Thurgood Marshall’s Supreme Court service coincided with a transformative era in American constitutional law regarding reproductive rights and personal privacy. Although Brown v. Board of Education (1954) and other civil rights rulings first propelled Marshall to national prominence, he also played a significant role in cases that recognized and protected the constitutional right to privacy. This right—to determine personal matters without unwarranted government intrusion—has roots in the Court’s earlier decisions on marriage, contraception, and family life but was most famously expanded in the early 1970s with Roe v. Wade (1973). Over the years, Marshall joined or authored opinions affirming that personal autonomy in reproductive decision-making is a vital component of liberty under the Constitution. His unwavering stance on equal protection naturally extended to a view that personal dignity and bodily integrity demanded robust legal safeguards.
This section examines Marshall’s contributions to the development of privacy and reproductive rights. We begin by revisiting the legal foundation for privacy rights, laid by cases such as Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972)—both precedents that helped shape Marshall’s own jurisprudence. We then focus on Roe v. Wade, the landmark decision legalizing abortion nationwide, highlighting Marshall’s role in the majority and exploring his alignment with the Court’s broader right-to-privacy doctrine. From there, we delve into subsequent cases—Carey v. Population Services International (1977), Bellotti v. Baird (1979), and others—that clarified the scope of reproductive freedoms. Lastly, we consider how Marshall’s consistent advocacy for reproductive rights underscores the key themes of his constitutional philosophy: equality, human dignity, and a living interpretation of the Fourteenth Amendment.
By the time Marshall joined the Court in 1967, the jurisprudence of privacy—especially concerning reproductive choices—was already under construction. Although the Constitution does not explicitly mention “privacy,” earlier rulings had recognized a zone of individual autonomy implicit in various amendments.
Griswold v. Connecticut (1965)
Decided two years before Marshall took his seat, Griswold struck down a Connecticut law that banned the use of contraceptives, even by married couples. Writing for the majority, Justice William O. Douglas pointed to the “penumbras” and “emanations” of explicit Bill of Rights guarantees—particularly those in the First, Third, Fourth, Fifth, and Ninth Amendments—to argue that the Constitution protects marital privacy. While Marshall did not participate in Griswold, the decision set a vital precedent for recognizing that certain intimate decisions lie beyond the government’s reach.
Eisenstadt v. Baird (1972)
Building on Griswold, Eisenstadt extended the right of privacy to unmarried individuals seeking contraception. The Court emphasized that government cannot grant a right to one group (married couples) while denying it to another (unmarried persons) without running afoul of the Equal Protection Clause. Although Marshall was not a principal author of the opinion, he joined the majority, underscoring his consistent belief that the Constitution must adapt to protect personal liberties broadly. By endorsing the result, Marshall signaled that government intrusions into reproductive decisions raise significant constitutional concerns, independent of marital status.
Collectively, these cases laid the groundwork for an expansive understanding of privacy—one that would soon encompass the right to terminate a pregnancy. More than a decade of civil rights litigation had shown Marshall that laws often serve as vehicles of discrimination, and he recognized that reproductive regulations could target women inequitably, particularly those from marginalized communities. As a justice, he was predisposed to take a broad view of the Constitution’s protections, including those that secured individual choice in matters of procreation and family life.
The privacy right that began with contraception reached a milestone in Roe v. Wade, the watershed case holding that a woman’s decision whether to carry a pregnancy to term falls within the sphere of privacy protected by the Fourteenth Amendment. Although much of the spotlight has remained on Justice Harry Blackmun, who authored the majority opinion, Thurgood Marshall was a vital member of the 7–2 majority that recognized and codified this right.
The Legal Questions in Roe
Roe centered on a Texas statute that criminalized abortion except when necessary to save the mother’s life. A woman identified under the pseudonym “Jane Roe” challenged the law, asserting that it infringed on her fundamental right to determine what happens to her own body. The case thus forced the Court to confront not only the constitutionality of abortion restrictions but also the broader principle of whether personal decisions about procreation fall under the Constitution’s protection.
The Majority’s Reasoning
In an opinion emphasizing the Fourteenth Amendment’s Due Process Clause, Justice Blackmun located a “zone of privacy” encompassing a woman’s decision to terminate her pregnancy, particularly during the first trimester when state interests in fetal life and maternal health were less compelling. The Court devised a trimester framework:
First trimester: The decision must be left to the medical judgment of the woman and her physician.
Second trimester: The state may regulate abortion only to protect the health of the mother.
Third trimester: Once the fetus becomes viable, the state may regulate or even proscribe abortion, except where necessary to preserve the life or health of the mother.
Marshall’s Concurrence and Perspective
Although Marshall did not author a separate opinion in Roe, his assent to the majority was fully in keeping with his broader constitutional worldview. From a civil rights standpoint, he regarded reproductive choice as tightly bound to personal autonomy and equality. For women without economic or social advantages, the inability to access safe and legal abortion imposed disproportionate burdens, effectively perpetuating cycles of poverty and limiting their participation in public life.
Marshall’s background as an advocate for marginalized communities also influenced his view of state regulation of moral or health matters. He believed that laws restricting personal autonomy often carried hidden biases, punishing or controlling certain groups more harshly. By joining Roe, he affirmed that the Constitution’s commitment to liberty and privacy must extend to fundamental decisions about childbearing.
The initial victory in Roe did not settle all questions about the extent of reproductive rights. Over the following decades, the Supreme Court addressed a series of cases that tested the boundaries of state power to regulate abortion and contraception. Marshall, consistently positioned within the Court’s liberal wing, supported a robust interpretation of Roe and the privacy right that undergirded it.
Carey v. Population Services International (1977)
In Carey, the Court struck down a New York law that prohibited the distribution of contraceptives to minors under sixteen, barring anyone other than a pharmacist from distributing contraceptives and banning all ads for contraceptive products. The statute raised numerous constitutional issues, including free speech, minors’ rights, and privacy. The Court held that these restrictions unduly burdened individual autonomy, emphasizing that a state cannot deny fundamental privacy rights to teenagers solely on the basis of age.
Marshall joined the majority, agreeing that restricting access to birth control for adolescents was both unconstitutional and contrary to public health objectives. His participation reflected a broader conviction that the right to privacy transcends narrow demographic classifications and that states may not infringe such rights without demonstrating a compelling justification.
Bellotti v. Baird (1979)
This case examined a Massachusetts statute requiring unmarried minors to obtain parental or judicial consent before obtaining an abortion. Although the Court did not issue a single majority opinion, it established that states implementing parental consent requirements must provide an alternative judicial bypass procedure—ensuring that a minor with legitimate reasons to avoid parental notification can still obtain an abortion.
Marshall joined key parts of the plurality opinion that underscored the importance of preserving adolescents’ reproductive autonomy. He recognized that mandating parental involvement could, for some minors, lead to dire consequences, such as abuse or forced childbirth. His stance highlighted the constitutional principle that fundamental rights do not vanish when the individual in question is a minor, though states could impose narrowly tailored regulations recognizing minors’ maturity levels.
Thornburgh v. American College of Obstetricians & Gynecologists (1986)
Although later overshadowed by Planned Parenthood v. Casey (1992), Thornburgh was a crucial test of how far states could go in regulating the procedure post-Roe. The Pennsylvania law at issue required doctors to provide certain state-mandated information and reporting procedures, which critics argued were designed to discourage women from choosing an abortion. Marshall joined the majority in striking down several provisions, reinforcing the notion that the state could not impose burdensome regulations aimed at dissuading a constitutionally protected choice.
Each of these decisions refined the principles set forth in Roe, articulating how states could (or could not) regulate reproductive behavior and medical procedures without placing an undue burden on women. Marshall’s voting pattern in all these cases manifested a consistent belief in the importance of safeguarding personal autonomy against paternalistic or intrusive statutes. He was especially attuned to the interplay between reproductive restrictions and broader societal inequities—particularly for young, poor, or minority women, who were more likely to bear the brunt of strict regulations.
While his reputation as a civil rights lawyer might initially suggest that race-based Equal Protection claims were Marshall’s primary focus, his record on the Supreme Court demonstrates an equally steadfast commitment to individual liberty, particularly in matters of bodily autonomy and family life. Several key themes undergirded his perspective on privacy:
Bodily Integrity and Self-Determination
Marshall believed that the Constitution’s promise of liberty includes the freedom to make intimate, personal decisions without government intrusion. Control over one’s reproductive decisions—whether in choosing to have children or to prevent or terminate pregnancy—lay at the heart of that liberty. The notion of bodily integrity was not an abstraction for Marshall, but a tangible safeguard rooted in the Constitution’s text and history (particularly the Fourteenth Amendment’s Due Process Clause).
Suspicions of State Overreach
A product of his lifetime combatting discriminatory laws, Marshall was wary of any legislation purporting to regulate moral issues or health policies in a way that disadvantaged vulnerable populations. Legislation restricting abortion or contraception, in his view, often rested on majoritarian moral beliefs, which could marginalize those with fewer political resources. By consistently voting to invalidate such laws—or demanding that states provide substantial justifications—Marshall sought to ensure that the Constitution protected personal autonomy against governmental meddling.
The Intersection of Equality and Privacy
For Marshall, privacy rights intertwined deeply with equality concerns, particularly when considering laws that impacted women’s autonomy. While he regarded women’s rights as distinct from race-based discrimination claims, he recognized a shared constitutional principle: the government must not limit opportunities based on immutable or intimate characteristics. This perspective integrated the privacy doctrine with the Equal Protection Clause, underscoring that restrictions on reproductive choices risked perpetuating economic and social inequalities.
A Living, Adaptive Constitution
As discussed in earlier chapters, Marshall rejected static or originalist readings of the Constitution. He believed constitutional principles—especially those guaranteeing liberty, equality, and due process—must evolve alongside societal transformations. In the context of reproductive rights, he invoked the same logic: contemporary understandings of medicine, public health, and women’s social roles demanded a reading of the Constitution that robustly defended privacy in reproductive decision-making. In short, the Constitution’s promise must keep pace with “the evolving standards of decency” to remain relevant and just.
Although Marshall retired from the Court in 1991, the reproductive rights debate continued—and, in many ways, intensified—in subsequent years. The Court’s landmark decision in Planned Parenthood v. Casey (1992) modified the strict trimester framework set forth in Roe, adopting the “undue burden” test to evaluate state regulations on abortion. While Marshall did not participate in Casey, his role in shaping the Court’s earlier jurisprudence laid significant groundwork for many of the arguments that persisted during Casey and beyond.
Moreover, modern debates over access to contraception, parental involvement laws, and the extent of permissible state regulations still echo Marshall’s concerns regarding power imbalances and the potential for discrimination. His insistence that the right to privacy is inextricably linked to human dignity and autonomy remains a guiding principle for those who defend reproductive freedoms. Legal scholars and advocates often cite Marshall’s unwavering support for Roe and his broader privacy decisions when arguing for the constitutional legitimacy of protecting reproductive choice.
In recent years, some states have introduced or enacted stringent abortion restrictions, reigniting controversies about what the Fourteenth Amendment genuinely demands. As these new laws wind their way through the courts, Marshall’s legacy looms large. His tenure on the Court affirmed that access to contraception and abortion is not merely a policy matter but a question of fundamental constitutional rights—an argument that resonates powerfully among those who see personal autonomy as the bedrock of a free society.
Thurgood Marshall’s contributions to the constitutional right to privacy and reproductive freedom stand as a testament to his broader judicial philosophy: a steadfast commitment to individual dignity, equality, and a Constitution that adapts to protect vulnerable groups. From Griswold-based precedents through Roe v. Wade and its progeny, Marshall was a consistent voice affirming that personal, intimate decisions belong squarely within the protective ambit of the Fourteenth Amendment’s guarantee of liberty.
In many respects, Marshall’s support for reproductive rights mirrored his lifelong battle against institutional discrimination and his passion for upholding equal protection. He understood that laws restricting abortion or contraception often carried disproportionate consequences for those already marginalized by race, class, or gender. By aligning himself with the Court’s strongest defenses of privacy, he strove to ensure that constitutional law offered every person—not just the privileged few—a measure of autonomy and control over their most personal life decisions.
Even after his departure from the Court, the seeds Marshall helped to plant in cases like Roe, Carey, and Bellotti have continued to shape debates on reproductive justice. Those debates remain fiercely contested, but Marshall’s voice, reflected in the opinions he joined or influenced, offers a moral and constitutional roadmap. His stance endures as both a reminder of the fragile nature of individual rights and as inspiration for those who believe that the Constitution must be interpreted to protect the private sphere against unjust or intrusive legislation. In this way, the jurisprudence of Thurgood Marshall on reproductive rights and privacy continues to inform and invigorate ongoing struggles for personal autonomy in American law and society.