Marco Rubio: Women's Right Of Privacy Decision "Egregiously Flawed"

GOP presidential hopeful Sen. Marco Rubio (FL) said the historic Roe v. Wade decision that "women have a right of privacy" to make personal reproductive decisions is “historically and egregiously flawed.” Rubio made the statement in a speech Friday before the National Right to Life Committee’s annual convention in New Orleans. Rubio promised he would fight to restrict women’s right of privacy to make personal decisions “at home and around the world.”

At the time Roe v. Wade was decided in 1972, most states, including Texas, severely restricted or banned the practice of abortion. Texas' law banned all abortions except those necessary to save the life of the mother.

In 1970, lawyers Linda Coffee and Sarah Weddington brought a lawsuit on behalf of a pregnant woman, Dallas, Texas area resident Norma L. McCorvey ("Jane Roe"), claiming a Texas law criminalizing most abortions violated Roe's constitutional rights.

The lawsuit was filed against Henry Wade, Dallas Country District Attorney, in a Texas federal court. The federal court ruled Texas' law violated the U.S. Constitution. Wade appealed to the U.S. Supreme Court, which reviewed the case through 1971 and 1972.

In the 7-2 Roe v. Wade majority decision, Justice Harry Blackmun wrote, the Texas law banning abortion violated Jane Roe's constitutional right to privacy to make personal reproductive decisions concerning her own body.

The Court found the U.S. Constitution's First, Fourth, Ninth, and Fourteenth Amendments protect an individual's "zone of privacy" against state laws and cited past cases ruling that marriage, contraception, and child rearing are activities covered in this "zone of privacy." The Court further found this "zone of privacy" was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

The majority opinion stated prenatal life was not within the definition of "persons" as used and protected in the U.S. Constitution and that America's criminal and civil laws only sometimes regard fetuses as persons deserving protection. Culturally, while some groups regard fetuses as people deserving full rights, no consensus exists. The Court ruled that Texas was thus taking one "view" of many. Protecting all fetuses under this contentious "view" of prenatal life was not sufficiently important to justify the state's banning of almost all abortions.

The 14th Amendment says the state shall not deprive any person of life, liberty, or property, without due process of law. Due process applied here means the state must demonstrate it has an overriding public interest in depriving women of the right to use contraceptives or seek an abortion. The Court did not find a state interest that overrides an individual's right of liberty to make private personal decisions in the Roe case.

The 1972 Roe decision was build on the foundation of the court's 1965 Griswold v. Connecticut decision. Griswold established a constitutional right of privacy involving the use of contraceptives. Before 1965, most states outlawed the purchase and use of contraceptives.

In 1965, Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, a physician and professor at Yale, were arrested and fined $100 for giving contraception advice to married couples.

A Connecticut law at the time prohibit the use of "any drug, medicinal article or instrument for the purpose of preventing conception" and punished those who "assists, abets, counsels, causes, hires or commands another" to do so. It was not a crime to sell birth control devices, but it was a crime to use birth control or any drug or medical instrument for the purposes of preventing conception.

Griswold and Buxton sued the State of Connecticut claiming the law violated their constitutional "right of privacy" to be counseled in the use of contraceptives.

In a 7-2 decision written by Justice William Douglas, the Court ruled the state law against contraceptive use violated a "zone of privacy" that was inherent in the Constitution. Notably, the Court found constitutional protections emitting from the "penumbras" and "emanations" within several amendments to the Constitution and the Bill of Rights.

Although the U.S. Constitution does not explicitly state a general right to privacy, the Court found a couple's right to contraceptives stems from a "penumbras" (rights guaranteed by implication in the constitution, also called the implied powers of a rule) found in the Bill of Rights and the First, Third, Fourth, and Fifth Amendments to the U.S. Constitution. The Fourth and Fifth Amendments were described as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life." A concurring majority opinion cited the Ninth Amendment to support the Court's ruling. The Ninth Amendment says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Under this "penumbras" argument the Court found various "zones of privacy" which, in this case, referred to "marital privacy" between a man and a woman to make and act on family planning decisions.

U.S. Supreme Court Justice Antonin Scalia said in a 2012 interview he believed that it is a “lie” that women have a "penumbra" constitutional right of privacy as defined in the 1972 Roe v. Wade decision and the 1965 Griswold v. Connecticut decision. The other three conservative justices also reject the idea that the constitution contains such implied rights. Justice Kennedy's position is less certain and may cast the possible fifth vote to overturn implied privacy-based rights, should the question again go before the court.

Sen. Rubio clearly concurs with Justice Scalia in his opinion that women have no right of privacy from government dictates on their own reproductive health decisions or reproductive functions of their body.