[In honor of Sen. Clinton's recent speech on abortion, generally well analyzed here, I offer a two part defense of Roe v. Wade. The defense argues that it was not an outlier, but fit intelligently into the precedents of the day. The second part will deal mainly with Justice White's dissent, which reflects those who are willing to accept some privacy rights, but feel abortion (and various other areas, including sexual relations) is somehow uniquely separate. It is unclear how this exactly is so, especially given how emphatic (and often sarcastic) such replies tend to be.]
The suggestion by some that Roe v. Wade, which declared it a constitutional right for women to be able to choose to have an abortion after a consultation with her physician (with various conditions allowed), was not an opinion that shot out of the ground like Athena from the head of Zeus.
A glance at precedent, lower court opinions, concurring opinions (and a law review article by a retired justice), and the abortion decisions themselves show this to be so. Sadly, such an examination is often not supplied, assisting the "anti-Roe but supportive of abortion rights per se" crowd. It also ignores history and possibilities to clarify what exactly went on here.
As Justice Douglas notes in his concurring opinion in U.S. v. Vuitch:
Abortion touches intimate affairs of the family, of marriage, of sex, which in Griswold v. Connecticut [was] held to involve rights associated with several express constitutional rights and which are summed up in "the right of privacy."
Griswold involved the use of contraceptives at home among married couples, while a later case applied its overall principle in striking down a law dealing with unmarried couples. Douglas' opinion as well as Roe itself cites various opinions that reaffirm that the Constitution in some sense protects rights touching upon family, childbearing, and marriage life (recent opinions protecting rights of illegitimate children had some relevance here as well).
He also cites a law opinion by retired Justice Clark that broadly read Griswold, suggesting it also applies to abortion decisions (as well as things such as determining one's diet) because the right to control over childbearing logically does not end at conception. Also, as will be noted below, the countervailing reason not to do so touched upon matters of religious belief.
Likewise, the unborn (as one lower court opinion noted, no matter how you define it -- a human being or a bunch of cells) traditionally has not been given protection of persons, surely not to the degree that it would trump the rights of those born. Lower federal and state courts that dealt with the question of abortion rights in the late 1960s and early 1970s generally also felt the right to privacy covered the abortion decision. As Roe itself noted, arguably in lieu of further analysis:
Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.
Where was this right of privacy found? Generally, it was considered to be a fundamental liberty inherent in our traditions, though various provisions of the Constitution helped determine its contours. For instance, various opinions suggested the abortion decision was ultimately a moral choice that was largely outside of the purview of the state. Quoting various authorities including Clark and psychoanalyst Erik Erikson, Justice Douglas' opinion in Vuitch noted that "[a]bortion statutes deal with conduct which is heavily weighted with religious teachings and ethical concepts."
Thus, he argued that the law involved (allowing abortions to protect the health of the mother) was just too vague because moral beliefs would complicate how it was applied. Ultimately, when Roe was upheld if somewhat limited in Casey, the fact a moral choice was involved was a central reason why it was left to the woman. One can see how the First Amendment is thus a factor.
Roe itself also hinted at equal protection concerns, explaining (as quoted in Justice Stewart's concurrence) how "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."
The majority opinion itself basically said that such concerns were "fundamental" ones, thus the protection of a fundamental right to choose not to have a child. This right was put in "privacy" terms, which in this context meant basic autonomy over certain basic matters, especially things such as family life.* The fact that anti-abortion laws prevented even married couples from having abortions suggest just how broadly such interests were infringed. The "liberty" aspect of the Due Process Clause was its starting place with a Ninth Amendment assist.
A third possible "textual home" (Ronald Dworkin uses this term) is the Fourth Amendment, which was referenced both by Justice Harlan** and three justices in Griswold itself (quoting him). Justice Harlan argued that the Fourth Amendment's reference of the "home" protected more than a property right, but the privacy of family life in general. Thus, various citations in cases of a private sphere of family life into which the government cannot enter.
This does not mean that the Fourth Amendment alone protected familial privacy, but it at least highlights its importance, which is useful when determining the unenumerated liberties (as reflected in the Fifth, Ninth and Fourteenth Amendments) protected by the Constitution. And, thus it is not just a search or seizure per se, but the general principle behind the amendment itself that we must obey. Again, Justice Harlan and others cite various precedents making this very point.
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* Dissenters have a tendency to willfully or negligently play with the word "private." For instance, Justice Rehnquist in his dissent in Roe notes that abortions take place in public clinics in the presence of doctors and so forth. This is not the point. The "privacy" involved is basically twofold: the right to make decisions of a certain intimate nature and/or to have control over one's person or certain areas/objects for which one has a reasonable expectation of privacy.
For instance, doctor/patient confidentiality suggests the private nature of the association, even if it is in a doctor's office. Likewise, AA meetings are generally private, even if many people are present. Finally, sure, we are not able to do everything in private. The long term neglect of spousal abuse suggests the dangers of absolutism. Nonetheless, as with other important interests, special care still is often warranted when "privacy" is involved.
** Justice Harlan's dissent in Poe v. Ullman (covering much the same ground as Griswold, but the majority there avoided ruling on the merits) is a judicial masterpiece that has been quoted by many opinions ever since (including Casey). It is a conservative defense of a broad reading of "due process" with Harlan's brief remarks in Griswold itself a rejoinder to those who feel the alternative is really so much better in practice.
The problem for certain liberals is that the opinion narrowly supports marital privacy, though its support of an evolving view of liberty as well as its basic principles can deal with some such concerns. It is unclear, however, if Harlan would have supported the striking down of a law against unmarried couples using contraceptives and/or an anti-abortion law. The breadth of the law involved in Roe, however, might have troubled him. Nonetheless, precedent guides, it does not force us to follow all its aspects.