THE REACH OF ROE, HOW THE COURT'S RULING HAS TRANSFORMED PRIVACY RIGHTS

From the moment the Supreme Court handed down Roe v. Wade, it was apparent
that the ruling's impact would be vast, that this landmark of landmarks
would change our politics, our culture and even our social relationships in
a way rivaled by only a handful of decisions in the court's history.

Twenty-five years later, the Roe decision looks even more influential. Its
underlying rationale of a constitutional right to privacy has been used to
establish a new right to "bodily integrity," as judges call it -- a concept
of physical freedom that is becoming increasingly important to some of the
pressing issues of our time.

In the years since its creation, Roe's right to privacy has been invoked by
the Supreme Court to forbid states from forcing terminally ill people to
stay on respirators or to endure other artificial life support. It has been
used to stop prison officials from compelling mentally ill inmates to take
anti-psychotic drugs. Its notion of physical liberty has given severely
retarded adults in institutions the grounds to claim "freedom of movement"
to protect them from bodily restraint.

In other cases simmering throughout the country, lawyers are arguing that
the right to bodily integrity derived from Roe should prohibit prosecution
of women when they give birth to babies who test positive for drugs, and
that this right allows the use of marijuana for medicinal purposes.
Attempts to apply Roe principles to cases in the future -- involving
genetic testing, for example -- are sure to surface.

In an era of advanced technology and medical breakthroughs, where the
physical self can be invaded, monitored and altered in ways never thought
possible a quarter-century ago, Roe's privacy right and its offspring could
be used as a shield against government interference in a range of new acts
and experiences.

Only with time has it become clear how a rationale that justified the
legalizing of abortion has gained legitimacy in the courts, if not in the
minds of its many critics.

The expansion of Roe v. Wade also reveals the wonder (some would say evil)
of the U.S. constitutional system: a principle of questionable (some would
say illegitimate) constitutional parentage, contained in a discrete case
and involving a particular set of facts, bursts and grows to affect new
situations and new times.

With Americans believing so dearly in a right to be left alone, it may
surprise many people that the Constitution does not include the word
"privacy" and offers no explicit mention of any right to it. When Justice
Harry A. Blackmun, the author of Roe, invoked such a right to strike down
laws banning abortion, he was relying on no specific wording in the Bill of
Rights or in any previous court decision.

In varying contexts, he observed, the court or individual justices had
found at least the roots of a general right to privacy. It could be
discovered in the First Amendment's right of association; the Fourth
Amendment's protection against unreasonable searches and seizures; the
Fifth Amendment's guarantee against self-incrimination; and in the
open-ended notion of "rights" mentioned in the Ninth Amendment. ("The
enumeration in the Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people.")

He also drew on the "penumbras" and "emanations" of several guarantees in
the Bill of Rights, as Justice William O. Douglas famously wrote for the
court in the 1965 case of Griswold v. Connecticut, which struck down a ban
on contraceptive devices.

Certainly Blackmun could refer to some past variations of the privacy
question, but the reality was that the court had never before articulated a
constitutional basis for a sweeping right to privacy or personal autonomy,
let alone to an abortion. Blackmun ultimately rested his case on the
Fourteenth Amendment's concept of personal liberty, saying it was "broad
enough to encompass a woman's decision whether or not to terminate her
pregnancy." Based on that rationale, states could no longer make abortion a
crime.

In 1992, when the Supreme Court reaffirmed abortion rights in Planned
Parenthood of Southeastern Pennsylvania v. Casey, the justices accepted
Blackmun's analysis and elaborated on how a constitutional right to privacy
protects the physical self. The court's main opinion, signed by Justices
Sandra Day O'Connor, Anthony M. Kennedy and David H. Souter, said it is
"settled now, as it was when the court heard arguments in Roe, that the
Constitution places limits on a state's right to interfere with a person's
most basic decisions about family and parenthood, as well as bodily
integrity." The justices went on to declare that "the right to define one's
own concept of existence, of meaning, of the universe, and of the mystery
of human life" is at the heart of one's liberty and freedom.

Of course, nothing was "settled" before 1973, as many legal experts have
observed. Some of the earlier cases invoking protection for bodily choices
arose in the criminal law context, as in 1952 when the court denounced
police for pumping the stomach of a suspect to recover capsules of drugs he
had swallowed at the time of his arrest.

While Roe necessarily focused on a woman's autonomy and choices about
procreation, says Columbia University law professor Michael C. Dorf, "the
case has been subsequently connected with a right to bodily integrity
possessed by all persons."

"What Roe v. Wade did was open the door for the Supreme Court to provide
protections for individuals in society to control their own bodies," says
University of Pennsylvania law professor Seth F. Kreimer. "As we move
toward the twenty-first century, with the technological possibilities for
government to control people, to involve itself in people's health care and
to infringe on physical liberty, it has become enormously important for the
Constitution to provide a check on this interference."

The justices plainly have been relying on Roe's privacy right in other
cases that involve threats of government intrusion. But, as Kreimer
observed, only recently would a majority say so explicitly. Referring to a
decision last year on physician-assisted suicide, Kreimer noted that Chief
Justice William H. Rehnquist (who dissented in both Roe and Casey)
specifically referred to a right of bodily integrity, citing the abortion
cases, to support the proposition that the Constitution protects the most
intimate choices a person makes in a lifetime.

Perhaps the greatest dilemmas involving individual rights since Roe have
been the "right-to-die" and assisted-suicide cases. The justices in 1990
took up the case of Nancy Cruzan, who was in a vegetative state as the
result of a 1983 car accident and required feeding and hydration tubes to
stay alive. Her parents wanted to remove the tubes, but the hospital
refused to do so. After the family sued, the Missouri Supreme Court ruled
that the state's interest in preserving life demanded that the parents'
request be met only if they showed by clear and convincing evidence that
their daughter would have wanted the tubes removed.

The Supreme Court agreed with this requirement, in an opinion by Rehnquist,
but not before finding a constitutional guarantee that permits people in
certain circumstances to refuse medical treatment. The justices thus
extended the bodily integrity principle to allow patients (or their
families) to reject lifesaving care. In a concurring opinion, O'Connor
wrote, "Because our notions of liberty are inextricably entwined with our
idea of physical freedom and self-determination, the court has often deemed
state incursions into the body repugnant" to the Constitution.

In another 1990 case, the justices heard the protests of Walter Harper, an
inmate in Washington state who was diagnosed as suffering from a
manic-depressive disorder. Corrections officials had wanted him to take
anti-psychotic drugs against his will. While the court said the state
could, in Harper's case, force an inmate to take the drugs, Kennedy wrote
for the majority that prisoners nevertheless have a "significant liberty
interest" in being free of unwanted medication.

By last year, the right of bodily integrity was so ingrained that it was a
starting point for the court in its approach to physician-assisted suicide
cases, reviewing whether states could outlaw the practice. In its rulings
last June, the court said there was a long tradition protecting personal
autonomy and defending people from unwanted medical treatment. But it
ultimately allowed the states of Washington and New York to criminalize
physician-assisted suicide, with Rehnquist observing that the country's
history and legal tradition justified a prohibition on doctors helping
people kill themselves. He said no general right to assisted suicide can be
drawn from the Constitution.

The court left unanswered the question of whether someone suffering
intensely may be able to claim an individual right to assisted suicide.
"Dying will be different for each of us," O'Connor wrote. "For many, the
last days will be spent in physical pain and perhaps the despair that
accompanies physical deterioration and a loss of control of basic bodily
and mental functions."

As last term's cases demonstrate, there is no absolute legal right to use
one's body as one pleases. Notably, the current court has rejected that
argument in the context of homosexual relationships. It is also likely to
be cautious in finding any more new "implicit" rights in the Constitution.

But few people are making predictions. "Roe created a privacy right in a
context that no one would have anticipated," said Jay Alan Sekulow, a
lawyer at the American Center for Law and Justice who has long fought
abortion rights and now opposes any expanded rights for assisted suicide or
same-sex marriage. And, he said, it has "led to a progeny no one could have
thought."

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