute.……

Roe employed the same analysis:

Where certain “fundamental rights” are involved, the Court has held that regulation limiting these rights may be justified only by a “compelling state interest,” Kramer v. Union Free School District, 395 U.S. 621, 627 (1969); Shapiro v. Thompson, 394 U.S. 618, 634 (1969), Sherbert v. Verner, 374 U.S. 398, 406 (1963), and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. Griswold v. Connecticut, 381 U.S. at 485; Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307-308 (1940); see [p156] Eisenstadt v. Baird, 405 U.S. at 460, 463-464 (WHITE, J., concurring in result).


B. The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus. See Dorland’s Illustrated Medical Dictionary 478-479, 547 (24th ed.1965). The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were respectively concerned. As we have intimated above, it is reasonable and appropriate for a State to decide that, at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman’s privacy is no longer sole and any right of privacy she possesses must be measured accordingly.

A common criticism of Roe and of Griswold, especially among “Strict Constructionists” and “Original Intenters” like Associate Justices Scalia, Thomas, and Alito, and Chief Justice Roberts, is that nowhere in the Constitution is there any language explicitly creating a right to privacy in matters of reproduction.

That is certainly true.  The Roe decision itself recognizes this.  See the quoted portion above.  The lack of an explicit clause in the Constitution creating a right of privacy is not fatal.  

There is also nothing in the Constitution that explicitly authorizes the creation of, e.g., the National Aeronautical and Space Administration, or the Federal Aviation Administration, or that authorizes the Federal Government to create an Air Force, or nuclear weapons.  Are NASA, the FAA, the Air Force, and the weapons of the Strategic Air Command and the Trident submarine fleet unconstitutional?  (The Constitution does not say anything about submarines, either.)

Similarly, the Constitution did not authorize the Federal Government to promote the construction of transcontinental railroads and telegraph lines.  See, An Act to aid in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean, and to secure to the government the use of the same for postal, military, and other purposes, 12 Statutes at Large 489 (1862).…

Were the Union Pacific, Southern Pacific, and Northern Pacific Railroad the fruit of an unconstitutional tree?


Putting aside the issue of whether the Supreme Court got it right in deciding that married couples have a Constitutional right of privacy in matters of reproduction (and by extension, whether consenting adults have a Constitutional right of privacy with respect to sexual activity), if there is no Constitutional right of privacy in such matters, then Griswold falls, and so does Roe v. Wade.

Donald Trump’s Constitutional knowledge is an Epic Fail.


  1. Shaun Appleby

    Donald is chasing ratings, not votes.  I wouldn’t be surprised to see a few more show-ponies come and go before the Republicans get down to business.

  2. of the anti-abortion herd have no idea of the constitutional underpinnings for Griswold and Roe; they oppose it simply because it’s agin (their/their pastor’s interpretation of) the Bible, by gum, and that’s good enough for them.

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