Roe v. Wade

Sarah Weddington

Linda Coffee

Norma McCorvey

Henry Wade

Justice Harry Blackmun the author of Roe's majority opinion.

Justice Byron White joined in the dissent.

Justice William Rehnquist joined in the dissent.

Roe v. Wade, 410 U.S. 113 (1973), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States protects a right to have an abortion. The decision struck down many abortion laws, and caused an ongoing abortion debate in the United States about whether, or to what extent, abortion should be legal, who should decide the legality of abortion, and what the role of moral and religious views in the political sphere should be. The decision also shaped debate concerning which methods the Supreme Court should use in constitutional adjudication.

Quotes

Brief for Appellants Jane Roe, et al.

Signed by Roy Lucas, Sarah Weddington, James R. Weddington, Linda N. Coffee, Fred Bruner, Roy L. Merrill, Jr., and Norman Dorsen; as quoted in “Before Roe v. Wade” by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012

• Appellant Jane Roe sued as an unmarried pregnant adult woman on behalf of herself “and all other women who have sought, are seeking, or in the future will seek to obtain a legal, medically safe abortion but whose lives are not critically threatened by the pregnancy.” At the time the action was filed, Jane Roe had been “unable to secure a legal abortion in Dallas County because of the existence of the Texas Abortion Laws.” She had sought this medical procedure “because of the economic hardship which pregnancy entailed and because of the social stigma attached to the bearing of illegitimate children in our society.” Miss Roe admitted that insofar as her own interpretation of Texas law was concerned, her “life [did] not appear to be threatened by the continuation of her pregnancy,” other than in a qualitative sense, and in the “extreme difficulty in securing employment of any kind” because of her pregnant condition.
  ane Roe suffered emotional trauma when unable to obtain a legal abortion in Texas. She regarded herself as a law-abiding citizen and did not want to participate in a felony offense by obtaining an illegal abortion. Also, she had only a tenth grade education and no well-paying job which might provide sufficient funds to travel to another jurisdiction for a legal abortion in a safe, clinical setting.
  • p.230

• The law on abortion cannot be understood without reviewing the pertinent aspects of medical and legal history which gave rise to the law. When this is done, it becomes abundantly clear that public health considerations motivated this type of legislation, and that these factors no longer justify maintaining such stringent restrictions in the criminal code.
  In the 1820s when the first American abortion statutes were enacted, there was no medical profession as we know it. Physicians and quacks alike advertised their treatments and potions in the same marketplace. Both had little to offer the public. Medical science, an infant branch of learning in the 1800s, did not uncover the need for clean hands in gynecological examinations until the 1840s.
  • Relevant Background and Medical Facts, pp.230-231

• [S]urgical dangers warned against any medical procedure. Induced abortion, in particular, involved internal use of surgical instruments, and the inevitable introduction of infection into the womb. Far better, the legislature obviously deemed, that a woman risk childbirth, than death on the operating table. Only when the risks cancelled themselves out did she have an option. Today the comparative risks weigh heavily in favor of permitting induced abortion, not as an emergency matter as in 1851, but as an elective medical procedure. Surgery in those times was almost always fatal. As the next section shows, medicine is a different science today. Induced abortion, in medical practice today, is a relatively minor surgical procedure, insofar as risks to the patient’s physical or mental well-being are concerned....
  • p.231

• On another level as well, abortion is a safe procedure: it is without clinically significant psychiatric sequelae. A number of recent studies confirm that abortion does not produce serious psychological side-effects damaging to the mental wellbeing of the patient.
  • p.231

• Today, only abortions performed in non-medical environments present significant risks of morbidity and mortality; with proper medical supervision, abortions are safe and simple procedures. In keeping with modern medical practice, this Court would reinforce the purpose of early abortion legislation if it invalidated the statute. This would permit abortions to be done by licensed physicians in adequate medical facilities and discourage abortions by unskilled practitioners. Moreover, it would preserve the 117-year-old purpose of the law, and the common law.
  • Legal and Medical Standards of Practice Regarding Induced Abortion in Texas and the United States. p.231

• Evidence of American standards of medical practice respecting induced abortion is found in the policy statements of professional organizations. Both the American Medical Association and the American College of Obstetricians and Gynecologists have set standards of professional practice in recent years.
  ACOG policy sanctions therapeutic and elective abortion “to safeguard the patient’s health or improve her family life situation.” ACOG recognizes that “abortion may be performed at the patient’s request....” A very similar position was taken by the American Medical Association. The AMA at one time had followed the A.L.I. model, listing four or five vaguely defined situations for sanctioned abortion. This proved unworkable, and the policy was changed in order not to limit the physicians’ traditional responsibility for evaluating “the merits of each individual case....”
  • pp.231-232

• The Provisions in the Texas Penal Code, Articles 1191–1194 and 1196, Which Prohibit the Medical Procedure of Induced Abortion Unless “procured or attempted by medical advice for the purpose of saving the life of the mother,” Abridge Fundamental Personal Rights of Appellants Secured by the First, Fourth, Ninth, and Fourteenth Amendments, and Do Not Advance a Narrowly Drawn, Compelling State Interest.
  • p.232

• The Constitution does not specifically enumerate a “right to seek abortion,” or a “right of privacy.” That such a right is not enumerated in the Constitution is no impediment to the existence of the right. Other rights not specifically enumerated have been recognized as fundamental rights entitled to constitutional protection including the right to marry, the right to have offspring, the right to use contraceptives to avoid having offspring, the right to direct the upbringing and education of one’s children, as well as the right to travel.
  • p.232

• Appellants contend that fundamental rights entitled to constitutional protection are involved in the instant case, namely the right of individuals to seek and receive health care unhindered by arbitrary state restraint; the right of married couples and of women to privacy and autonomy in the control of reproduction; and the right of physicians to practice medicine according to the highest professional standards. These asserted rights meet constitutional standards arising from several sources and expressed in decisions of this Court. The Texas abortion law infringes these rights, and since the law is not supported by a compelling justification, it is therefore unconstitutional.
  • p.232

• The Right to Seek and Receive Medical Care for the Protection of Health and Well-Being Is a Fundamental Personal Liberty Recognized by Decisions of This Court and by International and National Understanding.
  • p.233

• Although this Court has not expressly delineated a right to seek health care, the importance of such care has been recognized and the existence of such a right suggested. In United States v. Vuitch (1971), this Court reaffirmed society’s expectation that patients receive “such treatment as is necessary to preserve their health.” In this Court’s invalidation of Connecticut’s proscription against contraception, Justice White noted that statute’s intrusion upon “access to medical assistance...in respect to proper methods of birth control.” Griswold v. Connecticut (1965) (White, J., concurring).
  • p.233

• Abortion is an accepted medical procedure for terminating pregnancy. Amici medical organizations recognize the acceptability of abortion, as their policy statements indicate; they draw no distinction between abortion and other medical procedures.
  The Texas abortion law effectively denies Appellants Roe and Doe access to health care. Jane Roe was forced to bear a pregnancy to term though an abortion would have involved considerably less risk to her health. Physicians who would otherwise be willing to perform an abortion in clinical surroundings are deterred by the fear of prosecution. Since Appellant Roe could not afford to travel elsewhere to secure a safe abortion, to avoid continuation of pregnancy she would have been forced to resort to an unskilled layman and accept all the health hazards attendant to such a procedure. Even had she been able to travel out of state, the time required to make financial and travel arrangements would have entailed greater health risks inherent in later abortions.
  • p.233

• The Fundamental Rights to Marital and Personal Privacy Are Acknowledged in Decisions of This Court as Protected by the First, Fourth, Ninth, and Fourteenth Amendments.
  • p.233

• This Court has previously upheld the right to use contraceptives to avoid unwanted pregnancy [Griswold v. Connecticut (1965)].
  As did the law considered in Griswold, “[t]his law...operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.” The Texas abortion law in forbidding resort to the procedure of medical abortion, has a maximum destructive impact upon the marriage relationship.
  In addition to rights associated with marital privacy, an overlapping body of precedent extends significant constitutional protection to the citizen’s sovereignty over his or her own physical person.
  • pp.233-234

• Pregnancy obviously does have an overwhelming impact on the woman. The most readily observable impact of pregnancy, of course, is that of carrying the pregnancy for nine months. Additionally there are numerous more subtle but no less drastic impacts.
  Without the right to respond to unwanted pregnancy, a woman is at the mercy of possible contraceptive failure, particularly if she is unable or unwilling to utilize the most effective measures. Failure to use contraceptives effectively, if pregnancy ensues, exacts an exceedingly high price.
  • pp.233-234

• When pregnancy begins, a woman is faced with a governmental mandate compelling her to serve as an incubator for months and then as an ostensibly willing mother for up to twenty or more years. She must often forego further education or a career and often must endure economic and social hardships. Under the present law of Texas she is given no other choice. Continued pregnancy is compulsory, unless she can persuade the authorities that she is potentially suicidal or that her life is otherwise endangered. The law impinges severely upon her dignity, her life plan and often her marital relationship. The Texas abortion law constitutes an invasion of her privacy with irreparable consequences. Absent the right to remedy contraceptive failure, other rights of personal and marital privacy are largely diluted.
  • p.234

• The decisions of this Court which implicitly recognize rights of marital and personal privacy have been followed by state and federal court decisions expressly holding the decision of abortion to be within the sphere of constitutionally protected privacy.
  That there is a fundamental constitutional right to abortion was the conclusion of the court below in the instant case....
  That view has been shared by a number of other courts which have considered the question and have affirmed that this is a fundamental right....
  Without the ability to control their reproductive capacity, women and couples are largely unable to control determinative aspects of their lives and marriages. If the concept of “fundamental rights” means anything, it must surely include the right to determine when and under what circumstances to have children.
  • p.234

• The First, Ninth, and Fourteenth Amendments protect the right of every citizen to follow any lawful calling, business, or profession he may choose, subject only to rational regulation by the state as necessary for the protection of legitimate public interests. In reviewing legislation affecting the medical profession, courts have particularly respected the knowledge and skill necessary for medical practice, the broad professional discretion necessary to apply it, and the concomitant state interest in guaranteeing the quality of medical practitioners....
  Similarly, courts have been alert to protect medical practice from rash or arbitrary legislative interference....
  Most recently, this Court, in United States v. Vuitch (1971), recognized that “doctors are encouraged by society’s expectations...and by their own professional standards to give their patients such treatment as is necessary to preserve their health.” The Vuitch decision went on to construe the term health to encompass “psychological as well as physical health,” and “‘the state of being sound in body or mind.’”
  Here, the practice of medicine clearly includes the treatment of pregnancy and conditions associated with it. However, the Texas statute prohibits physicians from administering the appropriate remedy to preserve the patient’s health or well-being. Physicians are not required to forego the right to make medically sound judgments and to act upon them with respect to any other human disease or condition. With appropriate consents they may administer electric shock therapy, excise vital organs, perform prefrontal lobotomies and take any other drastic action they believe indicated. They are not indictable for these actions. However, obstetricians and gynecologists who are asked to abort their patients for sound medical reasons risk a prison sentence if they do so. The statute severely infringes their practice and seriously compromises their professional judgments.
  • p.235

• The state must demonstrate a legitimate interest to impair doctors’ rights to practice their profession. Historically, the interest asserted by the state is a health interest, and courts have upheld laws designed to ensure the quality of medical practice. Similarly, statutes have been upheld which require doctors’ intervention in sales of medically-related products in order to protect public health.
  None of the above interests are applicable here, however. The statute in question here does not protect the public from unqualified practitioners. Rather the statute applies to laymen and physicians alike. Indeed, it endangers patients’ health by unduly confining doctors’ exercise of medical judgment.... Further, the statute addresses no other legitimate state interest.
  • pp.235-236

• As shown earlier, medical abortion is a safe and simple procedure when performed during the early stages of pregnancy; indeed, it is safer than childbirth. This fact alone vitiates any contention that the statute here serves a public health interest. Numerous state and federal courts have taken notice of this fact and concurred that no health rationale supports a statute like the one here. See e.g. People v. Belous (Cal. 1969).
  Moreover, no concern for mental health justifies the statute, for it does not permit abortion even if a woman’s mental health is threatened. Such a view is untenable for the additional reason that abortion is a procedure without clinically significant psychiatric sequelae.
  Additional data reveal that statutes like the one here actually create “a public health problem of pandemic proportions” by denying women the opportunity to seek safe medical treatment. Severe infection, permanent sterility, pelvic disease, and other serious complications accompany the illegal abortions to which women are driven by laws like this one.
  Any notion that less restrictive abortion laws would produce excessive demands on medical resources and thereby endanger public health also is unfounded. The experience in New York City after one year under an elective abortion law dispels any such fears....
  The absence of a public health problem accompanying less restrictive abortion is indicated by comparative mortality rates: for the first eleven months of operation, the mortality for abortion in New York City is approximately equal to that of tonsillectomy in the United States.
  Against this background of medical fact, there is no support whatever for the suggestion that public health is an interest protected by this statute.
  • p.236

• As counsel for appellee admitted during oral argument, “the State only has one interest and that is the protection of the life of the unborn child.” The question then becomes whether this interest is sufficiently compelling to overcome the couple’s or woman’s fundamental right to privacy and autonomy. In this regard it is revealing to examine other aspects of the State’s attitude toward the fetus. Such an inquiry reveals that only in the area of abortion does the State exhibit an interest in the fetus or treat it as having legal personality.
  • pp.236-237

• First, the pregnant woman who searches out a person willing to perform an abortion and who consents to, if not pleads for, the procedure is guilty of no crime. Texas courts have repeatedly held that the woman is neither a principal nor an accomplice. Similarly, the women who travel from Texas to states with less restrictive abortion laws in order to secure medical abortions and avoid the alleged state interest in protecting the fetus are guilty of no crime. Moreover, self-abortion has never been treated as a criminal act. The State has failed to seek to deter through criminal sanctions the person whose interests are most likely to be adverse to those of the fetus. This suggests a statutory purpose other than protecting embryonic life.
  An unborn fetus is not a “human being” and killing a fetus is not murder or any other form of homicide. “Homicide” in Texas is defined as “the destruction of the life of one human being by the act, agency, procurement, or culpable omission of another.” Since the common law definition of “human being” is applicable, a fetus neither born nor in the process of birth is not a “human being” within the meaning of those words as they appear in the homicide statute. In Keeler v. Superior Court (Cal. 1970), a pregnant woman was assaulted by her former husband; a Caesarean section and examination in utero revealed that the fetus, of approximately thirty-five weeks gestation, had died of a severely fractured skull and resultant hemorrhaging. The California Supreme Court held the man could not be guilty of murder; the same result would apply in Texas. A fetus is not considered equal to a “human being,” and its destruction involves a significantly lesser penalty.
  • p.237

• The State does not require that a pregnant woman with a history of spontaneous abortion go into seclusion in an attempt to save the pregnancy. No pregnant woman having knowingly engaged in conduct which she reasonably could have foreseen would result in injury to the fetus (such as skiing in late pregnancy) has ever been charged with negligent homicide.
  No formalities of death are observed regarding a fetus of less than five months gestation. Property rights are contingent upon being born alive. There has never been a tort recovery in Texas as the result of injury to a fetus not born alive. No benefits are given prior to birth in situations, such as workman’s compensation, where benefits are normally allowed for “children.”
  • p.237

• It is sometimes argued that scientific discoveries show that human life exists in the fetus. Scientific studies in embryology have greatly expanded our understanding of the process of fertilization and development of the fetus and studies relating to the basic elements of life have shown that life is not only present in the fertilized egg, sperm and ova but that each cell contains elements which could conceivably constitute the beginning of a new human organism. Such studies are significant to science but only confuse the problem of defining human life.
  • pp.237-238

• Thus science only leads to a worse quandary for obviously if one goes far enough back along the continuum of human development one encounters the existence of sub-microscopic double-helix molecules which have human life potential. When does something become human?
  • p.238

• Once the fact that science can offer no guidance on the question of when human life begins is conceded, arguments concerning preservation of the fetus almost always fall back to the proposition of potential life.
  • p.238

• It is obvious that the legislative decision forbidding abortions also destroys potential life—that of the pregnant woman—just as a legislative decision to permit abortions destroys potential life. The question then becomes not one of destroying or preserving potential, but one of who shall make the decision. Obviously some decisions are better left to a representative process since individual decisions on medical facilities, wars, or the release of a convict would tend toward the chaotic. It is our contention that the decision on abortion is exactly the opposite. A representative or majority decision making process has led to chaos. Indeed, in the face of two difficult, unresolvable choices—to destroy life potential in either a fetus or its host—the choice can only be left to one of the entities whose potential is threatened.
  The above argument is perhaps only another way of stating that when fundamental rights are infringed upon, the State bears the burden of demonstrating a compelling interest for doing so. The question of the life of the fetus versus the woman’s right to choose whether she will be the host for that life is incapable of answer through the legislative fact-finding process. Whether one considers the fetus a human being is a problem of definition rather than fact. Given a decision which cannot be reached on the basis of fact, the State must give way to the individual for it can never bear its burden of demonstrating that facts exist which set up a compelling state interest for denying individual rights.
  • p.238

Brief for Appellee Henry Wade, District Attorney of Dallas County, Texas

Signed by Crawford C. Martin, attorney general of Texas; Nola White, Alfred Walker, Robert C. Flowers, and Jay Floyd, lawyers in the Attorney General’s Office; Henry Wade, criminal district attorney, Dallas County; and John B. Tolle, assistant district attorney; as quoted in “Before Roe v. Wade” by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012

• VI. The Constitution of the United States Does Not Guarantee a Woman the Right to Abort an Unborn Fetus.
  One must recognize the interest of a husband and wife in preserving their conjugal relations from state interference, an interest which, in Griswold v. Connecticut (1965), was found to be violated by Connecticut’s statute forbidding the use of contraceptives. This law interfered with the most private aspect of the marital relation, sexual intercourse, making it criminal for a couple to engage in sexual intercourse when using contraceptives. In contrast, the usual statute restricting abortions does not affect the sexual relations of a couple except under some circumstances and only for a limited time. Prevention of abortion does not entail, therefore, state interference with the right of marital intercourse, nor does enforcement of the statute requiring invasions of the conjugal bedroom. Assuming arguendo that there are other marital rights the state must respect, may it then be urged that the right of marital privacy includes the freedom of a married couple to raise and educate a child they do not want, or commit infanticide, incest, engage in pandering and the like. Family privacy, like personal privacy, is highly valued, but not absolute. The news media may publicize the events that occur when a family is victimized by criminals though they seek seclusion. The family may not practice polygamy, may not prohibit schooling for a child, or prohibit the child’s labor, or expose the community or a child to communicable disease.
  • p.239

• Proponents of abortion-on-demand assert that anti-abortion laws unlawfully intrude into the privacy of the physician-patient relationship. They assume necessarily that the doctor treating a pregnancy owes an obligation of good medical care to only one patient, the pregnant woman.... As a patient of the obstetrician, the child may recover damages for a prenatal injury suffered as the result of the negligence of his doctor. It is elemental that a doctor cannot be freed from legal restraints in making socio-moral judgments. The state may regulate the medical profession to protect the health and welfare of all its citizens. Appellants’ contentions of intrusion upon physician-patient relationship are not self-sustaining and must be associated with and connected to a violation of some basic right.
  • pp.239-240

• Personal privacy is an exalted right but, as in marital privacy, it has never been regarded as absolute. A person may be subjected to a “stop and frisk” though it constitutes an intrusion upon his person, or a person may be required to submit to a vaccination, and a blood sample may forcibly be extracted from the body of an individual arrested for suspicion of driving while intoxicated. A woman has been required to submit to a blood transfusion necessary to preserve her life in order that her small child shall not be left without a mother. The “right of privacy” is a highly cherished right—however one which is nowhere expressly mentioned in the Constitution of the United States or its amendments.
  • p.240

• The crux of the moral and legal debate over abortion is, in essence, the right of the woman to determine whether or not she should bear a particular child versus the right of the child to life. The proponents of liberalization of abortion laws speak of the fetus as “a blob of protoplasm” and feel it has no right to life until it has reached a certain stage of development. On the other hand, the opponents of liberalization maintain the fetus is human from the time of conception, and so interruption of pregnancy cannot be justified from the time of fertilization. It most certainly seems logical that from the stage of differentiation, after which neither twinning nor re-combination will occur, the fetus implanted in the uterine wall deserves respect as a human life. If we take the definition of life as being said to be present when an organism shows evidence of individual animate existence, then from the blastocyst stage the fetus qualifies for respect. It is alive because it has the ability to reproduce dying cells. It is human because it can be distinguished from other non-human species, and once implanted in the uterine wall it requires only nutrition and time to develop into one of us.
  The recent recognition of autonomy of the unborn child has led to the development of new medical specialties concerning the unborn child from the earliest stages of the pregnancy. Modern obstetrics has discarded as unscientific the concept that the child in the womb is but tissue of the mother.... Yet the attack on the Texas statute assumes this discredited scientific concept and argues that abortions should be considered no differently than any medical measure taken to protect maternal health (see appellant’s brief), thus completely ignoring the developing human being in the mother’s womb.
  • p.240

• From conception the child is a complex, dynamic, rapidly growing organism. By a natural and continuous process the single fertilized ovum will, over approximately nine months, develop into the trillions of cells of the newborn. The natural end of the sperm and ovum is death unless fertilization occurs. At fertilization a new and unique being is created which, although receiving one-half of its chromosomes from each patient, it really unlike either.
  • p.241

• The development of the child, while very rapid, is also very specific. The genetic pattern set down in the first day of life instructs the development of a specific anatomy. The ears are formed by seven weeks and are specific, and may resemble a family pattern. The lines in the hands start to be engraved by eight weeks and remain a distinctive feature of the individual.
  The primitive skeletal system has completely developed by the end of six weeks. This marks the end of the child’s embryonic (from Greek, to swell or teem within) period. From this point, the child will be called a fetus (Latin, young one or offspring).
  In the third month, the child becomes very active. By the end of the month he can kick his legs, turn his feet, curl and fan his toes, make a fist, move his thumb, bend his wrist, turn his head, squint, frown, open his mouth, press his lips tightly together. He can swallow and drinks the amniotic fluid that surrounds him. Thumb sucking is first noted at this age. The first respiratory motions move fluid in and out of his lungs with inhaling and exhaling respiratory movements.
  • p.241

• Every child shows a distinct individuality in his behavior by the end of the third month. This is because the actual structure of the muscles varies from baby to baby. The alignment of the muscles of the face, for example, follow an inherited pattern. The facial expressions of the baby in his third month are already similar to the facial expressions of his parents.
  Further refinements are noted in the third month. The fingernails appear. The child’s face becomes much prettier. His eyes, previously far apart, now move closer together. The eyelids close over the eyes. Sexual differentiation is apparent in both internal and external sex organs, and primitive eggs and sperm are formed. The vocal cords are completed. In the absence of air they cannot produce sound; the child cannot cry aloud until birth, although he is capable of crying long before.
  • p.242

• In the fifth month, the baby gains two inches in height and ten ounces in weight. By the end of the month he will be about one foot tall and will weigh one pound. Fine baby hair begins to grow on his eyebrows and on his head and a fringe of eyelashes appear. Most of the skeleton hardens. The baby’s muscles become much stronger, and as the child becomes larger his mother finally perceives his many activities. The child’s mother comes to recognize the movement and can feel the baby’s head, arms and legs. She may even perceive a rhythmic jolting movement—fifteen to thirty per minute. This is due to the child. The doctor can now hear the heartbeat with his stethoscope.
  The baby sleeps and wakes just as it will after birth. When he sleeps he invariably settles into his favorite position called his “lie.” Each baby has a characteristic lie. When he awakens he moves about freely in the buoyant fluid turning from side to side, and frequently head over heel.... The child hears and recognizes his mother’s voice before birth. Movements of the mother, whether locomotive, cardiac or respiratory, are communicated to the child.
  • p.242

• In the sixth month, the child develops a strong muscular grip with his hands. He also starts to breathe regularly and can maintain respiratory response for twenty-four hours if born prematurely. He may even have a slim chance of surviving in an incubator. The youngest children known to survive were between twenty to twenty-five weeks old. The concept of viability is not a static one.
  • p.242

• This review of the current medical status of the unborn serves us several purposes. Firstly, it shows conclusively the humanity of the fetus by showing that human life is a continuum which commences in the womb. There is no magic in birth. The child is as much a child in those several days before birth as he is those several days after. The maturation process, commenced in the womb, continues through the post-natal period, infancy, adolescence, maturity and old age. Dr. Arnold Gesell points out in his work that no king ever had any other beginning than have had all of us in our mother’s womb. [Arnold Gesell, The Embryology of Behavior (Harper & Bros., 1945.)] Quickening is only a relative concept which depends upon the sensitivity of the mother, the position of the placenta, and the size of the child.
  • p.243

• The State of Texas Has a Legitimate Interest in Prohibiting Abortion Except by Medical Advice for the Purpose of “Saving the Life of the Mother”
  There seems little argument necessary if one can conclude the unborn child is a human being with birth but a convenient landmark in a continuing process—a bridge between two stages of life. The basic postulates from which the Appellees’ arguments proceed are: (1) the pregnant woman has a right of control over her own body as a matter of privacy guaranteed to her by the Constitution of the United States; and (2) this right cannot be interfered with by the state since the state cannot demonstrate any compelling interest to justify its intrusion. The contrary position is the state’s interest in preventing the arbitrary and unjustified destruction of an unborn child—a living human being in the very earliest stages of its development. Whatever personal right of privacy a pregnant woman may have with respect to the disposition and use of her body must be balanced against the personal right of the unborn child to life.
  Whatever the metaphysical view of it is, or may have been, it is beyond argument that legal concepts as to the nature and rights of the unborn child have drastically changed, based on expanded medical knowledge, over the last 2,500 years.
  • p.243

• It is most seriously argued that the “life” protected by the Due Process of Law Clause of the Fifth Amendment includes the life of the unborn child. Further, it would be a denial of equal protection of law not to accord protection of the life of a person who had not yet been born but still in the womb of its mother. If it is a denial of equal protection for a statute to distinguish between a thief and an embezzler under a statute providing for the sterilization of the one and not the other, then it is surely a denial of equal protection for either the state or federal government to distinguish between a person who has been born and one living in the womb of its mother. [Note: in 1942 in Skinner v. Oklahoma, the Court had ruled that it violated equal protection for the state to punish by sterilization a person convicted of three or more “felonies involving moral turpitude” while not similarly punishing a felon convicted of embezzlement.]
  • pp.243-244

• If it be true that the compelling state interest in prohibiting or regulating abortion did not exist at one time in the stage of history, under the result of the findings and research of modern medicine, a different legal conclusion can now be reached. The fact that a statute or law may originally have been enacted to serve one purpose does not serve to condemn it when the same statute, with the passage of time, serves a different but equally valid public purpose.
  • p.244

Amicus Curiae Briefs

Amicus Curiae Brief in Support of Jane Roe American College of Obstetricians and Gynecologists, American Psychiatric Association, American Medical Women’s Association, New York Academy of Medicine, and a Group of 178 Physicians

Filed by Carol Ryan, Esq; as quoted in “Before Roe v. Wade” by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012

• The individuals whose names are appended here to as amici curiae are deans and vice presidents of medical schools, heads of departments of obstetrics, gynecology and pediatrics in medical schools, practicing physicians and surgeons who are specialists in those fields, and other physicians and psychiatrists having a particular interest in the subject matter of this brief. The organizations whose names are appended hereto are among the largest, oldest and most respected national organizations in the medical profession. These organizations are devoted to the promotion of the highest possible quality health care and it is toward that end that they join in this brief as amici. They include many leaders in the medical profession and renowned teachers in medical schools. As teachers, they are impelled to seek to protect the right of their students—the future generations of doctors—to give their patients the benefit of knowledge acquired in the medical schools. As practicing physicians, amici are bound by oath to give their patients the benefit of the best medical knowledge. These physicians are concerned that the Texas antiabortion law prevents them from fulfilling their sworn duties and responsibilities in the highest traditions of their profession. They believe that the Texas anti-abortion statute is wrong in principle, fundamentally unsound in the light of present day medical and surgical knowledge, and a serious obstacle to good medical practice. Amici believe that the restrictions imposed by the Texas statute on the performance of medically indicated therapeutic abortions interfere with the physician-patient relationship and with the ability of physicians to practice medicine in accordance with the highest professional standards. Amici are also concerned with the burden the law places on physicians to interpret, at their peril, a statute whose meaning and scope are not clear. Accordingly, amici deem it appropriate to offer arguments with respect to this area of law which is of vital concern to them.
  • p.319

• The American Psychiatric Association is a non-profit, tax exempt, scientific and educational medical organization, comprised of those 18,783 qualified Doctors of Medicine who specialize as psychiatrists in the diagnosis, care and treatment of mental diseases and defects of the mind. Abortions are of prime interest to psychiatrists because pregnancy, child bearing, birth and abortions can have material effects upon the mental processes of patients requiring psychiatric diagnosis, evaluation and care.
  • p.319

• The Board of Trustees of the APA on December 12–13, 1969, upon recommendation of the Committee on Psychiatry and Law, approved the following:
  Position Statement on Abortion
  A decision to perform an abortion should be regarded as strictly a medical decision and a medical responsibility. It should be removed entirely from the jurisdiction of criminal law. Criminal penalties should be reserved for persons who perform abortions without medical license or qualification to do so. A medical decision to perform an abortion is based on the careful and informed judgments of the physician and the patient. Among other factors to be considered in arriving at the decision is the motivation of the patient. Often psychiatric consultation can help clarify motivational problems and thereby contribute to the patient’s welfare.
  • p.320

• Under Texas law, abortion is permitted only “for the purpose of saving the life of the mother.” If, following the performance of an abortion, under this law, a physician is brought to trial and the jury disagrees with the physician’s interpretation of the meaning of these quoted words, the physician is liable to imprisonment for from two to five years in the penitentiary.
  This Court has declared that “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Under this standard the statute must fall, because amici respectfully submit that neither they, nor Dr. Hallford nor any other similarly situated physician receive proper notice from the statute of what acts and consultations in their daily practice of medicine will subject them to criminal liability.
  • p.320

• Amici contend that the phrase “for the purpose of saving the life” is so indefinite and vague that physicians must guess at its meaning and do in fact differ as to the meaning of the phrase. The word “save” has a broad range of possible meanings. The Random House Dictionary lists, inter alia, “to rescue from danger or possible harm...to avoid...the waste of...to treat carefully in order to reduce wear, fatigue, etc....”
  ...Life may mean the vitality, the joy, the spirit of existence, as well as merely not dying. The possible interpretations of the statute range therefore from a test requiring imminence of death to one which would permit abortion if desirable to preserve an enjoyable life, i.e., a test under which the physician could consider the effect of pregnancy upon the quality of the patient’s life and not merely upon the fact of life as not death. The statute forces the physician to decide at his peril whether a strict or liberal interpretation, or one in between, is the one intended by the statute. It forces him at his peril to make a decision which may be gainsaid by a jury of non-peer laymen whose guess will be as good as his as to the meaning of this statute. In sum the statute fails to provide the certainty required of penal laws.
  • pp.320-321

• Physicians have a professional obligation to preserve and advance the health of their patients. Assuming arguendo that the statute should be read as requiring a judgment by the physician that without an abortion the patient will die, the statute conflicts with the physician’s obligation because it commands him to ignore all the health interests of his patient with respect to termination of pregnancy unless he can predict that she will die without an abortion. Moreover, the statute does not tell the doctor what factors he may properly consider in making this prediction; nor how certain his prediction must be before he may decide to terminate his patient’s pregnancy; nor how soon she must die if she does not have an abortion.
  • p.321

• He must guess whether the statute allows abortion only if his patient would otherwise die before delivery or if it is sufficient that her life would be significantly shortened thereafter.
  • p.321

• If a patient threatens suicide, physicians do not know if they may rely upon the threat as a basis for abortion to save life. Psychiatric consultation may not be available because the woman may refuse such treatment. The non-psychiatrist may then be forced to evaluate the probability of suicide. The physician does not know how he may determine safely whether the patient is sincere in her threat. Furthermore, a woman who does not overtly threaten may be as inclined toward suicide as one who makes clear her threat. The non-psychiatrist doctor is not told whether he may consider suicidal tendencies whether they are stated by his patient, or not.
  If a doctor may properly consider the fact that his patient may take her own life unless she receives an abortion, the question is opened whether he may consider the fact that she may seriously imperil her life by obtaining an illegal abortion. For a doctor to consider his patient’s threat to obtain an illegal abortion by an unlicensed person is a logical step from his considering her threat of suicide, because such illegal abortions are extremely hazardous and are in fact a common cause of maternal deaths.
  Physicians are unable to agree on the meaning of the statute because its words have no medical meaning. Medical standards have been established for treating patients and for terminating pregnancy as part of that treatment. The statute cuts across those standards and requires physicians to apply an unclear legal test which supersedes and may negate their medical judgment.
  • pp.321-322

• Unquestionably there is a constitutionally protected right to practice one’s chosen profession.
  The practice of medicine clearly includes the treatment of pregnancy and its attendant conditions. The statute interferes with a physician’s practice of medicine by substituting the mandate of a vague legalism for the doctor’s best professional judgment as to the medically indicated treatment for his pregnant patients.
  Physicians and surgeons in many special branches of medicine routinely make extremely serious decisions regarding their patients’ best medical welfare, often with life or death in the balance. But those physicians treating pregnant women run the risk of criminal charges as the result of their professional decisions. The statute unfairly discriminates against those physicians treating pregnant women and thus denies these physicians equal protection of the laws....
  • p.322

• The statute forbids all abortions except those necessary to save the life of the mother. Construing the statute to intend its narrowest possible meaning, i.e., that abortions are lawful only when they will prevent certain and imminent death, it is clear that the operation of the statute may deny women abortions when the abortion would prevent injury or safeguard or preserve the patient’s mental or physical health. Thus a woman suffering from heart disease, diabetes or cancer whose pregnancy worsens the underlying pathology may be denied a medically indicated therapeutic abortion under the statute because death is not certain. Such a patient is effectively denied a fundamental constitutional right reserved to her under the Ninth Amendment—the right to medical treatment...
  • p.322

• A state may not require that a citizen impair his or her health, even if the individual’s right to good health and medical care infringes upon some legitimate state interest. The State of Texas may not in pursuit of its policy infringe upon the constitutionally protected right of its pregnant citizens to the medical treatment they require to maintain their good health.
  The anti-abortion statute denies women their right to secure the best medical treatment available and, further, positively and seriously impairs their health by forcing them to turn to illegal abortionists, most of whom are not licensed physicians and do not have the most advanced and safest medical techniques available for their use. Statistics are necessarily uncertain, but a frequent estimate is that over one million criminal abortions occur in the United States each year, resulting in an estimated 5,000 maternal deaths annually. That 5,000 American women a year should be denied medically safe procedures and thus be driven to their untimely deaths to avoid bearing unwanted children is unconscionable.
  Death due to complications following illegal abortion procedures are only part of the problem. Many thousands of other women needlessly suffer serious infections following these procedures in addition to pain, suffering and emotional trauma....
  • p.322-323

• A doctor has a direct, personal, substantial interest for his decision may send him to jail. Not only does the State prevent the physician from making an impartial decision about terminating his patient’s pregnancy, it unfairly influences this decision in a shocking way. The State says that only if the physician wrongly decides that the operation is needed to preserve her life is he criminally liable. If he wrongly decides the operation is not needed to preserve her life, he is subject to no criminal penalties. The State of Texas thus requires that all errors in a doctor’s evaluation of his patient’s need for termination of pregnancy be on the side of her death...
  A physician practising medicine under the Texas statute cannot keep as his sole concern his patient’s life. A doctor would have to be superhuman if he were able to ignore the fact that his decision can be second-guessed by a jury which may totally disregard medical evidence. Therefore, his patient cannot receive the impartial decision required by due process of law....
  • p.323

• The freedom to be the master of her own body, and thus of her own fate, is as fundamental a right as a woman can possess.
  The Texas statute, by forcing a woman to carry to full term an embryo—regardless of her wishes, her health, her circumstances, her finances, her family or her future—is the most severe and extreme invasion of her right to privacy.
  She is forced to function as a baby factory for an unwanted child. In addition to the gross invasion by the state into a pregnant woman’s physical autonomy, the law imposes enormous additional obligations on this woman toward her child once it is born. Furthermore, these obligations, involuntarily assumed, continue for many years throughout the child’s minority.
  It is unthinkable for a state to compel reproduction against a woman’s wishes. The right of a woman to avoid pregnancy following conception has been recently recognized in State and Federal Courts.
  • p.323

• In the late 1960s and early 1970s, lawyers were advancing the claim that discrimination on the basis of wealth violated equal protection, an argument that the Supreme Court rejected in 1973 in a case concerning the financing of public education.
  The lawyers who signed this brief were Alan F. Charles and Susan Grossman Alexander of the UCLA School of Law.
  • p.324

Amicus Curiae Brief in Support of Jane Roe American Ethical Union, American Friends Service Committee, American Humanist Association, American Jewish Congress, Episcopal Diocese of New York, New York State Council of Churches, Union of American Hebrew Congregations, Unitarian Universalist Association, United Church of Christ, and Board of Christian Social Concerns of the United Methodist Church

Filed by Helen L. Buttenwieser and Bonnie P. Winawer; as quoted in “Before Roe v. Wade” by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012

• The Amici do not advocate abortion. They do advocate the right of an individual to be free from State interference in the conduct of his or her private life. That freedom includes the determination whether or not to have a child.
  • p.339

• The brief of the Amici stresses that the States may not unreasonably interfere with the constitutional right of an individual to determine the course of his or her own life and that the Georgia and Texas abortion laws constitute such an interference. The Amici present related issues that Appellants have not discussed in their Jurisdictional Statements—namely that there is no constitutional right of birth and that the States may not justify the abortion laws’ interference with the personal liberty of all persons on the ground of moral precepts not shared by all. The Georgia and Texas abortion laws unjustifiably restrict the reserved constitutional liberty of all persons to conduct their private lives without unwarranted governmental interference.
  The religious view that the product of every conception is sacred may not validly be urged by the States as a justification for limiting the exercise of constitutional liberties, for that would be an establishment of religion.
  • p.340

• The real basis of the claim of state interest in the foetus is a doctrinaire “moral” concern for the “potential of independent human existence.” The theoretical moral concern is effected only by permitting a greater moral outrage: the deep human suffering of adults and children alike, that results from compelling one to continue an unwanted pregnancy, to give birth to an unwanted child, and to assume the burdens of unwanted parenthood.
  To many minds the “moral” concern for the foetus is misplaced. Reflective judges, scholars and commentators have perceived and deplored the fact that religious beliefs underlie the retention of abortion laws....
  No argument is needed to show that the police power cannot be employed in the service of sectarian moral views without violating the Establishment Clause of the First Amendment....
  • p.340

• In Griswold v. Connecticut, the Court held that the right of privacy, whether drawn from the penumbras of the First, Third, Fourth, Fifth, Ninth and Fourteenth Amendments, or protected by the Due Process Clause of the Fourteenth Amendment, protects the free exercise of one’s views (whether of religious or secular origin) on birth control. State laws such as the abortion laws at issue cannot be justified on the ground that they comport with one group’s “moral” condemnation of the exercise of the guaranteed freedom by others.
  • pp.340

• The abortion laws invade the fundamental individual liberty reserved by the Constitution to conduct one’s personal life without unwarranted governmental interference, and the laws’ infringement of that liberty is not warranted by any overriding valid state interest.
  • p.341

Amicus Curiae Brief in Support of Henry Wade Americans United for Life

Filed by Charles E. Rice, Esq.; as quoted in “Before Roe v. Wade” by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012

• In Levy v. Louisiana (1968), the Court said: “We start from the premise that illegitimate children are not ‘nonpersons.’ They are humans, live, and have their being. They are clearly ‘persons’ within the meaning of the Equal Protection Clause of the Fourteenth Amendment.”
  The child in the womb meets these criteria of personhood under the Equal Protection Clause. He is human, he lives and he has his being. That is, he is a living human being. As the highest court of New Jersey summarized the state of scientific knowledge, “Medical authorities have long recognized that a child is in existence from the moment of conception.” Smith v. Brennan (N.J. 1960).
  • p.347

• The character of the child in the womb as a person is clearly recognized in the law of torts....
  It is significant that a majority of courts, keeping pace with advancing scientific knowledge, now hold that even a stillborn child may maintain a wrongful death action where his death was caused by a prenatal injury.
  A similar trend can be seen in the law of property.... The law of property has long recognized the rights of the child in the womb for purposes which affect the property rights of that child....
  For purposes of equity, too, the law has recognized the existence of the child in the womb. An unborn child, for example, can compel his father to provide him support. He can compel his mother to undergo a blood transfusion for his benefit, even where such transfusion is forbidden by the mother’s religious beliefs...
  • p.347

• Suffice it to say that the child in the womb satisfies the three criteria for personhood he is human, he lives and he has his being—enunciated in Levy v. Louisiana. He is clearly alive and in being. As the living offspring of human parents, he can be nothing else but human. As a living human being he is therefore a person within the meaning of the Equal Protection Clause.
  Even if one somehow does not concede that the child in the womb is a living human being, one ought at least to give him the benefit of the doubt. Our law does not permit the execution, or imprisonment under sentence, of a criminal unless his guilt of the crime charged is proven beyond a reasonable doubt. The innocent child in the womb is entitled to have us resolve in his favor any doubts we may feel as to his living humanity and his personhood.
  • p.348

• IF THE LAW WERE TO ALLOW THE CHILD IN THE WOMB TO BE KILLED WHERE IT IS NOT NECESSARY TO SAVE THE LIFE OF HIS MOTHER, IT WOULD MAKE HIM THE VICTIM OF AN UNREASONABLE CLASSIFICATION AND AN INVIDIOUS DISCRIMINATION IN VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.
  • p.348

• The right to live is more basic even than the right to procreate. And there is “no redemption” for the aborted child in the womb. The abortion is to his “irreparable injury” and by it he “is forever deprived of a basic liberty.” Any law which interferes with the right to live must therefore be carefully scrutinized. It is appropriate to apply here the principles which govern the application of the Equal Protection Clause to another basic right—the right to be free from racial discrimination.... There is no sufficient necessity which justifies a law which permits the killing of the child in the womb where it is not necessary to save the life of his mother. We are not concerned in this appeal with the question of whether a state law can constitutionally allow abortion where it is necessary to save the life of the mother. Rather the issue is whether the constitution permits the child in the womb to be killed where it is not necessary to save the life of his mother. To permit the child in the womb to be killed in such a case improperly discriminates against him on account of his age and situation. For the law does not allow a born child or an adult to be killed at the discretion of another or in any other situation where his killing is not necessary to save the life of another.
  • p.348

• Discrimination in employment on account of age is now forbidden by federal law which enunciates a strong public policy. And while age may be a reasonable criterion for determining the right to vote or to drive a car, it can hardly be contended that it is a reasonable basis for determining whether one has a right to continue living. The child in the womb should have the same right as his older brother or sister not to be killed where it is unnecessary to save the life of his mother. Nor should the fact that he temporarily reposes in his mother’s womb rather than in an incubator or a crib operate to deprive the child of the right to continue living....
  • pp.348-349

Amicus Curiae Brief in Support of Jane Roe California Committee to Legalize Abortion; South Bay Chapter of the National Organization for Women; Zero Population Growth, Inc.; Cheriel Moench Jensen; and Lynette Perkes

Filed by Joan K. Bradford, Esq.; as quoted in “Before Roe v. Wade” by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2023

• Each of the organizations and individuals urges upon the Court the position that laws restricting or regulating abortion as a special procedure violate the Thirteenth Amendment by imposing involuntary servitude without due conviction for a crime and without the justification of serving any current national or public need....
  • p.341

• From the outset, the Amendment has been interpreted by this Court to apply to all persons without regard to race or class, and to guarantee universal freedom in the United States....
  It is the purpose of this brief to show that anti-abortion laws, which force an unwillingly pregnant woman to continue pregnancy to term, are a form of involuntary servitude without the justification of serving any current national or public need.
  • p.342

• Pregnancy is not a mere inconvenience. “The physical and functional alterations of pregnancy involve all the body systems,” displacing body parts, depleting the body of its necessary elements and changing its chemical balance.
  The pregnant woman’s body is in a state of constant service, providing warmth, nutrients, oxygen and waste disposal for the support of the conceptus. These activities are always to the detriment of the woman’s body. They are performed for the benefit of the conceptus alone unless an interest of the pregnant woman is also served thereby, that is, unless the pregnant woman defines the pregnancy as wanted.
  • p.342

• During pregnancy, enlargement of the uterus within the abdominal cavity displaces and compresses the other abdominal contents including the heart, lungs and gastrointestinal tract. The resulting pressure has a direct effect on circulation of the blood and increase in venous pressure, sometimes leading to irreversible varicose veins and hemorrhoids and, with predictable frequency, to disabling thrombophlebitis. The gastrointestinal tract experiences functional interference causing constipation and displacement of the urinary tract, thus urinary tract infections occur in six to seven per cent of all pregnant women and such infections, in turn, lead to kidney infections. During the second and third months, bladder irritability is quite constant. Tearing and overstretching of the muscles of the pelvic floor occurs frequently during delivery, causing extensive and irreparable damage to the pelvic organs and their supporting connections. Surgery is often required to return these organs to position. Bladder control may be permanently lost. The weight of the contents of the uterus causes sacroiliac strain accompanied by pain and backache, with the effects of the pressure being felt as far as the outermost extremities of the woman’s body. The weight causes such pressure on the cervical spine as to result in numbness, tingling and proprioceptive acuity reduction in the hands.
  • pp.342-343

• During pregnancy estrogen levels exhibit severe increase, this phenomenon accounting for the symptoms of nausea and vomiting occurring in one-half or more of all pregnant women. If this condition is prolonged, hospitalization is required. Evacuation of the contents of the uterus results in immediate and dramatic relief of symptoms. In severe cases blood protein may be destroyed. Bodies of women who have died from this condition exhibit the symptoms of starvation, acidosis, dehydration and multiple vitamin deficiencies.
  The excess progesterone produced by the placenta causes fluid retention, increase in blood pressure, weight gain, irritability, lassitude, severe emotional tension, nervousness, inability to concentrate, and inability to sleep. At least 40 per cent of pregnant women have symptomatic edema, distorting the hands, face, ankles and feet. A woman’s lungs respire 45 per cent more air than normal in an attempt to obtain the needed oxygen, but oxygen absorbed is less than normal despite the extra effort of the crowded lungs.
  Because the conceptus utilizes almost twice as much calcium as the pregnant woman can assimilate from administered and dietary calcium, extra calcium must be drawn from a woman’s calcium stores, mostly from her long bones. Thus, the pregnant woman is likely to suffer leg cramps. In young women, permanent bone deformation results.
  Total loss of a woman’s iron stores during pregnancy and delivery is measured at 680 mg. Thus anemia of pregnancy is high and almost all pregnant women, especially those having repeated pregnancies, require supplementary iron. Efforts to correct this condition may fail because many pregnant women cannot tolerate iron supplements.
  With such extensive effects, can pregnancy be considered as merely a “natural” state of being?
  • p.343

• Contraceptives are never foolproof. Any act of intercourse between a fertile man and woman constitutes some risk of conception, no matter what contraceptives are used....
  If 100,000 women who do not wish to become pregnant take the pill, three will probably die within the year and 1,000 will become pregnant.
  Under the present state of contraceptive failure, a woman does not have the option of remaining free of pregnancy by making careful use of contraceptives. She is at some risk in using the most effective methods of contraception available.
  • p.343-344

• The average married woman expects to bear two to three children, yet coitus takes place between a couple married during the period of the woman’s reproductive years (age 18 to 43) an average of 2,535 times. The frequency of coitus stated in the Kinsey Report is average behavior between married couples. If the woman wishes to remain free of pregnancy once her desired family size is reached, her only sure method of remaining so free of pregnancy is complete abstinence from sexual intercourse. If she embarks on such a course, will the law uphold her decision?
  • p.344

• A wife has no legal power to refuse to participate in the intimacies of married life. If she refuses her husband’s forced attentions, there is no law to intervene in her behalf. She cannot charge her husband with rape. Indeed, if a married woman attempts to practice abstinence, the laws of most states treat her behavior as a denial of the marital right of the husband....
  Under present law, a married woman has two choices: she can attempt to refuse to fulfill the sexual obligations of the marriage and thus risk termination of her marriage; or she can participate in normal marital relations and risk unwanted pregnancy and childbirth. With a choice of either alternative, she risks the consequence of a legally imposed penalty. The woman is left with no non-punishable course of action.
  • p.344

• The women who bear children and the medical experts who assist them testify that pregnancy and childbearing are indeed labor. The fact that many women enter into such labor voluntarily and joyfully does not alter the fact that other women, under other circumstances, find childbearing too arduous, become pregnant through no choice of their own, and are then forced to complete the pregnancy to term by compulsion of state laws prohibiting voluntary abortion. It is the purpose of the Thirteenth Amendment to prohibit a relationship in which one person or entity limits the freedom of another person. In the absence of a compelling state interest or due conviction for a crime, the state’s forcing the pregnant woman through unwanted pregnancy to full term is a denial of her Thirteenth Amendment right to be free from “a condition of enforced compulsory service of one to another.” This is the very essence of involuntary servitude in which the personal service of one person is “disposed of or coerced for another’s benefit.”
  • pp.344-345

• Let us assume, for the time being, that the pregnant woman and the fetus she carries within her body have come before the law as equal “persons.” The woman desires an abortion. May the state legitimately intervene to prevent the abortion? At the present stage of medical knowledge and ability to control human incubation, the fetus cannot survive and develop into a separate self-sustaining person without contribution of the bodily force of the single female individual who carries that particular fetus within her body. Yet the laws prohibiting and regulating abortion, unlike all other laws in respect of persons, compel this pregnant woman to breathe, process food and donate blood for the sustenance of another human entity, either fully or partially developed. In no other instance does the law compel one individual to donate his/her bodily force to another individual. In no other instance does the law give another human—even a fully developed human—a right to life beyond that which the person himself can sustain.
  • p.345

• Abortion laws alone compel the contribution of one individual’s organs, blood, breath and life support system for another individual, either fully or partially formed....
  If the pregnant woman, as potential donor, and the fetus, as potential donee, come before the law as equal “persons,” one may not command involuntary servitude of the other; and so the potential donor retains her sovereignty over her body and her right to refuse. Therefore, it follows that the fetus, a potential person, can have no greater right over a potential donor. Unless the state has some other compelling interest in forcing the donation of the pregnant woman’s body to the service of the fetus, the state must stand aside in the abortion conflict; it cannot legitimately intervene in preventing the pregnant woman from withholding her life force from the fetus....
  • pp.345-346

• ....A state cannot seriously contend today that restrictions on abortion are justified by an overriding state interest in increasing population. See Ehrlich, The Population Bomb, 1968. On the contrary, it is accepted government policy to limit family size and to encourage family planning. Such state interest is expressed in Population and the American Future, The Report of the President’s Commission on Population Growth and the Future (March, 1972) p. 192:
  Recognizing that our population cannot grow indefinitely, and appreciating the advantage of moving now toward the stabilization of population, the Commission recommends that the nation welcome and plan for a stabilized population.
  • p.346

• Today, this country’s population has moved far beyond its needed growth, and current government policy is to encourage population control. Anti-abortion laws have outlived their purpose if regarded in historical perspective. Rights of the individual pregnant woman can no longer be ignored.
  The Thirteenth Amendment’s promise of freedom has long provided to male citizens the sovereign control of their own bodies.
  • p.346

Amicus Curiae Brief in Support of Henry Wade Certain Physicians, Professors and Fellows of the American College of Obstetricians and Gynecologists

Filed by Dennis J. Horan; Jerome A. Frazel, Jr; Thomas M. Crisham; Dolores B. Horan; and John D. Gorby; as quoted in “Before Roe v. Wade” by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012

• An expansion of the right to privacy to include the right of a woman to have an abortion without considering the interests of the unborn person decides this question against the unborn. The necessary consequence of that expansion would be a direct and unavoidable conflict between the unborn person’s right to life and the woman’s extended right of privacy. Assuming such a conflict, it is the position of the amici that the more fundamental and established of the conflicting rights must prevail where they clash. The right to life is most certainly the most fundamental and established of the rights involved in the cases facing the Court today.
  • p.350

• The medical hazards of legally induced abortion are all too often compared to the safety of a tonsillectomy or the “proverbial tooth extraction.” (See Texas Appellant’s brief.) Data presented from Eastern European mortality statistics have often been used to produce such claims as "it is X-times safer to have an abortion than to carry the child to term." These claims have been widely published in newspapers and lay periodicals; when made by the non-professional, they are forgivable; when made by "medical experts," one can only assume that these "experts" have allowed a desire for "social change" to fog their ability to distinguish first-rate from second- rate medical care.
  The world’s medical literature does not support such claims. The medical hazards of legal abortion should be presented to the Court in their total perspective through an analysis of this literature. It is imperative to note that when one focuses only on the legal abortion mortality rates from selected countries around the world, one can only see the risks of legal abortion through tunnel vision. The total medical picture cannot be understood without a look at the early and late physical and psychological complications. Indeed, these are the complications which affect the greater number of people and result in what a World Health Organization scientific group said was "a great amount of human suffering."
  • p.350

• The obstetrician has two patients: mother and child. It is deplorable to think that discussions of mortality can so easily exclude the child. The court should recognize that the mortality to the child is nearly 100%. Only an occasional child has the strength to survive. Let us not forget that abortion kills children of varying ages and stages in development. The unheard voices of these little ones are our concern, and we deplore this violent trend which is turning the healing art of medicine into a source of efficient swift and sure destruction of human life. A trend which will yield a "body count" unlike any we have seen in our nation’s history. We deplore the condition of a society which calls physicians to exercise their art as a tool of death for those yet unborn....
  • pp.350-351

• [O]ne must recognize that the performance of legally induced abortion upon healthy women is not the practice of medicine at all, but rather another example of the violence of our times; the use of one more technological skill to destroy human life....
  • p.351

• It is respectfully submitted that the unborn is a "person" within the meaning of the 5th and 14th Amendments. Consequently, the unborn's life can be taken only with due process of law, and its life is entitled, like all other persons’ lives, to equal protection under the law.
  • p.351

• It is respectfully submitted that the unborn is a "person" within the meaning of the 5th and 14th Amendments. Consequently, the unborn's life can be taken only with due process of law, and its life is entitled, like all other persons’ lives, to equal protection under the law.
  • p.352

• The National Right to Life Committee is a non-sectarian, interdisciplinary organization that is committed to informing and educating the general public on questions related to the sanctity of human life. Protecting the right to life of the unborn child is of central concern for NRLC. The Committee believes that proposals for total repeal or relaxation of present abortion laws represent a regressive approach to serious human problems. NRLC is in favor of a legal system that protects the life of the unborn child, while recognizing the dignity of the child’s mother, the rights of its father, and the responsibility of society to provide support and assistance to both the mother and child....
  • p.352

Amicus Curiae Brief in Support of Jane Roe National Legal Program on Health Problems of the Poor, National Welfare Rights Organization, and American Public Health Association

Filed by Alan F. Charles and Susan Grossman Alexander; as quoted in "Before Roe v. Wade" by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012

• These organizations share the view that restrictive state abortion laws, such as the Texas statute here under review, have a negative effect on the health and wellbeing of American women, and have a particularly severe impact on the nation’s poor and non-white populations. It is the poor and non-white who suffer most from limited access to legal abortion, and it is they who incur greatly disproportionate numbers of deaths and crippling injuries as a result of being forced to seek criminal abortion....
  • p.324

• The State Has No Interest in Increasing Its Population; on the Contrary, Its Interest, if Any, Is in Limiting Population Growth.
  In view of the increasing public concern over our rapidly multiplying population, any supposed state interest in increasing the number of lives in being can hardly be raised as a justification for the prohibition of abortion. Indeed, the growing emphasis of both federal and state agencies upon preplanning of families and limitation of their size makes manifestly inconsistent treating the termination of pregnancy as a crime, while birth control devices are not merely permitted but are openly promoted and encouraged by the government....
  • p.324

• While amici contend that to receive proper medical care in the form of an abortion approved and performed by a physician is, by itself, a fundamental interest protected by the Constitution, it is not necessary for abortion to be declared a constitutional right to hold that its discriminatory denial violates guarantees of equal protection.
  The State of Texas has prohibited all abortions except for “the purpose of saving the mother’s life.” On its face, this permits treatment in the case of all women whose lives are similarly endangered, and excludes from treatment all others.
  • p.325

• Presumably, therefore those women who qualify for a legal abortion according to the terms of the statute should be able to obtain one, regardless of their race or socio-economic status. There is nothing demonstrable in the differences of skin color or economic condition which suggests that a substantially smaller proportion of the poor or the non-white fall into this category than that of the white and the non-poor, or that the poor and non-white have a substantially different moral attitude on abortion.
  On the contrary, a recent study of births occurring between 1960 and 1965 led investigators to conclude that one-third of Negro (as contrasted with one-fifth of white) births were unwanted. Unwanted births were in general more than twice as high for families with incomes of less than $3,000 as for those with incomes of over $10,000; this differential was "particularly marked among Negroes." The results indicated, in the view of the investigators, that there is a "coincidence of poverty and unwanted births rather than a propensity of the ‘poor’ to have unwanted children."
  One explanation for this high level of unwanted births among the poor and the non-white is surely the fact that they do not have equal access to abortions. Data demonstrate that the poor and the non-white do not receive this medical treatment on the same terms as do others. They thus suffer a particularly harsh and adverse effect from the operation of this statute, as they do from that of the other restrictive abortion laws which have existed and currently exist in the United States....
  • p.325

• Because the poor rely primarily upon public hospitals for their medical services, denials or delays at those institutions are tantamount to a denial of prompt medical care solely because these women are without funds.
  A partial explanation for the marked disparity in these figures appears to lie in the far lower incidence of abortions performed for psychiatric reasons among poor and non-white women. While socioeconomic conditions never per se legally warrant therapeutic abortion, socioeconomic status nevertheless frequently determines whether or not an abortion will be performed, and if performed, whether that self-same abortion will be therapeutic or criminal.
  • pp.325-326

• Criminal abortion has been described as the greatest single cause of maternal mortality in the United States; it is one of the greatest cause of disease, infection, and resulting sterilization as well. The poor and the non-white suffer disproportionately from the “back-alley” abortionists, whose services they seek out in lieu of the medically safe hospital abortions generally denied them.
  California, the only state known to officially compile such figures, notes that approximately 7 percent of that state’s non-white female population subjected themselves to criminal abortion in 1968, as opposed to only 1.5 percent of the state’s white female population.
  The often tragic results of these abortions are also documented. In their New York study, Drs. Gold, et al. noted that the ratio of criminal abortion deaths per 1,000 live births was 4.0 for white women and 16.2 for non-whites. Likewise, Dr. Hall’s 1960–62 study led him to conclude that approximately half of the puerperal deaths among New York’s Negroes were due to criminal abortions as opposed to only a quarter of the puerperal deaths among white women.
  • p.326

• In sharp contrast to the above data has been the experience in New York State since July 1, 1970, when categorical restrictions on abortion were eliminated. On April 5, 1971, New York City health officials reported that the city’s public hospitals, which restricted abortions to city residents, were performing an average of 511 a week, and that the “vast majority” of those women would be unable to afford abortions in private hospitals.
  It is clear from this evidence that where the law has eliminated restrictions on the obtaining of abortions, the poor and non-white women who were previously unable to exercise the financial and other kinds of leverage required to have a “therapeutic” abortion, are able to obtain medically safe abortions on an equal basis with all other women, and they do obtain them to at least the same extent as their more privileged sisters. One result has been a drop in the maternal mortality rate: New York City hospitals now report treating far fewer victims of “botched” illegal abortions than they did in years past.
  • p.326

• The Texas Abortion Law, While Permitting Abortion to Save a Woman’s Life, Irrationally Excludes From Its Protection Women Whose Health May Be Seriously Threatened, Who Bear a Deformed Fetus, Who Have Been Victims of Sexual Assault, Who Are Financially, Socially or Emotionally Incapable of Raising a Child and Whose Family Tranquility and Security Would Be Seriously Disrupted by the Birth of Another Child, Exclusions Which Bear Most Heavily on the Poor and Non-White, and Which Do Not Serve Any Compelling or Reasonable State Interest, Denying to These Women the Equal Protection of the Law.
  • p.327

• The Equal Protection Clause of the Fourteenth Amendment requires the states to “exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulations.” The challenged statute operates to deny equal protection to women with compelling reasons for receiving therapeutic abortion, concurred in by their physicians, but whose physicians cannot advance as “medical advice” that the abortion is necessary to “save” their lives. Women so excluded are those who would suffer a serious impairment of physical or mental health from carrying a pregnancy to term, those whose pregnancies are the result of rape or incest, those whose fetuses will, with high medical certainty, be born with gravely disabling physical or mental defects, and those who are financially unable or emotionally incapable of supporting a child, or of adding another child to a family whose limited resources are already strained by their devotion to raising children in being.
  [T]he fundamental interest involved in the case of each of the excluded classes of women is as deserving of constitutional protection as the “saving” (whatever it may mean) of the mother’s life. Compelling a woman to give birth to a child which is the product of rape or incest, or which will be born deformed, or whose birth will damage the woman’s own health or capacity to be a mother to the child or to her existing family, may be as unbearable to the woman as a vague threat to her life itself. That compulsion also puts her physician in the ethically questionable position of having to decide just how much injury he must allow her to bear, despite his obvious ability to prevent that injury, before he can confidently say to the prosecutor that he ultimately acted to save her life.
  • p.327

• Certain assumptions must be made and constitutionally accepted to find that there is a basis of rationality to the exclusion of the above-mentioned classes of women from the statute’s protection. One is that human-life begins with fertilization of egg by sperm. Another is that this “life” is equivalent to the life of the woman, and the life-saving exception to the abortion law is a rational balancing of interests by the state, analogous to the laws of self-defense.
  It is remarkable that the existence of a one-day-old fetus is to be equaled with the life of a grown woman. The woman is—beyond doubt—a human being, one upon whom other human beings (husband, children, etc.) depend in a variety of ways essential to the sanctity of the family, and whose impaired health may be critically disruptive to that family; or one who may not have consented to sexual intercourse made felonious by the state, yet who is forced to bear the consequences of that same felonious act. This equivalency of interest between a microscopic embryo and the woman who bears it must be assumed in the Texas law, however, since that statute draws no lines, such as viability, as the time to invoke the state’s protection.
  • p.328

• Because the Texas abortion law has the clear effect of denying disadvantaged citizens access to safe hospital abortions, without any justification, it violates the Equal Protection Clause of the Fourteenth Amendment.
  • p.328

Amicus Curiae Brief in Support of Henry Wade National Right to Life Committee

Filed by Alfred L. Scanlan; Robert M. Byrn; Juan J. Ryan; Joseph V. Gartlan, Jr., and Martin J. Flynn; as quoted in “Before Roe v. Wade” by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012

• NRLC sees no point in belaboring the scientifically obvious. Life begins at conception and for practical medical purposes can be scientifically verified within 14 days. Within three weeks, at a point much before “quickening” can be felt by the mother, the fetus manifests a working heart, a nerve system, and a brain different from and independent of the mother in whose womb he resides; the unborn fetus is now a living human being. It is universally agreed that life has begun by the time the mother realizes she is pregnant and asks her doctor to perform an abortion.
  • p.352

• This Court has decided that the Constitution protects certain rights of privacy on the part of a woman arising from the marital relationship which cannot be unjustifiably interfered with by the State. NRLC believes that the genesis of such rights, to the extent such rights may exist, must be found among the “penumbral” personal liberties protected by the Due Process Clause of the Fifth Amendment. Yet equally unchallengeable is the proposition that an unborn child’s right not to “be deprived of life,” to quote the words of the Due Process Clause itself, is also a fundamental personal right or liberty protected by that same amendment and entitled to the traditional searching judicial scrutiny and review afforded when basic personal liberties are threatened by state action, whether legislative or judicial in character. Therefore, it is very clear that this case is not one, as the appellants would portray it, which involves merely the balancing of a right of personal liberty (i.e., a married woman’s privacy) against some competing, generalized state interest of lower priority or concern in an enlightened scheme of constitutional values, such as the state’s police power. Here, the Court must choose between a nebulous and undefined legal “right” of privacy on the part of a woman with respect to the use of her body and the State’s right to prevent the destruction of a human life. That election involves the determination as to whether the State’s judgment that human life is to be preferred is a prohibited exercise of legislative power.
  • p.353

• If the appellants and their supporting amici are maintaining that a woman has a right to the integrity of her body sufficient to permit her alone to decide, for whatever reason, whether to terminate a pregnancy, the proposition cannot prevail. If a woman has sovereignty over her body of the degree suggested by the appellants, how could the States ban prostitution, outlaw suicide or prohibit the use of harmful drugs?
  • pp.354-355

• Family planning, including the contraceptive relationship, is a matter between a man and a woman alone. The abortion relationship, on the other hand, is between the parents and the unborn child....
  • p.355

• NRLC disputes the assertion that a woman enjoys any right of privacy, as yet undefined in American law, which vests in her alone the absolute authority to terminate a pregnancy for any reason whatsoever. No precedents of this Court have gone so far.
  • p.355

• If, despite all the medical evidence and legal history on the point, the unborn child is not to be considered a person within contemplation of the law with legally protectable interests, then Griswold possibly might be stretched to serve as a precedent for the result that the appellants urge this Court to reach. On the other hand, if terminating pregnancy is something different from preventing it, if abortion is different from cosmetic surgery, if the fetus is not in the same class as the wart, and if we are dealing with something other than an inhuman organism, then Griswold is totally inapposite. As medical knowledge of prenatal life has expanded, the rights of the unborn child have been enlarged. And even if it could still be argued that the fetus is not fully the equal of the adult, the law, through centuries of judicial decision and legislation, and following the lead supplied by medical science, has raised the equivalency of that life to such a status that the unborn child may not be deprived of it, absent the demonstrated necessity of protecting a reasonably equivalent interest on the part of the mother. Griswold, of course, presented no such conflict and therefore is not controlling in this case....
  • pp.355-356

• In both cases, the doctor-appellants alleged that the particular statute in question “chills and defers plaintiffs from practicing their profession as medical practitioners” and thus offends rights guaranteed by the First and Fourteenth Amendments. The dispositive answer to these contentions is that neither statute proscribes speech or medical advice but prohibits the commission of the criminal acts specified in the statute.
  • p.356

• Of course, departing from the facts of the two cases, it might be argued abstractly that (1) a poor woman finds it more difficult than a rich woman to leave Texas or Georgia in order to get an abortion in a jurisdiction where that might be legal, and (2) she cannot afford treatment by a private physician who, some might say, would be more inclined to find a legal reason for the abortion. Hence, the two statutes bear unequally upon the poor. However, the same theoretical argument could be made of many types of conduct proscribed by the criminal laws of Texas and Georgia. There are jurisdictions to which wealthy persons may travel in order to indulge in the doubtful pleasures of gambling at will, using narcotics without restraint, and enjoying a plurality of wives. Could these doubtful “advantages” on the part of the rich be relied on as any basis to set aside the criminal statutes of Texas or Georgia proscribing such activities within those jurisdictions?
  • pp.356-357

• Many criminal laws in actual practice do bear with unequal severity upon the poor. It is they who are more likely than the rich to be caught, to be unable to post bail bond, to be prosecuted, to be unskillfully defended, to be convicted and to be punished. However, the remedy for these injustices of society lies in the elimination or mitigation of the conditions and causes of poverty and in the reform of the administration of criminal justice, not by the selective invalidation of otherwise lawfully enacted criminal statutes.
  • p.357

• Sweden, a country not unlike ours, and the nation which has had the longest experience with state-regulated abortions in Western Europe, has produced no evidence that criminal abortions, estimated at 20,000 a year when the law was passed in 1938, have been substantially reduced since that time. Other studies confirm the belief that liberalization of abortion laws effect no reduction in the rate of criminal abortions and all that is done is to increase the total number of abortions.
  • p.358

• So far as any alleged problem of overpopulation is concerned, abortion, whether on the free demand of a woman or on the intimidating command of the State, appears as a completely ineffective and extremely dangerous way to deal with such a problem, if it exists. For instance, one side effect of the repeal of abortion statutes and the fostering of abortion through state auspices is that no group will be more likely to feel the sting more bitingly than the mothers of illegitimate children. Already, laws making the birth of illegitimate children a crime suggest the squeeze to which the poor mother might be subjected in an age of unrestricted, and state-sponsored, abortion.
  • p.358

• Finally, the suggestion that laws against abortion were enacted by men to constrain the behavior of women has nothing to support it except the historical accident that most of the criminal statutes, including abortion laws, were enacted by male legislators in the 19th Century when women were unable to vote. It is not evident how this general condition of political freedom influenced abortion laws more than it influenced other developments in the criminal law.
  • p.359

Amicus Curiae Brief in Support of Jane Roe New Women Lawyers; Women’s Health and Abortion Project, Inc.; and National Abortion Action Coalition

Filed by Nancy Stearns as quoted in “Before Roe v. Wade” by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012

• Statement of Interest
  During the past two years the question of the constitutionality of abortion laws—of the right of a woman to control her own body and life—has become one of the most burning issues for women throughout the country. As women have become aware of the myriad levels of unconstitutional discrimination they face daily, they have become most acutely aware of the primary role which restrictions on abortions plays in that discrimination. As a result, women throughout the country have become determined to free themselves of the crippling and unconstitutional restrictions on their lives. As a major part of their efforts, thousands of women have sought and continue to seek the aid of federal and state courts in their challenges to abortion statutes....
  • p.329

• Under the Fourteenth Amendment to the Constitution, no state shall “...deprive any person of life, liberty, or property without due process of law.” The courts have not yet, however, begun to come to grips with the fact that approximately one half of our citizenry is systematically being denied those guarantees of the Fourteenth Amendment. That is exactly the effect of the abortion laws of Texas and Georgia, and nearly every other state in the United States. Amici urge this Court not to shrink from redressing the constitutional wrongs perpetrated on women.
  For the first time, this Court has the opportunity to give serious and full consideration to the degree to which laws such as those challenged herein, in denying women the control of their reproductive life, violate their most basic constitutional rights....
  The decision by a woman of whether and when she will bear children may be the most fundamental decision of her life because of its far-reaching significance, affecting almost every aspect of her life from the earliest days of her pregnancy.
  • p.329

• Persons seeking to uphold restrictive abortion laws argue that the State has a compelling interest in protecting human life. Amici could not agree more. But, we argue that the responsibility of the State runs to persons who are living and that the State may not maintain laws which effect the most serious invasions of the constitutional rights of its citizens.
  • p.329

• From the very fact, as noted by the California Supreme Court in People v. Belous (Cal. 1969), that “childbirth involves the risk of death,” it should be most obvious that laws which force women to bear every child she happens to conceive raise the most severe constitutional questions under the Fourteenth Amendment.
  • p.330

• Nearly ten years ago a medical expert reported that “the risk to life from an abortion, performed by an experienced physician in a hospital on a healthy woman in the first trimester of pregnancy is far smaller than the risk ordinarily associated with pregnancy and childbirth.” A recent study of the death rate from child-birth in the United States revealed that there are still 20 deaths per 100,000 pregnancies among American women. The same study reported that the death rate due to legalized abortions performed in hospitals in Eastern Europe is 3 per 100,000 pregnancies. And so, in the United States today, giving birth is nearly 7 times more dangerous than a therapeutic abortion.
  Furthermore, if a woman truly believes she should not continue an unwanted pregnancy and give birth to and raise an unwanted child, she will not be deterred by the fact that an abortion in her circumstances would be illegal. She will do this despite the great hazards to her physical and mental health—and the great financial expense involved. She will do this even though she knows that under local law she is performing a criminal act.
  • p.330

• The very fact that legal abortion is unavailable for most women forces them into an additional hazard to their health and life. Aware of the failure rate of most contraceptives and afraid of an accidental pregnancy which they will be unable to terminate, millions of women daily expose themselves to the known and as yet unknown dangers of the pill even though they would prefer not to. The fear of accidental pregnancy is so great that even women who have medical histories that indicate that they should not take oral contraceptives feel compelled to do so.
  Thus while governments profess their overwhelming concern for human life, they force their female citizens into the intolerable dilemma of choosing between what in many instances would be a totally irresponsible act of bearing and casting off, or even “raising” an unwanted child or jeopardizing their life and health, both physical and mental, by obtaining an illegal abortion or attempting to self-abort. What is more, this professed concern for life in fact results in hazards to women’s lives, often forcing them into the hands of unskilled and unscrupulous persons directly in the face of the guarantees of the Fourteenth Amendment.
  • p.330

• If the Fourteenth Amendment and its guarantees are to have any real meaning for women, they must not be read to protect only women’s physical survival. The Fourteenth Amendment speaks not merely of life, but of life and liberty. For the framers of our constitution recognized well that it is not life alone which must be protected, but also personal liberty and freedom. Because of that fact, the Constitution has established requirements that neither life nor liberty may be denied a person without the guarantees of due process....
  • p.331

• It should be obvious that from the moment a woman becomes pregnant her status in society changes as a result of both direct and indirect actions of the government and because of social mores. Except in very rare cases (primarily among the wealthy) she is certainly no longer “free in the enjoyment of all [her] faculties;...free to use them in all lawful ways; to live and work where [she] will; to earn [her] livelihood by any lawful calling; to pursue any livelihood or avocation....” Pregnancy, from the moment of conception, severely limits a woman’s liberty. In many cases of both public and private employment women are forced to temporarily or permanently leave their employment when they become pregnant. The employer has no duty to transfer a pregnant woman to a less arduous job during any stage of pregnancy (should the woman or her doctor consider this advisable); nor is there any statutory duty to rehire the woman after she gives birth.... [R]egardless of whether the woman wishes and/or needs to continue working, regardless of whether she is physically capable of working, she may nonetheless be required to stop working solely because of her pregnancy. In many if not most states women who are public employees are compelled to terminate their employment at some arbitrary date during pregnancy regardless of whether they are capable of continuing work.
  • p.331

• But restrictions on a woman’s liberty and property only begin with pregnancy. A woman worker with children is considered “unavailable for work” (which means that she cannot qualify for unemployment compensation), if she restricts her hours of availability to late afternoon and night shifts so that she may care for her children during the day....
  Under these circumstances, a case can well be made that the anti-abortion law, in compelling a pregnant woman to continue this condition against her wishes, is not merely a denial of liberty, but also an imposition of cruel and unusual punishment on the woman. “Confinement” well describes the situation of the pregnant woman, or mother, who is denied work, or restricted in her work because of an employer’s decision on her ability to work.
  • p.331

• A further denial of liberty results from the fact that women are generally forced to arbitrarily end their education because of pregnancy. Until recently, girls who became pregnant were forced to drop out of public school in New York. In New York City, Central Harlem, more than forty percent of the girls who leave school before graduation do so because of pregnancy. This still happens in countless other cities throughout the country as well. Many women are also deprived of higher education because of college rules requiring that pregnant women leave school....
  • p.332

• The incursions on the liberty of an unmarried woman who becomes pregnant are even more severe. She too may be fired from her job and is even more likely to be compelled to discontinue her education. Unable to terminate her pregnancy, she is often forced into marriage against her will and better judgment in an attempt to cope with the new economic and social realities of her life. Such marriages are forced on women despite the fact that the right to marry or not to marry may not be invaded by the state.
  Of course, frequently, the man who is responsible for the pregnancy refuses to marry her. Then unable to support herself she may be forced to become a welfare recipient, become part of that cycle of poverty, and expose herself to the personal humiliation, loss of personal liberty and inadequate income that entails.
  To further add to her difficulties, the mere fact of her out-of-wedlock pregnancy or child resulting from that pregnancy may be used as “some evidential or presumptive effect” to a decision to exclude or remove her from public housing. Thus, having been forced to bear a child she did not want, she may be deprived of her right and ability to provide for herself and her child either because of employer policies or because of her inability to leave the child. Surviving on at least marginal income, she who is most obviously in need of public housing is then deprived of decent shelter because of the existence of that very same child.
  • p.332

• For a woman perhaps the most critical aspect of liberty is the right to decide when and whether she will have a child—with all the burdens and limitations on her freedom which that entails. But that has been robbed from her by men who make the laws which govern her....
  Restrictive laws governing abortion such as those of Texas and Georgia are a manifestation of the fact that men are unable to see women in any role other than that of mother and wife....
  • p.332

• The express guarantee of equal protection was originally designed to protect black people. Since that time, its protection has been greatly extended....
  Most recently federal estate courts have begun to apply the guarantees of the equal protection of the laws to prohibit discrimination against women....
  Despite the fact that women are entitled to the equal protection of the laws, one major area in which they are daily denied that protection is in the area of abortion.
  Man and woman have equal responsibility for the act of sexual intercourse. Should the woman accidentally become pregnant, against her will, however, she endures in many instances the entire burden or “punishment.”
  In obtaining an abortion, the threats and punishments fall on the woman. This happens even where the decision to have an abortion has been a mutual one. Only the woman is subjected to the variety of threats which often accompany the painful search for abortion—the threats of frightened or hostile doctors of giving her name to the police—the threat of subpoena and/or prosecution if the doctor who would help her is arrested.
  • p.333

• It is often said that if men could become pregnant or if women sat in the legislatures there would no longer be laws prohibiting abortion. This is not said in jest. It reaches to the heart of the unequal position of women with respect to the burdens of bearing and raising children and the fact that they are robbed of the ability to choose whether they wish to bear those burdens.
  And the woman carries an unequal and greater share of the burden, not merely for nine months, but for many years, all in violation of the equal protection of the laws, as we shall discuss below. The abortion laws therefore present a rather unusual constitutional situation. At first glance, it would appear that the concept of equal protection of the laws might not even apply to abortion since the laws relate only to women. However, when we look beyond the face of the laws to their effect, we see that the constitutional test of equal protection must be applied. For the effect of the laws is to force women, against their will, into a position in which they will be subjected to a whole range of de facto forms of discrimination based on the status of pregnancy and motherhood.
  • p.333

• As we have discussed at length above, a woman who has a child is subject to a whole range of de jure and de facto punishments, disabilities and limitations to her freedom from the earliest stages of pregnancy. In the most obvious sense she alone must bear the pains and hazards of pregnancy and childbirth. She may be suspended or expelled from school and thus robbed of her opportunity for education and self-development. She may be fired or suspended from her employment and thereby denied the right to earn a living and, if single and without independent income, forced into the degrading position of living on welfare....
  If a woman is unmarried, unless she succeeds in obtaining an abortion, she has no choice but to bear the child, while the man who shares responsibility for her pregnancy can, and often does, just walk away....
  Having been forced to give birth to a child she did not want, a woman may be subject to criminal sanctions for child neglect if she does not care for the child to the satisfaction of the state....
  • p.334

• If such a broad range of disabilities are permitted to attach to the status of pregnancy and motherhood, that status must be one of choice. And it is not sufficient to say that the women “chose” to have sexual intercourse, for she did not choose to become pregnant. As long as she is forced to bear such an extraordinarily disproportionate share of the pains and burdens of childrearing (including, of course, pregnancy and childbirth), then, to deprive her of the ultimate choice as to whether she will in fact bear those burdens violates the most basic aspects of “our American ideal of fairness” guaranteed and enshrined in the Fourteenth Amendment.
  • p.334

• There is yet another way in which women are denied the equal protection of the laws. This Court has shown great concern with the “conception of political equality” and particularly with “questions of alleged ‘invidious discriminations against groups or types of individuals in violation of the constitutional guaranty of just and equal laws.’” Because of this concern, in a line of cases the court has sought to guarantee that each citizen is fairly and equally represented in the legislature which make laws governing his or her life. Nevertheless, in the instance of abortion laws one finds the grossest form of lack of representation.
  This court can surely take judicial notice of the fact that the state legislatures in Texas and Georgia, like state legislatures throughout the country are composed almost exclusively of men....
  Therefore we have a situation in which persons are making laws which could never possibly affect them....
  • p.334

• To understand what having an unwanted pregnancy and child means to a woman, it may be best to consider the following analogy: a group of people are walking along the street. Half the group crosses; the remainder are stopped by a red light. Those stopped by the light are told the following:
  From now on, for about nine months, you are going to have to carry a twenty-five pound pack on your back. now, you will have to endure it, whether you develop ulcers under the load whether your spine becomes deformed, no matter how exhausted you get, you and this are inseparable. Then, after nine months you may drop this load, but from then on you are going to have it tied to your wrist. so that, where ever you go this is going to be with you the rest of your life and if, by some accident, the rope is cut or the chain is cut, that piece of rope is always going to be tied to you to remind you of it.
  Of course, this analogy is not complete. It does not include the extreme, some- times excruciating pain and risk of death involved with the process of transferring the pack from your back to your wrist, nor does it fully describe the limitations placed on your liberty by having that load chained to your wrist for a substantial portion, if not all of your life. It does, however, begin to give some picture of the pain and burden of pregnancy and motherhood when both are involuntary.
  • p.335

• Forcing a woman to bear a child against her will is indeed a form of punishment, a result of society’s ambivalent attitude towards female sexuality. The existence of the sexual “double standard” has created the social response that when a woman becomes pregnant accidentally, she must be “punished” for her transgression, particularly if she is single. This punishment falls solely on the woman: she must face the physical burdens and emotional strains of an unwanted pregnancy, the degrading experience of having an illegal abortion “often in filthy motel rooms at the mercy of quacks who are charging exorbitant fees,” and if unable to get such an abortion, the responsibilities and trauma involved in raising an unwanted child. The man equally responsible for the pregnancy faces no such punishment....
  • p.335

• The Eighth Amendment to the United States Constitution protects all persons against the infliction of “cruel and unusual punishment.” Amici contend that the expanding constitutional concern, as expressed by this Court, with practices which “offend the dignity of man,” are contrary to “the evolving standards of decency that mark the progress of a maturing society” and punishment “disproportionate to the offense committed” as violative of the Eighth Amendment necessitates a finding that laws restricting abortion are unconstitutional....
  • pp.335-336

• Laws which force women to endure unwanted pregnancy and motherhood against their will or to become criminals and take the risks to physical and mental health resulting from an illegal abortion are disproportionate to the act for which they are being punished—an act which, in many instances, is not even illegal. Further, amici contend that abortions, in fact if not in theory, punish women for private, sexual activity for which only women bear the repercussions of pregnancy therefore punishing them for their status as women and potential child-bearers.
  The pain and suffering associated with an unwanted pregnancy or child, is not solely physical pain. The emotional pain and scarring which accompanies an unwanted pregnancy is an equally important and far more lasting form of pain which must be considered in the context of guarantees of the Eighth Amendment, and the emphasis given to mental anguish as a crucial component of “cruel and unusual punishment.” According to Dr. Natalie Shainess, who has devoted the majority of her 25-year practice as a psychoanalyst and psychiatrist to the area of feminine psychology and particularly with experience of being a mother, a woman who does not want her pregnancy suffers depression through nearly the entire pregnancy and often that depression is extremely severe. Furthermore, according to Dr. Shainess that depression continues even after birth may even go into psychotic states, and may result in permanent emotional damage to the woman.
  Such potential permanent emotional damage, the risks to physical health and safety which may also result in permanent physical harm, and the burdens of taking care of an unwanted child, constitute a form of long-term imprisonment. Such long term imprisonment “could be so disproportionate to the offense as to fall within the inhibition” of the Eighth Amendment....
  • p.336

• Millions of women are now becoming truly conscious of the manifold forms of oppression and discrimination of their sex in our society. They are beginning to publicly express their outrage at what they have always known—that bearing and raising a child that they do not want is indeed cruel and unusual punishment. Such punishment involves not only an indeterminate sentence and a loss of citizenship rights as an independent person...great physical hardship and emotional damage disproportionate to the crime of participating equally in sexual activity with a man...but is punishment for her status as a woman and a potential child-bearer.... Abortion laws reinforce the legally legitimized indignities that women have already suffered under for too long and bear witness to the inferior position to which women are relegated. The total destruction of a woman’s status in society results from compelling her to take sole responsibility for having the illegal abortion or bear the unwanted child, and suffer the physical hardship and mental anguish whichever she chooses. Only the woman is punished by society for an act in which she has participated equally, only she is punished for her "status" as child-bearer. In light of “evolving standards of decency that mark the progress of a maturing society,” the basis of the Eighth Amendment...the struggle of women for full and meaningful equality in society over the last hundred years indicates that it would indeed be a sign of the immaturity of our social development if these laws were upheld. White persons have had to readjust their thinking and actions to question whether laws which discriminated against blacks were unconstitutional.
  Men (of whom the legislatures and courts are almost exclusively composed) must now learn that they may not constitutionally impose the cruel penalties of unwanted pregnancy and motherhood on women, where the penalties fall solely on them....
  • pp.336-337

Amicus Curiae Brief in Support of Jane Roe Planned Parenthood Federation of American, Inc. and American Association of Planned Parenthood Physicians

Filed by Harriet F. Pilpel, Nancy F. Wechsler, Ruth Jane Zuckerman, and Michael Kenneth Brown; as quoted in "Before Roe v. Wade" by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012

• Planned Parenthood's concern with family planning and family health necessarily includes concern with the availability of abortion and with the compelling problems which result from restrictive abortion laws which make medically safe, legal abortions unavailable to many women. Planned Parenthood has adopted a policy on abortion which states in part: The optimum method of birth control is the consistent employment of effective contraception but in practice this goal is sometimes not achieved. It is, therefore, desirable that provisions respecting abortion not be contained in state Criminal Codes. Planned Parenthood believes that since abortion is a medical procedure, it should be governed by the same rules as apply to other medical procedures in general when performed by properly qualified physicians with reasonable medical safeguards.
  • p.337-338

• This commitment to the principle that safe abortions should be available to all who seek them is a necessary corollary of Planned Parenthood’s activities in the area of birth control. While Planned Parenthood does not view abortion as an alternative to contraception, it recognizes that abortion services are essential to protect women where contraception is unavailable, where it has not been used or where it has failed. Planned Parenthood believes that abortions must also be available to women who have been raped and in cases where the fetus may be deformed as a result of the mother’s exposure to rubella, her use of drugs which affect fetal development or as a result of other factors.
  • p.338

• Although contraceptive services are legally available in all states to married persons and in almost all states without regard to marital status, in fact contraceptives are not readily available to a substantial portion of the population. This is particularly true of urban and rural poor in many areas of the country. In some of these areas even non-prescription and relatively ineffective contraceptives cannot be obtained. Even if some form of contraception is available there is likelihood of unwanted pregnancy since the most effective and practical contraceptives, such as the birth control pill, the intrauterine device, and the diaphragm can be obtained only on the prescription of a doctor whose services are denied to hundreds of thousands of poor....
  • p.338

• Oral contraceptives (OCs) of the combined type are "almost 100 percent effective" when "taken according to the prescribed regimen." But the oral contraceptives have disadvantages such as side effects during their early use. Moreover, their use is medically contraindicated for certain patients, particularly those with a history of thromboembolic disease....
  [E]ven the theoretically most effective or highly effective methods of contraception are not always actually effective for a number of reasons. Except for voluntary sterilization which many people will not use, even the most effective or highly effective methods have shortcomings either in terms of method failures or in terms of side effects or medical contraindications. In addition some of the methods are so difficult to practice regularly and correctly that they have little practical utility.
  • p.339

Amicus Curiae Brief in Support of Henry Wade Women for the Unborn

Filed by Eugene J. McMahon, Esq.; as quoted in "Before Roe v. Wade" by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012

• (1) The unborn child is a distinct individual. Modern genetics has confirmed scientifically what women have long felt intuitively—the presence of another human life, a life to be reverenced and protected.
  (2) Many women who seek abortions are acting from an overpowering but temporary fear. Most of these women really desire to have their baby, and they will later be glad that their effort to secure an abortion was unsuccessful. In order to react constructively to the stresses and tensions of pregnancy, women need the support of society—not the address of the nearest abortion clinic.
  (3) While abortion is an easy solution for many social problems, it is not a true solution for any. Its availability may prevent more constructive solutions from emerging.
  (4) The social consequences of unlimited abortion are as yet unknown.
  • pp.359-360

• [B]oth the moral and the legal arguments for abortion-on-demand have attained popularity only within the last few years. Since the test of time has not been applied, should a final decision be made which would extend abortion-on-demand to the entire country?
  • p.360

• The easy solution of abortion discourages more constructive solutions. Even if one overlooks the biological evidence concerning the unborn child, or the psychological testimony that most women seeking to take the life of their unborn baby, like most persons seeking to take their own life, desire to be stopped by someone, is abortion really a satisfactory solution to any social problem? Will the availability of the easier abortion “solution” discourage our society from seeking deeper and more permanent solutions?
  Such a fear appears to lie behind the opposition to abortion-on-demand within the black community. Despite assurances by abortion advocates, many members of the black community seem to suspect that numerous abortion clinics in ghetto areas could end up as the “white man’s” solution to the problems of poverty and race.
  When the poor cry out for bread, what response will they receive? The more difficult response—an equitable distribution of society’s resources? Or the easier response—a list of centers where abortions can be performed on those who would not seek them except for their desperate poverty? While these two responses are not mutually exclusive, to what extent will the availability of the second lessen society’s incentive to seek the first?
  • p.360

• Until some kind of definite evidence is available concerning the social pattern that is emerging in those states which have removed all restrictions on abortion, should a final decision be made which would extend abortion-on-demand to the entire country?
  • p.361

• If these laws are held to be constitutional, their wisdom will continue to be debated in our state and national legislatures.
  If any doubt exists, would it not be better to allow the discussion to continue?
  • p.361

Oral arguments

“Roe v. Wade No. 70-18”, Washington, D.C. (October 11, 1972)

Oral Argument of Mrs. Sarah R. Weddington

• MRS. WEDDINGTON: We are once again before this Court to ask relief against the continued enforcement of the Texas abortion statute. And I ask that you affirm the ruling of the three—judge below which held our statute unconstitutional for two reasons: The first that it was vague, and the second that it interfered with the Ninth Amendment rights of a woman to determine whether or not she would continue or terminate a pregnancy.
  • p.3

• QUESTION: Prosecutions of doctors, you’re speaking of?
  MRS. WEDDINGTON: Prosecutions of doctors, yes, sir. The Problem that we face in Texas is that even though we were granted a declatory judgment, ruling the law unconstitutional, even though we’ve been before this Court once in the past, in Texas women still are not able to receive abortions from licensed doctors, because doctors still fear that they will be prosecuted under the statute.
  So if the declatory judgment was any relief at all, it was an almost meaningful relief, because the women of Texas still must either travel to other States, if they are that sophisticated and can afford it, or they must resort to some other less – some other very undesirable alternatives.
  • pp.4-5

• MRS. WEDDINGTON: In fact, we pointed out in our supplemental brief filed here that there have been something like 1600 Texas women who have gone to New York City alone for abortions in the first nine months of 1971.
  In addition, I think the Court would recognize there are many other women going to other parts of the country.
  One of the objections that our opponents have raised, the same in this Court, is moot, because, of course, the woman is no longer pregnant. It’s been almost three years since we institute the original action.
  And yet we can certainly show that it is a continuing problem to Texas women. There still are unwanted pregnancies. There are still women who, for various reasons, do not wish to continue the pregnancy, whether because of personal health considerations whether because of their family situation, whether because of financial situations, education, working situations, some of the many things we discussed at the last hearing.
  • pp.5-6

• MRS. WEDDINGTON: [T]here is a supplemental brief filed by an amicus party, Harriet Pilpel, on behalf of Planned Parenthood of New York, that seeks to point out to the Court, at pages 6 and 7 and subsequent pages, some of the changing medical statistics available regarding the procedure of abortion.
  For example, that brief points out that the over-all maternal death rate from legal abortion in New York dropped to 3.7 per 100,000 abortions in the last half of 1971. And that, in fact, is less than half the death rate associated with live delivery for women.
  That, in fact, the maternal mortality rate has decreased by about two-thirds to a record low in new York in 1971. That now, in 1871, New York recorded the lowest infant mortality rate ever in that State. That during the first 18 months of – well, from July 1st, 1970, to December 31st, 1971, out-of-wedlock pregnancies have dropped by 14 percent.
  We now have other statistics coming from California and other States that show that not only had the over-all birth rate declined, but the welfare birth rate has also declined accordingly.
  • pp.6-7

• MRS. WEDDINGTON: As to the women, this is their only forum. They are in a very unique situation, for several reasons: First, because of the very nature of the interest involved. Their primary interest being the interest associated with the question of whether or not they will be forced by the State to continue an unwanted pregnancy.
  In our original brief we alleged a number of constitutional grounds. The man one that we are relying on before this Court are the Fifth, the Ninth, and the Fourteenth Amendments.
  There is a great body of precedents. Certainly we cannot say that there is in the Constitution, so stated, the right to an abortion. Neither is there stated the right to travel, or some of the other very basic rights that this Court has held are under the United States Constitution.
  The Court has in the past, for example, held that it is the right of the parents and of the individual to determine whether or not they will send their child to private school, whether or not their children will be taught foreign languages, whether or not they will have offspring, the Skinner case, whether – the right to determine for themselves whom they will marry, the Loving case, and even in Boddie vs. Connecticut, the choice of saying that marriage itself is so important that the State cannot interfere with termination of a marriage, just because the woman is unable to pay the cost.
  Griswold, of course, is the primary case, holding that the State could not interfere in the question of whether or not a married couple would use birth control; and since then this Court, of course, has held that the individual has the right to determine whether they are married or single, whether they will use birth control.
  So there is a great body of cases decided in the past by this Court in the areas of marriage, sex, contraception, propriation, child-rearing, and education of children. Which says that there are certain things are so much a part of the individual concern that they should be left to the determination of the individual.
  • pp.7-8

• MRS. WEDDINGTON: Again, this is a very special type of case for the women, because of the very nature of the injury involved. It is an irreparable injury. Once pregnancy has started, certainly this is not the kind of injury that can be later adjudicated, it is not the kind of injury that can later be compensated by some sort of monetary reward.
  These women who have now gone through pregnancy and the women who continue to be forced through pregnancy and the women who continue to be forced through pregnancy have certainly gone through something that is irreparable, that can never be changed for them. It is certainly great and it is certainly immediate.
  There is no other forum available to them, as we talked last time, they are not subject in Texas to any kind of criminal prosecution, whether the woman performs self-abortion, whether she goes to a doctor, finds someone who will perform it on her, she is guilt of no crime whatsoever.
  And yet the State tries to allege that its purpose in this statute was to protect the fetus.
  If that’s true, the fact that the woman is guilty of no crime is not a reasonable kind of – it does not reasonably follow.
  The women are not able to have any kind of declatory judgment in Texas, because of our special declaratory judgment statutes in our concurring criminal and civil courts, the two different lines of cases that we have. So the federal court was the only court to which the women had any kind of access, and it was to the federal courts they came, and it’s the federal court, in my judgment, that should determine this case.
  • pp.9-10

• MRS. WEDDINGTON: This case does come under the exceptions in that there is great, immediate, irreparable injury, where there is no other forum, it is something that, as far as these women are concerned, can never be adjudicated in a criminal prosecution, much less in a single criminal prosecution.
  It certainly is an instance of a situation that is capable of repetition yet evading review. The judiciary simply does not move fast enough for the case to be decided within the period of gestation, much less within the period within which an abortion would be medically safe for those women.
  • p.11

• MRS. WEDDINGTON: The State has alleged, and its only alleged interest in this statute is the interest in protecting the life of the unborn. However, the State has not been able to point to any authority, or any nature whatsoever, that would demonstrate that this statute was in fact adopted for that purpose.
  We have some indication that other State statutes were adopted for the purpose of protecting the health of the woman. We have an 1880 case in Texas, shortly after the 1854 statue was adopted, that stated that the women is the victim of the crime, and is the only victim that the court talks about.
  We have all the contradictions in the statute, and the way so many things that just don’t make sense. If the statute was adopted for that purpose, for example, why is the woman guilt of no crime? If the statute was adopted for that purpose, why is it that the penalty for abortion is determined by whether or not you have the woman’s consent?
  • pp.11-12

• MRS. WEDDINGTON: There have been two cases decided since the September 13th argument that expressly hold that a fetus has no constitutional right, one being Byrn vs. New York the other being the Magee-Women’s Hospital case. In both situations persons sought to bring that very question to the court: does a fetus – in the one instance, Byrn was a challenge to the New York Revised Statutes; the other was a situation where a person sought to prevent Magee-Women’s Hospital from allowing further abortions to be done in that hospital.
  And in both cases it was held that the fetus had no constitutional rights.
  Several of the briefs before this Court would also argue that this Court, in deciding the Vuitch case, which has allowed abortion to continue in the District of Columbia, certainly the Court would not have made that kind of decision if it felt there were any ingrained rights of the fetus within the Constitution.
  • pp.12-13

• QUESTION: I’m just asking you, under the federal Constitution. Is the fetus a person for the protection of due process?
  MRS. WEDDINGTON: All of the cases, the prior history of this statute, the common law history would indicate that it is not. The State has shown no --
  QUESTION: Well, what about – would you lose your case if the fetus was a person.
  MRS. WEDDINGTON: Then you would have a balancing of interest.
  • pp.13-14

• MRS. WEDDINGTON: If the State could show that the fetus was a person under the Fourteenth Amendment, or under some other Amendment, or part of the Constitution then you would have the situation of trying – you would have State compelling interest which, in some instances, can outweigh a fundamental right. This is not the case in this particular situation.
  • pp.14-15

• QUESTION: Mrs. Weddington, you’re attacking the statute on two grounds, are you not, vagueness-
  MRS. WEDDINGTON: That’s correct.
  QUESTION: -- and the Ninth Amendment. Do you base any weight on one argument as against the other?
  MRS. WEDDINGTON: Our Texas Court of Criminal Appeals, in Thompson vs. State, --
  QUESTION: That’s a recent case?
  MRS. WEDDINGTON: Yes. In November of last year.
  QUESTION: Again on vagueness.
  MRS. WEDDINGTON: Yes. That particular case held that the Texas statute was not vague citing Vuitch.
  It’s my opinion that that reliance was misplaced. That in Vuitch, this Court had before it the D.C. statute which allowed abortion for the purpose of saving the life or the health, and this Court adapted the interpretation that health meant both mental and physical health
  And it seemed to me the Court’s language in that case talked a great deal about the fact that the doctor’s judgment goes to saving the health of the woman, that that that’s the kind of judgment he is used to making.
  In Texas that’s not the judgment he’s forced to make.
  The judgment in Texas is, is this necessary for the purpose of preserving the life of the woman. And the language of that statute has never been interpreted. That’s not the kind of judgment that a doctor is accustomed or perhaps even able to make.
  • pp.16-17

• QUESTION: I think – I may have missed it, but I find no reference to it in this – in your brief or in the voluminous briefs that we’re overwhelmed with here. Do you have any comment about the Hippocratic oath?
  MRS. WEDDINGTON: I think two things could be said. The first would be that situations and understandings change. In this case, for example, we have before the Court a medical amicus brief that was joined by all the deans of the public medical schools in Texas. It was joined by numerous other professors off medicine. It was joined by the American college of Obstetricians and Gynecologists.
  QUESTION: Of course there are other briefs on the other side joined by equally outstanding physicians.
  • pp.17-18

• QUESTION: Well, do I get from this, then, that your case depends primarily on the proposition that the fetus has no constitutional rights?
  MRS. WEDDINGTON: It depends on saying that the woman had a fundamental constitutional right and that the State has not proved any compelling interest for regulation in the area.
  Even if the Court at some point determined the fetus to be entitled to constitutional protection, you would still get back into the weighing of one life against another.
  QUESTION: That’s what’s involved in this case? Weighing one life against another?
  MRS. WEDDINGTON: No, Your Honor. I say that would be what would be involved if the facts were different, and the State could prove that there was a person, for the constitutional right.
  QUESTION: Well, if – if – it were established that an unborn fetus is a person within the protection of the Fourteenth Amendment, you would have almost an impossible case here, would you not?
  MRS. WEDDINGTON: I would have a very difficult case.
  QUESTION: I’m sure you would. So if you had the same kind of thing, you’d have to say that this would be the equivalent after the child was born if the mother thought it bothered her health any having the child around, she could have it killed. Isn’t that correct?
  MRS. WEDDINGTON: That’s correct.
  • pp.20-21

• QUESTION: Could Texas constitutionally, in your view, declare that, by statute, that the fetus is a person for all constitutional purposes after the third month of gestation?
  MRS. WEDDINGTON: I do not believe that the State Legislature can determine the meaning of the federal Constitution. It is up to this Court to make that determination.
  QUESTION: The States have to deal with statutes, don’t they?
  MRS. WEDDINGTON: The State could obviously adopt that kind of statute, and then the question would have to be adjudicated as to whether for all purposes that statute is constitutional.
  We are not alleging that there cannot be some kind of protection. For example, the property rights, which, again, are contingent upon being born alive. It can be retroactive to the period prior to birth.
  But in this particular situation we are alleging that this statute is unconstitutional.
  QUESTION: But that has been recognized in the period before birth for purposes of injury claims, and you put that, I take it, in the property category?
  MRS. WEDDINGTON: In Texas it is only when they are born alive. And the fact that there is a – you know, the wrongful conduct of another is not the same as in this situation. As for property rights, for example, there are even property rights that relate back to prior to conception; children that are not yet conceived, who later inherit. But that did not prevent this Court in Griswold from holding people had the right to birth control.
  • pp.21-22

Oral Argument of Robert C. Flowers Esq. on Behalf of Appelle

• MR. FLOWERS: The lower court in Dallas held the Texas abortion law unconstitutional primarily on the two grounds that have just been discussed, on the vagueness question and the rights of the mother under the Ninth Amendment.
  The thrust of the whole argument of the State of Texas is against the rights of the mother under the Ninth Amendment, that it certainly is a balancing effect. There must be or, on the other side of the coin, Texas has no State.
  • pp.22-23

• MR. FLOWERS: It is impossible for me to trace, within my allocated time, the development of the fetus from the date of conception to the date of its birth. But it is the position of the State of Texas that upon conception we have a human being, a person within the conception we have a human being, a person within the concept of the Constitution of the United States and that of Texas, also.
  QUESTION: Now, how should that question be decided, is it a legal question, a constitutional question, a medical question, a philosophical question, or a religious question, or what is it?
  MR. FLOWERS: Your Honor, we feel that it could be best decided by a Legislature in view of the fact that they can bring before it the medical testimony, the actual people who do the research. But we do have --
  QUESTION: So then it’s basically a medical question?
  MR. FLOWERS: From a constitutional standpoint, no sir. I think it’s fairly and squarely before this Court. We don’t envy the Court for having to make this decision.
  • pp.23-24

• QUESTION: Do you know of any case anywhere that’s held that an unborn fetus is a person within the meaning of the Fourteenth Amendment?
  MR. FLOWERS: No, sir, we can only go back to what the framers of our Constitution had in mind.
  QUESTION: Well, these weren’t the framers that wrote the Fourteenth Amendment. It came along much later.
  MR. FLOWERS: No, sir. I understand. But the Fifth Amendment, under the Fifth Amendment: no one shall be deprived of the right to life, liberty, and property without the due process of law.
  QUESTION: Yes, but then the Fourteenth Amendment defines “person” as somebody who’s born, doesn’t it?
  MR. FLOWERS: I’m not sure about that, sir. I --
  QUESTION: All right.
  Any person born or naturalized in the United States.
  MR. FLOWERS: Yes, sir.
  QUESTION: It doesn’t – that’s not the definition of a “person” but that’s the definition of a “citizen”.
  MR. FLOWERS: Your Honor it’s our position that the definition of a person is so basic, it’s so fundamental that the framers of the Constitution had not even set out to define. We can only go to what the teachings at the time the Constitution was framed.
  We have numerous listings in the brief by Mr. Joe Witherspoon, a professor at the University of Texas, that tries to trace back what was in their mind when they had the “person” concept when they drew up the Constitution.
  He quoted Blackstone here in 1765, and he observed, in his commentaries, that: “Life. This right is inherent by nature in every individual, and exists even before the child is born.”
  • pp.24-25

• QUESTION: Mr. Flowers, when you quote Blackstone, is it not true that in Blacstone’s time abortion as not a felony?
  MR. FLOWERS: That’s true, Your Honor. But my point there was to see the thinking of the framers of the Constitution, from the people they learned from, and the general attitudes of the times.
  • p.25

• QUESTION: Is it not true, or is it true that the medical profession itself is not in agreement as to when life begins?
  MR. FLOWERS: I think that’s true, sir. But from a layman’s standpoint, medically speaking, we would say that at the moment of conception from the chromosomes, every potential that anybody in this room has is present, from the moment of conception.
  • pp.25-26

• MR. FLOWERS: On the seventh day, I think that the heart, in some form, starts beating. On the twentieth day, practically all the facilities are there that you and I have, Your Honor.
  Your Honor.
  I think that --
  QUESTION: Well, if you’re correct that the fetus is a person, then I don’t suppose you’d have – the State would have great trouble permitting an abortion, would it?
  MR. FLOWERS: Yes, sir.
  QUESTION: In any circumstance?
  MR. FLOWERS: It would, yes, sir.
  QUESTION: To save the life of a mother or her health or anything else?
  MR. FLOWERS: Well, there would be the balancing of the two lives, and I think that --
  QUESTION: Well, what would you choose? Would you choose to kill the innocent one, or what?
  MR. FLOWERS: Well, in our statute the State did choose that way, Your Honor.
  QUESTION: Well, --
  MR. FLOWERS: The protection of the mother.
  QUESTION: Well, did the State of Tesas say that if it is for the benefit of the health of the wife to kill the husband?
  [Laughter.]
  MR. FLOWERS: I’m sorry, I didn’t understand your question.
  QUESTION: Could Texas say if it confronts the situation for the benefit of the health of the wife, that the husband has to die; could they kill him?
  MR. FLOWERS: I wouldn’t think so, sir.
  • pp.26-27

• QUESTION: Is there any statute in Texas that prohibits the doctor from performing any operation other than an abortion?
  MR. FLOWERS I don’t – I don’t think so, sir, and there is another thrust of our argument. If we declare, as the appellees in this case have asked this Court to declare, that an embryo or a fetus is a mass of protoplasm similar to a tumor, then, of course, the State has no compelling interest whatsoever.
  QUESTION: But there is no – the only operation that a doctor can possibly commit that will bring on a criminal penalty is an abortion?
  MR. FLOWERS: Yes, sir.
  QUESTION: Why?
  MR. FLOWERS: As far as –
  'QUESTION: Well, why don’t you limit some other operations?
  MR. FLOWERS: Because this is the only type of operation that would take another human life.
  QUESTION: Well, a brain operation could.
  MR. FLOWERS: Well, there again, that would be – I think that in every feat that a doctor performs that he is constantly making this judgment.
  QUESTION: Well, if a doctor performs a brain operation and doe it improperly, he could be guilty of manslaughter, couldn’t he?
  MR. FLOWERS: I would think so, if he was negligent.
  QUESTION: Well, why couldn’t you charge him with manslaughter if he commits an abortion?
  MR. FLOWERS: In effect, Your Honor, we did. In the statute 1195, that has been very carefully avoided all throughout these proceeding, it’s not attacked as unconstitutional, for some reason.
  • pp.27-28

• MR. FLOWERS: Gentlemen, we feel that the concept of a fetus being within the concept of a person, within the framework of the United States Constitution and the Texas Constitution, is an extremely fundamental thing.
  QUESTION: Of course, if you’re right about that, you can sit down, you’ve won your case.
  MR. FLOWERS: You Honor, --
  QUESTION: Except insofar as maybe the Texas abortion law presently goes too far in allowing abortions.
  MR. FLOWERS: Yes, sir. That’s exactly right.
  We feel that this is the only question, really, that this Court has to answer.
  • pp.29-30

• QUESTION: Do you think the case is over for you? You’ve lost your case, then, if the fetus or the embryo is not a person, is that it
  MR. FLOWERS: Yes, sir, I would say so.
  QUESTION: You mean the State has no interest of its own that it can assert, and --
  MR. FLOWERS: Oh, we have interests, Your Honor, preventing promiscuity, say maybe that’s --
  QUESTION: Mr. Flowers, your Legislature apparently, or you’re asserting that your State law wants to protect the life of the fetus.
  MR FLOWERS: Yes, sir.
  QUESTION: And under State law there is some right -
  MR. FLOWERS: Yes, sir.
  QUESTION: And under State law there is some right – that there are some rights given to the fetus.
  MR. FLOWERS: Yes, sir.
  QUESTION: And you are asserting those rights against the right of the mother.
  MR. FLOWERS: Balancing against the Ninth Amendment rights of the mother within the framework --
  QUESTION: But that’s wholly aside from whether the fetus is a person under the federal Constitution. You can still assert those rights, whether the fetus is a person or not.
  MR. FLOWERS: Yes, sir.
  • p.30-31

• MR. FLOWERS: This Court has been diligent in protecting the rights of the minority. And, gentlemen, we say that this is a minority, a silent minority, the true silent minority. Who is speaking for these children? Where is the counsel for these unborn children, whose life is being taken? Where is the safeguard of the right to trial by jury?
  Are we to place this power in the hands of a mother and a doctor? All of the constitutional rights, if this person has the person concept. What would keep a Legislature under this ground from deciding who else might or might not be a human being, or might not be a person?
  QUESTION: Well, generally speaking, I think you agree that up until now the test has been whether or not somebody has been born or not, and that’s the word used in the Fourteenth Amendment.
  MR. FLOWERS: Yes, sir.
  QUESTION: That’s what would keep the Legislature, I suppose, form classifying people that have been born as not persons.
  MR. FLOWERS: Your Honor, it seems to me that the physical act of being born – I’m not playing it down, I know it’s --
  [Laughter.]
  -- a very momentous incident. But what changes? Is it a non-human and changing, by the act of birth, into a human? Or would --
  QUESTION: Well, that’s been the theory up until now on the lawbooks.
  [Laughter.]
  MR. FLOWERS: Well, in other words, it has been the theory that we have, deriving from non-human material, a human being, after conception.
  • p.33-35

• MR. FLOWERS: I believe that the Court must take these, the medical research, and apply it to our Constitution the best they can. I said I’m without envy of the burden that the Court has.
  I think that possibly we have an opportunity to make one of the worst mistakes here that we’ve ever made, from the – I’m sorry.
  QUESTION: But there’s no medical testimony that backs up your statement that it goes from inception, is there?
  • p.35

• QUESTION: [I]s there any medical testimony of any kind that says that a fetus is a person at the time of inception?
  MR. FLOWERS: Your Honor, I would lie to call the Court’s attention, in answering that question, to what I feel to believe one of the better culminations of the medical research, and that was Senior Judge Campbell’s dissenting opinion in the Doe vs. Scott, which is very similar to the case we have before us.
  He goes in chronological order of what the medical research has determined, from the chromosome structure at the time of conception, what the potential is, down through each day of life, until it’s born.
  QUESTION: But I understood you to say that the State of Texas says it extends from the date of inception until the child is born.
  MR. FLOWERS: The date of conception until the day of – yes sir.
  • pp.35-36

• QUESTION: Now, you’re now quoting the judge, I want you to give me a medical, recognizable medical writing of any kind that says that at the time of conception the fetus is a person.
  MR. FLOWERS: I do not believe that I could give that to you, without researching through the briefs that have been filed in this case, Your Honor. I’m not sure that I could give it to you after research.
  • pp.36-37

• QUESTION: -- did Judge Campbell rely on medical authorities in that statement you’re summarizing?
  MR. FLOWERS: Yes, sir, he did. This case was – the Court held there that really the problem could be answered on an extension of the Griswold case. And here’s what my dissenting judge had to say about that, which he adopt, Your Honor.
  He said: In citing Griswold, the majority concludes we could not distinguish the interest asserted by the plaintiff in this case from those asserted in Griswold.
  In other words, in their views there is no distinction that can be made between prohibiting the use of contraceptives and prohibiting the destruction of fetal life, which as explained above, may be construed to be a human life.
  I find this assertion incredible. Contraceptive prevents the creation of new life; abortion destroys existing life. Contraceptives and abortion are as distinguishable as thoughts and dreams are distinguishable from a reality.
  • p.37

• MR. FLOWERS: [I] find no way that I know that any court or any legislature or any doctor anywhere can say that there is the dividing line. Here is not a life, and here is a life, after conception.
  Perhaps it would be better left to that legislature. There they have the facilities to have some type of medical testimony brought before them, and the opinion of the people who are being governed by it.
  QUESTION: Well, if you’re right that an unborn fetus is a person, then you can’t leave it to the Legislature to play fast and loose dealing with that person. In other words, if you’re correct in our basic submission that an unborn fetus is a person, than abortion laws such as that which New York has are grossly unconstitutional, isn’t it?
  • pp.38-39

• MR. FLOWERS: [W]e feel that the treatment that the courts have given unborn children in dissent in distribution of property rights, tort laws, have all pointed out that they have, in the past have given credence to this concept.
  QUESTION: Mr. Flowers, doesn’t the fact that so many of the State abortion statutes do provide for exceptional situations in which an abortion may be performed, and presumably these date back a great number of years, following Mr. Justice Stewart’s comment, suggest that the absolute proposition that a fetus from the time of conception is a person just is at least against the weight of historical legal approach to the question?
  Mr. FLOWERS: Yes, sir, I would think possibly that that would indicate that. However, Your Honor, in this whole field of abortion here, we have, on the one hand, great clamoring for the liberalization of it. Perhaps this is good. Population explosion. We have just so many things that are arriving on the scene in the past few years, that might have some effect on producing this type of legislation, rather than facing the facts squarely.
  I don’t think anyone has faced the fact, in making a decision, whether this is a life, in a person concept.
  • p.40

• QUESTION: Well, my historical impression is that following the Civil War Congress went through the procedure, at any rate, of readmitting the States which had seceded and passing on their constitutional provisions and that sort of thing. Did Texas have an abortion statute at that time?
  MR. FLOWERS: Yes, sir. It was passed in 1854, Your Honor.
  QUESTION: Do you know as a matter of historical fact when most of these abortion statutes came on the books?
  MR. FLOWERS: I think it was, most of them were in the mid-1800’s, Your Honor.
  QUESTION: In fact, the latter half of the Nineteenth Century?
  MR. FLOWERS: Yes, sir.
  QUESTION: Do you know why they all came on at that time?
  MR. FLOWERS: No, sir, I surely don’t.
  Question: So that the materials indicate that, during that period, they were enacted to protect the health and lives of pregnant women, because of the danger of operative procedures generally around that time?
  MR. FLOWERS: I’m sure that was a great factor, Your Honor.
  QUESTION: Well, isn’t it historically pretty well accepted as a fact that in the early period of the history of this country there was general reliance upon religious disciplines to preclude this kind of activity, abortions, and when that didn’t seem to cover it, then the States began to enact the statutes?
  MR. FLOWERS: Yes, sir.
  QUESTION: As had been done in England.
  MR. FLOWERS: Also in the exploration and the Indian days, if you wish, frontier days, I don’t imagine that too many abortions, intentional abortions were created in this, these United States. People were of such a necessity to develop the United States.
  • pp.41-43

Rebuttal Argument of Mrs. Sarah R. Weddington, On Behalf of the Appellants

• MRS. WEDDINGTON: I think Mr. Flowers well made the point when he said that no one can say, Here is the dividing line; Here is where life begins – life is here and life is not over here.
  In a situation where no one can prove where life begins, where no one can show that the Constitution was adopted, that it was meant to protect fetal life, in those situations where it is shown that that kind of decision is so fundamentally a part of individual life of the family, or such fundamental impact on the person.
  • p.43

• MRS. WEDDINGTON: At this time there is no indication to show that the Constitution would give any protection prior to birth. That is not before the Court, and that is the question that --
  QUESTION: Well, I don’t know whether it is or it isn’t.
  • p.44

• QUESTION: Well, then, isn’t the only difference between the Texas statute and the D.C. statute that the Texas statute does not have the health factor?
  MRS. WEDDINGTON: That’s correct, which makes it much more difficult for the doctor to tell when it is – when he can --
  QUESTION: But in Vuitch, unless the Court is prepared to overrule it, not a fact, the Texas statute would be valid if it was construed to include abortions for the protection of health, treating life as broad enough to do that.
  MRS. WEDDINGTON: Including mental and physical. But then the question is raised as to the right of privacy, which was not before the Court in the Vuitch case, and is before the Court in this particular situation.
  As to the Hippocratic oath, it seems to me that that oath was adopted at a time when abortion was extremely dangerous to the health of the woman; and, second, that the oath is to protect life, and here the question is: what does life mean in this particular context?
  It’s the sort of same vagueness, it seems to me, that you’re – well, okay, life there could be slightly different because of the constitutional implications here. It seems to me that --
  QUESTION: Well, the Hippocratic oath went directly and specifically to providing procedures.
  MRS. WEDDINGTON: To providing a --
  QUESTION: However life was defined.
  MRS. WEDDINGTON: That’s correct.
  • pp.46-47

• MRS. WEDDINGTON: As to mutilation, there, it seems to me, that the purpose of those statutes was to prevent the citizen from becoming a dependent or ward of the State, and also to insure that its citizens would be available for service in the military.
  In this particular instance, the rationale works just the opposite. Here a woman, because of her pregnancy, is often not a productive member of society. She cannot work, she cannot hold a job, she’s not eligible for welfare, she cannot get unemployment compensation. And furthermore, in fact, the pregnancy may produce a child who will become a ward of the State.
  • p.47

• MRS. WEDDINGTON: In this case, this Court is faced with a situation where there have been fourteen three-judge courts that have ruled on the constitutionality of abortion statues. Nine courts have favored the woman, five have gone against her. Twenty-five judges have favored the woman, seventeen have gone against her. Nine Circuit Judges have favored the woman, five have gone against her. Sixteen District Court judges have favored the woman, ten have gone against her.
  No one is more keenly aware of the gravity of the issues or the moral implications of this case, that it is a case that must be decided on the Constitution. We do not disagree that there is a progression of fetal development. It is the conclusion to be drawn from that upon which we disagree.
  • pp.47-48

• MRS. WEDDINGTON: We are not here to advocate abortion. We do not ask this Court to rule that abortion is good or desirable in any particular situation.
  We are here to advocate that the decision as to whether or not a particular woman will continue to carry or will terminate a pregnancy is a decision that should be made by that individual, that in fact she has a constitutional right to make that decision for herself, and that the State has shown no interest in interfering with that decision.
  Our supplemental brief, on page 14, points out that the brief of the opposition can’t quite decide when life does begin. At one point they suggest it’s when there’s implantation. A few pages later they suggest it’s with conception.
  • p.48

• QUESTION: But any doctor, I suppose, you would say, may refuse her?
  MRS. WEDDINGTON: Certainly, Your Honor. He may refuse any kind of medical procedure whatsoever.
  QUESTION: But the State may not; yes.
  MRS. WEDDINGTON: Here it’s the question of whether or not the State, by the statute, will force the woman to continue. The woman should be given that freedom, just as the doctor has the freedom to decide what procedures he will carry out and what he will refuse to his patients.
  QUESTION: To be sure that I get your argument in focus, I take it from recent remarks that you are urging upon us abortion on demand of the woman alone, not in conjunction with her physician?
  MRS. WEDDINGTON: I am urging that in this particular context this statute is unconstitutional. That in the Baird vs. Eisenstadt case this Court said, “If the right of privacy is to mean anything, it is the right of the individual, whether married or single, to make determinations for themselves.”
  It seems to me that you cannot say this is a woman of this particular doctor, and this particular woman. It is, it seems to me, --
  QUESTION: Well, doesn’t it follow from that, then, that a woman can come into a doctor’s office and say, “I want an abortion”.
  MRS. WEDDINGTON: And he can say “I’m sorry, I don’t perform them.”
  QUESTION: And then what does she do?
  MRS. WEDDINGTON: She goes elsewhere, if she so chooses. If she stays with that – you know, that’s an impossible question. Certainly, I don’t think the State could say the first doctor a woman goes to shall make that determination and she cannot go elsewhere.
  • pp.49-50

“Hand-Down”

Henry A. Blackmun (January 22, 1973); as quoted in “Before Roe v. Wade” by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012

• The Texas statue is representative of those presently in effect in a majority of our states and that, for the most past, were enacted during the last half of the nineteenth century. The Texas statue prohibits any abortion, or any attempt at an abortion, except where is it procured by medical advice for the purpose of saving the life of the woman. It makes no reference to health, as does the District of Columbia statute considered in United States v. Vuitch decided here in the 1970 Term. The Georgia statute, on the other hand, was enacted only in 1968. It is a modern statute patterned after the American Law Institute’s Model Penal Code. It is representative of recent legislation enacted in approximately one-quarter of our states. It makes an abortion a criminal act with certain exceptions. These exceptions are where the abortion is performed by a licensed physician and, “based upon his best clinical judgment,” the abortion is necessary because the pregnancy if continued would endanger the life or health of the woman, or the fetus would very likely be born with a grave and permanent mental or physical defect, or the pregnancy resulted from forcible or statutory rape. The Georgia statute also imposes certain procedural conditions for the obtaining of the abortion. These are several in number, but among them are (1) Georgia residence, (2) concurrence in the abortion decision by two licensed physicians in addition to the attending [physician], (3) performance of the procedure in a hospital both licensed by the state and accredited by the Joint Commission on Accreditation of Hospitals, and (4) approval by a hospital abortion committee of 3 physicians.
  So much for the statutes.
  The Texas federal court held that a woman had a right, protected by the Ninth and Fourteen[th] Amendments, to choose whether to have children and that the Texas statute was therefore void on its face.
  The Georgia federal court invalidated certain parts of the Georgia statute including the portion specifying the particular circumstances in which an abor-tion may be sought, but upheld most of the remainder of that state’s statute.
  • p.246

• The abortion issue, of course, is a most sensitive, emotional and controversial one, perhaps one of the most emotional that has reached the Court for some time. The issue is one of great public interest not confined to lawyers and their lawsuits. Convictions are firmly rooted and firmly held. At the same time, attitudes by no means are uniform. We are aware of this, and we are fully aware that, however the Court decides these cases, the controversy will continue. Our task, however, is to decide the cases on constitutional principles as we perceive those principles to be.
  In the Texas case we have filed a lengthy opinion that attempts to review the history of attitudes toward abortion, popular, legal, civic, and moral, from ancient times down to the present. We cannot escape noting, too, the change in attitudes—in recent years—of professional bodies such as the American Medical Association, the American Public Health Association, and the American Bar Association, and, indeed, the changing attitudes among the courts of this country, both state and federal. This historical approach has revealed a number of interesting things. One is the fact, already alluded to, that nearly all the strict state abortion statutes were enacted about a hundred years ago. Another is the conclusion that it is very doubtful that abortion was ever firmly established as a common law crime, even with respect to the destruction of a quick fetus. A third is that there is little consensus, even among religious or medical groups, as to when life begins. Some would fix it at the moment of conception. Others would focus on quickening. Still others would regard live birth as the significant point.
  We have concluded again, as the Court has done before, that there is a right of personal privacy under, and implicit in, the Constitution. It is not spelled out in so many words, but the Court has recognized this right before in varying contexts. We feel that it is founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action. We further conclude that this right of personal privacy includes the abortion decision, but, as we say that, we emphasize that the right is not unqualified and that it must be considered against important state interests in regulation abortion.
  • p.247

• There are, we feel, two important interests that a state possesses and that if it so desires, it may seek to protect by legislation. The first is the state’s interest in preserving and protecting the health of the pregnant woman. The second is the state’s interest in protecting the potentiality of human life, irrespective of the moment when life actually begins. These interests are separate and distinct. Each grows in substantiality as the woman approaches term, and at some point during pregnancy each becomes “compelling.”
  • p.247

• We conclude:
  1. For that portion of the pregnancy stage prior to approximately the end of the first trimester, the woman’s privacy right dominates the interests of the state. It follows that, during this period, the abortion decision must be left to the medical judgment of the woman’s attending physician.
  2. From that point on, however, the state, in promoting its interest in health, may, if it chooses, regulate the abortion procedure in ways that are appropriately related to maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility where the procedure is to be performed; and as to the licensing of the facility.
  3. From and after viability, which, we judicially notice, is usually the end of approximately the 26th or 27th week, and which is the point at which the fetus has a reasonable chance of independent life if it were then born or removed from the mother, the state’s interest in protecting the potentiality of human life dominates the woman’s right to privacy. It follows that the state may, if it chooses, regulate and even prohibit abortion, except where it is necessary in appropriate medical judgment for the preservation of the life or health of the mother.
  4. The state may define the term physician to mean only a licensed physician, and it may proscribe any abortion by a person who is not a physician
  We feel that this holding is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the attitude of the common law toward abortion, and with the demands of the profound problems of the present day. The states are thus left free to place increasing restrictions on abortion as the period of pregnancy lengthens so long as those restrictions are tailored to the recognized state interests. The decision, we also feel, vindicates the right of the physician and is consistent with the fact that abortion is essentially a medical decision until, of course, those points in pregnancy are reached when the state interests become dominant.
  Viewed under this analysis, the Texas statute must fall, and we, therefore, affirm, with one procedural exception, the judgment of the federal court of the Northern District of Texas.
  In the Georgia case we hold that the procedural requirements for J.C.A.H. accreditation for the hospital, for the hospital abortion committee, and for the additional two-doctor concurrence are unduly restrictive of the patient’s rights and of the attending physician’s rights. Similarly, we do not uphold the provision that the patient be a resident of Georgia. The remainder of the Georgia statute does not conflict with federal constitutional standards.
  • pp.248-249

• We thus strike a balance between the interests of the pregnant woman and the interests of the state in health and in potential life. Fortunately, these decisions come at a time when a majority of the legislatures of the states are in session. Presumably where these decisions cast doubt as to the constitutional validity of a state’s abortion statute, the legislature of that state may immediately review its statute and amend it to bring it into line with the constitutional requirements we have endeavored to spell out today. If this is done, there is no need whatsoever for any prolonged period of unregulated abortion practice.
  • p.249

• In closing, I emphasize what the Court does not do by these decisions. The Court does not today hold that the Constitution compels abortion on demand. It does not today pronounce that a pregnant woman has an absolute right to an abortion. It does, for the first trimester of pregnancy, cast the abortion decision and the responsibility for it upon the attending physician, whose judgment is to be exercised, as always, upon long established medical standards. For the period following the first trimester, the decisions permit the state, if it chooses, to impose reasonable regulations for the protection of maternal health. And, after viability, they give the state full right to proscribe all abortions except those that may be necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
  • Concluding paragraph that Justice Blackmun crossed out on the final draft of the hand-down; p.251

Majority

• When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer”
  • Harry Blackmun, p. 159

• This right of privacy... is broad enough to encompass a woman's decision whether or not to terminate her pregnancy....[T]he word 'person', as used in the 14th Amendment, does not include the unborn.
  • Harry Blackmun, U.S. Supreme Court, author of majority opinion in (1973).

• This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p. 179, present constitutional challenges to state criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in many States for approximately a century. The Georgia statutes, in contrast, have a modern cast, and are a legislative product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical knowledge and techniques, and of new thinking about an old issue.
  We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.
  In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.
  Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection.
  • Roe v. Wade, 410 U.S. 113 (1973).

• The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated. United States v. Munsingwear, Inc., 340 U. S. 36 (1950); Golden v. Zwickler, supra; SEC v. Medical Committee for Human Rights, 404 U. S. 403 (1972).
  But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of non-mootness. It truly could be "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911). See Moore v. Ogilvie, 394 U. S. 814, 816 (1969); Carroll v. Princess Anne, 393 U. S. 175, 178-179 (1968); United States v. W. T. Grant Co., 345 U. S. 629, 632-633 (1953).
  We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation, that she presented a justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot.
  • Roe, 410 U.S. at 125

• 1. Ancient attitudes. These are not capable of precise determination. We are told that, at the time of the Persian Empire, abortifacients were known, and that criminal abortions were severely punished. We are also told, however, that abortion was practiced in Greek times as well as in the Roman Era, and that "it was resorted to without scruple." The Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally opposed to Rome's prevailing free-abortion practices. He found it necessary to think first of the life of the mother, and he resorted to abortion when, upon this standard, he felt the procedure advisable. Greek and Roman law afforded little protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the father's right to his offspring. Ancient religion did not bar abortion.
  • Roe, 410 U.S. at 130.

• 2. The Hippocratic Oath. What then of the famous Oath that has stood so long as the ethical guide of the medical profession and that bears the name of the great Greek (460(?)-377(?) B. C.), who has been described as the Father of Medicine, the "wisest and the greatest practitioner of his art," and the "most important and most complete medical personality of antiquity," who dominated the medical schools of his time, and who typified the sum of the medical knowledge of the past? The Oath varies somewhat according to the particular translation, but in any translation the content is clear: "I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner, I will not give to a woman a pessary to produce abortion,"
  or
  "I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy. [Footnote 15]"
  • Roe, 410 U.S. at 130-131.

• This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic Oath's apparent rigidity. It enables us to understand, in historical context, a long-accepted and revered statement of medical ethics.
  • Roe, 410 U.S. at 131-132.

• The right of privacy, whether it be founded in the 14th 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.”
  A state may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.
  • p.154

• [T]he appellee and certain “amici curiae” argue that the fetus is a person within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case of course, collapses for the fetus’ right to life is then guaranteed specifically by the Amendment. The appellant conceded as much on reargument”
  • 156-157

• We need not resolve the difficult question of when life begins.
  When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.
  • Roe v. Wade 410 U.S. at 159

• Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.
  It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live' birth. This was the belief of the Stoics. [Footnote 56] It appears to be the predominant, though not the unanimous, attitude of the Jewish faith. [Footnote 57] It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family. [Footnote 58] As we have noted, the common law found greater significance in quickening. Physician and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes "viable," that is, potentially able to live outside the mother's womb, albeit with artificial aid. [Footnote 59] Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks. [Footnote 60] The Aristotelian theory of "mediate animation," that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic dogma until the 19th century, despite opposition to this "ensoulment" theory from those in the Church who would recognize the existence of life from the moment of conception. [Footnote 61] The latter is now, of course, the official belief of the Catholic Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a "process" over time, rather than an event, and by new medical techniques such as menstrual extraction, the "morning-after" pill, implantation of embryos, artificial insemination, and even artificial wombs. [Footnote 62]
  • p.159-161

• In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth, or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. For example, the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive. That rule has been changed in almost every jurisdiction. In most States, recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few courts have squarely so held. In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries. Such an action, however, would appear to be one to vindicate the parents' interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem. Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense.
  • pp.161-162

• In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes "compelling."
  With respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that, until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.
  This means, on the other hand, that, for the period of pregnancy prior to this "compelling" point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.
  With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.
  • Roe, 410 U.S. at 163-164, justia.com

• To summarize and to repeat:
  1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.
  (a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
  (b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
  (c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
  2. The State may define the term "physician," as it has been employed in the preceding paragraphs of this Part XI of this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined.
  • Roe, 410 U.S. at 164-165, justia.com

• ”is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day”
  • p.165

Concurrence

• Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. . . . That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.
  • Potter Stewart, concurring, Roe v. Wade, 410 U.S. 113, 169-170 (1973).

• Potential future human life.
  • Justice Stewart, p.170

• [T]he Court today rejects any claim that the Constitution requires abortion on demand.
  • Justice Berger, p.208

• I agree that, under the Fourteenth Amendment to the Constitution, the abortion statues of Georgia and Texas impermissibly limit the performance of abortions necessary to protect the health of pregnant women, using [410 U.S. 179, 208] the term health in its broadest medical context. See United States v. Vuitch, 402, U.S. 62, 71 0 72 (1971). I am somewhat troubled that the Court has taken notice of various scientific and medical data in reaching its conclusion; however, I do not believe that the Court has exceeded the scope of judicial notice accepted in other context.
  In oral argument, counsel for the State of Texas informed the Court that early abortion procedures were routinely permitted in certain exceptional cases, such as nonconsensual pregnancies resulting from rape and incest. In the face of a rigid and narrow statute, such as that of Texas, no one in these circumstances should be placed in a posture of dependence on a prosecutorial policy or prosecutorial discretion. Of course, States must have broad power, within the limit indicated in the opinions, to regulate the subject of abortions, but where the consequences of state intervention are so severe, uncertainty must be avoided as much as possible. For my part, I would be inclined to allow a State to require the certification of two physicians to support an abortion, but the Court holds otherwise. I do not believe that such a procedure is unduly burdensome, as are the complex steps of the Georgia statute, which require as many as six doctors and the use of a hospital certified by the JCAH.
  I do not read the Court’s holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand.
  • Roe v. Wade, Mr. Chief Justice Burger, concurring, Landmark Cases, C-SPAN, January 22, 1973

Dissenting

• [A] majority of the states…have had restrictions on abortions for at least a century.
  • Justice Rehnquist, p.174

• Is not so rooted in the traditions and conscience of our people as to be ranked as fundamental.
  • Justice Rehnquist, p.174

• Its result the Court necessarily has had to find within the scope of the 14th Amendment a right that was apparently completely unknown to the drafters of the Amendment
  • Justice Rehnquist, p.174

• I find nothing in the language or history of the Constitution to support the Court’s judgment.
  • Justice White, p.222

• An exercise of raw judicial power.
  • Justice White, p.222

• Should be left with the people and to the political processes the people have devised to govern their affairs.
  • Justice White, p.222

• [A]n opposition is being created between actuality and potentiality-to the detriment of the fetus’s personhood.
  • Montgomery, p. 283

• On the merits, plaintiffs argue as their principal contention that the Texas Abortion Laws must be declared unconstitutional because they deprive single women and married couples of their rights secured by the Ninth Amendment to choose whether to have children. We agree."
  • Roe v. Wade, 314 F. Supp. 1217, 1221 (N.D. Tex. 1970)

• [M]ortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth.
  • p.725.

• The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental...’
  • William H. Rehnquist, U.S. Supreme Court, one of two dissenters against the majority opinion in the landmark abortion case, Roe v. Wade (January 22, 1973).

• While the Court's opinion quotes from the dissent of Mr. Justice Holmes in Lochner v. New York, 198 U. S. 45, 74 (1905), the result it reaches is more closely attuned to the majority opinion of Mr. Justice Peckham in that case. As in Lochner and similar cases applying substantive due process standards to economic and social welfare legislation, the adoption of the compelling state interest standard will inevitably require this Court to examine the legislative policies and pass on the wisdom of these policies in the very process of deciding whether a particular state interest put forward may or may not be "compelling." The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.
  The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental," Snyder v. Massachusetts, 291 U. S. 97, 105 (1934). Even today, when society's views on abortion are changing, the very existence of the debate is evidence that the "right" to an abortion is not so universally accepted as the appellant would have us believe.
  To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. Conn.Stat., Tit. 22, §§ 14, 16. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857, and "has remained substantially unchanged to the present time." Ante at 119.
  There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.
  • Roe, 410 U.S. at 174–77 (Rehnquist, J., dissenting).

• I find nothing in the language or history of the Constitution to support the Court’s judgment.
  • Justice White, p.222

• An exercise of raw judicial power.
  • Justice White, p.222

• At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons -- convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc.
  • Byron White, U.S. Supreme Court, one of two dissenters in Roe v. Wade, (January 22, 1973).

• I find nothing in the language or history of the Constitution to support the court's judgment. The court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.
  • Byron White, U.S. Supreme Court, one of two dissenters in Roe v. Wade, (January 22, 1973).

About Roe v. Wade

• If the right to choose is to survive and flourish on its 50th anniversary, those who came of age after Roe must rise to its defense. Current public opinion research indicates that the generations born in the 1960s and afterward take the right for granted. To the extent possible, we must use the 25th anniversary as an opportunity to teach our daughters and sons the history of the struggle for abortion rights and to enlist them in the movement for reproductive freedom.
  • American Civil Liberties Union, "The Right to Choose at 25: Looking Back and Ahead". www.aclu.org. Retrieved October 5, 2015.

• A fifth circuit panel unanimously agreed that, regardless of the merits of McCorvey’s Rule 60(b) motion, McCorvey had presented no live case or controversy. Accordingly, her case was moot and her appeal was dismissed. The decision was rendered September 17, 2004 and was easy to miss amid the growing media circus surrounding the presidential election Moreover, it was the result commentators on both sides of the abortion debate expected. Few gave the Rule 60(b) motion much of a chance to succeed. Accordingly, the decision slipped by largely unnoticed.
  What should not have slipped by was Judge Edith H. Jones’s remarkable concurrence in McCorvey. Despite having dutifully crafted the panel opinion, Judge Jones felt compelled to write a strikingly candid concurrence. The subject matter of her concurrence gives us some clue about her motivations. Excepting Justice White’s dissent in Doe v. Bolton, it is difficult to find a stronger call (at least in the Federal Reporter) for the reassessment of Roe v. Wade and its critical factual premises.
  • Adams, Andrew (2004). "Aborting Roe: Jane Roe Questions the Viability of Roe v. Wade". Tex. Rev. L. & Pol., p.327

• We hold that Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.
  • Justice Alito in a majority draft opinion "Supreme Court has voted to overturn abortion rights, draft opinion shows" (05/02/2022 08:32 PM EDT by Josh Gerstein and Alexander Ward)

• Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.
  • Justice Alito in a majority draft opinion "Supreme Court has voted to overturn abortion rights, draft opinion shows" (05/02/2022 08:32 PM EDT by Josh Gerstein and Alexander Ward)

• [F]or nearly 200 years, Madison’s masterpiece made no mention of abortion. It was an area, instead, left to the States and to the people. But all that changed 25 years ago tomorrow, when Justice Harry Blackmun and the Court nationalized-indeed, revolutionized-the issue of abortion in Roe v. Wade.
  The Blackmun decision has sparked a quarter century of private reflection and public debate. It happens that abortion has been made the most divisive moral question of the day. Abortion strikes at the very core of who we are as a people and who we are as a Nation. It challenged us to define life and to measure liberty-difficult things both. And yet it is an issue that will not go away, and so it demands of us civil debate and reasoned discourse.
  • John Ashcroft, “OPENING STATEMENT OF HON. JOHN ASHCROFT, A U.S. SENATOR FROM THE STATE OF MISSOURI”, p.1, (January 21, 1998)

• [O]n the eve of its 25th anniversary, it seems fair for us to look at Roe with the benefit of experience and expanding medical knowledge and to ask, has it stood the test of time? As a legal matter, the absence of any constitutional text at the foundation for the trimester model established in Roe has resulted in an abortion framework marked by both confusion and instability. It demonstrates the dangers of building legal rules on the quicksand of judicial imagination rather than on the certainty of constitutional text.
  The trimester model of Roe proved so artificial that the Court struggled with it initially and then ultimately abandoned it. While paying lip service to Roe, the Court formally interred the trimester framework in its 1992 Casey decision. The current constitutional standard permits restrictions on abortion only if they do not place an “undue burden” on the Court’s right to an abortion.
  Tragically, this is a standard which gives the Court unlimited discretion to authorize the destruction of innocent human life. Thirty-seven million children have been destroyed since Roe v. Wade became the law of the land-37 million children who will never know the warmth of a father’s embrace or the strength of a mother’s love. It is a tragedy unmatched in modern times.
  Regrettably, the damage that Roe has wrought on the culture and the Constitution has not been confined to the realm of abortion. To buttress Roe as a constitutional law, the courts have created exceptions to the individual rights that are constitutionally protected. So, for example, to protect Roe, the Court has weakened the first amendment speech guarantees that Madison championed and for which patriots died.
  The Roe decision appears to have fared no better as a matter of modern medical practice than it has as a matter of constitutional law. Roe’s trimester framework was from the very beginning an oversimplification, nothing more than a whole-cloth creation of Justice Blackmun’s legal mind. Developments in medical technology, from the widespread use of ultrasound to the miracle of in utero surgery, have completely undermined the medical assumptions upon which Roe was premised.
  • John Ashcroft, “OPENING STATEMENT OF HON. JOHN ASHCROFT, A U.S. SENATOR FROM THE STATE OF MISSOURI”, p.2, (January 21, 1998)

• The threat in Wisconsin and in States across the country is clear. Some politicians are doing this because they think they know better than women and their doctors. And the fact is that they do not.
  Women are more than capable of making their own personal, medical decisions without consulting their legislator.
  It is not the job of politicians to play doctor and to

dictate how professionals practice medicine. Nor is it our job to intrude in the private lives and important health decisions of American families.
This is why I was proud to be a cosponsor of the Women's Health Protection Act with my colleagues Senator Blumenthal and Congresswoman Chu to put a stop to these relentless attacks on women's freedom.
Let me conclude by briefly describing the bill.
The Women's Health Protection Act would prohibit these laws that undermine and infringe on a woman's constitutional rights guaranteed under Roe v. Wade. Specifically, our bill would outlaw any mandate or regulation that does not significantly advance women's health or safety. Our legislation also protects women by invalidating measures that make abortion services more difficult to access and restrictions on the provision of abortion services that are not imposed on any other medical procedures.

• • STATEMENT OF HON. TAMMY BALDWIN, in "Senate Hearing 113-844". U.S. Government Publishing Office. July 15, 2014. Archived from the original on May 8, 2022. Retrieved May 8, 2022.

• Indeed, there is a cottage industry among liberal law professors devoted to rewriting cases like Roe v. Wade and Brown v. Board of Education that seem to have been inadequately reasoned. Roe is a particularly good example: Liberal and feminist legal scholars have spent decades showing that the result was correct even if Justice Blackmun’s opinion seems to have been taken from the Court’s Cubist period.
  • Balkin, Jack. Bush v. "Gore and the Boundary Between Law and Politics" Archived February 27, 2008, at the Wayback Machine, 110 Yale Law Journal 1443-1444, (2001)

• The medical and the psychological concern always lies with the mother in the situation of unwanted pregnancy and abortion: “the prevailing social standard after Roe is that the mother’s interest in avoiding the burdens of motherhood outweighs the interest in life or potential life for the fetus” (Botkin, J. R., 1995, pp.33).
  • Mallory Baucom, “Perfection: The Perfection: The Fatality of Down Syndrome”, Gardner-Webb University, December 2018 p.10

• [Should the Supreme Court’s draft opinion to overturn Roe v. Wade hold, it would be] really quite a radical decision. If sustained, a whole range of rights are in question.
  • Joe Biden Biden warns Supreme Court potentially overturning Roe v. Wade would be 'really quite a radical decision’ (WHITE HOUSE Published May 3, 2022 1:16pm EDT)

• Q: One question on abortion rights in Texas, sir. What would be your message to women in Texas? And what can your administration do to protect abortion rights on the federal level?

THE PRESIDENT: I’m late for going down. I’m going to talk about these things from Louisiana. But I have been — continue to be a strong supporter of Roe v. Wade. Number one.
And the most pernicious thing about the Texas law: It sort of creates a vigilante system where people get rewards to go out to — anyway.
And it just seems — I know this sounds ridiculous — almost un-American, what we’re talking about — not to debate about —
And I under- — I respect people who think that — who don’t support Roe v. Wade; I respect their views. I respect them — they — those who believe life begins at the moment of conception and all. I respect that. Don’t agree, but I respect that. I’m not going to impose that on people.

• Joe Biden, “Remarks by President Biden on the August Jobs Report”, whitehouse.gov, (September 3, 2021)

• "Roe v. Wade cut in a place where the vast majority of religions have reached agreement," he said, noting that during "the first three months or thereabouts, in all major religions" the decision to obtain an abortion is between a woman and her family.
  Mr. Biden continued: "Next three months is between a woman and her doctor. The last three months have to be negotiated, because you can't — unless you are in a position where your physical health is at stake — you can't do it."
  • Joe Biden as quoted by Melissa Quinn, “Biden says he's "not big on abortion" because of Catholic faith, but Roe "got it right"”, CBS News, (June 28, 2023)

• "In sum, Roe's requirement of strict scrutiny as implemented through a trimester framework should not be disturbed.".
  • Casey, 505 U.S. at 930–34 (Blackmun, J., concurring in part and dissenting in part)

• I am certainly not in a good position to dispute that the Court has saved the "central holding" of Roe, since to do that effectively I would have to know what the Court has saved, which in turn would require me to understand (as I do not) what the "undue burden" test means. I must confess, however, that I have always thought, and I think a lot of other people have always thought, that the arbitrary trimester framework, which the Court today discards, was quite as central to Roe as the arbitrary viability test, which the Court today retains. It seems particularly ungrateful to carve the trimester framework out of the core of Roe, since its very rigidity (in sharp contrast to the utter indeterminability of the "undue burden" test) is probably the only reason the Court is able to say, in urging stare decisis, that Roe "has in no sense proven 'unworkable,'" ante, at 855. I suppose the Court is entitled to call a "central holding" whatever it wants to call a "central holding"-which is, come to think of it, perhaps one of the difficulties with this modified version of stare decisis. I thought I might note, however, that the following portions of Roe have not been saved:
  Under Roe, requiring that a woman seeking an abortion be provided truthful information about abortion before giving informed written consent is unconstitutional, if the information is designed to influence her choice. Thornburgh, 476 U. S., at 759-765; Akron I, 462 U. S., at 442-445. Under the joint opinion's "undue burden" regime (as applied today, at least) such a requirement is constitutional. Ante, at 881-885.
  Under Roe, requiring that information be provided by a doctor, rather than by non-physician counselors, is unconstitutional. Akron I, supra, at 446-449. Under the "undue burden" regime (as applied today, at least) it is not. Ante, at 884-885.
  Under Roe, requiring a 24-hour waiting period between the time the woman gives her informed consent and the time of the abortion is unconstitutional. Akron I, supra, at 449451. Under the "undue burden" regime (as applied today, at least) it is not. Ante, at 885-887.
  Under Roe, requiring detailed reports that include demographic data about each woman who seeks an abortion and various information about each abortion is unconstitutional. Thornburgh, supra, at 765-768. Under the "undue burden" regime (as applied today, at least) it generally is not. Ante, at 900-901.
  • Harry Blackmun, "Planned Parenthood v. Casey", 505 U.S. 833 (1992), 993-994

• S.B. 8 explicitly excludes state officials from enforcing the law, which was designed to avoid having those officials named as defendants in challenges to the ban before it was ever used against a provider.
  The roughly six-week cutoff in the law is 18 weeks less than the standard set by Roe v. Wade, the 1973 Supreme Court ruling that first enshrined a woman’s constitutional right to abortion.
  The court in that ruling said that states could not ban abortions in the first trimester of pregnancy, a period that was chosen because of the idea that a fetus typically could not survive outside the womb during that time.
  • “Supreme Court allows lawsuit challenging Texas abortion ban to continue but keeps law in effect for now” by Kevin Breuninger and Dan Mangan, CNBC, December 10, 2021

• ON A HOTNIGHT in August 1969, Norma McCorvey, a twenty-one-year-old carnival worker nicknamed Pixie, was returning to her motel on a side road outside Augusta, Georgia. On her way back to her room, she was gang-raped by three men and a woman. The carnival and Pixie moved on to Texas. There, several weeks later, Pixie found herself pregnant. A high school dropout, who was divorced and had a five-year-old daughter and little money, Norma McCorvey unsuccessfully sought an abortion. Texas, like most other states at the time, prohibited abortions unless necessary to save a woman’s life. “No legitimate doctor in Texas would touch me,” she has remembered. “I found one doctor who offered to abort me for $500. Only he didn’t have a license, and I was scared to turn my body over to him. So there I was-pregnant, unmarried, unemployed, alone and stuck.” A lawyer friend, Henry McCloskey, Jr., agreed to find someone to adopt the baby. He also introduced her to two recent graduates of the University of Texas Law School, Sarah Weddington and Linda Coffee.
  • David M. O'Brien, “Storm center: the Supreme Court in American politics”, New York City: W. W. Norton, 1986, pages 22–24

• Having turned to religion, McCorvey then said being part of the decision to legalise abortion "was the biggest mistake of my life".
  • "Roe v Wade: Woman in US abortion legal test case dies". bbc.co.uk. February 18, 2017.

• McCorvey first filed the case in 1969 - she was pregnant with her third child and said she had been raped. But the case was rejected and she gave birth.
  • "Roe v Wade: Woman in US abortion legal test case dies". bbc.co.uk. February 18, 2017.

• McCorvey, having revealed her real name in the 1980s, went on to clarify that she had not been raped as she had earlier claimed. She had said so only to get permission for an abortion and speed up her case.
  • "Roe v Wade: Woman in US abortion legal test case dies". bbc.co.uk. February 18, 2017.

• Ginsburg cautioned against the idea of thinking that the 1973 Roe v Wade ruling, which declared abortion was a constitutional right, was enough to guarantee women's reproductive freedom. Ginsburg was a lifelong staunch advocate for abortion rights and gender equality, but from her early days she had criticised the Supreme Court's handling of the abortion issue.
  She believed that the Roe v Wade case had based the right to abortion on the wrong argument, a violation of a woman's privacy rather than on gender equality. This, she thought, left the ruling vulnerable to targeted legal attacks by anti-abortion activists.
  Ginsburg felt that because the ruling had legalised abortion overnight nationwide, it had failed to resolve the issue. It had the effect of halting the political process that had been moving to liberalise abortion already – with advocates now believing that right was secure – and instead mobilised the anti-abortion movement.
  • BBC, “In History: How Ruth Bader Ginsburg foresaw the threat to abortion access in the US”, (3/18/2024)

• Some believe that the United States is already experiencing the eugenic effects of abortion. According to one economist, “ Roe v. Wade help[ed] trigger, a generation later, the greatest crime drop in recorded history.” S. Levitt & S. Dubner, Freakonomics 6 (2005); see id., at 136–144 (elaborating on this theory). On this view, “it turns out that not all children are born equal” in terms of criminal propensity. Id., at 6. And legalized abortion meant that the children of “poor, unmarried, and teenage mothers” who were “much more likely than average to become criminals” “weren’t being born.” Ibid. (emphasis deleted). Whether accurate or not, these observations echo the views articulated by the eugenicists and by Sanger decades earlier: “Birth Control of itself . . . will make a better race” and tend “toward the elimination of the unfit.” Racial Betterment 11–12.
  • “18-483 Box v. Planned Parenthood of Indiana and Kentucky, Inc.”, May 28. 2019, Opinion of Thomas, J., concurring, pp.17-18 (21-22)

• Justice Harry Blackmun did more inadvertent damage to our democracy than any other 20th-century American. When he and his Supreme Court colleagues issued the Roe v. Wade decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to destroy the Senate as we know it.
  When Blackmun wrote the Roe decision, it took the abortion issue out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises reflecting the views of the centrist majority that’s always existed on this issue. These legislative compromises wouldn’t have pleased everyone, but would have been regarded as legitimate.
  Instead, Blackmun and his concurring colleagues invented a right to abortion, and imposed a solution more extreme than the policies of just about any other comparable nation.
  • David Brooks, "Roe's Birth and Death", New York Times, (April 21, 2005)

• The fact is, the entire country is trapped. Harry Blackmun and his colleagues suppressed that democratic abortion debate the nation needs to have. The poisons have been building ever since. You can complain about the incivility of politics, but you can’t stop the escalation of conflict in the middle. You have to kill it at the root. Unless Roe v. Wade is overturned, politics will never get better.
  • David Brooks, "Roe's Birth and Death", New York Times, (April 21, 2005)

• Alito then asked Rikelman for “the principal source that the court relied on in Roe for its historical analysis,” asking “Who was the author of that of that article?” She told him she could not recall the author. A friend-of-the-court brief in the Dobbs case from Robert George, McCormick professor of jurisprudence at Princeton, and John Finnis, Biolchini Family Professor of Law Emeritus at the University of Notre Dame, questioned the credibility of Roe’s principal source for historical analysis: Cyril Means, who was general counsel for the National Association for the Repeal of Abortion Laws.
  Their brief points out that even Roe’s legal team expressed their doubts about the validity of Means’ historical claims as they wrote in a 1971 memo that “Means’ ‘conclusions sometimes strain credibility’ and ‘fudge’ the history but ‘preserve the guise of impartial scholarship while advancing the proper ideological goals.’”
  • Lauretta Brown, Fact-Checking the Abortion Claims in ‘Dobbs v. Jackson Women’s Health’ Oral Arguments", National Catholic Register, December 3, 2021

• We are concerned about abortion because it deals with the lives of two human beings, mother and child. I know there are people of good will who disagree, but after years of sober and serious reflection on the issue, this is what I think. I think the Supreme Court's decision in Roe versus Wade was wrong and should be overturned. I think America needs a human life amendment. And I think when it comes to abortion there's a better way: the way of adoption, the way of life.
  • Bush, George Herbert Walker. “Remarks to Participants in the March for Life Rally” (January 23, 1989):

• Roe v. Wade, the 1973 Supreme Court decision legalizing abortion, was wrong because it usurped the power of the legislatures, Bush said.
  I felt like it was a case where the court took the place of what the legislatures should do in America, he said when asked whether he thought the decision should be overturned.
  But Bush refused to say how he felt each state should act. Instead, he said that when it comes to legalizing abortion, it should be up to each legislature.
  • George W. Bush as quoted by Kornblut, Anne E. (January 22, 2000). "Bush Tells Addicts He Can Identify". Boston Globe. p. A12.

• About 7 years after my own abortion, Roe v. Wade was handed down. It was one of the most important days of my life and one of the most important days in the lives of millions of American women then and now and in the lives of their loved ones. It was a day when imaginary bells rang out for me. Let freedom ring, let freedom ring.
  • “Statement of Carol Carter”, (January 21, 1998); The 25th Anniversary of Roe V. Wade: Has it Stood the Test of Time? : Hearing Before the Subcommittee on the Constitution, Federalism, and Property Rights of the Committee on the Judiciary, United States Senate, One Hundred Fifth Congress, Second Session ... January 21, 1998, Volume 4, p.43

• I am convinced that every abortion is an unplanned tragedy, brought about by a combination of human errors and this has been one of the most difficult moral and political issues I have had to face. As president, I accepted my obligation to enforce the "Roe v. Wade" Supreme Court ruling, and at the same time attempted in every way possible to minimize the number of abortions.
  One of my best-remembered and most often quoted remarks came in July 1977, when I defended my lack of support for federal funds to be used for abortions among poor mothers, even though wealthier women could afford to have their pregnancies terminated. Without any careful forethought, I responded to a question on this issue by saying, "Life is often unfair."
  • Jimmy Carter, “Our Endangered Values”, Sep 26, 2006, p. 72.

• KING: It would not bother you if they overturned Roe v. Wade?

CARTER: When I was president, I announced and I still maintain that I can live with Roe v. Wade. I did everything I possibly could as president under that ruling, which I don't think ought to be changed, to minimize the need for abortions. I think every abortion is a result of a horrible series of errors on the part of people involved.
And so, I made sure that our young people had adequate instruction on how to avoid pregnancy if they should choose to have sex before marriage and before they wanted a baby, abstinence is the best approach of course, I made sure that women and infant children, the WIC Program, Women and Infant Children gave prospective mothers the assurance that they could have their child and that they would be adequately cared for economically.
And I also improved the quality or ease of adoptions by a mother who didn't want to raise her child to get matched up in a convenient way with couples who couldn't have children of their own and could delightfully raise those children. So, I did everything I could to minimize the need for abortions.

• • Carter, James Earl. Larry King Live, CNN, “Interview With Jimmy Carter” (February 1, 2006).

• Roe v. Wade itself provided abortion rights with an unstable foundation.
  • James F. Childress (1984). “Bioethics Reporter”. University Publications of America. p. 463. Retrieved August 2, 2013.

• Every woman should have access to affordable and comprehensive health care coverage that protects her right to choose. This should be the case regardless of her income, the type of insurance she has, or the State she resides in so that she can make personal health decisions based on what is best for her and her family.
  But we are witnessing an alarming moment in time. Attacks on reproductive rights are intensifying. Having lost in our court system with Roe v. Wade, opponents of reproductive freedom are trying to undercut our constitutional right and make it increasingly difficult to access a legal abortion. They are trying to take us back to a time before Roe, when 1.2 million women resorted to illegal abortions each year. Their goal is to take us back to a time when unlicensed doctors, in unsanitary conditions, performed abortions that led to infections, hemorrhages, and at times, death. They are taking us back to a time when many women knew the hazards, but risked all of this because they were desperate--and this was their only option.
  • Statement of Hon. Judy Chu in "Senate Hearing 113-844". U.S. Government Publishing Office. July 15, 2014. Archived from the original on May 8, 2022. Retrieved May 8, 2022.

• The Texas dispute is the second major abortion case that the court, which has a 6-3 conservative majority, has scheduled for the coming months, with arguments set for Dec. 1 over the legality of a restrictive Mississippi abortion law.
  The Texas and Mississippi measures are among a series of Republican-backed laws passed at the state level limiting abortion rights - coming at a time when abortion opponents are hoping that the Supreme Court will overturn the landmark 1973 Roe v. Wade that legalized the procedure nationwide.
  Mississippi has asked the justices to overturn Roe v. Wade, and the Texas attorney general on Thursday signaled that he also would like to see that ruling fall.
  • Chung, Andrew (October 22, 2021). "U.S. Supreme Court to hear challenge to Texas abortion ban". Reuters. Retrieved October 22, 2021.

• The court’s seven-to-two decision, which basically made abortion legal in the first trimester and subject to state regulation thereafter, was based on the constitutional right of privacy, which the justices ruled “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
  The Supreme Court knew it was entering difficult and uncharted territory: “We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires.” In hindsight, the decision held multiple clues about the future of the abortion battle — and by extension, the fortunes of feminism. It affirmed a woman’s constitutional right to an abortion but mandated that the circumstances under which those abortions could take place would remain firmly in the hands of doctors in medical settings. Furthermore, the distinction between first-trimester and late-term abortions opened the door for states to impose other restrictions on the access and timing of abortion provision.
  • "Click - Debating Reproductive Rights - Reproductive Rights and Feminism, History of Abortion Battle, History of Abortion Debate, Roe v. Wade and Feminists". www.cliohistory.org. Retrieved December 2, 2017.

• [B]etween one and the other, black or white, is a vast area of gray where up or down, yes or no, fades to questions about circumstance: Why, what month, etc.? Whatever the case, the very basis of the Roe v. Wade decision -- the one that grounds abortion rights in the Constitution -- strikes many people now as faintly ridiculous. Whatever abortion may be, it cannot simply be a matter of privacy.
  That right of privacy, first enunciated in 1965 in Griswold v. Connecticut, once made sense. It overturned a state law forbidding the use of contraceptives by married couples. The average person could easily understand that a right of privacy was at issue here. If the government telling you what you can and cannot do in your own bedroom is not about privacy, then what is? The Connecticut law had to go. If the state legislature wasn't going to take it off the books, then the court had to.
  Abortion is a different matter. It entails so much more than mere birth control -- issues that have roiled the country ever since the Roe decision was handed down in 1973 -- and so much more than mere privacy. As a layman, it's hard for me to raise profound constitutional objections to the decision. But it is not hard to say it confounds our common-sense understanding of what privacy is.
  If a Supreme Court ruling is going to affect so many people then it ought to rest on perfectly clear logic and up-to-date science. Roe , with its reliance on trimesters and viability, has a musty feel to it, and its argument about privacy raises more questions than it answers. For instance, if the right to an abortion is a matter of privacy then why, asked Princeton professor Robert P. George in the New York Times, is recreational drug use not? You may think you ought to have the right to get high any way you want, but it's hard to find that right in the Constitution. George asks the same question about prostitution. Legalize it, if you want -- two consenting adults, after all -- but keep Jefferson, Madison and the rest of the boys out of it.
  • Cohen, Richard. "Support Choice, Not Roe", Washington Post, (October 19, 2005): Retrieved January 23, 2007.

• Conservatives -- and some liberals -- have long argued that the right to an abortion ought to be regulated by states. They have a point. My guess is that the more populous states would legalize it, the smaller ones would not, and most women would be protected. The prospect of some women traveling long distances to secure an abortion does not cheer me -- I'm pro-choice, I repeat -- but it would relieve us all from having to defend a Supreme Court decision whose reasoning has not held up. It seems more fiat than argument.
  For liberals, the trick is to untether abortion rights from Roe . The former can stand even if the latter falls. The difficulty of doing this is obvious. Roe has become so encrusted with precedent that not even the White House will say how Harriet Miers would vote on it, even though she is rigorously antiabortion and politically conservative. Still, a bad decision is a bad decision. If the best we can say for it is that the end justifies the means, then we have not only lost the argument -- but a bit of our soul as well.
  • Cohen, Richard. "Support Choice, Not Roe", Washington Post, (October 19, 2005): Retrieved January 23, 2007.

• Decisions about what you can do with your body are now being made by four old dudes and a woman who thinks 'The Handmaid's Tale' is a rom-com.
  • Stephen Colbert Stephen Colbert blasts Supreme Court justices behind potential Roe v. Wade overturn (May 4, 2022)

• If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office. Obviously, we won’t know each Justice’s decision and reasoning until the Supreme Court officially announces its opinion in this case
  • Susan Collins Senator Collins’ Statement on Leaked Dobbs v. Jackson Women's Health Organization Draft Decision (PUBLISHED: MAY 03, 2022)

• People who believe that a woman should be able to choose abortion may see today’s outcome as a threat to Roe v. Wade, the Supreme Court decision that legalized abortion under certain circumstances. Opponents hope it will pose just that kind of threat.
  Roberta Combs, president of the Christian Coalition of America, said: “With today’s Supreme Court decision, it is just a matter of time before the infamous Roe v. Wade decision in 1973 will also be struck down by the court.”
  • Roberta Combs as quoted by Stout, David (April 18, 2007). "Supreme Court Upholds Ban on Abortion Procedure". The New York Times. ISSN 0362-4331. Retrieved January 16, 2020.

• In the early 1970s individual women’s rights advocates and interest groups began bringing legal challenges to state abortion laws (McGlen et al., 2002). Ultimately, two cases, Roe v. Wade and its companion case Doe v. Bolton, changed the abortion rights landscape.
  Roe, a challenge to a Texas law that criminalized abortion except when the woman’s life was in danger, was brought by two recent law school graduates, Sarah Weddington and Linda Coffee, on behalf of “Jane Roe” and all other “similarly situated” women. Margie Pitts Hames brought the Doe cse, a challenge to a Georgia abortion law. Weddington, who was only 26 years old at the time she argued Roe, and Hames would both later serve as NARAL presidents (O,Connor, 1996, p. 51).
  Roe and Doe marked an important coordination of women’s rights groups, with groups such as NOW, the American Association of University Women, and Planned Parenthood filing amicus briefs in support of Roe and Doe (McGlen et al., 2002; O’Connor 1996). Weddington, Coffee, Hames, and the groups supporting them were successful: In a 7 to 2 decision, the Supreme Court held that the “the right of personal privacy includes the abortion decision” (Roe v. Wade, 1973). Following Roe, litigators from groups such as NARAL and the ACLU jointly filed lawsuits to enforce the decision (Staggenborg, 1991).
  • “Gender and Women's Leadership: A Reference Handbook” by Karen O'Connor, London: SAGE Publications, 2010, p.744

• While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume Roe's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe's central holding a doctrinal remnant; Roe portends no developments at odds with other precedent for the analysis of personal liberty; and no changes of fact have rendered viability more or less appropriate as the point at which the balance of interests tips. Within the bounds of normal stare decisis analysis, then, and subject to the considerations on which it customarily turns, the stronger argument is for affirming Roe's central holding, with whatever degree of personal reluctance any of us may have, not for overruling it.
  • Sandra Day O’Connor, Anthony Kennedy and David Souter; "Planned Parenthood v. Casey", 505 U.S. 833 (1992), 860-861

• The examination of the conditions justifying the repudiation of Adkins by West Coast Hotel and Plessy by Brown is enough to suggest the terrible price that would have been paid if the Court had not overruled as it did. In the present cases, however, as our analysis to this point makes clear, the terrible price would be paid for overruling. Our analysis would not be complete, however, without explaining why overruling Roe's central holding would not only reach an unjustifiable result under principles of stare decisis, but would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law. To understand why this would be so it is necessary to understand the source of this Court's authority, the conditions necessary for its preservation, and its relationship to the country's understanding of itself as a constitutional Republic.
  • Sandra Day O’Connor, Anthony Kennedy and David Souter; "Planned Parenthood v. Casey", 505 U.S. 833 (1992) 864-865

• I suppose it would be nice to say here that when I made that phone call-after which a woman named Linda Coffee called me back to set up a meeting-I realized I was making abortion-rights history. Or changing my life forever. But the honest truth is that nothing like that even occurred to me. I was simply at the end of my rope. At a dead end. I just didn’t know what else to do.
  • Norma McCorvey, I AM ROE, ^{[page needed]}

• Speaking of Roe-
  fails to even consider what I would suppose to be the most compelling interest of the State in prohibiting abortion, the interest in maintaining that respect for the paramount sanctity of human life which has always been at the center of western civilization, not merely by guarding life itself, however defined, but by safeguarding the penumbra, whether at the beginning through some overwhelming disability of mind or body, or at death * * *
  For one concerned with the proper role of the Supreme Court in American Government, and more particularly with the debate over judicial activism, the abortion cases have threefold significance. First, the decisions plainly continue the activist reforming trend of the Western Court. They are reforming in the sense that they sweep away established law supported by the moral themes dominant in American life for more than a century in favor of what the Court takes to be the wiser view of a question under active public debate.
  Second, the justices read into the generalities of the due process clause of the 14th amendment a new “fundamental right” not remotely suggested by the words. Because they found that right to be “fundamental” the justices felt no duty to deter to the value judgments of the people’s elected representatives, current as well as past. They applied the strict standard of review applicable to repression of political liberties.
  • Cox, Archibald. "The Role of the Supreme Court in American Government", (Oxford U. Press 1976), p.53

• My criticism of Roe v. Wade is that the Court failed to establish the legitimacy of the decision by not articulating a precept of sufficient abstractness to lift the ruling above the level of a political judgment based upon the evidence currently available from the medical, physical and social science. Nor can I articulate such a principle unless it be that a state cannot interfere with individual decisions relating to sex, procreation, and family with only a moral or philosophical state justification, a principle which I cannot accept or believe will be accepted by the American people.
  The failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations whose validity is good enough this week but will be destroyed with new statistics upon the medical risks of child birth and abortion or new advances in providing for the separate existence of a fetus. Neither historian, layman, nor lawyer will be persuaded that all the details prescribed in Roe v. Wade are part of either natural law or the Constitution.
  Constitutional rights ought not be created under the due process clause unless they can be stated in principles sufficiently absolute to give them roots throughout the community and continuity over significant periods of time and to lift them above the level of the pragmatic political judgments of a particular time and place.
  • Cox, Archibald. "The Role of the Supreme Court in American Government", (Oxford U. Press 1976), pp.113-114

• Ironically enough, Buck v. Bell was cited by Justice Thurgood Marshall as the “initial decision,” reaffirmed in Roe v. Wade, that the constitution provided no special protection for procreation. San Antonio School District v. Rodriquez 411 U.S. 1 (1972). Irony is piled upon irony when it is further recognized that Carrie Buck, the principal in Buck v. Bell, was not in fact an “imbecile” and that her child Vivian, whose birth provoked Carries sterilization, turned out to be normal. In short, there were no “three generations of imbeciles.”
  • “In Search of Human Nature: The Decline and Revival of Darwinism in American Social Thought” by Carl N. Degler, New York: Oxford University Press, 1991, Footnote p.48

• Putting the right to abortion back on the same constitutional footing the Supreme Court laid down nearly a quarter-century ago, a divided Supreme Court on Monday swept away new forms of state restrictions on the way clinics can function. Together with recent refusals by the Court to allow states to narrow the scope of the abortion right itself, the new ruling in Whole Woman’s Health Clinic v. Hellerstedt thwarted a wave of new laws against women’s choice to end pregnancy.
  • Denniston, Lyle (June 27, 2016). "Whole Woman's Health v. Hellerstedt – Opinion analysis: Abortion rights reemerge strongly". SCOTUSblog. Retrieved June 29, 2016.

• The Casey decision had partly reaffirmed the basic abortion rights ruling of 1973, Roe v. Wade, but still protected a wide range of choice for a women to seek an abortion up to “viability” — the point at which the fetus would be capable of living if delivered from the woman’s body. Many state legislatures have recently tried to ban abortions before that point, but the Supreme Court has refused to hear defenses of those new laws, and Breyer’s opinion noted that the Court still follows the 1992 standard.
  • Denniston, Lyle (June 27, 2016). "Whole Woman's Health v. Hellerstedt – Opinion analysis: Abortion rights reemerge strongly". SCOTUSblog. Retrieved June 29, 2016.

• Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy)... .
  • Taking the Stand: My Life in the Law by Alan Dershowitz, New York: Broadway Books, 2013, page 433

• A new Harvard CAPS-Harris Poll survey, released exclusively to The Hill, finds that most Americans disagree with the status quo on abortion policy created by Roe v. Wade. But, of course, The Hill is headlining its coverage of the poll by highlighting that a majority of Americans (54 percent) say they oppose overturning Roe.
  The very same poll found that a majority of Americans supports moving the viability threshold to 15 weeks’ gestation. When told that Roe permits abortion until viability, marked at 24 weeks, 56 percent said they support either overturning the decision or limiting abortions to the first 15 weeks of pregnancy. These outcomes are impossible unless Roe is overturned.
  What are we to make of such a polling outcome? I wrote an in-depth piece about public opinion and abortion for our recent special issue of the magazine and argued that, while many Americans tend to instinctively say they support Roe, a majority supports restricting abortion in ways that are impossible under Roe, Doe v. Bolton, and Planned Parenthood v. Casey.
  This becomes glaringly obvious if you study even the smallest amount of opinion polling on abortion. A Fox News poll from September, for example, found that 65 percent of Americans oppose reversing Roe v. Wade, compared with 28 percent who want the decision overturned. Absurdly, the same survey found that Americans were perfectly split on whether abortion should be legal, tied at 49 percent.
  Plenty of Americans, in other words, both want abortion to be illegal and want to preserve the ruling that makes it impossible to prohibit abortion. This is possible only if some sizable number of Americans simply doesn’t understand what Roe and Casey meant for abortion policy.
  • Alexandra Desanctis, “Poll: Americans Continue to Misunderstand Roe”, National Review, December 7, 2021

• Steady support for Roe: Support for the Supreme Court’s abortion precedent in Roe v. Wade is similar, with a November Quinnipiac poll finding that 63% agree with the court’s ruling; and 72% of respondents in a January Marquette Law School poll and 69% of January CNN poll respondents oppose it being overturned.
  If Roe is overturned: A January CNN poll found a 59% majority want their state to have laws that are “more permissive than restrictive” on abortion if Roe goes away, while only 20% want their state to ban abortion entirely (another 20% want it to be restricted but not banned).
  • How Americans Really Feel About Abortion: The Sometimes Surprising Poll Results As Supreme Court Weighs Overturning Roe V. Wade by Alison Durkee, Forbes, November 30, 2021

• Parents less likely to support abortion rights: All In Together’s poll, conducted in September with Lake Research and Emerson College Polling, found 36% of those with children in their house opposed the Texas near-total abortion ban versus 54.9% without kids, and the Post/ABC poll similarly found 58% of parents want the Supreme Court to uphold Roe v. Wade versus 62% of non-parents.
  Cities support more: Those in the Northeast are the most supportive of abortion rights, with the Post/ABC finding 71% there want Roe v. Wade to be upheld versus 58% in the Midwest, 53% in the South and 66% in the West, and urban residents are more likely to support Roe v. Wade (with 69% support) than those in suburban or rural areas (56% and 57%, respectively).
  Support rises with income level: The Post/ABC poll found 59% of those earning less than $50,000 per year wanting the court to uphold the law versus 62% of those making between $50,000-$100,000 and 65% of those earning more than $100,000.
  • How Americans Really Feel About Abortion: The Sometimes Surprising Poll Results As Supreme Court Weighs Overturning Roe V. Wade by Alison Durkee, Forbes, November 30, 2021

• The Supreme Court acted quickly to dispel the notion that a woman has an affirmative right to an abortion. It reversed the Eighth Circuit’s decision in the St. Louis welfare clinic case; denied that state governments have an obligation to pay for abortions for indigent women, even if they pay for childbirth services; and upheld the federal government’s refusal to provide money to state Medicaid programs to pay for abortions. Rather than a right to an abortion the Court now suggested that Roe protected an interest in decision making and in freedom from unduly burdensome restrictions on decision making. As we have seen, “Roe’s’’ statement that the right of privacy is “broad enough to encompass a woman’s decision whether or not to bear a child” [emphasis added] invited this result. Nonetheless, a right to decide to terminate a pregnancy is not worth much to a woman who is unable to act on her decision. According to the Court the inability to act, however, is not the state’s fault. Failure to make money or facilities available is not an unduly burdensome restriction on decision making because the poor woman seeking an abortion had too little money to begin with The refusal to fund does not impose any new roadblocks in her path to an abortion. While it is true that funding childbirth, but not abortion, may make childbirth the more attractive option, that is all right. The Constitution permits states to adopt policies favoring childbirth over abortion.
  In fact, the Constitution apparently permits consideration of a wide range of policies (or state interests) besides those mentioned in Roe. The Court considered some of them, and backed off of its position that the abortion right is purely personal, in a series of decisions about minors who seek abortions.
  In those cases the Supreme Court manifested its continuing confusion over the nature of the constitutional right at stake. Sometimes it referred to the right to choose an abortion sometimes the right to seek an abortion, and, occasionally, the right to an abortion. Given the enormous difference between seeking an abortion and getting one, this is quite confusing.
  • Dworkin, Roger (1996). "Limits: The Role of the Law in Bioethical Decision Making". Indiana University Press. p.33. ISBN 978-0253330758.

• The apparent confusion and lack of clarity in the abortions-for-minors cases goes beyond efforts to define the relevant right and to establish rules about which preconditions to abortions for minors are acceptable. In Roe v. Wade the Court quite plainly held that the abortion right (whatever it may be) is fundamental. That holding led to the conclusion that state infringements on the right are unconstitutional unless they are necessary to a compelling state interest. In the cases about minors however, the Court moved away from the necessary to a compelling state interest standard. It applied a variety of different standards to restrictions on the abortion right including whether the restriction was reasonably calculated to achieve the state’s end. That is the lowest level of scrutiny the Court applies to invasions of rights and is inconsistent with the idea that the abortion right is fundamental.
  Additionally, the court deviated from “Roe” by expanding the number of state interests that may be considered in deciding whether a particular intrusion into the abortion right is acceptable. The Court recognized as worthy of consideration the interest in family integrity, the interest in protecting adolescents, the interest in providing essential medical information (even in the first trimester), the interest in protecting potential life (even before viability), and the interest in full-term pregnancies. Obviously, some of these interests exist regardless of the age of the woman seeking an abortion. Obviously, too, the interests in providing information, protecting potential life, and full-term pregnancies permit massive inroads into women’s opportunities to obtain abortions.
  A 1979 abortion for minors case makes clear the reason for the Court’s backing away from “Roe” and for the Court’s confused and inconsistent approach.
  • Dworkin, Roger (1996). "Limits: The Role of the Law in Bioethical Decision Making". Indiana University Press. p.34. ISBN 978-0253330758.

• WRITING ROE V. WADE SIGNIFICANTLY AFFECTED BLACKMUN'S SELF-PERCEPTION. As public criticism of the decision continued after 1973, Blackmun became so preoccupied with Roe that a tone of self-pity crept into his personal notes whenever a new abortion case came before the court. In 1976, while Blackmun was contemplating a statute that authorized abortions only when a woman's life was in danger, he jotted, "It seems to me that this is 'playing God' just as much as my detractors accuse me of doing in the critical letters that have come in." He anticipated being "chewed upon at length during these abortion arguments" when the case was heard, and he later expressed dread about a case involving the right to use contraceptives. "Here we are again in a general area in which I have already had too much to say by way of opinions of the Court." Late in 1978 Blackmun again made the same point. "More A[bortion]," he noted. "I grow weary of these. . . . Wish we had not taken the case."
  Yet Blackmun also seemed oddly detached from the doctrinal issues underlying Roe. In the 1980s, when Roe's privacy analysis became central to constitutional arguments for gay rights, Blackmun's reactions were puzzling. In a New York case, he initially voted with the four most conservative justices to hear arguments, but shifted sides and helped dismiss the case because he wanted to wait for one that directly addressed the "deviant sex issue." In 1986, Bowers v. Hardwick did just that. Michael Hardwick had been arrested under Georgia's antisodomy law for having oral sex in his bedroom with another man. At first the justices seemed ready to strike down the statute by a vote of 5 to 4, with Powell among the majority. But Powell, a consistent supporter of Roe, changed his vote after deciding that the constitutional right to privacy should not cover gay sex. Powell's switch meant that the court would uphold the statute, turning what would have been a majority opinion by Blackmun into a dissent. Clerk Pamela Karlan, now a professor at Stanford Law School, took the lead in preparing the dissent, which argued that "the right of an individual to conduct intimate relationships in the intimacy of his or her own home seems to me to be the heart of the Constitution's protection of privacy."
  • Court Justice's Papers Opened for Research” by Daun Van Ee, Library of Congress Information Bulletin, Volume 63, Number 4, April 2004

• The attack on Roe v Wade coming out of the Supreme Court is not just an assault on abortion rights — it’s an assault on all Americans, especially those of us in marginalized communities. None of us are safe from the extreme anti-women and anti-LGBTQ ideology that now dominates this Court, and we must fight back in every way possible. It’s more critical than ever that Congress acts swiftly and strongly by ending the filibuster, codifying Roe into law, and passing the Equality Act in order to protect marriage and the other LGBTQ rights. The time is NOW and our very freedom is at stake.
  • Sarah Kate Ellis, “GLAAD RESPONDS TO LEAKED SUPREME COURT DRAFT OPINION OVERTURNING ROE V WADE”, GLAAD, (May 3, 2022)

• The Court has over the years labored with good effect to insure that the political process will be as open and fair as the inexact art of government will permit. In this regard, the reapportionment decisions of the Court, to take but one example, have done much to make state governments responsive to the majority of its citizens. Given its decision in the abortion cases one wonder at least for the moment, why they bothered. The Texas statute, the Georgia statute, and a host of possible alternatives are not monuments to the ignorance of man. They are uneasy but reasonable responses to most troublesome questions. They should not be struck down as unconstitutional by the Supreme Court, particularly in an opinion that avoids in the name of privacy the hard questions that must be faced to reach that result. The reaction to the decision has been strong. The foes of abortion may not have sufficient strength to overturn Roe v. Wade by constitutional amendment. But if they fail, it will not be because they are persuaded by anything the Court said.
  • “Substantive Due Process by any other name: The Abortion Cases” by Richard A. Epstein, The Supreme Court Review 1973, University of Chicago Press, 1974, page 185

• The central tenet of Roe, the government’s responsibility to preserve individual liberty through explicit protection of the right to privacy, has allowed American women in these past twenty-five years to face complexities of childbearing decisions with a full range of legal and safe options. The Court has continued to preserve this “choice” in its subsequent holdings on this matter in Doe, Casey and Webster. By doing so, the Court has affirmed that America affords its citizens the right to engage in personal decision-making without the interference of government. Moreover, Roe recognizes that American women are capable of making those decisions.
  Despite this fact, this session of Congress will be presented with many more opportunities to retreat from Roe. This will continue the trend that has resulted in qualifications of the constitutionally protected right to an abortion over the past few years. For some, rather than leave this decision in the hands of the woman within constitutionally protected parameters, substituting the so-called “collective” wisdom of a legislative body, which rarely understands or is even aware of those specific circumstances affecting the woman, is deemed preferable. The consequences of this governmental intrusion into the private decisions of women all across America are most significant for women who lack the resources or political power to overcome them. Women whom society should seek to empower the most face the greatest barrier in regard to reproductive decisions; poor women, women in abusive relationships, or those with few outside sources of information and education. This result is not the legacy of Roe, it is the legacy of those who seek to take away the constitutional rights that Roe protects.
  While many will use this anniversary to celebrate the potential for retreat from individual freedom, the true legacy of Roe, by elevating public attention to and lifting taboos around the discussion of reproductive health issues more broadly, has led to significant advances in the area of family planning. More remains to be done, however, to ensure that broad access to family planning services are accessible to all American women so that we can reduce the need and call for abortion services.
  • Russell D. Feingold, “PREPARED STATEMENT OF SENATOR RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE STATE OF WISCONSIN”, (January 21, 1998); The 25th Anniversary of Roe V. Wade: Has it Stood the Test of Time? : Hearing Before the Subcommittee on the Constitution, Federalism, and Property Rights of the Committee on the Judiciary, United States Senate, One Hundred Fifth Congress, Second Session ... January 21, 1998, Volume 4, p.4

• Pavone said that in his view, McCorvey carried a lot of pain, from the difficulty of her life, and a sense of responsibility for the Roe vs. Wade decision, and its consequences.
  During her life, McCorvey said the same in public speeches and remarks.
  • J.D.Flynn, ("The 'painful journey' of Jane Roe and the pro-life movement", Catholic News Agency, May 19, 2020

• This comment revisits a seminal 2001 paper by Donohue and Levitt (henceforth DL) that linked the startling and unexpected decline in crime during the 1990s to the legalization of abortion some 20 years earlier. DL theorize that abortion reduces crime for two reasons. First, holding the number of pregnancies constant, a higher abortion rate today reduces the number of young people in the future. Because younger people commit more crimes than older people, this “cohort-size” effect should reduce crime if the share of young people in the population declines. Second, because a mother can abort a pregnancy more easily when abortion is legal, a child born after legalization is more likely to be wanted than a child born before legalization. If children who are wanted grow up to commit fewer crimes than unwanted children do, then abortion will bring about an additional “selection” effect that further reduces crime.
  • Christopher L. Foote & Christopher F. Goetz (2008-01-31). "The Impact of Legalized Abortion on Crime: Comment". Federal Reserve Bank of Boston. Retrieved 2021-12-20; revised article published in “Quarterly Journal of Economics”, vol. 123, no. 1 (February 2008): 407-423; originally published as "Testing Economic Hypotheses with State-Level Data: A Comment on Donohue and Levitt (2001)"; and was revised in January 2008. p.1

• One of the most controversial issues of our time and one in which we share a keen interest is the question of abortion. I have grave concern over the serious moral questions raised by this issue. Each new life is a miracle of creation. To interfere with that creative process is a most serious act.
  In my view, the Government has a very special role in this regard. Specifically, the Government has a responsibility to protect life--and indeed to provide legal guarantees for the weak and unprotected.
  It: is within this context that I have consistently opposed the 1973 decision of the Supreme Court. As President, I am sworn to uphold the laws of the land and I intend to carry out this responsibility. In my personal view, however, this court decision was unwise. I said then and I repeat today--abortion on demand is wrong.
  Since 1973 I have viewed as the most practical means of rectifying the situation created by the Court's action a Constitutional amendment that would restore to each State the authority to enact abortion statutes which fit the concerns and views of its own citizens. This approach is entirely in keeping with the system of Federalism devised by the founders of our Nation. As Minority Leader of the House of Representatives, I co-sponsored an amendment which would restore this authority to the States, and I have consistently supported that position since that time.
  • Gerald Ford. [https://www.presidency.ucsb.edu/documents/letter-the-archbishop-cincinnati-following-meeting-with-the-executive-committee-the Letter to the Archbishop of Cincinnati Following a Meeting With the Executive Committee of the National Conference of Catholic Bishops, published online by The American Presidency Project. Santa Barbara: University of California Press (September 10, 1976).

• Thus, in one bold, cataclysmic move the Court undid about a century of legislative action. It swept away every abortion law in the country.
  • Lawrence Friedman, "The Conflict over Constitutional Legitimacy"], "The Abortion Dispute and the American System", edited by Gilbert Steiner, The Brookings Institution, (1983), p.16

• In a separate recent poll conducted by Ayres McHenry Associates for the Ethics and Public Policy center, a majority of Americans still say they support Roe v. Wade. However, when voters are informed about all the different abortion restrictions and regulations that Roe prevents states from passing, Americans' support for the Supreme Court decision drops substantially.
  • Gallagher, Maggie. "Pro-Life Voters are Crucial Component of Electability", Realclearpolitics.com, (May 23, 2007).

• Eve Gartner of the Planned Parenthood Federation of America said the ruling “flies in the face of 30 years of Supreme Court precedent and the best interest of women’s health and safety.” The ruling sends the signal that “politicians, not doctors,” will make health-care decisions for women.
  • Eve Gartner as quoted by Stout, David (April 18, 2007). "Supreme Court Upholds Ban on Abortion Procedure". The New York Times. ISSN 0362-4331. Retrieved January 16, 2020.

• "Prior to Roe," says Garrow, "whether one could obtain a legal abortion in the face of an unwanted pregnancy was a crap shoot. For 30 years now, it's been a constitutionally guaranteed right."
  • David Garrow as quoted by Mears, William; Franken, Bob (January 22, 2003). "30 years after ruling, ambiguity, anxiety surround abortion debate". CNN'.

• Roe v. Wade’s creation and Roe v. Wade’s legacy represent one of the two greatest stories-the other is Brown v Board of Education-in twentieth century American legal history. Liberty and Sexuality seeks to tell that story as comprehensively as possible, for it-like Brown-has altered and improved the lives of millions of Americans.
  • Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade by David J. Garrow, "Introduction", 1994

• Weddington was born in Abilene and attended McMurray University in her hometown before studying law at the University of Texas at Austin.
  She filed Roe v Wade in 1970 when she was working for a law professor shortly after graduating from law school. Weddington argued the case in front of the U.S. Supreme Court twice.
  • Kate McGee, ("Sarah Weddington, lawyer in Roe v. Wade case, dies at 76", Texas Tribune, (December 26, 2021)

• Q: Let me ask you about the fight you waged for the courts to understand that pregnancy discrimination is a form of sex discrimination.
  JUSTICE GINSBURG: I wrote about it a number of times. I litigated Captain Struck’s case about reproductive choice. [In 1972, Ginsburg represented Capt. Susan Struck, who became pregnant during her service in the Air Force. At the time, the Air Force automatically discharged any woman who became pregnant and told Captain Struck that she should have an abortion if she wanted to keep her job. The government changed the regulation before the Supreme Court could decide the case.] If the court could have seen Susan Struck’s case — this was the U.S. government, a U.S. Air Force post, offering abortions, in 1971, two years before Roe.
  Q: And suggesting an abortion as the solution to Struck’s problem.
  JUSTICE GINSBURG: Yes. Not only that, but it was available to her on the base.
  Q: The case ties together themes of women’s equality and reproductive freedom. The court split those themes apart in Roe v. Wade. Do you see, as part of a future feminist legal wish list, repositioning Roe so that the right to abortion is rooted in the constitutional promise of sex equality?
  JUSTICE GINSBURG: Oh, yes. I think it will be.
  • Ruth Bader Ginsburg as quoted in “The Place of Women on the Court” by Emily Bazelon, New York Times Magazine, (July 7, 2009)

• One of the things that happened after Roe v Wade is that women wanted women to be able to control their own destiny. They won, so they retreated. And the other side geared up and we have the situation that we have today.
  • Ruth Bader Ginsburg as interviewed by Razia Iqbal, "Dissenting Opinion - an interview with Ruth Bader Ginsburg", BBC World News, (20 December 2019); as quoted in “In History: How Ruth Bader Ginsburg foresaw the threat to abortion access in the US”, BBC, (3/18/2024)

• (i) It is estimated that 6,000,000 Jewish people were murdered in German concentration camps during World War II; 3,000,000 people were executed by Joseph Stalin's regime in Soviet gulags; 2,500,000 people were murdered during the Chinese "Great Leap Forward" in 1958; 1,500,000 to 3,000,000 people were murdered by the Khmer Rouge in Cambodia during the 1970s; and approximately 1,000,000 people were murdered during the Rwandan genocide in 1994. All of these are widely acknowledged to have been crimes against humanity. By comparison, more than 50 million babies have been aborted in the United States since the Roe decision in 1973, more than three times the number who were killed in German death camps, Chinese purges, Stalin's gulags, Cambodian killing fields, and the Rwandan genocide combined.
  • Leada Gore, "Alabama abortion law passes: Read the bill", Birmingham News, (May 16, 2019)

• (j) The cases of Roe v. Wade and its progeny have engendered much civil litigation and legislative attempts to reign in so called abortion rights. Roe v. Wade attempted to define when abortion of an unborn child would be legal. Judges and legal scholars have disagreed and dissented with its finding.
  • Leada Gore, "Alabama abortion law passes: Read the bill", Birmingham News, (May 16, 2019)

• In the days before the U.S. Supreme Court issued its rulings on two landmark abortion rights cases in early 1973, Justice Harry Blackmun braced for a flood of media response—and possible misinterpretation.
  "I anticipate the headlines that will be produced over the country when the abortion decisions are announced," he wrote to the court's other justices in a memo dated Jan. 16. "Accordingly, I have typed out what I propose as the announcement from the bench in these two cases. … It will in effect be a transcript of what I shall say, and there should be at least some reason for the press not going all the way off the deep end."
  The attached statement planned for release six days later with the rulings in Roe v. Wade and Doe v. Bolton made clear that "the Court does not today hold that the Constitution compels abortion on demand. It does not today pronounce that a pregnant woman has an absolute right to abortion. It does, for the first trimester of pregnancy, cast the abortion decision and the responsibility for it upon the attending physician."
  • Adam Gorlick, “Rehnquist papers offer peek inside Supreme Court”, Stanford Report, November 20, 2008

• He was one of two dissenting voices in Roe, a ruling he said distorted the Constitution. There is not much in the documents now available in the Hoover archives that amplify his feelings, but there are signs that he thought about the abortion cases outside of their legal boundaries.
  Along with draft opinions and memos that went back and forth among the justices over some fine points, Rehnquist kept newspaper and magazine clippings about the cases.
  Carefully tucked into a file labeled "abortion cases" is a flier produced by a pro-life group featuring gruesome images described as aborted fetuses, along with letters from a few people applauding Rehnquist's break with the majority.
  "May our dear Lord bless you for dissenting from the abortion-on-demand decision rendered by the Supreme Court yesterday," wrote Ellen Myers, of Wichita, Kan. "How horrible that we now have licensed the killing of our most innocent fellow human beings through the highest tribunal in our land?"
  There's no indication Rehnquist wrote back.
  • Adam Gorlick, “Rehnquist papers offer peek inside Supreme Court”, Stanford Report, November 20, 2008

• By making abortion legal nationwide, Roe v. Wade has had a dramatic impact on the health and well-being of American women. Deaths from abortion have plummeted, and are now a rarity. In addition, women have been able to have abortions earlier in pregnancy when the procedure is safest: The proportion of abortions obtained early in the first trimester has risen from 20% in 1970 to 56% in 1998. These public health accomplishments may now be seriously threatened.
  Supporters of legal abortion face the bleakest political landscape in recent history. Congress is poised to pass legislation criminalizing some abortion procedures (termed "partial-birth" abortion) even when they are performed prior to fetal viability and when they are deemed by the physician to be in the best interest of the woman's health; by doing so, the Partial-Birth Abortion Ban Act takes direct aim at the basic principles underlying Roe.
  • “Lessons from Before Roe: Will Past be Prologue?”, The Guttmacher Policy Review, Vol. 6 Iss. 1, March 1, 2003. Retrieved January 11, 2017.

• So we are here together because we collectively believe and know America is a promise. America is a promise. It is a promise of freedom and liberty — not for some, but for all.
  A promise we made in the Declaration of Independence that we are each endowed with the right to liberty and the pursuit of happiness.
  Be clear. These rights were not bestowed upon us. They belong to us as Americans.
  And it is that freedom and liberty that enabled generations of Americans to chart their own course and decide their own future with, yes, ambition and aspiration. Therein lies the strength of our nation.
  And since our founding, we have then been on a march forward to fully realize our promise to complete the unfinished work to secure freedom and liberty for all.
  Now, these outcomes will not be inevitable. They will not just happen. It takes steadfast determination and dedication. The kind of determination and dedication possessed by some of our greatest patriots: those Americans who fought a Civil War to end the sin of slavery — (applause) — who organized at Seneca Falls to secure a woman’s right to vote — (applause) — who launched the Freedom Rides to advance civil rights — (applause) — and spoke out at the Stonewall Inn to defend human rights. (Applause.)
  In each of these movements, those leaders expanded rights which then advanced the cause of freedom and liberty.
  And 50 years ago today, so did those who won a fight in the United States Supreme Court to recognize the fundamental constitutional right of a woman to make decisions about her own body — (applause) — not the government. (Applause.)
  For nearly 50 years, Americans relied on the rights that Roe protected. Today, however, on what would have been its 50th anniversary, we speak of the Roe decision in the past tense —
  • Kamala Harris, “Remarks by Vice President Harris on the 50th Anniversary of Roe v. Wade”, Whitehouse.gov, (January 22, 2023)

• SUPPORT FOR the Roe v. Wade decision that made abortions legal during the first three months of pregnancy has hit its lowest level since 1985, a Harris Interactive poll shows.* U.S. adults are now almost equally split on the ruling, with 49% saying they favor it, and 47% opposing, according to the poll. Harris has surveyed Americans on abortion since 1973. See full results of the most-recent poll here.
  • Harris Interactive.[ https://online.wsj.com/public/resources/documents/info-harris0503.html 'U.S. Attitudes Toward Roe v. Wade"]. The Wall Street Journal Online, (May 4, 2006). Retrieved February 3, 2007.

• We are here talking about the great 13th floor of the human family. Everyone knows it is there, but it is convenient to pretend that it is not there. I am talking about the humanity of the unborn. One of the great misperceptions of many of the media is that we prolife Congressmen and Senators are a willful, small, arrogant little band of people trying to manipulate the entire country into a rather vulgar, out-of-date, anachronistic view of human life and its value, and whether it should be protected by the Constitution.
  I think it is important to point out that out there in the country there are millions of people who are appalled by the results of Roe v. Wade and who constitute the prolife movement, which is growing every day.
  • “Statement of Hon. Henry Hyde, A U.S. Representative from the State of Illinois”, from the Hearings before the Subcommittee on Separation of Powers of the Committee on the Judiciary, United States Senate, Washington, D.C.: U.S. Government Printing Office, 1982, p.915

• Centuries ago we had alchemists, people who sought to change base metal into gold. We today have our alchemists who have successfully turned what was once a crime, the crime of abortion, into the gold of an act of compassion and humanity.
  Roe v. Wade certainly is the keystone of that result and we are told that it is the ultimate authority, that the Supreme Court, having spoken on the question of personhood and having confessed its incompetency to determine when human life begins because it said it could find no consensus in law theology, and philosophy, then said it is not necessary to determine when human life begins, but then they did pronounce on the basis of that vacuum that the preborn is not a person within the meaning of the 14th amendment.
  • “Statement of Hon. Henry Hyde, A U.S. Representative from the State of Illinois”, from the Hearings before the Subcommittee on Separation of Powers of the Committee on the Judiciary, United States Senate, Washington, D.C.: U.S. Government Printing Office, 1982, p.915

• What is the matter with a little congressional activism? When we are faced with a decision that has been criticized from Austin to Boston by legal scholars who themselves may support abortion as a solution to unwanted pregnancies instead of, as I would say, the failure to look for a solution, but who criticize the case as totally unwarranted, are we to be impotent? Are we to say we cannot do anything in the face of 1.5 million abortions a year?
  If reappointment is important for courts not to be activists, I suggest to you that the carnage involved in the killing of 1.5 million defenseless, voiceless, preborn children is justification for a little congressional activism.
  • “Statement of Hon. Henry Hyde, A U.S. Representative from the State of Illinois”, from the Hearings before the Subcommittee on Separation of Powers of the Committee on the Judiciary, United States Senate, Washington, D.C.: U.S. Government Printing Office, 1982, pp.916-917

• No matter one’s personal view on abortion, we can all recognize that, at least for the short term, this bill may similarly be unenforceable. As citizens of this great country, we must always respect the authority of the U.S. Supreme Court even when we disagree with their decisions. Many Americans, myself included, disagreed when Roe v. Wade was handed down in 1973. The sponsors of this bill believe that it is time, once again, for the U.S. Supreme Court to revisit this important matter, and they believe this act may bring about the best opportunity for this to occur.
  • Governor Ivey Issues Statement After Signing the Alabama Human Life Protection Act, May 15, 2019, Office of Alabama Governor

• The anonymous plaintiff in the groundbreaking 1973 Supreme Court abortion rights case tells her story in the gritty, rough-edged memoir, I Am Roe: My Life, Roe v. Wade, and Freedom of Choice. Norma McCorvey was a 21-year-old drifter with a drug and alcohol problem when she found herself pregnant a third time. Her search for an abortion led to two young lawyers, Sarah Weddington and Linda Coffee, who needed a plaintiff to challenge the Texas law banning abortions. McCorvey’s role from that point was nominal: She learned of the victory in a newspaper article, months after her baby had been born and given up for adoption. There emerges a tragic juxtaposition between McCorvey’s thwarted life and Weddington’s, whose expensive Mexican abortion in 1967 enabled her to finish law school, and whose role in Roe brought fame. It’s a comparison that highlights the disadvantages of poor and disenfranchised women in the abortion rights debate.
  • Rhonda Johnson my-life-roe-v-wade-and-freedom-choice/ “I Am Roe: My Life, Roe v. Wade, and Freedom of Choice”, Entertainment Weekly, (July 22, 1994)

• Twenty-five years ago this week, the Supreme Court held that the Constitution protects a woman’s decision whether to terminate her pregnancy. Roe v. Wade guaranteed women the right to a safe, legal medical abortion. It has preserved the health and lives of millions of women, maintaining their privacy, their dignity and their future.
  Roe v. Wade was a landmark victory for women’s rights. Before 1973, an estimated 1.2 million women a year turned in desperation to dangerous and illegal back-alley abortions. 5,000 died every year from the appalling treatment they endured, and large numbers of others suffered serious injury. The lesson of the years before Roe is clear-if a safe, legal abortion is not available, women will turn to unsafe means to terminate pregnancies.
  • Edward M. Kennedy, “PREPARED STATEMENT OF SENATOR EDWARD M. KENNEDY, A U.S. SENATOR FROM THE STATE OF MASSACHUSETTS”, (January 21, 1998) ; , (January 21, 1998); The 25th Anniversary of Roe V. Wade: Has it Stood the Test of Time? : Hearing Before the Subcommittee on the Constitution, Federalism, and Property Rights of the Committee on the Judiciary, United States Senate, One Hundred Fifth Congress, Second Session ... January 21, 1998, Volume 4, pp.4-5.

• Who is best suited to make this intensely personal and agonizing decision- woman in consultation with her doctor, or politicians? The guarantee contained in Roe enables women to act according to their own beliefs, with limited government interference. A new generation of women have been born since Roe, and they have never lived in a society in which the only option to terminate a pregnancy was a dangerous and illegal back-alley abortion. Let us affirm once again that they never will.
  We must remain vigilant in our efforts to keep abortion safe and legal, and we must also take steps to make abortion rare. Pro-choice and anti-choice Americans must deal more effectively with the causes of unintended pregnancies, and give their support to efforts in Congress and around the country to ensure greater access to family planning for both women and men. The health and dignity of all women depend upon our commitment to these principles.
  • Edward M. Kennedy, “PREPARED STATEMENT OF SENATOR EDWARD M. KENNEDY, A U.S. SENATOR FROM THE STATE OF MASSACHUSETTS”, p.5, (January 21, 1998)

• Liberal judicial activism peaked with Roe v. Wade, the 1973 abortion decision…
  • Michael Kinsley, “The Right’s Kind of Activism,” Washington Post, (November 14, 2004).

• Although I am pro-choice, I was taught in law school, and still believe, that Roe v. Wade is a muddle of bad reasoning and an authentic example of judicial overreaching. I also believe it was a political disaster for liberals. Roe is what first politicized religious conservatives while cutting off a political process that was legalizing abortion state by state anyway.
  • Michael Kinsley, “The Right’s Kind of Activism,” Washington Post, (November 14, 2004).

• In 1973, the U.S. Supreme Court first held that a right to have an abortion was protected by the U.S. Constitution, in Roe v. Wade. While the legal test articulated in Roe has since been jettisoned by the Court, its “essential holding” has been reaffirmed. That holding has been summarized as having three parts:
  First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.
  • “Abortion Overview”, Lawserver.com

• "The better argument for the result reached in Roe v. Wade is that it's necessary for the equality of women, rather than grounding it in the privacy right," says Edward Lazarus, a former law clerk for Blackmun and the author of "Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court."
  • Edward Lazarus as quoted by Mears, William; Franken, Bob (January 22, 2003). "30 years after ruling, ambiguity, anxiety surround abortion debate". CNN.

• In Roe v. Wade much of Justice Blackmun’s judgment was devoted to the history of abortion in Anglo-American law. He concluded that a constitutional right to abortion was consistent with that history. In Webster v. Reproductive Health Services, 281 American historians signed an amicus brief which claimed that Roe was consistent with the nation’s history and traditions. This article respectfully questions Justice Blackmun’s conclusion and the historians’ claim.
  • John Keown, “Back to the Future of Abortion Law: Roe's Rejection of America's History and Traditions”, Issues in Law and Medicine, Volume 22, Issue 1, Summer 2006, p.3

• Roy Lucas, counsel for Roe, was aware of the unreliability of the historiography put forward by Means. Lucas received a memorandum from a colleague pointing out that Means’s conclusions “sometimes strain credibility.” The memo added:
  Where the important thing is to win the case no matter how, however, I suppose I agree with Means’s technique: begin with a scholarly attempt at historical research; if it doesn’t work, fudge it as necessary; write a piece so long that others will read only your introduction and conclusion; then keep citing it until courts begin picking it up. This perverts the guise of impartial scholarship while advancing the proper ideological goals.
  • John A. Keown, “Abortion Distortion: A Review of Dispelling the Myths of Abortion History by Joseph W. Dellapenna”, The Journal of Law, Medicine & Ethics, Volume 35, Issue 2, Summer 2007, page 326; quotes cited to Dispelling the Myths of Abortion History by J. W. Dellapenna, Durham: Carolina Academic Press, 2006, page 684

• Dellapenna also noted the radical nature of the reasoning in Roe-that a right to abortion is found in a right to privacy, which itself is nowhere mentioned in the Constitution.
  • John A. Keown, “Abortion Distortion: A Review of Dispelling the Myths of Abortion History by Joseph W. Dellapenna”, The Journal of Law, Medicine & Ethics, Volume 35, Issue 2, Summer 2007, page 327

• Against all odds (and, I'm afraid, against all logic), the basic holding of Roe v. Wade is secure in the Supreme Court.
  • Kinsley, Michael. "Bad choice", The New Republic, (June 13, 2004)

• [A] freedom of choice law would guarantee abortion rights the correct way, democratically, rather than by constitutional origami.
  • Kinsley, Michael. "Bad choice", The New Republic, (June 13, 2004)

• “Roe is the floor, not the ceiling,” Carmona said. “Abortion rights, reproductive justice, is absolutely a part of voting rights and justice for immigrants, and racial justice because they can’t be extracted from themselves. The most impacted communities across all those groups are communities of color.”
  • Caroline Kitchener, Meagan Flynn, Lola Fadulu, Donovan J. Thomas and Paul Schwartzman (October 2, 2021). "Thousands gather at Women's March rallies in D.C., across U.S. to protect Roe v. Wade". The Washington Post.

• None of this is to say that Justice Blackmun did not delegate too much of the original design for the intellectual content for his opinions to law clerks. Notwithstanding my enormous affection and admiration for the justice, I think he did—and Garrow's discussion of how Roe v. Wade's trimester framework came into being helps illustrate the point. In my view, every justice should be deeply engaged in the original formulation of every significant doctrinal twist and turn of his or her opinions. On at least some occasions, Blackmun was not. And in this regard, a piece like Garrow's, despite its methodological failings, provides a useful counterpoint to the usual claptrap minimizing the role that clerks play in fashioning the law.
  • Edward Lazarus, “Readers Respond: Justice Blackmun”, letter by Edward Lazarus, Legal Affairs: The Magazine at the intersection of law and life, (May/June 2005)

• As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe’s author like a grandfather.
  • Edward Lazarus, “The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell’s Nomination Only Underlined Them,” FindLaw Legal Commentary, (Oct. 3, 2002)

• What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent – at least, it does not if those sources are fairly described and reasonably faithfully followed.
  • Edward Lazarus, “The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell’s Nomination Only Underlined Them,” FindLaw Legal Commentary, (Oct. 3, 2002)

• [A]s a matter of constitutional interpretation, even most liberal jurisprudes — if you administer truth serum — will tell you it is basically indefensible.
  • Edward Lazarus, “Liberals, Don’t Make Her an Icon”, Washington Post, (July 10, 2003).

• There was another factor, meanwhile, that had greatly contributed to the massive crime drop of the 1990s. It had taken shape more than twenty years earlier and concerned a young woman in Dallas named Norma McCorvey.
  Like the proverbial butterfly that flaps its wings on one continent and eventually causes a hurricane on another, Norma McCorvey dramatically altered the course of events without intending to. All she had wanted was an abortion. She was a poor, uneducated, unskilled, alcoholic, drug-using twenty-one-year-old woman who had already given up two children for adoption and now, in 1970, found herself pregnant again. But in Texas, as in all but a few states at that time, abortion was illegal. McCorvey’s cause came to be adopted by people far more powerful than she.
  • Steven Levitt, Stephen Dubner, Freakanomics, Introduction: The Hidden Side of Everything, (2005)

• So how did Roe v. Wade help trigger, a generation later, the greatest crime drop in recorded history?
  As far as crime is concerned, it turns out that not all children are born equal. Not even close. Decades of studies have shown that a child born into an adverse family environment is far more likely than other children to become a criminal. And the millions of women most likely to have an abortion in the wake of Roe v. Wade-poor, unmarried, and teenage mothers for whom illegal abortions had been too expensive or too hard to get-were often models of adversity. They were the very women whose children, if born, would have been much more likely than average to become criminals. But because of Roe v. Wade, these children weren’t being born. This powerful cause would have a drastic, distant effect: years later, just as these unborn children would have entered their criminal primes, the rate of crime began to plummet. It wasn’t gun control or a strong economy or new police strategies that finally blunted the American crime wave. It was, among other factors, the reality that the pool of potential criminals had dramatically shrunk. Now, as the crime-drop experts (the former crime doomsayers) spun their theories to the media, how many times did they cite legalized abortion as a cause?
  Zero.
  • Steven Levitt, Stephen Dubner, Freakanomics, Introduction: The Hidden Side of Everything, (2005)

• I should start by saying that this is not a statement about abortion being right or wrong, about whether Roe vs. Wade is a good decision or should be repealed. It's a statement trying to understand the incredible decline in crime that we had in the 1990s. And I don't know how much people are aware of it, but violent crime is down almost 50 percent in the United States. And so I have spent about five years looking at all the usual types of suspects of why crime might have fallen. There still is a lot left over and I puzzled over this for years until one day I stumbled on to a set of statistics about the amount of abortion that takes place in the United States. It turns out after legalization in 1973 to the present, about one in four pregnancies in the United States ends in abortion. How can that not have a big social impact?
  And since I've been thinking about crime, I thought, `Well, is it possible this could really be linked to crime?' And it turns out there's decades' worth of social scientific research that suggests that if a child comes into the world, he's unwanted, has a difficult home life, that child's at tremendously increased risk for criminal activity. And so the theory is really pretty simple. After legalized abortion, there were fewer unwanted children being born. There are fewer unwanted children. When they grew up to reach their peak crime ages, they just weren't there to do the crime. And so it looks like about a third of this decline in crime that we saw in the '90s I believe can be attributed to the legalization of abortion.
  • Steven Levitt as interviewed by Ed Gordon, “'Freakonomics' Author Steven Levitt”, News & Notes, NPR, (September 13, 2005)

• Professor Ely's admiration for the Warren Court was not unbounded.
  The main strand of Warren Court liberalism was small-d democracy, Professor Tushnet said. There was another strand, of personal autonomy, which was 1960's stuff. Ely didn't agree with it.
  Professor Ely expressed that disagreement most memorably in a caustic critique of the reasoning in Roe v. Wade, the 1973 decision finding a right to abortion in the Constitution. Earl Warren was no longer chief justice by then, but the Roe decision was rooted in a 1965 decision of the court.
  What is frightening about Roe is that this super-protected right, Professor Ely wrote in the Yale Law Journal in 1973, is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure.
  Professor Ely had said he supported the availability of abortion as a matter of policy. But he wrote that the Roe decision was untenable as a matter of intellectually honest jurisprudence.
  It is not constitutional law, he said of the decision, and gives almost no sense of an obligation to try to be.
  • Liptak, Adam. "John Hart Ely, a Constitutional Scholar, Is Dead at 64", The New York Times (October 27, 2003).

• In 1973 the U.S. Supreme Court made its landmark decision in Roe v. Wade which prohibited states from imposing restrictions on abortion even though the Constitution is silent on such matters. To justify their decision the Court made up a new “right” not found in the Constitution: the right to privacy. The founders of course never intended for such rights to exist s we know privacy is limited in many ways.
  • Alex Locay (2008). “Unveiling the Left”. Xulon Press. p.187

• Constitutional attorney and author of Men in Black: How the Supreme Court is Destroying America, Mark R. Levin refers to Justice Blackmuns opinion: “We need not resolve the question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in the position to speculate as to the answer.” Levin goes on to comment, “Blackmun gave deference to medicine, philosophy, and theology (from his own perspective) but not to the Constitution, the people, the states, or the other branches of the federal government. In truth, Blackmun did establish, at least for constitutional purposes, when life begins by recognizing abortion as a constitutionally protected right to privacy. He did precisely what he lectures should not be done.”
  • Alex Locay (2008). “Unveiling the Left”. Xulon Press. p.187

• Norma McCorvey was unmarried and unemployed when she became pregnant for the third time at age 22. It was 1969, and it was illegal to have an abortion in Texas, where she lived. McCorvey resorted to seeing an underground abortion doctor but walked out because of the "filth and cockroaches."
  Soon after, McCorvey became a national symbol for the abortion rights movement. For years she was known simply as Jane Roe, the plaintiff from one of the most famous Supreme Court cases in history: Roe v. Wade.
  • Lozano, Alicia Victoria. "Anti-abortion rights movement paid 'Jane Roe' thousands to switch sides, documentary reveals", NBC News (May 19, 2020).

• McCorvey's story always included more than a few inconsistencies, according to the film. When she joined the Roe v. Wade litigation, McCorvey claimed that she had been raped and became pregnant as a result. In the 1980s, she rescinded the claim in a televised interview, saying she had never been raped.
  • Lozano, Alicia Victoria. "Anti-abortion rights movement paid 'Jane Roe' thousands to switch sides, documentary reveals", NBC News (May 19, 2020).

• After McCorvey fell out of favor, she slipped into anonymity until she resurfaced in the 1990s as a devout Christian. She apologized publicly for her role in helping to bring about access to legal abortion.
  "I thought I was doing something right," she said during a 1996 memorial service for unborn children. "I didn't realize I would be leading innocent children to a senseless and terrible death."
  • Lozano, Alicia Victoria. "Anti-abortion rights movement paid 'Jane Roe' thousands to switch sides, documentary reveals", NBC News (May 19, 2020).

• I think the general consensus in Louisiana is they want to see Roe v. Wade overturned, Mr. Connick said. Laws in Nearly All States Nearly all states have on their books at least some abortion restrictions that have been regarded as unconstitutional under the Supreme Court's 1973 decision in Roe v. Wade and subsequent rulings. In addition to Louisiana, 20 states plus the District of Columbia and Puerto Rico have never repealed pre-1973 statutes that made most abortions a crime.
  Had the Supreme Court overturned Roe v. Wade, it is unclear whether these laws would have automatically sprung back to life. The answer depends in part on how each state's legal system regards old laws that have long been unenforced.
  Rachael Pine, a lawyer with the American Civil Liberties Union's Reproductive Freedom Project in New York, said today that no other state appears to have embarked on Louisiana's course. Ms. Pine's office is monitoring state developments and preparing to offer legal assistance if necessary.
  • Marcus, Frances Frank. "Louisiana Moves Against Abortion", The New York Times, (July 8, 1989).

• A leading anti-abortion voice in the Legislature, Representative Woody Jenkins, said: In the late 70's we passed an act that said if Roe v. Wade was overturned, all of our previous laws would have continued vitality. What we are doing in a friendly way is instructing D.A.'s to enforce the criminal statutes.
  • Marcus, Frances Frank. "Louisiana Moves Against Abortion", The New York Times, (July 8, 1989).

• The Roe decision did not prompt "abortion on demand" as many opponents of the procedure predicted it would. Nor have various legislatures or court rulings restricted access as much as some supporters claim. New research from the Alan Guttmacher Institute found the rate of abortions is at its lowest level since Roe, about 1.31 million in the year 2000, down 4 percent from 1996.
  • Mears, William; Franken, Bob (January 22, 2003). "30 years after ruling, ambiguity, anxiety surround abortion debate". CNN.

• For the justices, Roe reflected earlier cases involving the right to privacy. That "right," wrote Justice Harry Blackmun in the main opinion for the Court is "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
  • Mears, William; Franken, Bob (January 22, 2003). "30 years after ruling, ambiguity, anxiety surround abortion debate". CNN.

• Since the current court overturned it in 2022, “Roe is the floor, not the ceiling” has become a rallying cry for activists who vowed to rebuild access, especially for marginalized communities, according to Pamela Merritt, executive director of Medical Students for Choice, a group that opposes viability clauses.
  • Christine Fernando and Summer Ballentine quoting Pamela Merritt; “Why ‘viability’ is dividing the abortion rights movement”, Associated Press', (January 17, 2024)

• Norma McCorvey, Jane Roe of the landmark U.S. Supreme Court Roe v. Wade decision, passed away of a heart ailment at 69 years old, reports The Washington Post. She leaves behind a complicated legacy. While many women's rights advocates originally considered her a compatriot, McCorvey never intended to become a reproductive rights activist. In fact, she eventually declared herself pro-life and sought to overturn the very legislation that turned her into a feminist icon.
  McCorvey adopted the pseudonym of Jane Roe to protect her anonymity during the 1973 Roe v. Wade Supreme Court case whose ruling would legalize abortion and become a crucial touchstone of female reproductive rights in America. When she first filed the now infamous suit in 1970, however, McCorvey's goal was not sweeping political reform. Rather, the then 22-year-old Texan hoped only to gain the ability to legally and safely end a pregnancy she did not want.
  • Sara Murphy, “Norma McCorvey, "Jane Roe" Of Roe V. Wade, Is Dead At 69”, yahoo!life, (February 18, 2017)

• “I am dedicated to spending the rest of my life undoing the law that bears my name,” McCorvey told a U.S. Senate subcommittee in 1998. “I would like nothing more than to have this law overturned.”
  A 2000 court affidavit underscores McCorvey's true feelings on the famous case:
  "They said yes, ‘You’re white. You’re young, pregnant, and you want an abortion.’ At that time, I didn’t know their full intent. Only that they wanted to make abortion legal and they thought I’d be a good plaintiff. I came for the food, and they led me to believe that they could help me get an abortion. At that time, I was a street person. I lived, worked, and panhandled out on the streets. My totally powerless circumstance made it easy for them to use me. My presence was a necessary evil. My real interests were not their concern."
  McCorvey petitioned the Supreme Court to overturn Roe v. Wade in 2005. Her request was denied.
  • Sara Murphy, “Norma McCorvey, "Jane Roe" Of Roe V. Wade, Is Dead At 69”, yahoo!life, (February 18, 2017)

• [ Gay rights, contraceptives, certain fertility treatments and even interracial marriage ] are imperiled because they’re all rooted in that right to privacy. All of this has been implied because they’re understood to be core, basic human rights. You don’t need the state to recognize them because they are vested in you by virtue of being a human.
  • Melissa Murray, "How dismantling Roe v Wade could imperil other ‘core, basic human rights’" (Last modified on Mon 13 Dec 2021 22.44 GMT)

• If Roe were reversed and all high-risk states banned abortion, 39% of the national population of women aged 15–44 would experience increases in travel distances ranging from less than 1 mile to 791 miles. If these women respond similarly to travel distances as Texas women, county-level abortion rates would fall by amounts ranging from less than 1% to more than 40%. Aggregating across all affected regions, the average resident is expected to experience a 249 mile increase in travel distance, and the abortion rate is predicted to fall by 32.8% (95% confidence interval 25.9–39.6%) in the year following a Roe reversal.
  • Myers, Caitlin; Jones, Rachel; Upadhyay, Ushma (July 31, 2019)."Predicted changes in abortion access and incidence in a post-Roe world". Contraception. 100 (5): 367–373.

• In the year following a reversal, increases in travel distances are predicted to prevent 93,546–143,561 women from accessing abortion care.
  • Myers, Caitlin; Jones, Rachel; Upadhyay, Ushma (July 31, 2019)."Predicted changes in abortion access and incidence in a post-Roe world". Contraception. 100 (5): 367–373.

• We can trace the emergence of healthcare refusals legislation to Congress’s passage of the Church Amendment in 1973. That legislation followed on the heels of two significant judicial decisions: the Supreme Court’s 1973 Roe v. Wade decision invalidating criminal prohibitions on abortion; and a 1972 federal district court decision enjoining a Catholic affiliated hospital, which was deemed to engage in state action because of its receipt of federal funding, from prohibiting sterilization at its facilities. The Church Amendment, which passed with near unanimous support, provided that receipt of federal funds would not provide a basis for requiring a physician or nurse “to perform or assist in the performance of any sterilization procedure or abortion if his performance or assistance in the performance of such procedure or abortion would be contrary to his religious beliefs or moral convictions.” It also provided that no “entity” could be compelled to “make its facilities available for the performance of any sterilization procedure or abortion if [such] performance . . . is prohibited by the entity on the basis of religious beliefs or moral convictions.”
  • Douglas Nejaime & Reva Siegel, “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics”, 124 Yale Law Journal 2516 (2015), pp.2535-2537

• Today, Catholics and evangelical Protestants assert shared religious beliefs in conflicts over sexual norms. This coalition did not exist at the time of Roe, for example, when evangelical Protestants had different views about abortion and were unwilling to join in political coalition with Catholics in opposing it. But the views of evangelical Protestants about abortion have changed in the intervening years, as has their willingness to assert claims of common faith with Catholics on the question. Theological differences, of course, persist. But since the era of Ronald Reagan’s election, when Republican leaders encouraged evangelical Protestants to enter politics in common cause with Catholics opposed to abortion, a conservative, cross-denominational coalition of Christians has pursued self-consciously traditional and conservative ends.
  • Douglas Nejaime & Reva Siegel, “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics”, 124 Yale Law Journal 2516 (2015), p.2544

• [A] sound foundation for final and reasonable resolution.
  • The New York Times, (January 24, 1973)

• According to a news release issued by WUSA about the interview, Sarah Weddington, one of the two lawyers who took the case to the Supreme Court, said she had never touched the issue of rape and only emphasized the question of whether the Constitution gives to the state or leaves to a woman the questions of what she can or must do with her body.
  Kate Michelman, executive director of the National Abortion Rights Action League, said in an interview today that Ms. McCorvey's disclosure should not cloud the discussion about the right of a woman to terminate her pregnancy.
  If she lied, you have to remember that abortions were illegal, Ms. Michelman said, and that women were looked down upon if they were pregnant outside of marriage. It was her life circumstances that created the conditions that mitigated against her being straightforward about the fact that she was pregnant and wanted to terminate that pregnancy.
  After the celebrated Supreme Court decision, Ms. McCorvey at first lived in relative obscurity in Dallas, fearing that she would become a target of anti-abortion activists.
  • Kenneth B. Noble, “Key Abortion Plaintiff Now Denies She Was Raped”, New York Times, September 9, 1987

• This paper investigates the impact of the abortion law changes on family labor supply in the United States in the early 1970s. It attempts to answer the key question: do the law changes affect labor supply of fertile women and their parents who co-reside with them? Following the works of Chiappori, Fortin, and Lacroix (2002) and Oreffice (2007), I propose a collective labor supply model for households in which a fertile daughter resides with her parents. In empirical section, using data from the March Current Population Survey and Panel Study of Income Dynamics, I find a significantly positive influence of the law on fertile women's capacity to work and a negative influence on their mothers in mother-daughter family scenario. It can be explained that the availability of the birth control allows the daughters more time to work for earning and provides their mothers fewer opportunities to financially support their newborn grandchildren. The paper uses the Heckman selection bias correction technique to correct the bias due to missing data on working behaviors of the family members. The novelty of this paper includes the investigation of the effect on working behaviors of people rather than spouses in an extended family.
  • Dung Kieu Nguyen, Fertility and Family Labor Supply: Evidence from the United States, Asia-Pacific Social Science Review, Volume 19, Number 2, 2019, p.206

• Today, millions of Americans woke up fearing that their essential freedoms under the Constitution were at risk. If the Supreme Court ultimately decides to overturn the landmark case of Roe v. Wade, then it will not only reverse nearly 50 years of precedent — it will relegate the most intensely personal decision someone can make to the whims of politicians and ideologues.
  • Barack Obama in a statement posted to Twitter "U.S. Roe v. Wade: Trump Says Leak Won't Have Big Effect on Midterms; Obama Rips Draft" (10:02 PM EDT)

• McCorvey’s 1995 jump from abortion rights advocate to a fierce activist against the very law her own unwanted pregnancy ushered in has long been a complicated story within the U.S. abortion debate.
  • Porterfield, Carlie (May 19, 2020). "'Roe Vs. Wade' Plaintiff Was Paid To Switch Sides In Abortion Fight, Documentary Reveals". Forbes. Archived from the original on May 20, 2020. Retrieved May 20, 2020.

• In 1969, McCorvey was 22 and on her third pregnancy when she tried to get an abortion, which was illegal in Texas at the time unless it was to save the mother’s life. She was referred to Linda Coffee, a lawyer in Dallas who was looking for a case to challenge the Texas law. Coffee teamed up with former law school classmate Sara Weddington, who was known for testing anti-abortion statutes. In the three years it took for the case to go through the courts, McCorvey gave birth to a baby girl who she set up for adoption.
  • Porterfield, Carlie (May 19, 2020). "'Roe Vs. Wade' Plaintiff Was Paid To Switch Sides In Abortion Fight, Documentary Reveals". Forbes. Archived from the original on May 20, 2020. Retrieved May 20, 2020.

• Norma had told the press that she was Jane Roe way back in 1973. But not until 1987-when she recanted the lie that she had been raped-did the press take much notice of her. And it was two more years before Norma was famous, lifted from the veil of a pseudonym by five weeks of press in the spring of 1989.
  • Joshua Prager, “The Roe Family: An American Story”, W. W. Norton & Company, September 14, 2021, ch.19, page 116

• In Roe v. Wade,' the Supreme Court concluded that the abortion decision of a female is protected by the penumbral right of privacy. The Court noted, however, that this right to abort is not absolute. Rather, the right to terminate one's pregnancy must be weighed against compelling state interests. Two such interests found by the Court in Roe were the protection of the pregnant woman's health and the protection of potential life.
  The Court in Roe considered the right of an adult female to an abortion. When the issue is the abortion decision of a minor, the courts must also contend with the additional interest of the parents. In Danforth, the state advanced the parents' interest in raising their children as they see fit as a compelling state interest to justify the parental consent provision. These parental consent requirement statutes, however, have not met with favorable receptions in other courts. In fact, the decisions of several courts have cast considerable doubt on their validity.
  • Quast, Gerald D. (1976). "Constitutional Law-Blanket Parental Consent Requirement for Minor's Abortion Decision Is Unconstitutional" (PDF). Texas Tech Law Review. 8 (2): 394–402. PMID 11664734. Retrieved January 9, 2022. pp.396-397

• Make no mistake, abortion-on-demand is not a right granted by the Constitution. No serious scholar, including one disposed to agree with the Court's result, has argued that the framers of the Constitution intended to create such a right.
  The decision by the seven-man majority in Roe v. Wade has so far been made to stick. But the Court's decision has by no means settled the debate. Instead, Roe v. Wade has become a continuing prod to the conscience of the nation.
  • Ronald Reagan. [https://www.heartland.org/policy-documents/abortion-and-conscience-nation Abortion and the Conscience of the Nation (1983)

• As a nation today, we have not rejected the sanctity of human life. The American people have not had an opportunity to express their view on the sanctity of human life in the unborn. I am convinced that Americans do not want to play God with the value of human life. It is not for us to decide who is worthy to live and who is not. Even the Supreme Court's opinion in Roe v. Wade did not explicitly reject the traditional American idea of intrinsic worth and value in all human life; it simply dodged this issue.
  • Ronald Reagan. [https://www.heartland.org/policy-documents/abortion-and-conscience-nation Abortion and the Conscience of the Nation (1983)

• It is possible that the Supreme Court itself may overturn its abortion rulings. We need only recall that in Brown v. Board of Education the court reversed its own earlier "separate-but-equal" decision.
  As we continue to work to overturn Roe v. Wade, we must also continue to lay the groundwork for a society in which abortion is not the accepted answer to unwanted pregnancy. Pro-life people have already taken heroic steps, often at great personal sacrifice, to provide for unwed mothers.
  • Ronald Reagan. [https://www.heartland.org/policy-documents/abortion-and-conscience-nation Abortion and the Conscience of the Nation (1983)

• Cruel and harmful.
  • Cecile Richards, "THE LAST WORD ‘Cruel and harmful’: Cecile Richards on SCOTUS draft opinion to overturn Roe v. Wade (video)" (May 2, 2022)

• Claim: You want to ban women's "constitutional right" to abortion.
  Answer: This is a "spurious" or false "right" - having no basis in the constitution. The U.S. Supreme Court claims to have discovered a "privacy" right in the "penumbra" of the Constitution ("penumbra" definition: a partly lighted area around an area of full shadow). Court decisions (Roe v.Wade and Doe v.Bolton) are aberrations (deviations from truth) and do nothing more than grant temporary license to kill children in the womb, the most dangerous place of residence. This license is tenuous and could be over-ridden by reversal or an amendment to the U.S. Constitution. Indeed, to guarantee the permanent freedom of the slaves and establish rights for all U.S." persons" the 14th Amendment to the Constitution was passed. It states, "...No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States: nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law." (emphasis added). In Roe v.Wade the Court determined that unborn children are not "persons" even though they have the right to inherit properly and many other rights. Some states have entire sections of law outlining Crimes Against Unborn Children in which they, from conception on, are protected from negligent or willful harm or death.
  • Marlene Reid, Tulsa World, May 24, 1993, selection reprinted in The Coyote Chronicle, California State University, San Bernadino, Volume 30, Issue 14, May 29, 1996, page four of the Human Life Alliance Advertising Supplement, p.19

• To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way.
  We at the Court are blessed to have a workforce – permanent employees and law clerks alike – intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.
  I have directed the Marshal of the Court to launch an investigation into the source of the leak.
  • Roberts, John (May 3, 2022). "Press Releases - pr_05-03-22 - Supreme Court of the United States". Supreme Court of the United States. Retrieved May 3, 2022.

• Minutes after the Supreme Court voted to overturn Roe v. Wade last summer, a group of West Wing aides raced to the Oval Office to brief President Biden on the decision. As they drafted a speech, Mr. Biden was the first person in the room to say what has been his administration’s rallying cry ever since.
  Passing federal legislation, he told the group, was “the only thing that will actually restore the rights that were just taken away,” recalled Jen Klein, the director of the White House Gender Policy Council.
  But if the prospect of codifying Roe’s protections in Congress seemed like a long shot a year ago, it is all but impossible to imagine now, with an ascendant far-right bloc in the House and a slim Democratic majority in the Senate.
  • Katie Rogers and Zolan Kanno-Youngs, “Stymied by Congress, Biden Seeks to Rally Voters on Abortion”, New York Times, (6/24/2023)

• "[I]t is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result. ... This is not surprising. As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether. It supported that right via a lengthy, but purposeless, cross-cultural historical review of abortion restrictions and a tidy but irrelevant refutation of the straw-man argument that a fetus is a constitutional 'person' entitled to the protection of the 14th Amendment. ... By declaring an inviolable fundamental right to abortion, Roe short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values."
  • Roosevelt, Kermit, "Shaky Basis for a Constitutional 'Right'". Washington Post, (January 22, 2003)

• No opinion with such deficiencies could be expected to provide a sound basis for resolution of a hotly contested social issue, and indeed, Roe has aged poorly. The current Supreme Court has all but explicitly discarded the constitutional methodology on which it rests. The idea that unelected judges should consult their inner oracles to decide whether a particular activity unmentioned in the Constitution deserves to be elevated to the pantheon of "fundamental rights" was always problematic. Beginning in 1986, when it refused to create constitutional protection for homosexual sodomy, the court started to hint that it was out of the fundamental rights business. Most recently, refusing to recognize a right to physician-assisted suicide in 1997, the court did not even mention Roe. The era of judicially created fundamental rights is over.
  The fact that there are constitutional arguments in favor of not overruling Roe doesn't mean the opinion should be celebrated, at least not as anything other than a historical artifact. Roe is an increasingly creaky anachronism, and anyone who cares about a woman's right to choose should seek a sounder constitutional basis for that right. Such arguments have been put forth frequently in the scholarly literature, and most tend to cast the abortion controversy as a question not of liberty but of equality. Unlike the fundamental rights jurisprudence that produced Roe, the right to equal protection of the laws is alive and well in the Supreme Court. This perspective offers a way to go forward.
  • Roosevelt, Kermit, "Shaky Basis for a Constitutional 'Right'". Washington Post, (January 22, 2003)

• I asked whether Stevens thought the right to abortion recognized in Roe v. Wade would survive in his lifetime. “Well, it’s up to Justice Kennedy,” he replied. “I don’t know about the two new justices” — Roberts and Alito — “but I kind of assume it may well be up to him.” Abortion rights supporters may take solace in the fact that Stevens indicated that Kennedy seemed to view the regulation of so-called partial-birth abortions as consistent with Planned Parenthood v. Casey, which upheld the central holding of Roe v. Wade. “I don’t think he thinks this” — the recent abortion opinion — “requires him to change his views at all,” Stevens said. “We’ll have to wait and see. I suppose there are a lot of people out there praying I get out of the way.”
  • Rosen, Jeffrey (September 23, 2007). "The Dissenter". The New York Times Magazine.

• Stevens says he thinks if Roe v. Wade had been written more narrowly, the court might have avoided some of the criticism that ensued. “In all candor,” he told me, “I think Harry [Blackmun] could have written a better opinion. I think if the opinion had said what Potter Stewart said very briefly” — namely that the right to marital and family privacy previously recognized by the court included a right to choose abortion — “it might have been much more acceptable, instead of trying to create a new doctrine that really didn’t make sense.”
  When he went through the confirmation process in 1975, just two years after Roe, Stevens recalled, he was not asked a single question about it. Only later, because of the reaction that followed Roe, did abortion become a central issue in national politics. “I’m really not sure that it’s fair to blame the court for the hostility that’s come on, but I do think that a better opinion might have avoided some of the criticism.”
  • Rosen, Jeffrey (September 23, 2007). "The Dissenter". The New York Times Magazine.

• The Supreme Court issued its first abortion opinion on January 22, 1973. That opinion, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) has ushered in a quarter century of criticism by many academic commentators. In so doing, the Supreme Court created a right to abortion (essentially abortion on demand) that was broader than the abortion rights granted by almost any other western nation. It also federalized the abortion issue, an issue that had been left in the custody of the states for nearly two centuries.
  Though a fragmented Court itself later backtracked on Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), it did not overrule all of Roe because, as the O’Connor-Kennedy-Souter plurality candidly stated, it was important to respect precedent. Thus we are left with Roe and the new right that it created, even though a majority of the Justices on the Court today acknowledge that Roe should be accepted simply because it is precedent, not because it is grounded in our constitution.
  • “PREPARED STATEMENT OF RONALD D. ROTUNDA”, (January 21, 1998); The 25th Anniversary of Roe V. Wade: Has it Stood the Test of Time? : Hearing Before the Subcommittee on the Constitution, Federalism, and Property Rights of the Committee on the Judiciary, United States Senate, One Hundred Fifth Congress, Second Session ... January 21, 1998, Volume 4, p.19

• In a very brief opinion, the Menillo Court simply stated that “Roe teaches that a State cannot restrict a decision by a woman, with the advice of her physician, to terminate her pregnancy during the first trimester.” 423 U.S. at 10-11, 96 S.Ct. at 171 (emphasis added.) Prosecution of a non-physician for performing an abortion, “[e]ven during the first trimester of pregnancy” infringes “upon no realm of personal privacy secured by the Constitution against state interferences.” 423 U.S. at 11, 96 S.Ct, at 171. A woman has no right to choose a non-doctor to perform an abortion, even though a woman can choose a non-doctor, such as a midwife, to deliver a full-term baby.
  Later cases have confirmed that Roe was primarily drafted to protect doctors, not their patients. Thus, the Court has said, in Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 2831, 49 Led.2d 586 (1979), that “neither the legislature nor the courts” can define viability objectively, “be it weeks of gestation, or fetal weight, or any other single factor,” because the judgment of the doctor must control.
  • “PREPARED STATEMENT OF RONALD D. ROTUNDA”, (January 21, 1998); The 25th Anniversary of Roe V. Wade: Has it Stood the Test of Time? : Hearing Before the Subcommittee on the Constitution, Federalism, and Property Rights of the Committee on the Judiciary, United States Senate, One Hundred Fifth Congress, Second Session ... January 21, 1998, Volume 4, p.21

• Those people who insist that no statute should limit Roe in any way, those who believe that we must follow Roe without change, without dotting another “i” or crossing another “t”-those advocates should read that decision and the others that follow in its wake. The decision is not about protecting women; it is about protecting doctors.
  • “PREPARED STATEMENT OF RONALD D. ROTUNDA”, (January 21, 1998); The 25th Anniversary of Roe V. Wade: Has it Stood the Test of Time? : Hearing Before the Subcommittee on the Constitution, Federalism, and Property Rights of the Committee on the Judiciary, United States Senate, One Hundred Fifth Congress, Second Session ... January 21, 1998, Volume 4, p.22

• Importantly, public opinion also mirrors the conceptual framework used in the 1973 landmark Roe v. Wade abortion decision. Under that historic ruling, the interests of the mother are paramount in the first trimester, but the state has an interest in protecting the fetus after viability. In the words of the decision: "For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."
  The wording of Roe v. Wade aligns almost perfectly with where Americans stand on late-term abortions -- keep them legal to save the life of the mother and in cases of rape and incest, but not for other reasons. Where Americans seem to depart from the decision is in supporting certain restrictions on first-term abortions, particularly those performed because of Down syndrome or solely at the woman's discretion.
  Roe v. Wade took the power of outlawing abortion out of states' hands, making it legal throughout the country. But its invitation to regulate abortion in ways focused on the health of the mother, as well as to protect the "potentiality of human life" after viability, has enabled states to pass numerous laws limiting how and when abortion can be legally performed. Many of these restrictions are likely consistent with Americans' sensitivities to abortion, but that alignment could change.
  • Lydia Saad, "Trimesters Still Key to U.S. Abortion Views". Gallup, (June 13, 2018).

• Recently, in Roe v. Wade, 410 U. S. 113, 410 U. S. 152-154 (1973), the importance of procreation has, indeed, been explained on the basis of its intimate relationship with the constitutional right of privacy which we have recognized. Yet the limited stature thereby accorded any "right" to procreate is evident from the fact that, at the same time, the Court reaffirmed its initial decision in Buck v. Bell. See Roe v. Wade, supra, at 410 U. S. 154.
  • San Antonio Independent School District v. Rodriguez 411 U.S. 1 (1973), pp.100-101 (Marshall, J., dissenting), justia.com

• The title of Worst Joke in Legal History belongs to one of history's highest-profile cases. Defending Texas's abortion restrictions before the Supreme Court, attorney Mr. Jay Floyd decided to open oral argument with a sexist joke. Arguing against two female attorneys, Floyd begins: “It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.” The joke is demeaning and (as Floyd himself admits) unoriginal, but it also lacks the saving grace of at least being funny. A recording of the oral argument, which can be listened to here, demonstrates just how badly the joke bombed with the Supreme Court. Painful silence endures for just over three seconds. Not captured on the recording are the physical reactions of the justices. According to the later recollection of one of the “beautiful ladies” arguing against Floyd, Chief Justice Warren Burger was so furious that he almost rushed down “right off the bench at him. He glared him down.”
  Dr. Ryan Malphurs, a scholar of Supreme Court humor (yes, there is such a thing), describes how “Floyd struggled to gain momentum through the rest of his argument.” A flustered Floyd responds to Justice Thurgood Marshall’s questioning with the stunning admission that these are “unanswerable questions,” a response that earns derisive laughter. (Thurgood Marshall replies, “I appreciate it.”) Floyd apologizes for his “artless statement,” which garners even more laughter. The man who had attempted to begin with a joke ends as the object of comedy. When the Supreme Court requested re-argument on Roe v. Wade eleven months later, Floyd was gone.
  Floyd’s disastrous “beautiful ladies get the last word” is the greatest failed joke in U.S. legal history, and some claim it is the worst joke of all time, in any setting. It occurred on the highest possible stage, in a high-profile case, while also (here’s the spoiled icing on the collapsed cake) managing to be a sexist joke during a landmark women’s rights case.
  But did the failed Roe v. Wade joke actually affect the Court’s eventual 7-2 ruling? This seems highly unlikely. The only justice who conceivably could have been affected by Floyd’s argument was Chief Justice Burger. Burger was a conservative who later voted to restrict abortions – and yet he voted with the Roe v. Wade majority. So was Burger swayed to vote for abortion rights based on Floyd’s calamitous oral argument? Probably not – most scholars have explained Burger’s vote in Roe as a simple strategic move. (So long as he voted with the majority, Burger, as Chief Justice, could control who wrote the majority opinion in Roe, and thus partially control what that opinion said.)
  • Sant, Geoffrey. "8 horrible courtroom jokes and their ensuing legal calamities", Salon.com, (July 27, 2013)

• These facts should give conservative opponents of Roe pause. Can it be that they have misunderstood the central tenets of their own philosophy? Do they have a good account of why this philosophy should apply to all sorts of other choices, but not to the choices made by women about whether to bear a child?
  Many anti-Roe activists would no doubt respond that the abortion decision is different because it is not merely self-regarding. The rights of another entity-the fetus-are at stake. If this were true-if the fetus were an appropriate rights bearer-this argument would have considerable force. But some Roe supporters deny that it is true. One thing that has persisted for the quarter-century since Roe was decided-and is likely to persist for the indefinite future-is moral disagreement among intelligent and well-intentioned people about the moral status of the fetus.
  Some conservative opponents of Roe claim that this moral disagreement serves to undermine Roe. If people disagree about abortion, they argue, and if the disagreement cannot be settled by reference to the text of the Constitution or the intent of the framers, should not the disagreement be settled by the political process? Does not Roe therefore reflect indefensible judicial activism?
  • “Prepared statement of Louis Michael Seidman”, (January 21, 1998); The 25th Anniversary of Roe V. Wade: Has it Stood the Test of Time? : Hearing Before the Subcommittee on the Constitution, Federalism, and Property Rights of the Committee on the Judiciary, United States Senate, One Hundred Fifth Congress, Second Session ... January 21, 1998, Volume 4, p.15

• I will strike down Roe v. Wade, but I will also strike down a law that is the opposite of Roe v. Wade. You know, both sides in that debate want the Supreme Court to decide the matter for them. One wants no state to be able to prohibit abortion and the other one wants every state to have to prohibit abortion, and they’re both wrong . . . that’s how I read the Constitution.
  • Antonin Scalia, "Remarks at the Pew Research Center Forum, A Call for Reckoning: Religion and the Death Penalty, Session Three" (Jan. 25, 2002)

• The Rev. Robert Schenck, one of the evangelical pastors who worked with McCorvey after her conversion to Christianity in the mid-1990s, looked stunned as he was shown her interview as part of the documentary.
  Schenck said the anti-abortion movement had exploited her weaknesses for its own ends and acknowledged she had been paid for her appearances on the movement’s behalf.
  “What we did with Norma was highly unethical,” Schenck said in the documentary. “The jig is up.”
  • Serjeant, Jill (May 19, 2020). "Plaintiff in Roe v. Wade U.S. abortion case says she was paid to switch sides". www.reuters.com. Reuters. Archived from the original on May 20, 2020. Retrieved May 20, 2020.

• In a separate blog post on Tuesday, Schenck said he hoped people would watch “AKA Jane Roe.”
  “You’ll see me express profound regret for how movement leaders (like me) mistreated Norma,” he wrote in the blog.
  “Her name and photo would command some of the largest windfalls of dollars for my group and many others, but the money we gave her was modest. More than once, I tried to make up for it with an added check, but it was never fair.”
  • Serjeant, Jill (May 19, 2020). "Plaintiff in Roe v. Wade U.S. abortion case says she was paid to switch sides". www.reuters.com. Reuters. Archived from the original on May 20, 2020. Retrieved May 20, 2020.

• Roe v. Wade (1973) made substantial use of that lack of protection for procreation in modifying the law on abortion.
  • Roger Shattuck, “Forbidden Knowledge: From Prometheus to Pornography”, San Diego, California: Harcourt Brace and Company, 1996, page 197 footnote

• In a recent opinion concurring in part and dissenting in part from the Supreme Court’s decision to affirm the constitutionality of an Indiana law requiring the humane disposition of fetal remains following abortion and decline to review the constitutionality of that state’s ban on abortions solely for reasons of genetic, racial, or sex discrimination, Justice Ginsburg stated explicitly: “A woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother.’” Box v. Planned Parenthood, 139 S.ct. 1780, 1793 n.2 (2019) (Ginsburg, J., concurring in part). She was responding to Justice Thomas’s use of the word to refer to a woman who has obtained an abortion, so it is possible that she meant after an abortion is completed, a woman is no longer a mother. But it is also possible she meant to say that is solely the intention to parent that determines parenthood rather than a biological reality. It is this latter notion that the anthropology of embodiment rejects.
  • “What It Means to Be Human: The Case for the Body in Public Bioethics” by O. Carter Snead, Cambridge, Massachusetts, Harvard University Press, 2020, footnote 146 on pages 294–295

• In 1973, the U.S. Supreme Court ruled that the state’s important and legitimate interest in potential life becomes “compelling” at the point of fetal viability. After viability, the state’s interest allows it to regulate and eve n prohibit all abortions, with the exception of those necessary to preserve the life or health of the mother. Viability was signified as the point at which the fetus is “potentially able to live outside the mother’s womb albeit with artificial aid,” and presumably capable of “meaningful life outside the mother’s womb.” The Court indicated that this point, at that time, “is usually placed” at about 7 months or 28 weeks, but may occur earlier (see CRS Issue Brief 95095). The Court further ruled that a state may regulate the abortion procedure in ways that reasonably relate to preserving and protecting maternal health during the gestation period following approximately the end of the first trimester (after 12 weeks of gestation). However, for the period before this point (up to 12 weeks), the abortion decision and its effectuation must be left to the pregnant patient and the medical judgement of the her attending physician.
  • Stith, Irene. “Abortion Procedures, CRS Report for Congress (PDF)”, (November 17, 1997). Retrieved December 21, 2021. pp.1-2

• Protecting access to the full range of reproductive health care, including abortion, is a critical business issue. Efforts to further restrict or criminalize that access would have far-reaching consequences for the American workforce, the U.S. economy and our nation’s pursuit of gender and racial equity.
  • Levi Strauss & Co Levi’s Argues for Abortion Rights; Crowds Gather: Protest Update (May 3, 2022, 2:47 PM PDT Updated on May 3, 2022, 6:20 PM PDT)

• The child whose conception was the genesis of the lawsuit that became Roe v. Wade is now a 51-year-old woman ready to tell her story.
  Shelley Lynn Thornton has come forward after decades of secrecy to publicly identify herself as the "Roe baby" in the new book "The Family Roe: An American Story" by Joshua Prager, which will be released on Sept. 14 and was excerpted in The Atlantic on Thursday.
  “My association with Roe started and ended because I was conceived," Thornton is quoted saying in the excerpt.
  Her birth mother's lawsuit became the landmark 1973 Supreme Court case that secured the right for women to legally have an abortion across the country, even though she never went through with the procedure.
  "In his majority opinion, Justice Harry Blackmun noted that a 'pregnancy will come to term before the usual appellate process is complete,'" Prager writes.
  Still, the Dallas waitress' challenge to the Texas law resulted in a sweeping change of the laws across the country.
  • “Identity of 'Roe baby' revealed after decades of secrecy” by Scott Stump, NBC News, September 9, 2021

• What I think is that it just doesn't have the stable status of Brown or Miranda because it's been under internal and external assault pretty much from the beginning.
  • Sunstein, Cass, quoted in “Roe v. Wade an Issue Ahead of Alito Hearing” by Brian McGuire, New York Sun, (November 15, 2005)

• As a constitutional matter, I think Roe was way overreached. I wouldn’t vote to overturn it myself, but that’s because I think it’s good to preserve precedent in general, and the country has sufficiently relied on it that it should not be overruled.
  • Sunstein, Cass, quoted in “Roe v. Wade an Issue Ahead of Alito Hearing” by Brian McGuire, New York Sun, (November 15, 2005)

• In the Court’s first confrontation with the abortion issue, it laid down a set of rules for legislatures to follow. The Court decided too many issues too quickly. The Court should have allowed the democratic processes of the states to adapt and to generate sensible solutions that might not occur to a set of judges.
  • Cass Sunstein, “The Supreme Court 1995 Term: FOREWORD: LEAVING THINGS UNDECIDED,” 110 Harvard Law Review 6, 20 (1996).

• What I think is that it just doesn’t have the stable status of Brown or Miranda because it’s been under internal and external assault pretty much from the beginning…. As a constitutional matter, I think Roe was way overreached. I wouldn’t vote to overturn it myself, but that’s because I think it’s good to preserve precedent in general, and the country has sufficiently relied on it that it should not be overruled.
  • Cass Sunstein, quoted in: Brian McGuire, “Roe v. Wade an Issue Ahead of Alito Hearing,” New York Sun November 15, 2005

• The Washington Post reports on an interesting new analysis by the National Campaign to Prevent Teen Pregnancy. The campaign, noting that U.S. teen birthrates fell 30% between 1991 and 2002, calculates that if those rates had instead remained constant, there would be some 406,000 additional children living below the federally defined poverty line and some 428,000 living in households with single mothers.
  Since 1991 was exactly 18 years after Roe v. Wade, we got to wondering if the Roe effect might have something to do with all this. The Roe effect would predict that the effect of a reduction in birthrates would be greatest in liberal states, where pregnant teenagers would be more likely to exercise their "right to privacy" and thus less likely to carry their babies to term. The campaign's numbers seem to bear this out.
  • "Babies Having (Fewer) Babies" by James Taranto, wsj.com OpinionJournal, Dow Jones & Company, April 14, 2005

• The argument of this chapter is that there is a fundamental difference between what the U.S. Supreme Court did in its 1973 Roe v. Wade decision and what the Supreme Court of Canada subsequently did in its 1988 ruling in Morgentaler v. The Queen. In the United States the high court created a constitutional right to an abortion, thus barring any governmental regulation unless it could withstand the highest judicial standard of strict scrutiny (and few could), whereas in Canada the high court declared the existing statute unworkable and, furthermore, invited Parliament to rework that legislation. To say that today both countries have legalized abortion as an elective procedure is to miss the point. In the United states elective abortions during the first trimester have been constitutionalized as a right; in Canada elective abortions are legal only because Parliament thus far has refused to act. If Congress wanted to overturn Roe v. Wade, it would have to garner two-thirds votes in the House and Senate and then obtain the approval of three-fourths of the states for a constitutional amendment. Parliament, to reverse the effect of Morgentaler v. The Queen (1988), would need only to enact new legislation (which presumably also would be challenged in court). In other words, the legal status quo in Canada is the result of legislative default-the failure of Parliament to act in the affirmative.
  • Raymond Tatalovich, “The Politics of Abortion in the United States and Canada: A Comparative Study”, New York: Routledge, 1997, p.52

• What led the Supreme Court in 1973 to legalize abortion during the first trimester of a pregnancy was the privacy doctrine articulated in Griswold v. Connecticut (1965) and its extension via the equal-protection clause in Eisenstadt v. Baird (1972). Griswold v. Connecticut (1965) was a birth control case in which contraceptive use was declared to be a privacy right inferred from various provisions of the Bill of Rights and the language of the Ninth Amendment, which reads: “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Neither privacy nor abortion is mentioned anywhere in the constitution or the Bill of Rights, so Justice Douglas in Griswold v. Connecticut (1965) resorted to finding “penumbras” and “emanations” from the First, Third, Fourth, Fifth, and Ninth Amendments. As he declared:
  [Prior] cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations form those guarantees that help give them life and substance. . . . various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
  • Raymond Tatalovich, “The Politics of Abortion in the United States and Canada: A Comparative Study”, New York: Routledge, 1997, pp.52-53

• Roe v. Wade was sort of conjured up out of very general phrases and was recorded, even by most liberal scholars like Archibald Cox at the time, John Harvey Link—just to name two Harvard scholars—as kind of made-up constitutional law.
  • Stuart Taylor Jr, "Online News Hour", PBS July 13, 2000

• The Supreme Court came close to virtually overturning Roe v. Wade, according to papers of the late Justice Harry Blackmun being released today. NPR's Nina Totenberg was the only broadcast journalist granted advance access to 1,576 boxes of his files and 38 hours of oral history tapes. In the first of a series of reports, Totenberg examines shifts within the court that allowed the Roe ruling to be maintained.
  The Blackmun papers reveal that the court's first vote was to overrule Roe in all but name, Totenberg reports on Morning Edition. But as the issue came to a head, Chief Justice William Rehnquist and the court's three other anti-Roe justices were blindsided by three centrist justices who worked together in secret to preserve a woman's right to an abortion.
  The 1992 abortion case was Planned Parenthood v. Casey, in which the first Bush administration was pushing hard for the reversal of Roe, the landmark 1973 ruling authored by Blackmun.
  Justice Anthony Kennedy initially voted with the anti-Roe conservatives, giving them a majority of five, but he subsequently changed his vote to support, not eviscerate Roe, the Blackmun papers show. The switch came even as Rehnquist, was circulating a so-called majority opinion that would have left Roe a meaningless shell, Totenberg reports.
  • Totenberg, Nina (March 4, 2004). "Documents Reveal Battle to Preserve 'Roe'; Court Nearly Reversed Abortion Ruling, Blackmun Papers Show". Morning Edition. NPR.

• "It's the legal equivalent of a nuclear bomb," NPR's Nina Totenberg, the dean of Supreme Court reporters, noted, adding that it's possible this ruling opens the door for the potential "for undoing other areas of personal autonomy," from contraception to interracial marriage.
  • Nina Totenberg as quoted by Domenico Montanaro, “6 political questions after the Supreme Court overturned Roe v. Wade”, NPR, (June 26, 2022)

• UNLIKE Yeats’ “rough beast, its hour come round at last,” substantive due process may yet enjoy an auspicious second coming. For the Supreme Court’s 1972 Term points the way toward a conception of substantive due process that may avoid the fate of that doctrine’s earlier incarnation in American constitutional law. This Foreword will venture a tentative exploration of the “widening gyre” implicit in several of the Court’s recent decisions.
  • Tribe, Laurence (1973). "The Supreme Court, 1972 Term – Foreword: Toward a Model of Roles in the Due Process of Life and Law". Harvard Law Review. 87 (1): 1–314. doi:10.2307/1339866. JSTOR 1339866. PMID 11663596.

• Roe AND Rodriguez: THE CHALLENGE
  Last year in these pages, Gerald Gunther proposed a revitalized enforcement of the constitutional requirement that legislative means substantially further legislative ends. For the pragmatic reason that “due process carries a repulsive connotation of value-laden intervention for most of the Justices, of the Burger Court as well as the Warren Court,” Professor Gunther suggested that the inquiry could “best be carried forward under the banner of equal protection than due process . . . .” But in San Antonio Independent School District v. Rodriguez, its major opportunity this Term to scrutinize a means-end relationship.
  • Tribe, Laurence (1973). "The Supreme Court, 1972 Term – Foreword: Toward a Model of Roles in the Due Process of Life and Law". Harvard Law Review. 87 (1): 1–314. doi:10.2307/1339866. JSTOR 1339866. PMID 11663596.

• “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”
  • Laurence Tribe, “The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law,” 87 Harvard Law Review 1, 7 (1973).

• And in Roe v. Wade and Doe v. Bolton, when the Court had its most dramatic opportunity to express its supposed aversion to substantive due process, it carried that doctrine to lengths few observers had expected, imposing limits on permissible abortion legislation so severe that no abortion law in the United States remained valid.
  • Laurence Tribe, “ABORTION-PART 3 HEARING BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS OF THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE NINETY-THIRD CONGRESS SECOND SESSION ON S.J. Res. 119 PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES FOR THE PROTECTION OF UNBORN CHILDREN AND OTHER PERSONS AND S.J. Res. 130 PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATE GUARANTEEING THE RIGHT TO LIFE TO THE UNBORN, THE ILL, THE AGED, OR THE INCAPACITATED Part 3”, United States. Congress. Senate. Committee on the Judiciary. Subcommittee on Constitutional Amendments, (1975)

• Given that the Supreme Court long ago determined that the Constitution protects a woman’s right to choose an abortion, the ultimate issue in this appeal is whether the State of Mississippi can impose a regulation that effectively will close its only abortion clinic. The State of Mississippi, however, argues that Mississippi citizens can obtain an abortion in Tennessee, Louisiana, or Alabama without imposing an undue burden upon Mississippi citizens in the exercise of their constitutional rights.
  • No. 13-60599 in the United States Court of Appeals for the Fifth Circuit, July 29, 2014, cases.justia.com, p.1

• Today, we follow the principle announced by the Supreme Court nearly fifty years before the right to an abortion was found in the penumbras of the Constitution and hold that Mississippi may not shift its obligation to respect the established constitutional rights of its citizens to another state. Such a proposal would not only place an undue burden on the exercise of the constitutional right, but would also disregard a state’s obligation under the principle of federalism—applicable to all fifty states—to accept the burden of the non-delegable duty of protecting the established federal constitutional rights of its own citizens.
  • No. 13-60599 in the United States Court of Appeals for the Fifth Circuit, July 29, 2014, cases.justia.com, p.2

• WASHINGTON -- The woman whose famous abortion case led to the Supreme Court's Roe vs. Wade decision said in an interview released Tuesday she lied when she told lawyers her unwanted pregnancy was the result of a gang rape.
  Norma McCorvey, the woman called 'Jane Roe' in the famous 1973 decision that said women had a constitutional right to an abortion, told WUSA-TV in an interview to be broadcast Sept. 13 that she fabricated the rape story to get around a Texas law that banned abortions except to save the mother's life.
  • UPI Archives, “The woman whose famous abortion case led to the..., UPI archives, (September 8, 1987)

• Sarah Weddington, the Austin, Texas, lawyer who represented McCorvey, told United Press International Tuesday, 'The issue of how Jane Roe became pregnant is irrelevant to the case. There was nothing in any of the papers filed with the court or in any of the oral arguments made that related to the cause of the pregnancy.
  'Rather, the case was about a young woman who was pregnant, who didn't want to be pregnant, and who had been denied an abortion because of the provisions of the Texas anti-abortion statute.
  All of these facts are true. No fact was ever presented to the court unless I was certain we could prove it,' she said.
  • UPI Archives, “The woman whose famous abortion case led to the..., UPI archives, (September 8, 1987)

• While rape was never an issue in the case, public opinion was considered swayed by the media accounts detailing what McCorvey claimed was a gang rape by three men and a woman while she worked for a circus in Georgia.
  'I found out I was pregnant through what I thought was love,' McCorvey said in the interview with Carl Rowan. 'When I came back to Texas ... I went to my doctor. ... I told him I wanted an abortion, that I did not want to carry the child because of economic reasons. ... He told me that abortions were illegal in the state of Texas and that I would have to go to another state in order to obtain a legal abortion.'
  In the interview with the Washington CBS affiliate, McCorvey said, 'How dare them tell me that I couldn't abort a baby that I did not want ... and couldn't have control over my own body.'
  McCorvey said she had the baby and put it up for adoption, then told the rape story to the lawyers who took her case to the Supreme Court.
  • UPI Archives, “The woman whose famous abortion case led to the..., UPI archives, (September 8, 1987)

• To the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases.
  • Webster, 492 U.S. at 521; (Rehnquist, CJ.,joined by White & Kennedy, JJ.).

• It thus appears that the mansion of constitutionalized abortion law, constructed overnight in Roe v. Wade, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be.")
  • Webster, 492 U.S. at 537; Scalia, J.,concurring.

• In discussing early American law pertaining to abortion, the Supreme Court stated that “most of [the] initial statutes dealt severely with abortion after quickening but were lenient with it before quickening.” The Court also emphasized the fact that the Connecticut Legislature did not amend its 1821 antiabortion statute to proscribe pre-quickening abortions until 1860. These statements are quite misleading. At the end of 1868, twenty-seven of the thirty states with antiabortion statutes prohibited attempts to induce abortion “before” quickening.
  • James S. Witherspoon, Reexamining Roe: Nineteenth-Century Abortion Statutes and the Fourteenth Amendment", St. Mary's Law Journal, Volume 29, 1985, Part III. Nineteenth-Century Criminal Abortion Statutes, Section B. The Prohibition of Pre-Quickening Attempts and the Elimination of the Quickening Distinction, pp.34-35

• In short, the Supreme Court’s analysis in Roe v. Wade of the development, purposes, and the understandings underlying the nineteenth century antiabortion statutes, was fundamentally erroneous. That analysis can provide no support whatsoever for the Court’s conclusions that the unborn children are not “persons” within the meaning of the fourteenth amendment, and that states do not otherwise have a “compelling interest” in protecting their lives by prohibiting abortion. A correct analysis of these statutes weighs entirely and heavily against these conclusions, to the extent that these conclusions depend on the purposes and understandings of the legislatures which proposed, ratified, and legislated in purported compliance with the fourteenth amendment. If the Supreme Court is to be faithful to the purposes and understandings of those who enacted and have implemented the fourteenth amendment, it must reevaluate and overrule its decision in “Roe”.
  • James S. Witherspoon, "Reexamining Roe: Nineteenth-Century Abortion Statutes and the Fourteenth Amendment", St. Mary's Law Journal, Volume 29, 1985, Part III. Nineteenth-Century Criminal Abortion Statutes, Section B. The Prohibition of Pre-Quickening Attempts and the Elimination of the Quickening Distinction, pp.70-71

• "In their quieter moments, many liberal scholars recognize that the decision is a mess."
  • Wittes, Benjamin. "A Little Less Conversation", The New Republic, November 29, 2007

• In the view of influential feminist legal scholars, Roe v. Wade weakened the ability of both movements to campaign effectively for the rights of the poor and women of color for whom Jackson spoke. Scholars and advocates such as Catherine MacKinnon, Rhonda Copelon, and Martha Minow have suggested that Roe’s privacy framework paved the way for laws and judicial decisions denying access to public facilities or funding for abortions, constraining “the emerging jurisprudence of privacy within a framework that produced inequalities.” Viewed in this way, Roe is supposed to have “undercut . . . arguments . . . for the rights of caretakers” and served “to siphon off deeper challenges to our scientistic, capitalist society.”
  • Mary Ziegler, “After Roe: The Lost History of the Abortion Debate”, Cambridge, Massachusetts: Harvard University Press, 2015, pp.95-96

"Argument transcript for No. 19-1392"

Argument transcript for No. 19-1392, (December 1, 2021), Heritage Reporting Corporation

• MR. STEWART: Mr. Chief Justice, and may it please the Court: Roe versus Wade and Planned Parenthood versus Casey haunt our country. They have no basis in the Constitution. They have no home in our history or traditions. They've damaged the democratic process. They've poisoned the law. They've choked off compromise.
  For 50 years, they've kept this Court at the center of a political battle that it can never resolve. And 50 years on, they stand alone. Nowhere else does this Court recognize a right to end a human life.
  • p.4

• JUSTICE THOMAS: General Stewart, you focus on the right to abortion, but our jurisprudence seems to -- seem to focus on, in Casey, autonomy; in Roe, privacy. Does it make a difference that we focus on privacy or autonomy or more specifically on abortion?

MR. STEWART: I think whichever one of those you're focusing on, Your Honor, particularly if you're focusing on -- on the right to abortion, each of those starts to become a step removed for what's provided in the Constitution. Yes, the Constitution does provide certain -- protect certain aspects of privacy, of autonomy, and the like. But, as this Court said in Glucksberg, going directly from general concepts of autonomy, of privacy, of bodily integrity, to -- to a right is not how we traditionally, this Court traditionally, does due process analysis.
So I think it just confirms, whichever one of those you look at, Your Honor, a right to abortion is -- is not grounded in the text, and it's grounded on abstract concepts that this Court has rejected in -- in other contexts as supplying a substantive right.

• pp.6-7

• JUSTICE BREYER: I assume you've read Casey pretty thoroughly.

MR. STEWART: Yes, Your Honor.

JUSTICE BREYER: And there are two parts. One is they reaffirm Roe. Put that to the side. The second is an opinion for the Court, not for three people but for the Court, and that second part is about what stare decisis principles should be used to overrule a case like Roe.
And they say Roe is special. What's special about it? They say it's rare. They call it a watershed. Why? Because the country is divided. Because feelings run high. And yet the country, for better or for worse, decided to resolve their differences by this Court laying down a constitutional principle, in this case, women's choice. All right. That's what makes it rare.

• pp.8-9

• MR. STEWART: I'm -- I'm sorry, Your Honor. What I'd emphasize, Your Honor, is that to the extent that -- that the -- I would not say it was the people that -- that called this Court to end the controversy. The people – you know, many, many people vocally really just wanted to have the matter returned to them so that they could decide it -- decide it locally, deal with it the way they thought best and at least have a fighting chance to have their view prevail, which was not given to them under Roe and then, as a result, under Casey.
  • pp.11-12

• MR. STEWART: On all the metrics that Casey was describing or the vast bulk of them, Casey fails. And I'd also emphasize this as well, Justice Breyer, that Casey was not -- was – was not a -- a great example of simply letting precedents stand. It -- it recast Roe's reasoning. It overruled two of the Court's most important abortion decisions. It jettisoned the trimester framework of Roe itself and adopted a new standard unknown to other parts of the law.
  • p.12

• MR. STEWART: Casey gave one paragraph to the workability of Roe. It then adopted the undue burden standard, which is perhaps the most unworkable standard in American law. It gave about three paragraphs, if memory serves, to reliance, which doesn't account for the last 30 years and the changes that have occurred since Casey. It did -- it -- it gave a brief factual view to things that have changed since Roe. Those, of course, are not going to take account of the last 30 years of advancements in medicine, science, all of those things.
  • pp.16-17

• CHIEF JUSTICE ROBERTS: In fact, if I remember correctly, and I -- it's an unfortunate source, but it's there -- in his papers, Justice Blackmun said that the viability line was -- actually was dicta. And, presumably, he had some insight on the question.

MR. STEWART: I -- I think -- and I'd-- I'd add, Your Honor, Justice Blackmun in -- in, I think, as well his papers pointed out the arbitrary nature of it and -- and the line-drawing problems –

• pp.19-20

• MR. STEWART: I don't think it was squarely at issue, Your Honor. Again, it's -- it's a little hard not to take the Court at its word when it emphasized that viability -- the -- that viability is -- is the central part of Roe -- Roe's holding and saying that it is reaffirming that, so we kind of take that as it -- as it stands. But the Court has not – it did not face a law like this certainly, Mr. Chief Justice.
  • p.20

• JUSTICE SOTOMAYOR: Counsel, there's so much that's not in the Constitution, including the fact that we have the last word. Marbury versus Madison. There is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means. It was totally novel at that time. And yet, what the Court did was reason from the structure of the Constitution that that's what was intended.
  And, here, in Casey and in Roe, the Court said there is inherent in our structure that there are certain personal decisions that belong to individuals and the states can't intrude on them. We've recognized them in terms of the religion parents will teach their children. We've recognized it in -- in their ability to educate at home if they choose. They just have to educate them. We have recognized that sense of privacy in people's choices about whether to use contraception or not. We've recognized it in their right to choose who they're going to marry.
  I fear none of those things are written in the Constitution. They have all, like Marbury versus Madison, been discerned from the structure of the Constitution.
  • pp.22-23

• JUSTICE KAGAN: I guess what strikes me when I look at this case is that, you know, not much has changed since Roe and Casey, that people think it's right or wrong based on the things that they have always thought it was right and wrong for.
  • p.33

• JUSTICE KAGAN: I mean, it strikes me that people -- some people think those decisions made the right balance and some people thought they made the wrong balance, but, in the end, we are in the same exact place as we were then, except that we're not because there's been 50 years of water under the bridge, 50 years of decisions saying that this is part of our law, that this is part of the fabric of women's existence in this country, and that that places us in an entirely different situation than if you had come in 50 years ago and made the same arguments.
  • pp.34-35

• Julie Rikelman: In Casey, this Court carefully examined and rejected every possible reason for overruling Roe, holding that a woman's right to end a pregnancy before viability was a rule of law and a component of liberty it could not renounce. The question then is not whether Roe should be overturned but whether Casey was egregiously wrong to adhere to Roe's central holding.
  • ORAL ARGUMENT OF JULIE RIKELMAN, pp.47-48

• Casey and Roe were correct. For a state to take control of a woman's body and demand that she go through pregnancy and childbirth with all the physical risks and life-altering consequences that brings is a fundamental deprivation of her liberty. Preserving a woman's right to make this decision until viability preserve -- protects her liberty while logically balancing the other interests at stake.
  • p.48

• CHIEF JUSTICE ROBERTS: Are -- are you suggesting that the difference between 15 weeks and viability are going to have the same sort of impacts as you were talking about -- or as we were talking about in Roe?

MS. RIKELMAN: Yes, Your Honor, I believe they would because people who need abortion after 15 weeks are often in the most challenging circumstances. As I mentioned, they're people who have made -- perhaps had a major health or life change, a family illness, a job loss, a separation, young people or people who are on contraception or pregnant for the first time and who are delayed in recognizing the signs of pregnancy, or poor women, who often have much more trouble navigating access to care, and if they're denied the ability to make this decision because there's a ban after 15 weeks, they will suffer all of the consequences that the Court has talked about in the past.
And, in fact, the data has been very clear over the last 50 years that abortion has been critical to women's equal participation in society. It's been critical to their health, to their lives, their ability to pursue --

• pp.51-52

• MS. RIKELMAN: I would refer the Court to the brief of the economists in this case, Your Honor, and it compiles data showing studies based actually on causal inference, showing that it's the legalization of abortion and not other changes that have had these benefits for women in society, and, again, those benefits are clear for education, for the ability to pursue a profession, for the ability to have –
  • p.53

• JUSTICE BARRETT: So are you saying -- I mean, actually, as I read Roe and Casey, they don't talk very much about adoption. It's a passing reference that that means out of the obligations of parenthood. But, as I hear this answer then, are you saying that the right as you conceive of it is grounded primarily in the bearing of the child, in the carrying of a pregnancy, and not so much looking forward into the consequences on professional opportunities and work life and economic burdens?

MS. RIKELMAN: No, Your Honor, I believe it's both, and -- and that is exactly how Casey talked about it. It talked about the two strands of cases that supported the right. One was the strand of cases supporting bodily integrity, and it cited to cases like Curzan and Riggins versus Nevada. And the second was the strand of cases supporting decisional autonomy and specifically decisions related to childbearing, marriage, and procreation, decisions like Griswold, Loving.

• pp.58-59

• MS. RIKELMAN: Your Honor, it -- certainly, the arguments that the state has presented is what we're responding to there, which is that all of the state's arguments, including their alternatives, which are undue burden without viability, would be the equivalent of overruling Casey and Roe because the viability line is the central holding of those cases. Casey mentioned it no fewer than 19 times. And the Court in June Medical just a year ago affirmed that the viability line is the central holding of both Casey and Roe.
  • pp.63-64

• Justice Alito: But suppose we were considering that question now for the first time. I'm sure you know the arguments about the viability line as well as I do, probably better than I do. What would you say in defense of that line? What would you say to the argument that has been made many times by people who are pro-choice and pro-life that the line really doesn't make any sense, that it is, as Justice Blackmun himself described it, arbitrary?
  The -- the woman's -- if a woman wants to be free of the burdens of pregnancy, that interest does not disappear the moment the viability line is crossed. Isn't that right?

• p.64

• MS. RIKELMAN: [I]f I may answer your earlier question about whether viability was squarely at issue in Casey, it clearly was, Your Honor. At pages 869 to 871, the Court squarely discussed viability because the government had made the argument that viability was arbitrary --

CHIEF JUSTICE ROBERTS: Well, no, I appreciate that Casey addressed it, but that's different than saying it was at issue. It said it was the central principle of Roe because it was pretty much all that was left after they were done dealing with the rest of it.
And the regulations in Casey had -- had no applicability or not depending upon where viability was. They applied throughout the whole range, period. So, if they didn't say anything about viability, it's like what Justice Blackmun said in -- when discussing among his colleagues, which is a good reason not to have papers out that -- that early, is that they don't have to address the line-drawing at all in Roe, and they didn't have to address the line-drawing at all in Casey.

• p.68

• JUSTICE THOMAS: Back to my original question. If I were -- I know your interest here is in abortion, I understand that, but, if I were to ask you what constitutional right protects the right to abortion, is it privacy? Is it autonomy? What would it be?

MS. RIKELMAN: It's liberty, Your Honor. It's the textual protection in the Fourteenth Amendment that a state can't deprive a person of liberty without due process of law, and the Court has interpreted liberty to include the right to make family decisions and the right to physical autonomy, including the right to end a pre-viability pregnancy.

JUSTICE THOMAS: So it's all of the above?

MS. RIKELMAN: Well, the Court -- that's how the Court has interpreted the liberty clause for over a hundred years in cases going back to Meyer, Griswold, Carey, Loving, Lawrence.

JUSTICE THOMAS: Yeah, but I – I mean, all of those sort of just come out of Lochner, the -- so it's that we've -- we've dropped part of it. So I understand what you're saying, but what I'm trying to focus on is, if we -- is to lower the level of generality or at least be a little bit more specific. In the old days, we used to say it was a right to privacy that the Court found in the due process, substantive due process clause, okay? So -- or in substantive due process, and I'm trying to get you to tell me, what are we relying on now? Is it privacy? Is it autonomy? What is it?

MS. RIKELMAN: I think it continues to be liberty, and the right exists whatever level of generality the Court applies. There was a tradition under the common law for centuries of women being able to end their pregnancies.

• pp.71-73

• MS. RIKELMAN: Because the view that a previous precedent is wrong, Your Honor, has never been enough for this Court to overrule, and it certainly shouldn't be enough here when there's 50 years of precedent. Instead, the Court has required something else, a special justification. And the state doesn't come forward with any special justification. It makes the same exact arguments the Court already considered and rejected in its stare decisis analysis in Casey.
  • p.81

• JUSTICE THOMAS: I understand we're talking about abortion here, but what is confusing is that we -- if we were talking about the Second Amendment, I know exactly what we're talking about. If we're talking about the Fourth Amendment, I know what we're talking about because it's written. It's there.
  What specifically is the right here that we're talking about?

GENERAL PRELOGAR: Well, Justice Thomas, I think that the Court in those other contexts with respect to those other amendments has had to articulate what the text means and the bounds of the constitutional guarantees, and it's done so through a variety of different tests that implement First Amendment rights, Second Amendment rights, Fourth Amendment rights.
So I don't think that there is anything unprecedented or anomalous about the right that the Court articulated in Roe and Casey and the way that it implemented that right by defining the scope of the liberty interest by reference to viability and providing that that is the moment when the balance of interests tips and when the state can act to prohibit a woman from -- from getting an abortion based on its interest in protecting the fetal life at that point.

• pp.86-87

• GENERAL PRELOGAR: Well, there are multiple reliance interests here, as I think Casey correctly recognized. Casey pointed to the individual reliance of women and their partners who had been able to organize their lives and make important life decisions against the backdrop of having control over this incredibly consequential decision whether to have a child. And people make decisions in reliance on having that kind of reproductive control, decisions about where to live, what relationships to enter into, what investments to make in their jobs and careers.
  And so I think, on a very individual level, there has been profound reliance. And it's certainly the case that not every woman in America has needed to exercise this right or has wanted to, but one in four American women have had an abortion, and for those women, the right secured by Roe and Casey has been critical in ensuring that they can control their bodies and control their lives.
  • pp.96-97

“What Roe v. Wade Should Have Said; The Nation's Top Legal Experts Rewrite America's Most Controversial decision” (2005)

Roe v. Wade Should Have Said; The Nation's Top Legal Experts Rewrite America's Most Controversial decision”, Jack Balkin Ed. (NYU Press 2005).

• The past thirty years have witnessed a continuous battle over the legitimacy of Roe that has shaped not only the abortion right but also the composition of the federal courts, and American politics generally. Hence, this is also a book about the role of courts in defining and enforcing fundamental rights in a constitutional democracy and how the work of courts necessarily interacts with and is affected by the work of legislatures, political parties, and social movements.
  • Preface, ix

• In each generation, a handful of Supreme Court decisions crystallize the problems and tensions in American constitutional theory and raise crucial questions about the proper role of the courts in interpreting the Constitution in a democracy. Brown v. Board of Education was such a case for the generation of the 1950s and 1960s. Roe v. Wade has proven to be the key case for the generation of scholars that came afterward.
  Brown and Roe differ in many respects, but perhaps the most important difference is the degree of public acceptance each has enjoyed. Like Roe v. Wade, Brown v. Board of Education was hotly contested in the first few years after it was decided. For a decade or more, the legitimacy of Brown was bitterly disputed in the South. However, ten years after the decision, Congress ratified the result in Brown in Title VI of the Civil Rights Act of 1964. The success of the Civil Rights Movement altered the racial attitudes of most Americans. In the years that followed, Brown was transformed from a flashpoint of controversy into a hallowed icon that symbolized Americans’ aspirations toward equality and human rights. In subsequent controversies over busing, affirmative action, and the expansion of civil rights to women and gays, people no longer disputed whether Brown v. Board of Education was correct. Rather, different groups of Americans, both liberal and conservative, attempted to seize the mantle of Brown for themselves, arguing that they were the true adherents of Brown and that their opponents were distorting its meaning for political ends. The political debate was framed within the parameters set by Brown, rather than as a debate over the legitimacy of Brown itself.
  The story of Roe v. wade would be very different. No Civil Rights Act of 1983 ratified the result in Roe ten years after the case was decided. The second wave of American feminism did change American attitudes about gender equality. But Roe v. Wade also energized conservative and religious social movements that were deeply hostile to the decision. These social movements became important features of contemporary politics and helped produce the American party system as we know it today.
  • Preface, ix-x

• In contrast to Brown, many Americans-and particularly many American politicians-continue to argue that Roe v. Wade was wrongly decided and should be overruled. Since 1980, the platform of one of the country’s two major political parties-the Republicans-has called for overturning the decision. Roe has not become a hallowed icon like Brown but rather has remained a site of political and legal controversy. For this reason, the debate over abortion rights has not occurred solely within the framework set by Roe but has continually put the very legitimacy of the decision into question. And, since the 1980s, debates about federal judicial nominations have often focused, directly or indirectly, on the continued vitality and authority of Roe.
  • Preface p.x

• The title of this book, What Roe v. Wade Should Have Said, might suggest that changing the language of the opinion might have changed history. That may or may not be the case. The exact language of a decision may matter much less than most people (and most legal scholars) think. Most Americans do not read Supreme Court opinions and have only the vaguest idea of their contents. Moreover, whatever the original language, no decision is immune from subsequent revision, especially a controversial one like Roe v. Wade. Judges and Justices reshape and transform older decisions to conform with current concerns. The meaning of Roe was transformed repeatedly over time, and substantial features of Roe were jettisoned and replaced by the 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey.
  • p.xii

• [L]ike many great and controversial cases, Roe has spurred people to offer and defend different theories of constitutional interpretation. Some have tried to offer accounts of why the result (if not the precise reasoning) in Roe is consistent with sound constitutional interpretation, while others have pointed to Roe as the central example of a decision that lacks fidelity to the Constitution and sound interpretive principles. Several of the contributors to this volume have distinctive theories of how that Constitution should be read and interpreted. Rewriting Roe is a good way of putting those theories to the test.
  This second reason leads naturally to a third: Roe v. Wade has become a key point of controversy in an ongoing debate about the role of courts in a constitutional democracy. Roe has been a central example in debates about when courts should recognize and guarantee rights that are opposed by significant segments of society, an the legitimacy of courts’ trying to do so. Rewriting Roe is a good way to address these important questions, and many of the opinions in this book are deeply concerned with the proper role of the judiciary three decades after Roe.
  • pp.xii-xiii

• If “Brown v. Board of Education” is America’s most hallowed modern Supreme Court decision, Roe v. Wade is surely its most controversial. In 1973, Roe v. Wade struck down the abortion laws of most of the states in a single opinion, but it did not settle the question of abortion rights in America. Far from it: Roe was merely the opening event in a political and legal struggle over reproductive rights that continue to this day. Roe energized new social movements that eventually divided the two major political parties over abortion rights and reshaped their respective coalitions. Securing and expanding the right to abortion became a central concern of the women’s movement, while opposition to Roe v. Wade awakened the sleeping giant of religious conservatives, who in turn helped shape the contemporary Republican Party. In the process, Roe v. Wade became a central issue in federal judicial nominations, symbolizing not only the issue of reproductive freedom but also the larger question of the proper role of courts in a democratic society. Attacking and defending the principles and reasoning of Roe v. Wade has been a central preoccupation of constitutional theorists ever since it was decided. It is hardly an exaggeration to say that, more than any other Supreme Court decision, Roe v. Wade has defined the constitutional jurisprudence and the constitutional debates of the modern era.
  • p.3

• Justice Harry A. Blackmun, who had been appointed by President Richard Nixon in 1970, wrote the majority opinions in both Roe and Doe. He argued that the right of privacy recognized in Griswold and extended to single persons in Eisenstadt “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” Denying the right to choose would impose a “detriment . . . on the pregnant woman,” including possible medical and psychological harm. Child care could tax a woman’s mental and physical health. Blackmun also pointed to “the distress, for all concerned, associated with the unwanted child, and . . . the problem of bringing a child into a family already unable, psychologically and other-wise, to care for it, [as well as] the additional difficulties and continuing stigma of unwed motherhood.”
  Nevertheless, the central problem with extending the right of contraception to abortion was that abortion ended the existence of an embryo or fetus. Counsel for Texas argued that human life began at conception, tat a fetus was a person under the meaning of the Fourteenth Amendment, and therefore that a fetus had constitutional rights of its own. Blackmun responded that the fetus was not a person within the meaning of the Constitution, point out that in many places the Constitution referred to the rights and duties of persons that would make to sense if applied to fetuses. He also noted that abortion was not a felony at common law before “quickening”, the point at which a fetus’s movement could be felt by a pregnant woman, which usually occurred in the fourth or fifth month of pregnancy. Nevertheless, the State of Texas argued, even if the fetus was not a person, the state had a compelling interest in protecting the life of the fetus. That compelling interest could be vindicated only by prohibiting abortion.
  • pp.8-9

• None of the Justices believed that the right to abortion extended to the very moment of birth. At some stage in the pregnancy, the state’s interest in protecting the fetus became sufficiently compelling that states could proscribe abortion in almost all cases other than when necessary to preserve the woman’s life or health. To determine when that point occurred, Blackmun effectively had to decide when the life of the fetus “began” at least to the extent of deciding when the state’s interest in protecting the fetus became compelling.
  • p.9

• The trimester system was actually the result of a compromise among the Justices. Blackmun’s original idea was that a woman had the right to an abortion without interference from the state until the end of the first trimester. During the first trimester, the abortion decision was left to “the best medical judgment of the pregnant woman’s attending physician.” Afterward states could limit legal abortions to “stated reasonable therapeutic categories”-such as the woman’s physical or mental health-“that are articulated with sufficient clarity” to give physicians fair warning. The idea was that health regulations were unnecessary until the second trimester because first-trimester abortions were as safe for women as carrying the fetus to term. However, Justices William Brennan and Thurgood Marshall objected that the first trimester didn’t give women enough time to discover that they were pregnant, find a doctor, and take the necessary steps to obtain an abortion. Marshall, in particular, was worried about the effect of Blackmun’s rule on poor and minority women. Blackmun agreed that the first trimester was an arbitrary point, and he responded by pushing the cutoff point to the moment of viability. However, Blackmun believed that states should still be able to regulate abortions for health reasons after the first trimester. In effect, this produced three different sets of rules for three different trimesters. Brennan responded that the point of viability was imprecise. The Court did not have to specify a specific cutoff point but should leave that question to “medically informed” legislatures I the first instance. However, Blackmun ignored this suggestion, and the result was Roe’s trimester framework.
  • p.10

• During the deliberations over Roe, Justice Stewart worried that Blackmun’s trimester framework made the decision seem too legislative, a criticism that would be echoed repeatedly in later years. In hindsight, Brennan’s suggestion that the Court not draw hard and fast lines but instead wait and see what legislatures would do might have been far wiser. In any event, the Court issued its opinion on January 22, 1973, striking down Texas’s virtually total ban on abortions, as well as Georgia’s procedural restrictions. Seven Justices joined the opinion, with Justices White and Rehnquist dissenting. Justice Rehnquist argued that the decision was a throwback to Lochner v. New York and had no basis in the original understanding of the Fourteenth Amendment. Justice White objected that “[t]he Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries”
  • pp.10-11

• Some supporters of abortion rights, including, most prominently, Justice Ruth Bader Ginsburg, have claimed that the Roe decision was premature and a political mistake. Roe v. Wade “halted a political process that was moving in a reform direction and thereby . . . prolonged divisiveness and deferred stable settlement of the issue.” Opposition to Roe helped energize the conservative religious and social movements of the 1970s and 1980s, which argued that an unelected judiciary was imposing its personal (and immortal) views and casting aside those of democratically elected state governments. These conservative social and religious movements eventually found a home in the Republican Party; they helped elect Ronald Reagan to the presidency and helped many other pro-life candidates gain political office. In the years following Roe, both Congress and state legislatures passed a series of laws that repeatedly attempted to water down and limit abortion rights. As Roe energized pro-life conservative social movements, it simultaneously demobilized social movement support for abortion rights. Instead of pressing for abortion reform in the states and at the national level, pro-choice advocates were constantly placed on the defensive and repeatedly turned to the courts for protection. Reliance on the courts, in turn, diverted political energy away from forming a mass political movement for abortion rights that could successfully counter the burgeoning pro-life movement.
  • pp.11-12

• Several contributors offered what they believed to be the best arguments for grounding (or rejecting) the abortion right using constitutional materials available in 1973. Some tried to improve (or, in the case of the dissenters, demolish) Justice Blackmun’s arguments that abortion was a constitutionally protected liberty. Others decided to ground the abortion right in the Equal Protection Clause, taking advantage of the fact that in 1973 the Court’s sex-equality jurisprudence was still relatively unformed and could have been fashioned differently from the way it is today. None of the opinions adopted Justice Blackmun’s original trimester framework.
  • p.18

• My opinion argues that abortion statutes violate both women’s liberty and their equality. Restrictions on abortion compel women to become mothers, with all of the social expectations and duties that come with motherhood. Whether fairly or not, women in American society still bear most of the responsibility for child care. They are expected to make sacrifices for their children, and they feel most of the brunt of social condemnation if their children are not properly cared for. Moreover, because of the strong social expectations about the duties of motherhood, women suffer stigma and shame if they give their children up for adoption. Where a woman’s life or health is not at risk, the right to abortion is the right to have a reasonable time to decide whether to take on the responsibilities of motherhood. How long women should have to make that decision should be determined by legislatures in the first instance: “[L]egislatures must specify a period of time during pregnancy in which women may obtain medically safe abortions.” After this point, “legislatures may restrict of even completely prohibit abortions, . . . except where an abortion is necessary, in the judgment of medical professionals, to preserve the life or health of the mother.” The basic idea behind this formulation is that the right to abortion has two components: Women have a right to decide whether or not to become oarents, so the state must afford them an appropriate period of time in which to make that decision. But women also have a right not to be forced by the state to sacrifice their life or health to bear children, and this right continues through pregnancy. My opinion rejects the rigid trimester system in Roe. Instead, courts should let states try out different frameworks for abortion regulation. Over time, courts should then judge the validity of these laws based on whether they give women a reasonable time to decide and a “fair and realistic chance” to end their pregnancy.
• pp.18-19

• Reva Siegel argues that the proper basis of the abortion right is women’s equality and that the Court’s heightened scrutiny for laws that impose sex discrimination should have begun with Roe v. Wade. Abortion is a constitutional right necessary to secure women’s equal citizenship. Siegel argues that exemptions in abortion statutes like those in Roe and Doe demonstrate, often in quite telling ways, that abortion restrictions are deeply tied to stereotypical views about the sexes and about the dutes of women: “Whatever respect for unborn life abortion laws express,” Siegel notes, “state criminal kaws have never value unborn life in the way they value born life.” Instead, states “have used the criminal law to coerce and intimidate women into performing the work of motherhood.” “Abortion kaws do not treat women as murderers, but as “mothers”-citizens who exist for the purpose of rearing children, citizens who are expected to perform the work of parenting as dependents and nonparticipants in the citizenship activities in which men are engaged.” Siegel bases her opinion on the equality arguments offered in amicus briefs submitted to the Supreme Court by various women’s groups. These briefs grounded the abortion right in what we would today call an antisubordination model of equality law. Siegel’s answer to what Roe should have said is to give voice to the lawyers who were part of the legal vanguard of the second wave of American feminism and whose arguments were largely ignored by the courts.
  • p.19

• Mark Tushnet interprets the question of what Roe should have said differently from all the other participants; he asks what were the best arguments that could have been generated by someone who could plausibly have been a Justice on the Supreme Court in 1973. The men who decided Roe (there would not be a woman Justice for almost a decade) did not understand the connection between abortion rights and the Equal Protection Clause. In his view, Justice Douglas’s concurrence in Doe (which was drafted in conversation with Justice Brennan) was the best that the Court probably could have done under the circumstances, and it forms the model for Tushnet’s opinion.
  • p.20

• Anita Allen grounds her opinion on women’s procreative liberty protected by the Due Process Clause of the Fourteenth Amendment. She argues that, because laws that compel women to abort their pregnancies would clearly be unconstitutional, so too would be laws that prevent abortion: “Like the right to prevent pregnancy, the right to terminate pregnancy is a fundamental right”.
  Jed Rubenfeld argues that the constitutional right to privacy is part of a more general prohibition against totalitarian policies that take over people’s private lives and impose a specific occupation on them by force of law. Restrictions on abortion are unconstitutional because they conscript women against their will and force them “to carry out a specific, sustained, long-term life-altering and life-occupying course of conduct.”
  Robin West argues that restrictions on abortion violate both women’s liberty and their equality. However, she does not base her argument on either sex discrimination or the right of privacy. Rather, she argues that restrictions on abortion impose duties of good samaritanship on pregnant women that states impose on no other persons. Moreover, restrictions on abortion prevent pregnant women from using self-help to avoid the consequences of pregnancies imposed on them in cases of marital rape and coerced sex. Although West believes that the courts should protect a basic abortion right, courts cannot deal with the larger structural problems of sex inequality in the United States. “Mothering children, as we presently socially construct that work,” West argued, “is incompatible with the basic rights and responsibilities of citizenship,” and this “incompatability has constitutional implications.” But merely striking down abortion laws is “a pathetically inadequate remedy.” Emphasizing Congress’s duty to interperet and enforce the Fourteenth Amendment independent of the courts, West argues that Congress is the body best able to pass legislation that protects women’s equality and secures their equal citizenship.
  • pp.20-21

• Yet another way of answering the question of what Roe should have said focuses not on the best doctrinal or theoretical justifications for Roe but on what was the best way for the Court to perform its institutional role. Cass Sunstein has advanced a theory of judicial minimalism; he argues that in courts should usually decided cases on narrow grounds and refrain from offering comprehensive and controversial justifications for their decisions. By leaving things undecided and underspecifying the grounds for decision, courts can act as catalysts for democratic deliberation and avoid provoking an unnecessary political backlash. Without specifying the exact contours of the abortion rights, Sunstein decided Roe and Doe on the ground that the abortion statues were “overbroad,” that is, that they abridged to much constitutionally protected liberty.
  Akhil Amar concurs in part and dissents in part in Roe and dissent in Doe. He argues that the Texas statute in Roe is unconstitutional because it was passed before women gained the right to vote. The Georgia abortion statute in Doe, passed in 1968, is another matter entirely, and Amar believes that the Court should have abstained from considering it, leaving the interpretation of the statute to the Georgia courts.
  Jeffrey Rosen dissents from both Roe and Doe. Luke Sunstien, Rosen focuses on the Court’s proper institutional role, but he argues that the question of abortion rights should be left to legislatures. He takes up many of the arguments made against Roe by John Hartely in a famous law review article in 1973. In Rosen’s view, the Court should have stayed out of controversial questions like abortion because the right to privacy has no basis in the constitution’s text, structure, and history and because the Court’s previous precedents do not require extension of the right to privacy to abortion. Instead of holding that abortion was constitutionally protected, the Court should have allowed the political process to work out the issue of abortion rights. Rosen notes that abortion reform was just beginning in the early 1970s, and in his opinion, written from the standpoint of 1973, he predicts that the Court’s hasty and ill-considered intervention will only cause severe political problems both for the protection of abortion rights and progressive causes generally in the years to come.
  • p.21

• Objections to Roe generally fall into two categories, procedural and moral. Procedural objections argue that the question of abortion rights should have been left to the political process. Moral objections argue that a right to abortion is a substantive wrong that should not be elevated to a constitutional right.
  • pp.21-22

• Teresa Stanton Collett and Michael Stokes Paulsen offer the moral case against Roe. Roe, Collett argues, is the product of a misguided radical individualism that undermines women’s liberty and equality. Making abortion readily available will allow men to escape responsibility for sex and parenthood, while “artificial birth control and abortion . . . treat women’s bodies as unnatural: something to be altered to conform to the male model.” “I refuse to accept,” Collett declares, “that women must deny their fertility and slay their children in order to obtain equal access to the marketplace and the public square.”
  Michael Stokes Paulsen also offers a forthrightly pro-life opinion, arguing that abortion is deeply immoral and that the Court has severely damaged its authority by recognizing it as a fundamental right. ‘Abortion,” he insists, “does not destroy potential life. Abortion kills a living human being.” Paulsen writes in a prophetic voice, denouncing the evils of abortion and condemning the Court for having been complicit in the destruction of so many innocent human lives. Paulsen calls on the conscience of Americans to abandon what he regards as the Court’s most lawless and immoral opinion, or, as he describes it, “the most awful human atrocity inflicted by the Court in our Nation’s history.”
  • p.22

• It is hardly surprising that critics of a constitutional right to abortion would find much to criticize in Blackmun’s original opinions in Roe and Doe. But supporters of the abortion right over the years have also found them wanting. Part of the problem stems from Justice Blackmun’s altogether too cursory attempts to justify and defen the abortion right, the compromises between the Jutices that led to the trimester system, and the Justices’ inability to imagine abortion as a question of sex equality as well as a question of liberty. To be sure, Blackmun’s opinion in Roe does advance from a purely medical model of abortion, which had dominated the conversation for decades. But that conversation was already changing rapidly by 1973, moving in a short space of time from the rights of doctor’s to the procreative liberty of women to the larger question of women’s equal citizenship. The Justices were simply not able to traverse two revolutions in thpught in a single opinion.
  Moreover, the question of abortion rights is legally difficult and morally complex, bringing together issues of life and death, humanity, equality, and liberty. The problems the Justices faced in Roe were as trying in their own way as any set of questions that come before the courts. Given the legal and moral difficulty of the issues and the inevitable need to make compromises, it was perhaps too much to expect that the Court would get it right the first time, under almost anyone’s standards of what “getting it right” might mean. That suggests that Justice Brennan’s initial instincts were probably correct and that the Court should have been more reluctant to offer hard and fast rules in Roe and Doe. It might have developed its ideas more fully over a course of decisions, perhaps in tandem with its sex-equality jurisprudence. That would probably not have prevented the emergence of a powerful pro-life movement or made abortion uncontroversial. But it might have produced a fairer, more flexible, and more democratically acceptable set of legal doctrines.
  Finally, although the Justices clearly understood that abortion was a controversial question, they failed to recognize sufficiently, as they had in Brown v. Board of Education, that whatever they did would cause a significant upheaval in American politics. In hindsight, they probably should have written the opinions in Roe and Doe with a much greater degree of care about winning public support and assuaging criticism. Chief Justice Warren’s decision in Brown is a model of eloquence and understatement, brief and statesmanlike, fully aware of its political context and deliberately designed to avoid confrontation and to conserve the Court’s legitimacy. Blackmun’s opinions in Roe and Doe, by contrast, although filled with scholarship and medical history, are long-winded and devote a very significant amount of space to technical legal issues. Warren’s opinion in Brown was written so that it could be republished in newspapers. Blackmun’s opinion in Roe was so complicated that Blackmun himself at one point contemplated writing an addendum explaining its meaning.
  • pp.22-23

• Perhaps Roe’s most important shortcoming was not its failure to “get it right” but its relative inattention to the interactions between courts and politics and to how courts, whether they like it or not, always work in conversation with the political branches in developing constitutional norms. Defenders of constitutional rights often argue that courts exist to protect rights from political interference. But the actual process of constitutional development is much more complicated. Courts do recognize rights and defend them from legislative abridgement. But those rights also arise out of politics; they are tested by politics, and they are modified by courts as a result of politics. The work of courts, important as it may be, is always an intermediate and intermediary feature of a much longer process of legal development that stretches back into the past and forward into the future. Despite the attention that has been paid to Roe, the constitutional right to abortion, as it exists today, is not solely the work of the federal judiciary. Like all important constitutional ideas, it is the work of a dialectical process that engages all of the major institutions of American lawmaking, and it has been fashioned through controversy and strife, through trial and error-and with many mistakes and hesitations along the way-out of the raw materials of American politics.
  • pp.23-24

• Georgia’s abortion statute requires prior approval by a board of physicians. Doe applied for permission to undergo an abortion at Grady Memorial Hospital in Atlanta. Doe states that she sought an abortion because she was emotionally and economically unable to care for and support another child. Three weeks after filing her request, she was notified that her application had been rejected by the hospital’s abortion committee because her case did not fall under one of the three reasons specified in Georgia’s abortion statute (1) that continued pregnancy would endanger her life or injure her health; (2) that the fetus would likely be born with a serious defect; or that the pregnancy resulted from rape. She then filed a class action against the State attorney general, the district attorney of Fulton County, and the chief of police of the city of Atlanta, seeking injunctive and declatory relief on the grounds that Georgia’s statute violated her constitutional rights. Her lawsuit was joined by twenty-one other individuals. Nine of the named plaintiffs in the complaint were described as Georgia-licensed physicians, seven as nurses registered in the State, five as clergymen, and two as social workers. In addition, two nonprofit Georgia corporations that advocate abortion reform also joined the lawsuit.
  • pp.32-33

• Jane Roe’s complaint, originally filed in March 1970, states that she was pregnant and that she was unable to obtain a legal abortion in Texas because of Texas’s abortion statute. From these facts there is no doubt that she possessed standing to challenge the statute even though Texas’s criminal prohibition is directed at those who perform abortions, rather than at the women who receive them, for the law effectively prevents her from obtaining a legal abortion in Texas. Texas, however, argues that since neither Roe nor anyone in the class she represents is now pregnant, her case is moot.
  • p.33

• Normally, we require that an actual controversy exist at the time of appellate or certiori review, not simply at the time the action is begun. However, when the issue concerns the rights of pregnant women, the normal human gestation process (which lasts approximately 266 days) is likely to end before a case can be heard or decided by an appellate court. If we adopted the rule proposed by the State of Texas, few cases involving rights of pregnant women would be justiciable beyond the trial stage. Appellate review would effectively be denied. Moreover, although no particular pregnancy lasts as long as the normal appellate process, individual women often become pregnant more than once, and pregnancies are constantly occurring in the general population. Therefore the situation of a pregnant woman asserting her rights clearly falls into the long recognized category of cases “capable of repetition, yet evading review.” Southern Pacific Terminal Co. v. ICC, 219 U.S. 298, 515 (1911). See Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 178-79 (1968); United States v. W.T. Grant Co., 345 U.S. 629, 632-33 (1953). In such situations we hold that a litigant’s action is not moot. We therefore agree with the District Court that Jane Roe retained standing to bring this lawsuit, that her case still presents a justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot.
  • pp.33-34

• [T]he lawsuit of the Georgia plaintiff, Mary Doe, is also justiciable and is not mooted by the fact that her pregnancy has terminated. The physicians who joined her lawsuit are not currently being prosecuted or threatened with prosecution under Georgia law, but they have alleged a credible fear of future prosecution if they participate in abortions. This is sufficient to give them standing. See Epperson v. Arkansas, 393 U.S. 97 (1968) (recognizing right of school teaher who had not yet been charged criminally to challenge state anti-evolution statute).
  • p.34

• Appellants argue that the restrictions on abortion found in the Texas and Georgia statutes violate fundamental rights guaranteed under our Constitution, and in particular the liberty guaranteed by the Due Process Clause of the Fourteenth Amendment. In general, courts do not sit to pass judgment on the wisdom of ordinary social and economic legislation. Ferguson v. Skrupa, 272 U.S 726 (1963); United States v. Carolene Products Co., 304 U.S. 144 (1938). However, our task is different when a violation of a fundamental liberty or a basic guarantee of equality is involved. The Texas and Georgia abortion statutes raise questions both about women’s basic civil liberties and women’s equality. Moreover, as we shall see, the issues of liberty and equality are intertwined.
  • pp.34-35

• A careful examination of the Texas and Georgia statutes involved in this case undermines the states’ claims that these statutes are narrowly tailored to achieve a compelling state interest in preserving potential human life from the moment of conception.
  Georgia’s abortion statute, like many others, permits an exception for pregnancies due to statutory or forcible rape. 26-1202(a)(2). If Georgia is asserting an overriding interest in the life of human beings from the moment of their conception, it is not clear why fetuses conceived through rape are any less valuable to the state than fetuses conceived through consensual sex by adults. Surely the circumstances of pregnancy do not make these fetuses less human or less valuable as human beings. Compelling interests may be sacrificed to achieve other interests equally compelling, but Georgia has offered no equally compelling reason to permit the intentional destruction of what it understands to be human lives. Rather, the exemption for rape suggests that the state’s interest in the fetus is strongly connected to beliefs about maternal responsibility-that women who are the victims of statutory or forcible rape are not responsible for engaging in sexual intercourse that led to their pregnancy, and for that reason they should have a right to abortion. In the context of its more general prohibition on abortions, Georgia’s exemption for rape seems to be premised on the notion that adult women who engage in se are responsible for the pregnancies that result even if they are due to contraceptive failure, and even if the sex was the result of coercion that falls short of the legal definition of rape in the relevant jurisdiciton. Viewing the states asserted interest from the standpoint of the pregnant woman, they take on a somewhat different cast, which, given our previous discussion of the relationship between abortion regulation and the maintenance of sex inequality, raises considerable qualms, if not outright skepticism. We do not think that Georgia has a compelling interest in forcing women who have sex to become mothers unless they have been raped.
  At oral argument, counsel for Georgia informed us that the exception for rape is also intended to permit abortions for pregnancies resulting from incest. Tr. Of Oral Rearg. 23. Although there is some evidence that children born of close relatives have a slightly higher chance of birth defects, most are perfectly health. If the state is truly asserting that every fetus is a human life from the moment of conception, it is not clear why fetuses produced through incestuous sexual relations are less worthy of protection than any others. To be sure, in some cases the life of pregnant minors may be endangered by bringing a fetus to term, but not all cases of incest involve minors, and Georgia already has an exemption for situations in which the mother’s life would be endangered. Once again, Georgia’s exemption undercuts its claim that the interest in fetal life is so compelling from the moment of conception that a woman must be forced to bear a child under all circumstances.
  • pp.49 -50

• Texas’s statute, by contrast, makes no exception for rape or incest. It permits abortion only to save the life of the mother, and it might be justified on the grounds that the compelling interest in preserving potential human life may yield only to the equally compelling interest in preserving existing human life.
  Although Texas’s law appears to make fewer exceptions than Georgia’s and therefore seems more devoted to the principle of fetal life, it actually contains a different sort of exemption. It holds doctors liable for performing abortions, but not pregnant women for having them. This exemption cannot be justified as an incentive for women to turn in the doctors who performed abortions on them, for it also applies to women who ingest abortifacients or otherwise perform abortions on themselves.
  Texas’s statute is thus conspicuously underinclusive given the state’s asserted interests in the protection of fetal life. The most likely reason for the failure to hold women liable is that protection of fetal life was not in fact the statute’s actual purpose. When the statute was originally passed in 1854, its goal was to prevent unscrupulous doctors from injuring women through botched abortions. Medicine was a largely unregulated profession at the time, and quacks abounded, preying on the vulnerabilities and fears of pregnant women. If the original purpose of the statute was the protection of maternal health and safety, Texas cannot justify a total ban on abortions today, for abortions can be performed safely by licensed physicians and are often less dangerous to the woman’s health than carrying the fetus to term.
  • p.50

• Texas’s criminal prohibition bans virtually all abortions performed by a licensed physician at any point in a pregnancy, except when necessary to save the mother’s life. For this reason alone, it is overbroad and therefore unconstitutional.
  The Georgia statute, by contrast, imposes a number of substantive and procedural restrictions on abortions. The three-judge District Court in the Georgia litigation struck down the three staturorily specified reasons for permitting an abortion, so that p .2226-1202(a) of the statute now provides that it is criminal for a physician to perform an abortion except when it is “based upon his best clinical judgment that an abortion is necessary.” Appellants argue that because of the way that the District Court severed portions of the statute, the law no longer gives fair warning as to what conduct is required and therefore is unconstitutionally vague. We need not decide that question, because the Georgia statute is unconstitutional for other reasons.
  • p.54

• Even if Georgia’s statute were interpreted to allow abortions through-out pregnancy, the statute also imposes three procedural, requirements that restrict access to abortions. First, the Georgia statute demands that all abortions must be performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals. Second, it requires that the procedure be approved by an abortion committee composed of members of the hospital staff. Third, it requires that the performing physician’s judgment be confirmed by independent examinations of the patient by two other licensed physicians.
  For Georgia’s statute to be constitutional, Georgia must show that its regulations materially further the woman’s interest in health without significantly burdening her right to an abortion. None of these three requirements meet this standard.
  • p.54-55

• Georgia requires abortions to be performed in hospitals, but it has not demonstrated that licensed physicians cannot perform safe abortions in properly licensed clinics. It has not provided substantial evidence to show that the full resources of licensed hospital are necessary to protect women’s health. Appellants and amici, by contrast, have provided considerable evidence that the state’s interests in maternal health are well served by licensed clinics equipped with staff and service necessary to deal with the complications that rise from abortions, or by clinics that have made arrangements with a nearby hospital to provide those services in case of an emergency. Georgia’s hospital requirement unnecessarily limits access to safe abortions for women who are not located near hospitals that perform abortions; it also limits access for poorer women who cannot afford the cost of a hospital stay. Georgia may not impose unnecessary costs on abortion that are unrelated to a woman’s health.
  Georgia’s requirement that the hospital also be licensed by the JCAH only compounds the obstacles placed in the path of the pregnant woman. The JCAH is a nongovernmental organization devoted to articulating optimal standards for medical care rather than minimum standards. Georgia does not require that other forms of surgery be performed only at JCAH-accredited hospitals. Indeed, we were informed at reargument that only 54 of Georgia’s 119 counties have a JCAH-accredited hospital. Tr. Of Oral Ar. 19. Perhaps equally important, the JCAH’s standards are directed at medical and surgical practices generally, and pay no specialized attention to issues of abortion. Georgia has not explained how this requirement furthers its interests in maternal health and safety.
  Georgia also requires that a hospital committee composed of members of the hospital staff approve all abortions in advance. Georgia has not informed us of any other surgical procedures, including life-threatening ones, where it require that a physician’s judgment be approved by a hospital committee. Rather, this rule seems designed to supervise and restrain both women who seek abortions and physicians who regularly perform them. Georgia has offered no basis for believing that women will seek abortions for frivolous reasons. Indeed, it is more likely that the decision to have an abortion is one of the most serious and heart-rending decisions that a woman may make in her lifetime. In addition, Georgia has offered no reasons to believe that physicians who perform abortions are more likely than other surgeons to encourage their patients to engage in unnecessary surgery.
  For similar reasons, Georgia’s requirement that the performing physician’s judgment be confirmed by independent examinations of the patient by two other licensed physicians also falls afoul of the Constitution. Georgia does not impose this requirement for any other medical procedures or surgeries, even life-threatening surgeries. If attending physicians are duly licensed by the State, they are presumed capable of deciding what their pateints’ needs are. If they fail in the exercise of their medical judgment, they may be sanctioned or censured and their licenses revoked. Physicians are trained and encouraged to consult with other physicians as a matter of course in difficult cases, and Georgia has offered no reason to think that physicians will not follow this practice in cases of abortion. Rather, in this as in other challenged regulations, Georgia appears to be treating abortions as a special kind of medical procedure that should be discouraged through a series of procedural hurdles. It may not burden the exercise of a fundamental right in this fashion.
  Apellats also challenge Georgia’s requirements under p 1201(b)(1) and (b)(2) that the pregnant woman be a resident of the State and that she swear an oath to that effect. Georgia’s prohibition is not an internal regulation of its own hospitals; it applies alike to public and private facilities throughout the State, all of which are forbidden to perform this particular medical procedure for nonresidents Georgia has made no showing that there is a crisis in the delivery of health care for citizens or a shortage of available clinics and hospitals. Under Article Iv, p 2, states must provide to citizens of other states the same the privileges and immunities as are enjoyed by its own citizens. We do not think that Article Iv p 2 allows a state to prohibit te provision of medical care to noncitizens. See Toomer v. Witsell, 334 U.S. 385 (1948). We therefore hold the residency requirement unconstitutional.
  • pp.55-56

• 1. Texas’s abortion statute, codified in Chapter 9 of Title 15 of the Penal Code, Art. 1191-1196, Vernon’s Ann.P.C., provides: <br Article 1191. Abortion
  If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. By “abortion” is meant that the life of the fetus or embryo shall be destroyed in the woman’s womb or what a premature birth thereof be caused.
  Art. 1192. Furnishing the means
  Whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice.
  Art. 1193 Attempt at abortion
  If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce abortion, provide it be sown that such means were calculated to produce that result, and shall be fined not less than one hundred nor more than one thousand dollars.
  Art. 1194. Murder in producing abortion
  If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same, it is murder.
  Art. 1195. Destroying unborn child
  Whoever shall during parturition of the mother destroy the vitality or life in a child in a state of being born and before actual birth, which child would other-wise have been born alive, shall be confined in the penitentiary for life or for not less than five years.
  • p.60

• 6. Dr. Hallford, a physician who performs abortions, soguth and was granted leave to intervene in Roe’s class action. He alleged that he had been arrested for violating Texas abortion statutes and that two prosecutions are still pending against him. We have held that state criminal defendants may not challenge pending criminal prosecutions in federal court if they could raise their federal constitutional claims adequately in state proceedings. Younger v. Harris, 401 U.S. 37 (1971). However, Younger may not properly apply if, as Dr. Hallford asserts, under Texas law, he cannot, in the pending state criminal proceedings, seek temporary injunctive relief that would allow him to perform new abortions. We need not decide if this assessment of Texas state law is correct, or whether Younger would apply if it is correct. If Roe is able to obtain a declaration that the Texas statute is unconstitutional, this will resolve the constitutional issues in Dr. Hallford’s criminal prosecution.
  • p.60

"Blackburn, Black argue against lifting abortion restrictions"

Barton, Paul C. (July 16, 2014). [https://www.tennessean.com/story/news/politics/2014/07/16/blackburn-black-argue-lifting-abortion-restrictions/12719793/ "Blackburn, Black argue against lifting abortion restrictions". The Tennessean.

• WASHINGTON – A bill to roll back state restrictions on abortions drew the fire of two Tennessee Republicans on Tuesday.
  “This legislation would jeopardize and nullify hundreds of laws that protect both mothers and their unborn children,” testified Rep. Marsha Blackburn, R-Brentwood.
  “Abortions not only pose serious physical health risks, but endanger a woman’s mental health as well,” added Rep. Diane Black, R-Gallatin.
  Their comments came as the Senate Judiciary Committee held a hearing on the Women’s Health Protection Act. The bill, which has 124 cosponsors in the House and 35 in the Senate, is an attempt to strike back at state laws passed in recent years making it more difficult for abortion clinics to stay in business and for women to have access to the procedure. The measure would prohibit states from applying restrictions to abortions not applied to other medical procedures.
  The committee devoted the hearing to testimony from four women lawmakers who are outspoken on abortion rights: Blackburn and Black in opposition to them and Sen. Tammy Baldwin, D-Wis., and Rep. Judy Chu, D-Calif., in support of them.
  The two Democrats said the legislation addresses an urgent need to protect a woman’s rights under the 1973 Roe v. Wade Supreme Court ruling that legalized abortions. They said those rights have been ground down by a deluge of 205 new restrictions in various states in just the past three years.
  “Some politicians are doing this because they think they know better than women and their doctors,” Baldwin said.
  “The fact is, they don’t. Women are more than capable of making their own personal, medical decisions without consulting their legislator.”
  Added Chu: “Every woman should have access to affordable and comprehensive health care coverage that protects her right to choose.”
  Chu said it shouldn’t matter “the state she resides in.”

“Jane Roe Gone Rogue: Norma McCorvey's Transformation as a Symbol of the U.S. Abortion Debate” (May 2018)

“Jane Roe Gone Rogue: Norma McCorvey's Transformation as a Symbol of the U.S. Abortion Debate” by Christianna K. Barnard, MA thesis, Sarah Lawrence College, May 2018

• McCorvey’s ideological conversion is all the more fascinating as it was not an isolated incident. Roe v. Wade was tried in the Supreme Court alongside another case, Doe v. Bolton, the product of lawyer Margie Pitts Hames’s crusade against what she referred to as Georgia’s “cumbersome, costly, and time consuming” abortion restrictions.1 Like Roe v. Wade, Hames and the legal team behind Doe v. Bolton protected their pregnant plaintiff by assigning her a pseudonym: “Mary Doe.” “Mary Doe,” whose real name was Sandra Cano (then Sandra Bensing, later also referred to as Sandra Bensing-Cano), was, like McCorvey, a white woman living in poverty. Estranged from her abusive husband, she had already given birth to two children whom she lost custody of when they were toddlers. Neither Cano nor McCorvey ever testified or appeared in court, but their affidavits were central documents in their respective cases. In 1989, eight years before McCorvey’s conversion, Cano became an activist with Operation Rescue. Additionally, she claimed that she never wanted an abortion, but rather, had been duped by Hames and forced to sign the affidavit without understanding its significance.
  While both women became icons of the pro-life movement, there is another key divide between them. As Roe became synonymous with legalized abortion, McCorvey’s story would become a matter of public fascination for decades, while Cano’s life would be nearly forgotten. Both contributed to public discourse on abortion, but where McCorvey’s appearances and actions have left behind a rich archive, Cano has left mere breadcrumbs. Regardless, both have largely gone ignored by feminist scholars and historians, turned into footnotes in a history that could not have happened without them.
  • pp.vii-viii

• McCorvey’s conversion invited sensationalization. Operation Rescue asked a local TV news crew to broadcast the event, and the story was picked up by media outlets across the country. A few days later, McCorvey was interviewed by Ted Koppel on Nightline in an extended segment on what her conversion meant for the abortion debate. During the interview, she asserted that, despite her conversion, she still supported abortions in the first trimester. Following her conversion and later adoption of a pro-life stance, many within the mainstream pro-choice movement found it best to simply dismiss her, including her former lawyer Sarah Weddington, who claimed that “all Jane Roe ever did was sign a one-page legal affidavit.”
  • pp.2-3

• This flattening of the complexities of McCorvey’s conversion and role in Roe was hardly an unusual situation for the former plaintiff. Throughout Norma McCorvey’s life as a public figure, she was considered unreliable, leading many acquaintances and journalists to depict her as a caricature of herself. In 1992, while she was working as a pro-choice activist with the Jane Roe Foundation, a colleague referred to her as “the ultimate victim.” Marsha King, another intended Roe plaintiff who was found to lack the legal ground to sue the state of Texas when the case was brought to the Supreme Court, called her “a lost little soul.” Her longtime partner Connie Gonzales, whom McCorvey eventually abandoned after Gonzales suffered a stroke, described her as “a phony.”
  • p.3

• Considering the symbolic role that both McCorvey and the Roe case have played in the abortion debate, the scant historical writing on McCorvey in histories of Roe and the subsequent escalation of the abortion debate is surprising. While her central role has not been forgotten, it has not been the subject of intensive historical inquiry in the four decades since Roe was decided. McCorvey (as Jane Roe) makes an early appearance in James C. Mohr’s Abortion in America: The Origins and Evolution of National Policy, 1800-1900 (1978). This legal history tracks the evolution of abortion as a tacitly accepted practice at the turn of the nineteenth century to a staunchly forbidden one in the early 1900s. Mohr uses the recent Roe decision as the centerpiece of the afterword in the text, examining the ways in which the decision undid much of the legal reasoning which he charts in the text which precedes this section. Mohr mentions Jane Roe fleetingly, a decision which is justified by his assertion that “the basic outlines of the Roe case are well-known.” The information he does provide—that the plaintiff was an unwed mother in Texas who sued the Dallas District Attorney in 1970—is accurate but reflective of the minimal information known about McCorvey in the public sphere at this time.
  • p.5

• David J. Garrow’s landmark text, Liberty and Sexuality: the Right to Privacy and the Making of Roe v. Wade (1994) expands upon the work that Mohr began at the end of his text. In this lengthy volume, Garrow constructs a legal history of Roe v. Wade, pinpointing its roots within the broader context of reproductive rights-related legislation and the rise of the “right to privacy.” He traces the issue of legalized abortion from the 1930s through 1990s, meticulously outlining the legal decisions, players, and events that paved the way for the Roe decision and its aftermath.
  The care that Garrow demonstrates for Roe’s legal forbearers, however, is not always extended to the case’s plaintiff. Norma McCorvey’s role is included in the historical narrative; however, she is treated with a sense of disinterest at best and disdain at worst. In his first mention of McCorvey, a summary of her 1969 meeting with Linda Coffee’s friend Henry McCluskey, Garrow immediately highlights her youth and physical appearance, calling her a “tiny twenty- two year old.” Later, he notes Coffee’s surprise at “how small— and how visibly pregnant” McCorvey looked during their initial meeting. His depiction of McCorvey erases much of the emotional turmoil she experienced in her earlier pregnancies. He makes only a fleeting mention of the McCorvey’s mother’s custody of her first child, Melissa, and claims that she “happily” gave up her second child for adoption.
  Garrow was not oblivious to the strained relationship between McCorvey and her lawyers, as he remarks that Sarah Weddington later grew “highly dismissive” of McCorvey’s involvement in the case. Nevertheless, he uses the voices of those around McCorvey, such as Marsha King, another of the case’s plaintiffs, to diminish her in turn. In his last mention of McCorvey in the text, he quotes King, who remarks that “it made me sad to think of her.” This infantilizing attitude towards McCorvey remains constant in subsequent editions of the text, including the third edition (2015), in which Garrow dedicates a mere paragraph to McCorvey’s conversion, calling it “a publicity boost” for the pro-life movement and attributing McCorvey’s motivations to a vendetta against Sarah Weddington and a desire for attention and affection.
  • pp.5-6

• Shortly after McCorvey’s first conversion, James C. Mohr reentered the conversation to grapple with the impact of both McCorvey’s memoir, I am Roe, and Garrow’s Liberty and Sexuality on the historical discourse on Roe. In his 1996 literature review in the Journal of Women’s History entitled “Sexuality, Reproduction, Contraception, and Abortion: A Review of Recent Literature” he speaks positively of McCorvey’s contributions in I am Roe, calling her recollections in the book “wonderful.” He is clearly less impressed by Garrow’s Liberty and Sexuality, noting that the text is “excessively personalistic, sometimes gossipy.” Mohr states that Garrow’s text, which is governed by the idea that the legalization of abortion was determined by “elite progressive legalists” operating “primarily behind the scenes and in courtrooms,” is “a dangerous model.” Such a telling, Mohr argues, reduces massive social shifts to the acts of a few, brave, “lionized” individuals.
  Mohr builds upon this argument in his comparison of McCorvey and Garrow’s texts. He notes that, in McCorvey’s telling, the lawyers are depicted as “manipulative,” unlike the “daring champions of virtue” that Garrow celebrates. Mohr is not oblivious of McCorvey and Meisler’s tendency to counteract the elitism in academic writings on Roe by playing up “the literary affectation of love and stability among... supposed deviants,” particularly in McCorvey’s recounting of her time in juvenile carceral facilities. Nevertheless, Mohr emphasizes the importance of McCorvey’s contribution to the historical record, “especially in view of McCorvey's post-publication shift toward the right-to-life cause.” This statement stands out as Mohr amplifies his support for McCorvey’s voice and perspective not despite, but in light of, her conversion and change in ideology.
  • pp.7-8

• Two works published in 2015, Joanna Schoen’s Abortion after Roe (2015) and Mary Ziegler’s After Roe: The Lost History of the Abortion Debate introduce new directions in scholarship on Roe’s effects on abortion law and practice. Both texts, however, contribute to the erasure of McCorvey from the history of legalized abortion through either misinformation or by omitting her entirely. Schoen’s Abortion after Roe is a feminist medical history that examines the effects of Roe v. Wade on abortion providers and women seeking abortion from the 1970s through the early 2000s. Schoen draws on extensive interviews with abortion providers, whom she sought out through the National Abortion Federation (a professional organization for abortion clinic employees). She is attentive to the backlash to Roe throughout, which is evident through her incisive analysis of pro-life rhetoric.
  • pp.8-9

• While many of these texts mention McCorvey fleetingly, no expansive historical text—or for that matter, more than a handful of paragraphs in a historical monograph— has been written thus far on the subject of McCorvey’s life before, during, or after the Roe decision. Relegated to the margins of an issue in which she performed perhaps a symbolic, but nonetheless a crucial role, McCorvey has been denied the sort of scholarly analysis which could complicate the caricature into which she was reduced throughout her life.
  • p.10

• In their personal recounting of Roe v. Wade, Sarah Weddington, Linda Coffee, and Norma McCorvey pinpointed the advent of the case at different points in time. For Weddington, Roe began “at a yard sale, amid paltry castoffs”—a benefit for the abortion referral service she provided legal aid for in Austin. Coffee’s earliest involvement was trickier to pin down, as she officially joined the case at Weddington’s request, but warmed to the idea of fighting Texas’s anti-abortion law while researching an earlier case. McCorvey’s version of the story was reflective of her unique role in the case. As noted before, it began with the discovery of her third pregnancy while working at a carnival. Journalists and scholars who have sought to reconstruct Roe’s earliest moments have had to find a middle ground between these three women’s testimonies, crafting a backstory primarily from memory and oral history.
  Most writers have reached a consensus, using the first meeting between Coffee, Weddington and McCorvey at Colombo’s Pizza at the end of 1969 or early 1970 (sources diverge on this particular point) as the de facto start of the case. Finding a middle ground between the women’s testimonies, however, has not automatically translated into a fair presentation of the women themselves. For example, journalist Marian Faux’s version of the story in her 1988 book Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision That Made Abortion Legal is rife with contradictions. While Faux attempted to construct a great woman narrative of the case, she simultaneously defeated her own goal by filling in the gaps in the visual record with subtly misogynistic language.
  • Ch.1, p.12

• As each woman arrives, the reader is granted a detailed description of her physical appearance. Faux excuses away the shabby appearances of the first two arrivals, informing the reader that “none of the three women coming to this dinner meeting had much money.” Linda Coffee, we learn immediately, cares more for her work than her looks. The “diffident” lawyer attempts to convey professionalism through her attire, but more often tends towards a “disheveled appearance.” The pregnant Norma McCorvey, by contrast to Coffee, gives away her working-class background and naiveté through her choice of denim pants and a casual top.
  • p.13

• Having both arrived early, the odd pair make a feeble attempt at chit-chatting with one another, an effort that is complicated by Coffee’s shyness and McCorvey’s lack of “social graces.” The appearance of Sarah Weddington, a “tall, heavy-set woman,” who, despite her large frame, “moved with unusual grace,” saves the two from continued awkwardness. Over pizza and beer, the three women discuss a topic that one can only assume was hardly the usual subject of conversation at the “unpretentious” Colombo’s: challenging Texas’s restrictive anti-abortion law.
  In the ebb and flow of conversation, both the lawyers’ quest to abolish this law and McCorvey’s own pregnancy are discussed. As McCorvey tells the lawyers about the latter, her story takes a horrific turn. She recalls a harrowing tale of being raped by a man while she was working at a traveling carnival, and consequently becoming pregnant. While the lawyers had concerns about the validity of McCorvey’s tale, as she struggled to consistently relay the details of the alleged assault, they agreed after the meeting to overlook their qualms about her reliability. McCorvey had something the two women desperately needed: a pregnancy which she had no desire to keep.
  • pp.13-14

• Although it is tinged with sexist language, Marian Faux’s rendition of Roe v. Wade’s origin story is a compelling one. There is a wholesome Americanness to the shared financial hardship of the three women, and an inspirational tenor to this story of three women who will go on to fight Texas’s anti-abortion law despite the restrictions placed upon them by their gendered social mores of their community, not to mention to the sensational appeal of capturing the “untold story” of this controversial case. It is no wonder the Colombo’s story has been told by historians, journalists, and its key players alike. In addition to taking in all three women’s roles, it can easily suit a number of ideologically incompatible narratives. Faux’s telling, however, obscures many of the underlying conflicts that would later escalate into an unbridgeable divide between McCorvey and Weddington (as well as between herself and the leadership of the pro-choice movement as a whole) in the four decades following Roe.
  By likening the socioeconomic standing of McCorvey with that of Coffee and Weddington, Faux ignores the fact that McCorvey’s class status was undeniably lower than that of her lawyers, a reality that would continue to reassert itself through a number of unexpected outcomes during and after Roe was tried. McCorvey’s poverty was not a fluke: it was a prerequisite for her to become the plaintiff in Roe. While her class and whiteness was crucial in Weddington and Coffee’s decision to have her become the Roe plaintiff, these identities, as well as other aspects of McCorvey’s past and personality, caused tension within the pro-choice movement as the abortion issue became increasingly politicized by pro-life activists following the 1973 Supreme Court ruling.
  • pp.14-15

• At this point, Weddington had never tried a contested case in court, and the preparatory work alone was a daunting enough prospect for a young lawyer. Impressed by both Linda Coffee’s work as a law student and her subsequent experience with federal cases while she was clerking for Judge Sarah Hughes, Weddington knew that Coffee would be an ideal partner in this endeavor. Buoyed by the excitement of aiding McCluskey in the partially-successful Buchanan, Coffee was eager to lend her expertise. As the two women strategized, they faced a troubling dilemma: they did not have a plaintiff. In order to ensure the continued secrecy of the abortion referral service, Coffee cautioned against using the service’s volunteers as plaintiffs. Thankfully, the two found a married couple, Marsha and David King, who were eager to sign on as plaintiffs early in the process.
  Marsha, a Dallas-area feminist with a PhD in English approached the lawyers after hearing Coffee give a lecture on the intended lawsuit. Due to a neurological condition, she could not safely carry a pregnancy to term, nor could she use hormonal birth control pills. As the Supreme Court had recently ruled in Griswold v. Connecticut that married couples had a constitutional right to privacy, the Kings presented one viable angle through which to challenge Texas’s abortion law. Nevertheless, the lawyers knew that in order to most effectively counter the constitutionality of the statute, they would need a pregnant woman who was willing to take on the task of being a plaintiff. While the Austin abortion referral service offered a number of promising leads, none of these women elected to join the lawsuit as they had the financial means through which to acquire a safe, but illegal, abortion.
  Meanwhile in Dallas, Norma McCorvey was not so lucky. For her, the meeting at Colombo’s was not one step in a long process of legal strategizing, it was a desperate attempt to finally obtain a procedure that would free her from the physical and emotional turmoil of giving birth to a third child that she could not raise herself. Because of this major discrepancy, it is here that, in their respective memoirs, A Questions of Choice (1992) and I am Roe (1994) Weddington and McCorvey’s stories begin to diverge. Notably, both texts were published in the early-1990s, over two decades after the initial federal district court Roe trial. Nevertheless, the two women’s ideological approaches to their involvement in the case are as blatant as the chasm between the worlds they inhabited.
  • pp.17-18

• In McCorvey’s version of her meeting with both Coffee and Weddington at Colombo’s, she recalls a number of details that contradict or add additional dimensions to Faux’s heroic account, primarily with regard to her sexuality and class identity. Her recollection of the two lawyer’s outfits amplifies the class difference between herself and the two women. Coffee and Weddington both wore “two-piece business suits” while McCorvey wore jeans, a “button-down shirt tied at the waist,” and “a bandanna [sic] tied around my left leg, above the knee” to indicate that she “didn’t have a girlfriend.” McCorvey’s casual use of a variation on the hanky code, a system for signifying sexual availability that flourished in the gay community during the 1970s, was only one of the ways in which she expressed her non-normative sexuality to the lawyers. When asked about her own life, she opened up to them about her lesbian relationships and past marriage to the abusive Woody McCorvey. In McCorvey’s telling, she only claimed that she had been raped upon sensing the lawyer’s discomfort with her sexual history. Desperate to regain their good faith, she used this story as an attempt to save face and depict herself as the sort of woman who was deserving of an abortion.
  • p.18

• In Sarah Weddington’s version, the beginning of the conversation between the three women is the same—a discussion of the intended lawsuit— but this point is one of the few areas in which her and McCorvey’s story overlap. Throughout the text, she refers to McCorvey as “Jane Roe,” and only relays that information which had already been made public by McCorvey at the time of the book’s publication (in keeping with lawyer-client confidentiality). It is clear that the autobiography was published shortly after McCorvey publicly retracted her claim of being raped, as Weddington dedicated a paragraph to explaining in detail that McCorvey’s rape claim was never used by the lawyers in their case, reiterating again a few pages later that, in the affidavit McCorvey signed, “there was no mention of how she got pregnant.” While McCorvey was openly identified as a lesbian at this time, Weddington makes no note of her sexuality. The rape claim here is depicted as more of tactical move on McCorvey’s part, as she ponders aloud to her lawyers whether or not being raped would increase the chances of her receiving a legal abortion.
  Overall, Weddington’s version of the story is crisp and generally unemotional. Though she claimed that McCorvey’s “hard-luck stories touched a sympathetic cord,” her understanding of McCorvey's involvement in the case is framed around the low-level of commitment that would be expected of her. Weddington stated that being the plaintiff required “a minimal amount of time.... she never had to answer written or oral questions for the opposition lawyers. She did not attend any of the court hearings. Second, no money. Linda and I were donating our time, and we were covering the expenses.” Weddington does not seem to fathom the very real burden that McCorvey would have to bear if she became their plaintiff: a child.
  McCorvey tried her best to avoid this aspect of being the Roe plaintiff. According to her memoir, she asked the lawyers point blank whether or not they knew of a place where she could receive an abortion during their meeting at Colombo’s. Weddington claimed that she did not know, a statement that smarted years later when Weddington revealed that she had had an illegal abortion before even conceiving of the Roe case (not to mention her close relationship with the Austin abortion referral project). While Faux went to great lengths to assure the reader that McCorvey was fully informed of the unlikelihood that she would receive an abortion due to taking on the role of plaintiff in the case, neither Weddington nor McCorvey’s memoirs corroborated this assertion. In Garrow’s account of the case in Liberty and Sexuality, which like Faux’s was based on extensive interviews with Coffee and Weddington, he notes that the two lawyers were “privately thankful” that McCorvey had no choice other than to complete her pregnancy.
  • pp.19-21

• In an insightful study of the two memoirs, legal scholar Kevin McMunigal argues that Weddington did not adequately inform McCorvey that her chances of receiving an abortion as the Roe plaintiff were slim, thereby allowing the vulnerable McCorvey to believe that being the plaintiff in the case was her most likely ticket to a legal abortion. Doing so, McMunigal states, was a questionable ethical decision on Weddington’s part, as she treated McCorvey as a stand-in for pregnant women as a whole, not as a client with needs and interests of her own. Ultimately, McMunigal maintains that McCorvey should have been treated with comparable ethical standards as patients seeking out medical care or participating in medical research, namely, being provided with comprehensible information about the various strategies open to her from which she would then be able to choose.
  • p.21

• From McCorvey’s perspective, becoming the case’s plaintiff seemed like the best possible choice. After a few weeks of wondering what Coffee and Weddington would decide, the lawyers called McCorvey in to Coffee’s office to ask her to officially become “Jane Roe.” Following this meeting, McCorvey had little contact with the lawyers. Occasionally, she would peak with Henry McCluskey, who “got an earful” when he would try to discuss the possibility of helping McCorvey with adoption arrangements. She waited, fluctuating between boundless optimism and sinking depression. As she recalled in I am Roe: “When I was up, I was way up—I was the smartest thing on two legs... I'd gotten myself a pair of wonderful smart young lawyers, and I was going to win my case and be the first girl in Texas to get a legal abortion. But that great feeling didn't last long.” To assuage the anxiety she felt at the progression of her pregnancy, she escaped to Oaklawn, a Dallas hippie enclave, for weeks at a time. Here, no one pressed her for details of her pregnancy. In her words, “If I smoked enough dope and drank enough wine, it was possible to not think about being pregnant, which was good.” Escapism and addiction proved to be a viable refuge as the possibility of legal remedy came to seem more fantastical by the day.
  From the perspective of McCorvey’s lawyers, she had disappeared. In A Question of Choice, Sarah Weddington attributes the challenge of finding her to her “financial difficulties,” which led her to move frequently. By McCorvey’s own admission, she had been in Oaklawn living “in a crash pad with a bunch of friendly people” while the lawyers prepared Roe for its initial trial. The two women disagree on how McCorvey resurfaced—McCorvey claimed she called McCluskey, whereas Weddington remembered that “Mary Doe” (Marsha King) tracked her down. Regardless, she reconnected with the lawyers in time to sign the Roe affidavit before the case went to trial on May 22, 1970.
  • pp.21-22

• In Faux’s opinion, the Roe affidavit stands as “one of the few definitive biographical statements about Norma McCorvey” as McCorvey was prone to telling reporters “different versions of her life.” The document is sparse in detail, written in clear but eloquent language. It conveys the facts of McCorvey’s situation, for example, that she was “an unmarried woman” and that “the inability to obtain an abortion... caused [her] to suffer emotional trauma.” Notably, the affidavit was primarily the work of Linda Coffee. As such, it raises inevitable questions about Faux’s use of the word “definitive,” particularly in light of the colorful, multifaceted versions of herself that McCorvey would later choose to reveal to the public eye. Who was considered an expert on McCorvey, and by extension, Roe v. Wade, would later become as integral a theme in McCorvey’s life as the case itself.
  • p.23

• As McCorvey was visibly pregnant at the time of the first trial, she and her lawyers agreed that it would be best if she were not to appear in court at all. McCorvey recalled that she waited “as Linda and Sarah made history in [her] name.” According to I am Roe, when the judges announced their decision on June 17, 1970, McCorvey was initially elated to learn that she had won the case. This joy immediately gave way to anguish as Linda Coffee delivered the horrible news: the state had issued an injunction, proclaiming its intent to continue upholding Texas’s anti-abortion statute. Regardless, McCorvey was already well into her third trimester of pregnancy, and therefore, both medically and legally unable to get an abortion.
  Joshua Prager’s 2013 account in Vanity Fair rebuts this claim, stating that McCorvey gave birth before finding out the first Roe decision. Whatever the facts of the situation are, it is clear that the lawyers were unconcerned by the fact that McCorvey had to give birth despite her role as their plaintiff. This moment merits a single sentence in Weddington’s memoir: “But it was too late for Jane Roe; she gave birth early in the summer and placed the baby for adoption through Henry McCluskey.”
  In McCorvey’s version, this news sets off a chain-reaction of events that would fundamentally alter the course of her life. There is a heavy-handedness to how McCorvey manages the initial shock of learning that she would have to give birth once again, as she realizes that “this moment was not really for me. It was about me, and maybe all the women who'd come before me, but it was really for all the women who were coming after me.” Published in 1994 and targeted towards a liberal-leaning audience, it is unsurprising that this caveat appears in the text. Nevertheless, it is followed by an unadulterated outpouring of emotion, as McCorvey later explodes: “I was nothing to Sarah and Linda, nothing more than just a name on a piece of paper. And without them, without their damn legal abortion, my soul was trapped and my body was in jail. I was hopeless. Worthless.” Whether this memory is recalled accurately or misremembered, this sense of betrayal would echo throughout McCorvey’s subsequent activism for the rest of her life.
  • pp.23-24

"Supreme Court to review Mississippi abortion law that advocates see as a path to diminish Roe v. Wade" (May 17, 2021)

Barnes, Robert (May 17, 2021). "Supreme Court to review Mississippi abortion law that advocates see as a path to diminish Roe v. Wade". The Washington Post. Archived from the original on September 22, 2021. Retrieved May 7, 2022.

• The Supreme Court announced Monday that it will review a restrictive Mississippi law that provides a clear path to diminish Roe v. Wade’s guarantee of a woman’s right to choose an abortion.
  Abortion opponents for months have urged the court’s conservatives to seize the chance to reexamine the 1973 precedent. Mississippi is among many Republican-led states that have passed restrictions that conflict with the court’s precedents protecting abortion rights, hoping for a chance to get a case before a Supreme Court that they think is more amenable to their arguments.
  In accepting the case for next term, the court said it would examine whether “all pre-viability prohibitions on elective abortions are unconstitutional.” That has been a key component of the court’s jurisprudence, and the announcement sounded ominous to abortion rights advocates.
  “Antiabortion politicians have exploited their power for this exact moment: the opportunity for the newly comprised Supreme Court to take away our right to abortion,” said Alexis McGill Johnson, president of the Planned Parenthood Action Fund.
• “This is a landmark opportunity for the Supreme Court,” Marjorie Dannenfelser, president of the Susan B. Anthony List, which works to elect antiabortion candidates, said in a statement.
  She noted that “state lawmakers acting on the will of the people have introduced 536 pro-life bills aimed at humanizing our laws and challenging the radical status quo imposed by Roe. It is time for the Supreme Court to catch up to scientific reality and the resulting consensus of the American people as expressed in elections and policy.”
  Abortion rights advocates said the court’s action should be greeted with “alarm bells.”
  “The Supreme Court just agreed to review an abortion ban that unquestionably violates nearly 50 years of Supreme Court precedent and is a test case to overturn Roe v. Wade,” said Nancy Northup, president of the Center for Reproductive Rights, one of the groups representing Mississippi’s only abortion clinic, Jackson Women’s Health Organization.
  “This is not a drill,” added Elizabeth Nash of the Guttmacher Institute, a research organization that favors reproductive rights. “The [Supreme Court’s] decision comes at a time when conservative politicians in over a dozen states are dismantling abortion rights and access with a vengeance and could eclipse even the record of enacted restrictions set in 2011.”
• Mary Ziegler, a Florida State University law professor and the author of “Abortion and the Law in America: Roe v. Wade to the Present,” said it was “impossible to overstate” the threat to Roe. She added that the court does not have to actually overturn the decision to void its impact, by eliminating fetal viability as the point at which bans are allowed.
  Without viability, it is not clear whether the court will impose any limit on abortion bans,” Ziegler said.
• States around the country have been passing increasingly restrictive abortion laws that they acknowledge violate Supreme Court precedent anchored by Roe in 1973 and Planned Parenthood v. Casey 19 years later. The goal has been to get one of them to the high court.
  “The State chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade,” Reeves wrote.
  The state argued that because the clinic challenging the law offered abortions only up to 16 weeks, the law was not affecting many women. The harm to the state, it said, was “requiring it to permit inhumane abortion procedures which cause a fetus to experience pain — a factor the Supreme Court has never explicitly addressed.”
  But the 5th Circuit said it was not the place of lower courts to challenge the Supreme Court.
  “In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability,” Judge Patrick Higginbotham wrote for the appeals court. “States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions.”

"America Almost Took a Different Path Toward Abortion Rights" (May 20, 2022)

Bazelon, Emily (May 20, 2022). "America Almost Took a Different Path Toward Abortion Rights". The New York Times. Archived from the original on May 20, 2022. Retrieved May 30, 2022.

• A 17th Century Judge Cited: Lord Matthew Hale, who wrote that women were contractually obligated to husbands, was cited eight times in Justice Samuel Alito’s draft opinion.
• The feminists had won legal abortion in New York. But the change in the law allowed the judges in Abramowicz to declare the case moot and throw it out. Without the New York case working its way through the courts, Stearns scrambled to start over. During the next two years, alongside other lawyers, she sued on behalf of women to strike down the abortion laws of New Jersey, Connecticut, and Rhode Island and helped others bring similar cases in Massachusetts and Pennsylvania. She kept pressing her claim that women had a right to abortion based on equal protection. She also sued based on a constitutional right to privacy, which the Supreme Court recognized in 1965, in Griswold v. Connecticut, to protect the use of contraception by married couples.
  But as Stearns worked on the East Coast, two lawyers, Sarah Weddington and Linda Coffee, who didn’t have strong ties to the feminist movement, pursued a challenge to Texas’ near ban of abortion that they filed in March 1970. Their case ended up being first on the Supreme Court’s docket, after Abramowicz was dismissed — and would wind up making history. It was called Roe v. Wade. As Weddington wrote in her memoir decades later: “We never thought we were filing what would become the Supreme Court case.”
  A New York assemblyman casting an unexpected vote, a court throwing out Abramowicz, the time it took for judges to rule in Stearns’s other cases — they are links in the long chain of reasons the country has arrived at a precarious moment for abortion rights.
• When they filed suit in Roe, Weddington and Coffee based their case on the right to privacy in Griswold. But Stearns still did her best to bring equal protection to the attention of the justices. The court scheduled the argument in Roe for December 1971, and she filed a friend-of-the-court brief (a supplemental submission that courts may or may not take into account). She sent me a copy of the pages. “The express guarantee of equal protection was originally designed to protect Black people,” Stearns wrote. “Since that time, its protection has been greatly extended.” Mbr> Stearns cited Supreme Court precedents that recognized the 14th Amendment rights of Chinese immigrants, Mexican Americans and poor people. Turning to her claims on behalf of women, she described the lack of protections for single mothers and employment policies that required pregnant women to take a leave of absence or quit their jobs. Stearns also pointed out that when Texas banned abortion in 1907, women did not have the right to vote.
• Months after the Supreme Court’s ruling, John Hart Ely, a renowned and liberal Yale law professor, eviscerated Blackmun’s opinion in The Yale Law Journal. Ely said that if he were a legislator, he would vote to legalize abortion. He understood why Griswold was about privacy, because forbidding the use of contraception would require “the most outrageous sort of governmental prying into the privacy of the home.” But Roe was not a case about governmental snooping. Ely recognized that becoming pregnant, in the wrong circumstance, can ruin a person’s life. But the potential life of the fetus also “hangs in the balance,” creating a moral dilemma the court did not “even begin to resolve.” Roe, as Blackmun wrote it, had “nothing to do with privacy in the Bill of Rights sense” and was thus untethered from the Constitution, making the decision “frightening.”
  Ely’s article “sent Roe into the world disabled,” Greenhouse told me. “It really was very damaging. Not because the American public cared about doctrine — they cared about results — but because it left Roe without friends in high places.”
• In law as in life, timing is everything. The court issued Blackmun’s opinion in Roe just days after Ruth Bader Ginsburg, then a 39-year-old lawyer, argued before the court for the first time in a landmark sex-discrimination suit. The court ruled in Ginsburg’s favor in that case a few months later and in a series of others in the years that followed. But at the time of Roe, “the court was only on the verge of constructing a jurisprudence of women’s rights,” Greenhouse and Reva Siegel, the Yale law professor, pointed out in an essay in the 2019 book “Reproductive Rights and Justice Stories.” The justices could have taken a leap toward equal protection in Roe. But they weren’t prepared to.
  It turns out, though, that Stearns and her fellow feminist lawyers got serious consideration from a court about equal protection in their Connecticut case, Abele v. Markle. Before the Supreme Court’s ruling in Roe, a three-judge panel heard their challenge to Connecticut’s near-ban on abortion, with more than 850 women as plaintiffs. Judge Jon O. Newman wrote the opinion for the majority. “I thought about invoking gender discrimination,” Newman, now 90, told me this month. “But I concluded I would not go down that road.” As a lower-court judge, he focused on Supreme Court precedent, which meant Griswold. “I thought, marital privacy is a part of liberty that the Supreme Court has told me exists,” Newman said, explaining why that was the justification he gave for striking down Connecticut’s law in September 1972.
  It’s hard to claim, with any certainty, that Roe would have proved less divisive if the right to abortion in America had a sounder constitutional basis from the start. Many who support bans and restrictions do so because they think abortion is murder. Maybe they agree that carrying an unplanned pregnancy can impose a huge cost. But unless the person’s life is physically at stake (the rare exception to almost every abortion ban), supporters of restrictions believe it’s right, at some point in a pregnancy, to make a woman carry the fetus to term.
• In important ways, the Supreme Court strengthened Roe decades ago. In June 1992, in the case Planned Parenthood of Southeastern Pennsylvania v. Casey, a new five-justice majority on the Supreme Court affirmed Roe’s central holding and addressed its weaknesses. The authors of Casey included Sandra Day O’Connor, the first female justice. They spoke in clear terms of gender equality, recognizing that the right to choose whether and when to have a child made it easier for women “to participate equally in the economic and social life of the nation.”
• Casey satisfied Ely, and he wrote a letter to Blackmun supporting the decision. (“Blackmun never responded,” Greenhouse told me. “I think he was still very hurt.”) By then, however, Roe had other prominent critics, including Ruth Bader Ginsburg, who said sex discrimination would have been a stronger rationale for the decision in a 1985 article in The North Carolina Law Review. Nine months after Casey, Ginsburg made waves by giving a lecture at New York University’s law school in which she said that Roe “might have been less of a storm center” if it had taken her incremental approach to building a jurisprudence about gender discrimination. Ginsburg’s words troubled abortion rights leaders, some of whom questioned her nomination to the Supreme Court when Bill Clinton picked her in June 1993.
• Justice Ginsburg almost got a chance to fill in what she saw as Roe’s missing piece. In 2007, she wrote an opinion in Gonzales v. Carhart, a challenge to a type of late-term procedure, that squarely framed the constitutional right to abortion in terms of equal rights for women. But Justice Anthony M. Kennedy joined the court’s four other conservatives to form a majority, leaving Ginsburg with a dissent, which had the force of her ardent feminism but not of law.
  In 2009, when I interviewed Ginsburg for this magazine, she said her main concern about abortion was the lack of access for poor women (because the court decided, in 1980, that Congress could forbid the use of Medicaid for medically necessary abortions). I asked if repositioning Roe on the basis of women’s equality was on the feminist wish list. “Oh, yes,” she said.
• Justice Samuel A. Alito Jr. dismissed the equality argument for abortion rights in the leaked draft majority opinion, published by Politico this month, which would overturn Roe. “The regulation of a medical procedure that only one sex can undergo,” he wrote, is constitutional unless it is a “mere pretext designed to affect an invidious discrimination.”
  Alito landed on this phrase by quoting a 1974 decision, Geduldig v. Aiello, which was a low point for feminists at the Supreme Court. In that case, six justices ruled that California could exclude women with pregnancy complications from receiving benefits from a state disability fund that covered other conditions. The state wasn’t discriminating against women — it was merely distinguishing between “pregnant women and nonpregnant persons,” the court said. Congress addressed the inequity by passing the Pregnancy Discrimination Act in 1978, and before Alito’s opinion, the Supreme Court had not relied on the Geduldig decision for 30 years.
• When I called Stearns to ask her about Alito’s opinion, she hadn’t yet brought herself to read it. But she had already gone with friends to a protest over the impending end of Roe. “We were the old ladies in tennis shoes,” she said.
  Stearns was thinking about the decades of backlash to Roe. Could anything have prevented it? “We made the argument,” she said. “It got lost for some people.” The feminists of the 1970s tried to give future generations freedom and equality, as they saw it. Now that era may end soon, Alito’s draft opinion suggests.

“Blackmun Accepts Aftermath of Writing Abortion Opinion” (January 18, 1983)

“Blackmun Accepts Aftermath of Writing Abortion Opinion”, New York Times, January 18, 1983, Section A, Page 20

• Author of the abortion decision, Associate Justice Harry A. Blackmun said softly and slowly, as if restudying the phrase. We all pick up tags. I'll carry this one to my grave.
  When the Supreme Court legalized abortion 10 years ago, it used Justice Blackmun's words, carving his niche in American history. I knew it was a no-win case, but I didn't ask for the assignment, Justice Blackmun, in a rare on-the-record interview, said recently of how he came to write the opinion.
  I am mildly annoyed at those, law professors included, who personalize it, the Justice said of the landmark ruling in Roe v. Wade. It was a decision of the court, not my decision. There were seven votes.
• Justice Blackmun is convinced, however, that the Supreme Court was on solid legal ground when it ruled that a woman's constitutional right of privacy includes the right to end an unwanted pregnancy.
  I still think it was a correct decision, he said. We were deciding a constitutional issue, not a moral one.
• Justice Blackmun said he could not estimate how much time he had devoted to the ruling on Roe v. Wade, which was announced Jan. 22, 1973.
  A lot, he answered when he was asked the question. More than any other case I've ever handled. He said he could only guess why Chief Justice Burger picked him to write the decision, and he asked that his thoughts on that topic not be made public.
  For the record, he acknowledged that for many his role as author of the abortion decision will overshadow the rest of his work in a Supreme Court tenure dating back to 1970.
  In a voice betraying neither rancor nor remorse, Justice Blackmun said, So be it.

“STATEMENT OF GERARD V. BRADLEY”, (January 21, 1998)

Gerard V. Bradley, “STATEMENT OF GERARD V. BRADLEY”, (January 21, 1998); The 25th Anniversary of Roe V. Wade: Has it Stood the Test of Time? : Hearing Before the Subcommittee on the Constitution, Federalism, and Property Rights of the Committee on the Judiciary, United States Senate, One Hundred Fifth Congress, Second Session ... January 21, 1998, Volume 4

• Twenty-five years ago tomorrow, Justice Byron White wrote in his Roe v. Wade dissent, “as an exercise of raw judicial power, the Court perhaps has authority to do what it does today.” This seems correct, but also paradoxical. How can raw power possess or acquire the leigimacy authority?
  Justice White meant, I think, that the Court’s decision, though arbitrary, and thus in the worst sense political, would nevertheless be treated as the law of the land by the American people. Justice White was prophetic. Roe has been criticized more than any Supreme Court decision in history, but it has proved to be resilient and effective.
  How has the Court managed what seems such a great public relations victory? The main reason is the Court’s success last presenting itself as a uniquely principles tribunal, this pluralistic society’s last resort for settling in a non-arbitrary way our most volatile issues.
  • p.6

• Justice White’s prophecy still troubles. Is Roe a constitutional measurement, as the majority said it was, or is it raw power? With recent public access to Thurgood Marshall’s papers, we can see a little bit of what must have been the basis of Justice White’s charge. My colleague, Douglas Kmiec, as gone through those papers looking at the opinion drafts and interoffice memos in the run-up to January 22, 1973, and Kmiec testified over on the House side some months ago.
  His conclusion::
  There is virtually no evidence of constitutional study or consideration. There is little other argument or discussion in the internal correspondence of the Roe Court touching the substance of constitutional law.
  So, did the Roe Court choose to recognize abortion rights based upon the predilections, pure and simple of the Justices sitting that term?
  • p.6

• It is now almost 25 years since a prominent Harvard law professor, John Ely, wrote that,
  Roe is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.
  Pro-choice scholars have, I think, tacitly conceded Ely’s criticism, for they have labored hard to supply the justification for Roe that the Roe Court did not. None of these scholarly attempts has, in my view, succeeded, and some of these efforts have been especially troubling. Some scholars, eager to support the legal historical claims relied upon by the Roe Court, has submitted briefs in the Supreme Court, notably the Webster case, which some scholars knew made false claims about the history of abortion law.
  • p.7

• Note well: if Ely’s indictment is well-founded-as momentarily I shall show it is-then Roe was indeed an arbitrary resolution of the abortion matter, no different in kind from the bare minimum that our politics could have supplied. The charge is an especially grave one. For if the charge is proved, then the Roe Court is guilty not only of false advertising, but of resolving this critical matter by standards which the Justices themselves say are unfit for a free people under this Constitution-by mere “predilection”. And if abortion is a question to which no just or principled answer is possible-a proposition I deny but which the Court evidently affirms then the question must be resolved according to someone’s “predilections.” By the Justice’s own account, that is the business of the people, acting through their elected representatives. We have, one might well say, a “principled” means under our constitution for settling inescapably arbitrary” matters-democracy, the ballot box.
  Can the Roe Court avoid this charge of arbitrariness?
  It cannot. I wish today to make that case by investigating a so far unnoticed future of the Roe opinion. I consider it dispositive evidence in favor of Justice White’s charge, seconded by Ely, that Roe represents power, pure and simple.
  • p.9

• Recall that the court, speaking through Justice Blackmun, said that there were two novel claims of right presented for decision. Both claims arose under the Due Process clause of the Fourteenth Amendment. They were “novel” in the sense that, again as Justice Blackmun saw it, neither had yet been recognized by the Supreme Court. These were, of course, the claim that unborn children-the “fetus”, per the Court-were “persons” with a right to “life” guaranteed by the Due Process Clause, and the female plaintiff’s claim that the “liberty” protected by that clause included a liberty to abort. The court recognized that both claims mattered much to those making them. But one had priority; the court said that if the unborn’s claim prevailed, the plaintiff’s case dissolved.
  • p.9

• Justice Blackmun in Roe resisted the unborn’s claim, so devastating to the appellant’s case, for several articulated reasons: (1) No case could be cited holding the fetus a person within the meaning of the Fourteenth Amendment; (2) none of the many uses of the term “person” in the Constitution indicated, “with any assurance, that it ha[d any possible pre-natal application; (3) abortion restrictions were “far freer” (Backmun’s phrase) when the Amendment was adopted “than they were today”, suggesting that the unborn were not “persons” in some whole sense he thought presupposed by counsel for the unborn. In this connection, Justice Blackmun took note of some alleged inconsistencies between Texas’ very restrictive law, and how even it fell short of the constitutional requirements which would be implied by a finding of fetal personhood. Specifically, abortion was not “murder” in Texas, but a lesser form of criminally punishable homicide. And, abortions were permitted to save the life of the mother.
  Blackmun cleaved closely to constitutional text, history contemporaneous with its enactment, and decided cases. He examined the “coherence” on controversial propositions asserted by the parties with settled principles of law. This is a good general approach to constitutional construction; indeed, it is originalism, or something very close to it.
  • pp.9-10

• Had Justice Blackmun applied the same criteria to the woman’s assertion of right under the Fourteenth Amendment that he applied to the claim of fetal personhood, Roe would have come out differently. Were constitutional text, precedent, and nineteenth century legislative practices (as well as anomalies forces into contemporary legislative practice) the measure of the claim, an attorney who claimed that the Constitution required abortion-on-demand would face Rule 11 sanctions. If the method of the day was to be originalism, then the unborn were sure winners.
  Blackmun applied no such criteria to the woman’s claim. H marshaled some cases-Skinner, Pierce, Griswold, Eisenstadt-but admitted that the abortion situation was “inherently different” due to the presence of the fetus-from all of them. Blackmun noted the distress caused by an unwanted pregnancy, but only after asserting that “this right of privacy * * * is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” The “distress” of abortion to the unborn was far greater, so much so that if recognized as a “person” with a right to life, the woman’s distress, by Justice Blackmun’s own account, would justify no abortion at all.
  Perhaps the only plausible interpretation of this part of Roe is that the woman’s distress caused, at least in part, the adverse treatment of the unborn. This is a tragically mistaken way to analyze the situation.
  • p.10

• This is the time to notice the weaknesses of Blackmun’s arguments, even without doubting the general validity of his (near) originalism. For example, what the constitution usually means by “person” is not dispositive of what it mean in each particular usage. Corporations are “persons” for some purposes but not for others. Context-especially the particular action, status, or adverse treatment which is the subject matter of a clause-is central to understanding what each clause means by “person.” “Person” can be and should be defined retail- not wholesale.
  It is obvious that much of the rhetorical force of Justice Blackmun’s listing of the various usages of “person” stems from the inapplicability of them to the unborn. His citations to the constitutional text proved way too much; almost all of his references not only applied “postnatally”, as he said, but way “postnatally”. His references to the qualification for elected office, extradition eligibility, emoluments, etc., apply only to adults.
  • p.10

• Justice Blackmun’s coherence arguments are severely undercut by his naïve assumption that “personhood” means no abortions at all. He noted some features of the law of homicide which would be anomalies if the unborn were truly persons. It is certainly the case that abortion has been distinguished as a particular form of homicide, punishable approximately as manslaughter, with the important caveat that women procuring abortions were rarely prosecuted at all. Abortion has not been a class of applications of murder prohibitions. What does all this show?
  Not nearly what the Roe Court thought it showed.
  Justice Blackmun examined the case for “fetal personhood” under the Fourteenth Amendment’s Due Process Clause. It says. “[N]or shall any state deprive any person of life, liberty, or property, without due process of law; !* * *.” He seems to have thought that a successful argument for fetal personhood would constitutionally prohibit all abortions. He said that if fetal personhood could be established, the case for abortion liberty “of course, collapses, for the fetus’s right to life is then guaranteed specifically by the Amendment.”
  • p.10

• Has the arbitrariness of Roe v. Wade been overcome since 1973? No. Here the discussion must focus on the 1992 decision of the Court in “Planned Parenthood v. Casey”, which reaffirmed “the central holding” of Roe. In Casey we hear the Court (the “joint opinion” of Justices Kennedy, Souter, O’Connor) note the disagreement among us about the “profound moral and spiritual implications” of abortion. “[B]ut that cannot control our decision. Our obligation is to define the liberty of all, not mandate our own moral code.”
  • p.12

• Were the matter not so deadly serious the Justices’ attempts to supply the principles rationale Roe lacked would be subject of sport. The Justices said that “liberty” includes the “right to define one’s own concept of existence, of meaning, or the universe.” Really? Does the law which prohibits killing have no point of view? Besides, how does this “mystery passage” tell us who counts as a person with such an expansive right? Elsewhere in Casey the Justices said that the right o bear children depends upon the right to abort. All of us, regardless of our views about abortion, exercise the same right, and thus all of us can and should support abortion rights. Except, of course, those who draw a principled distinction between killing and nurturing life.
  Much has been written of these feeble attempts to mask judicial arbitrariness, and I have written some of it. But, I submit, the real “rationale” of Casey is, simply, Roe itself and the passage of time. Casey: An “entre generation has come of age free * * * to make reproductive decisions,” including the decision to abort.” Roe was based on a constitutional analysis –[sic] which we cannot now repudiate.”
  Roe v. Wade was indeed “raw judicial power”. And so it should surprise no one that the reaffirmation in Casey, has not silenced its critics. Tomorrow’s march here in D.C. will evidence the Court’s failure to persuade. And the march will again be testimony to the decency and law abidingness of our people. They will wonder tomorrow about the Casey retreated into the status quo. Some of the people marching tomorrow will remember Brown v. Board of Education, the decision handed down in 1954. Some of them will know that John W. Davi, who represented the segregationist states, made more than one argument, but his most forceful one was this. Davis cited the Court to its own holding nearly sixty years before, in Plessy v. Ferguson, and to six succeeding cases which, David said, affirmed Plessy. “Separate but equal”, Davis said in so many words, may not be all that the law should be, but it was the Court’s word, and the fact was that an entire culture-the South and parts of the North-had grown up around segregation. Plessy should not now be repudiated.
  The difference between Davis’ argument and the argument of the Casey Court is approximately one generation. The moral truth prevailed in 1954. We should hope and pray that we do not wait another generation until the truth about the unborn is finally heard, and heeded, in our highest Court.
  • p.12

"Subverted: How I Helped the Sexual Revolution Hijack the Women's Movement" (2015)

Browder, Sue Ellen (2015). "Subverted: How I Helped the Sexual Revolution Hijack the Women's Movement". Ignatius Press. ISBN 978-1586177966. Retrieved August 24, 2018. george frampton jr.

• Although Harry claimed to be unsure of his wife’s position on abortion, Dottie told one of his law clerks (a young male attorney who favored laissez-faire abortion) that she was doing everything she could to further the cause. “You and I are working on the same thing,” she told the law clerk. “Me at home and you at work.”
  To write his opinions, Harry retired to the Justices’ second-floor library, where he spent most of his waking hours in silent solitude, laboriously working at a long mahogany desk. Months passed, As the winter snows melted into spring and D.C.’s cherry blossoms burst into bloom. Harry remained squirreled away in the library.
  When at last in mid-May Harry showed a draft of his Roe opinion for the first time to one of his politically leftist law clerks, the clerk claimed to be “astonished” the draft was so crudely written and poorly organized. When he circulated the draft on May18, 1972, to the other justices, Harry’s more liberal colleagues on the bench-Justices William Douglas, William Brennan, and Thurgood Marshall-were disappointed, whereas conservative Justice Byron White strongly dissented.
  Why were Douglas and Marshall so disappointed? Catholic feminist Mary Meehan suggests one possible reason. Meehan reports, “Justices Douglas and Marshall had been lacking in sexual restraint-to put it mildly-well before the ‘60s, and the problems of both were aggravated at times by heavy drinking. Perhaps they realized that legal abortion could be extremely helpful to men-enabling them to escape paternity suits, years of child support, social embarrassment, and the wrath of betrayed wives. But none of this, of course, would be mentioned in the Court’s opinions.” Meehan reports that in 1961 Justice Douglas had also written to Population Bomb pamphleteer Hugh Moore, saying, “I have seen some of the literature… all of which I thought was excellent.”
  In any case, when harry failed to produce a competent pro-abortion draft of his opinions, he got flak from his colleagues.
  Having vowed to do his best “to arrive at something which would command a court,” Harry withdrew the draft, asking that all copies be returned to him. He planned to do more work on his opinions over the summer.
  In late July 1972, Harry flew to Rochester to immerse himself in research at the Mayo Clinic medical library. Meanwhile, his politically liberal, $15,000-a-year law clerk George Frampton Jr., age twenty-eight, volunteered to stay in Washington until early August to help research and draft the opinions. The two talked by phone almost daily.
  • pp.93-94

• An early draft Henry wrote on the history of abortion in his small, cramped longhand reveals he was still struggling. Writing is difficult, and Harry wasn’t much of a writer. On the subject of abortion, Harry was finding it hard to think clearly.
  Young George, on the other hand, was an excellent writer. He’s graduated from Harvard Law School in 1969 (where he was managing editor of the Harvard Law Review), and he had at his fingertips an extraordinarily handy resource-a high persuasive book entitled “Abortion: The first authoritative and documented report on the laws and practices governing abortion in the U.S. and around the world, and how-for the sake of women everywhere-they can and must be reformed..” Yes, indeed. It was Larry Lader’s masterpiece of propaganda, the same book that had so greatly impressed Betty Friedan.
  Lader’s masterpiece of propaganda supplied much of the historic background Blackmun’s opinion had previously lacked. But more important Lader’s book provided a coherent form or template that tied together the many disconnected fragments of thought that had previously kept Blackmun’s abortion opinions from working. In all-new sections on the history of abortion written by George and dated August 10, 1972, Lader’s book suddenly appears in the footnotes for the first time.
  • p.94

• In a lengthy five-page, single-spaced letter, typed on legal-size paper, which he sent to Harry along with the draft, George made an unusual suggestion. He suggested that Harry consider circulating this new draft before it was cite-checked by a clerk. Cite-checking it detailed fact-checking to ensure that a judicial decision is sound. Why would a junior law clerk suggest circulating a draft that hadn’t been cite-checked?
  George was eager for Harry to circulate his draft before oral arguments were reheard in October-for three reasons: He wrote that circulating the revised draft before oral argument would “nail down [Blackmun’s] keeping the assignment,” “should influence questions and thinking at oral argument,” and “might well influence voting.” Though George stated he would not recommend delayed cite-checking “as standard operating procedure,” he thought that in this particular case the benefits strongly outweighed the disadvantages.
  • pp.94-95

• We don’t know when or even if the history section in Blackmun’s abortion opinions was ever cite-checked. But we do know that if it happened, the fact-checking was faulty. For when Blackmun accepted Larry Lader, a mere magazine writer, as a reliable authority on history, philosophy, and theology, he became as a blind man following a blind guide. Despite his best efforts, Harry failed to see he had embraced a well-crafted verbal mirage, mistaking it for the truth.
  Let us be very clear about what happened here. The picture that emerges from Blackmun’s papers, available for public inspection at the U.S. Library of Congress, is that of a justice who, in the words of Pulitzer Prize-winning, pro-abortion historian David J. Garrow, “ceded far too much of his judicial authority to his clerks.” It is plain from an inspection of Blackmun’s papers that his clerks made “historically significant and perhaps decisive contributions to Roe and Doe”-a degree of involvement Garrow calls “indefensible.”
  • p.95

• Lader set himself up as an authority on centuries of abortion legal history and also on two millennia of Catholic teachings about abortion-and Blackmun and his clerk fell for the ruse. In the final version of the Roe v. Wade decision, Lader’s masterpiece of propaganda is cited at least seven times, and Cyril Chestnut Means’ scholarly papers are cited another seven times.
  Cyril Means, you’ll recall from Chapter 4, was the NARAL attorney who falsified abortion legal history, fabricating his own version almost entirely out of whole cloth.
  Lader, of course, was just a clever wordsmith-certainly no expert on history.
  And yet as the late Notre Dame theologian father James Burtchaell observed, it is “clear in the record that Justice Blackmun was indebted for the innards of his argument to two of the major strategists of the abortion movement”-Means and Lader.
  • p.95

• In any case, Harry was deceived by Lader’s propaganda, six other black-robed men on the bench went along with the ruse and the tragic result was the U.S. Supreme Court’s most controversial decision since the Dred Scott v. Sandford decision denied personhood to black Americans in 1857.
  • p.96

• ”The immediate academic response to Roe v. Wade,” observed New York Times pro-abortion reporter Linda Greenhouse, “ranged from tepid to withering.” The first critiques came from the left.
  • p.96

"Criminal Abortion Revisited" (1991)

Buell, Samuel (1991). "Criminal Abortion Revisited". New York University Law Review. 66:1774 (6): 1774–831. PMID 11652642 – via duke.edu.

• Americans in general and lawmakers in particular have not considered fully the legal implications of a serious reformulation or wholesale destruction of Roe. If the day does come when such a decision is handed down, Americans, whether they commiserate or celebrate, will have to wake up the next morning and decided what to do. And one need look no further than our state legislatures, which in response to ‘’Webster’’ have enacted legislation strikingly similar to pre-Roe law, to realize the impact of such a Supreme Court ruling.
  • pp.1775-1777

• The Supreme Court’s 1973 decisions in “Roe v. Wade” and “Doe v. Bolton” created a constitutional regime for abortion, fencing off, as a matter of constitutional law, much of the ground on which state abortion laws had tread for over one hundred years. These decisions affected state abortion legislation in two ways. First, while not prohibiting all criminal sanctions for abortion, they removed abortion, for all practical purposes, from the realm of criminal conduct. Second, while the Court ended the era of criminal abortion, it also left the door open for the states to promulgate regulations concerning abortion, ushering in a new era.
  “Roe’s” landmark holding declared that the fundamental constitutional right to privacy includes the right to have an abortion and that any state legislation limiting that right must be justified by a compelling state interest. In particular, the “Roe” Court found that Texas’s abortion statute, typical of the nineteenth-century criminal-abortion laws, violated that fundamental right. In “Doe”, the Court declared that Georgia’s statute, a typical 1960s “reformed” law patterned after the Model Penal Code, also violated the newly established constitutional right. As a result, the Court had rendered virtually every abortion statute passed since Connecticut started the enterprise in 1821 unconstitutional. For practical purposes, criminal abortion was dead. While states retained considerable regulatory leeway, abortion no longer could be branded a crime, at least for the first and probably also the second trimester of pregnancy.
  “Roe” also recognized, however, that states retained a compelling interest in the health of the mother after the first trimester. The Court further acknowledged a compelling state interest in fetal life as of the third trimester. States, then, were free to pass laws reasonably related to the furtherance of those interests. While states theoretically could have responded to the Court’s instructions by enacting new criminal laws barring “unhealthy’ abortions in the second trimester and all abortions after viability, for the most part they did not do so. The longstanding criminal-abortion statutes had been deemed unconstitutional because they flatly violated a fundamental right. The entire enterprise of criminalizing conduct related to abortion thus was called into question by the Supreme Court’s rulings To criminalize at certain stages of pregnancy the very conduct declared constitutionally protected at other stages of pregnancy would have challenged too directly the new understanding of abortion advanced by the Court. Instead, states wishing to limit the exercise of abortion rights launched a new enterprise, one which “Roe” explicitly invited: they restricted access to abortion by strictly regulating it rather than by branding it criminal.
  • pp.1800-1801

• The Court, in the years following Roe, policed the constitutional abortion right by declaring which of these new state regulations exceeded the leeway granted in Roe and which did not Some regulations carried criminal penalties, but no state attempted to ban abortion altogether at any stage of pregnancy. Instead, states used regulations to construct obstacle courses that women had to navigate before they could exercise their constitutionally protected abortion right.
  The Court, however, declared that certain regulations impermissibly infringed on the constitutional right. It held that a state could not require spousal consent to abortion or prohibit a particular method of abortion in the first trimester. It refused to allow states to require hospitalization for all second-trimester abortions or to require that a woman listen to a “parade of horribles” about abortion before she obtained one. And the Court refused to allow states to require doctors to exercise a prescribed degree of care to save the fetus in postviability abortions and to require that two doctors be present during postviability abortions.
  • pp.1801-1802

• Nonetheless, the Court did approve a variety of regulations governing the practice of abortion. It held that the states were free to define “viability” and to require recordkeeping and of abortions. The Court permitted Congress and the states to discriminate against abortion in the dispensation of medical funding to the poor by denying funding for abortions. The Court permitted states to require parental consent for abortions sought by minors so long as the minor had access to an alternative judicial consent procedure. Finally, the Court permitted states to require the presence of two doctors at third-trimester abortions except in emergency situations and to require the submission of a pathology report for all abortions.
  These cases all involved state attempts to burden, rather than to bar, the exercise of the constitutional abortion right. In every one of these cases, at least a plurality of the Court declared continue allegiance to the right established in “Roe”. One case, however, “Colautti v. Franklin”’, did squarely confront a criminal-abortion law. Pennsylvania’s Abortion Control Act included a provision that subjected a doctor to criminal liability for failing to use a statutorily prescribed abortion technique when the fetus was “viable” or when there was “sufficient reason to believe the fetus may be viable.” The Court found two constitutional faults in this statute, both particular to the criminal law. First, the vagueness of the viability definition was found to condition “criminal liability on confusing and ambiguous criteria. It therefore present serious problems of notice, discriminatory application, and chilling effect on the exercise of constitutional rights.” Second, the statute subjected the doctor to “criminal liability without regard to fault,” thereby compounding the vagueness of the viability definition. The Colautti Court laced its opinion with references to the “Roe” abortion right and “Roe’s” deference to the role of the physician. But the Curt disposed of the case on criminal-law grounds. “Colautti” indicated that criminal sanctions did not fit comfortably, if at all, into the Court’s regime of permissible state regulation of abortion.
  • pp.1802-1803

• Given the Court’s recent abortion decisions, adherence to “Roe” as the keystone of abortion jurisprudence appears impossible. For the Court to draw some as yet undefined and more circumscribed boundary around a surviving constitutional abortion right, thereby leaving the states free to regulate expansively on abortion, seems improbable at a time when some of the Justices increasingly disavow the construction of complicated, quasilegislative constitutional schemes such as the one established in “Roe” itself. The return of criminal abortion is a distinct probability. More pointedly, the states themselves have begun to act as if its return is inevitable.
  • p.1806

“The Casey Undue Burden Standard: Problems Predicted and Encountered, and the Split over the Salerno Test”

“The Casey Undue Burden Standard: Problems Predicted and Encountered, and the Split over the Salerno Test” by Ruth Burdick, Hastings Constitutional Law Quarterly, Volume 23, Issue 3, Article 8

• Following the Roe decision, several states enacted legislation imposing restrictions on a woman's right to an abortion, many of which were subsequently found to be unconstitutional under Roe. Among these unconstitutional restrictions were mandatory pre-abortion counseling, spousal and parental notification and consent requirements, and abortion clinic licensing limitations.
  In the 1989 decision of Webster v. Reproductive Health Services, however, a new majority of the Court signaled their willingness to uphold abortion restrictions. Three Justices expressed a desire to significantly modify and narrow Roe. One Justice called for an outright overruling of Roe. During the aftermath of the Webster decision, several states passed new legislation to protect the life of the unborn fetus and limit the right to an abortion.
  • pp.827-828

• In Casey, the Supreme Court issued an elaborately splintered decision in which the joint opinion, written by Justice O'Connor and joined by Justices Kennedy and Souter, announced the judgment and opinion of the Court. The Casey joint opinion effected three principal changes to Supreme Court abortion jurisprudence: it reaffirmed "the essential holding of Roe v. Wade,"' struck down the Roe trimester framework, and replaced it with a new undue burden standard.
  • p.829

• In reaffirming the essential holding of Roe, the joint opinion specifically upheld what Justice O'Connor described as its "three parts": one, the right of a woman to choose and obtain an abortion before viability without undue interference from the state; two, the state power to restrict abortions after fetal viability, as long as exceptions to protect a woman's life or health are provided; and three, the state interests in protecting the health of the woman and the life of the fetus.2 By discussing the essential holding of Roe as a combination of rights and interests, the joint opinion effectively laid the groundwork for moving abortion jurisprudence away from a discussion of fundamental rights and strict scrutiny, and instead toward a balancing of interests typical of rational basis review.
  • pp.829-830

• Although the Casey joint opinion retains what it considered to be the essential principles of Roe, it explicitly rejects the trimester framework as a means of testing the constitutionality of state abortion regulations. In doing so, Justice O'Connor first explained that "the Court's experience applying the trimester framework has led to the striking down of some abortion regulations which in no real sense deprived women of the ultimate decision" of whether to terminate a pregnancy. Justice O'Connor made this conclusion, however, without citing any specific cases or abortion regulations. Second, Justice O'Connor stated that in practice the trimester framework undervalued the substantial state interest in potential life throughout pregnancy by treating all government interference before viability as unwarranted. Once again, these arguments demonstrate the joint opinion's preparation for a move toward a standard more in line with a rational basis review by highlighting the substantial nature of the state interest and the notion that a woman's ultimate decision can be restricted as long as it is not deprived in some "real sense”.
  • p.830

• With the promulgation of this new standard, the Casey decision effectively abolishes the fundamental right status of a woman's right to choose, and replaces Roe's strict scrutiny .with a "more permissive" standard calling for consideration of state interests, thereby reducing the level of review to something more akin to heightened scrutiny 38 or rational basis review.
  Additionally, the Casey undue burden standard shifts the burden of proof from the state to the individuals challenging the regulation." Previously, under Roe's strict scrutiny standard, once facial challengers had proven a restriction impacted the abortion right to any degree, the burden shifted to the state to show that the restriction was narrowly drawn to serve a compelling state purpose. Because the abortion right is no longer fundamental under Casey, challengers of abortion laws face a weightier facial showing of unconstitutionality than was required under Roe: they must prove in the first instance that either "the legislature's purpose was to interfere substantially with a woman's abortion choice, or that a challenged regulation would impose a 'substantial obstacle' to the exercise of that choice."
  • pp.831-832

• One of the explicit concerns of the Casey joint opinion was that "decisions after Roe [had] cast doubt upon the meaning and reach of its holding," and therefore, lower courts "must have guidance as they seek to address this subject." As one of the first courts to review abortion regulations under the new Casey undue burden standard found, however, "[d]espite the recent efforts of a three-justice plurality of the Supreme Court, passing on the constitutionality of state statutes regulating abortion after Casey has become neither less difficult nor more closely anchored to the Constitution." The explicit intention to provide clarity is particularly ironic given the amount of scholarly comment detailing inherent defects in the undue burden standard and predicting its troublesome application.
  • p.840

• [T]he inherently factual nature of the standard will engage the lower courts in a more complex analysis than previously required under Roe's brightline trimester framework. As one commentator aptly described it, the undue burden standard is "'a principle' as much as a test," and will undergo refinement every time it is applied.'
  • p.843

• In June 1992, the United States Supreme Court in Planned Parenthood v. Casey struck down the trimester framework of Roe v. Wade and replaced it with an undue burden standard to test the constitutionality of state abortion regulations. After Casey, commentators predicted the standard would be unworkable in practice, engender confusion in the lower courts, increase abortion litigation, allow judges broad discretion, and create inconsistent outcomes from state to state. After a survey of the thirteen cases which have so far implemented the undue burden standard, there is little evidence of the accuracy of these predictions, with the exception that the courts have been confused widely about the requirements of this new standard.
  • pp.875-876

“Legalized abortion a decade later” (January 16, 1983)

Richard Carelli “Legalized abortion a decade later”, Santa Cruz Sentinel, Volume 127, Number 13, (January 16, 1983)

• It began with an unmarried woman, known only as “Jane Roe.” who was too poor to leave Texas to end her unwanted pregnancy. So she stayed home and gave birth. Then she challenged the state law that outlawed the abortion she would have preferred.
  Jane Roe didn’t know it when she went to court, but she was setting off a social earthquake that is still shaking America 10 years later.
  It was a decade ago that justice Harry A. Blackmun, a quiet, meticulous conservative from Minnesota, used Jane Roe’s appeal to write the Supreme Court’s majority opinion legalizing abortion. He said it was “a no-win case.” and he was right.
  Since the court’s ruling, by a 7-2 vote, was announce Jan. 22, 1973, American women have had 10 million lawful abortions. In recent years, the rate has been one abortion for every three births. Statistical studied indicate that before 1973, American women underwent 200,000 to 1 million illegal abortions annually.
  The rancorous legal and moral debate over the issue continue unabated a decade later – in church pulpits, editorial pages, the halls of Congress, even in the White House Oval Office.
  Letters by the tens of thousands, more than the Supreme Court had gotten on any decision before or since, have descended on the justices. Most of them are critical, and most are addressed to Blackmun.
• Blackmun told a television interviewer in 1974 that the decision he wrote “will be regarded as one of the worst mistakes in the court’s history or one of its greatest decisions, a turning point.” He never doubted it would be highly controversial.
  “I still think it’s a correct decision,” he said recently in a rare, for-the record interview with The Associated Press, “We were deciding a constitutional issue, not a moral one.”
  He added, somewhat ruefully, “We all pickup tags. I’ll carry this one to my grave.”
  Janet Benshoof, director of the American Civil liberties Uninos Reproductive Freedom Project, said it was the most important decision in Supreme Court history for women. “They no longer are criminals for controlling their own reproduction.” She said.
  On the other side – the “pro-life” side – Is Nellie Gray. She has organized a Jan 22 march on Washington every year since 1974 to protest the decision. “It’s murder pure and simple.” She said. “Abortion means killing babies.”
• The abortion decision, including a companion case and two appendices, consumes 104 pages of the Supreme Court’s official reports. It tells little, however, about the Dallas County woman who took the ficticious name of “Jane Roe” to pursue her legal battle against the Texas anti-abortion law.
  The state prohibited any woman from ending her pregnancy unless it threatened her life. Jane Roe did not want a baby. She could have traveled to Mexico, Puerto Rico, New York or a few other states for an abortion, but she couldn’t afford to leave home.
  Rather than have an illegal abortion, she gave birth and put the baby up for adoption. Lawyers eager to challenge the state law took up her cause, and she sued Texas authorities in 1979. She lost in a federal trial court but won in the Supreme Court.
• In trying to fine-tune their 1973 decision, the justices have since:
  -Ruled that states cannot give husbands of pregnant women veto power over the abortion decision, nor can they give absolute veto power to parents of any young, unmarried girl.
  -Said states have no legal obligation to pay for “non-therapeutic” abortions. –Reaffirmed their intention to give physicians broad discretion in determining the “fetal viability.” Or the time when a fetus can survive outside the mother’s womb. The states may seek to protect a fetus that has reached viability, the court said, but that determination is up to physicians and not courts or legislatures.
  - Ruled that states can require a pregnant minor to obtain one or both of her parents’ consent for an abortion if state law provides an alternate procedure, such as letting the minor seek a judge’s consent instead.
  -Said the federal government and the states have no legal obligation to pay for even medically necessary abortions sought by women on welfare.
  - Ruled that states may require doctors to try to inform patents before performing abortions requested by some girls – those still dependent on their parents and deemed too “immature” to decide such matters for themselves.
• Faye Wattleton, president of the “pro-choice Planned Parenthood Federation of America, says foes have tried through “legislative mischief” to undo the 1973 decision. “The cases now before the Supreme Court could define the future shape of the battle.” She said.
  For its part, the Reagan administration is asking the high court to give “heavy deference” to the efforts of state and local governments to regulate abortioins.
  That approach, says the ACLU’s Ms Benshoof, “would result in absolute chaos,” with “every judge in the country…ruling on personal views.” Ms. Wattleton said it would mean a return to the pre-1973 era, when “a woman’s right to an abortion depended on where she lived.”
  Daniel Donehey of the Natinoal Right to Life Committee said such an approach would signal “a welcome retreat from an ethic that devalues human life.”
  “There are a lot of things going on in the abortion industry today that would curl your hair.” Donehey said. “There’s a great need for increased regulation.”
  Blackmun anticipated deep disagreement over the issue when he wrote in the 1973 opinion that view on abortion are influenced by “one’s philosophy, experiences, exposures to the raw edges of human existence, religious training and moral standards.”
  Ten years later, he said. “I think (the observation) had a place in that opinion. I think it still would if written today.

Casey, 505 U.S.

• Justice O'CONNOR, Justice KENNEDY, and Justice SOUTER delivered the opinion of the Court with respect to Parts I, II, and III, concluding that:
  1. Consideration of the fundamental constitutional question resolved by Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, principles of institutional integrity, and the rule of stare decisis require that Roe's essential holding be retained and reaffirmed as to each of its three parts: (1) a recognition of a woman's right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State, whose previability interests are not strong enough to support an abortion prohibition or the imposition of substantial obstacles to the woman's effective right to elect the procedure; (2) a confirmation of the State's power to restrict abortions after viability, if the law contains exceptions for pregnancies endangering a woman's life or health; and (3) the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. Pp. ____.
  (a) A reexamination of the principles that define the woman's rights and the State's authority regarding abortions is required by the doubt this Court's subsequent decisions have cast upon the meaning and reach of Roe's central holding, by the fact that The Chief Justice would overrule Roe, and by the necessity that state and federal courts and legislatures have adequate guidance on the subject. Pp. ____.
  (b) Roe determined that a woman's decision to terminate her pregnancy is a "liberty" protected against state interference by the substantive component of the Due Process Clause of the Fourteenth Amendment. Neither the Bill of Rights nor the specific practices of States at the time of the Fourteenth Amendment's adoption marks the outer limits of the substantive sphere of such "liberty." Rather, the adjudication of substantive due process claims may require this Court to exercise its reasoned judgment in determining the boundaries between the individual's liberty and the demands of organized society. The Court's decisions have afforded constitutional protection to personal decisions relating to marriage, see, e.g., Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010, procreation, Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655, family relationships, Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645, child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, and contraception, see, e.g., Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, and have recognized the right of the individual to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child, Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349. Roe's central holding properly invoked the reasoning and tradition of these precedents. Pp. ____.
  (c) Application of the doctrine of stare decisis confirms that Roe's essential holding should be reaffirmed. In reexamining that holding, the Court's judgment is informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling the holding with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling. Pp. ____.
  (d) Although Roe has engendered opposition, it has in no sense proven unworkable, representing as it does a simple limitation beyond which a state law is unenforceable. P. ____.
  (e) The Roe rule's limitation on state power could not be repudiated without serious inequity to people who, for two decades of economic and social developments, have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain costs of overruling Roe for people who have ordered their thinking and living around that case be dismissed. Pp. ____.
  (f) No evolution of legal principle has left Roe's central rule a doctrinal anachronism discounted by society. If Roe is placed among the cases exemplified by Griswold, supra, it is clearly in no jeopardy, since subsequent constitutional developments have neither disturbed, nor do they threaten to diminish, the liberty recognized in such cases. Similarly, if Roe is seen as stating a rule of personal autonomy and bodily integrity, akin to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection, this Court's post-Roe decisions accord with Roe's view that a State's interest in the protection of life falls short of justifying any plenary override of individual liberty claims. See, e.g., Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, ----, 110 S.Ct. 2841, ----, 111 L.Ed.2d 224. Finally, if Roe is classified as sui generis, there clearly has been no erosion of its central determination. It was expressly reaffirmed in Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (Akron I ), and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779; and, in Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410, a majority either voted to reaffirm or declined to address the constitutional validity of Roe's central holding. Pp. ____.
  (g) No change in Roe's factual underpinning has left its central holding obsolete, and none supports an argument for its overruling. Although subsequent maternal health care advances allow for later abortions safe to the pregnant woman, and post-Roe neonatal care developments have advanced viability to a point somewhat earlier, these facts go only to the scheme of time limits on the realization of competing interests. Thus, any later divergences from the factual premises of Roe have no bearing on the validity of its central holding, that viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions. The soundness or unsoundness of that constitutional judgment in no sense turns on when viability occurs. Whenever it may occur, its attainment will continue to serve as the critical fact. Pp. ____.
  (h) A comparison between Roe and two decisional lines of comparable significance—the line identified with Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937, and the line that began with Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256—confirms the result reached here. Those lines were overruled—by, respectively, West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703, and Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873—on the basis of facts, or an understanding of facts, changed from those which furnished the claimed justifications for the earlier constitutional resolutions. The overruling decisions were comprehensible to the Nation, and defensible, as the Court's responses to changed circumstances. In contrast, because neither the factual underpinnings of Roe's central holding nor this Court's understanding of it has changed (and because no other indication of weakened precedent has been shown), the Court could not pretend to be reexamining Roe with any justification beyond a present doctrinal disposition to come out differently from the Roe Court. That is an inadequate basis for overruling a prior case. Pp. ____.
  (i) Overruling Roe's central holding would not only reach an unjustifiable result under stare decisis principles, but would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law. Where the Court acts to resolve the sort of unique, intensely divisive controversy reflected in Roe, its decision has a dimension not present in normal cases and is entitled to rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. Moreover, the country's loss of confidence in the Judiciary would be underscored by condemnation for the Court's failure to keep faith with those who support the decision at a cost to themselves. A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy and to the Nation's commitment to the rule of law. Pp. ____.
  • pp.1-8

• Justice O'CONNOR, Justice KENNEDY, and Justice SOUTER concluded in Part IV that an examination of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, and subsequent cases, reveals a number of guiding principles that should control the assessment of the Pennsylvania statute:
  (a) To protect the central right recognized by Roe while at the same time accommodating the State's profound interest in potential life, see, id., at 162, 93 S.Ct., at 731, the undue burden standard should be employed. An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.
  (b) Roe's rigid trimester framework is rejected. To promote the State's interest in potential life throughout pregnancy, the State may take measures to ensure that the woman's choice is informed. Measures designed to advance this interest should not be invalidated if their purpose is to persuade the woman to choose childbirth over abortion. These measures must not be an undue burden on the right.
  (c) As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion, but may not impose unnecessary health regulations that present a substantial obstacle to a woman seeking an abortion.
  (d) Adoption of the undue burden standard does not disturb Roe's holding that regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.
  (e) Roe's holding that "subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother" is also reaffirmed. Id., at 164-165, 93 S.Ct., at 732. Pp. ____.
  • pp.9-14

• Justice O'CONNOR, Justice KENNEDY, and Justice SOUTER concluded in Parts V-B and V-D that:
  1. Section 3205's informed consent provision is not an undue burden on a woman's constitutional right to decide to terminate a pregnancy. To the extent Akron I, 462 U.S., at 444, 103 S.Ct., at 2500, and Thornburgh, 476 U.S., at 762, 106 S.Ct., at 2179, find a constitutional violation when the government requires, as it does here, the giving of truthful, nonmisleading information about the nature of the abortion procedure, the attendant health risks and those of childbirth, and the "probable gestational age" of the fetus, those cases are inconsistent with Roe's acknowledgement of an important interest in potential life, and are overruled.
  • p.19

• THE CHIEF JUSTICE, joined by Justice WHITE, Justice SCALIA, and Justice THOMAS, concluded that:
  1. Although Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, is not directly implicated by the Pennsylvania statute, which simply regulates and does not prohibit abortion, a reexamination of the "fundamental right" Roe accorded to a woman's decision to abort a fetus, with the concomitant requirement that any state regulation of abortion survive "strict scrutiny," id., at 154-156, 93 S.Ct., at 727-728, is warranted by the confusing and uncertain state of this Court's post-Roe decisional law. A review of post-Roe cases demonstrates both that they have expanded upon Roe in imposing increasingly greater restrictions on the States, see Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 783, 106 S.Ct. 2169, 2190, 90 L.Ed.2d 779 (Burger, C.J., dissenting), and that the Court has become increasingly more divided, none of the last three such decisions having commanded a majority opinion, see Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 110 S.Ct. 2972, 111 L.Ed.2d 405; Hodgson v. Minnesota, 497 U.S. 417, 110 S.Ct. 2926, 111 L.Ed.2d 344; Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410. This confusion and uncertainty complicated the task of the Court of Appeals, which concluded that the "undue burden" standard adopted by Justice O'CONNOR in Webster and Hodgson governs the present cases. Pp. ____.
  2. The Roe Court reached too far when it analogized the right to abort a fetus to the rights involved in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070; Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042; Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010; and Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, and thereby deemed the right to abortion to be "fundamental." None of these decisions endorsed an all-encompassing "right of privacy," as Roe, supra, 410 U.S., at 152-153, 93 S.Ct., at 726, claimed. Because abortion involves the purposeful termination of potential life, the abortion decision must be recognized as sui generis, different in kind from the rights protected in the earlier cases under the rubric of personal or family privacy and autonomy. And the historical traditions of the American people—as evidenced by the English common law and by the American abortion statutes in existence both at the time of the Fourteenth Amendment's adoption and Roe's issuance—do not support the view that the right to terminate one's pregnancy is "fundamental." Thus, enactments abridging that right need not be subjected to strict scrutiny. Pp. ____.
  • pp.24-26

• Justice O'CONNOR, Justice KENNEDY, and Justice SOUTER announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V-A, V-C, and VI, an opinion with respect to Part V-E, in which Justice STEVENS joins, and an opinion with respect to Parts IV, V-B, and V-D.
  Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe. See Brief for Respondents 104-117; Brief for United States as Amicus Curiae 8.
  • pp.37-38

• The Court of Appeals found it necessary to follow an elaborate course of reasoning even to identify the first premise to use to determine whether the statute enacted by Pennsylvania meets constitutional standards. See 947 F.2d, at 687-698. And at oral argument in this Court, the attorney for the parties challenging the statute took the position that none of the enactments can be upheld without overruling Roe v. Wade. Tr. of Oral Arg. 5-6. We disagree with that analysis; but we acknowledge that our decisions after Roe cast doubt upon the meaning and reach of its holding. Further, the CHIEF JUSTICE admits that he would overrule the central holding of Roe and adopt the rational relationship test as the sole criterion of constitutionality. See post, at ----. State and federal courts as well as legislatures throughout the Union must have guidance as they seek to address this subject in conformance with the Constitution. Given these premises, we find it imperative to review once more the principles that define the rights of the woman and the legitimate authority of the State respecting the termination of pregnancies by abortion procedures.
  After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed.
  It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.
  • pp.41-43

• It should be recognized, moreover, that in some critical respects the abortion decision is of the same character as the decision to use contraception, to which Griswold v. Connecticut, Eisenstadt v. Baird, and Carey v. Population Services International, afford constitutional protection. We have no doubt as to the correctness of those decisions. They support the reasoning in Roe relating to the woman's liberty because they involve personal decisions concerning not only the meaning of procreation but also human responsibility and respect for it.
  • p.57

• It was this dimension of personal liberty that Roe sought to protect, and its holding invoked the reasoning and the tradition of the precedents we have discussed, granting protection to substantive liberties of the person. Roe was, of course, an extension of those cases and, as the decision itself indicated, the separate States could act in some degree to further their own legitimate interests in protecting pre-natal life. The extent to which the legislatures of the States might act to outweigh the interests of the woman in choosing to terminate her pregnancy was a subject of debate both in Roe itself and in decisions following it.
  • p.58

• So in this case we may inquire whether Roe's central rule has been found unworkable; whether the rule's limitation on state power could be removed without serious inequity to those who have relied upon it or significant damage to the stability of the society governed by the rule in question; whether the law's growth in the intervening years has left Roe's central rule a doctrinal anachronism discounted by society; and whether Roe's premises of fact have so far changed in the ensuing two decades as to render its central holding somehow irrelevant or unjustifiable in dealing with the issue it addressed.
  Although Roe has engendered opposition, it has in no sense proven "unworkable," see Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 546, 105 S.Ct. 1005, 1015, 83 L.Ed.2d 1016 (1985), representing as it does a simple limitation beyond which a state law is unenforceable. While Roe has, of course, required judicial assessment of state laws affecting the exercise of the choice guaranteed against government infringement, and although the need for such review will remain as a consequence of today's decision, the required determinations fall within judicial competence.
  • pp.62-63

• To eliminate the issue of reliance that easily, however, one would need to limit cognizable reliance to specific instances of sexual activity. But to do this would be simply to refuse to face the fact that for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. See, e.g., R. Petchesky, Abortion and Woman's Choice 109, 133, n. 7 (rev. ed. 1990). The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed.
  • p.66

• No evolution of legal principle has left Roe's doctrinal footings weaker than they were in 1973. No development of constitutional law since the case was decided has implicitly or explicitly left Roe behind as a mere survivor of obsolete constitutional thinking.
  It will be recognized, of course, that Roe stands at an intersection of two lines of decisions, but in whichever doctrinal category one reads the case, the result for present purposes will be the same. The Roe Court itself placed its holding in the succession of cases most prominently exemplified by Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), see Roe, 410 U.S., at 152-153, 93 S.Ct., at 726. When it is so seen, Roe is clearly in no jeopardy, since subsequent constitutional developments have neither disturbed, nor do they threaten to diminish, the scope of recognized protection accorded to the liberty relating to intimate relationships, the family, and decisions about whether or not to beget or bear a child. See, e.g., Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977).
  Roe, however, may be seen not only as an exemplar of Griswold liberty but as a rule (whether or not mistaken) of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection. If so, our cases since Roe accord with Roe's view that a State's interest in the protection of life falls short of justifying any plenary override of individual liberty claims. Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 278, 110 S.Ct. 2841, ----, 111 L.Ed.2d 224 (1990); cf., e.g., Riggins v. Nevada, 504 U.S. ----, ----, 112 S.Ct. 1810, 1815, 118 L.Ed.2d 479 (1992); Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990); see also, e.g., Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952); Jacobson v. Massachusetts, 197 U.S. 11, 24-30, 25 S.Ct. 358, 360-363, 49 L.Ed. 643 (1905).
  Finally, one could classify Roe as sui generis. If the case is so viewed, then there clearly has been no erosion of its central determination. The original holding resting on the concurrence of seven Members of the Court in 1973 was expressly affirmed by a majority of six in 1983, see Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (Akron I ), and by a majority of five in 1986, see Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986), expressing adherence to the constitutional ruling despite legislative efforts in some States to test its limits. More recently, in Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), although two of the present authors questioned the trimester framework in a way consistent with our judgment today, see id., at 518, 109 S.Ct., at 3056 (REHNQUIST, C.J., joined by WHITE, and KENNEDY, JJ.); id., at 529, 109 S.Ct., at 3062 (O'CONNOR, J., concurring in part and concurring in judgment), a majority of the Court either decided to reaffirm or declined to address the constitutional validity of the central holding of Roe. See Webster, 492 U.S., at 521, 109 S.Ct., at 3058 (REHNQUIST, C.J., joined by WHITE and KENNEDY, JJ.); id., at 525-526, 109 S.Ct., at 3060-3061 (O'CONNOR, J., concurring in part and concurring in judgment); id., at 537, 553, 109 S.Ct., at 3067, 3075 (BLACKMUN, J., joined by Brennan and Marshall, JJ., concurring in part and dissenting in part); id., at 561-563, 109 S.Ct., at 3079-3081 (STEVENS, J., concurring in part and dissenting in part).
  Nor will courts building upon Roe be likely to hand down erroneous decisions as a consequence. Even on the assumption that the central holding of Roe was in error, that error would go only to the strength of the state interest in fetal protection, not to the recognition afforded by the Constitution to the woman's liberty. The latter aspect of the decision fits comfortably within the framework of the Court's prior decisions including Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), Griswold, supra, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), and Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), the holdings of which are "not a series of isolated points," but mark a "rational continuum." Poe v. Ullman, 367 U.S., at 543, 81 S.Ct., at 1777 (Harlan, J., dissenting). As we described in Carey v. Population Services International, supra, the liberty which encompasses those decisions.
  "includes 'the interest in independence in making certain kinds of important decisions.' While the outer limits of this aspect of [protected liberty] have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions 'relating to marriage, procreation, contraception, family relationships, and child rearing and education.' " Id., 431 U.S., at 684-685, 97 S.Ct., at 2016 (citations omitted).
  The soundness of this prong of the Roe analysis is apparent from a consideration of the alternative. If indeed the woman's interest in deciding whether to bear and beget a child had not been recognized as in Roe, the State might as readily restrict a woman's right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control, or eugenics, for example. Yet Roe has been sensibly relied upon to counter any such suggestions. E.g., Arnold v. Board of Education of Escambia County, Ala., 880 F.2d 305, 311 (CA11 1989) (relying upon Roe and concluding that government officials violate the Constitution by coercing a minor to have an abortion); Avery v. County of Burke, 660 F.2d 111, 115 (CA4 1981) (county agency inducing teenage girl to undergo unwanted sterilization on the basis of misrepresentation that she had sickle cell trait); see also In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976) (relying on Roe in finding a right to terminate medical treatment). In any event, because Roe § scope is confined by the fact of its concern with postconception potential life, a concern otherwise likely to be implicated only by some forms of contraception protected independently under Griswold and later cases, any error in Roe is unlikely to have serious ramifications in future cases.
  We have seen how time has overtaken some of Roe's factual assumptions: advances in maternal health care allow for abortions safe to the mother later in pregnancy than was true in 1973, see Akron I, supra, 462 U.S., at 429, n. 11, 103 S.Ct., at 2492, n. 11, and advances in neonatal care have advanced viability to a point somewhat earlier. Compare Roe, 410 U.S., at 160, 93 S.Ct., at 730, with Webster, supra, 492 U.S., at 515-516, 109 S.Ct., at 3055 (opinion of REHNQUIST, C.J.); see Akron I, supra, 462 U.S., at 457, and n. 5, 103 S.Ct., at 2489, and n. 5 (O'CONNOR, J., dissenting). But these facts go only to the scheme of time limits on the realization of competing interests, and the divergences from the factual premises of 1973 have no bearing on the validity of Roe's central holding, that viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions. The soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future. Whenever it may occur, the attainment of viability may continue to serve as the critical fact, just as it has done since Roe was decided; which is to say that no change in Roe's factual underpinning has left its central holding obsolete, and none supports an argument for overruling it.
  The sum of the precedential inquiry to this point shows Roe's underpinnings unweakened in any way affecting its central holding. While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume Roe's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe's central holding a doctrinal remnant; Roe portends no developments at odds with other precedent for the analysis of personal liberty; and no changes of fact have rendered viability more or less appropriate as the point at which the balance of interests tips. Within the bounds of normal stare decisis analysis, then, and subject to the considerations on which it customarily turns, the stronger argument is for affirming Roe's central holding, with whatever degree of personal reluctance any of us may have, not for overruling it.
  • pp.67-75

• Because neither the factual underpinnings of Roe's central holding nor our understanding of it has changed (and because no other indication of weakened precedent has been shown) the Court could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from the Court of 1973. To overrule prior law for no other reason than that would run counter to the view repeated in our cases, that a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided. See, e.g., Mitchell v. W.T. Grant, 416 U.S. 600, 636, 94 S.Ct. 1895, 1914, 40 L.Ed.2d 406 (1974) (Stewart, J., dissenting) ("A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the Government. No misconception could do more lasting injury to this Court and to the system of law which it is our abiding mission to serve"); Mapp v. Ohio, 367 U.S. 643, 677, 81 S.Ct. 1684, 1703, 6 L.Ed.2d 1081 (1961) (Harlan, J., dissenting).
  The examination of the conditions justifying the repudiation of Adkins by West Coast Hotel and Plessy by Brown is enough to suggest the terrible price that would have been paid if the Court had not overruled as it did. In the present case, however, as our analysis to this point makes clear, the terrible price would be paid for overruling. Our analysis would not be complete, however, without explaining why overruling Roe's central holding would not only reach an unjustifiable result under principles of stare decisis, but would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law. To understand why this would be so it is necessary to understand the source of this Court's authority, the conditions necessary for its preservation, and its relationship to the country's understanding of itself as a constitutional Republic.
  • pp.81-82

• Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
  The Court is not asked to do this very often, having thus addressed the Nation only twice in our lifetime, in the decisions of Brown and Roe. But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Some of those efforts may be mere unprincipled emotional reactions; others may proceed from principles worthy of profound respect. But whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question. Cf. Brown v. Board of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955) (Brown II ) ("[I]t should go without saying that the vitality of th[e] constitutional principles [announced in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954),] cannot be allowed to yield simply because of disagreement with them").
  The country's loss of confidence in the judiciary would be underscored by an equally certain and equally reasonable condemnation for another failing in overruling unnecessarily and under pressure. Some cost will be paid by anyone who approves or implements a constitutional decision where it is unpopular, or who refuses to work to undermine the decision or to force its reversal. The price may be criticism or ostracism, or it may be violence. An extra price will be paid by those who themselves disapprove of the decision's results when viewed outside of constitutional terms, but who nevertheless struggle to accept it, because they respect the rule of law. To all those who will be so tested by following, the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete. From the obligation of this promise this Court cannot and should not assume any exemption when duty requires it to decide a case in conformance with the Constitution. A willing breach of it would be nothing less than a breach of faith, and no Court that broke its faith with the people could sensibly expect credit for principle in the decision by which it did that.
  • pp.87-89

• The Court's duty in the present case is clear. In 1973, it confronted the already-divisive issue of governmental power to limit personal choice to undergo abortion, for which it provided a new resolution based on the due process guaranteed by the Fourteenth Amendment. Whether or not a new social consensus is developing on that issue, its divisiveness is no less today than in 1973, and pressure to overrule the decision, like pressure to retain it, has grown only more intense. A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe's original decision, and we do so today.
  • p.91

• From what we have said so far it follows that it is a constitutional liberty of the woman to have some freedom to terminate her pregnancy. We conclude that the basic decision in Roe was based on a constitutional analysis which we cannot now repudiate. The woman's liberty is not so unlimited, however, that from the outset the State cannot show its concern for the life of the unborn, and at a later point in fetal development the State's interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted.
  That brings us, of course, to the point where much criticism has been directed at Roe, a criticism that always inheres when the Court draws a specific rule from what in the Constitution is but a general standard. We conclude, however, that the urgent claims of the woman to retain the ultimate control over her destiny and her body, claims implicit in the meaning of liberty, require us to perform that function. Liberty must not be extinguished for want of a line that is clear. And it falls to us to give some real substance to the woman's liberty to determine whether to carry her pregnancy to full term.
  We conclude the line should be drawn at viability, so that before that time the woman has a right to choose to terminate her pregnancy. We adhere to this principle for two reasons. First, as we have said, is the doctrine of stare decisis. Any judicial act of line-drawing may seem somewhat arbitrary, but Roe was a reasoned statement, elaborated with great care. We have twice reaffirmed it in the face of great opposition. See Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S., at 759, 106 S.Ct., at 2178; Akron I, 462 U.S., at 419-420, 103 S.Ct., at 2487-2488. Although we must overrule those parts of Thornburgh and Akron I which, in our view, are inconsistent with Roe's statement that the State has a legitimate interest in promoting the life or potential life of the unborn, see infra, at ----, the central premise of those cases represents an unbroken commitment by this Court to the essential holding of Roe. It is that premise which we reaffirm today.
  The second reason is that the concept of viability, as we noted in Roe, is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman. See Roe v. Wade, 410 U.S., at 163, 93 S.Ct., at 731. Consistent with other constitutional norms, legislatures may draw lines which appear arbitrary without the necessity of offering a justification. But courts may not. We must justify the lines we draw. And there is no line other than viability which is more workable. To be sure, as we have said, there may be some medical developments that affect the precise point of viability, see supra, at ----, but this is an imprecision within tolerable limits given that the medical community and all those who must apply its discoveries will continue to explore the matter. The viability line also has, as a practical matter, an element of fairness. In some broad sense it might be said that a woman who fails to act before viability has consented to the State's intervention on behalf of the developing child.
  The woman's right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce.
  On the other side of the equation is the interest of the State in the protection of potential life. The Roe Court recognized the State's "important and legitimate interest in protecting the potentiality of human life." Roe, supra, at 162, 93 S.Ct., at 731. The weight to be given this state interest, not the strength of the woman's interest, was the difficult question faced in Roe. We do not need to say whether each of us, had we been Members of the Court when the valuation of the State interest came before it as an original matter, would have concluded, as the Roe Court did, that its weight is insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions. The matter is not before us in the first instance, and coming as it does after nearly 20 years of litigation in Roe's wake we are satisfied that the immediate question is not the soundness of Roe's resolution of the issue, but the precedential force that must be accorded to its holding. And we have concluded that the essential holding of Roe should be reaffirmed.
  Yet it must be remembered that Roe v. Wade speaks with clarity in establishing not only the woman's liberty but also the State's "important and legitimate interest in potential life." Roe, supra, at 163, 93 S.Ct., at 731. That portion of the decision in Roe has been given too little acknowledgement and implementation by the Court in its subsequent cases. Those cases decided that any regulation touching upon the abortion decision must survive strict scrutiny, to be sustained only if drawn in narrow terms to further a compelling state interest. See, e.g., Akron I, supra, 462 U.S., at 427, 103 S.Ct., at 2491. Not all of the cases decided under that formulation can be reconciled with the holding in Roe itself that the State has legitimate interests in the health of the woman and in protecting the potential life within her. In resolving this tension, we choose to rely upon Roe, as against the later cases.
  Roe established a trimester framework to govern abortion regulations. Under this elaborate but rigid construct, almost no regulation at all is permitted during the first trimester of pregnancy; regulations designed to protect the woman's health, but not to further the State's interest in potential life, are permitted during the second trimester; and during the third trimester, when the fetus is viable, prohibitions are permitted provided the life or health of the mother is not at stake. Roe v. Wade, supra, 410 U.S., at 163-166, 93 S.Ct., at 731-733. Most of our cases since Roe have involved the application of rules derived from the trimester framework. See, e.g., Thornburgh v. American College of Obstetricians and Gynecologists, supra; Akron I, supra.
  The trimester framework no doubt was erected to ensure that the woman's right to choose not become so subordinate to the State's interest in promoting fetal life that her choice exists in theory but not in fact. We do not agree, however, that the trimester approach is necessary to accomplish this objective. A framework of this rigidity was unnecessary and in its later interpretation sometimes contradicted the State's permissible exercise of its powers.
  Though the woman has a right to choose to terminate or continue her pregnancy before viability, it does not at all follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and informed. Even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself. " '[T]he Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth.' " Webster v. Reproductive Health Services, 492 U.S., at 511, 109 S.Ct., at 3053 (opinion of the Court) (quoting Poelker v. Doe, 432 U.S. 519, 521, 97 S.Ct. 2391, 2392, 53 L.Ed.2d 528 (1977)). It follows that States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning. This, too, we find consistent with Roe's central premises, and indeed the inevitable consequence of our holding that the State has an interest in protecting the life of the unborn.
  We reject the trimester framework, which we do not consider to be part of the essential holding of Roe. See Webster v. Reproductive Health Services, supra, 492 U.S., at 518, 109 S.Ct., at 3056 (opinion of REHNQUIST, C.J.); id., at 529, 109 S.Ct., at 3062 (O'CONNOR, J., concurring in part and concurring in judgment) (describing the trimester framework as "problematic"). Measures aimed at ensuring that a woman's choice contemplates the consequences for the fetus do not necessarily interfere with the right recognized in Roe, although those measures have been found to be inconsistent with the rigid trimester framework announced in that case. A logical reading of the central holding in Roe itself, and a necessary reconciliation of the liberty of the woman and the interest of the State in promoting prenatal life, require, in our view, that we abandon the trimester framework as a rigid prohibition on all previability regulation aimed at the protection of fetal life. The trimester framework suffers from these basic flaws: in its formulation it misconceives the nature of the pregnant woman's interest; and in practice it undervalues the State's interest in potential life, as recognized in Roe.
  • pp.92-102

• In Maher v. Roe, 432 U.S. 464, 473-474, 97 S.Ct. 2376, 2382, 53 L.Ed.2d 484 (1977), the Court explained: "Roe did not declare an unqualified 'constitutional right to an abortion,' as the District Court seemed to think. Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy." See also Doe v. Bolton, 410 U.S. 179, 198, 93 S.Ct. 739, 750, 35 L.Ed.2d 201 (1973) ("[T]he interposition of the hospital abortion committee is unduly restrictive of the patient's rights"); Bellotti I, supra, 428 U.S., at 147, 96 S.Ct., at 2866 (State may not "impose undue burdens upon a minor capable of giving an informed consent"); Harris v. McRae, 448 U.S. 297, 314, 100 S.Ct. 2671, 2686, 65 L.Ed.2d 784 (1980) (citing Maher, supra ). Cf. Carey v. Population Services International, 431 U.S., at 688, 97 S.Ct., at 2018 ("[T]he same test must be applied to state regulations that burden an individual's right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision as is applied to state statutes that prohibit the decision entirely").
  These considerations of the nature of the abortion right illustrate that it is an overstatement to describe it as a right to decide whether to have an abortion "without interference from the State," Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 61, 96 S.Ct. 2831, 2837, 49 L.Ed.2d 788 (1976). All abortion regulations interfere to some degree with a woman's ability to decide whether to terminate her pregnancy. It is, as a consequence, not surprising that despite the protestations contained in the original Roe opinion to the effect that the Court was not recognizing an absolute right, 410 U.S., at 154-155, 93 S.Ct., at 727, the Court's experience applying the trimester framework has led to the striking down of some abortion regulations which in no real sense deprived women of the ultimate decision. Those decisions went too far because the right recognized by Roe is a right "to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, 405 U.S., at 453, 92 S.Ct., at 1038. Not all governmental intrusion is of necessity unwarranted; and that brings us to the other basic flaw in the trimester framework: even in Roe's terms, in practice it undervalues the State's interest in the potential life within the woman. Roe v. Wade was express in its recognition of the State's "important and legitimate interest[s] in preserving and protecting the health of the pregnant woman [and] in protecting the potentiality of human life." 410 U.S., at 162, 93 S.Ct., at 731. The trimester framework, however, does not fulfill Roe's own promise that the State has an interest in protecting fetal life or potential life. Roe began the contradiction by using the trimester framework to forbid any regulation of abortion designed to advance that interest before viability. Id., at 163, 93 S.Ct., at 731. Before viability, Roe and subsequent cases treat all governmental attempts to influence a woman's decision on behalf of the potential life within her as unwarranted. This treatment is, in our judgment, incompatible with the recognition that there is a substantial state interest in potential life throughout pregnancy. Cf. Webster, 492 U.S., at 519, 109 S.Ct., at 3057 (opinion of REHNQUIST, C.J.); Akron I, supra, 462 U.S., at 461, 103 S.Ct., at 2509 (O'CONNOR, J., dissenting).
  • pp.105-106

• To protect the central right recognized by Roe v. Wade while at the same time accommodating the State's profound interest in potential life, we will employ the undue burden analysis as explained in this opinion. An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.
  We reject the rigid trimester framework of Roe v. Wade. To promote the State's profound interest in potential life, throughout pregnancy the State may take measures to ensure that the woman's choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion. These measures must not be an undue burden on the right.
  As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.
  Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding. Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.
  We also reaffirm Roe's holding that "subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Roe v. Wade, 410 U.S., at 164-165, 93 S.Ct., at 732.
  • pp.112-116

• Because it is central to the operation of various other requirements, we begin with the statute's definition of medical emergency. Under the statute, a medical emergency is
  "[t]hat condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function." 18 Pa.Cons.Stat. (1990). § 3203.
  Petitioners argue that the definition is too narrow, contending that it forecloses the possibility of an immediate abortion despite some significant health risks. If the contention were correct, we would be required to invalidate the restrictive operation of the provision, for the essential holding of Roe forbids a State from interfering with a woman's choice to undergo an abortion procedure if continuing her pregnancy would constitute a threat to her health. 410 U.S., at 164, 93 S.Ct., at 732. See also Harris v. McRae, 448 U.S., at 316, 100 S.Ct., at 2687.
  • pp.119-121

• In Akron I, 462 U.S. 416, 103 S.Ct. 2481, we invalidated an ordinance which required that a woman seeking an abortion be provided by her physician with specific information "designed to influence the woman's informed choice between abortion or childbirth." Id., at 444, 103 S.Ct., at 2500. As we later described the Akron I holding in Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S., at 762, 106 S.Ct., at 2179, there were two purported flaws in the Akron ordinance: the information was designed to dissuade the woman from having an abortion and the ordinance imposed "a rigid requirement that a specific body of information be given in all cases, irrespective of the particular needs of the patient. . . ." Ibid.
  To the extent Akron I and Thornburgh find a constitutional violation when the government requires, as it does here, the giving of truthful, nonmisleading information about the nature of the procedure, the attendant health risks and those of childbirth, and the "probable gestational age" of the fetus, those cases go too far, are inconsistent with Roe's acknowledgment of an important interest in potential life, and are overruled. This is clear even on the very terms of Akron I and Thornburgh. Those decisions, along with Danforth, recognize a substantial government interest justifying a requirement that a woman be apprised of the health risks of abortion and childbirth. E.g., Danforth, supra, 428 U.S., at 66-67, 96 S.Ct., at 2840. It cannot be questioned that psychological well-being is a facet of health. Nor can it be doubted that most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision. In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed. If the information the State requires to be made available to the woman is truthful and not misleading, the requirement may be permissible.
  • p.125

• We are left with the argument that the various aspects of the informed consent requirement are unconstitutional because they place barriers in the way of abortion on demand. Even the broadest reading of Roe, however, has not suggested that there is a constitutional right to abortion on demand. See, e.g., Doe v. Bolton, 410 U.S., at 189, 93 S.Ct., at 746. Rather, the right protected by Roe is a right to decide to terminate a pregnancy free of undue interference by the State. Because the informed consent requirement facilitates the wise exercise of that right it cannot be classified as an interference with the right Roe protects. The informed consent requirement is not an undue burden on that right.
  • p.136

• The Court is unquestionably correct in concluding that the doctrine of stare decisis has controlling significance in a case of this kind, notwithstanding an individual justice's concerns about the merits.1 The central holding of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), has been a "part of our law" for almost two decades. Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 101, 96 S.Ct. 2831, 2855, 49 L.Ed.2d 788 (1976) (STEVENS, J., concurring in part and dissenting in part). It was a natural sequel to the protection of individual liberty established in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). See also Carey v. Population Services Int'l, 431 U.S. 678, 687, 702, 97 S.Ct. 2010, 2017, 2025, 52 L.Ed.2d 675 (1977) (WHITE, J., concurring in part and concurring in result). The societal costs of overruling Roe at this late date would be enormous. Roe is an integral part of a correct understanding of both the concept of liberty and the basic equality of men and women.
  • Justice STEVENS, concurring in part and dissenting in part, p.255

• I also accept what is implicit in the Court's analysis, namely, a reaffirmation of Roe's explanation of why the State's obligation to protect the life or health of the mother must take precedence over any duty to the unborn. The Court in Roe carefully considered, and rejected, the State's argument "that the fetus is a 'person' within the language and meaning of the Fourteenth Amendment." 410 U.S., at 156, 93 S.Ct., at 728. After analyzing the usage of "person" in the Constitution, the Court concluded that that word "has application only postnatally." Id., at 157, 93 S.Ct., at 729. Commenting on the contingent property interests of the unborn that are generally represented by guardians ad litem, the Court noted: "Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense." Id., at 162, 93 S.Ct., at 731. Accordingly, an abortion is not "the termination of life entitled to Fourteenth Amendment protection." Id., at 159, 93 S.Ct., at 730. From this holding, there was no dissent, see id., at 173, 93 S.Ct., at 737; indeed, no member of the Court has ever questioned this fundamental proposition. Thus, as a matter of federal constitutional law, a developing organism that is not yet a "person" does not have what is sometimes described as a "right to life."2 This has been and, by the Court's holding today, remains a fundamental premise of our constitutional law governing reproductive autonomy.
  My disagreement with the joint opinion begins with its understanding of the trimester framework established in Roe. Contrary to the suggestion of the joint opinion, ante, at ____, it is not a "contradiction" to recognize that the State may have a legitimate interest in potential human life and, at the same time, to conclude that that interest does not justify the regulation of abortion before viability (although other interests, such as maternal health, may). The fact that the State's interest is legitimate does not tell us when, if ever, that interest outweighs the pregnant woman's interest in personal liberty. It is appropriate, therefore, to consider more carefully the nature of the interests at stake.
  • Justice STEVENS, concurring in part and dissenting in part, pp.257-258

• This theme runs throughout our decisions concerning reproductive freedom. In general, Roe's requirement that restrictions on abortions before viability be justified by the State's interest in maternal health has prevented States from interjecting regulations designed to influence a woman's decision. Thus, we have upheld regulations of abortion that are not efforts to sway or direct a woman's choice but rather are efforts to enhance the deliberative quality of that decision or are neutral regulations on the health aspects of her decision. We have, for example, upheld regulations requiring written informed consent, see Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); limited recordkeeping and reporting, see ibid.; and pathology reports, see Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983); as well as various licensing and qualification provisions, see e.g., Roe, 410 U.S., at 150, 93 S.Ct., at 725; Simopoulos v. Virginia, 462 U.S. 506, 103 S.Ct. 2532, 76 L.Ed.2d 755 (1983). Conversely, we have consistently rejected state efforts to prejudice a woman's choice, either by limiting the information available to her, see Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), or by "requir[ing] the delivery of information designed 'to influence the woman's informed choice between abortion or childbirth.' " Thornburgh, 476 U.S., at 760, 106 S.Ct., 2178; see also Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 442-449, 103 S.Ct. 2481, 2499-2502, 76 L.Ed.2d 687 (1983).
  • p.264

• Three years ago, in Webster v. Reproductive Health Serv., 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), four Members of this Court appeared poised to "cas[t] into darkness the hopes and visions of every woman in this country" who had come to believe that the Constitution guaranteed her the right to reproductive choice. Id., at 557, 109 S.Ct., at 3077 (BLACKMUN, J., dissenting). See id., at 499, 109 S.Ct., at 3046 (opinion of REHNQUIST, C.J.); id., at 532, 109 S.Ct., at 3064 (opinion of SCALIA, J.). All that remained between the promise of Roe and the darkness of the plurality was a single, flickering flame. Decisions since Webster gave little reason to hope that this flame would cast much light. See, e.g., Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 524, 110 S.Ct. 2972, ----, 111 L.Ed.2d 405 (1990) (opinion of BLACKMUN, J.). But now, just when so many expected the darkness to fall, the flame has grown bright.
  I do not underestimate the significance of today's joint opinion. Yet I remain steadfast in my belief that the right to reproductive choice is entitled to the full protection afforded by this Court before Webster. And I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light.
  • Justice BLACKMUN, concurring in part, concurring in the judgment in part, and dissenting in part, pp.278-279

• The Court's reaffirmation of Roe's central holding is also based on the force of stare decisis. "[N]o erosion of principle going to liberty or personal autonomy has left Roe's central holding a doctrinal remnant; Roe portends no developments at odds with other precedent for the analysis of personal liberty; and no changes of fact have rendered viability more or less appropriate as the point at which the balance of interests tips." Ante, at ____. Indeed, the Court acknowledges that Roe's limitation on state power could not be removed "without serious inequity to those who have relied upon it or significant damage to the stability of the society governed by the rule in question." Ante, at ____. In the 19 years since Roe was decided, that case has shaped more than reproductive planning—"an entire generation has come of age free to assume Roe's concept of liberty in defining the capacity of women to act in society and to make reproductive decisions." Ante, at ____. The Court understands that, having "call[ed] the contending sides . . . to end their national division by accepting a common mandate rooted in the Constitution," ante, at ____, a decision to overrule Roe "would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law." Ante, at ____. What has happened today should serve as a model for future Justices and a warning to all who have tried to turn this Court into yet another political branch.
  • Justice BLACKMUN, concurring in part, concurring in the judgment in part, and dissenting in part, 286

• The Court today reaffirms the long recognized rights of privacy and bodily integrity. As early as 1891, the Court held, "[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others. . . ." Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891). Throughout this century, this Court also has held that the fundamental right of privacy protects citizens against governmental intrusion in such intimate family matters as procreation, childrearing, marriage, and contraceptive choice. See ante, at ____. These cases embody the principle that personal decisions that profoundly affect bodily integrity, identity, and destiny should be largely beyond the reach of government. Eisenstadt, 405 U.S., at 453, 92 S.Ct., at 1038. In Roe v. Wade, this Court correctly applied these principles to a woman's right to choose abortion.
  • Justice BLACKMUN, concurring in part, concurring in the judgment in part, and dissenting in part, pp.285-286

• The Court has held that limitations on the right of privacy are permissible only if they survive "strict" constitutional scrutiny—that is, only if the governmental entity imposing the restriction can demonstrate that the limitation is both necessary and narrowly tailored to serve a compelling governmental interest. Griswold v. Connecticut, 381 U.S. 479, 485, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 (1965). We have applied this principle specifically in the context of abortion regulations. Roe v. Wade, 410 U.S., at 155, 93 S.Ct., at 728.
  Roe implemented these principles through a framework that was designed "to insure that the woman's right to choose not become so subordinate to the State's interest in promoting fetal life that her choice exists in theory but not in fact," ante, at ____. Roe identified two relevant State interests: "an interest in preserving and protecting the health of the pregnant woman" and an interest in "protecting the potentiality of human life." 410 U.S., at 162, 93 S.Ct., at 731. With respect to the State's interest in the health of the mother, "the 'compelling' point . . . is at approximately the end of the first trimester," because it is at that point that the mortality rate in abortion approaches that in childbirth. Roe, 410 U.S., at 163, 93 S.Ct., at 731. With respect to the State's interest in potential life, "the 'compelling' point is at viability," because it is at that point that the fetus "presumably has the capability of meaningful life outside the mother's womb." Ibid. In order to fulfill the requirement of narrow tailoring, "the State is obligated to make a reasonable effort to limit the effect of its regulations to the period in the trimester during which its health interest will be furthered." Akron, 462 U.S., at 434, 103 S.Ct., at 2495.
  In my view, application of this analytical framework is no less warranted than when it was approved by seven Members of this Court in Roe. Strict scrutiny of state limitations on reproductive choice still offers the most secure protection of the woman's right to make her own reproductive decisions, free from state coercion. No majority of this Court has ever agreed upon an alternative approach. The factual premises of the trimester framework have not been undermined, see Webster, 492 U.S., at 553, 109 S.Ct., at 3075 (BLACKMUN, J., dissenting), and the Roe framework is far more administrable, and far less manipulable, than the "undue burden" standard adopted by the joint opinion.
  Nonetheless, three criticisms of the trimester framework continue to be uttered. First, the trimester framework is attacked because its key elements do not appear in the text of the Constitution. My response to this attack remains the same as it was in Webster:
  "Were this a true concern, we would have to abandon most of our constitutional jurisprudence. [T]he 'critical elements' of countless constitutional doctrines nowhere appear in the Constitution's text. . . . The Constitution makes no mention, for example, of the First Amendment's 'actual malice' standard for proving certain libels, see New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). . . . Similarly, the Constitution makes no mention of the rational-basis test, or the specific verbal formulations of intermediate and strict scrutiny by which this Court evaluates claims under the Equal Protection Clause. The reason is simple. Like the Roe framework, these tests or standards are not, and do not purport to be, rights protected by the Constitution. Rather, they are judge-made methods for evaluating and measuring the strength and scope of constitutional rights or for balancing the constitutional rights of individuals against the competing interests of government." 492 U.S., at 548, 109 S.Ct., at 3072-3073.
  The second criticism is that the framework more closely resembles a regulatory code than a body of constitutional doctrine. Again, my answer remains the same as in Webster.
  "[I]f this were a true and genuine concern, we would have to abandon vast areas of our constitutional jurisprudence. . . . Are [the distinctions entailed in the trimester framework] any finer, or more 'regulatory,' than the distinctions we have often drawn in our First Amendment jurisprudence, where, for example, we have held that a 'release time' program permitting public-school students to leave school grounds during school hours receive religious instruction does not violate the Establishment Clause, even though a release-time program permitting religious instruction on school grounds does violate the Clause? Compare Zorach v. Clauson, 343 U.S. 306 [72 S.Ct. 679, 96 L.Ed. 954] (1952), with Illinois ex rel. McCollum v. Board of Education of School Dist. No. 71, Champaign County, 333 U.S. 203 [68 S.Ct. 461, 92 L.Ed. 649] (1948). . . . Similarly, in a Sixth Amendment case, the Court held that although an overnight ban on attorney-client communication violated the constitutionally guaranteed right to counsel, Geders v. United States, 425 U.S. 80 [96 S.Ct. 1330, 47 L.Ed.2d 592] (1976), that right was not violated when a trial judge separated a defendant from his lawyer during a 15-minute recess after the defendant's direct testimony. Perry v. Leake, 488 U.S. 272 [109 S.Ct. 594, 102 L.Ed.2d 624] (1989). That numerous constitutional doctrines result in narrow differentiations between similar circumstances does not mean that this Court has abandoned adjudication in favor of regulation." Id., at 549-550, 109 S.Ct., at 3073-3074.
  The final, and more genuine, criticism of the trimester framework is that it fails to find the State's interest in potential human life compelling throughout pregnancy. No member of this Court—nor for that matter, the Solicitor General, Tr. of Oral Arg. 42—has ever questioned our holding in Roe that an abortion is not "the termination of life entitled to Fourteenth Amendment protection." 410 U.S., at 159, 93 S.Ct., at 729-730. Accordingly, a State's interest in protecting fetal life is not grounded in the Constitution. Nor, consistent with our Establishment Clause, can it be a theological or sectarian interest. See Thornburgh, 476 U.S., at 778, 106 S.Ct., at 2188 (STEVENS, J., concurring). It is, instead, a legitimate interest grounded in humanitarian or pragmatic concerns. See ante, at ____ (opinion of STEVENS, J.).
  But while a State has "legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child," ante, at ____, legitimate interests are not enough. To overcome the burden of strict scrutiny, the interests must be compelling. The question then is how best to accommodate the State's interest in potential human life with the constitutional liberties of pregnant women. Again, I stand by the views I expressed in Webster:
  "I remain convinced, as six other Members of this Court 16 years ago were convinced, that the Roe framework, and the viability standard in particular, fairly, sensibly, and effectively functions to safeguard the constitutional liberties of pregnant women while recognizing and accommodating the State's interest in potential human life. The viability line reflects the biological facts and truths of fetal development; it marks that threshold moment prior to which a fetus cannot survive separate from the woman and cannot reasonably and objectively be regarded as a subject of rights or interests distinct from, or paramount to, those of the pregnant woman. At the same time, the viability standard takes account of the undeniable fact that as the fetus evolves into its postnatal form, and as it loses its dependence on the uterine environment, the State's interest in the fetus' potential human life, and in fostering a regard for human life in general, becomes compelling. As a practical matter, because viability follows 'quickening'—the point at which a woman feels movement in her womb—and because viability occurs no earlier than 23 weeks gestational age, it establishes an easily applicable standard for regulating abortion while providing a pregnant woman ample time to exercise her fundamental right with her responsible physician to terminate her pregnancy." 492 U.S., at 553-554, 109 S.Ct., at 3075-3076.6
  • Justice BLACKMUN, concurring in part, concurring in the judgment in part, and dissenting in part, pp.290-299

• In sum, Roe's requirement of strict scrutiny as implemented through a trimester framework should not be disturbed. No other approach has gained a majority, and no other is more protective of the woman's fundamental right. Lastly, no other approach properly accommodates the woman's constitutional right with the State's legitimate interests.
  • Justice BLACKMUN, concurring in part, concurring in the judgment in part, and dissenting in part, p.303

• At long last, THE CHIEF JUSTICE and those who have joined him admit it. Gone are the contentions that the issue need not be (or has not been) considered. There, on the first page, for all to see, is what was expected: "We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases." Post, at ____. If there is much reason to applaud the advances made by the joint opinion today, there is far more to fear from THE CHIEF JUSTICE's opinion.
  THE CHIEF JUSTICE's criticism of Roe follows from his stunted conception of individual liberty. While recognizing that the Due Process Clause protects more than simple physical liberty, he then goes on to construe this Court's personal-liberty cases as establishing only a laundry list of particular rights, rather than a principled account of how these particular rights are grounded in a more general right of privacy. Post, at ____. This constricted view is reinforced by THE CHIEF JUSTICE's exclusive reliance on tradition as a source of fundamental rights. He argues that the record in favor of a right to abortion is no stronger than the record in Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989), where the plurality found no fundamental right to visitation privileges by an adulterous father, or in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), where the Court found no fundamental right to engage in homosexual sodomy, or in a case involving the "firing of a gun . . . into another person's body." Post, at ____. In THE CHIEF JUSTICE's world, a woman considering whether to terminate a pregnancy is entitled to no more protection than adulterers, murderers, and so-called "sexual deviates."11 Given THE CHIEF JUSTICE's exclusive reliance on tradition, people using contraceptives seem the next likely candidate for his list of outcasts.
  • Justice BLACKMUN, concurring in part, concurring in the judgment in part, and dissenting in part, pp.317-318

• Nor does THE CHIEF JUSTICE give any serious consideration to the doctrine of stare decisis. For THE CHIEF JUSTICE, the facts that gave rise to Roe are surprisingly simple: "women become pregnant, there is a point somewhere, depending on medical technology, where a fetus becomes viable, and women give birth to children." Post, at ____. This characterization of the issue thus allows THE CHIEF JUSTICE quickly to discard the joint opinion's reliance argument by asserting that "reproductive planning could take . . . virtually immediate account of a decision overruling Roe." Id., at ____ (internal quotations omitted).
  • Justice BLACKMUN, concurring in part, concurring in the judgment in part, and dissenting in part, p.320

• The joint opinion, following its newly-minted variation on stare decisis, retains the outer shell of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), but beats a wholesale retreat from the substance of that case. We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases. We would adopt the approach of the plurality in Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), and uphold the challenged provisions of the Pennsylvania statute in their entirety.
  • Chief Justice REHNQUIST, with whom Justice WHITE, Justice SCALIA, and Justice THOMAS join, concurring in the judgment in part and dissenting in part; p.328

• In ruling on this case below, the Court of Appeals for the Third Circuit first observed that "this appeal does not directly implicate Roe; this case involves the regulation of abortions rather than their outright prohibition." 947 F.2d 682, 687 (1991).
  • Chief Justice REHNQUIST, with whom Justice WHITE, Justice SCALIA, and Justice THOMAS join, concurring in the judgment in part and dissenting in part; p.329

• In arguing that this Court should invalidate each of the provisions at issue, petitioners insist that we reaffirm our decision in Roe v. Wade, supra, in which we held unconstitutional a Texas statute making it a crime to procure an abortion except to save the life of the mother. We agree with the Court of Appeals that our decision in Roe is not directly implicated by the Pennsylvania statute, which does not prohibit, but simply regulates, abortion. But, as the Court of Appeals found, the state of our post-Roe decisional law dealing with the regulation of abortion is confusing and uncertain, indicating that a reexamination of that line of cases is in order. Unfortunately for those who must apply this Court's decisions, the reexamination undertaken today leaves the Court no less divided than beforehand. Although they reject the trimester framework that formed the underpinning of Roe, Justices O'CONNOR, KENNEDY, and SOUTER adopt a revised undue burden standard to analyze the challenged regulations. We conclude, however, that such an outcome is an unjustified constitutional compromise, one which leaves the Court in a position to closely scrutinize all types of abortion regulations despite the fact that it lacks the power to do so under the Constitution.
  In Roe, the Court opined that the State "does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, . . . and that it has still another important and legitimate interest in protecting the potentiality of human life." 410 U.S., at 162, 93 S.Ct., at 731 (emphasis omitted). In the companion case of Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), the Court referred to its conclusion in Roe "that a pregnant woman does not have an absolute constitutional right to an abortion on her demand." 410 U.S., at 189, 93 S.Ct., at 746. But while the language and holdings of these cases appeared to leave States free to regulate abortion procedures in a variety of ways, later decisions based on them have found considerably less latitude for such regulations than might have been expected.
  For example, after Roe, many States have sought to protect their young citizens by requiring that a minor seeking an abortion involve her parents in the decision. Some States have simply required notification of the parents, while others have required a minor to obtain the consent of her parents. In a number of decisions, however, the Court has substantially limited the States in their ability to impose such requirements. With regard to parental notice requirements, we initially held that a State could require a minor to notify her parents before proceeding with an abortion. H. L. v. Matheson, 450 U.S. 398, 407-410, 101 S.Ct. 1164, 1170-1172, 67 L.Ed.2d 388 (1981). Recently, however, we indicated that a State's ability to impose a notice requirement actually depends on whether it requires notice of one or both parents. We concluded that although the Constitution might allow a State to demand that notice be given to one parent prior to an abortion, it may not require that similar notice be given to two parents, unless the State incorporates a judicial bypass procedure in that two-parent requirement. Hodgson v. Minnesota, supra.
  • pp.330-332

• In Roe, the Court observed that certain States recognized the right of the father to participate in the abortion decision in certain circumstances. Because neither Roe nor Doe involved the assertion of any paternal right, the Court expressly stated that the case did not disturb the validity of regulations that protected such a right. Roe v. Wade, 410 U.S., at 165, n. 67, 93 S.Ct., at 732, n. 67. But three years later, in Danforth, the Court extended its abortion jurisprudence and held that a State could not require that a woman obtain the consent of her spouse before proceeding with an abortion. Planned Parenthood of Central Mo. v. Danforth, 428 U.S., at 69-71, 96 S.Ct., at 2841-2842.
  • p.334

• Although Roe allowed state regulation after the point of viability to protect the potential life of the fetus, the Court subsequently rejected attempts to regulate in this manner. In Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979), the Court struck down a statute that governed the determination of viability. Id., at 390-397, 99 S.Ct., at 683-687. In the process, we made clear that the trimester framework incorporated only one definition of viability—ours —as we forbade States from deciding that a certain objective indicator "be it weeks of gestation or fetal weight or any other single factor"—should govern the definition of viability. Id., at 389, 99 S.Ct., at 682. In that same case, we also invalidated a regulation requiring a physician to use the abortion technique offering the best chance for fetal survival when performing postviability abortions. See id., at 397-401, 99 S.Ct., at 686-689; see also Thornburgh v. American College of Obstetricians and Gynecologists, supra, 476 U.S., at 768-769, 106 S.Ct., at 2183 (invalidating a similar regulation). In Thornburgh, the Court struck down Pennsylvania's requirement that a second physician be present at postviability abortions to help preserve the health of the unborn child, on the ground that it did not incorporate a sufficient medical emergency exception. Id., at 769-771, 106 S.Ct., at 2183-2184. Regulations governing the treatment of aborted fetuses have met a similar fate. In Akron, we invalidated a provision requiring physicians performing abortions to "insure that the remains of the unborn child are disposed of in a humane and sanitary manner." 462 U.S., at 451, 103 S.Ct., at 2503 (internal quotation marks omitted).
  Dissents in these cases expressed the view that the Court was expanding upon Roe in imposing ever greater restrictions on the States. See Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S., at 783, 106 S.Ct., at 2190 (Burger, C. J., dissenting) ("The extent to which the Court has departed from the limitations expressed in Roe is readily apparent"); id., at 814, 106 S.Ct., at 2206 (WHITE, J., dissenting) ("[T]he majority indiscriminately strikes down statutory provisions that in no way contravene the right recognized in Roe"). And, when confronted with State regulations of this type in past years, the Court has become increasingly more divided: the three most recent abortion cases have not commanded a Court opinion. See Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990); Hodgson v. Minnesota, 497 U.S. 417, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990); Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989).
  The task of the Court of Appeals in the present case was obviously complicated by this confusion and uncertainty. Following Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), it concluded that in light of Webster and Hodgson, the strict scrutiny standard enunciated in Roe was no longer applicable, and that the "undue burden" standard adopted by Justice O'CONNOR was the governing principle. This state of confusion and disagreement warrants reexamination of the "fundamental right" accorded to a woman's decision to abort a fetus in Roe, with its concomitant requirement that any state regulation of abortion survive "strict scrutiny." See Payne v. Tennessee, 501 U.S. ----, ---- - ----, 111 S.Ct. 2597, 2609-2611, 115 L.Ed.2d 720 (1991) (observing that reexamination of constitutional decisions is appropriate when those decisions have generated uncertainty and failed to provide clear guidance, because "correction through legislative action is practically impossible" (internal quotation marks omitted)); Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 546-547, 557, 105 S.Ct. 1005, 1015, 1021, 83 L.Ed.2d 1016 (1985).
  • pp.337-339

• In Roe v. Wade, the Court recognized a "guarantee of personal privacy" which "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." 410 U.S., at 152-153, 93 S.Ct., at 727. We are now of the view that, in terming this right fundamental, the Court in Roe read the earlier opinions upon which it based its decision much too broadly. Unlike marriage, procreation and contraception, abortion "involves the purposeful termination of potential life." Harris v. McRae, 448 U.S. 297, 325, 100 S.Ct. 2671, 2692, 65 L.Ed.2d 784 (1980). The abortion decision must therefore "be recognized as sui generis, different in kind from the others that the Court has protected under the rubric of personal or family privacy and autonomy." Thornburgh v. American College of Obstetricians and Gynecologists, supra, 476 U.S., at 792, 106 S.Ct., at 2195 (WHITE, J., dissenting). One cannot ignore the fact that a woman is not isolated in her pregnancy, and that the decision to abort necessarily involves the destruction of a fetus. See Michael H. v. Gerald D., supra, 491 U.S., at 124, n. 4, 109 S.Ct., at 2342, n. 4 (To look "at the act which is assertedly the subject of a liberty interest in isolation from its effect upon other people [is] like inquiring whether there is a liberty interest in firing a gun where the case at hand happens to involve its discharge into another person's body").
  Nor do the historical traditions of the American people support the view that the right to terminate one's pregnancy is "fundamental." The common law which we inherited from England made abortion after "quickening" an offense. At the time of the adoption of the Fourteenth Amendment, statutory prohibitions or restrictions on abortion were commonplace; in 1868, at least 28 of the then-37 States and 8 Territories had statutes banning or limiting abortion. J. Mohr, Abortion in America 200 (1978). By the turn of the century virtually every State had a law prohibiting or restricting abortion on its books. By the middle of the present century, a liberalization trend had set in. But 21 of the restrictive abortion laws in effect in 1868 were still in effect in 1973 when Roe was decided, and an overwhelming majority of the States prohibited abortion unless necessary to preserve the life or health of the mother. Roe v. Wade, 410 U.S., at 139-140, 93 S.Ct., at 720; id., at 176-177, n. 2, 93 S.Ct., at 738-739, n. 2 (REHNQUIST, J., dissenting). On this record, it can scarcely be said that any deeply rooted tradition of relatively unrestricted abortion in our history supported the classification of the right to abortion as "fundamental" under the Due Process Clause of the Fourteenth Amendment.
  We think, therefore, both in view of this history and of our decided cases dealing with substantive liberty under the Due Process Clause, that the Court was mistaken in Roe when it classified a woman's decision to terminate her pregnancy as a "fundamental right" that could be abridged only in a manner which withstood "strict scrutiny." In so concluding, we repeat the observation made in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986):
  • pp.342-344

• We believe that the sort of constitutionally imposed abortion code of the type illustrated by our decisions following Roe is inconsistent "with the notion of a Constitution cast in general terms, as ours is, and usually speaking in general principles, as ours does." Webster v. Reproductive Health Services, 492 U.S., at 518, 109 S.Ct., at 3056 (plurality opinion). The Court in Roe reached too far when it analogized the right to abort a fetus to the rights involved in Pierce, Meyer, Loving, and Griswold, and thereby deemed the right to abortion fundamental.
  • p.346

• The joint opinion of Justices O'CONNOR, KENNEDY, and SOUTER cannot bring itself to say that Roe was correct as an original matter, but the authors are of the view that "the immediate question is not the soundness of Roe's resolution of the issue, but the precedential force that must be accorded to its holding." Ante, at ____. Instead of claiming that Roe was correct as a matter of original constitutional interpretation, the opinion therefore contains an elaborate discussion of stare decisis. This discussion of the principle of stare decisis appears to be almost entirely dicta, because the joint opinion does not apply that principle in dealing with Roe. Roe decided that a woman had a fundamental right to an abortion. The joint opinion rejects that view. Roe decided that abortion regulations were to be subjected to "strict scrutiny" and could be justified only in the light of "compelling state interests." The joint opinion rejects that view. Ante, at ____; see Roe v. Wade, supra, 410 U.S., at 162-164, 93 S.Ct., at 731-732. Roe analyzed abortion regulation under a rigid trimester framework, a framework which has guided this Court's decisionmaking for 19 years. The joint opinion rejects that framework. Ante, at ____.
  Stare decisis is defined in Black's Law Dictionary as meaning "to abide by, or adhere to, decided cases." Black's Law Dictionary 1406 (6th ed. 1990). Whatever the "central holding" of Roe that is left after the joint opinion finishes dissecting it is surely not the result of that principle. While purporting to adhere to precedent, the joint opinion instead revises it. Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality. Decisions following Roe, such as Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983), and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986), are frankly overruled in part under the "undue burden" standard expounded in the joint opinion. Ante, at ____.
  In our view, authentic principles of stare decisis do not require that any portion of the reasoning in Roe be kept intact. "Stare decisis is not . . . a universal, inexorable command," especially in cases involving the interpretation of the Federal Constitution. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405, 52 S.Ct. 443, 446, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting). Erroneous decisions in such constitutional cases are uniquely durable, because correction through legislative action, save for constitutional amendment, is impossible. It is therefore our duty to reconsider constitutional interpretations that "depar[t] from a proper understanding" of the Constitution. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S., at 557, 105 S.Ct., at 1020; see United States v. Scott, 437 U.S. 82, 101, 98 S.Ct. 2187, 2199, 57 L.Ed.2d 65 (1978) (" '[I]n cases involving the Federal Constitution, . . . [t]he Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.' " (quoting Burnet v. Coronado Oil & Gas Co., supra, 285 U.S., at 406-408, 52 S.Ct., at 447-448 (Brandeis, J., dissenting))); Smith v. Allwright, 321 U.S. 649, 665, 64 S.Ct. 757, 765, 88 L.Ed. 987 (1944). Our constitutional watch does not cease merely because we have spoken before on an issue; when it becomes clear that a prior constitutional interpretation is unsound we are obliged to reexamine the question. See, e.g., West Virginia State Bd. of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943); Erie R. Co. v. Tompkins, 304 U.S. 64, 74-78, 58 S.Ct. 817, 820-822, 82 L.Ed. 1188 (1938).
  The joint opinion discusses several stare decisis factors which, it asserts, point toward retaining a portion of Roe. Two of these factors are that the main "factual underpinning" of Roe has remained the same, and that its doctrinal foundation is no weaker now than it was in 1973. Ante, at ____. Of course, what might be called the basic facts which gave rise to Roe have remained the same—women become pregnant, there is a point somewhere, depending on medical technology, where a fetus becomes viable, and women give birth to children. But this is only to say that the same facts which gave rise to Roe will continue to give rise to similar cases. It is not a reason, in and of itself, why those cases must be decided in the same incorrect manner as was the first case to deal with the question. And surely there is no requirement, in considering whether to depart from stare decisis in a constitutional case, that a decision be more wrong now than it was at the time it was rendered. If that were true, the most outlandish constitutional decision could survive forever, based simply on the fact that it was no more outlandish later than it was when originally rendered.
  Nor does the joint opinion faithfully follow this alleged requirement. The opinion frankly concludes that Roe and its progeny were wrong in failing to recognize that the State's interests in maternal health and in the protection of unborn human life exist throughout pregnancy. Ante, ____. But there is no indication that these components of Roe are any more incorrect at this juncture than they were at its inception.
  • pp.347-351

• The Court today cuts back on the protection afforded by Roe, and no one claims that this action defeats any reliance interest in the disavowed trimester framework. Similarly, reliance interests would not be diminished were the Court to go further and acknowledge the full error of Roe, as "reproductive planning could take virtually immediate account of" this action. Ante, at ____.
  • p.352

• The joint opinion thus turns to what can only be described as an unconventional—and unconvincing —notion of reliance, a view based on the surmise that the availability of abortion since Roe has led to "two decades of economic and social developments" that would be undercut if the error of Roe were recognized. Ibid. The joint opinion's assertion of this fact is undeveloped and totally conclusory. In fact, one can not be sure to what economic and social developments the opinion is referring. Surely it is dubious to suggest that women have reached their "places in society" in reliance upon Roe, rather than as a result of their determination to obtain higher education and compete with men in the job market, and of society's increasing recognition of their ability to fill positions that were previously thought to be reserved only for men. Ibid.
  In the end, having failed to put forth any evidence to prove any true reliance, the joint opinion's argument is based solely on generalized assertions about the national psyche, on a belief that the people of this country have grown accustomed to the Roe decision over the last 19 years and have "ordered their thinking and living around" it. Ibid. As an initial matter, one might inquire how the joint opinion can view the "central holding" of Roe as so deeply rooted in our constitutional culture, when it so casually uproots and disposes of that same decision's trimester framework. Furthermore, at various points in the past, the same could have been said about this Court's erroneous decisions that the Constitution allowed "separate but equal" treatment of minorities, see Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), or that "liberty" under the Due Process Clause protected "freedom of contract." See Adkins v. Children's Hospital of D.C., 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785 (1923); Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905). The "separate but equal" doctrine lasted 58 years after Plessy, and Lochner's protection of contractual freedom lasted 32 years. However, the simple fact that a generation or more had grown used to these major decisions did not prevent the Court from correcting its errors in those cases, nor should it prevent us from correctly interpreting the Constitution here. See Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (rejecting the "separate but equal" doctrine); West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937) (overruling Adkins v. Children's Hospital, supra, in upholding Washington's minimum wage law).
  Apparently realizing that conventional stare decisis principles do not support its position, the joint opinion advances a belief that retaining a portion of Roe is necessary to protect the "legitimacy" of this Court. Ante, at ____. Because the Court must take care to render decisions "grounded truly in principle," and not simply as political and social compromises, ante, at ____, the joint opinion properly declares it to be this Court's duty to ignore the public criticism and protest that may arise as a result of a decision. Few would quarrel with this statement, although it may be doubted that Members of this Court, holding their tenure as they do during constitutional "good behavior," are at all likely to be intimidated by such public protests.
  But the joint opinion goes on to state that when the Court "resolve[s] the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases," its decision is exempt from reconsideration under established principles of stare decisis in constitutional cases. Ante, at ____. This is so, the joint opinion contends, because in those "intensely divisive" cases the Court has "call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution," and must therefore take special care not to be perceived as "surrender[ing] to political pressure" and continued opposition. Ante, at 2815. This is a truly novel principle, one which is contrary to both the Court's historical practice and to the Court's traditional willingness to tolerate criticism of its opinions. Under this principle, when the Court has ruled on a divisive issue, it is apparently prevented from overruling that decision for the sole reason that it was incorrect, unless opposition to the original decision has died away.
  • pp.353-356

• The joint opinion picks out and discusses two prior Court rulings that it believes are of the "intensely divisive" variety, and concludes that they are of comparable dimension to Roe. Ante, at ____ (discussing Lochner v. New York, supra, and Plessy v. Ferguson, supra). It appears to us very odd indeed that the joint opinion chooses as benchmarks two cases in which the Court chose not to adhere to erroneous constitutional precedent, but instead enhanced its stature by acknowledging and correcting its error, apparently in violation of the joint opinion's "legitimacy" principle. See West Coast Hotel Co. v. Parrish, supra; Brown v. Board of Education, supra. One might also wonder how it is that the joint opinion puts these, and not others, in the "intensely divisive" category, and how it assumes that these are the only two lines of cases of comparable dimension to Roe. There is no reason to think that either Plessy or Lochner produced the sort of public protest when they were decided that Roe did. There were undoubtedly large segments of the bench and bar who agreed with the dissenting views in those cases, but surely that cannot be what the Court means when it uses the term "intensely divisive," or many other cases would have to be added to the list. In terms of public protest, however, Roe, so far as we know, was unique. But just as the Court should not respond to that sort of protest by retreating from the decision simply to allay the concerns of the protesters, it should likewise not respond by determining to adhere to the decision at all costs lest it seem to be retreating under fire. Public protests should not alter the normal application of stare decisis, lest perfectly lawful protest activity be penalized by the Court itself.
  • p.358

• The joint opinion also agrees that the Court acted properly in rejecting the doctrine of "separate but equal" in Brown. In fact, the opinion lauds Brown in comparing it to Roe. Ante, at ____. This is strange, in that under the opinion's "legitimacy" principle the Court would seemingly have been forced to adhere to its erroneous decision in Plessy because of its "intensely divisive" character. To us, adherence to Roe today under the guise of "legitimacy" would seem to resemble more closely adherence to Plessy on the same ground. Fortunately, the Court did not choose that option in Brown, and instead frankly repudiated Plessy. The joint opinion concludes that such repudiation was justified only because of newly discovered evidence that segregation had the effect of treating one race as inferior to another. But it can hardly be argued that this was not urged upon those who decided Plessy, as Justice Harlan observed in his dissent that the law at issue "puts the brand of servitude and degradation upon a large class of our fellow-citizens, our equals before the law." Plessy v. Ferguson, 163 U.S., at 562, 16 S.Ct., at 1147 (Harlan, J., dissenting). It is clear that the same arguments made before the Court in Brown were made in Plessy as well. The Court in Brown simply recognized, as Justice Harlan had recognized beforehand, that the Fourteenth Amendment does not permit racial segregation. The rule of Brown is not tied to popular opinion about the evils of segregation; it is a judgment that the Equal Protection Clause does not permit racial segregation, no matter whether the public might come to believe that it is beneficial. On that ground it stands, and on that ground alone the Court was justified in properly concluding that the Plessy Court had erred.
  • p.363

• There are other reasons why the joint opinion's discussion of legitimacy is unconvincing as well. In assuming that the Court is perceived as "surrender[ing] to political pressure" when it overrules a controversial decision, ante, at ____, the joint opinion forgets that there are two sides to any controversy. The joint opinion asserts that, in order to protect its legitimacy, the Court must refrain from overruling a controversial decision lest it be viewed as favoring those who oppose the decision. But a decision to adhere to prior precedent is subject to the same criticism, for in such a case one can easily argue that the Court is responding to those who have demonstrated in favor of the original decision. The decision in Roe has engendered large demonstrations, including repeated marches on this Court and on Congress, both in opposition to and in support of that opinion. A decision either way on Roe can therefore be perceived as favoring one group or the other. But this perceived dilemma arises only if one assumes, as the joint opinion does, that the Court should make its decisions with a view toward speculative public perceptions. If one assumes instead, as the Court surely did in both Brown and West Coast Hotel, that the Court's legitimacy is enhanced by faithful interpretation of the Constitution irrespective of public opposition, such self-engendered difficulties may be put to one side.
  Roe is not this Court's only decision to generate conflict. Our decisions in some recent capital cases, and in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), have also engendered demonstrations in opposition. The joint opinion's message to such protesters appears to be that they must cease their activities in order to serve their cause, because their protests will only cement in place a decision which by normal standards of stare decisis should be reconsidered. Nearly a century ago, Justice David J. Brewer of this Court, in an article discussing criticism of its decisions, observed that "many criticisms may be, like their authors, devoid of good taste, but better all sorts of criticism than no criticism at all." Justice Brewer on "The Nation's Anchor," 57 Albany L.J. 166, 169 (1898). This was good advice to the Court then, as it is today. Strong and often misguided criticism of a decision should not render the decision immune from reconsideration, lest a fetish for legitimacy penalize freedom of expression.
  The end result of the joint opinion's paeans of praise for legitimacy is the enunciation of a brand new standard for evaluating state regulation of a woman's right to abortion—the "undue burden" standard. As indicated above, Roe v. Wade adopted a "fundamental right" standard under which state regulations could survive only if they met the requirement of "strict scrutiny." While we disagree with that standard, it at least had a recognized basis in constitutional law at the time Roe was decided. The same cannot be said for the "undue burden" standard, which is created largely out of whole cloth by the authors of the joint opinion. It is a standard which even today does not command the support of a majority of this Court. And it will not, we believe, result in the sort of "simple limitation," easily applied, which the joint opinion anticipates. Ante, at ____. In sum, it is a standard which is not built to last.
  • pp.365-367

• The sum of the joint opinion's labors in the name of stare decisis and "legitimacy" is this: Roe v. Wade stands as a sort of judicial Potemkin Village, which may be pointed out to passers by as a monument to the importance of adhering to precedent. But behind the facade, an entirely new method of analysis, without any roots in constitutional law, is imported to decide the constitutionality of state laws regulating abortion. Neither stare decisis nor "legitimacy" are truly served by such an effort.
  • p.370

• We conclude that this required presentation of "balanced information" is rationally related to the State's legitimate interest in ensuring that the woman's consent is truly informed, Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S., at 830, 106 S.Ct., at 2215 (O'CONNOR, J., dissenting), and in addition furthers the State's interest in preserving unborn life. That the information might create some uncertainty and persuade some women to forgo abortions does not lead to the conclusion that the Constitution forbids the provision of such information. Indeed, it only demonstrates that this information might very well make a difference, and that it is therefore relevant to a woman's informed choice. Cf. id., at 801, 106 S.Ct., at 2200 (WHITE, J., dissenting) ("[T]he ostensible objective of Roe v. Wade is not maximizing the number of abortions, but maximizing choice"). We acknowledge that in Thornburgh this Court struck down informed consent requirements similar to the ones at issue here. See id., at 760-764, 106 S.Ct., at 2178-2181. It is clear, however, that while the detailed framework of Roe led to the Court's invalidation of those informational requirements, they "would have been sustained under any traditional standard of judicial review, . . . or for any other surgical procedure except abortion." Webster v. Reproductive Health Services, 492 U.S., at 517, 109 S.Ct., at 3056 (plurality opinion) (citing Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S., at 802, 106 S.Ct., at 2200 (WHITE, J., dissenting); id., at 783, 106 S.Ct., at 2190 (Burger, C.J., dissenting)). In light of our rejection of Roe's "fundamental right" approach to this subject, we do not regard Thornburgh as controlling.
  • p.376

• Assuming that the question before us is to be resolved at such a level of philosophical abstraction, in such isolation from the traditions of American society, as by simply applying "reasoned judgment," I do not see how that could possibly have produced the answer the Court arrived at in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Today's opinion describes the methodology of Roe, quite accurately, as weighing against the woman's interest the State's " 'important and legitimate interest in protecting the potentiality of human life.' " Ante, at ____ (quoting Roe, supra, at 162, 93 S.Ct., at 731). But "reasoned judgment" does not begin by begging the question, as Roe and subsequent cases unquestionably did by assuming that what the State is protecting is the mere "potentiality of human life." See, e.g., Roe, supra, at 162, 93 S.Ct., at 731; Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 61, 96 S.Ct. 2831, 2837, 49 L.Ed.2d 788 (1976); Colautti v. Franklin, 439 U.S. 379, 386, 99 S.Ct. 675, 681, 58 L.Ed.2d 596 (1979); Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 428, 103 S.Ct. 2481, 2491, 76 L.Ed.2d 687 (1983) (Akron I ); Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 482, 103 S.Ct. 2517, 2520, 76 L.Ed.2d 733 (1983). The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn child is a human life. Thus, whatever answer Roe came up with after conducting its "balancing" is bound to be wrong, unless it is correct that the human fetus is in some critical sense merely potentially human. There is of course no way to determine that as a legal matter; it is in fact a value judgment. Some societies have considered newborn children not yet human, or the incompetent elderly no longer so.
  The authors of the joint opinion, of course, do not squarely contend that Roe v. Wade was a correct application of "reasoned judgment"; merely that it must be followed, because of stare decisis. Ante, at ____. But in their exhaustive discussion of all the factors that go into the determination of when stare decisis should be observed and when disregarded, they never mention "how wrong was the decision on its face?" Surely, if "[t]he Court's power lies . . . in its legitimacy, a product of substance and perception," ante, at ____, the "substance" part of the equation demands that plain error be acknowledged and eliminated. Roe was plainly wrong—even on the Court's methodology of "reasoned judgment," and even more so (of course) if the proper criteria of text and tradition are applied.
  The emptiness of the "reasoned judgment" that produced Roe is displayed in plain view by the fact that, after more than 19 years of effort by some of the brightest (and most determined) legal minds in the country, after more than 10 cases upholding abortion rights in this Court, and after dozens upon dozens of amicus briefs submitted in this and other cases, the best the Court can do to explain how it is that the word "liberty" must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice. The right to abort, we are told, inheres in "liberty" because it is among "a person's most basic decisions," ante, at ____; it involves a "most intimate and personal choic[e]," ante, at ____; it is "central to personal dignity and autonomy," ibid.; it "originate[s] within the zone of conscience and belief," ibid.; it is "too intimate and personal" for state interference, ante, at ____; it reflects "intimate views" of a "deep, personal character," ante, at ____; it involves "intimate relationships," and notions of "personal autonomy and bodily integrity," ante, at ____; and it concerns a particularly " 'important decisio[n],' " ante, at ____ (citation omitted).2 But it is obvious to anyone applying "reasoned judgment" that the same adjectives can be applied to many forms of conduct that this Court (including one of the Justices in today's majority, see Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986)) has held are not entitled to constitutional protection—because, like abortion, they are forms of conduct that have long been criminalized in American society. Those adjectives might be applied, for example, to homosexual sodomy, polygamy, adult incest, and suicide, all of which are equally "intimate" and "deep[ly] personal" decisions involving "personal autonomy and bodily integrity," and all of which can constitutionally be proscribed because it is our unquestionable constitutional tradition that they are proscribable. It is not reasoned judgment that supports the Court's decision; only personal predilection.
  • Justice SCALIA, with whom THE CHIEF JUSTICE, Justice WHITE, and Justice THOMAS join, concurring in the judgment in part and dissenting in part, pp.399-401

• One might have feared to encounter this august and sonorous phrase in an opinion defending the real Roe v. Wade, rather than the revised version fabricated today by the authors of the joint opinion. The shortcomings of Roe did not include lack of clarity: Virtually all regulation of abortion before the third trimester was invalid. But to come across this phrase in the joint opinion which calls upon federal district judges to apply an "undue burden" standard as doubtful in application as it is unprincipled in origin—is really more than one should have to bear.
  • p.405

• The ultimately standardless nature of the "undue burden" inquiry is a reflection of the underlying fact that the concept has no principled or coherent legal basis. As THE CHIEF JUSTICE points out, Roe's strict-scrutiny standard "at least had a recognized basis in constitutional law at the time Roe was decided," ante, at ____, while "[t]he same cannot be said for the 'undue burden' standard, which is created largely out of whole cloth by the authors of the joint opinion," ibid. The joint opinion is flatly wrong in asserting that "our jurisprudence relating to all liberties save perhaps abortion has recognized" the permissibility of laws that do not impose an "undue burden." Ante, at ____. It argues that the abortion right is similar to other rights in that a law "not designed to strike at the right itself, [but which] has the incidental effect of making it more difficult or more expensive to [exercise the right,]" is not invalid. Ante, at ____. I agree, indeed I have forcefully urged, that a law of general applicability which places only an incidental burden on a fundamental right does not infringe that right, see R.A.V. v. St. Paul, 505 U.S. ----, ----, --- S.Ct. ----, ----, --- L.Ed.2d ---- (1992) (slip op., at 11); Employment Division, Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 878-882, 110 S.Ct. 1595, ----, 108 L.Ed.2d 876 (1990), but that principle does not establish the quite different (and quite dangerous) proposition that a law which directly regulates a fundamental right will not be found to violate the Constitution unless it imposes an "undue burden." It is that, of course, which is at issue here: Pennsylvania has consciously and directly regulated conduct that our cases have held is constitutionally protected. The appropriate analogy, therefore, is that of a state law requiring purchasers of religious books to endure a 24-hour waiting period, or to pay a nominal additional tax of 1¢. The joint opinion cannot possibly be correct in suggesting that we would uphold such legislation on the ground that it does not impose a "substantial obstacle" to the exercise of First Amendment rights. The "undue burden" standard is not at all the generally applicable principle the joint opinion pretends it to be; rather, it is a unique concept created specially for this case, to preserve some judicial foothold in this ill-gotten territory. In claiming otherwise, the three Justices show their willingness to place all constitutional rights at risk in an effort to preserve what they deem the "central holding in Roe," ante, at ____.
  • p.408

• Thus, despite flowery rhetoric about the State's "substantial" and "profound" interest in "potential human life," and criticism of Roe for undervaluing that interest, the joint opinion permits the State to pursue that interest only so long as it is not too successful. As Justice BLACKMUN recognizes (with evident hope), ante, at ____, the "undue burden" standard may ultimately require the invalidation of each provision upheld today if it can be shown, on a better record, that the State is too effectively "express[ing] a preference for childbirth over abortion," ante, at ____. Reason finds no refuge in this jurisprudence of confusion.
  • p.412

• The Court's reliance upon stare decisis can best be described as contrived. It insists upon the necessity of adhering not to all of Roe, but only to what it calls the "central holding." It seems to me that stare decisis ought to be applied even to the doctrine of stare decisis, and I confess never to have heard of this new, keep-what-you-want-and-throw-away-the-rest version. I wonder whether, as applied to Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), for example, the new version of stare decisis would be satisfied if we allowed courts to review the constitutionality of only those statutes that (like the one in Marbury) pertain to the jurisdiction of the courts.
  I am certainly not in a good position to dispute that the Court has saved the "central holding" of Roe, since to do that effectively I would have to know what the Court has saved, which in turn would require me to understand (as I do not) what the "undue burden" test means. I must confess, however, that I have always thought, and I think a lot of other people have always thought, that the arbitrary trimester framework, which the Court today discards, was quite as central to Roe as the arbitrary viability test, which the Court today retains. It seems particularly ungrateful to carve the trimester framework out of the core of Roe, since its very rigidity (in sharp contrast to the utter indeterminability of the "undue burden" test) is probably the only reason the Court is able to say, in urging stare decisis, that Roe "has in no sense proven 'unworkable,' " ante, at ____. I suppose the Court is entitled to call a "central holding" whatever it wants to call a "central holding"—which is, come to think of it, perhaps one of the difficulties with this modified version of stare decisis. I thought I might note, however, that the following portions of Roe have not been saved:
  Under Roe, requiring that a woman seeking an abortion be provided truthful information about abortion before giving informed written consent is unconstitutional, if the information is designed to influence her choice, Thornburgh, 476 U.S., at 759-765, 106 S.Ct., at 2178-2181; Akron I, 462 U.S., at 442-445, 103 S.Ct., at 2499-2500. Under the joint opinion's "undue burden" regime (as applied today, at least) such a requirement is constitutional, ante, at ____.
  Under Roe, requiring that information be provided by a doctor, rather than by nonphysician counselors, is unconstitutional, Akron I, supra, at 446-449, 103 S.Ct., at 2501-2502. Under the "undue burden" regime (as applied today, at least) it is not, ante, at ____.
  Under Roe, requiring a 24-hour waiting period between the time the woman gives her informed consent and the time of the abortion is unconstitutional, Akron I, supra, at 449-451, 103 S.Ct., at 2502-2503. Under the "undue burden" regime (as applied today, at least) it is not, ante, at ____.
  Under Roe, requiring detailed reports that include demographic data about each woman who seeks an abortion and various information about each abortion is unconstitutional, Thornburgh, supra, 476 U.S., at 765-768, 106 S.Ct., at 2181-2183. Under the "undue burden" regime (as applied today, at least) it generally is not, ante, at ____.
  • pp.415-420

• The Court's description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue—as it does over other issues, such as the death penalty—but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state-by-state resolution, but also that those results would be more stable. Pre-Roe, moreover, political compromise was possible.
  Roe's mandate for abortion-on-demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level. At the same time, Roe created a vast new class of abortion consumers and abortion proponents by eliminating the moral opprobrium that had attached to the act. ("If the Constitution guarantees abortion, how can it be bad?"—not an accurate line of thought, but a natural one.) Many favor all of those developments, and it is not for me to say that they are wrong. But to portray Roe as the statesmanlike "settlement" of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing less than Orwellian. Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption, rather than of any pax Roeana, that the Court's new majority decrees.
  • pp.423-424

• It is particularly difficult, in the circumstances of the present decision, to sit still for the Court's lengthy lecture upon the virtues of "constancy," ante, at ____, of "remain[ing] steadfast," id., at 2815, of adhering to "principle," id., passim. Among the five Justices who purportedly adhere to Roe, at most three agree upon the principle that constitutes adherence (the joint opinion's "undue burden" standard)—and that principle is inconsistent with Roe, see 410 U.S., at 154-156, 93 S.Ct., at 727-728.7 To make matters worse, two of the three, in order thus to remain steadfast, had to abandon previously stated positions. See n. 4 supra; see supra, at ____. It is beyond me how the Court expects these accommodations to be accepted "as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make." Ante, at ____. The only principle the Court "adheres" to, it seems to me, is the principle that the Court must be seen as standing by Roe. That is not a principle of law (which is what I thought the Court was talking about), but a principle of Realpolitik—and a wrong one at that.
  I cannot agree with, indeed I am appalled by, the Court's suggestion that the decision whether to stand by an erroneous constitutional decision must be strongly influenced—against overruling, no less—by the substantial and continuing public opposition the decision has generated. The Court's judgment that any other course would "subvert the Court's legitimacy" must be another consequence of reading the error-filled history book that described the deeply divided country brought together by Roe. In my history-book, the Court was covered with dishonor and deprived of legitimacy by Dred Scott v. Sandford, 19 How. 393, 15 L.Ed. 691 (1857), an erroneous (and widely opposed) opinion that it did not abandon, rather than by West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937), which produced the famous "switch in time" from the Court's erroneous (and widely opposed) constitutional opposition to the social measures of the New Deal. (Both Dred Scott and one line of the cases resisting the New Deal rested upon the concept of "substantive due process" that the Court praises and employs today. Indeed, Dred Scott was "very possibly the first application of substantive due process in the Supreme Court, the original precedent for Lochner v. New York and Roe v. Wade." D. Currie, The Constitution in the Supreme Court 271 (1985) (footnotes omitted).)
  But whether it would "subvert the Court's legitimacy" or not, the notion that we would decide a case differently from the way we otherwise would have in order to show that we can stand firm against public disapproval is frightening. It is a bad enough idea, even in the head of someone like me, who believes that the text of the Constitution, and our traditions, say what they say and there is no fiddling with them. But when it is in the mind of a Court that believes the Constitution has an evolving meaning, see ante, at ____; that the Ninth Amendment's reference to "othe[r]" rights is not a disclaimer, but a charter for action, ibid.; and that the function of this Court is to "speak before all others for [the people's] constitutional ideals" unrestrained by meaningful text or tradition—then the notion that the Court must adhere to a decision for as long as the decision faces "great opposition" and the Court is "under fire" acquires a character of almost czarist arrogance. We are offended by these marchers who descend upon us, every year on the anniversary of Roe, to protest our saying that the Constitution requires what our society has never thought the Constitution requires. These people who refuse to be "tested by following" must be taught a lesson. We have no Cossacks, but at least we can stubbornly refuse to abandon an erroneous opinion that we might otherwise change—to show how little they intimidate us.
  Of course, as THE CHIEF JUSTICE points out, we have been subjected to what the Court calls "political pressure" by both sides of this issue. Ante, at 2865. Maybe today's decision not to overrule Roe will be seen as buckling to pressure from that direction. Instead of engaging in the hopeless task of predicting public perception—a job not for lawyers but for political campaign managers—the Justices should do what is legally right by asking two questions: (1) Was Roe correctly decided? (2) Has Roe succeeded in producing a settled body of law? If the answer to both questions is no, Roe should undoubtedly be overruled.
  • pp.433-436

• The joint opinion agrees with Roe's conclusion that viability occurs at 23 or 24 weeks at the earliest. Compare ante, at ____, with 410 U.S., at 160, 93 S.Ct., at 730.
  • Casey, 505 U.S. at 6.

• Justice SCALIA urges the Court to "get out of this area" and leave questions regarding abortion entirely to the States. Post, at ----. Putting aside the fact that what he advocates is nothing short of an abdication by the Court of its constitutional responsibilities, Justice SCALIA is uncharacteristically naive if he thinks that overruling Roe and holding that restrictions on a woman's right to an abortion are subject only to rational-basis review will enable the Court henceforth to avoid reviewing abortion-related issues. State efforts to regulate and prohibit abortion in a post-Roe world undoubtedly would raise a host of distinct and important constitutional questions meriting review by this Court. For example, does the Eighth Amendment impose any limits on the degree or kind of punishment a State can inflict upon physicians who perform, or women who undergo, abortions? What effect would differences among States in their approaches to abortion have on a woman's right to engage in interstate travel? Does the First Amendment permit States that choose not to criminalize abortion to ban all advertising providing information about where and how to obtain abortions?
  • Casey, 505 U.S. at 12.

• Of course Justice O'CONNOR was correct in her former view. The arbitrariness of the viability line is confirmed by the Court's inability to offer any justification for it beyond the conclusory assertion that it is only at that point that the unborn child's life "can in reason and all fairness" be thought to override the interests of the mother, ante, at ____. Precisely why is it that, at the magical second when machines currently in use (though not necessarily available to the particular woman) are able to keep an unborn child alive apart from its mother, the creature is suddenly able (under our Constitution) to be protected by law, whereas before that magical second it was not? That makes no more sense than according infants legal protection only after the point when they can feed themselves.
  • Casey, 505 U.S. at 989 n.5 (Scalia, J., concurring in part and dissenting in part).

"Symposium on Anita Bernstein’s The Common Law Inside the Female Body"

"Symposium on Anita Bernstein’s The Common Law Inside the Female Body" by David S. Cohen, Northwestern University Law Review, Volume 114

• One of the competing narratives about Roe v. Wade is that the Supreme Court invented the constitutional right to abortion out of whole cloth. Nothing in the Constitution or American history or law, so the narrative goes, supports this right. Rather, seven unelected lawyers who are unaccountable to the American public inscribed it into the United States Reporter simply because they thought it was the right thing to do.
  Not so, says Professor Anita Bernstein in her intriguing new book, The Common Law Inside the Female Body. As Bernstein argues, the common law, a source of law usually associated with the interests of conservative, propertied, old white men, is actually a powerful source of liberty for women. In particular, the common law’s central command—that people are free to say “Do Not Want” with respect to their bodies, property, and money—applies to women. Bernstein’s application of this central command in two different legal contexts arising “inside the female body” means that the common law protects a right for women to say no to penetration and unwanted pregnancy. It is this latter right that directly challenges the notion that the Supreme Court invented the right to abortion in Roe.
  • pp.140-141

• The common law right identified by Bernstein would find that all of these bans violate the woman’s right to terminate. Bernstein’s analysis does not depend, as many abortion rights arguments do, on the fetus being anything less than a full human being with personhood rights. Under her analysis, even if the fetus is a fully legal person, the pregnant woman has a right to say Do Not Want, just as a land owner can use deadly force to remove another person from her property. Bernstein recognizes that this is where the “common law diverges most sharply from Roe,” since Roe and its progeny tolerate abortion bans at viability (roughly twenty-four weeks of pregnancy) because of the value of protecting the state’s interest in potential life. The common law, on the other hand, permits abortion “at any stage of pregnancy.” For women who face the prospects of choosing an abortion after twenty weeks, Bernstein’s position would prohibit states from stopping them from exercising their liberty to say no. Although, as Bernstein recognizes, this position would depart dramatically from the doctrine of Roe, there are several states in the country that do in fact allow people to terminate their pregnancies after viability, implicitly recognizing the value of letting women decide—at any stage of pregnancy—what they Do Not Want in their bodies.
  • pp.144-145

Colautti v. Franklin, 439 U.S. 379 (1979)

Colautti v. Franklin, 439 U.S. 379 (1979), justia.com

• Three cases in the sensitive and earnestly contested abortion area provide essential background for the present controversy.
  In Roe v. Wade, 410 U. S. 113 (1973), this Court concluded that there is a right of privacy, implicit in the liberty secured by the Fourteenth Amendment, that "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Id. at 410 U. S. 153. This right, we said, although fundamental, is not absolute or unqualified, and must be considered against important state interests in the health of the pregnant woman and in the potential life of the fetus.
  "These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes 'compelling.'"
  Id. at 410 U. S. 162-163. For both logical and biological reasons, we indicated that the State's interest in the potential life of the fetus reaches the compelling point at the stage of viability. Hence, prior to viability, the State may not seek to further this interest by directly restricting a woman's decision whether or not to terminate her pregnancy. [Footnote 7] But after viability, the State, if it chooses, may regulate or even prohibit abortion except where necessary, in appropriate medical judgment, to preserve the life or health of the pregnant woman. Id. at 410 U. S. 163-164.
  We did not undertake in Roe to examine the various factors that may enter into the determination of viability. We simply observed that, in the medical and scientific communities, a fetus is considered viable if it is "potentially able to live outside the mother's womb, albeit with artificial aid." Id. at 410 U. S. 160. We added that there must be a potentiality of "meaningful life," id. at 410 U. S. 163, not merely momentary survival. And we noted that viability "is usually placed at about seven months (28 weeks), but may occur earlier, even at 24 weeks." Id. at 410 U. S. 160. We thus left the point flexible for anticipated advancements in medical skill.
  Roe stressed repeatedly the central role of the physician, both in consulting with the woman about whether or not to have an abortion and in determining how any abortion was to be carried out. We indicated that, up to the points where important state interests provide compelling justifications for intervention, "the abortion decision, in all its aspects, is inherently, and primarily, a medical decision," id. at 410 U. S. 166, and we added that, if this privilege were abused, "the usual remedies, judicial and intra-professional, are available." Ibid.
  Roe's companion case, Doe v. Bolton, 410 U. S. 179 (1973), underscored the importance of affording the physician adequate discretion in the exercise of his medical judgment. After the Court there reiterated that "a pregnant woman does not have an absolute constitutional right to an abortion on her demand," id. at 410 U. S. 189, the Court discussed, in a vagueness attack context, the Georgia statute's requirement that a physician's decision to perform an abortion must rest upon "his best clinical judgment." The Court found it critical that that judgment "may be exercised in the light of all factors -- physical, emotional, psychological, familial, and the woman's age -- relevant to the wellbeing of the patient." Id. at 410 U. S. 192.
  • MR. JUSTICE BLACKMUN delivered the opinion of the Court, pp.386-388

• In Roe v. Wade, the Court defined the term "viability" to signify the stage at which a fetus is "potentially able to live outside the mother's womb, albeit with artificial aid." This is the point at which the State's interest in protecting fetal life becomes sufficiently strong to permit it to "go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother." 410 U.S. at 410 U. S. 163-164.
  The Court obviously crafted its definition of viability with some care, and it chose to define that term not as that stage of development at which the fetus actually is able or actually has the ability to survive outside the mother's womb, with or without artificial aid, but as that point at which the fetus is potentially able to survive. In the ordinary usage of these words, being able and being potentially able do not mean the same thing. Potential ability is not actual ability. It is ability "[e]xisting in possibility, not in actuality." Webster's New International Dictionary (2d ed.1958). The Court's definition of viability in Roe v. Wade reaches an earlier point in the development of the fetus than that stage at which a doctor could say with assurance that the fetus would survive outside the womb.
  It was against this background that the Pennsylvania statute at issue here was adopted, and the District Court's judgment was entered. Insofar as Roe v. Wade was concerned, Pennsylvania could have defined viability in the language of that case -- "potentially able to live outside the mother's womb" -- and could have forbidden all abortions after this stage of any pregnancy. The Pennsylvania Act, however, did not go so far. It forbade entirely only those abortions where the fetus had attained viability as defined in § 2 of the Act, that is, where the fetus had "the capability . . . to live outside the mother's womb albeit with artificial aid." Pa.Stat.Ann., Tit. 35, § 6602 (Purdon 1977) (emphasis added). But the State, understanding that it also had the power under Roe v. Wade to regulate where the fetus was only "potentially able" to exist outside the womb, also sought to regulate, but not forbid, abortions where there was sufficient reason to believe that the fetus "may be viable"; this language was reasonably believed by the State to be equivalent to what the Court meant in 1973 by the term "potentially able to live outside the mother's womb." Under § 5(a), abortionists must not only determine whether the fetus is viable but also whether there is sufficient reason to believe that the fetus may be viable. If either condition exists, the method of abortion is regulated, and a standard of care imposed. Under § 5(d), breach of these regulations exposes the abortionist to the civil and criminal penalties that would be applicable if a live birth, rather than an abortion, had been intended.
  • MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, dissenting, pp.401-403

• Although it seems to me that the Court has considerably narrowed the scope of the power to forbid and regulate abortions that the States could reasonably have expected to enjoy under Roe and Danforth, the Court has not yet invalidated a statute simply requiring abortionists to determine whether a fetus is viable and forbidding the abortion of a viable fetus except where necessary to save the life or health of the mother. Nor has it yet ruled that the abortionist's determination of viability under such a standard must be final and is immune to civil or criminal attack. Sections 2 and 6(b) of the Pennsylvania law, for example, remain undisturbed by the District Court's judgment or by the judgment of this Court.
  What the Court has done is to issue a warning to the States, in the name of vagueness, that they should not attempt to forbid or regulate abortions when there is a chance for the survival of the fetus, but it is not sufficiently large that the abortionist considers the fetus to be viable. This edict has no constitutional warrant, and I cannot join it.
  • MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, dissenting, 439 U. S. 409 III

“Abortion and protection of the human fetus : legal problems in a cross-cultural perspective” (1987)

Cole, George; Frankowski, Stanislaw. “Abortion and protection of the human fetus : legal problems in a cross-cultural perspective”, (1987): Via Google Books. Retrieved (April 8, 2008).

• There are very few problems in the United States today more controversial than abortion. The debate on this subject has been going on for decades, but has grown with particular intensity since 1973 when the Supreme Court declared in ‘’Roe v. Wade’’ that a woman’s fundamental right to privacy includes her right, under certain circumstances, to decide whether or not to terminate her pregnancy. Even prior to the Supreme Court ruling the public opinion was divided.
  • p.17

• These are the facts; their interpretations and evaluations differ. On the liberal end of the political spectrum are those who claim that the Supreme Court was right; a woman must be allowed to control her body and to make autonomous decisions regarding the most intimate spheres of her life. However, most persons holding this position seem to agree that abortion practices are, in general, not desirable as a matter of sound social policy. Nevertheless, they say, the current legal arrangements should be retained as long as the risk of unwanted pregnancy still exists.
  • p.18

• For those opposing abortions, large-scale abortion practices mean, naturally, nothing but genocide. Changing the current abortion laws, in particular the "Roe v Wade” decision, is a matter of utmost importance and urgency. No one should remain neutral in the face of the slaughter of the innocent and helpless.
  • p.18

• While deciding "Roe v. Wade", the Supreme Court favored one particular interpretation of the historical development of American abortion laws which can not be supported by solid evidence and which will long remain a subject of controversy.
  • p.23

• The decision was revolutionary indeed for at least four reasons which can be only mentioned here.
  First, the decision invalidated virtually overnight the abortion laws of every state, including those that followed the model Penal Code, undoubtedly a product of liberal thought. For all practical purposes, abortion on demand, previously a crime almost everywhere, suddenly became a matter of constitutional right.
  Second, the decision nationalized the issue of abortion, traditionally considered a matter of family law and, as such, belonging almost exclusively to the competence of individual states.
  Third, ‘’Roe v. Wade’’ meant that the judicial branch of the government took the powers from the legislature to decide matters relating to abortion.
  Fourth, the majority of the justices discovered for the first time that the Constitution did contain another fundamental right nowhere mentioned, never before explicitly referred to and, arguably, having no roots in the text or history of the document. Did the court violate the established canons of judicial interpretation by ignoring completely the “original intention” of the Framers, or was the majority right in giving a new meaning to the Constitution in keeping it in tune with the changing times?
  • pp.23-24

• No doubt, the central conceptual foundation of the decision, namely, the right to privacy, was solidly grounded in constitutional adjudication prior to “Roe”. For a long time the twentieth century Court had been protecting personal rights of a non-economic nature by applying the expansive reading of “liberty” as used by the 14th Amendment. The majority did not fail to mention this line of cases based-explicitly or implicitly-on the privacy rationale.
  "Meyer v. Nebraska” (1923) is one of the early examples of this trend. Here the Court reversed the conviction of a teacher for teaching German and thus violating a state law prohibiting the teaching of a foreign language to young children, declaring that the “liberty” protected by the 14th Amendment included “freedom from bodily restraint as well as the right to contract, to engage in any of the common occupations of life,…and, generally, to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” The Court found the Nebraska law “materially” interfered “with the power of parents to control the education of their own [children]” (p.401). Two years later, in “Pierce v. Society of Sisters” (1925), the Court invalidated an Oregon law, requiring all children to attend public schools, because it interfered with the liberty to raise and educate children as their parents and guardians wished. Next came “Skinner v. Oklahoma” (1942), which invalidated the Habitual Criminal Sterilization Act, providing for compulsory sterilization after a third conviction for a felony “involving moral turpitude” but excluding such felonies as embezzlement.” “we are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race,” said Justice Douglas (p. 541). “Skinner” was, indeed, an extraordinary decision because the Court acknowledged the existence of a “basic liberty” not tied to a specific constitutional guarantee (Gunther, p. 503).
  • pp.26-27

• Justice Douglas delivered the opinion, basing his decision on the idea that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance… Various guarantees create zones of privacy…” But then Justice Douglas turned to another subject when he asked: “[w]ould we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship” and concluded by saying: “[W]e deal with a right of privacy older than the Bill of Rights-older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred” (p. 485-486). Two justices, Black and Stewart, dissented. They could find no general right of privacy in the constitution or in any other case to invalidate the state law.
  The precise scope of Griswold, in particular, the nature of the “right to privacy,” was not entirely clear Was the Connecticut law invalid because it invited intrusions into the home? The emphasis on the immunity of “the sacred precincts of the marital bedroom was, no doubt, indicative.
  • p.27

• Justice Brennan’s remark, although clearly dictum, proved extremely important. Some analysts speculate that “Eisenstadt’s’’ innovative rationale was invented with “Roe v. Wade” in view and claim that the case was, in reality, “Roe’s” only true precedent (Noonan, 1979, p.21). As a matter of fact, “Eisenstadt” dealt only with contraception-the decision whether to “beget” a child. But Justice Brennan, writing for the majority, added the reference to the decision whether to “bear” a child. Was it really done with “Roe v. Wade” in mind? In any event, this language did help establish a constitutional basis for a woman’s right to abortion. A pro-family orientation which culminated in “Griswold” was abruptly abandoned. Now, it was the individual’s privacy in matters of procreation, protected. (A little over a decade later, in 1977, Justice Brennan clarified, once again, “Griswold’s “true meaning.” He stated that “Griswold” not only held that a state could not prohibit a married couple’s use of contraceptives but that the state could not intrude on individual decisions relating to childbearing (Carey v. Population Services”, involving State restrictions on the distribution of contraceptives to minors). The metamorphosis of “Griswold” was complete: from protection of marital privacy to protection of individual autonomy in matters involving procreation.)
  • p.28

• Was the “Roe” majority correct in relying on the above cases? Some constitutional scholars claim that all of those cases taken together delineate a sphere of interests which the court now grouped and denominated as “privacy.” That privacy is implicit in the liberty protected by the 14th Amendment. The individual has the right to make the fundamental decisions that shape family life: whom to marry, whether and when to have children, and with what values to rear those children. [T]he family unit does not simply c0-exist with our constitutional system; it is an integral part of it.” (Heymann, Barzelay , pp.772-772).
  In reply, it has been noted that “roe v. Wade” may not be seen as a vindication of the family: in fact, it is profoundly hostile to it. “The family unit which they say is an integral part of our constitutional system was rejected by the Abortion Cases…”(Noonan, 1979, p.21). Jane Roe, the challenger of the Texas statute, was single and to decide her case on the basis of marital privacy was not apposite. As emphasized by Noonan, “Roe v. Wade” is “a massive departure from the long line of cases… correctly [portrayed] as a vindication of the family” (Noonan, 1979, pp. 21-22)
  Second, as pointed out by the same scholar, all the precedents “treated family rights as having a natural basis superior to the law of the state… All of these cases rested on the supposition that the family rights bring protected were those of persons, and that these persons could not be unmade at will by the state”
  (Noonan, 1984, pp. 672-673). The “Roe” decision was thus schizoid: “[A]t the same time that it invoked such precedents (…) the Court, when treating of the unborn, felt free to impose its own notions of reality” by denying the humanness and the personhood of the fetus (Ibidem, p. 673).
  • pp.28-29

• [U]nder Roe, even a viable fetus is not entitled to constitutional protection in its own right: it must depend on what the state may consider a compelling interest. If the state decides not to protect the “potentiality of life,,”a viable fetus would not enjoy any protection in the abortion context. The only conflicting interests, as seen by the majority, are those of the woman and of the State. The rights of the fetus (and, possibly, of the father) have been completely ignored.
  • p.30

• The list of weaknesses of the ruling in “Roe” may be continued almost endlessly: (a Which specific constitutional provision was violated by the Texas abortion statute? Did the Court not act as a super legislature, imposing its own standards that cannot be derived from the Constitution? Did the Court invade the realm of political process to which the power to amend the Constitution was given? Did it violate the constitutional structure it was obliged to protect?
  b) Why was the state’s interest not sufficiently strong to sustain the Texas statute until the moment when the fetus becomes viable? If, as the majority seems to suggest, life is a process, may not the State protect it prior to viability?;
  c) Is the answer to the question of “when life begins” really irrelevant to the determination whether the fetus is a person within the meaning of the 14th Amendment? Is it possible to distinguish between certain life proesses (present, no doubt, at any stage of pregnancy from fertilization on) and “life? Can the presence of “life” be established without recognizing that it must reside in a “person?” Is the statement that the viable fetus, that is, capable of “meaningful life,” is still not a person within the meaning of the Fourteenth Amendment defensible as a matter of law, logic, and public policy?;
  d) Does the United States Supreme Court have the power to ‘restrict the protection of fundamental liberties to those classes the Court deems worthy?” (Destro, p.126). Was Justice Blackmun exceeding his power when he described the fetus as less than a person “in the whole sense?” Does that mean that it may be treated as less than human? (Noonan, 1979, p. 17) May the Court disregard(under the guise of avoiding deciding the issue “when life begins”) the unquestionable humanity of human beings and then deprive them of their personhood?;
  e) How important for the “Roe” majority were social policy implications? Were purely financial considerations relevant? The “Roe” decision is silent on this point, but Justice Blackmun, dissenting in “Beal v. Doe” (1977), one of the abortion funding cases stated clearly: To be sure, welfare funds are limited and welfare must be spread perhaps as best meets the community’s concept of its needs. But the cost of a nontherapeutic abortion is far less than the cost of maternity care and delivery, and holds no comparison whatsoever with the welfare costs that will burden the state for the new indigents and their support in the long, long years ahead (at p. 463).
  And Justice Marshall, another member of the “Roe” majority, made the point in “Beal v. Doe” that the effect of precluding abortions would be to “regulate millions of people to lives of poverty and despair” (p.462). Is it acceptable, as a matter of humanistic social policy, to view abortions as a relatively cheap method of improving the quality of life of those allowed to be born? Is life in poverty and despair not worth living?
  • p.31

• f) The majority has anchored the ruling in the woman’s right to privacy, encompassing her decision whether or not to terminate the pregnancy. At the same time, however, under both “Roe v. Wade’’, and ‘’Doe v. Bolton’’, a major role in the process o decision-making is to be played by the woman’s physician. “[f]or the period of pregnancy prior to this compelling point, the attending physician in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient’s pregnancy should be terminated.” (“Roe v. Wade”, p, 163). Similarly, in “Doe v. Bolton”, the court held that the physician’s medical judgment may be exercised in the light of all factors… All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment” (p. 198). If so, is the woman really free to decide whether to terminate her pregnancy? Was the Court correct in abdicating the whole responsibility to physicians?;
  g) Was the Court right in assuming that a physician would (should?) act as a “medical counselor” or was the Court simply naive about how the medical profession would implement the “Roe v. wade” scheme? Both opponents and proponents of abortion agree that today most abortions are performed in special abortion clinics, that a doctor sees each patient just before the procedure, and counseling by a doctor takes place very rarely (Appleton, p.201; Wardle, p.24); h) The “Roe” trimester approach was based on the state of medical knowledge and practice in existence in the beginning of the 1970s. At least two dramatic changes have taken place since then which seriously undermine the basic premise of the decision.
  First, in the early 1970s, infants generally were not considered viable before twenty-eight weeks of gestational age and under 1000 grams of fetal weight. Today, due mainly to advances in neonatal care, infants become viable much earlier, occasionally at 23 weeks. Survival rates for infants weighing even less than 750 grams are increasing and some experts are of the opinion that it is arguable whether any lower limit of viability is medically appropriate (Rhoden, p. 1465). As viability occurs much earlier now, abortions may be prohibited at earlier and earlier stages of pregnancy. By this ironic twist of events “Roe v. Wade: may one day become a “right0to-life” decision (Rhoden, p. 1454). But, in the late 1980s, second0trimester abortions are safer than they were in the early 1970s. If the same trend continues, at some time in the future maternal health interest will become compelling much later than the Court decreed in “Roe v. Wade”. In other words: abortions become safer and the line drawn by the Roe majority at the end of the first trimester must be thus moved further toward the birth. But in view of the advances in prenatal care, the viability marker, fixed in 1973 at the end of the second trimester, must be moved back toward the conception. It is probable that in the future the lines will pass each other “creating an overlap and (constitutionally) a hopeless contradiction within Roe) (Wolfe, p.308)
  • p.32

• i)Left-wing critics of “Roe” claim, in turn, there exists an inevitable tension between the constitutionally recognized woman’s right to “reproductive freedom” and the role assigned by the Court to physicians who are to act as primary decision-makers even on non-medical issues (Appleton, p.226). These critics of the 1973 decision view abortion restrictions as constitutionally impermissible gender-based discrimination: legislation that singles out abortion for differential treatment is discriminatory because only women become pregnant and have abortions (Law). Another writer suggests that under the proper analysis abortion laws should be seen as unconstitutionally singling our pregnant women as unwilling “good Samaritans” who are obliged to endure life and health-threatening burdens (Reagan, p.1569).
  • pp.32-33

• Justice Powell acknowledged that arguments continue to be made [that] we erred in interpreting the Constitution.” But the majority refused to retreat from “Roe v.. Wade”: “Nonetheless, the doctrine of “stare decisis”, while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law. We respect it today, and reaffirm “Roe v. wade” (p.420). It is very difficult to resist the temptation to notice that the reliance by the majority on the doctrine of “stare decisis” was perverse. It should not be forgotten that in reaching the “Roe” decision the Supreme Court applied the concept of privacy in a novel context and discarded a long series of precedential decisions establishing the constitutionally protected area of privacy only in the field of familial relationships.
  Interestingly enough, the “Akron” majority, having declared the allegiance to the “stare decisis” principle, significantly modified the “trimester approach” mandated by “Roe”. As may be recalled, there the Court held that during the entire second trimester of pregnancy, laws regulating abortion procedure for maternal health reasons were constitutionally permissible. Ten years later, in “Akron”, an ordinance requiring all second trimester abortions to be performed in a hospital was declared unconstitutional because early second trimester abortions may now safely be performed in clinics. This means that the rigid “trimester approach” was not deemed viable by the same majority which had imposed it in “Roe”.
  • p.33

• Justice O’Connor emphasized that “the Roe framework [is] clearly on a collision course with itself. As the medical risks of various abortion procedures decrease, the point at which the state may regulate for reasons of maternal health is moved further toward actual child-birth. As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception” (p. 2505).
  • p.34

• Justice White was no less straightforward in his dissent. The majority was insecure “over its handiwork in “Roe v. Wade” and well aware than in “Roe it essentially created something our of nothing” (at 4636). In his view, a woman’s ability to choose an abortion was “a species of ‘liberty’ that is subject to the general protections of the Due Process Clause.” For White, however, this “liberty” was not so “fundamental” that “restrictions upon it call into play anything more than the most minimal judicial scrutiny” (at 4630). “[T]he time has come to recognize that “Roe v. Wade”…’ departs from a proper understanding’ of the Constitution and to overrule it” - he emphasized (at 4629). It is pertinent to note that justice Rehnquist did not file a separate dissent but joined both White’s and O’Connor’s dissenting opinions.
  • p.35

"The Consequences of Roe v. Wade and Doe v. Bolton" (June 23, 2005)

O'Connor, Karen. Testimony before U.S. Senate Judiciary Committee, "The Consequences of Roe v. Wade and Doe v. Bolton", via archive.org (June 23, 2005). Retrieved January 30, 2007

• In 1973, against a background of increasing litigation surrounding contraception and abortion, the Supreme Court granted certiorari in the companion cases of Roe v. Wade and Doe v. Bolton. Jane Roe, who we know today as Norma McCorvey, challenged a Texas abortion law that prohibited abortions in all cases except to save a woman’s life. Unlike Roe, the statute at issue in Doe v. Bolton was based on the Model Penal Code of the ALI. Doe’s lawyers, acting on her behalf as well as several doctors, nurses, clergy, and social workers, alleged that the Georgia law was an unconstitutional undue restriction of personal and marital privacy.
  In a landmark 7 to 2 decision, the Supreme Court held that the “right of privacy . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.” The Court also recognized that the decision of whether to have a child is unique to every woman and her life circumstances, and therefore must be a personal, individual decision. 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 invalidating the Texas and Georgia abortion laws, the Court effectively invalidated the abortion laws of all but four states. However, even in recognizing the fundamental right to obtain an abortion, the Court also held that this right was not absolute. To this end, the Court took a trimester approach toward to regulation of abortion, holding: For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
  The right to privacy so central in Roe was well-recognized prior to that case, and has been repeatedly affirmed since Roe. As the Roe Court itself stated, “In a line of decisions . . . going back perhaps as far as [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.” Indeed, prior to Roe, the Court explicitly recognized the fundamental nature of a woman’s right to control her reproduction. The Court has also recognized the intensely personal nature of the decision of whether to have children. In Eisenstadt v. Baird, affirming an unmarried individual’s fundamental right to obtain contraception, the Court stated “if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."
  A woman’s right to control her own body, articulated in Griswold, Eisenstadt, Roe, and Doe remains just as fundamental today. The Supreme Court has repeatedly emphasized its continued viability: “Roe is clearly in no jeopardy, since subsequent constitutional developments have neither disturbed, nor do they threaten to diminish, the scope of recognized protection accorded to the liberty relating to intimate relationships, the family, and decisions about whether or not to beget or bear a child.” Moreover, the Court recently reaffirmed the fundamental right codified in Roe, and recognized how central reproductive freedom is to the lives of women. In Lawrence v. Texas, discussing the dimensions of the privacy right, the Court stated, “Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person.”
  • pp.5-7

• Roe’s implications for women were profound and wide-reaching. The most immediate result, of course, was to rescue women from the back alleys, and provide access to safe, legal abortion for women who chose it. Today, abortion is one of the safest and most commonly performed medical procedures. In stark contrast to the soaring death rates from illegal abortions prior to Roe, the current death rate from legal abortion at all stages of gestation is 0.6 per 100,000 procedures. Indeed, a woman's risk of death during pregnancy and childbirth is ten times greater than the risk of death from legal abortion. Moreover, Roe marked a new beginning in women’s ability to control their own fertility and to choose whether or not to have children. Roe recognized that a woman deciding whether to continue a pregnancy, and only that woman, must make the personal choice that is in keeping with her own religious, philosophical, and moral beliefs. This freedom of choice led to the increased freedom in other areas; as the Supreme Court noted in 1992, "the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives."31 Without this freedom, generations of women would be relegated back to constant fear of pregnancy and its consequences. Fewer women would be able to complete their educations, decide when they wished to have children, and how to order their lives to best accommodate work and family. However, these basic, fundamental rights of women have been under attack since the ink was dry on Roe and Doe.
  • pp.7-8

• As the Supreme Court so aptly stated in Planned Parenthood v. Casey, While [Roe v. Wade] has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe 's central holding a doctrinal remnant; Roe portends no developments at odds with other precedent for the analysis of personal liberty . . ..
  Despite the fact that history demonstrates that the unavailability of legal, safe abortion does not prevent abortion but only leads women to seek unsafe abortions, it is abundantly clear that Roe’s protections are indeed in jeopardy.
  • p.10

• What then, would happen if Roe were overturned? Contrary to assertions that bans on abortion--including first trimester abortions--would occur in only a few states and take considerable time to enact, it is probable that many states would revive and enact immediate abortion bans. Moreover, in the absence of Roe, states would be given free reign to erode Roe; one only need look at the number of state restrictions placed on abortion provision in 2004, discussed supra, to know this is an all too real possibility.
  The move toward criminalizing abortion could be immediate: four states (Alabama, Delaware, Massachusetts, and Wisconsin) have abortion bans in place that have never been declared unconstitutional or blocked by courts. Roe’s reversal could “trigger” these laws; that is, state officials could immediately begin enforcing these bans the day Roe is overruled. Another 13 states have abortion bans on the books that have been blocked by courts as unconstitutional. . If Roe was overturned, officials in such states could immediately file suits asking courts to set aside the orders that prevented enforcement of the laws. And, in the remaining states, legislators would be free to introduce and enact new severe restrictions or bans on abortion.
  Ultimately, abortion would likely remain legal in small number of states, but even in such states women’s access would likely be severely restricted. This would create a daunting, patchwork system of abortion statutes: a woman’s right to obtain an abortion would be entirely dependent on the state in which she lived or her ability to travel to another state--assuming the states that keep abortion legal would permit non-residents to obtain abortions in that state. For those women who are able to navigate this patchwork system, the need to travel and the increased demand for a dwindling number of abortion providers could lead to dangerous delays in the provision of abortion care.
  Even more frightening, however, is the plight that women who do not live in provider states, and are unable to travel to those states, would face. In essence, overruling Roe would force a return to the two-tier system of abortion access that was in place before 1973: women with the financial ability to travel to other states may still be able to exercise their rights, whereas low-income women (disproportionately women of color and young women) would not. We would see a return to the days of back-alley and self-induced abortions; a return to the day where women -- our daughters, our sisters, our mothers, and our wives -- sacrificed their health and lives because they felt they were left with no other option. Re-criminalizing abortion, or so severely restricting it so as to make it practically unavailable, will not end the practice of abortion; it will end the practice of safe abortion.
  • pp.10-11

• In addition to the grave -- and unacceptable -- health risks women would face if forced to return to the back alleys, overruling Roe would also signal a rollback of the autonomy and equality women have achieved since Roe. Roe was not only a decision that legalized a medical procedure and protected women’s health; it was -- and is -- a decision that gave a woman the option to make the reproductive choices that were right for her health, her family, and her life. Roe protects a woman’s bodily integrity, but, just as importantly, protects a woman’s right to be responsible for the choices she makes and the options she chooses. A woman’s ability to decide when and if she will have children will ultimately make her a better mother, if she chooses to become one, and helps ensure that children are brought into families that are willing and able to both financially and emotionally care for them. A woman’s ability to control her own reproduction ensures that she can make the medical decisions central to her physical and emotional well-being. And this autonomy allows women to make the choices we perhaps now take for granted: whether and when to marry, whether and when to have children, and whether to pursue educational opportunities or a professional career. As the Supreme Court stated in upholding Roe’s central protection for a woman’s right to choose abortion, the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society. Finally, because the constitutional protections enunciated in Roe underpin so many other rights, Roe’s demise could open the door to encroachments on other fundamental rights grounded in privacy. For example, access to birth control is dependent on the privacy right articulated in Griswold and echoed in Roe. Contraception availability is crucial toward reducing unintended pregnancies, reducing the number of abortions, and improving women's health. In addition, improved access to contraception will allow more women to control the timing of their pregnancies. This, in turn, helps reduce infant mortality, low birth weight, and maternal health complications during pregnancy. Thus, undermining the privacy right will serve to endanger women’s health and lives even beyond the abortion decision.
  • pp.11-12

• I am a mother and a sister. In addition, I have had the privilege to teach thousands of students -- young men and women -- over the more than 25 years I have been teaching. Each of these individuals has come of age in a era where his or her private decisions to have sex or remain celibate, to use birth control or not, as well as to resort to a safe and legal abortion if needed or to carry a pregnancy to term, were available options. This right has, for women in particular, given them a power over their destinies that women who came before me did not enjoy. The United States, I have always taught, is a land where rights once hard won, are not to be taken for granted, but to be held precious. No right can be more important nor more fundamental than a woman’s right to control her bodily integrity free from governmental interference. As the Court itself has concluded, to do so could be disastrous.
  • p.12

“Won by Love: Norma McCorvey, Jane Roe of Roe v. Wade, Speaks Out for the Unborn as She Shares Her New Conviction For Life” (1997)

“Won by Love: Norma McCorvey, Jane Roe of Roe v. Wade, Speaks Out for the Unborn as She Shares Her New Conviction For Life” by Norma McCorvey and Gary Thomas, Nashville, Tennessee: Thomas Nelson, 1997

• People are usually surprised to learn that the Roe v. Wade decision was many hours old before I even heard about it. I came home from work-the first day I had been able to work in years, due to depression-and picked up the evening paper. Connie was taking a shower while I read the newspaper. Some newsbreak in the Watergate scandal had captured most of the ink, but in the lower right-hand corner of the Dallas Times Herald I noticed a news item announcing a Supreme Court decision about abortion.
  “Could this be me?” I thought. The words announcing the Court’s decision gripped me. It “was” me! I had won!
  And yet it seemed so strange. I had already delivered my baby and placed her for adoption, so it really wasn’t relevant to me-I couldn’t abort a child who had already been born. In the article, I was referred to only through my pseudonym, Jane Roe, so even though they were talking about me, it felt like they were talking about someone else.
  But I had won. There was some satisfaction in that, anyway.
  Of course, you might well be wondering how I could have been so far removed. Why wasn’t I at the Supreme Court when the case was argued on my behalf, for instance?
  • p.36

• As soon as Sarah Weddington had my name on the affidavit, I had served my purpose. She called me back all right-four months after my child was born.
  “Sarah,” I said. “I had a baby “four months ago”. Where were you then? I didn’t hear from Sarah again. She had said everything was going to be okay and that she would be there, but she wasn’t.
  This lack of relationship was not exactly a disappointment to me. Though Sarah had passed herself off as my friend, in reality she used me. When I sat down with her and discussed the possibility of getting an abortion, Sarah knew where I could get one, because she had gotten one herself three years before. When I asked her if the court’s decision would come in time for me to get an abortion, she gave an evasive answer. And she did so with the full understanding that it would come way too late to help me.
  If Sarah Weddington was so interested in abortion, why didn’t she tell me where she got hers? Because I was of no use to her unless I was pregnant. She needed a pregnant woman who would sign the affidavit. If she told me how and where to get an abortion (or introduced me to people who knew, since, as a lawyer, she might have to cover herself, she wouldn’t have a plaintiff. And without a plaintiff, somebody else might get their case before the Supreme Court first. That’s why Sarah actually tried to talk me out of getting an illegal abortion in Mexico, as she had done.
  • pp.36-37

• Debbie Nathan, a proabortion writer, wrote in the Texas Observer (September 25, 1995): “By not effectively informing [Norma] of [where she could get an abortion], the feminists who put together Roe v. Wade turned McCorvey into Choice’s sacrificial lamb-a necessary one, perhaps, but a sacrifice even so.”
  I never signed up to become a sacrificial lamb for anyone; I was just a young woman who needed help and who turned to the wrong people. After I gave up my child for adoption, I spent year searching the faces of children I passed on the streets and in supermarkets.
  “Is that her?” I’d ask myself. “Could that be my child?”
  • p.37

• A number of years later, I read in the newspaper about an abortion clinic being bombed. “Why would anyone want to do that? I thought.
  I read the entire article and was surprised when one of the bombers referred to “baby killing” going on inside the clinic. I had never been inside a clinic and could not imagine what the man was talking about, but that night, I had a dream in which I saw little babies lying around with daggers in their hearts. It was a horrific vision and I kept Connie up for hours, trying to figure out what it meant.
  The next morning, I realized I needed to make some sort of sense out of this abortion business. Was Jane Roe, after all. What, really, had I done?
  • p.38

• Well, how do they kill a baby inside a mother’s stomach, anyway? I couldn’t get the thought out of my mind. I realize it sounds very naïve, especially for a woman who had already conceived and delivered three children. Though I had seen and experienced more than my fair share of the world, there were some things about which I still didn’t have a clue-and this was one of them. Ironically enough, Jane Roe may have known less about abortion than almost anyone else.
  • Chapter 5, The Shadow Plaintiff pages 39

• The first time I met Flip face-to-face was during a book signing for my book I am Roe It was a hot June night in Dallas, and my appearance had been announced via flyers, posters, newspaper notices, and the radio, so it was not hard for the antis to be informed and prepared.
  Rescue was out in full force. Ironically, it was Ronda Mackey-the woman whose daughter eventually got me to church-who distributed a list of tough questions that people could ask me during the open question-and-answer time. After I became a Christian, I finally saw a copy of one of these sheets:
  Questions to Ask Norma McCorvey
  (Don’t let people see you looking at this paper)
  1. What happened to the baby that you were trying to abort?
  2. Have you had an abortion since Roe v. Wade? Have you used you “right to choose”? Why or why not?
  3. Ninety-five percent of women who had an abortion said if they had any other choice, they would have taken it (survey done by Nurturing Network). You were in a difficult situation when you were pregnant during Roe What would you have needed in order to give life to your child, or not want an abortion?
  4. The Alan Guttmacher Institute determined that over 90 percent of the women who had an abortion suffered complications (physical and/or emotional). What are you doing to help or counsel women after the abortion-especially those who are hurt from it?
  There were many questions like this, but the last one may have been the most intriguing:
  9. It seems the abortion industry has just been using you from the beginning. They used your sad situation to get abortion legalized, then they didn’t even call you when the case was won in the Supreme Court. They didn’t have anything to do with you until the Webster decision, when it seemed like Roe would be overturned. Have you ever intellectually questioned how the abortion industry operates, or the arguments they use? Have they-the feminists and abortion providers-listened to you and changed anything?
  I think you can see why Ronda eventually ended up being so successful in reaching out to me!
  • Chapter 8, “Miss McCorvey, You’re Responsible for the Deaths of Thirty-Five Million Children!”

“Testimony to the Senate Subcommittee on the Constitution, Federalism and Property Rights”, (January 21, 1998)

McCorvey, Norma. “Testimony to the Senate Subcommittee on the Constitution, Federalism and Property Rights”, (January 21, 1998)

• Good morning. My name is Norma McCorvey. I'm sorry to admit that I'm the Jane Roe of Roe v Wade.
  The affidavit submitted to the Supreme Court didn't happen the way I said it did, pure and simple. I lied! Sarah Weddington and Linda Coffey needed an extreme case to make their client look pitiable. Rape seemed to be the ticket. What made rape even worse? A gang rape! It all started out as a little lie, but my little lie grew and became more horrible with each telling.
  Not only did I lie, but I was lied to. I did not come to the Supreme Court on behalf of a class of women. I wasn't pursuing any legal remedy for my unwanted pregnancy. I did not go to the Federal Courts for relief. I met Sarah Weddington to find out how I could obtain an abortion. She and Linda Coffey said they didn't know where to get one. Sarah already had an abortion but she lied to me just like I lied to her! She knew where to get one, obviously, but I was of no use to her unless I was pregnant. Sarah and Linda were looking for somebody, anybody, to use to further their own agenda. I was their most willing dupe.
  Since all these lies succeeded in dismantling every state's protection of the unborn child, I think it's fair to say that the entire abortion industry is based on a lie.
  • pp.44-45

• It was my pseudonym, Jane Roe, which had been used to create the "right" to abortion out of legal thin air. But Sarah Weddington and Linda Coffey never told me that what I was signing would allow women to come up to me 15, 20 years later and say, "Thank you for allowing me to have my five or six abortions. Without you, it wouldn't have been possible."
  • p.45

• I am dedicated to spending the rest of my life undoing the law that bears my name. It is my sincere prayer that there be no 30th anniversary of Roe v Wade. I would like nothing more than to have this law overturned, either by an act of Congress or a reversal in the Supreme Court.
  • p.46

• Senator ASHCROFT. Now, Ms. McCorvey, you indicated that there were a lot of misrepresentations when you sought to have an abortion back in the 1970’s, and you indicated that you weren’t valuable to those who wanted to use you if you had an abortion. You needed to continue to be pregnant?
  Ms. MCCORVEY. Yes, I had to stay pregnant.
  • p.46

“Affidavit of Norma McCorvey” (June 11, 2003)

“Affidavit of Norma McCorvey”, U.S. District Court for the Northern District of Texas, Dallas Division, Norma McCorvey, formerly known as Jane Roe, Plaintiff, vs. Henry Wade, Through His Official Successor in Office, William "Bill" Hill, Dallas County District Attorney, Defendant., Civil Action No. 3--3690-B and No. 3-3691-C, June 11, 2003

• Thirty-three years ago, I came before the United States District Court Northern District of Texas Dallas Division as the Plaintiff “Jane Roe”, the young woman whose case legalized abortion in the United States, “Roe v. Wade” At that time, I was an uninformed young woman. Today I am a fifty-five-year old woman who knows the tragedy that arose from my unsuspecting acquiescence in allowing my life to be used to legalize abortion.
  • paragraph 2 on pages 1-2 of 13, affidavit page 000002-000003

• In 1970, I told this Court in the form of an affidavit that I desired to obtain an abortion never really understanding the ramifications.
  • paragraph 3 on page 2 of 13, affidavit page 000003

• My personal experience with this three-decade abortion-experiment has compelled me to come forward, not only or myself and the women I represented then, but for those women whom I now represent. It is my participation in this case that began the tragedy, and it is with great hope that I now seek to end the tragedy I began.
  • paragraph 3 on page 2 of 13, affidavit page 000003

• Previously, the courts, without looking into my true circumstances or taking the time to decide the real impact abortion would have upon women, used me, my life, and my circumstances to justify abortion. Those judges who made the earlier decisions never had the advantage of the real facts to base their decision because the entire basis for Roe v. Wade was built upon false assumptions. Consequently, the decision as rendered in a vacuum totally devoid of findings of facts and solely based upon what abortion advocates wanted women. Because the courts allowed my case to proceed without my testimony, without ever explaining to me the reality of abortion, without being cross-examined on my erroneous perception of abortion, a tragic mistake was made - a mistake that this Court has the opportunity to remedy.
  • paragraph 4 on page 2-3 of 13, affidavit page 000003-000004

• The years following the Roe v. Wade decision have been very difficult, in a number of respects, but my life was never easy.
  • paragraph 5 on page 3 of 13, affidavit page 000004

• [W]hen I became pregnant with the “Roe” baby, I was really in a predicament. My mother expressed her disapproval and told me how irresponsible I had been. She made it clear that she was not going to take care of another baby.
  • paragraph 5 on page 3 of 13, affidavit page 000004

• Although I knew I was pregnant, I waited for a while before I went to the doctor. While I was waiting to be examined, I questioned the some of ladies in the waiting room about whether they knew where a woman could go to have an abortion. A lady told me where an illegal clinic was located and told me that it would cost $250.00. Following our discussion, I told the doctor that I wanted to have an abortion, but he refused stating that abortion was illegal. He didn’t believe in abortion and gave me the phone number of an adoption attorney.
  • paragraph 6 on page 3 of 13, affidavit page 000004

• When I had saved about two hundred dollars, I took a cross-town bus to the illegal clinic, which turned out to be a dentist’s office that had been closed down the previous week. For some reason, I felt relieved yet angry at the same time. All my emotions were peaking; first, I was angry, then I was happy, and then I’d cry. From the abortion clinics, I took the bus to my dad’s apartment and decided to speak with the adoption attorney. The attorney set up the meeting and referred me to Sarah Weddington, the attorney who represented me in Roe v. Wade.
  • paragraph 7 on page 3-4 of 13, affidavit page 000004-000005

• Following the adoption attorney’s introduction, Weddington invited me out to dinner. Although Weddington and I were about the same age, our lives were quite different. She was a young attorney, and I was homeless and lived in a park. Unconcerned about politics, I sold flowers and an underground newspaper that described the types and availability of illegal narcotics. At the time, I simply sought to survive. During our initial meeting, I met with Sarah Weddington and her friend, Linda Coffee. Both Weddington and Coffee had recently finished law school, and they wanted to bring a class action suit against the State of Texas to legalize abortion.
  • paragraph 8 on page 4 of 13, affidavit page 000005

• During our meeting, they questioned me, “Norma, don’t you think that abortion should be legal?” Unsure, I responded that I did not know. In fact, I did not know what the term abortion” really meant. Back in 1970, no one discussed abortion. It was taboo, and so too was the subject of abortion. The only thing I knew about the word was in the context of war movies. I had heard the word “abort” when John Wayne was flying his plane and ordered the others to “Abort the mission.” I knew “abort” meant that they were “going back”. “Abortion”, to me, meant “going back” to the condition of not being pregnant. I ever looked the word up in the dictionary until after I had already signed the affidavit. I was very naive. For their part my lawyers lied to me about the nature of abortion. Weddington convinced me, “It’s just a piece of tissue. You just missed your period.” I didn’t know during the “Roe v. Wade case that the life of a human being was terminated.
  • paragraph 9 on pages 4–5 of 13, affidavit pages 000005–000006

• That evening, the two female lawyer and I discussed the case over a few pitchers of beer and pizza at a small restaurant in Dallas. Weddington, Coffee, and I were drinking beer and trying to come up with a pseudonym for me. I had heard that whenever women were having illegal abortions, they wouldn’t carry any identification with them. An unidentifiable woman was often referred to as Jane Doe. So we were trying to come up with something that would rhyme with “Doe”. After three of our pitchers of beer, we started with the letter “a” and eventually reached “r” and agreed on “Roe”. Then I asked, “What about Jane for the first name?” Janie used to be my imaginary friend as a child. I told them about her and how she always wanted to do good things for people, and it was decided – I became Jane Roe, by the stroke of a pen.
  • paragraph 10 on page 5 of 13, affidavit page 000006

• These young lawyers told me that they had spoken with two or three other women about being in the case, but they didn’t fit their criteria. Although I did know what “critieria” meant, I asked them if I had what it took to be in their suit. They replied, “Yes. You’re white. You’re young, pregnant, and you want an abortion.” At that time, I didn’t know their full intent. Only that they wanted to make abortion legal, and they thought I’d be a good plaintiff. I came for the food, and they led me to believe that they could help me get an abortion.
  • paragraph 11 on page 5 of 13, affidavit page 000006

• After our meeting, I went to my father’s apartment and began to drink alcohol heavily. I was depressed with my plight in life. I tried to drown my troubles in alcohol. Shortly thereafter I even attempted suicide by slitting my wrists. When my father questioned me about what was troubling me, I responded that I was pregnant again. When he asked me what I was going to do, Iresponded that I was thinking about having an abortion. He inquired, “What is that?” I said, “I don’t know. I haven’t looked it up yet.”
  • paragraph 12 on page 6 of 13, affidavit page 000007

• Later, Weddington and Coffee presented the affidavit for my signature at Coffee’s office. I told them that I trusted them and that I did not need to read the affidavit before I signed it. I never read the affidavit before signing it and do not, to this very day, now what is written in the affidavit. Both Weddington and Coffee were aware that I did not read the affidavit before I signed it. At no time did they tell me that I had to read it before they accepted my signature. I told them that I trusted them. We called ourselves “the three musketeers.” I know now that is one place I went wrong. I should have sat down and I should have read the affidavit. I may not have understood everything in the affidavit and I would have probably signed it anyways. I trusted the lawyers.
  • paragraph 13 on page 6 of 13, affidavit page 000007

• My lawyers never discussed what an abortion is, other than to make the misrepresentation that “it’s only tissue”. I never understood that the child was already in existence. I never understood that the child was a complete separate human being. I was under the false impression that abortion somehow reversed the process and prevented the child from coming into existence. In the two to three years during the case no one, including my lawyers told me that an abortion is actually terminating the life of an actual human being. The courts ever took any testimony about this, and I heard nothing which shed light on what abortion really was.
  • paragraph 14 on page 6-7 of 13, affidavit page 000007-000008

• In 1972, Sarah Weddington argued in the courts, presumptuously on my behalf, that women should be allowed to obtain a legal abortion. The courts did not ask whether I knew what I was asking for. The abortion decision that destroyed every state law protecting the rights of women and their unborn babies was based on a fundamental misrepresentation. I had never read the affidavit, and I did not know what an abortion was. Weddington and the other supporters of abortion used me and my circumstance to urge the courts to legalize abortion without any meaningful trial which addressed the humanity of the baby, and what abortion would do to women. At that time, I was a street person. I lived, worked, and panhandled out on the streets. My totally powerless circumstance made it easy for them to use me. My presence was a necessary evil. My real interests were not their concern.
  • paragraph 15 on page 7 of 13, affidavit page 000008

• As the class action plaintiff in the most controversial U.S. Supreme Court case of the twentieth century, I only met with the attorneys twice. Once over pizza and beer, when I was told that my baby was only “tissue” and another time at Coffee’s office to sign the affidavit. I had no other personal contacts. I was never invited into court. I never testified. I was never present before any court on any level, and I wasnever at any hearing on my case. The entire case was an abstraction. The facts about abortion were never heard. Totally excluded from every aspect and every issue of the case, I found out about the decision from the newspaper just like the rest of the country.
  • paragraph 16 on page 7-8 of 13, affidavit page 000008-000009

• In a way, my exclusion, and the exclusion of real meaningful findings of fact in Roe v. Wade, is symbolic of the way in which the women of the nation and their experiences with abortion have been ignored in a national debate by the abortion industry. The view that is presented is the view of what the abortion industry thinks is good for women. The reality of women’s experiences is never presented.
  • paragraph 17 on page 8 of 13, affidavit page 000009

• I never had an abortion gave the baby up for adoption. It was only later in life that I was confronted with the reality of abortion. Being unskilled and uneducated, with alcohol and drug problems, finding and holding a job was always a problem for me. But with my notoriety from Roe v. Wade, abortion facilities, usually paying a dollar an hour more than minimum wage, were always willing to add “Jane Roe” to their ranks.
  • paragraph 18 on page 8 of 13, affidavit page 000009

“PROTECTING PRENATAL PERSONS: DOES THE FOURTEENTH AMENDMENT PROHIBIT ABORTION?” (2/21/2018)

Craddock, [http://www.harvard-jlpp.com/wp-content/uploads/sites/21/2018/02/Craddock_FINAL.pdf “PROTECTING PRENATAL PERSONS: DOES THE FOURTEENTH AMENDMENT PROHIBIT ABORTION?”], Harvard Journal of Law & Public Policy, (2/21/2018)

• Even scholars who agree in principle with the outcome of Roe have criticized the Court’s blanket approach to creating a federally protected right to abortion. Justice Blackmun’s assumption that “the lack of consensus” about when life begins means that “abortion must be permitted,” rather than left to state legislatures, has been criticized as “arbitrary” and unwarranted. When Roe determined that states could not protect preborn humans as persons, “the Court effectively decided that the Constitution requires their exclusion.”
  Other commentators have contested the central holding of Roe but do not believe the Constitution justifies a blanket policy prohibiting abortion either. Some in this camp have argued that a Human Life Amendment to the Constitution is the best or only way to respond to Roe’s inadequacies.13 Some have advocated returning abortion policy to the states. The late Justice Antonin Scalia frequently noted his opposition to Roe and his belief that individual states should determine their abortion policy through democratic processes. In either case, if Roe’s critics are correct, constitutional scholars must revisit whether the Fourteenth Amendment protects prenatal life or whether each state may choose to permit abortion.
  • pp.540-541

• In the eighteenth century, Coke’s description “quick with child” (the point at which the child is first able to move, then considered to be the beginning of existence) was equated with “quickening” (the point at which the mother first feels fetal movement). This distinction was intended to protect prenatal life as soon as it could be discerned, not to exclude human life from protection prior to that point. Once again, “quickening was a flexible standard of proof—not a substantive judgment on the value of unborn human life.” The Roe Court made much of the quickening rule in its rush to dismiss the personhood of the preborn, but failed to see that the rule was merely a tool of criminal law, not a statement about the value of life prior to perceptible movement in the womb.
  The “quickening” distinction survived in common law until emergent medical science discovered “that human life began at fertilization,” allowing medical examiners to prove prenatal life and cause of death due to abortion with greater certainty. After this discovery in the early nineteenth century, British courts instructed jurors that “quick with child,” which had earlier meant “formed and animated,” now meant “from the moment of conception.” When determining whether to grant temporary reprieve from execution for a pregnant woman, for example, the court in Regina v. Wycherley81 reinterpreted common law to reflect that new scientific fact in 1838.
  • p.554

• How did the Roe Court avoid the strong historical basis for considering prenatal life “persons” protected by the Fourteenth Amendment? Besides relying on the inaccurate Means brief, Justice Blackmun examined: (1) narrow exceptions to the common law rule against abortion, such as to save the life of the mother; (2) varying degrees of punishment for the crime of abortion, including occasional immunity for women who procured abortions; and (3) the supposed lack of contemporary consensus about the status of preborn humans, to determine that human beings in utero were never “recognized in the law as persons in the whole sense.” These arguments against constitutional personhood for the preborn have been repeated by advocates of a state-by-state approach to abortion.
  • p.562

• The Roe Court supposed that narrow exceptions in state abortion statutes for the life of the mother indicated that prenatal human beings were considered nonpersons. But these exceptions were not based “on a legislative preference for the life of the mother over the life of the child, but on the general defense of ‘legal necessity,’” which is connected to self-defense. Only the impending death of the mother was considered a grave enough reason to consider abortion. The acknowledgement of these rare circumstances “does not demonstrate a lack of legislative recognition of the personhood of the unborn child.” Even if Justice Blackmun were correct that Texas’s exception for the life of the mother violated equal protection guaranteed by the Fourteenth Amendment, it would not indicate that prenatal life is excluded from the Amendment’s protections. It would only show that Texas inconsistently applied the protections of the Amendment.
  • pp.562-563

• The Roe Court pointed to the varying severity of charges and punishments among state laws proscribing abortion prior to and after the adoption of the Fourteenth Amendment as evidence that states did not believe in preborn personhood. In some jurisdictions, the maximum sentence for abortion was less severe than for murder. The Court believed this suggested that the law did not include fetuses as persons during this period. But the principle permitting legislatures to determine how to classify and punish different types of unlawful killing is one of historical provenance. It says nothing about the personhood status of the victim. In his Lectures on Law, the early American legal scholar and founding father James Wilson recognized that policy-driven ranges of punishment for crimes of killing were permissible.144 He wrote that “grades of solicitude, discovered, by the law, on the subject of life” exist, and he acknowledged that the law may consider “different degrees of aggression” against life. How these various “degrees may be justified, excused, alleviated, aggravated, redressed, or punished,” he said, “will appear both in the criminal and in the civil code of our municipal law.”
  • pp.563-564

• Justice Blackmun thought it significant that some states in the mid-nineteenth century did not prosecute women who procured abortion, and found this policy incompatible with prenatal life being included within the scope of the Fourteenth Amendment. As already mentioned, however, this immunity likely stemmed from the notion that women were victims of abortion rather than perpetrators. On a practical level, the most likely witness against a criminal abortionist was a woman upon whom an abortion had been performed. Therefore, the legislature may have granted immunity to women in the interest of convicting criminal abortionists. Lending credence to this position is that nearly all states that did impose criminal penalties on abortive women offered immunity to those women who testified against an accused abortion provider. Despite all these considerations, at least seventeen states imposed criminal sanctions upon women who underwent surgical or chemical abortion.
  • p.565

• Pointing to a lack of contemporary consensus about pre- born personhood, the Roe Court asserted that they “need not resolve the difficult question of when life begins,” thereby failing to resolve the crucial question at the crux of the case. Much like the hunter who shoots into a quivering bush without identifying his target, the Court decided, in effect, that the human being in utero “is a non-person without stopping to consider whether or not he is a human being.” Admitting its ignorance on this important question, the Court’s only legally sound response would have been to “err on the side of life, and therefore to legally prohibit virtually all abortions.” After all, the Constitution expressly prohibits deprivations of life without due process of law, while notions of a right to privacy or a liberty interest protecting so-called reproductive rights are at best implied and unenumerated. As explained in Part II, originalist methodology establishes that the Fourteenth Amendment protects every biological member of the human family. Thus, authorizing the killing of a living organism “without knowing whether that being is a human being with a full right to life” would constitute willful judicial recklessness, “even if one later discovered that the being was not fully human.”
  • p.566

• Rather than weighing the interests of the preborn human being, the Court half-heartedly advocated for the interests of viable fetuses capable of “meaningful life outside the mother’s womb.” The arbiter of whether life is meaningful or not goes unnamed, but in practice the Court acts as the final decision-maker. The wisdom of the Framers of the Fourteenth Amendment is evident: protecting all human beings through use of the term “person” avoids troubling inquiries about what constitutes a “meaningful life” worth protecting, and who has the authority to answer such existential questions.
  • pp.566-567

• Roe’s legal judgment about the meaning of the term “person” was far from inevitable. A pre-Roe federal district court decision determined that the rationale of Griswold v. Connecticut did not extend to abortion and distinguished between contraception, which prevents the creation of human life, and abortion, which destroys existing human life. Rejecting the privacy argument, the three-judge panel ruled:
  [T]he legal conclusions in Griswold as to the rights of individuals to determine without governmental interference whether or not to enter into the process of procreation cannot be extended to cover those situations wherein, voluntarily or involuntarily, the preliminaries have ended, and a new life has begun. Once human life has commenced, the constitutional protections found in the Fifth and Fourteenth Amendments impose upon the state the duty of safeguarding it.
  • pp.567-568

• The facts cannot be honestly evaded: either the Roe Court “arbitrarily denied the unborn the constitutional protections due it or . . . the fourteenth amendment is inadequate as a legal device to protect the fundamental rights of all members of the human family, the avowed purpose of the drafters of the fourteenth amendment.”
  • p.568

• The Roe decision by Justice Blackmun, as well as the dissents by then-Justice Rehnquist and Justice White, with which Justice Scalia agreed, “are constitutionally unsound.” All permit “violation of the fetus’s constitutionally protected right to life without due process of law.” Returning abortion policy to the states would “leave considerable doubt as to the extent to which human life would receive affirmative protection under the laws of the several states.” The extent to which prenatal life would be protected or not would be dictated by “political pressure and popular sentiment,” potentially “constitutionaliz[ing] the mass murder of millions” of human beings in the womb.
  • p.568-569

• Tragically, Roe v. Wade allowed the judiciary to regulate which classes are worthy of receiving the “protection of fundamental liberties.” Bound only by its own sense of self-restraint, the Court asserted its absolute authority to define “‘person’ narrowly to fit its perceptions of acceptable public policy” and to “control[] the applicability of the due process clause to specific classes.” The Supreme Court’s abortion jurisprudence demonstrates the need to reexamine the Court’s role as “sole arbiter of the existence of fundamental rights” based on “its own perception of the relative worth of the parties whose rights are asserted.”
  That institutional introspection seems unlikely. The Supreme Court’s defense of the central holding in Roe indicates its un-willingness to reverse course and enforce equal protection for prenatal life. Likewise, legislative attempts to ban abortion are unlikely to withstand judicial scrutiny, unless invalidating such legislation would threaten the Court’s credibility. In the absence of departmental enforcement of the Fourteenth Amendment’s guarantees, a new constitutional amendment explicitly protecting prenatal life is likely necessary.
  • pp.570-571

“Federal judge blocks Alabama abortion ban” (October 29, 2019)

“Federal judge blocks Alabama abortion ban” by Abbey Crain, October 29, 2019, Birmingham News

• Alabama Attorney General Steve Marshall issued a statement regarding the judge’s ruling.
  “The district court’s decision to grant the plaintiffs’ request for a preliminary injunction of Alabama’s 2019 abortion law as to pre-viability abortions was not unexpected," Marshall said. "As we have stated before, the State’s objective is to advance our case to the U.S. Supreme Court where we intend to submit evidence that supports our argument that Roe and Casey were wrongly decided and that the Constitution does not prohibit states from protecting unborn children from abortion.”
• Rep. Terri Collins, R-Decatur, who championed the abortion ban in the Alabama legislature, also responded.
  “Today’s ruling is both expected and welcomed. Our law was designed to overturn Roe v. Wade at the Supreme Court level, and today’s ruling is merely the first of many steps on that legal journey. I remain confident that our mission will be successful and appreciate the support of millions of citizens who support our effort to preserve unborn life,” Collins said.
• State Senator Clyde Chambliss (R-Prattville), the Senate sponsor of the bill, called the judge’s preliminary injunction “judicial activism, pure and simple.”
  “In 2018, the people of Alabama overwhelmingly approved a constitutional amendment to declare Alabama a pro-life state, and the Human Life Protection Act was passed by supermajorities in both chambers of the Alabama Legislature,” Chambliss said. "Roe v. Wade was a terrible decision, built on faulty legal reasoning, that has resulted in the deaths of millions of innocent babies. The State of Alabama through the Attorney General’s Office will mount a vigorous defense of Alabama’s law in court — may this be the first step to restoring the rule of the U.S. Constitution and a culture of life on this matter.”
• State Attorney General Steve Marshall filed a response to the ACLU and Planned Parenthood on Aug. 5, declaring his intentions to challenge the Supreme Court’s ruling of Roe V. Wade.
  An attorney representing Alabama’s three abortion clinics said Marshall’s arguments have already been addressed by the Supreme Court’s consistent defense of allowing people to make personal decisions, including the right to have an abortion.
  “Alabamians must not be forced to relitigate their settled constitutional rights every time the State of Alabama knowingly and deliberately enacts an unconstitutional abortion law,” Alexa Kolbi-Molina, the American Civil Liberties Union Foundation lawyer stated in a court document filed in August.
  Alabama is one of at least six other states attempting to challenge the Supreme Court’s decision on Roe V. Wade, including Ohio, Georgia, Iowa, North Dakota, Kentucky and Mississippi.

Doe v. Bolton, 410 U.S. 179 (1973)

• Held:
  1. Doe's case presents a live, justiciable controversy and she has standing to sue, Roe v. Wade, ante p. 410 U. S. 113, as do the physician appellants (who, unlike the physician in Wade, were not charged with abortion violations), and it is therefore unnecessary to resolve the issue of the other appellants' standing. Pp. 410 U. S. 187-189.
  2. A woman's constitutional right to an abortion is not absolute. Roe v. Wade, supra. P. 410 U. S. 189.
  • pp.179-180

• In this appeal, the criminal abortion statutes recently enacted in Georgia are challenged on constitutional grounds. The statutes are §§ 26-1201 through 26-1203 of the State's Criminal Code, formulated by Georgia Laws, 1968 Session, pp. 1249, 1277-1280. In Roe v. Wade, ante p. 410 U. S. 113, we today have struck down, as constitutionally defective, the Texas criminal abortion statutes that are representative of provisions long in effect in a majority of our States. The Georgia legislation, however, is different and merits separate consideration.
  • MR. JUSTICE BLACKMUN delivered the opinion of the Court, [1], pp.181-182

• Our decision in Roe v. Wade, ante p. 410 U. S. 113, establishes (1) that, despite her pseudonym, we may accept as true, for this case, Mary Doe's existence and her pregnant state on April 16, 1970; (2) that the constitutional issue is substantial; (3) that the interim termination of Doe's and all other Georgia pregnancies in existence in 1970 has not rendered the case moot; and (4) that Doe presents a justiciable controversy, and has standing to maintain the action.
  • MR. JUSTICE BLACKMUN delivered the opinion of the Court, p.187

• The appellants attack on several grounds those portions of the Georgia abortion statutes that remain after the District Court decision: undue restriction of a right to personal and marital privacy; vagueness; deprivation of substantive and procedural due process; improper restriction to Georgia residents; and denial of equal protection.
  A. Roe v. Wade, supra, sets forth our conclusion that a pregnant woman does not have an absolute constitutional right to an abortion on her demand. What is said there is applicable here, and need not be repeated.
  • MR. JUSTICE BLACKMUN delivered the opinion of the Court, p.189

• I agree that, under the Fourteenth Amendment to the Constitution, the abortion statutes of Georgia and Texas impermissibly limit the performance of abortions necessary to protect the health of pregnant women, using the term health in its broadest medical context. See United States v. Vuitch, 402 U. S. 62, 402 U. S. 71-72 (1971). I am somewhat troubled that the Court has taken notice of various scientific and medical data in reaching its conclusion; however, I do not believe that the Court has exceeded the scope of judicial notice accepted in other contexts.
  In oral argument, counsel for the State of Texas informed the Court that early abortion procedures were routinely permitted in certain exceptional cases, such as nonconsensual pregnancies resulting from rape and incest. In the face of a rigid and narrow statute, such as that of Texas, no one in these circumstances should be placed in a posture of dependence on a prosecutorial policy or prosecutorial discretion. Of course, States must have broad power, within the limits indicated in the opinions, to regulate the subject of abortions, but where the consequences of state intervention are so severe, uncertainty must be avoided as much as possible. For my part, I would be inclined to allow a State to require the certification of two physicians to support an abortion, but the Court holds otherwise. I do not believe that such a procedure is unduly burdensome, as are the complex steps of the Georgia statute, which require as many as six doctors and the use of a hospital certified by the JCAH.
  I do not read the Court's holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand.
  • MR. CHIEF JUSTICE BURGER, concurring, pp.207-208

• My Brother STEWART, writing in Roe v. Wade, supra, says that our decision in Griswold reintroduced substantive due process that had been rejected in Ferguson v. Skrupa, 372 U. S. 726. Skrupa involved legislation governing a business enterprise; and the Court in that case, as had Mr. Justice Holmes on earlier occasions, rejected the idea that "liberty" within the meaning of the Due Process Clause of the Fourteenth Amendment was a vessel to be filled with one's personal choices of values, whether drawn from the laissez faire school, from the socialistic school, or from the technocrats. Griswold involved legislation touching on the marital relation and involving the conviction of a licensed physician for giving married people information concerning contraception. There is nothing specific in the Bill of Rights that covers that item. Nor is there anything in the Bill of Rights that, in terms, protects the right of association or the privacy in one's association. Yet we found those rights in the periphery of the First Amendment. NAACP v. Alabama, 357 U. S. 449, 357 U. S. 462. Other peripheral rights are the right to educate one's children as one chooses, Pierce v. Society of Sisters, 268 U. S. 510, and the right to study the German language, Meyer v. Nebraska, 262 U. S. 390. These decisions, with all respect, have nothing to do with substantive due process. One may think they are not peripheral to other rights that are expressed in the Bill of Rights. But that is not enough to bring into play the protection of substantive due process.
  • MR. JUSTICE DOUGLAS, concurring, (Footnote 2/4)

• The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court's judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court's exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.
  It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience, rather than to protect their life or health. Nor is this plaintiff, who claims no threat to her mental or physical health, entitled to assert the possible rights of those women whose pregnancy assertedly implicates their health. This, together with United States v. Vuitch, 402 U. S. 62 (1971), dictates reversal of the judgment of the District Court.
  • MR. JUSTICE WHITE, with whom MR. JUSTICE REHNQUIST joins, dissenting, p.222-223

• The holding in Roe v. Wade, ante p. 410 U. S. 113, that state abortion laws can withstand constitutional scrutiny only if the State can demonstrate a compelling state interest, apparently compels the Court's close scrutiny of the various provisions in Georgia's abortion statute. Since, as indicated by my dissent in Wade, I view the compelling state interest standard as an inappropriate measure of the constitutionality of state abortion laws, I respectfully dissent from the majority's holding.
  • MR. JUSTICE REHNQUIST, dissenting, p.223

“The Impact of Legalized Abortion on Crime” (May 2001)

John J. Donohue III and Steven D. Levitt, “The Impact of Legalized Abortion on Crime” The Quarterly Journal of Economics, Volume 116, Issue 2, May 2001

• We offer evidence that legalized abortion has contributed significantly to recent crime reductions. Crime began to fall roughly eighteen years after abortion legalization. The five states that allowed abortion in 1970 experienced declines earlier than the rest of the nation, which legalized in 1973 with Roe v. Wade. States with high abortion rates in the 1970s and 1980s experienced greater crime reductions in the 1990s. In high abortion states, only arrests of those born after abortion legalization fall relative to low abortion states. Legalized abortion appears to account for as much as 50 percent of the recent drop in crime.
  • p.379

• The Supreme Court’s 1973 decision in Roe v. Wade legalizing abortion nationwide potentially fits the criteria for explaining a large, abrupt, and continuing decrease in crime. The sheer magnitude of the number of abortions performed satisfies the first criterion that any shock underlying the recent drop in crime must be substantial. Seven years after Roe v. Wade, over 1.6 million abortions were being performed annually—almost one abortion for every two live births. Moreover, the legalization of abortion in five states in 1970, and then for the nation as a whole in 1973, were abrupt legal developments that might plausibly have a similarly abrupt influence 15–20 years later when the cohorts born in the wake of liberalized abortion would start reaching their high-crime years. Finally, any influence of a change in abortion would impact crime cumulatively as successive affected cohorts entered into their high-crime late adolescent years, providing a reason why crime has continued to fall year after year.
  • pp.380-381

• A number of anecdotal empirical facts support the existenc and magnitude of the crime-reducing impact of abortion. First, we see a broad consistency with the timing of legalization of abortion and the subsequent drop in crime. For example, the peak ages for violent crime are roughly 18 –24, and crime starts turning down around 1992, roughly the time at which the first cohort born following Roe v. Wade would hit its criminal prime.
  • p.381

• For example, Paulsen [1989, pp. 49, 76 –77] considers legalized abortion to be worse than slavery (since it involves death) and the Holocaust (since the 34 million post-Roe abortions are numerically greater than the six million Jews killed in Europe). Despite these claims, the Supreme Court has ruled that women have a fundamental constitutional right of privacy to abort an early-term fetus and that the state cannot unduly burden this right.
  • Footnote 3, p.383

• The available data suggest that the number of abortions increased dramatically following legalization, although there is little direct evidence on the number of illegal abortions performed in the 1960s. As Figure I illustrates, the total number of documented abortions rose sharply in the wake of Roe, from under 750,000 in 1973 (when live births totaled 3.1 million) to over 1.6 million in 1980 (when live births totaled 3.6 million). If illegal abortions were already being performed in equivalent numbers, one would not expect a seven-year lag in reaching a steady state. Moreover, the costs of an abortion—financial and otherwise— dropped considerably after legalization. Kaplan [1988, p. 164] notes that “an illegal abortion before Roe v. Wade cost $400 to $500, while today, thirteen years after the decision, the now legal procedure can be procured for as little as $80.” The costs of finding and traveling to an illegal abortionist and any attendant cost of engaging in illegal and therefore riskier and socially disapproved conduct were also reduced by legalization.
  • pp.384-385

• Perhaps the most convincing evidence that legalization increased abortion comes from Michael [1999], who finds abortion rates to be roughly an order of magnitude higher after legalization using self-reported data on pregnancy outcome histories.
  • p.385

• Consistent with this finding is a dramatic decline in the number of children put up for adoption after abortion became legal. According to Stolley [1993], almost 9 percent of premarital births were placed for adoption before 1973; that number fell to 4 percent for births occurring between 1973 and 1981. The total number of adoptions rose from 90,000 in 1957 to over 170,000 in 1970; by 1975 adoptions had fallen to 130,000.
  • p.385

• This decline is broadly consistent with survey responses by mothers in 1973 who report that approximately 13 percent of lifetime births were unwanted [Statistical Abstract of the United States 1980, p. 65, table 99]. Note, however, that the decline in births is far less than the number of abortions, suggesting that the number of conceptions increased substantially—an example of insurance leading to moral hazard. The insurance that abortion provides against unwanted pregnancy induces more sexual conduct or diminished protections against pregnancy in a way that substantially increases the number of pregnancies. Another possible explanation for the gap between abortion rates and fertility rate changes is that illegal abortion was already suppressing the birth rate by 15–20 percent and legalization reduced it another 5–10 percent, but this would imply a higher figure for the number of illegal abortions than we think is likely, as discussed above.
  • Footnote 8, p.386

• Prior to the legalization of abortion, there was a very strong link between the number of unwanted births and low maternal education over the period from 1965 through 1970 [Commission on Population Growth and the American Future 1972, p. 98]. Levine et al. [1996] found that the drop in births associated with abortion legalization was not uniform across all groups. They estimated that the drop in births was roughly twice as great for teenage and nonwhite mothers as it was for the nonteen, white population.12 In the years immediately following Roe v. Wade, data from the Centers for Disease Control [1994] indicate that almost one-third of abortions were performed on teenagers. Angrist and Evans [1996] found that while abortion reforms had relatively modest effects on the fertility of white women, “black women who were exposed to abortion reforms experienced large reductions in teen fertility and teen out-of-wedlock fertility.”
  • p.387

• The timing of the break in the national crime rate is consistent with a legalized abortion story. In 1991 the first cohort affected by Roe v. Wade would have been roughly seventeen years old, just beginning to enter the highest crime adolescent years. In the early-legalizing states (in which slightly more than 20 percent of all Americans reside), the first cohort affected by legalized abortion would have been twenty years of age, roughly the peak of the age-crime profile [Blumstein et al. 1986; Cook and Laub 1998].
  • pp.393-394

• Actual national abortion rates in the years immediately after Roe v. Wade were roughly 300 abortions per 1000 live births, but with considerable variation across states. For example, over the period from 1973–1976, West Virginia had the lowest abortion rate (10 per 1000 live births), while New York (763) and Washington, D.C. (1793) had the highest rates. There is a great deal of variation in crimes per 1000 residents, both across states and within states over time. The same is true for arrest rates.
  • p.402

• Roughly half of the crimes committed in the United States are done by individuals born prior to the legalization of abortion. As these older cohorts age out of criminality and are replaced by younger offenders born after abortion became legal, we would predict that crime rates will continue to fall. When a steady state is reached roughly twenty years from now, the impact of abortion will be roughly twice as great as the impact felt so far. Our results suggest that all else equal, legalized abortion will account for persistent declines of 1 percent a year in crime over the next two decades. To the extent that the Hyde Amendment effectively restricted access to abortion, however, this prediction might be overly optimistic.
  While falling crime rates are no doubt a positive development, our drawing a link between falling crime and legalized abortion should not be misinterpreted as either an endorsement of abortion or a call for intervention by the state in the fertility decisions of women. Furthermore, equivalent reductions in crime could in principle be obtained through alternatives for abortion, such as more effective birth control, or providing better environments for those children at greatest risk for future crime.
  • p.415

Dubay v. Wells 442 F.Supp.2d 404 (E. D. Mich., 2006)

Dubay v. Wells 442 F.Supp.2d 404 (E. D. Mich., 2006)

• On March 9, 2006 The National Center For Men will file suit in a United States district court in Michigan on behalf of a man's right to make reproductive choice, to decline fatherhood in the event of an unintended pregnancy. We will call our lawsuit Roe vs. Wade for Men. TM
  More than three decades ago Roe vs. Wade gave women control of their reproductive lives but nothing in the law changed for men. Women can now have sexual intimacy without sacrificing reproductive choice. Women now have the freedom and security to enjoy lovemaking without the fear of forced procreation. Women now have control of their lives after an unplanned conception. But men are routinely forced to give up control, forced to be financially responsible for choices only women are permitted to make, forced to relinquish reproductive choice as the price of intimacy.
  We will ask a United States district court judge to apply the principles of reproductive choice, as articulated in Roe vs. Wade, to men. We will ask that men be granted equal protection of the laws which safeguard the right of women to make family planning decisions after sex. We will argue that, at a time of reproductive freedom for women, fatherhood must be more than a matter of DNA: A man must choose to be a father in the same way that a woman chooses to be a mother.
  We will ask that women be required to share reproductive freedom with men.
  • The National Center For Men, p.7 Archived 2018-05-02 at the Wayback Machine.

• Immediately upon the filing of Roe vs. Wade for Men, The National Center For Men will begin distribution of its Reproductive Rights Affidavit, intended to be filed in court by a man and designed to give men legal rights in matters of procreation. We think it will encourage men and women to make family planning decisions together, as equal partners, by giving a man a voice but without interfering with a woman’s right to choose. It reads, in part:
  “I will not recognize the moral authority of a court to strip me of my constitutional right to reproductive choice. I will challenge any court order that seeks to impose a parental obligation upon me against my will by asserting my right to equal protection of the law.”
  • The National Center For Men, p.7 Archived 2018-05-02 at the Wayback Machine.

• Abrams was sympathetic to the idea that a man should not be forced into fatherhood if he was the victim of fraud or deceit. In fact, even when the press has been hostile to men's rights issues in general, it has usually referred to "Roe for Men" with at least a neutral curiosity. As an example, take a look at the February 12, 2008 issue of The Nation, which characterizes our position as giving a man the opportunity to relinquish, through the courts, the rights and responsibilities of parenthood just as a woman has the opportunity to end her potential parenthood through abortion. They got it right.
  • The National Center For Men, p.7 Archived 2018-05-02 at the Wayback Machine.

“Revisiting Roe v. Wade: Substance and Process in the Abortion Debate” (Spring 1993)

“Revisiting Roe v. Wade: Substance and Process in the Abortion Debate” by Margaret G. Farrell and Benjamin N. Cardozo, Indiana Law Journal, Volume 68, Issue 2, spring 1993

• The abortion debate in this country has been framed as a conflict between abstract interests in life and liberty-fetal life, when it is protected by the state, and the liberty of women to terminate their pregnancies. In 1973, the abortion conflict was settled legally by the U.S. Supreme Court in “Roe v. Wade”, when the Court balanced the two conflicting interests and announced a prescription for future accommodation. However, the Roe decision neither settled the national dispute about abortion nor provided instruction on the proper role of courts in the social drama played out around the life and death issues that advancing medical technology puts in high relief. Instead, the decision seemed only to fuel the acrimony between pro-life and pro-choice advocates and to raise serious questions about the function of the Supreme Court in our constitutional democracy.
  • pp.272-273

• [B]y trying to resolve the social issues raised by abortion technology through litigation, we have transformed the real-life, contextual, relational, complex facts about abortion into a two-sided contest between generalized maternal rights to privacy and theoretical state interests in potential human life, a process that teaches us little about the moral and social problems we seek to resolve.
  • p.274

• As some of the Justices recently observed, the abortion debate is an “intensely divisive controversy” between “contending sides of a national” dispute. Thus, the Court’s decision in Roe v. Wade, which might be viewed as a compromise recognizing both a woman’s privacy interest in terminating her pregnancy in its early months and the state’s compelling interest in protecting potential fetal life in its later months, is usually regarded only as a victory for abortion rights. Responsibility for that perception has been laid upon the Court itself. Legal scholars criticized Justice Blackmun’s opinion in Roe for being unnecessarily divisive and inflammatory, and for alienating those with a world view that does not permit abortion. The presentation of the issues in irreconcilable, polarized terms and the Court’s resolution of them in those terms, both in Roe and in Casey, have provoked extremist reactions by some member of the public, who use threats of violence to traumatize pregnancy women entering abortion clinics and who vandalize, bomb and burn the clinics themselves. The debate continues to rage around the nomination of Justices to the Supreme Court and the provision of abortion information in federally funded clinics. Unless the abortion controversy can be diffused, we run the risk that it will polarize our thinking on related issued, widening the national divisions it reflects.
  • pp.275-276

• An examination of the use in Roe of traditional procedural doctrines regarding professional solicitation, standing, mootness, remedies, intervention, amicus curiae participation, and class representation illustrate how unsuited these doctrines are to the job presented by litigants seeking judicial wisdom about the utilization of new medical technology, like abortion.
  • p.282

• Twenty-six-year-old Norma McCorvey, much better known as “Jane Doe,” the plaintiff in Roe v. Wade, discovered in 1969 that she was alone in a small Texas town pregnant, penniless, and forsaken. When she could not find a doctor who would perform an illegal abortion for a fee she could afford, she was put in touch with attorneys Sarah Weddington and Linda Coffee, who, although McCorvey did not know it, were ideologically motivated lawyers looking for a plaintiff to test the constitutionality of Texas’s anti-abortion laws.
  One of the threshold issues presented by Norma McCorbey’s situation is whether a court should have entertained a lawsuit brought in an effort to use the judiciary as an instrument of social change. Out of a concern that lawyers may stir up unnecessary litigation and engage in overreaching, misrepresentation, and invasions of privacy, lawyers have been ethically restrained from making contact with potential plaintiffs no matter how meritorious the client’s unsuspected claim for damages might be. However, out of deference to the First Amendment rights of lawyers who have a desire to further civil rights and similar political objectives, states may not discipline lawyers who take the initiative and actively solicit clients, like McCorvey, so that they can invoke a right to judicial resolution of the political questions on their minds. These suits present disputes different in kind form traditional lawsuits involving private claims put forward by lawyers who act as spokesmen for their individual clients.
  Furthermore, ideologically committed organizations often pay the attorneys’ fees and expenses of such litigation and in doing so, control the substantive and the procedural strategies of the litigation. The point is that by creating a public interest exception to rules limiting solicitation, courts themselves have invited, or at least accepted, the task of resolving complex social and politically important issues like abortion. But they do so without providing adequate procedures for carrying out the task.
  • pp.282–283

• By the time she interviewed the lawyers who eventually represented her, Norma McCorvey was about three months pregnant; by the time they filed her complaint, she was seven months pregnant; by the time the lower court heard the case, she had given birth; by the time the U.S. Supreme Court decided the case, her baby was three years old and living with adoptive parents. Norma McCorvey already had responsibilities to a child being raised by her mother, had only a tenth-grade education, had little or no money for medical expenses, was without the means to support another child, and had no relationship with the man with whom she had conceived (indeed, for a time she had lied about being gang raped). How did the facts of Norma McCorvey’s pregnancy all get reduced to the abstract conflict between a woman’s right of privacy and the unborn’s right to life. The litigation distorted the issues into a polarized dispute because the trial court simplistically treated McCorvey’s request for broad injunctive relief as it would have treated one for compensatory relief.
  • pp.283-284

• The adversarial process, as it is usually applied, bifurcates messy issues like abortion into competing camps. Having evolved largely as a mechanism for providing individual complaints compensatory relief for past injury, the litigation process necessarily presupposes the existence of a party who claims injury and seeks damages for a loss for which another party should be held responsible. The procedures used in law and equity were designed to assure the participation of suitable litigants, to permit the presentation of reliable facts relevant to the alleged injury and its causes, and to limit the court’s attention to disputes it had the power to resolve. Norma McCorvey, however, was not seeking damages for losses she suffered as a result of the application of Texas’s unconstitutional abortion laws, nor was she even seeking an injunction permitting her to lawfully abort the fetus she carried. Instead, she sought a declaratory judgment that the Texas law, duly enacted by a legally constituted legislature, was unconstitutional on its face, not just as it applied to her. And she sought an injunction prohibiting enforcement of the Texas statute for as long as the Constitution resigns. As unalike as the objective of common law suits and this kind of constitutional litigation may be, the same adversarial procedures are used in both to select appropriate parties, distill factual evidence, and shape the issues for decision. The result is that the untidy issues actually faced by those who are affected by the utilization of abortion techniques are stripped of their contextual character, convolution, and relativism, and are presented as simple, abstract, absolute values in conflict.
  • pp.284-285

• [T]he three-judge district court in Roe v. Wade permitted only persons with certain interests in abortion-pregnant women and the state-to debate the constitutionality of the Teas statute. The court was willing to let Norma McCorvey bring a cause of action to strike down the Texas criminal law despite the fact that she could not be prosecuted under it. However, the Supreme Court found that, despite the fact that doctors could be (and were) criminally prosecuted under the statute, a doctor did not have standing to intervene in the civil Roe litigation. Ironically, in Griswold v. Connecticut and Roe v. Wade, persons who could not have been prosecuted under the challenged statutes were allowed to proceed as parties to the litigation, while persons who could have been prosecuted were not permitted to participate and to represent their own interests.
  • pp.285-286

• [T]he interests of married couples in using abortion to avoid parenthood were not represented in Roe because the trial court found that they too lacked standing. Though the availability of abortion technology implicated different interests and relationships of married, as opposed to single, women and their spouses, the trial court found the interests of John and Mary Doe too speculative to present a justifiable controversy. As a matter o fact, the Does had conceived a child prior to the suit an obtained an abortion. How different, then, was their situation from that of Norma McCorvey at the time of the district court hearing, after she had given birth, when the court found that her claim was not moot because she might become pregnant again and wish an abortion? Did the fact that the Does had been able to obtain an abortion by traveling out of the country, while McCorvey could not afford to do so, deprive them of standing they would otherwise have had, even as members of the lass represented by Roe? We are not informed by the trial court’s cursory treatment of standing issues.
  • pp.286-287

“Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision that Made Abortion Legal” (2001)

“Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision that Made Abortion Legal” by Marian Faux, New York City: Cooper Square Press, 2001

• The story of Roe v. Wade has never been told before, and despite the Supreme Court decision, the abortion issue has never been resolved. Every year antiabortion forces fight a more aggressive battle to undo the abortion decision. They have begun to make inroads in some states and have repeatedly brought before the Supreme Court case designed to chip away at the abortion right. Only in the past few years have the pro-choice reformers awakened to the need to continue their struggle.
  • p.x

• Abortion is, I think, one of the most trying issues of our time. A great deal of pain and rage exists on both sides of the debate. After all, abortion concerns nothing less than the value we place on human life. Those who oppose abortion believe that the value must be held collectively, that one standard must apply to everyone and to all circumstances, while those who support the abortion right believe that the choice can only be made individually.
  Adding to the conflict is the face that what people believe, at least where abortion is concerned, they tend to believe fervently. This, if nothing else, makes abortion an unresolvable issue, one about which people cannot be rational.
  • p.x

• In 1954, when the Supreme Court ruled in Brown v. the Board of Education that American schools were to be desegregated, a majority of Americans disagreed with the decision A year later, though, polls showed that most people had come around to supporting Brown, at least in theory, and most of the controversy surrounding the case had died down.
  The same could hardly be said for Roe v. Wade, although ironically, when the Court decided Roe in 1973, a majority of Americans agreed with the decision. Despite this consensus that abortion should be legalized, an immediate furor arose over the decision; nearly thirty years later, this conflict remains unresolved. Roe v. Wade is one of the most disputatious Supreme Court decisions ever handed down. No issue has festered in the American consciousness the way abortion has. Roe v. Wade is a story that never ends, and this introduction is intended to update the reader on what has happened to the abortion right since the decision because this is also part of the Roe v. Wade story.
  • p.xv

• The decision generated an enormous amount of political activism among supporters and opponents of legal abortion, partly because no one expected that the opinion would be so sweeping. Roe v. Wade made abortion legal literally overnight everywhere in the United States. Stunned antiabortion activists immediately set about organizing a campaign to overturn the decision. Meanwhile, pro-choice activists, who had believed that the decision would end any controversy over abortion, were equally shocked when this did not happen. Countless battles have been fought over Roe v. Wade, and the war still rages.
  That the war has been fought largely in the political arena can be attributed to the fact that the decision, in addition to legalizing abortion, changed the terms of the debate, also overnight. Before the decision, discussion about abortion centered on its morality. An obviously safe and comfortable battleground for antiabortionists, whose opposition was largely religious. After Roe v. Wade, with abortion legal, it was no longer possible to argue that a woman who underwent an abortion was immoral. The decision had converted abortion from a moral struggle into a legal one.
  • p.xv-xvi

• More than any other event, Roe v. Wade served to politicize the religious conservatives who led the fight against legalized abortion in the 1980s. They had other issues on their agenda, but abortion soon headed the list. Furthermore , having lost the moral high ground, they had no choice but to fight legal abortion in Congress, in the state legislatures, and in the courts. The war was waged in the court of public opinion as well, because once the battleground became political it would be impossible to make abortion illegal again without the support of a majority of Americans.
  After multiple rebuffs by the Supreme Court, antiabortion activists realized that Roe v. Wade would not be overturned as easily as they had imagined. In the period immediately after the announcement of the decision, every time anti-choice activists went into court, the abortion right seemed to emerge further solidified or expanded. As a result, they refocused their attention on legislative activity. If they could not get Roe v. Wade reversed, they could at least chip away at it. Antiabortion activists did this by introducing bills that required spousal and parental consent, by insisting that federal monies not be used for abortions, and by attempting to regulate the act of abortion itself.
  Attempts to enforce spousal approval were destined to fail in an era when women’s rights were expanding. Roe v. Wade lodged the abortion right firmly with the woman, and several subsequent Supreme Court decisions failed to lend support to any kind of spousal consent law. Antiabortion activists had more success with parental consent laws. Unlike spousal consent laws, which angered women and flew directly in the face of Roe v. Wade, parental consent laws antagonized fewer people. These laws garnered a lot of public support, although this was partially because of the way that the antiabortion movement packaged the issue. Antiabortion activists insist that without parental consent laws, the federal government will make decisions that traditionally belong to the family.
  • p.xvi

• A few months earlier, during August 1969, Norma had been traveling throughout the South with a carnival. Her job selling tickets to an animal sideshow was not exciting, but she loved the life. It was the people who attracted her to the carnival. These people were theater. They were even better than theater, these exotic vagabonds who got paid for roaming the country and performing their various acts and tricks for delighted audiences. Norma liked this life more than anything she had ever done. For once she did not feel like an outsider, as she so often had with her family. The carnival felt like the home she had been searching for and had never found. Unlike her parents, her co-workers simply accepted her for what she was and asked few questions. She had even made a couple of special friends, two women with whom she shared a motel room.
  Norma told Linda and Sarah how she was selling tickets one sultry summer night, the last night of the carnival’s gig in a small town outside Augusta, Georgia, when some minor trouble broke out. She and several of her co-workers were harassed by a group of rough-looking, tough-talking young men. Since it was the kind of disruption that often rippled through a traveling show, it was no cause for alarm. Because this was the carnival’s last night in town, the atmosphere was more festive than usual, and the women treated the men with good humor, even bantering with them a little bit.
  After the show closed that night, several hours’ work remained to be done, taking down the big tents and packing them away so the show could leave the next morning. As a result, Norma and her roommates decided to walk back to their motel rather than wait for their usual ride. It was during the walk back to the hotel with her friends, Norma recalled, that real trouble broke out. On the way back to her room, she told Weddington and Coffee, she was raped.
  • pp.7-8

• Norma could remember few details of what had happened to her. She thought she had lain by the side of the road for several hours. The rest of the evening passed in a haze. When Weddington gently probed for more, Norma’s story became confused and vague. She thought the rapist might have been one of the men who had disrupted the circus earlier in the evening.
  What had happened to the women who were with her? Sarah asked. Norma said she did not know, she only knew that when she managed to rouse herself, she was alone. She stumbled back to her motel room, only to find it empty. Her roommates had vanished, taking her belonging with them. She did not report her rape to anyone, nor did she talk to or even see anyone in the hours immediately following the rape. She crawled into bed.
  When she awakened in the motel room the next day, Norma was still alone. The circus had left town without her and, in the course of doing so, had left her with no money, no way even to pay for the motel for another night. A defeated Norma decided she would return to Dallas, where her family and friends lived She knew no one in Augusta, Georgia, whom she could ask for help. Norma telephone an old friend in Dallas to ask her to send enough money for the bus trip home. To her chagrin, the friend wired only the exact amount of the bus fare Norma sold the taxi driver the radio from her motel room to pay for her fare to the bus station. The trip back seemed endless, Norma said, particularly since she had no money to buy food and thought she had changed buses several times.
  • p.8

• Norma told the two women about her search for an abortionist. She knew that she did not want to have this child. She did not know the father. She had no way to support a child-no home and little income. She was not even managing to rear her daughter, who was living with her mother and stepfather in Arkansas. Her life was a mess, and she had no idea when or how she would pull it together.
  She asked the physician who had told her she was pregnant about an abortion.
  • Ch.1 p.9

• Norma was not one of the lucky ones. Her physician curtly informed her that abortion was illegal in Texas and suggested that she travel to where the laws were more liberal. In 1967 abortion was legal in Colorado and California, two nearby states, as well as in Georgia, but even the new, so-called liberal laws had restrictions, such as residency and time requirements, that would have made obtaining a legal abortion difficult for Norma. Texas women frequently went to Mexico to obtain illegal abortions in the numerous clinics operated for that purpose, but Norma had heard abut those-especially the cheap ones-and did not want any part of them. Besides, she barely had carfare home from the doctor’s office, let alone the money to travel anywhere to get an abortion. It seemed her only alternative was an illegal abortion in Texas. She hopes she could find someone skilled to do the surgery.
  Norma spent the next few weeks in a futile search for an abortionist. She talked to a few women she knew, hoping one of them would give her the name of someone who could help. She learned that a competent abortion, even an illegal one, cost a lot of money. The kind that could be bought for $50 or $100 was not, in Norma’s opinion, worth risking.
  Gradually, over several weeks, she began to consider the only other option she could think of, which was adoption. She returned to her physician for help. He gave her the name of a young lawyer, Henry McCloskey, who sometimes arranged private adoptions. Norma called McCloskey, and he agreed to meet with her.
  McCloskey turned out to be a kind man who took time to listen to Norma and get to know her. She told him that she really wanted an abortion, but since she could not afford one she had no choice but to have her child and put it up for adoption.
  Without telling her why, McCloskey asked Norma to meet another lawyer. He promised Norma she could return to him if the other lawyer was not helpful. That was how Norma met Linda Coffee and why she was sitting in a restaurant recounting her story for Coffee and Weddington.
  • p.10

• Now it was time for Coffee and Weddington to tell McCorvey what she could do for them. They told her they were looking for a woman to be a plaintiff in an abortion suit. They asked Norma if she were aware that many people wanted to change the abortion laws. Norma was not alone in her attempts to obtain a legal abortion, nor was she alone in her failure to get one. Many women who needed abortions found themselves unable to obtain one and were forced into illegal ones. Because abortion was illegal, no one knew for sure how many women terminated their pregnancies, but one study found that the women surveyed ended between one-fifth and one-fourth of all their pregnancies.
  Only eight to ten thousand legal abortions were done each year in the United States, while experts guessed that between a million and a million and a half abortions were done annually. Women who got illegal abortions took a much greater risk than those who were able to obtain legal ones. Some women got to competent illegal abortionists, Weddington said, but many more suffered at the hands of uncaring, unscrupulous, illegal practitioners.
  While she was looking for someone to perform an abortion. McCorvey told the two women, she had heard many horror stories about what happened if a woman went to the wrong kind of abortionist. That was why she had not been able to go through with the surgery. No licensed doctor would agree to perform the operation, and although one abortionist had offered to do it for $500, he did not have a medical license, and she was afraid to let him touch her.
  Weddington asked Norma how she had felt when she could not get an abortion. Norma replied that she was angry at being forced to have a child whom she did not want and could not care for. Sarah said that she and Coffee were angry too, and that they wanted to help women in her plight. That was why they needed her help.
  • pp.10-11

• Weddington and Coffee’s motivation in taking on the Texas abortion laws was, I discovered somewhat to my surprise, primarily ideological. On one of my visits to Texas, I asked the two women why they had decided to work on abortion reform, as opposed to any number of other women’s issues. Neither woman had undergone an abortion nor had any firsthand experience with one. Like so many other women their age, they had known or heard of women who had undergone illegal abortions, but abortion had not touched either woman in a close, personal way. But like many women, although their interest was impersonal and somewhat abstract, they were angry. As they told Norma, they wanted to help women, and since they had legal skills-something few women could claim at that time-they thought they could use them to do something about the present restrictive laws. Each woman told me separately, in remarkably similar words, how attuned she was to the rapid changes occurring in women’s lives. The idea of abortion liberalization was in the air from the mid-1960s on, and the two women thought they could do something, at least about the Texas law.
  • pp.11-12

• Norma knew nothing about the legal system. She had no idea what a plaintiff was and consequently was not sure what she was being asked to do. Coffee and Weddington told her they were planning to challenge the abortion law of the state of Texas. They could not do this, they explained, simply by going into court and asking a judge to overturn the law. Instead, they had to bring a suit-in this instance, obviously, a suit involving a pregnant woman-into court. The pregnant woman, not Coffee or Weddington, would actually sue the state of Texas. Because she was the person filing the formal complaint, she was considered the plaintiff. After the suit was filed, there would be a trial or a hearing, perhaps several hearings. Norma might have to be present; she might even have to testify. Sarah and Linda assured her, however, that they would do most of the talking in the courtroom.
  A judge would then weight the facts of the suit and use them to decide whether or not to permit the plaintiff to have an abortion. If a Texas judge ruled that one woman could undergo an abortion, then all the women in Texas in similar circumstances would be entitled to one. Coffee and Weddington wanted to build a broad-enough case to that any Texas women who wanted an abortion would be able to get one as a result of the ruling they hoped to obtain. They hoped their case would result in a clear-cut rejection of the Texas abortion law.
  It would not be easy to build such a case, and the risks were high, they knew. Once they went into court, a judge could decide in their favor, ruling that the Texas abortion law was illegal. He could decide to strike only certain parts but not all of the law, or, worst of all from their point of view, a judge could decide that no part of the law was illegal and in effect let the law stand as it was. In that event women would not be allowed to have abortions, and it would be difficult for anyone else to challenge the Texas abortion law after a recent ruling supporting its legality.
  • p.12

• [I]f it would help, they would want their plaintiff present in the courtroom during the proceedings, an event that would almost certainly destroy any anonymity she had. Her presence might even be required by the court. Alternately, they might try to play down her role, in hopes that she would be seen as a sort of Everywoman, a symbol of the need to reform the abortion laws. Either way, their plaintiff would have to be under their control. Would McCorvey, they asked themselves, submit to their guidance in matters like these?
  Yet such considerations were just theoretical possibilities that might or might not occur in the course of the lawsuit. The most pressing practical issue, Coffee would recall in our conversations, was whether they could actually help Norma get the abortion she wanted. Just possibly they could arrange for her to obtain a court-sanctioned one, but chances were far greater that they would not be able to do so. The wheels of justice did not turn rapidly. By the time the legal system was through chewing on the wisdom of whether to allow her to have an abortion, Norma would most likely have had her baby.
  Norma had looked pregnant to Linda Coffee since their first meeting. It seemed to Coffee that she was pushing, if not into, her second trimester. This meant that if Norma were to undergo an abortion, she should do so right away-probably within the next two or three weeks. The only way the two lawyers could see to act quickly enough was to file a request for a restraining order.
  • Ch.2, p.15

• Although this was something they had yet to research, Weddington and Coffee thought they could take their case into a federal court, that this was the proper forum for challenging a state law. It offered the possibility of a more encompassing decision, one that could set a precedent for decisions outside Texas. But it also made their case more difficult. The federal courts, ever wary of states’ rights issues, were being ultracautious, largely because of some recent ruling involving criminal cases in which they were perceived, at least by some, as having overstepped their power to rule on state laws. In fact, there was every reason to believe that a federal judge would be even more reluctant than a local or a state judge to issue a restraining order that would overturn a state criminal law.
  Apart from all these considerations, even if they did find judge willing to issue a TRO, they would still have to find a physician willing to do the abortion. That they suspected would be an impossible task as long as the law was still in limbo and the physician might risk later prosecution.
  The first and most difficult decision the two lawyers made, then, was not to seek a TRO for Norma, even though that was her only chance for getting court permission in time to have a legal abortion. Since she wanted an abortion badly, this might mean she was not the best plaintiff for them after all. They needed to impress upon her exactly what this meant-namely, that she would most likely have to go ahead and have the baby if she became their plaintiff.
  • pp.15-16

• After hearing so much about McCorvey’s background, Weddington and Coffee became concerned that she might not be such a good plaintiff after all. Her life thus far-a high school dropout, married at sixteen, a daughter she did not have custody of, walking out on a visit with her daughter to join a carnival, her present hand-to-mouth existence-was a major problem. Another problem was the rape. In our talks, both Weddington and Coffee recalled that it was a delicate issue. Sensitive as the two women were to any woman’s claim that she had been raped- a claim that was too often ignored or, worse, challenged-they were also lawyers, trained to size up a potential witness’s credibility. And whatever had happened to Norma McCorvey, they did not feel that she would be a credible plaintiff in a rape case, let alone in an abortion case involving a rape.
  Coffee in a particular was struck by McCorbey’s lack of emotion when she described the rape at their first meeting. Some rape victims are stoic, even with the people who try to counsel or otherwise help them, but McCorvey’s remarkably unemotional recounting of how she had been raped made her lawyer uneasy. McCorvey was vague about the circumstances of the rape, and her story became more unclear and the details more bizarre with each retelling. She told Coffee and Weddington she had not gone to the police or filed nay kind of official report. Initially, she said she had been raped by one man; she later changed her story and claimed she had been gang-raped, sometimes by several men and her female companions, sometimes by a white, black, and Hispanic man, a highly unlikely combination to have been walking together down a Georgia country road late at night in 1969.
  • pp.18-19

• Weddington and Coffee wondered whether McCorvey had, I fact, been raped, but regardless of the circumstances, they were concerned that the rape not become an issue in their case. Rape victims did not fare well in court. Their lives were often subjected to excessive scrutiny. In fact, much more attention was typically focused on the character of the women who were raped than on the men who raped the, and women who pressed rape charges frequently had to prove that they had not in some way “invited” the rape. Beyond that, there was the problem of blame-and punishment. However much rape (and, for that matter, abortion) laws appeared to be neutral, they were not. They were based at least in part on society’s standards and expectations regarding sexual mores. Therefore, a woman who was perceived as having “invited” a rape was seen as having gotten what she deserved, and similarly, a woman who “needed” an abortion had better be prepared to prove that she deserved one.
  • p.19

• The second time the three women met, the lawyers explained to McCorvey that in all likelihood she would have to go ahead and have her baby if she became their plaintiff. They told her there was almost no chance that a court would decide her case in time for her to get an abortion, and that possibly the law would not be overturned at all.
  Coffee and Weddington offered to help Norma get an abortion if she wanted one. They felt honor-bound to do so. There was a slight chance that they could still use her as a plaintiff even if she got one. Coffee thought they could perhaps build a case around the argument that their client had been forced into a dangerous, possibly septic and illegal act, and that it was violation of her (and by implication, other women’s) civil rights to put her in this position. Both women knew, however, that they were are more likely not to use Norma as their plaintiff if she got an abortion They would probably go looking again for a pregnant woman who would be willing to be their plaintiff.
  Norma turned down their offer and agreed to go ahead and have the child. Although Weddington would recall that her motives for doing so had been largely altruistic, her decision was also undoubtedly motivated, at least in part, by the simple fact that four months into her pregnancy she was not likely to get an abortion anyway. After three months, abortion was done by a mini-Caesarean section and was considered major surgery. Rarely could a “legal” hospital abortion be arranged at that stage, and illegal abortionists never risked this kind of surgery. In another fifteen years, the technology would be developed to make late abortions safe, but in 1969 it did not yet exist.
  The next thing Coffee and Weddington brought up with Norma was how long the case might take-months or even years, if it were appealed. Although the legal maneuvering would be complicated and difficult for any layperson to understand, they promised they would do their best to keep her informed throughout the case.
  • p.22

• Finally, the three women discussed the publicity that would quite likely ensue from the case. Abortion was rapidly becoming a hot topic with the media, and hardly a week went by without another newspaper series, editorial, or nationwide poll pointing out the mounting pressure for reform. Although the subject had been taboo only two or three ears ago, women’s magazines now wrote regularly about abortion-usually touting reform. Weddington and Coffee suspected that a torrent of publicity would begin once the press got wind of their suit. With it, they feared, might also come some harassment of their client or, at minimum, the loss off her privacy.
  The latter would be more overwhelmingly intrusive than she might imagine, they warned. They could try to protect her from it but might not be able to do so. If the court insisted that she appear or testify, they would not be able to keep the press from identifying her and delving into her background. The press would be eager to interview her. She would, they warned, become the “human interest” in an otherwise relatively dry legal case.
  Norma’s fears about publicity had more to do with her family than anything else. Her father was a Jehovah’s Witness, and her mother was nominally a Roman Catholic; while neither parent was particularly religious, she worried that they might have strong antiabortion opinions. They had never expressed any feelings one way or the other about abortion, but then she had not told them she was trying to get one.
  • p.22

• Ultimately Norma decided to go ahead with the lawsuit but indicated she wanted as little publicity as possible. She specifically did not want her parents or her daughter to know of her role in the case. Nor would she tell her friends. When Coffee and Weddington suggested the use of a pseudonym, she readily agreed. It would at least offer her some protection. They quickly settled on Jane Roe.
  Coffee and Weddington would prove to be quite successful at protecting their client’s privacy. Over the years, reporters would occasionally try to discover Jane Roe’s identity, usually on important anniversaries of the case. Her lawyers grew so used to her refusals to grant interviews that they no longer called her with requests. For ten years, until Norma herself broke the silence, no one, not even other lawyers who would work on the case knew who Jane Roe was.
  When McCorvey broke her silence in the early 1980s, she talked only to a handful of reporters and writer before engaging the services of an entertainment lawyer in Dallas. After that, she would only agree to be interviewed if she were paid.
  • pp.23-24

• Coffee and Weddington had only one last concern to bring up with McCorvey before settling on her as their plaintiff, and that was whether she would be able to go the whole way with them. After having come so far, they could not bear the thought of putting in months of work on the case only to have their plaintiff get cold feet and ask them to drop the suit. They talked to Norma about this, too, until both women were convinced she would stay with them.
  From their first meeting with Norma, Coffee and Weddington had been impressed with her enthusiasm and spunk, as well as her desire to help other women who were in the same situation. Through all their discussions, Norma never wavered from her willingness to proceed. In our conversations, Weddington would recall that Norma seemed to have some sense of the historic proportions of the case. <br The three women agreed that it was settled: Norma McCorvey would become their plaintiff. A Challenge to the Texas abortion law, which had stood inviolate for over one hundred years, was under way.
  • p.24

• One possible means of change, a painstakingly slow one, was the state legislature. But that would require the cooperation of Texas state legislators, most of whom wanted nothing to do with “libbers’” causes or even, for that matter, causes of women who were not “libbers.” Besides, Weddington and Coffee had no political clout with the Texas state legislature-and, in fact, they knew few Texas women who did.
  A court challenge was the other possibility, one that seemed more viable. The courts, especially the federal benches and the Supreme Court under Chief Justice Earl Warren, were the scene of most battles over civil rights legislation in the reform-oriented 1960s, in large part because they had proved to be the branch of government most receptive to social change. Of course, a court challenge could drag on, too, as witnessed by the years of courtroom squabbling that had followed the Supreme Court decision ordering the desegregation of public schools. The city of Dallas had been embroiled in a suit to work out an acceptable desegregation plan for almost a decade.
  Coffee had experience with the judicial system, and that would be helpful. Another advantage to a court challenge was the element of surprise it would provide. Law enforcement officials would not be expecting a court challenge, so the state might not offer much opposition. All things considered, both women thought the courts were probably the way to go, in Texas at least. They decided they would each begin looking for a potential test case to take into court.
  • pp.36-37

• In all their hours of planning and speculating, the one thing the two young, inexperienced lawyers never discussed or even considered was their boldness in planning to challenge a state law. This was because the idea of taking on a state government or even the federal government, for that matter, was not as unusual or difficult a task in the late 1960s as it has since become. In those heady days of civil rights activity, countless lawyers, many of them fresh out of law school and imbued with a sense of idealism, were hoping and praying to make their mark somewhere. At issue was not so much whether they would challenge a law, but which law they would challenge. Coffee and Weddington later admitted they were simply too young and inexperienced to understand fully what they were taking on. In one of her rare expansive moods, Coffee told me, “When you’re young, you have high aspirations, and you just do what needs to be done.”
  • p.37

• The first order of business was to find s suitable plaintiff. Thinking that their best resources were the numerous feminist organizations that they had joined, each woman stepped up her activities, Weddington in Austin, where she was still living at that time, and Coffee in Dallas. Both women made themselves available as speakers on the subject of abortion. They gave speeches intended to educate women on the need for abortion reform, but always, as they made the rounds of various women’s groups, the more traditional volunteer groups as well as the feminist ones, each was looking for a certain kind off woman, someone with the potential to become an abortion-case plaintiff.
  It was also not unusual for a lawyer who was looking for a plaintiff in a test case to put out feelers among his or her colleagues to be on the lookout for someone suitable, and Coffee had done that in Dallas.
  • pp.37-38

• For a while, Weddington has hopeful that a plaintiff could be found among the women in the problem-pregnancy counseling group-if not among the organizers, then among the women they counseled. She met several times with the abortion-counseling group to discuss the possibility of developing a test case. She talked about what was needed to overturn the laws, how such a case would proceed, and of the demands that might be made of anyone who volunteered to become a plaintiff. Gradually, though, her hopes faded, at least for finding a plaintiff among the referral group. One problem was that most of the women who sought counseling new they wanted an abortion. The sooner a woman underwent an abortion, the healthier it was for her, and few were willing-or could justifiably be asked-to risk the delay that even brief legal proceedings might entail.
  The other possibility was to use a member of the referral group who happened to be pregnant, even a woman who did not want an abortion but was willing to claim that she did in order to press an abortion suit against the state. It certainly was not Weddington’s first choice to use a kind of trumped-up defendant, but if no one else turned up, she realized that it might be her only option. That might be more humane in the long run, anyway, since she knew that any suit she filed would most likely not be decided in time for a plaintiff to undergo an abortion.
  Still another thought was to file a class-action suit using the Austin referral group. The members were eager to help in any way they could, so much so that when Weddington once asked if anyone in the group happened to be pregnant, several voices chorused, “No, but that can be arranged.” The problem with using the group was that at least one plaintiff had to be representative of the class. In this case, that meant pregnant and desiring an abortion.
  • p.38

• Coffee, too, had begun to do more public speaking in Dallas in an attempt to find a plaintiff. One night, at a meeting of a feminist-oriented group, Coffee was approached by a couple who began to talk to her about her work in abortion reform. Eventually the couple got around to suggesting that they might be willing to become plaintiffs in an abortion support. The woman told Coffee that since 1968 she had suffered from a neural-chemical condition that caused backaches and depression severe enough that her physician had suggested she not become pregnant for the time begin. She had to stop using the Pill, then the most reliable form of birth control, because it blurred her vision. Four months after the onset of her physical problems, she had become pregnant. Apart from her illness, she and her husband did not feel they were ready for a child, so they decided on an abortion. Through an abortion-counseling service, the woman had made arrangements to obtain an abortion at a clinic outside the United States.
  Despite using contraception the couple were worried that the woman might become pregnant again. They could not afford another abortion if it meant travelling outside the country. In an interview they would later give to Barbara Richardson, a reporter for the Dallas Times Herald, they shed more light on their willingness to become plaintiffs. Both felt a “moral imperative” to help legalize abortion. The husband added: “Our personal, moral, and ethical codes were outraged by the law.”
  On the one hand, coffee thought the couple would make excellent plaintiffs. They were impressive: young, married two years, both professionals with advanced degrees churchgoing Methodists, active and involved in community life, and most important, they had an excellent reason for using abortion as a method of backup birth control.
  On the other hand, there were problems with using them, not least of which would be the need to explain to the court why the woman’s own physician had not done an abortion when she became pregnant. Coffee suspected that although the woman’s physical condition was serious, it was not really so threatening that she could not bear a child.
  The biggest drawback to using the couple as plaintiffs was that their case was weak, legally speaking. Like most other states, Texas permitted abortion to save the mother’s life, and the present law could easily be interpreted as sufficient to cover their situation. Coffee believed the case would be thrown out of court on the grounds that it involved no controversy. Such an evasive action would have particular appeal, Coffee feared, to a judge who was not eager to become involved in something as controversial as abortion.
  Despite several major disadvantages to using the couple, Coffee decided to go ahead and try to build a case around them anyway, largely because in several months of looking for a plaintiff, she had not found anyone else. Meanwhile, she would continue her search. The young couple were eager to protect their anonymity, so they agreed with Coffee to be known only as John and Mary Doe.
  • pp.39-40

• The Texas abortion law consisted of six separate articles:
  Article 1191. Abortion
  If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or any means whatever externally or internally applies, and thereby procure any abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. BY “abortion” is meant that the life of the fetus or embryo shall be destroyed in the woman’s womb or that premature birth thereof be caused.
  Article 1192. Furnishing the means
  Any person who furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice.
  Article 1193. Attempt at abortion
  If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce abortion, provided it be shown that such means were calculated to produce that result, and shall be fined not less than one hundred nor more than one thousand dollars.
  Article 1194. Murder in producing abortion
  If the death of the mother is occasioned by an abortion so produced or by an attempt to affect the same, it is murder.
  Article 1195. Destroying the unborn child
  Whoever shall during parturition of the mother destroy the vitality or life in a child ina state of being born and before actual birth, which child would otherwise have been born alive, shall be confined in the penitentiary for life or for not less than five years.
  Article 1196. By medical advice
  Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.
  Weddington and Coffee decided they would challenge the constitutionality of Articles 1191 through 1194 and 1196. Article 1195, which referred to the destruction of the fetus during the process of birth, could be read as a straightforward malpractice law, so they felt no challenge was necessary.
  • pp.66-67

• The two women were grateful that the Texas abortion statute, enacted in 1859, was what reformers referred to as an “old-style” law, compared with the “new-style” reform laws that had been written in the late 1960s. The Texas law was unusually restrictive and permitted abortion only to save the mother’s life, not even in cases of incest or rape. In contrast, the new reform legislation typically added therapeutic exceptions-to preserve the mother’s physical or mental health, to prevent serious fetal deformity, and to terminate pregnancies resulting from rape or incest. In theory these new laws were supposed to make abortion more widely available. In practice they made it less accessible since complicated administrative procedures, such as residency, age, and consent requirements, hindered the abortion process, especially for women who did not know how to cut through red tape.
  The constitutionality of some of the so-called reform laws was already being challenged in courts, at considerable time and expense. With an old law, a court challenge could be straightforward and uncomplicated, or so the two women hoped. They would not have to spend a lot of time and money amassing statistical evidence that the laws were being administered in a discriminatory fashion, nor would they have to pay expert witnesses to attest to the fact that consent or age requirements denied women access to abortion. Instead, they could base their challenge on a single, straightforward issue, the idea that the Texas abortion law was unconstitutional.
  • p.67

• Coffee and Weddington could not have undertaken the case had they been required to spend much money on it. Their only source of funds was personal, and neither woman earned much money. Since both were now working at full-time jobs, Coffee at her law firm and Weddington as Ft. Worth’s first woman assistant city attorney, all research would have to be done in their spare time. The subject of fees never came up with their clients. The Does were employed but did not earn very much and lived in a tiny one-bedroom apartment, and Norma McCorvey had no home and was barely making ends meet working a part-time as a waitress or bartender. Had the case been undertaken by a major law firm, even on a pro bono basis, considerably more money and manpower would have been devoted to its preparation. A law firm would assign several associates or junior partners to do the initial research; the women had no one but themselves. Fortunately their expenses were minor, consisting only of some nominal court fees.
  • pp.67-68

• Legal research is not unlike looking for a needle in a haystack, and although it has been made easier in recent years by desktop computers and Lexis, a legal database that produces almost instantaneous results, it still tends to be tedious work. One begins with a theory-in Coffee and Weddington's case the idea that the current Texas abortion law was unconstitutional-and then looks for material, either in the form of important law journal articles, precedent-setting cases, or in their case, since material was sparse, prior cases of any kind, to support the theory. Coffee and Weddington spent hours combing bibliographies and indexes for clues to cases or journal articles that might be relevant.
  The use of the courts to attack the constitutionality of a law was a recent development. As a legal tool, it came into widespread use during the 1950s and 1960s, an era of expansionism in civil rights. Lawyers who chose to challenge laws were often required to mine new territory within the Constitution, to seek connections where none had previously existed. It was exciting and even exhilarating work, but it also required creativity and thoughtfulness and sometimes more than a little daring. Above all, of course, the results had to be persuasive.
  Both women believed, as did most lawyers working on abortion, that any constitutional challenge to the abortion laws would be based on the Fourteenth Amendment, which guaranteed equal protection under the law. Beyond this, Coffee and Weddington had little idea whether there were other grounds for overturning the laws. They began by looking for other abortion cases, ones that might support their theories or provide new ones.
  • p.68

• Coffee and Weddington found surprisingly little to go on. Few suits had been brought involving abortion, and even fewer were important enough to set precedents. No abortion case had yet come before the Supreme Court, and only a few state courts had dealt with the issue. They found only one recorded case in Texas. Watson v. the State f Texas, decided in 1880, involved a young woman named Mattie Shook, who became pregnant by a man known only as Watson while living with him, his wife, and his children. Because he was a physician, Watson told Shook he could give her a medicine that would cause her to miscarry. Despite taking ergot, the drug he prescribed, even more frequently than he had ordered, she failed to miscarry. A note describing Mattie’s condition was sent to the doctor’s wife, reputedly from Mattie’s fiancé but actually from Mattie herself, and this led to the court case. Mattie Shook Testified against the physician.
  A lower court found the man guilty of “designedly” administering an abortifacient, an illegal act under the Texas antiabortion law, but a Texas appellate court reversed the lower court on technical grounds. The court’s reluctance to punish the abortionist twenty years after abortion had been outlawed in Texas was interesting and ever persuasive but the case was of little help to Weddington and Coffee, based as it was on a technicality rather than on any constitutional grounds.
  • p.69

• In Texas, where abortion was already viewed as a states’ rights issue, the Ninth Amendment was interpreted as reserving to the states all powers not specifically granted to the federal government. Coffee and Weddington were sure that even if they could prove that the present law was unconstitutional, the state of Texas would still be able to make a strong claim that the writing of a new law was up to the state legislature. And the state’s lawyers might even argue that the court had no business striking the law, that this, too, was the province of the legislature. (Opponents would always maintain that abortions should be regulated by the states; they viewed any kind of federal court ruling on the issue as anathema.) Using the Ninth Amendment to strike the abortion laws would, as far as the state was concerned, be like waving a red flag in front of a bull. Despite this, both women saw that the Ninth Amendment offered a substantial ground for recognizing the right to privacy and decided they had to use it.
  • p.75

• The constitutional amendment that offered the most support for overturning the abortion laws, at least in the eyes of many legal experts, was the Fourteenth. Generally, it guaranteed every person equal protection under the law. Specifically, the due process clause of the Fourteenth Amendment required that laws be written clearly enough or the average person to understand. A law that was vaguely written for example, was unconstitutional because it caused confusion about who was protected by it and the circumstances under which protection was extended-the very thing physicians objected to about the abortion laws.
  • pp.75-76

• Coffee was afraid, however, that any ruling based on the Fourteenth would leave control of abortion in the physicians’ hands rather than in the hands of women, where she believed it belonged. If they got a ruling based on the Fourteenth Amendment, she feared there would be nothing to stop the Texas legislature from writing a new, crystal-clear law, possibly with the assistance of physicians, that still left the abortion decision in the hands of doctors-and under-mined the right of women to decide for themselves.
  Coffee, who wanted at least to make a stab as establishing a woman’s constitutional right to abortion, had no trouble persuading Weddington to share her view. Both women had come to believe that a woman had a right to control her own body, which included the decision to terminate a pregnancy, but they were less sure that the general populace or even a liberal court would share that conviction. So rather than risk everything, they opted to follow a more conservative course of action and include the Fourteenth Amendment with all its potential risks to women.
  They developed a strategy in which they would stress those amendment that addressed a woman’s right to abortion in their oral arguments but would also be prepared to fall back on the Fourteenth Amendment if necessary. In part, they chose this strategy because it would enable them to use two major decisions that were handed down as they were preparing their own cases. These involved abortion laws that had been declared unconstitutional on grounds of vagueness, but in each lawsuit the courts had also had something interesting to say about women’s rights to abortion.
  • p.76

• As they got deeper into the abortion issue, Coffee and Weddington would each come to believe that the woman’s right was unequivocal and should not be infringed upon by anyone, but they also knew tis was too radical a view to present in court-or anywhere else publicly, for that matter.
  Only one other issue remained to be discussed-the discrimination women suffered because of the restrictive abortion laws. Weddington felt strongly that she wanted to stress this. Imbued with a deep sense of social justice, she was acutely aware of how unmarried, pregnant women were treated in our society, the fact that they were forced to drop out of high school or to attend alternate schools, that they could not participate in school activities. Many colleges and universities would not admit unmarried, pregnant women. Employers discriminated against them in their hiring practices, and of course, many of these same prejudices applied to married, pregnant women. Weddington felt strongly that unless women could control when they bore children, they could not full control their own lives, and she wanted to emphasize this as she prepared Norma McCorvey’s case. Coffee readily agreed that these were important issues.
  • p.81

• Although Weddington was not naturally given to dealing with abstractions, the two women soon decided that she would research the merits of the case while Coffee tacked the procedural legal issues such as standing and mootness, with which she was more familiar. If Coffee minded or even realized that Weddington was taking over the more glamorous aspect of preparing the case, she never acknowledged it even to herself.
  • p.81

• The first reaction came, not surprisingly, from the conservative Dallas Times Herald, which ran an editorial on Friday, March 6. Noting that the abortion laws were “badly in need of intelligent over-haul,” the paper still found itself opposed to the suits: “We have no sympathy with the attempt of a married people and of a single woman to get the existing abortion law declared unconstitutional by a Dallas federal court.” Specifically, the paper took issue with the fact that the plaintiffs were “disguising their identities with fictional names. . . . “ The newspaper’ s real objections to the cases, however, seemed to be that so serious a social problem was being tossed into the hands of a few judges.
  • p.85

• Even though it was not actively enforcing the Texas abortion law, the D.A.’s office could not be described as receptive to a challenge to it. In the 1960s most states’ law enforcement agencies, including the Dallas District Attorney’s office, looked upon the numerous civil rights challenges that began coming their way as frivolous. They resented the time they took up.
  Nonetheless, given the times, Wade’s office had been expecting some kind of attack on the laws that discriminated against women. They thought perhaps women would strike out against protectionist labor laws. No one thought the abortion law would be challenged, and it came as a shock when it was. There had been no sense among the conservative, mostly male lawyers in the D.A.’s office that any major discontent had been building among women regarding abortion. Besides, they tended to view the state’s abortion law not as discriminatory against women so much as a statement about the moral standards society wanted to uphold. As a result, just as Weddington and Coffee had hoped, Wade’s office was totally unprepared for their attack on the state’s abortion laws. And from the minute Roe v. Wade and Does v. Wade were filed, Wade and his staff recognized that these were serious challenged and, therefore, potentially significant cases.
  • pp.88-89

• The attorney general’s office quickly learned that Coffee and Weddington were reputable, capable lawyers, and that Coffee had clerked for Judge Sarah Hughes on the Fifth Circuit. The pleadings were carefully thought out and well written. However, this is not to say that anyone in the district attorney’s office thought for a minute that the abortion laws stood a chance of being overturned. They did not, and they were sure they would prevail in any courtroom. Still, it was clear this was no frivolous lawsuit.
  None of this helped anyone’s mood in the D.A.’s office when Wade was served the papers. Wade’s lawyers, who usually went to trial for murder, armed robbery, or rape, did not want to waste their time on a challenge to a nearly defunct, century-old state law. It was typical of Wade, however, not to slight the case, not least because a federal lawsuit against him had recently slipped through the department’s hands. Wade had learned of it only when a judge called him and asked if he knew he was being sued for $50,000 and that no one in his office had responded to the complaint. After that, Wade assigned one of his brightest assistant D.A.’s to work full-time on federal lawsuits brought against county officials.
  • p.89

• May 23, the day of the oral arguments in the Fifth Circuit Court, was merely overcast, but it could have been pouring rain and Coffee’s and Weddington's spirits would not have been dampened. Both women were surprisingly self-confident considering their youth and inexperience. This would be Weddington's first courtroom appearance, and Roe v. Wade was certainly the biggest case Coffee had ever handled.
  The two women met early on the morning of the hearing to review their arguments. Coffee would lay the groundwork with a discussion of the technical, procedural issues involves, but both women were eager to drive home the idea that a woman’s right to abortion was constitutionally protected. This was the crux of their case.
  They would be sharing their arguments with Fred Bruner and Roy Merrill, counsel for Dr. Hallford. Although the lawyers had talked with one another several times over the past few months, they would be meeting that morning in person for the first time. Since their primary responsibility was to their client. Bruner and Merrill planned to argue that the laws were vague and overbroad, the typical defense when a doctor was accused of illegal abortion. These were constitutional issues, too, but a ruling that the Texas law was vague or two broad did nothing to establish a woman’s constitutional right to abortion.
  • Ch.8, p.124

• From Coffee and Weddington's point of view, the panel looked as if it had been hand-picked for them, and indeed, many people were willing to believe that Fifth Circuit Chief Judge John Brown had weighted the panel in favor of the abortion-reform forces. It is highly unlikely that he did any such thing. First of all, the Fifth Circuit at the time was judicially active and liberal; second, there were guidelines about the choice of judges for a three-judge court. Since Coffee had filed two separate cases, which were assigned to two different judges, the judges in whose courts the cases fell were automatically appointed to the panel when the case were consolidated; that accounted for the presence of Taylor and Hughes on the panel and left Brown with only one justice to appoint with a free hand. That had to be a circuit judge, and Goldberg was an obvious choice since he lived in Dallas. Nevertheless, the makeup of the panel provided the two young lawyers with an enormous psychological boost.
  • pp.128-129

• In summary, Bruner addressed an issue that had concerned the justices throughout the arguments-namely, whether declaring the Texas law unconstitutional would permit anyone—even scurrilous, unskilled abortionists-to perform abortions. Unlike most states, Texas had no law restricting abortion only to license physicians, and the court had shown concern that overturning the law might mean anyone could perform abortions under any circumstances. Bruner declared “I think the very fact that . . . this abortion law [is] on the books in Texas had driven women to [illegal abortion] in the state today, and that if the abortion law of the state of Texas were declared unconstitutional, it would give women the right, the constitutional, it would give women the right, the constitutional right, to go to the doctor or to a qualified person who had the right surgical instruments and have this matter doe at their wishes. . . . “
  • p.135

• The Texas attorney general’s staff was beleaguered with civil rights suits in the late 1960s. At time they averaged fifty-two cases per lawyer. The numerous civil rights cases were considered a thorn in their side because they took up so much time and manpower for what were deemed inconsequential reasons. One prisoner, for example, had managed to file seventeen separate lawsuits involving possible violations of his civil rights. And if prisoners were a problem, students were even worse. Across the nation they had torn up campuses and towns, and even in staid Austin mobs of students from the University of Texas had swarmed over the Capitol grounds. Lawyers from the attorney general’s office had stood at the windows of their seventh-story office and watched what they could only view as out-and-out (and in their view, inexcusable) anarchy.
  By the time Roe v. Wade was filed, though, the attorney general’s men were optimistic that the pendulum of public opinion was swinging back to a law-and-order stance. People were tired of having their courts tied up with frivolous civil rights challenges from long-haired kids, draft protestors, and other dissidents. No one understood what women had to be so unhappy about. As the sixties drew to a relatively quiet lose the attorney general’s office had gotten its second wind; they would be more than happy to take on anyone who wanted to challenge the state’s abortion laws. They were sure the case would be an easy victory for them.
  The state could have decided not to respond to the challenge. It would have been a simple matter to let a law that was relatively unenforced anyway become officially defunct. When a woman had sued to establish her right to march with the Texas A & M band, the attorney general had declined to defend the law that kept her out of the band. But no one, at least no one in the attorney general’s office, thought legalizing abortion was as simple an issue as letting a woman march with the boys if that was what she wanted to do. Abortion involved life-and-death issues-specifically, the life of an innocent fetus that could not defend itself. No one was surprised when word came down from Attorney General Crawford Martin himself that the state would defend its abortion law.
  • pp.136-137

• Flowers left his people alone once he ha assigned a case, asking only to be updated on an informal basis; but Roe v. Wade intrigued him, and it seemed to have personally interested the chief, too. Attorney General martin had told Flowers he thought not defending the abortion law would be like not defending the murder law. Besides, he was tired of people suing public servants like Henry Wade, who were only trying to do their jobs.
  Flowers, too, had given the case considerable thought. He felt Roe v. Wade was an open-and-shut case, one the state could win easily As far as he was concerned, from the moment of conception the chromosome structure was in place, the gene structure was in place, and life had begun. Any defense of the Texas abortion law would be based on the fact that the womb was food and shelter, just like a baby in its home. To destroy an infant in the womb was murder, the same as when a three-month-old infant were killed in its cradle.
  One thing, Flowers knew, would prevent the state from using this defense: this view was religious or philosophical rather than legal. The law did not view abortion in this way. Flowers knew the state could not go into court and claim that abortion was murder for the simple reason that legally it was not. Neither Texas law nor, for that matter, the laws of any other state held that abortion was murder. It was always a lesser crime, usually manslaughter.
  Flowers believed that a great number of those who opposed the legalization of abortion shared his view If his assessment was correct, then there were many people out there who not only did not want abortion legalized, but would support a move to restrict it further. He thought the time was ripe to assert a claim on behalf of the fetus. If the state built its defense around the idea that abortion was murder in the moral sense, at least, Flowers believed people, including the judges who would hear the case, would understand and accept his argument regardless of how the Texas law was written. Once everyone agreed that abortion was a grave moral wrong, surely the Texas abortion law would stand
  Thus, flowers was optimistic that the state would not only defend its abortion law successfully, but that it might even be tightened further as a result. If he could get a ruling that the law was designed to protect fetal life, Texas would have the toughest abortion law in the country.
  • pp.137-138

• Floyd was nervous when his turn came to argue. He had stood up earlier out of turn, because he had mistakenly thought it was his time to speak. Now he would have to begin his arguments with an apology, to be sure the justices understood that he had meant no harm by speaking out of order. Despite his nervousness, he was confident he could make short work of the case. Neither he nor anyone in the attorney general’s office could imagine that the court would seriously consider declaring the abortion law unconstitutional. Besides, there were serious jurisdictional problems with the case, such as whether Jane Roe r any woman had a right to sue for legalized abortion. After all, the law was not directed at them: no woman in Texas was ever party to an abortion suit, so she could not claim to have been injured by the law.
  Floyd began by pointing out that it was the state’s position that the court had no reason even to hear this case since, as far as he could see, none of the plaintiffs had any standing to sue. He believed-the state was arguing-that the case was moot. None of the court papers had made any reference to how far along Roe was in her pregnancy, but since the suit had been filed in March and it was not the middle of May, assuming that the defendant had been at least a couple of months and possibly several months pregnant when the case was initiated, it now stood to reason that she was either no longer pregnant or was too far along in her pregnancy to undergo an abortion even if the court agreed she could have one. Her case presented no real controversy; there was nothing to litigate; in other words, the case was moot. As for the Does, their case had never presented any real controversy since, as far as he knew, Mary Doe was not pregnant, nor had she been when the case was filed. The original motion filed by her attorneys had made this clear. She and her husband therefore had no standing to sue.
  This was the argument Coffee and Weddington had feared. It was the reason they had amended Roe v. Wade to a class-action suit. As plaintiffs in a class-action suit, Jane Roe and Mary Doe were suing not merely for themselves, but on behalf of all other women who might find themselves similarly situated-pregnant and in need of an abortion. Nevertheless, they waited nervously to hear how the justices would respond to Floyd.
  Fortunately, his argument seemed to carry little weight with the court. Judge Goldberg reminded Floyd that some of the children involved in school desegregation cases had graduated from college by the time their cases were litigate. Did this mean that they were not entitled to attend desegregated schools?
  • p.139

• John Tolle was left with a touchy task: in fifteen minutes he had to pick up the pieces of his co-counsel’s shattered defense and build a solid case for the state. He had put considerable time and effort into the preparation of this case, and like Floyd, he believed that the state had a right to protect fetal life. Unlike Floyd, he had limited his examination of abortion to the purely legal issues. That he now planned to do the same thing with his oral argument would prove to be his greatest strength. Tolle’s argument would be the most intellectually enticing, if not ultimately the most persuasive, that would be heard in the courtroom that day.
  He wasted no time disputing the plaintiff’s right to sue, nor did he attempt to refute Weddington and Coffee’s arguments directly; rather, he tried to make the court see them in a different light. He began with the difficult issue of states’ rights. Noting that he did not disagree with Weddington’s statement that no one knows when life begins, he went on to say that even in the absence of answers to this difficult question, the state still had “a right to protect life . . . in whatever stage it may be in . . . and if there is no absolute fact as to when life occurs, then it becomes, I think, a legislative problem as to when they’re going to set an arbitrary time.”
  Finally the state had scored a point. The idea that abortion was most legitimately a concern of the state and not the federal government had to have been on the minds of the judges that day.
  • p.142

• Indeed, despite Tolle’s claim that the matter of abortion properly belonged in a state legislature, the three judges still thought they had a “federal: question to deal with-namely, whether or not the present Texas law denied women a basic constitutional right. Goldberg pointed out that protecting life at any stage of development seemed not to have been the intention of the framers of the Texas abortion law. Seeing room for a possible compromise, he asked Tolle, as he had Coffee and Weddington, whether striking the phrase “to save the life of the mother” might not make this law viable. Tolle replied, as they had, that he did not think this would be true to the original intention of the law. But where the two women had argued that the law could not be saved because it was so unconstitutional, Tolle said he felt the law was constitutional the way it was written, thereby eliminating any need to remove anything from it.
  Tolle pressed harder, saying, “I believe that we’re talking about rights. I think that the most persuasive right that the plaintiffs urge, as was held in the Babbitz case, and all the cases refer to it quite heavily, is the right of privacy, for want of a better term, and there you get to the point where the state had to regulate conflicting rights-whether the state has to regulate conflicting rights-whether the state had got an interest in the life of the unborn child sufficient to regulate the woman’s right to privacy. This is a very difficult question, and I think that it is properly a legislative question.
  “I don’t think the state has to have a law at all regulating abortion. I believe the field is such that it can regulate it constitutionally. I personally think, and I think the state’s position will be and is, that the right of the child to life is superior to that woman’s right to privacy.”
  Tolle’s argument was as good a defense as would be offered of the state’s compelling interest in regulating abortion: the state had to balance two rights, that of the fetus to survive and that of the woman to privacy. In doing so, it could certainly find that the woman’s right to something called privacy-a wrd Tolle diminished simply by the way he said it-was inferior to that of the fetus to life.
  • pp.143-144

• In hinting that the woman’s right to privacy had to do with convenience or selfish whims, Tolle took up a strange of thinking that antiabortionists would soon develop more fully-namely, that not only women’s minds but also their bodies were hostile to fetuses. Nathanson would describe the fetus as “an uneasy tenant” in the mother’s womb, a place that offered an “immunological sanctuary” from, among other things, the mother, “whose white blood cells mount an attack” to reject the fetus.
  Like the earlier analogy of the fetus to a baby, this was an image that transposed (largely male, antiabortionist) wishful thinking into reality and,, in this case, in doing so, attempted to deny the dynamic interaction between the woman’s entire being (not just her uterus) and the fetus that was crucial to the latter’s development. Modern science has dispensed with the concept that a fetus is merely an appendage of a woman, but it does not view it as a separate agent either. Furthermore, even though a fetus becomes capable of survival outside a woman’s body several weeks before birth, as feminist historian Rosalind Petchesky has noted, its premature existence is neither easy nor normal. The undeniable fact is that the fetus is meant to finish developing inside a woman’s uterus until the moment of birth. Complex and complicated reasons exist for it to do so, all operating to the fetus’s benefit.
  • pp.148-149

• The proceedings were almost over but first the intellectually indefatable Justice Goldberg had one more question for the plaintiff’s attorneys. What, he asked, would happen if only district Attorney Henry Wade were enjoined to stop prosecuting illegal abortionists? Would every other district attorney in the state also be prevented from enforcing the law, or would they be free to go ahead with prosecutions? Only Henry Wade had been mentioned in the court documents; none of the other district attorneys throughout the state had been cited.
  Stunned at the implications of what she was hearing, Weddington asked Justice Goldberg to repeat the question. Then she answered: “It was my understanding that since the attorney general’s office had chosen to come in, and since they are now a party-defendant to the suit-“
  Justice Goldberg interrupted: “Are they a party=defendant?”
  “Well, I thought by-“
  Judge Hughes jumped into the fray. “I don’t believe they have intervened.” Turning to Floyd, she asked, “Has the state intervened?”
  Floyd jumped to his feet and practically shouted, “No!”
  John Tolle also leapt up and said, “If the court please, I believe we can cite another example. In the Buchanan case, the court’s injunction ran against Henry Wade only, and I don’t think it binds anyone else.”
  Goldberg turned back to Weddington and asked: “Do you have any response to that?”
  She replied, “We goofed.”
  It was another bad note on which to end the arguments.
  • p.150

• It was the use of the Ninth Amendment, according to many legal scholars, that was the most interesting aspect of the Dallas decision. Although it was sometimes included in the list of possible constitutional grounds, no one seriously believed it had much potential for establishing an abortion right. In this article on the constitutional grounds for abortion, for example, Roy Lucas had relegated the Ninth Amendment to a footnote, saying: “Several theoretically feasible but unnecessary constitutional theories are omitted from this discussion. First, whether a physician or an organization would claim a First Amendment right to inform patients as to the whereabouts of competent abortionists. Second, whether the Ninth Amendment, of its own thrust, permits of a fundamental right to abortion.”
  Most persons thought the woman’s right to abortion would be found in the Fourteenth Amendment-specifically, in the due process clause of the Fourteenth Amendment, which stated that the rights guaranteed to all individuals in the constitution could not be violated or withdrawn except by due process or law. But there were reasons not to rely ont the Fourteenth Amendment; it was in many people’s eyes a tarnished amendment, especially when applied to a case like Roe v. Wade.
  • p.155

• The Fourteenth Amendment, added to the Constitution after the Civil War, was designed specifically to protect the rights of black ex-slaves. By the late 1800s the Fourteenth Amendment, or at least the due process clause, was being subjected to uses its shapers had not foreseen.
  At the close of the nineteenth century the United States was in the midst of an enormous and unprecedented economic boom in which huge fortunes were made overnight, often on the backs of exploited workers. The plight of the workers became a cause for social concern, and a drive was begun to improve their situation. At the urging of social reformers, state legislatures began to pass protective labor laws. Inevitably, since so much was at stake for the employers, these news laws were challenge din the federal courts, where the employers soon discovered they had a sympathetic ear. The federal courts and the Supreme Court regularly struck down legislation that was designed to protect workers; in most cases they used the Fourteenth Amendment as their grounds. IN the wake of several decisions in which the Supreme Court supported the right of big business to get even bigger, the Court lost popular support and was subject to widespread criticism. Even the Constitution became a target as people charged that it worked for the rich robber barons, but not the poor wage earner.
  • p.156

• The only setback-a major one- for the plaintiffs was the judges’ refusal to issue an injunction to back up the declatory relief. Coffee had considered an injunction, which would order the state to stop enforcing its abortion law, vital to winning the case. Only with such an order would women truly have the protection they would need to obtain abortions in Texas. The curt indicated, however, that it would considered an injunction tantamount to excessive interference in the affairs of a state, particularly since Dr. Hallford, the intervenor, was involved in a criminal prosecution. While the court acknowledged that there were occasions when a federal court was obligated to intervene to settle a constitutional issue, they did not feel this was one of them.
  The court noted that while Texas had taken no action to revise its abortion law, the fact remained that the state could hardly be accused of acting in bad faith. It was barely enforcing the law, and the plaintiffs had not been harassed-two actions that might have warranted action by the court.
  Coffee had argued that the fact that First Amendment rights were infringed upon was enough to create a need for an injunction, but the court had not bought her argument that the abortion right had anything to do with the First Amendment. Citing Porter v. Kimzey, a Supreme Court ruling that stated “the door is not open to all who would test the validity of state statutes . . . by the simple expedient of alleging that prosecution somehow involves First Amendment rights,” the court even chided her a bit for suggesting that it did.
  • p.161

• Pleased as Coffee and Weddington were with the overall opinion, they were unhappy over not having gotten injunctive relief. Coffee, in particular, never came to terms with the court’s refusal to grant it. Even though she realized injunctive relief was “a very sensitive point” and that the judicially active Fifth Circuit had greater reason than most federal courts to tread lightly where states’ rights were involved, she still felt it was unrealistic for a federal court to expect a state like Texas to comply with a ruling that involved only a declatory judgment. For her, the question was not so much whether the federal government should respect Texas, as whether Texas would respect the federal government. Her ominous feelings were soon confirmed.
  • p.162

• Within hours after the decision was announced, District Attorney Henry Wade called a press conference at which he rather jubilantly announced: “Apparently, we’re still free to try them, so we’ll do just that.” He was referring to the fact that the Fifth Circuit Court had refused Coffee and Weddington’s request for an injunction ordering him to stop enforcing the abortion law. In effect, Wade was issuing an open invitation to the Dallas Country police to crack down on illegal abortion. Furthermore, the example set by his office would be followed by district attorneys across the state of Texas.
  The next day, Texas Attorney General Crawford Martin held a press conference in Austin to announce that the state would appeal the Dallas decision. In a way, Martin’s reaction was more understandable than Wade’s. The attorney general ‘s office at least had built its case around its moral opposition to abortion; Wade’s reaction appeared to have more to do with protecting his image as a tough law enforcer than anything else since, like law enforcement officials across the country, he had been less than diligent for years about enforcing the abortion law. About a year earlier, though the situation had changed when a federal judge had overturned the Washington, D.C., abortion law, and the nation’s capital had become an abortion capital overnight, providing abortions not only to women who lived in the district, but also to women from all over the country. District Attorney Wade had no intention of letting that happen on his turf.
  • Ch.10, p.165

• Shortly after they filed their appeal in the Fifth Circuit, they learned that they did indeed have a right to appeal directly to the Supreme Court. Although people often speak of “appealing” a case to the Supreme Court, actually only a few special classes of cases come to the Supreme Court via appeal. Most come via a writ of certiorari. (Apart from their different names, though, requests for certiorari and appeals go through essentially the same process to reach the Court.) At that time, cases in which a three-judge court had been asked for and had not granted an injunction were entitled to direct appeal. Coffee and Weddington had never given any thought to laying out their case in such a way as to enhance their chances of taking it to the Supreme Court, but it now seemed that what they had initially viewed as a setback-the court’s refusal to grant injunctive relief-would prove to be a decided advantage.
  • p.168

• After the Dallas decision, the women reformers enjoyed a sense of renewed vigor as they refocused their reform efforts. The decision was a big step forward, and although it gave reform the boost needed to gain widespread support, it soon became obvious that the ruling was not going to be enforced. The Dallas Committee decided they must continue the fight to repeal the Texas abortion laws and, if necessary, to push a liberal abortion bill through the Texas state legislature.
  On Whitehill’s agenda, in particular, was an introduction to Sarah Weddington, whom she thought might be of value to them in achieving their goals. Weddington’s performance at the Dallas trial had made a deep impression on her and the other Dallas reformers. Here was a young woman, barely out of law school and in her first professional courtroom appearance ever, who handled herself beautifully in front of three fairly formidable federal judges. If she had been frightened, it had not shown. She had displayed an impressive amount of self-assurance throughout the arguments. The group was also impressed with what it could only describe as her ladylike demeanor. Ellen Kalina would recall that her main impression of Weddington had been of someone who was a “real southern belle.”
  Such things mattered to the Dallas reformers. They were especially concerned now that feminists, after several years of focusing on other important issues, were beginning to work more actively in the pro-choice movement.
  • Ch.12, p.192

Floyd v. Anders, 440 F. Supp. 535 (D.S.C. 1977)

• In Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, and Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201, the Supreme Court clearly stated the constitutional right of the expectant mother to terminate her pregnancy at any time up until the moment the child becomes viable. Solely in the interest of the health of the mother, it is subject to some regulation by a state during the mid trimester and the first part of the third trimester before viability as to such things as to who may perform abortions and where. Otherwise, the right of the mother to rid herself of an unwanted fetus is comparatively unfettered. That choice, said to spring from a right of privacy or of personhood or from her right to determine her own life-style, is surely one of great importance to her. It is so personal to the woman that it is said by the Supreme Court the state may not constitutionally encumber it with requirements of the consent of a husband, if there is one, or of parents, if the mother is young and unmarried. Indeed, the Supreme Court has clearly held that the state may not require a physician who has agreed to perform the abortion to consult another physician. The choice is solely that of the woman with such advice as she seeks or receives from the physician she chooses.[2]
  In Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, the Supreme Court explicitly held that until a child becomes viable, the state's only interest in regulating abortions stems from its concern with the mother's health. Until that time, but after the first trimester, the state may regulate the conditions under which abortions may be performed, but only as those conditions relate to the health of the mother. Until the child is viable, the mother's constitutionally protected right to choose to terminate her pregnancy or not to do so must be allowed by the state to prevail over any interest it may have in the preservation of fetal life. Indeed, the Supreme Court declared the fetus in the womb is neither alive nor a person within the meaning of the Fourteenth Amendment. In Planned Parenthood of Central Missouri v. Danford, 428 U.S. 52, 64, 96 S. Ct. 2831, 2839, 49 L. Ed. 2d 788, the Supreme Court explicitly said that viability of the child is a medical concept to be determined by the attending physician, and that a legislature may not place it at a "specific point in the gestation period."
  • pp.538-539

• This prosecution was begun before Planned Parenthood, but after Roe v. Wade. Roe v. Wade itself, however, made it clear that proscription of abortions was impermissible before the child became viable. The Court's notice of the fact that viability generally occurs around the twenty-eighth week of pregnancy, though it may occur sooner, made it clear that the Court was treating the question of viability as one of fact, thus preventing legislatures from arbitrarily fixing a particular date for viability. Viability must, under Roe, be determined on a fetus by fetus basis.
  Thus, at the time these indictments were sought against Dr. Floyd, it should have been obvious to the prosecutor that there was no possibility of his obtaining a conviction that could have been constitutionally sustained. The difficulty was that the prosecutor had not read the opinion in Roe v. Wade. He had read about it in a magazine, and he had a digest of it prepared by a first-year law student which, in several respects, was quite misleading.
  We cannot fault the prosecutor for thinking that it would not be unreasonable for a state to proscribe all abortions after the twenty-fourth week following conception. Some fetuses, the Supreme Court said in Roe v. Wade, attain viability by that time. Whether or not a child is viable may be difficult to ascertain prior to delivery, and the twenty-fifth week approaches the twenty-eighth week when most children do become viable, if not viable earlier. Thus, we need not upbraid the prosecutor for supposing that the Constitution reasonably might leave to the states some area of discretion in proscribing abortions at a time when all fetuses are approaching viability, and when some have actually attained it.
  The prosecutor, however, was chargeable with knowledge of what Roe v. Wade actually held, and he was not entitled to proceed on the basis of what he supposed the law to be without having read what the Supreme Court had said. Had he but read the opinion for the majority in Roe v. Wade, he would have known that the fetus in this case was not a person whose life state law could legally protect. If a state may not legislate for the protection and preservation of the life of such a fetus, it surely cannot make the surgical severance of the fetus from the womb murder under state law. But the prosecutor here sought and obtained an indictment for murder as well as an indictment for performing an illegal abortion, when that, too, was clearly foreclosed by Roe v. Wade.
  • p.539

"The plan to overturn Roe v. Wade at the Supreme Court is already in motion" (June 29, 2018)

(Foran, Clare (June 29, 2018). "The plan to overturn Roe v. Wade at the Supreme Court is already in motion". CNN. Archived from the original on June 29, 2018. Retrieved June 29, 2018.

• Over the past year, state legislatures in Iowa, Louisiana and Mississippi have advanced strict limits on abortion that some lawmakers believe could trigger a successful challenge to the landmark 1973 Supreme Court decision that legalized abortion nationwide.
  "I think it's virtually certain that some or all of those laws will wind up before the Supreme Court," said CNN legal analyst Jeffrey Toobin. "And they will get a much more favorable reception with any of the judges on President Trump's list of 25 possible nominees."
  When Trump ran for president in 2016, he pledged to appoint "pro-life" justices to the Supreme Court, while his running mate, now-vice president Mike Pence, said that he hoped to see Roe v. Wade end up on the "ash heap of history."
• Trump's opportunity to replace Justice Anthony Kennedy, who had voted to uphold Roe in 1992, is "exactly what we had hoped for," said Jim Carlin, an Iowa Republican state senator.
  "With (Kennedy) as the swing vote, I don't know that we would have had the capital on the Supreme Court to reverse Roe v. Wade," Carlin said. "If we were to get another conservative justice to the bench at the Supreme Court, I think our chances are much, much higher."
  "Anything that we can do to soften the blow of Roe v. Wade or weaken it or dilute it, it's up to us to do that," said Lawrence Bagley, a Louisiana Republican state representative.
• In the end, the Supreme Court doesn't have to entirely overturn Roe v. Wade to leave the legal standard substantially weakened or even effectively gutted, said Steve Vladeck, a CNN Supreme Court analyst and professor at the University of Texas School of Law.
  "The Supreme Court could do quite a lot of damage to the right recognized in Roe without ever formally overruling it, simply by upholding state laws that make it harder and harder for women to obtain abortions without banning them," Vladeck said.
• The 2015 state law says that any physician who "gives, sells, dispenses, administers, or otherwise provides or prescribes the abortion-inducing drug" shall have to have a contract with a physician who has admitting privileges at a nearby hospital.
  The Supreme Court last month refused to take up an early challenge to the law, which cleared the way for it to take effect in mid-July, but did not say if the law is legal or not, leaving that to a lower court to determine. Earlier this month, a federal judge imposed a temporary restraining order on the law, setting the stage for the case to potentially return to the Supreme Court at some point in the future. Planned Parenthood has said that the law is both medically unnecessary and would effectively ban medication abortion in the state.
  Elizabeth Nash of the Guttmacher Institute, a reproductive rights research organization, said the Arkansas law "conflicts with Roe by imposing an undue burden on a patient seeking an abortion."

“Abuse of Discretion: The Inside Story of Roe v. Wade” (2013)

Forsythe, Clarke (2013). “Abuse of Discretion: The Inside Story of Roe v. Wade”. Encounter Books.

• After the two abortion cases-Roe v. Wade and Doe v. Bolton-were first argued in December 1971, Burger had assigned the opinions to Blackmun to write, for reasons that Blackmun never entirely understood. He has spent the previous thirteen months working on multiple drafts of the opinions, pressured by Justices Douglas, Brennan, and Stewart to change and expand the scope of the decisions.
  Chief Justice Burger, too, was concerned about the abortion decisions, but for different reasons. He was due to sweat in Richard Nixon for a second term as president on Saturday, January 20. Contrary to the president’s antiabortion position, the Court was about to strike down the abortion laws of all fifty states based on a broad “right of privacy” that was nowhere in the words of the Constitution nor the Bill of Rights. Despite his reputation as a :strict constructionist” that got him named Chief Justice, Burger was going to sign onto Blackmun’s opinion, along with a third Justice whom Nixon had named to the Court, Lewis Powell. Concerned that the decisions, joined by three Nixon-appointed Justices, would embarrass him or the president, Burger kept telling Blackmun that Burger was writing an additional, concurring opinion, which he was able to delay until after the inauguration.
  Having more than once shared with his colleagues his fears that the Court would be criticized for the decisions, Justice Blackmun crafted a statement that Tuesday explaining the decisions that he proposed to release to the press. But when Blackmun distributed the draft among his fellow Justices, Justice William Brennan, known as a liberal champion of the Court, warned him that the Justices didn’t issue “press releases” that might be confused with the written opinions they issued. So Blackmun simply read his statement from the bench on Monday, January 22.
  • pp.2-3

• Roe v. Wade is considered the “most controversial” decision of the modern Court era. Even sympathetic legal academics have described Roe as an “engine of controversy.” A decade after the decision, one law professor referred to Roe as “a unique decision” in the Supreme Court’s history: “No other case. . . caused such a loud and sustained public outcry.” Others have admitted that it is “unquestionable that Roe has become . . . the preeminent symbol of judicial overreaching.” It “handed abortion rights advocates a vastly more far-reaching victory then they ever could have attained through the legislative and political process.” Roe “generate[d] long-term controversy [and] upheaval.”
  • p.3

• The impact of the abortion decisions was immediate.
  All of the abortion laws, across all fifty states, were rendered unenforceable, thereby lifting the threat of prosecution against abortion providers.
  Though abortion was legal in some states before January 1873, Roe enabled abortion clinics to open in every state.
  By February, abortion clinics-some run by former “back alley abortions”-opened in major cities like Chicago.
  Roe barred public health officials from enforcing health and safety regulations in the first trimester.
  By invalidating Georgia’s hospitalization requirement, the Justices encouraged the movement of abortion practice from hospitals to stand-alone clinics.
  The federal courts were given continued oversight of any new regulations that might be passed by state or local governments.
  Roe empowered abortion practitioners to challenge any abortion regulations, including health and safety regulations, in federal court.
  • p.4

• The outcome in Roe surprised even abortion activists. Lawrence Lader, one of the key abortion-rights leaders of the 1960s, wrote that the abortion decisions were “far broader in scope than anyone expected” and even more conclusive than any of us dared to hope.” Legal historian Lawrence Friedman wrote that “Roe v. Wade belongs to a very select club of Supreme Court decisions-those that sent shock waves through the country, affecting every aspect of political life.” The morning they were released, Time magazine, based on a leak from one of Justice Powell’s clerks pronounced the outcome, “Abortion on Demand.”
  • pp.4-5

• Roe had two essential rulings based on interpretations of the Fourteenth Amendment to the U.S. Constitution, which declares, in part, that no state shall deprive any “person” of “liberty”. First, the Justices interpreted “liberty” to include a “right to privacy” and held that abortion is part of the right to privacy the “right of privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Second, the Court held that the “unborn” are not included with other “persons” protected by the Constitution-”the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.
  Not only did the Justices nullify the abortion laws of all fifty states, but-in a break from the traditional function of judges-they also prescribed what would be permissible by drafting their own national abortion standard.
  • p.7

• Where Roe prevented any prohibition on abortion before viability, the Doe “health” exception eliminated prohibitions after viability as well. While some realized immediately that the states could no longer prohibit abortion in the first trimester, the full implication of the Supreme Court’s decisions only became clear over time as the lower federal courts decided hundreds of cases in the following decades.
  • pp.8-9

• Roe eliminated the laws in thirty states that prohibited abortion except to save the life of the mother; Doe eliminated the rest, including the new abortion laws adopted by approximately thirteen states between 1967 and 1971, which had canceled or replaced traditional abortion prohibitions. As Harvard law professor and comparative law expert Mary Ann Glendon has emphasized, “It was Doe that set the United States on a far more extreme course than that taken in most other liberal democracies, where the regulation of abortion had largely been left to be worked out through the ordinary democratic processes of bargaining, education, persuasion and voting.
  The sweeping scope of Roe and Doe isolate the United States as one of approximately nine countries that allow abortion after fourteen weeks and one of only four nations (with Canada, China, and North Korea) that allows abortion for any reason after fetal viability.
  • p.9

• The Justices nationalized an issue that, until Roe, had been a state issue. By nationalizing abortion, they nationalized the politics of abortion. Within days, constitutional amendments were introduced in Congress to overturn the decisions, and a vigorous congressional debate over proposed amendments continued for ten years. Hearings were held in 1974-1975 and again in 1981-1983. Between 1973 and 2003, approximately 330 constitutional amendments on abortion were introduced in Congress. But the one and only vote in the U.S. Senate on a constitutional amendment failed on Jun 28, 1983, by a vote of 49-50, lacking the two-thirds needed.
  • p.10

• The Justices also abruptly changed American medicine. Abortion was declared to be a constitutional right-the only medical procedure to ever have that status-which shielded abortion and abortion providers from the regulation to which medical procedures and doctors have been traditionally subjected.
  • p.10

• The Justices centralized what had previously been decentralized. Since colonial times, abortion had been a local public health issue and crime, determined by state legislatures, state governors, state courts, local prosecutors, and state public health officials. Federal governmental involvement in abortion had been rare, strictly limited to the powers of Congress expressly stated in the federal Constitution, such as prohibiting abortion ads from being sent through the mail.
  • pp.11-12

• Until the 1960s, all but a few of the fifty states prohibited abortion except when necessary to save the life of the mother. These abortion laws were enforced and updated and strengthened during the nineteenth century as medical understanding progressed. As of January 1973, however, thirty states permitted no other exception than to save the life of the mother, and most states actively enforced their abortion laws. Prosecutions against abortionists were pending in many states on the day Roe was issued.
  • p.12

• In the immediate aftermath of the abortion decisions, state officials from Connecticut, Louisiana, Missouri, and Rhode Island sought to reject, or limit, or clarify the abortion decisions, and asked the Justices to reconsider. Rhode Island, in particular, immediately sought to reenact abortion prohibitions, but its law was quickly shut down by the courts.
  • p.13

• Of course, the most obvious effect of the abortion decisions was the increase in abortions. Although the biggest percentage increase of abortions in America actually occurred before Roe, after thirteen states had legalized abortion in certain circumstances between 1967 and 1970, the nationwide legalization in January 1973 significantly increased the number of abortions performed in America. In 1972, the year before Roe, about 550,000 legal abortions were recorded. After Roe, abortions increased, reaching an annual high of 1.6 million in 1992, before declining to 1.2 million in 2006.
  • p.13

• [I]n the Roe and Doe decisions the Justices sided with a minority of the public who supported abortion for any reason, at any time of pregnancy. Already a minority position at the time of the decisions, by 2009 that minority had shrunk to just 7 percent of Americans.
  • p.13

• Potter [Stewart] pressed for Roe v. Wade and Doe v. Bolton to be heard and did so in the misapprehension that they involved nothing more than an application of Younger v. Harris. How wrong we were.
  • Harry Blackmun, letter to Rehnquist, as quoted on p.17

• Should we spell out-although it would then necessarily be largely dictum-just what aspects are controllable by the State and to what extent?
  • Harry Blackmun, Memorandum to the Conference (May 1972), p.17

• Roe and Doe began, in the Supreme Court, as a serious procedural mistake that left the Justices without any factual record to consider the complex historical, legal, medical, and constitutional issues surrounding abortion. At least some justices decided to hear the case under the “misapprehension” that they were dealing merely with procedural issues. Justice Blackmun related this mistake to at least two people, and it is confirmed by the briefs in the abortion cases, the Justices’ papers, and the oral arguments. Blackmun told the story to Chief Justice William Rehnquist in July 1987, as the Supreme Court confirmation hearings for judge Robert Bork were hearing up in the U.S. Senate. In a July 16 letter to Blackmun, Rehnquist shared his concerns that the Court would be short-handed without a full bench of nine Justices in the fall, if Bork wasn’t confirmed or the hearings were prolonged.
  Blackmun wrote back on July 20 to allay Rehnquist’s concerns with his story of how Roe was selected in 1971 by a subcommittee of Justices that Chief Justice Burger assembled to avoid “controversial cases” while the Court was shorthanded with two vacancies after the sudden retirements of Justices Hugo Black and John Harlan in September 1971.
  • p.17-18

• I remember that the old Chief [Warren Burger] appointed a screening committee, chaired by Potter [Stewart], to select those cases that could (it was assumed) be adequately heard by a Court of seven. I was on that little committee. We did not do a good job. Potter pressed for Roe v. Wade and Doe v. Bolton to be heard and did so in the misapprehension that they involved nothing more than an application of Younger v. Harris. How wrong we were.
  • p.18

• The chief justice was concerned that the remaining seven members of the Court would have to decide controversial cases on the docket, such as “Roe v. Wade” . . . without a full court. . . . The committee, chaired by Potter Stewart and which included Harry Blackmun, later said. “We did a poor job. I think the committee should have deferred them [the abortion cases] until we had a full Court.”
  • Blackmun, James Simon, May 1991 interview The Center Holds; as quoted on p. 18

• Holds, calling the decision to hear the abortion cases “a serious mistake”:
  The chief justice was concerned that the remaining seven members of the Court would have to decide controversial cases on the docket, such as Roe v. Wade . . . without a full court. . . . The committee, chaired by Potter Stewart and which included Harry Blackmun, let Roe v. Wade and Doe v. Bolton go forward. “It was a serious mistake,” Blackmun later said. “We did a poor job. I think the committee should have deferred them [the abortion cases] until we had a full Court.”
  • p.19

• With Younger v. Harris, Justice Blackmun was referring to a controversial case decided on February 23, 1971, sixty days before the Justices voted on April 22 to hear Roe and Doe. For two years, while Justices Hugo Black and John Harlan were still on th Court, the Justices had been immersed in Younger v. Harris, which involved the politically delicate issue of federal court intervention in state court criminal proceedings. Argued three times before it was finally decided, Younger put limits on the power of federal courts to interfere with pending criminal prosecutions in state courts.
  Younger intersected with the abortion ases filed in federal courts against state laws from 1969 to 1972 because a doctor who was prosecuted for abortion in state court might file a case in federal court to block the state prosecution-the kind of scenario with which Younger was concerned. Thus, Younger overshadowed the abortion cases filed in federal court as a number of points between 1970 and 1972.
  • p.19

• The procedural complexities were not something to be lightly dismissed. Indeed, they were asking some of the biggest questions about Roe: Should the Justices decide this issue? Should they decide it without any factual record? Or without review first by a federal appellate court? Could Jane Roe or Mary Doe clearly and accurately represent the facts of the abortion controversy? Could they represent the “class” of women seeking abortion? Should the Supreme Court sweep away an important area of criminal law and public health?
  Roe started with all these procedural questions, until several Justices found a way to get around them. Justice Brennan suggested a way, after the first oral argument, in a December 30, 1971, memo to Justice Douglas:
  [T]here would seem to be a number of threshold issues that are of varying difficulty. Some, I think, must be expressly addressed, while others perhaps require no discussion or should be simply finessed. None, in my opinion, forecloses decision on the crucial questions here-the existence and nature of a right to an abortion.
  • p.22

• The procedural complexities meant that the lawyers and the Justices spent so much time on procedure during the first round of arguments in December 1971 that precious little time was left for the substantive, constitutional questions.
  In the first argument in roe on December 13, 1971, Justice Stewart posed the second question of the morning to Sarah Weddington, emphasizing that “a good many threshold questions . . . of jurisdiction” needed to be addressed. According to Woodward and Armstrong’s account, the jurisdictional issues didn’t take a backseat to the question of a right to abortion until after the first oral argument, when the Justices met in conference* to vote on Thursday, December 16, 1971. Mitchum v. Foster, a case with a “similar question of jurisdiction,” was argued on the same Monday as the abortion ases, and the Justices discussed Mitchum before Roe and Doe that Thursday. The discussion of Mitchum among the seven justices present at that conference (Justices Powell and Rehnquist did not join the Court until January 1972) ended with a vote of Stewart, Douglas, Brennan, and Marshall for “taking jurisdiction” in Mitchum. Woodward and Armstrong recorded what was apparently Douglas’s conclusion that day:
  Since the jurisdiction question here was the same as in the abortion cases, the Court had effectively decided the abortion jurisdiction issue as well. The Court did have jurisdiction. Suddenly, unexpectedly, the Court fund itself faced with the underlying constitutional issue in the abortion cases. Did women have a right to obtain abortions?
  If the Court had jurisdiction, and such federal challenges to state laws could be filed in federal court, the Justices should have limited the decisions in Roe and Doe to the jurisdictional issue, and looked for new abortion cases with a factual and medical record.
  Though this oversight seems minor, it was a blunder that skewed the Justices’ consideration of abortion for the next thirteen months. By crushing aside these procedural questions, and deciding the abortion issue with no factual record, the Justices stumbled into an enduring controversy.
  • pp.22-24

• The desire of a 4-3 bloc of Justices-Douglas, Brennan, Marshall, and Stewart-to sweep aside the procedural issues to create a right to abortion in December 1971 is better understood by three cases that preceded Roe v. Wade: Griswold v. Connecticut, Eisenstadt v. Baird, and United States v. Vuitch.
  Before considering abortion the Justices had faced the issue of contraception They eliminated state restrictions on contraceptives in two major cases in 1965 and 1972, an action that provoked little public opposition in the midst of the sexual revolution. The ease with which they were able to eliminate those laws likely gave some of the Justices a sense that the abortion laws were simply another set of laws that could be eliminated as an “invasion of privacy.” They saw contraception and abortion laws as one and the same intrusion on “privacy”. The Justices first seriously addressed the issue of contraception in 1961 in a case called Poe v. Ullman, but in a very limited way. The Connecticut statute in Poe was unique, the only one of its kind in the country to “criminally prohibit” the “marital use” of contraception.
  Although a majority of the Justices dismissed the Poe case-Justice Brennan complained about “this skimpy record”-two influential dissents by Justices William O. Douglas (a “liberal”) and John Harlan (a “conservative”) kept the issue alive. Both dissents emphasized marital privacy as the reason for striking the Connecticut law. Harlan made clear in Poe that “[t]he right to privacy most manifestly is not an absolute. Thus, I would not suggest that adultery, homosexuality, fornication and incest are immune from criminal enquiry, however privately practiced. So much has been explicitly recognized in acknowledging the State’s rightful concern for its people’s moral welfare.
  The same Connecticut statute came back to the Court in 1965 in a similar test case, then called “Griswold v. Connecticut”. The Justices struck down the Connecticut criminal prohibition on “the marital use of contraception” and announced, for the first time, a general constitutional right of privacy. “Griswold” quickly became the Supreme Court precedent that spurred the litigation campaign against state abortions statutes, led in large part by attorney Roy Lucas, who authored one of the first major law review articles attacking state abortion laws on constitutional grounds in 1968.
  • pp.24-25

• Justice William Brennan also pushed marital privacy as the basis for the decision. In fact, Griswold turned into a martial privacy opinion because of Brennan. Though Douglas wrote the majority opinion, Brennan played a significant role behind the scenes, as his biographers, Seth Sterna and Stephen Wermiel, make clear: “There was no better example of the silent hand of Brennan shaping an opinion during this period than the case of Griswold v. Connecticut. . . . “ As soon as Brennan got Douglas’s first draft, he sent along a three-page letter on April 24, 1965, drafted by his clerk, suggesting a major shift from basing the decision on “the right of association . . . in the First Amendment context” to “the privacy of married couples.” Douglas “largely adopted Brennan’s approach.”
  • pp.26-27

• The contrasts between marital privacy in Griswold and abortion in Roe and Doe are striking. Griswold emphasized marriage-a right and a relationship protected by the law for centuries. American law never recognized a “right” to abortion before some states legalized abortion between 1967 and 1970. And marriage was never considered in American law or tradition to include a right to abortion, any more than marriage included a “right” to infanticide or adultery. Griswold was about the marital bedroom; abortions aren’t done in bedrooms. The Connecticut statute prohibiting marital use was one-f-a-kind; no other state prohibited the “marital use” of contraception. But in 1972, after virtually all fifty states had seen legislative and public debate, thirty states retained their prohibitions on abortion except to save the life of the mother, and the other twenty retained abortion laws that did not allow abortion as broadly as the “right? Eventually created in Roe. Many states had rejected “reform” laws, and nearly all had rejected “repeal” laws.
  • pp.27-28

• The attorney for Griswold, Yale Law School Professor Thomas Emerson told the Justices at oral argument on March 29-30, 1965, that the right to privacy would not include abortion, because abortions were not done in the bedroom. In response to a question by Justice Black, Emerson told the Justices-repeatedly-that “the right to privacy” would not touch the state prohibitions on abortion:
  Justice Black: Would your argument concerning these things you’ve been talking about relating to privacy, invalidate all laws that punish people for bringing about abortions?
  Mr. Emereson: No, I think it would not cover the abortion laws or the sterilization laws, Your Honor. Those-that conduct does not occur in the privacy of the home.
  […]
  Justice Brennan: Well, apart from that, Mr. Emerson, I take it abortion involves killing a life in being [or “killing the life of a being”], doesn’t it? Isn’t that a rather different problem from conception? <br< Mr. Emerson: Oh, yes, of course.
  Nevertheless, Emerson was soon forecasting that the Griswold decision “could” be used against abortion laws. By the end of 1965, Emerson had even given a paper at a Michigan Law School symposium that described how “Griswold” could be used against abortion laws.
  • p.28

• If Griswold was expressly based on marriage, how could it be cited as a precedent for abortion? One attempt to build a bridge from Griswold to abortion that proved very influential was a law review article advocating legalized abortion published in the fall of 1969 by retired Supreme Court Justice Tom Clark. Clark had been attorney general in the Truman Administration and then served on the Court from 1949 to 1967. He had joined Douglas’s opinion in 1965 to strike down the Connecticut contraception law in Griswold before retiring in 1967.
  Clark’s article was cited by numerous lawyers and lower court judges. It was quoted to the Justices by Professor Norman Dorsen in January 1971 during his oral argument against the District of Columbia’s abortion law in United State s v. Vuietch. It was quoted by Justice Douglas in his dissent in Vuitch, and by Justice Brennan in his December 30, 1971, letter to Douglas outlining Brennan’s view that the right of privacy included abortion. And Justice Douglas cited the article in his concurring opinion in Doe v. Bolton.
  • p.29

• Clark’s article was brief and published in the second volume of Loyola of Los Angeles Law Review, an obscure journal. He claimed that “the demand for abortions has increased astronomically” without citing any statistics. He spent paragraphs on religious debates about “ensoulment,” a topic irrelevant to American abortion law since colonial times. He cited the New York Times for many sociological assertions. And Clark gave no thought whatsoever to the possible risks to women from abortion. There was very little “law” in the article-just a few Supreme Court precedents and several citations to the Griswold case. Clark admitted that the Supreme Court “has not, however, dealt directly with the problem under discussion [abortion], nor do the decided cases cast much light on its solution.” Clark didn’t discuss the extensive enforcement experience with American abortion statutes, or the case law across fifty states applying abortion statutes, and he only touched on the developing law of prenatal injury and wrongful death involving the unborn child.
  • pp.29-30

• Clark confused the common law of abortion (which never placed emphasis on viability with tort law developments in the twentieth century (when some judges adopted viability as a marker.) His claim that “[n]o prosecutor has ever returned a murder indictment charging the taking of the life of a fetus” showed his utter misunderstanding of the criminal law and its practical application: injuries inflicted on a child “in utero” could be prosecuted as homicide as long as the child died outside rather than inside the womb. As a legal matter, that necessarily meant that the child injured inside the womb was the same child who died outside the womb-the same entity inside as outside. In fact, in March 1969 (just a few months before Clark’s article was published), a prosecutor in the Keeler case indicted a California man for brutally beating his ex-wife and killing her unborn child “in utero”. Such cases had been prosecuted in other states, and statutes that treated abortion as homicide existed in several states.
  • p.30

• First, he argued that “there is no proof of life [with a fetus] in the sense that the law contemplates proof of fact.” That would have surprised the English and American courts that applied two common-law evidentiary rules: the quickening rule (as first evidence of life) and the born-alive rule (for proof that a criminal act had caused the death). It also would have surprised the prosecutor in the Keeler case, who proved beyond a reasonable doubt that the perpetrator killed the child while unborn.
  Second, Clark asked: “Does it therefore follow that voluntary destruction of the fetus is also [prevented[ from interference by the State? Perhaps-unless life is present. . . . “ The entire motivation of the movement to eliminate the quickening rule across the states in the mid-nineteenth century-led by the medical profession-was the biological evidence tat the life of each child began at conception, not quickening, and the state statutes were explicitly amended to adopt conception.
  Third, Clark’s most famous sentence-quoted by Justice Brennnan to Douglas in December 1971 and by Justice Blackmun in Roe-begged the evidentiary question that the nineteenth-century state legislatures expressly decided: “To say that life is present at conception is to give recognition to the potential, rather than the actual. . . . But the law deals in reality, not obscurity-the known rather than the unknown.” What Clark considered an abstraction in 1969 had been adopted as the law by the people of numerous states a century before and reiterated in numerous court decisions and statutes by 1969.
  • p.31

• Clark concluded: “It is for the legislature to determine the proper balance. . . . “
  Clark’s conclusion was conveniently ignored, however, by the lawyers and judges who used it to argue that Griswold should be extended to judicially create a right to abortion.
  • p.32

• The only reason hat Clark’s confused article was noteworthy, apparently, is because he happened to sit on the Supreme Court at the time of Griswold. As Roy Lucas put it in a letter to Sarah Weddington after the first oral arguments in December 1971, admonishing her to reference Clark’s article more often, “the Court is more likely to read that than any brief from mortals.”
  • p.32

• If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
  There are three problems with this. First, Eisenstadt was a case based on the Equal Protection Clause of the Fourteenth Amendment, not a privacy case, so Brennan’s reference to privacy was gratuitous dicta,” in the words of Edward Lazarus, a former law clerk to Justice Blackmun.
  The second is the logical fallacy in the bare assertion “if the right of privacy means anything, it is. . . . “ This is a classic ipse dicit (“It is true because I say so.”). It is simply an assertion of judicial will. Start with the abre assertion, and the sentence can be finished with anything, or at least anything that can be politically sustained.
  • p.33

• As Lazarus has written, “Brennan knew well the tactic of ‘burying bones’-secreting language in one opinion to be dug up and put to use in another down the road.” Lazarus continues:
  Eisenstadt provided the ideal opportunity to build a the rhetorical bridge between the right to use contraception and the abortion issue pending in Roe. And taking full advantage, Brennan slipped into Eisenstadt the tendentious statement explicitly linking privacy to the decision whether to have an abortion. As one clerk from that term recalled, “We all saw that sentence, and we smiled about it. Everyone understood what that sentence was doing.” It was papering over holes in the doctrine.
  • pp.33-34

• Brennan’s biographers, Stern and Wermiel, put it even more bluntly:
  In the years to come, many of Brennan’s colleagues learned to watch for the seemingly innocuous casual statement or footnote-seeds that would be exploited to their logical extreme in a later case.
  As another Brennan biographer has written “Brennan found a way not only to connect the case to the abortion debate but to use it as another strong leg on which a future opinion legalizing abortions could stand.”
  • p.34

• Justice Brennan’s intent was immediately fulfilled. The New York Times used the “bear or beget” phrase to headline an editorial on the Court’s decision, and Eisenstadt’s gratuitous language that privacy includes the “decision whether to bear or beget a child” was used in an abortion case twenty-six days later. On April 18, 1972, a federal court I Connecticut struck down the Connecticut abortion law, citing the “bear or beget” passage from Eisenstadt.
  Sarah Weddington quoted Brennan’s “bear or beget” passage to the Justices in the second Roe argument in October 1972, and Blackmun later quoted the passage in his Roe opinion as a “precedent” for what the Court did in Roe.
  • p.35

• The justices designed the precedent to suit the progeny. Justice William Brennan’s draft of Eisenstadt, which was circulated months [sic] after oral arguments in Roe, “was obviously crafted to apply in the abortion context,” Greenhouse writes, noting that Brennan made the unnecessary assertion in Eisenstadt that the right to privacy entailed a right to choose whether to “bear” a child. Days after the court handed down Eisenstadt, Blackmun worked a reference to it into a draft of Doe, and later into Roe. Meanwhile, a federal court in Connecticut took the cue, declaring that Eisenstadt established a right to abortion. Justice Lew Powell advised Blackmun to follow the Connecticut court’s reasoning, and Blackmun ultimately did so, completing the daisy chain.
  • William Saletan, Linda Greenouse Blackmun biography review, Slate, p.35

• The Court did not create a right to abortion in Vuitch, but upheld the D.C. law. Vuitch’s lasting significance was that the Justices endorsed a broad, indeed unlimited, interpretation of “health of the mother” as a reason for abortion, which they subsequently adopted in Doe v. Bolton.
  • p.36

• If Black and Harlan had remained on the Court throughout the deliberations in the abortion cases, there are strong reasons to believe they would have voted against creating a constitutional right to abortion, and left the abortion issue to the democratic process in the states.
  Black not only dissented in Griswold, but he also expressly rejected a right to abortion during the Justices’ discussion fo the Vuitch case in early 1971. According to Professor Jeffrey Rosen, “Black, who scorned Douglas’s whole idea of penumbras and emanations, had made clear that he opposed a constitutional right to abortion during discussions [in Vuitch].”
  • p.38

• As for Harlan, he noted during the Justices’ discussion of Griswold in April 1965 that “he would feel differently if the Connecticut law were not a ‘[marital] use’ statute and did not apply to married couples.” Harlan’s opinion in Griswold pointed to limits on judicial discretion from “respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms.”
  Harlan’s biographer Tinsley Yarbrough, contends that Harlan never expressly revealed his views on the constitutionality of abortion laws during the deliberations over Vuitch, and that “given his flexible approach to due process, he might well have accepted at least limited restrictions on governmental authority in that highly sensitive field.
  • p.38

• A former Harlan clerk, Charles Fried, a distinguished professor of law at Harvard, concluded that it is “likely-but not certain-that Justice Harlan would have dissented in Roe.” Fried went further: “The argumentation of Harlan’s dissent in [Poe v. Ullman[]. . . as well as his refusal to condemn laws proscribing adultery, fornication, and homosexuality leave little doubt that he would have held with the dissenters in Roe.”
  • p.39

• There is apparently no evidence that the abortion issue had any influence on Nixon’s selection of Burger, Blackmun, Powell, or Rehnquist.
  By 1970, in anticipation of possible vacancies, Roy Lucas-one of the chief architects of the federal court challenges against the state abortion laws an co-counsel with Sarah Weddington in the Supreme Court in Roe-feared that he had to get an abortion case up to the Court quickly, before any Nixon appointees could swing the Supreme Court more conservatively. Historian David Garrow confirms that many believed that, with Black and Harlan gone, the Court could go 4-3 in favor of abortion (Marshall, Brennan, Stewart, Douglas), but that Powell and Rehnquist might join Burger, Blackmun and White to go 5-4 against abortion rights if the cases were argued after Powell and Rehnquist joined the Court. Antiabortion attorneys advising the attorney for Texas also believed this was a possible scenario and urged Texas to seek an extension until the two Nixon nominees could join the Court This concern was shared by Brennan’s clerks, who recorded a summary of the term in June 1972.
  • p.40

• On December 16, 1971, the seven Justices met as a group (“in Conference”) to vote in the cases. Bernard Schwartz, a historian of the Warren and Burger Courts, has said that Douglas and Brennan “led the proabortion bloc at the conference.” At least Burger, Douglas, and Brennan kept a tally, but the ote tally was unclear to Burger. Blackmun, for example, told the other Justices, referring to the Georgia statute, “Medically, this statute is perfectly workable,” that it was “a fine statute” that “strikes a balance that is fair.” If Chief Justice Burger voted with the majority, he would assign the opinion. If Burger voted with the minority, the senior Justice in the majority-which, given the vote, would have been William Douglas=would assign the opinion, as he had in Eisenstadt.
  • p.41

• Douglas and Brennan conversed at length on December 29, 1971, and on the following day Brennan memorialized their conversation in an eleven-page letter to Douglas in which Brennan laid out his views on the right of privacy and his conviction that they could use the cases to decisively set forth “the existence and nature of a right to an abortion.” Brennan’s biographers, Stern and Wermiel, highlight Brennan’s strategy:
  Even more so than in other cases, Brennan worked quietly behind the scenes in Roe v. Wade, reluctant to push Blackmun too hard and perhaps a bit reluctant to come out front and center on the issue of abortion. In fact, he worked so quietly that for some time it remained difficult to determine exactly how influential a role he played.
  • p.42

• Stern and Wermiel recorded the dismay of some Justices with Blackmun’s drafts:
  Brennan did not share with Blackmun his thoughts about how best to approach the abortion cases, at least not directly. Going out of his way to avoid alienating the justice, he held back his criticism when Blackmnun circulated what he considered two disappointing drafts in May 1972.
  • pp.42-43

• Brennan sent Blackmun a strong memo on May 18 pressing him to decide “the ore constitutional question” and “dispose of both cases on the ground supported by the majority” with no reargument:
  My recollection of the voting on this and the Georgia case was that a majority of us felt that the Constitution required the invalidation of abortion statutes save to the extent they required that an abortion be performed by a licensed physician within some time limit after conception. I think essentially this was the view shared by Bill [Douglas], Potter, Thurgood and me. My notes also indicate that you might support this view at least in the Texas case.
  • p.44

• Justice White distributed a brief dissent on Monday, May 29, that effectively demolished Justice Blackmun’s May 18 draft opinion that the Texas statute was “unconstitutionally vague.” White wrote:
  If a standard which refers to the “health” of the mother, a referent which necessarily entails the resolution of perplexing questions about the interrelationship of physical, emotional, and mental well-being, is not impermissibly vague [as the Court’s Vuitch decision held], a statutory standard which focuses only on “saving the life” of the mother would appear to be a fortiori acceptable. The Court’s observation that “whether a particular operation is necessary for a patient’s physical or mental health is a judgment that physicians are obviously called upon to make routinely whenever surgery is considered,” [Vuitch] 402 U.S., at 72 (footnote omitted), is particularly [sic] applicable to medical decisions as to when the life of a mother is endangered, since the relevant factors in the latter situation are less numerous and are primarily physiological.
  White’s dissent raised key questions that were not covered in the record, and were not explored in the December 1971 arguments-or in the October 1972 rearguments, for that matter.
  • p.45

• According to law professor Bernard Schwartz, White’s dissent “effectively demonstrated the weakness of the Blackmun vagueness approach in striking down the Texas law.” David Garrow called it an “incisive and influential three page dissent. . . . White’s trenchant observation was a decisive if nonetheless eventually ironic contribution to the Court’s consideration of Roe and Doe.”
  • pp.45-46

• I will be God-damned! At lunch today, Potter [Stewart] expressed his outrage at the high handed way things are going, particularly the assumption that a single Justice if CJ [Chief Justice] can order things his own way, and that he can hold up for nine anything he chooses, even if the rest of us are ready to bring down 4-3’s for example. He also told me he . . . resents CJ’s confidence that he has Powell and Rehnquist in his pocket. Potter wants to make an issue of these things-perhaps fur will fly this afternoon.
  • Brennan to Douglas as quoted on p. 46

• Douglas refused to withdraw his dissent until Blackmun personally assured him that his position of declaring the abortion statutes unconstitutional was firm, and that he had no intention of reversing that position after reargument. Blackmun gave Douglas that assurance. . . . [A]s it turned out, Justice Douglas was the biggest winner of all. His prolonged tantrum had produced a firm commitment from Justice Blackmun to hold to his original position of voting to strike down the Texas and Georgia statutes.
  • Blackmun as interviewed by James Simon May 1991; as quoted on p. 47

• When the Court issued an order for reargument on June 26, Douglas was listed as the only dissenter to the decision to reargue but published no dissent. Sometime before the Fourth of July holiday, however, Douglas’s draft dissent got into the hands of the Washington Post and the New York Times. On July 4, 1972, the Post published a front-page story on the abortion cases, entitled “move by Burger May Shift Court’s Stand on Abortion,” quoting extensively from Douglas’s draft dissent. The New York Times followed with a similar story the following day.
  • pp.47-48

• Blackmun had been “resident counsel” of the Mayo Clinic during the 1950s. The day after he was assigned the Roe opinion, he wrote Thomas Keys, the Mayo Clinic librarian, and requested research on the history of abortion. Blackmun spent about two weeks there in July, reportedly doing research on the history of abortion and the Hippocratic oath.
  • p.48

• Back in Washington, Blackmun’s law clerk had substantially revised the draft abortion opinion. He forecast this in an August 4 memo before he finished his clerkship. And then he explained the changes to Blackmun in a memo of August 11, 1972:
  I have written in, essentially, a limitation of the right depending on the time during pregnancy when the abortion is proposed to be performed. I have chosen the point of viability for this “turning point” (when state interests become compelling) for several reasons: (a) it seems to be the line of most significance to the medical professional, for various purposes; (b) it has considerable analytic basis in terms of the state interest as I have articulated it. The alternative, quickening, no longer seems to have much analytic or medical significance, only historical significance; (c) a number of state laws which have a “time-cut off” after which abortion must be more strongly justified by life or health interests use 24 weeks, which is about the “earliest time of viability.”
  • p.49

• Roe and Doe were reargued, back to back, on Wednesday, October 11, 1972, and the nine Justices met subsequently in conference to vote. Blackmun held to his original position and Powell, for the first time, voiced his support. Until the second argument, Blackmun had considered Doe to be more important than Roe, but when the Justices met to vote, Justice Powell urged that Roe be the lead case, and Blackmun agreed.
  • pp.49-50

• Justice Blackmun distributed a second draft opinion on November 21, 1972, which still emphasized the end of the first trimester as the “decisive” limit to the right to an abortion:
  You will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary.
  • p.50

• Blackmun adopted the expansion to viability, and in a memo to the Justices of December 15 indicated that he would be revising the draft opinions to shift the decisive point from the end of the first trimester to viability. On December 21, Blackmun circulated his revised third draft in Roe, the first to include the trimester framework and the first to identify the right as extending to viability.
  At this point, the abortion cases were effectively decided.
  • p.50

• It was clear to the Justices that he practical effect of their decision would be to eliminate the laws of most states. In is May 25, 1972, memo to the Justices, Blackmun noted:
  I should observe that, according to the information contained in some of the briefs, knocking out the Texas statute in Roe v. Wade will invalidate the abortion laws in a majority of our States. Most states focus only on the preservation of the life of the mother.
  But Blackmun’s memo also shows the failure to recognize the impact of Doe in eliminating all the other abortion laws. Blackmun clearly underestimated the extent that the decision would unsettle law and policy and public health. In a memo to the Justices on December 21, 1972, Blackmun commented: “I suspect there will be other aspects of abortion that will have to be dealt with at a future time.”
  Justice Brennan also acknowledged the scope of Doe in a memo to Justice Blackmun in December:
  [D]oes not your opinion in the Georgia case [Doe v. Bolton[ ccut the heart out of the Georgia statute? If so, should we leave other portions of the statute intact, as I think you do? Is this a desirable result,, particularly during the interval between our decision and the enactment of a new, constitutionally permissible statute by the Georgia legislature?
  
  • pp.52-53

• Blackmun assumed that the states would be able to immediately respond to the decisions with amendment to their laws, and suggested to the Justices that the abortion decisions should be released “no later than the week of January 15 to tie in with the convening of most state legislatures.”
  A week before the abortion decisions were released, Blackmun distributed a draft announcement with a number of political considerations that he proposed to read from the bench and distribute to the press:
  Fortunately, the decisions come down at a time when a majority of the legislatures of the states are in session. Presumably where these decisions cast doubt as to the constitutional validity of a state’s abortions statute, the legislature of that state may immediately reviews its statute and amend ti to bring it into line with the constitutional requirements we have endeavored to spell out today. If this is done, there is no need whatsoever for any prolonger period of unregulated abortion practice.
  But Blackmun failed to realize that the vagueness and complexity of the opinions, coupled with the powers of the federal courts to apply Roe and Doe, would create a public vacuum that would continue for decades.
  That same day, January 16, one of Justice Powell’s clerks gave him a memo that noted the “lack of state authority to regulate in the first trimester.” Perhaps the Blackmun and Powell chambers had discussed this point.
  • pp.53-54

• Professor Joseph Dellapenna, the foremost historian of abortion law in the Western world, has argued that, by 1960, such changes shaped the demand for abortion before the cultural upheaval of the 1960s. These included the impact of the Industrial Revolution on family life and work patterns, the entrance of more women into the workforce, greater sexual experimentation, and the desire to limit pregnanct, along with technology that made abortion-in terms of immediate risks-more effective and safer for the woman.
  • pp.55-56

• Concern about population directly influenced the Justices. On December 27, 1971, two weeks after the first argument in Roe and Doe, a psychiatrist from the Cleveland Clinic, Dr Richard A. Schwartz, wrote a letter to Justice Brennan. Believing that the Court would decide the abortion cases before July 1972, Schwartz enclosed a copy of an article he wrote that was scheduled to be published in the August 1972 issue of the American Journal of Public Health, entitled “The Social effects of Legal Abortion.” The abstract read:
  The yearly number of unwanted children born in the United States is 800,000 or 20 percent of all births. Forty percent of all births in poor families are unwanted. Because of the limitations of contraception the most feasible way of decreasing the incidence of unwanted births is legalization of abortion. If all unwanted births could be prevented, this would lower the birth-rate in the United States by more than 50 percent, substantially lower the incidence of poverty and lead to a decrease in the number of inadequately reared children potentially destined to become criminals, psychotics, drug addicts, and alcoholics.
  • p.59

• If 1967 had been the breakthrough year for legislation, 1970 was the year of the court challenge. Challenges to state laws were filed in many federal courts in 1970. Roe v. Wade and Doe v. Bolton were two of some twenty cases attempting to strike down state abortion laws filed in federal courts in various states between 1969 and 1972.
  • p.77

• Justice Blackmun’s tally in his opinion in Roe was six federal decisions to strike state abortion statutes and five to sustain, plus two state court decisions to strike state laws, and three state courts to uphold them. The actual tally was: seven federal court decisions struck down state laws, five federal decisions upheld state laws; five state court decisions struck downs state abortion laws, sixteen state courts upheld state laws. A number of other abortion cases in federal court had been thrown out on procedural grounds.
  Among the nine courts (seven federal, five state) that held state statutes “unconstitutional,” however, there was little consensus in their explanation for why abortion laws were unconstitutional or in their definition of the scope of the abortion right. About the only common theme among the courts was Griswold: the courts cited each other for the notion that Griswold’sbroad phrasesmeant that abortion laws were unconstitutional. The legal advocates put all their hopes on the Supreme Court’s decision in Griswold.
  • pp.78-79

• The activists who spurred the abortion cases, and the Justices, were personally affected by the cultural currents. Roy Lucas took his girlfriend to Puerto rico for an abortion before 1966. Several years before she argued Roe, Sarah Weddington reportedly went to Mexico for an abortion. Justice Blackmun’s daughter revealed in 2006 that she became pregnant while unmarried in 1966. Justice Powell told journalist Nina Totenberg, in an interview after his retirement, that he had helped a law firm “office boy” avoid prosecution when the man was involved in an illegal abortion that resulted in a woman’s death in Richmond, Virginia. And Justice Marshall apparently was also influenced by personal experiences.
  • p.87

• The record that came up to this Court contains the amended petition of Jane Roe, an unsigned alias affidavit, and that is all.
  • Jay Floyd, attorney for Texas as quoted on p.89

• And that again is one of the great problems with this case. We know o no facts, there are no facts in this case, no established facts.
  • Dorothy Beasley, attorney for Georgi; as quoted on p.89

• In the lower court hearings of Roe and Do, however, the parties did not present evidence-there were no trials- and the judges did not look at evidence. The federal court hearings in Roe an Do were conducted without examination of medical or other evidence and without hearing witnesses subjected to cross-examination. Instead, both district courts in Texas and Georgia simply decided that “the facts don’t matter” (in the words of Georgia’s attorney, Dorothy Beasley”), and merely held two-hour long oral arguments, in which much of the time was taken up with procedural and jurisdictional questions.
  Nor was there any intermediate review by an appeals court in Roe and Doe.
  • p.92

• There were numerous abortion cases in the courts in 1970, and more followed in 1971 and 1972; the Justices could have selected other cases with a factual record. At the time the Justices chose Roe and Doe, at least seven other abortion cases were pending at the Supreme Court. Remarkably, the Justices chose not one but two abortion cases without any factual record. Why?
  • p.93

• A few years after Roe, a former law clerk for Judge Edward Lumbard (who wrote the first decision in 1972 striking down the Connecticut abortion law) pointed out that the lower court decisions were not thorough and that the Supreme Court was hasty in hearing Roe and Doe before the issues were fully explored in the lower courts.
  • p.95

• Three years after Roe, Justice Thurgood Marshall wrote the opinion for a unanimous Court noting the impropriety of deciding constitutional questions “in the absence of ‘an adequate and full-bodied record.’” In another case four years after Roe, Justice Blackmun wrote, “The problem is a complex one, about which widely differing views can be held, and, as such, it would be somewhat precipitate to take judicial notice of one view over another on the basis of a record as barren as this.”
  • p.96

• Some of the same Justices who heard and decided Roe and Doe had emphasized the importance of a factual record in prior “privacy” cases. In Poe v. Ullman in 1961, Justice Brennan supported dismissal of the case, in part, because of the “skimpy record.” During the Supreme Court oral argument in January 1971 in the Vuitch case, involving the District of Columbia abortion law, Samuel Huntington, the attorney for the United States, pointed out that the record contained “no development whatever of any of the facts bearing on the charges contained in the indictment,” and Chief Justice Burger noted that the Court might benefit from “a record of testimony as to what is the present state of medical knowledge.” And in his opinion in the Vuitch case decided the day before the Justices voted to hear Roe, Justice White emphasized that “this case comes to us unilluminated by facts or record.” If this was true in Vuitch-which was a comparatively limited inquiry into whether the District of Columbia’s abortion law was “unconstitutionally vague”-it was even truer in Roe and Doe, which aimed to sweep away the abortion laws of all fifty states.
  It is not as if the Justices were not warned that there was no factual record. In the first Doe argument, Georgia’s attorney, Dorothy Beasley, made the lack-of-factual-record point no less than five times. Beasley pointed out that there was no record to show how abortions were being done under the new 1968 statute in Georgia. Georgia and thirteen other states had enacted these laws between 1967 and 1970, and the Court did not have any facts about how they operated. How could the Supreme Court decide to legalize abortion on a broader basis, through the first and second trimester, when they did not have even a basic understanding, developed through a trial, of how these “reform” statues had operated in the few months or years since they had been enacted?
  These problems suggest that the Court should have reached no decision, or sent the case back for trial, or taken other cases with a trial record, or at least reached a narrow decision. Instead, the Justices issues one of the broadest decisions possible.
  • pp.96-97

• In addition to the lack of a factual record, the oral arguments were burdened by jurisdictional and procedural issues that consumed a considerable amount of time, leaving little time to focus on the substantive medical, historical, and constitutional questions.
  The first twenty minutes of Weddington’s first argument in Roe in December 1971 was spent on procedure and jurisdiction, an much of the last ten minutes as well. The Court asked questions such as who brought the suit, whether they could sue, whether these was any real controversy between Jane Roe and the public officials named as defendants, whether the Court should even hear the appeal, whether the parties should have gone to the federal appeals court first, whether the case was moot, whether an injunction was appropriate.
  A substantial part of the discussion by Jay Floyd, the attorney for Texas in the first Roe argument, was also spent on procedure and jurisdiction. In the first Doe argument, Margie Pitts Hames addressed some questions on jurisdiction and procedure, and her final question was on jurisdiction Dorothy Beasley also addressed such questions.
  Again, the amount of time spent on these procedural and jurisdictional questions lends considerable credence to Justice Blackmun’s story that Justice Stewart urged the subcommittee of Justices to hear Roe and Doe under the “misapprehension” that they involved “nothing more than an application of Younger v. Harris.”
  Indeed, the subcommittee could have been easily misled by the first papers filed in the Supreme Court by Roy Lucas and Sarah Weddington on October 6, 1970, asking the Justices to hear the case. The papers (called a “Jurisdictional Statement) consisted of thirty-three pages and presented only two “Questions” for the Justices to address, relating to the propriety of an injunction by the federal court and whether the married couple in the case (not Jan Roe) had “standing” to sue-on other words, procedural issues.
  • p.98

• These procedural issues raised many red flags that the Justices ignored. Shouldn’t the lower courts have conducted a trial, with witnesses, and evidence, and cross-examination? Did either Jane Roe or Mary Doe accurately represent women who wanted abortions? Some of these “technical” issues dealt with two requirements of any viable constitutional case: “standing” (who can bring a suit to challenge a law?) and “case and controversy” (is there any real conflict between the parties that can clarify the constitutional issues?). These two requirements-“standing” and “case and controversy”-are important for sound judicial decisions because they enable judges to see the practical consequences of legislation. Georgia’s attorney Beasley brought both of these requirements directly to the Justice’s attention, but the Justices brushed them aside. The aim of Justices Brennan and Douglas-as evidenced by their phone and written exchanges on December 29 and 30, 1971-was to find the best way to get around them.
  • p.99

• Little time was left for the substantive questions in both cases. For example, the question of where the right to “abortion” could be found in the Constitution became virtually a joke at the first argument. Weddington was willing to say it could be found almost anywhere-the “due process clause, equal protection clause, the Ninth Amendment, and a variety of others. . . . “ The statement was so weak that Justice Stewart equipped “and anything else that might obtain,” provoking laughter from the audience. To which Weddington responded, “yeah, right,” and laughed. Another red flag, but again, no Justice challenged Weddington’s weak assertions.
  • pp.99-100

• So much of the first Doe argument in December 1971 was spent on procedural issues that Hames, the attorney for the Georgia plaintiffs, made no statement in her first argument about the constitutional basis of her case or of a right to abortion. And no Justice questioned this. There were virtually no questions on the source of any constitutional right to abortion and almost no questions on the historical basis for such a right. Hames left this fundamental issue to her one-minute rebuttal of Beasley, admitting that “we have not designated a constitutional basis for our case.” So Hames gave a one-sentence answer “I would like to say that it is-we contend that the procedural requirement infringe Due Process and Equal Protection, and that the right of privacy, an enunciated in Griswold, of course, is our basic reliance.” That was the extent of the constitutional discussion at the first oral argument in Doe.
  The procedural problems should have cautioned the Justices that the Texas and Georgia cases prevented the evaluation of fundamental questions and were unstable and inadequate bases on which to make a decision. According to varius reports, “Burger had complained that part of his problem with the abortion cases resulted from the poor quality of the oral argument. On reargument, he suggested, the Court could appoint ‘friends of the court’ (amici curiae) forboth sides, outside counsel who could make better presentations.” Blackmun, too, acknowledged that the cases were poorly argued the first time. White probably shared this view. Instead, the bloc of four Justices-Douglas, Brennan, Marshall, and Stewart-heavily pressured Blackmun in May and June 1972 against a second argument.
  • pp.100-101

• Despite the fact that abortion was legal in some other countries and in a few states, there were no reliable peer-reviewed medical data, and certainly no long-term studies, about it. Nevertheless, Weddington and Hames argued for the elimination of all state abortion laws, relying on unsubstantiated statistics.
  For example in the second argument in Doe, Hames admitted that “there aren’t any statistics that are very reliable on this,” but then went on to say that “writers in the area estimate several thousand per year in the United States and several thousand deaths have occurred from illegal abortions.” Likewise, Hames claimed in the first Doe argument that “illegal abortion and the complications therefrom is the largest single cause of maternal mortality in the United States. Therefore, abortion statutes have resulted in one of our nation’s largest health problems.” This was a large claim for which there was no basis in the record, though this claim was made in several amicus curiae (“friend of the court”) briefs. No Justice questioned Hames on this or any of her other undocumented sociological claims.
  • pp.101-102

• "Total maternal deaths” per year-from all causes-had dropped from 7,267 in 1942 to 780 in 1972. Of the 780 maternal deaths in 1972, 140 (or 18 percent) were attributed to “abortion deaths.” But this included spontaneous miscarriages, too. The NCHS data were obviously not in the record and were not submitted in any “friend-of-the-court” brief.
  Weddington’s arguments were filled with sociological claims that had no foundation in the record, including the legal disabilities that pregnant women incurred in Texas, legal problems in Texas for unwed mothers, how many women had abortions, the numbers of illegal abortions, the risks of illegal abortion, the risks of delay in getting a legal abortion, the impact ofNew York’s law that legalized abortion in July 1970, and the impact of laws in other states that had legalized abortion since 1967.
  • p.102

• [W]hether or not there was any record, Weddington’s arguments made a definite impact. After seventeen minutes of the first argument in Roe, with only a few minor questions to Weddington, Justice Stewart broke in to ask a question and prefaced it by saying, “so far on the merits, you’ve told us about the important impact of this law, and you made a very eloquent policy argument against” the Texas law. This may have been the most important moment in the first round of arguments, perhaps in both rounds.
  • p.103

• Historical claims also played a key role in the abortion decisions. History was critical for least two reasons: to show the purpose of the abortion laws and to see whether any right to abortion existed and could be said to be “deeply rooted” in American law and history.
  In Griswold, Justice Douglas had written for the Court:
  In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the “traditions and (collective) conscience of our people” to determine whether a principle is “so rooted (there) . . . as to be ranked as fundamental.” The inquiry is whether a right involved “is of such a character that it cannot be denied without violating those ‘fundamental principles of liberty and justice which lie at the case of all our civil and political institutions.’”
  That standard naturally led to the question of whether abortion qualified. But the Justices failed to apply that test in “Roe” and did not look closely at the relevant history.
  • p.103

• Justice Blackmun ended up relying for most of his legal history on the novel historical theories of Cyril Means, the general counsel of the National Association for the Repeal of Abortion Laws (NARAL). Weddington and Hames expressly urged the Court, at least three times, to read Means’s articles. Weddington subsequently reported that the Justices had copies of Means’s articles on the bench during the argument. Beasley specifically denied the accuracy of Means’s historical theories, but no Justice questioned them, and they became an essential pillar of Justice Blackmun’s opinion in Roe.
  Mean’s historical claims-which are explored in greater depth in chapter 6-were completely unprecedented. They were disputed at the time, and legal and historical scholarship has since definitively refuted them, but they had a decisive impact on the Justice’s questions, deliberations, and final opinions in the abortion cases.
  • p.104

• In the first Roe argument, Weddington claimed (citing Means) that “at the time the Constitution was adopted there was no common law prohibition against abortions; that they were available to the women of this country.” This was inaccurate on both counts: the English common law’s prohibition of abortion after quickening was adopted by the American colonies, and abortion was not available as a practical matter because it was either ineffective or deadly or both.
  Means’s other claim was that the purpose of abortion laws was only to protect the health of the mother, not the child. If abortion laws were adopted only for the health of the mother, however, there is no adequate explanation for why abortion laws were “criminal” laws. Why was abortion, in contrast to all other surgery, uniquely abortion statutes as criminal?
  • p.104

"The Wages of Crying Wolf” (1973)

Ely, John Hart. "The Wages of Crying Wolf” “Archived” 2007-06-25 at the Wayback Machine", 82 Yale Law Journal 920 (1973). Retrieved January 23, 2007; Reprinted by permission of The Yale Law Journal Company and William S. Hein Company from The Yale Law Journal, Vol. 82, pages 920-949.

• A number of fairly standard criticisms can be made of Roe. A plausible narrower basis of decision, that of vagueness, is brushed aside in the rush toward broader ground. The opinion strikes the reader initially as a sort of guidebook, addressing questions not before the Court and drawing lines with an apparent precision one generally associates with a commissioner’s regulations. On closer examination, however, the precision proves largely illusory. Confusing signals are emitted, particularly with respect to the nature of the doctor’s responsibilities and the permissible scope of health regulations after the first trimester. The Court seems, moreover, to get carried away on the subject of remedies: Even assuming the case can be made for an unusually protected constitutional right to an abortion, it hardly seems necessary to have banned during the first trimester all state regulation of the conditions under which abortions can be performed.
  By terming such criticisms “standard,” I do not mean to suggest they are unimportant, for they are not. But if they were all that was wrong with Roe, it would not merit special comment.
• Let us not underestimate what is at stake: Having an unwanted child can go a long way toward ruining a woman’s life. And at bottom Roe signals the Court’s judgment that this result cannot be justified by any good that anti-abortion legislation accomplishes. This surely is an understandable conclusion—indeed it is one with which I agree—but ordinarily the Court claims no mandate to second-guess legislative balances, at least not when the Constitution has designated neither of the values in conflict as entitled to special protection. But even assuming it would be a good idea for the Court to assume this function, Roe seems a curious place to have begun. Laws prohibiting the use of “soft” drugs or, even more obviously, homosexual acts between consenting adults can stunt “the preferred life styles” of those against whom enforcement is threatened in very serious ways. It is clear such acts harm no one besides the participants, and indeed the case that the participants are harmed is a rather shaky one. Yet such laws survive, on the theory that there exists a societal consensus that the behavior involved is revolting or at any rate immoral. Of course the consensus is not universal but it is sufficient, and this is what is counted crucial, to get the laws passed and keep them on the books. Whether anti-abortion legislation cramps the life style of an unwilling mother more significantly than anti-homosexuality legislation cramps the life style of a homosexual is a close question. But even granting that it does, the other side of the balance looks very different. For there is more than simple societal revulsion to support legislation restricting abortion: Abortion ends (or if it makes a difference, prevents) the life of a human being other than the one making the choice.
• Were I a legislator I would vote for a statute very much like the one the Court ends up drafting. I hope this reaction reflects more than the psychological phenomenon that keeps bombardiers sane—the fact that it is somehow easier to “terminate” those you cannot see—and am inclined to think it does: that the mother, unlike the unborn child, has begun to imagine a future for herself strikes me as morally quite significant. But God knows I’m not happy with that resolution. Abortion is too much like infanticide on the one hand, and too much like contraception on the other, to leave one comfortable with any answer; and the moral issue it poses is as fiendish as any philosopher’s hypothetical.
• The Court reports that some amici curiae argued for an unlimited right to do as one wishes with one’s body. This theory holds, for meat any rate, much appeal. However, there would have been serious problems with its invocation in this case. In the first place, more than the mother’s own body is involved in a decision to have an abortion; a fetus may not be a “person in the whole sense,” but it is certainly not nothing. Second, it is difficult to find a basis for thinking that the theory was meant to be given constitutional sanction: Surely it is no part of the “privacy” interest the Bill of Rights suggests.
  [I]t is not clear to us that the claim . . . that one has an unlimited right to do with one’s body as one pleases bears a close relation ship to the right of privacy. . .
  Unfortunately, having thus rejected the amici’s attempt to define the bounds of the general constitutional right of which the right to an abortion is a part, on the theory that the general right described has little to do with privacy, the Court provides neither an alternative definition nor an account of why it thinks privacy is involved. It simply announces that the right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Apparently this conclusion is thought to derive from the passage that immediately follows it:
  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 of this is true and ought to be taken very seriously. But it has nothing to do with privacy in the Bill of Rights sense or any other the Constitution suggests. I suppose there is nothing to prevent one from using the word “privacy” to mean the freedom to live one’s life without governmental interference. But the Court obviously does not so use the term. Nor could it, for such a right is at stake in every case. Our life styles are constantly limited, often seriously, by governmental regulation; and while many of us would prefer less direction, granting that desire the status of a preferred constitutional right would yield a sys tem of “government” virtually unrecognizable to us and only slightly more recognizable to our forefathers. The Court’s observations concerning the serious, life-shaping costs of having a child prove what might to the thoughtless have seemed unprovable: That even though a human life, or a potential human life, hangs in the balance, the moral dilemma abortion poses is so difficult as to be heartbreaking. What they fail to do is even begin to resolve that dilemma so far as our governmental system is concerned by associating either side of the balance with a value inferable from the Constitution.
• Of course a woman’s freedom to choose an abortion is part of the “liberty” the Fourteenth Amendment says shall not be denied without due process of law, as indeed is anyone’s freedom to do what he wants. But “due process” generally guarantees only that the inhibition be procedurally fair and that it have some “rational” connection—though plausible is probably a better word—with a permissible governmental goal. What is unusual about Roe is that the liberty involved is accorded a far more stringent protection, so stringent that a desire to preserve the fetus’s existence is unable to overcome it—a protection more stringent, I think it fair to say, than that the present Court ac cords the freedom of the press explicitly guaranteed by the First Amendment. What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-à-vis the interest that legislatively prevailed over it. And that, I believe—the predictable early reaction to Roe notwithstanding (“more of the same Warren-type activism”)—is a charge that can responsibly be leveled at no other decision of the past twenty years. At times the marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.
• It may be, however—at least it is not the sort of claim one can disprove —that the “right to an abortion,” or noneconomic rights generally, accord more closely with “this generation’s idealization of America” than the “rights” asserted in either Lochner or Dandridge. But that attitude, of course, is precisely the point of the Lochner philosophy, which would grant unusual protection to those “rights” that somehow seem most pressing, regardless of whether the Constitution suggests any special solicitude for them. The Constitution has little to say about contract, less about abortion, and those who would speculate about which the framers would have been more likely to protect may not be pleased with the answer. The Court continues to disavow the philosophy of Lochner. Yet as Justice Stewart’s concurrence admits, it is impossible candidly to regard Roe as the product of anything else.
• Thus the test Lochner and its progeny purported to apply is that which would theoretically control the same questions today: whether a plausible argument can be made that the legislative action furthers some permissible governmental goal. The trouble, of course, is they misapplied it. Roe, on the other hand, is quite explicit that the right to an abortion is a “fundamental” one, requiring not merely a “rational” defense for its inhibition but rather a “compelling” one.
  A second difference between Lochner et al. and Roe has to do with the nature of the legislative judgments being second-guessed. In the main, the “refutations” tendered by the Lochner series were of two sorts. The first took the form of declarations that the goals in terms of which the legislatures’ actions were defended were impermissible. Thus, for example, the equalization of unequal bargaining power and the strengthening of the labor movement are simply ends the legislature had no business pursuing, and consequently its actions cannot thereby be justified. The second form of “refutation” took the form not of denying the legitimacy of the goal relied on but rather of denying the plausibility of the legislature’s empirical judgment that its action would promote that goal.
• The Roe opinion’s “refutation” of the legislative judgment that anti abortion statutes can be justified in terms of the protection of the fetus takes neither of these forms. The Court grants that protecting the fetus is an “important and legitimate” governmental goal and of course it does not deny that restricting abortion promotes it. What it does, instead, is simply announce that that goal is not important enough to sustain the restriction. There is little doubt that judgments of this sort were involved in Lochner et al., but what the Court said in those cases was not that the legislature had incorrectly balanced two legitimate but competing goals, but rather that the goal it had favored was impermissible or the legislation involved did not really promote it.
  Perhaps this is merely a rhetorical difference, but it could prove to be important. Lochner et al. were thoroughly disreputable decisions, but at least they did us the favor of sowing the seeds of their own destruction. To say that the equalization of bargaining power or the fostering of the labor movement is a goal outside the ambit of a “police power” broad enough to forbid all contracts the state legislature can reasonably regard “as inconsistent with the public interests or as hurtful to the public order or as detrimental to the common good” is to say something that is, in a word, wrong. And it is just as obviously wrong to declare, for example, that restrictions on long working hours cannot reasonably be said to promote health and safety. Roe’s “refutation” of the legislative judgment, on the other, is not obviously wrong, for the substitution of one nonrational judgment for another concerning the relative importance of a mother’s opportunity to live the life she has planned and a fetus’s opportunity to live at all, can be labeled neither wrong nor right. The problem with Roe is not so much that it bungles the question it sets itself, but rather that it sets itself a question the Constitution has not made the Court’s business. It looks different from Lochner—it has the shape if not the substance of a judgment that is very much the Court’s business, one vindicating an interest the Constitution marks as special—and it is for that reason perhaps more dangerous. Of course in a sense it is more candid than Lochner. But the employment of a higher standard of judicial re view, no matter how candid the recognition that it is indeed higher, loses some of its admirability when it is accompanied by neither a coherent account of why such a standard is appropriate nor any indication of why it has not been satisfied.*Roe is a case in point. Certainly, many will view it as social progress. (Surely that is the Court’s view, and indeed the legislatures had been moving perceptibly, albeit too slowly for many of us, toward relaxing their anti-abortion legislation.) And it is difficult to see how it will weaken the Court’s position. Fears of official disobedience are obviously groundless when it is a criminal statute that has been invalidated. To the public the Roe decision must look very much like the New York Legislature’s recent liberalization of its abortion law. Even in the unlikely event someone should catch the public’s ear long enough to charge that the wrong institution did the repealing, they have heard that “legalism” before without taking to the streets. Nor are the political branches, and this of course is what really counts, likely to take up the cry very strenuously: The sighs of relief as this particular albatross was cut from the legislative and executive necks seemed to me audible. Perhaps I heard wrong—I live in the North east, indeed not so very far from Hyannis Port. It is even possible that a constitutional amendment will emerge, though that too has happened before without serious impairment of the Position of the Institution. But I doubt one will: Roe v. Wade seems like a durable decision.
  It is, nevertheless, a very bad decision. Not because it will perceptibly weaken the Court—it won’t; and not because it conflicts with either my idea of progress or what the evidence suggests is society’s—it doesn’t. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.
• Identification and definition of the values with which the Constitution is concerned will often fall short of indicating with anything resembling clarity the deference to be given those values when they conflict with others society finds important. (Though even here the process is sometimes more helpful than the commentators would allow.) Nor is it often likely to generate, fullblown, the “neutral” principle that will avoid embarrassment in future cases. But though the identification of a constitutional connection is only the beginning of analysis, it is a necessary beginning. The point that often gets lost in the commentary, and obviously got lost in Roe, is that before the Court can get to the “balancing” stage, before it can worry about the next case and the case after that (or even about its institutional position) it is under an obligation to trace its premises to the charter from which it derives its authority. A neutral and durable principle may be a thing of beauty and a joy forever. But if it lacks connection with any value the Constitution marks as special. it is not a constitutional principle and the Court has no business imposing it. I hope that will seem obvious to the point of banality. Yet those of us to whom it does seem obvious have seldom troubled to say so. And because we have not, we must share in the blame for this decision.

“Revelations on the Road to Roe” (May 2000)

“Revelations on the Road to Roe” by David Garrow, American Lawyer, Volume 22, May 2000

• SUPREME COURT JUSTICE Harry Blackmun has long been seen as the primary architect of the landmark 1973 abortion decision in Roe v. Wade--with particular encouragement coming from his two most liberal colleagues, William Brennan and Thurgood Marshall. But a close reading of the papers of the late Justice Lewis Powell, Jr.--only recently made available to anyone other than his official biographer--provides a striking revelation about the profound influence that the centrist Southern justice had on the historic case. The Powell Papers make clear that clerk Larry Hammond, drawing from a contemporaneous lower federal court abortion opinion written by Judge Jon O. Newman, helped provide Powell with the analytical insight that persuaded a seven-justice majority to broaden Roe's new protection of abortion rights from the first trimester all the way to the threshold of fetal viability.
  • p.1

• Powell jotted his own initial reaction to Blackmun's drafts in the margin: "I doubt the validity of the Texas statute as unduly restrictive of individual rights (privacy) but I am not persuaded it is vague." He added, "Why not consolidate Texas + Ga. cases + rely on Ga. type analysis--if we are to invalidate these laws?" On White's draft, Powell again noted, "I agree that Texas statute is not unconst. vague. But I'm not clear as to where this draft leaves the Texas statute. Does J. White think Tex. statute is valid?"
  • p.1

• Hammond summarized for Powell the constitutional privacy analyses that different justices had offered in the landmark 1965 birth control case, Griswold v. Connecticut, and concluded that "it would not be difficult for this Ct. to find a fundamental right of a woman to control the decision whether to go through the experience of pregnancy and assume the responsibilities that occur thereafter." Hammond suggested that "you might reason as Judge Newman does that the state interest becomes more dominant when the fetus is capable of independent existence (or becomes `viable')." Alluding to Texas's and Connecticut's claims that fetuses become constitutional "persons" at the "moment of conception," Hammond noted how "the crux of Judge Newman's analysis is that the state may not bar abortional freedom altogether on the basis of a proposition that is subject to such a great public debate and affects individuals so personally." Hammond concluded by observing that "I do believe that a well-reasoned opinion can be written reaching this result without placing the Ct. in the position of deciding as a super legislature whether it will permit abortions at any specific point in time."
  • p.2

• Powell's notes indicate that while White believed that a "woman must have some const. right to protection," he nonetheless was "unwilling to second-guess state leg. as to its interest. Pure convenience of woman can't override state interest," and the Court "can't allow abortion on demand." Powell's notes fail to indicate, as both Brennan's and Douglas's do, that it was Powell's own comments that led Blackmun to say that he would jettison his void-for-vagueness approach to Roe and make the Texas case, rather than the Georgia one, the "lead" decision.
  • p.2

• Powell's file discloses that a previously unrevealed private response from Rehnquist was one of the first that Blackmun received. Rehnquist acknowledged that "although I am still in significant disagreement with parts of them, I have to take my hat off to you for marshaling as well as I think could be done the arguments on your side. I think I will probably still file a dissent, although more limited than I had contemplated after the conference discussion."
  • pp.2-3

• Blackmun's November drafts, unlike the final Roe and Doe opinions the Court handed down on January 22, 1973, held that states must leave the abortion decision to a woman and her doctor only during the first trimester of pregnancy. Subsequent to those first three months, states could restrict legal abortions to carefully specified therapeutic categories. Thus Rehnquist asked Blackmun, "Ought not your Texas opinion to invalidate the Texas abortion statute only as applied to a litigant who seeks abortion within the first `trimester,' rather than, as I understand you to do, invalidating it in toto?" Rehnquist also similarly wondered, whether in Doe, "Would you permit any more latitude to Georgia in her procedural requirements after the first trimester" as opposed to during it?
  Rehnquist's subdued feelings about Roe, which contrast starkly with his far more intense expressions in subsequent abortion cases, do not come as a complete surprise. But his letter to Blackmun, like Blackmun's newly available private response, adds significant richness to Roe's history. In reply, Blackmun told Rehnquist that he would have "conceptual difficulty" in voiding the Texas statute only as it pertained to the first trimester, and reiterated how he still believed the law was unconstitutionally vague, even though his opinion now bypassed that issue entirely. In response to Rehnquist's second question, Blackmun expressed accord: "I agree that after the first trimester a state is entitled to more latitude procedurally as well as substantively."
  But it fell to Lewis Powell to first broach to Blackmun the biggest question that his November drafts raised, namely whether the Court's forthcoming constitutional ruling should indeed be limited primarily to abortions during just the first trimester of pregnancy. Larry Hammond had highlighted the issue in a six-page memo to Powell on November 27. Hammond was pleased that Blackmun "has embraced the straightforward constitutional view taken by Judge Newman in the Connecticut case," but was unhappy with how Blackmun had identified the end of the first trimester as legally decisive. "Since the statutory prohibition [in Texas] was total, it is unnecessary to the result that we draw the line. If a line ultimately must be drawn, it seems that `viability' provides a better point. This is where Judge Newman would have drawn the line."
  • p.3

• "Doesn't it seem that this language overstates the doctor's role and undercuts the woman's personal interest in the decision?" asked Hammond, following with the recommendation that Powell should advocate the Court instead say that the responsibility would rest "with the physician and his patient."
  • p.3

• Within a day of receiving Hammond's memo, Powell wrote a private letter to Blackmun. "I am enthusiastic about your abortion opinions. They reflect impressive scholarship and analysis." But Powell quickly got to his real question, which was "whether you view your choice of `the first trimester' as essential to your decision." Powell noted how Blackmun himself had volunteered that this choice was "arbitrary" in the cover memo that had accompanied his new drafts, and voiced his own--or his and Hammond's--proposal: "I have wondered whether drawing the line at `viability'--if we conclude to designate a particular point of time--would not be more defensible in logic and biologically than perhaps any other single time."
  Quoting Judge Newman's language about the constitutional importance of fetal viability, Powell told Blackmun that "I rather agree with the view that the interest of the state is clearly identifiable, in a manner which would be generally understood, when the fetus becomes viable. At any point in time prior thereto, it is more difficult to justify a cutoff date." Powell observed that the Court did not have to say anything, and that Newman's opinion "pointed the way generally toward `viability' without making this an explicit ruling," but Powell's letter was the first intra-Court communication to put the option of extending constitutional protection for abortion choice all the way to fetal viability explicitly on the table.
  • p.4

• Harry Blackmun replied to Powell five days later in a previously unquoted private letter that ironically reveals how highly reluctant Roe's author was to extend the ruling to the point that the Court's actual decision indeed reached:
  I have no particular commitment to the point marking the end of the first trimester as contrasted with some other point, such as quickening or viability. I selected the earliest of the three because medical statistics and the statistical writings seemed to focus on it and to draw their contrasts between the first three months and the remainder of the pregnancy. In addition, I thought it might be easier for some of the justices than a designated later point.
  I could go along with viability if it could command a court. By that time the state's interest has grown large indeed. I suspect that my preference, however, is to stay with the end of the first trimester for the following reasons: (1) It is more likely to command a court. (2) A state is still free to make its decisions on the liberal side and fix a later point in the abortion statutes it enacts. (3) I may be wrong, but I have the impression that many physicians are concerned about facilities and, for example, the need of hospitalization, after the first trimester. I would like to leave the states free to draw their own medical conclusions with respect to the period after three months and until viability. The states' judgments of the health needs of the mother, I feel, ought, on balance, to be honored.
  I would be willing to state, either in the opinion or in a footnote, what is essentially the obvious--namely, that a state is free to leave the decision to the attending physician and to regulate at a later date than the end of the first trimester.
  • p.4

• Larry Hammond expressed elation at Blackmun's memo, telling Powell in a cover note that Blackmun "expresses what I feel is the most important practical consideration. For many poor, or frightened, or uneducated, or unsophisticated girls, the decision to seek help may not occur during the first 12 weeks. The girl might be simply hoping against hope that she is not pregnant but is just missing periods. Or she might know perfectly well that she is pregnant but be unwilling to make the decision--unwilling to tell her parents or her boyfriend." Powell drew a crisp bracket around these sentences when he read Hammond's note, and scrawled a bold, dark "yes" in the margin.
  • p.5

• In response to Blackmun's explicit request for reactions, both Thurgood Marshall and William Brennan quickly endorsed the shift to viability first suggested by Powell. After reviewing Hammond's note, Powell too prepared a letter to Blackmun, saying that "once we take the major step of affirming a woman's constitutional right, it seems to me that viability is a more logical and defensible time for identifying the point at which the state's overriding right to protect potential life becomes evident." Powell noted how "the women who most need the benefit of liberalized abortion laws are likely to be young, inexperienced, unsure, frightened and perhaps unmarried," and observed that "if there is a constitutional right to an abortion, there is much to be said for making it effective where and when it may well be needed most." Powell closed by again mentioning that he was "favorably impressed" with how Jon Newman had "identified viability as the critical time from the viewpoint of the state."
  Powell left his letter to Blackmun unsent, perhaps in the belief that Marshall's and Brennan's expressions of support had already made the point, or perhaps because he reiterated his views face-to-face. In any event, on December 15 Harry Blackmun notified all of his colleagues that he would be revising his Roe and Doe opinions in the manner recommended, and six days later, new all-but-final drafts were distributed as well.
  History has correctly recorded Harry Blackmun as the hardworking author of Roe v. Wade, but until now neither the crucial influence of Lewis Powell--nor that of Larry Hammond and Jon Newman has--been fully appreciated.
  • p.5

“The Brains Behind Blackmun” (May/June 2005)

“The Brains Behind Blackmun” by David J. Garrow, Legal Affairs: The Magazine at the intersection of law and life, May/June 2005

• Blackmun's clerks played substantial roles in producing his opinions as early as 1971, when the landmark abortion cases Roe v. Wade and Doe v. Bolton first came before the court.
• BLACKMUN'S AUTHORSHIP OF ROE V. WADE and Doe v. Bolton became the signature event of his 24 years on the court. The pair of cases challenging anti-abortion statutes in Texas and Georgia was decided during Blackmun's third term as a justice. Yet even then, Blackmun allowed his clerks to play influential roles not only in drafting the two opinions but also in honing the constitutional standards that made the two cases famous.
  Even before Roe and Doe arrived at the court, Blackmun was clearly comfortable with interpreting the Constitution to protect women's access to abortion. Writing to himself just prior to the oral argument in United States v. Vuitch, the court's first abortion case, in January 1971, Blackmun noted that the 1965 case Griswold v. Connecticut, which upheld the right of married couples to use contraceptives, and the 1969 case Stanley v. Georgia, which protected the possession of pornography in the home, "afford potent precedence in the privacy field. I may have to push myself a bit, but I would not be offended by the extension of privacy concepts to the point presented by the present case." At conference, however, the justices decided Vuitch on grounds that allowed them to avoid the constitutional privacy issue.
  When Blackmun began preparing for Roe's initial oral argument in December 1971, his notes about the case reiterated his comments about Vuitch. "A fundamental personal liberty is involved here—right to receive medical care," he wrote. "Much precedent for this sort of thing—Griswold et al." After argument and the justices' private conference, Burger assigned Blackmun to write the opinions in Roe and Doe.
• Law clerk John T. Rich, who now practices law in Washington, D.C., prepared a long memo for Blackmun summarizing the issues in Roe. After a first draft of the Roe opinion was completed in mid-May 1972, Rich gave Blackmun a forceful, 13-page list of recommended changes. Doe was the responsibility of Rich's co-clerk, George Frampton, who is now a New York lawyer. By mid-May, Frampton had a draft opinion ready for distribution. While not as assertive as Rich, Frampton nonetheless told Blackmun that the opinion should more clearly state that it was affirming the lower court's decision to void several restrictions on abortion in the Georgia statute. "I feel even more strongly now that you should make explicit what the opinion presupposes by approving the decision of the court below as far as it went." But both drafts were held in abeyance after a majority of the court, at Blackmun's urging, scheduled Roe and Doe for reargument during the following term, when a full bench that included Powell and William Rehnquist—who had joined the court after the initial arguments—could decide the two cases.
• Over the summer, while Blackmun visited the Mayo Clinic's library in Rochester, Minn., to research the medical aspects of abortion, Rich and Frampton did substantial work on the draft opinions before their clerkships ended in early August. In mid-July, Frampton informed Blackmun that "after thinking about the overall structure of the opinions, John and I have concluded that there is a strong argument for leaving the Texas case to go off on vagueness," meaning that in Roe the court would void the Texas statute as too vague, and Doe would become the more constitutionally significant opinion. Frampton wanted the opinions to provide "a comprehensive prescription" for how states should revise their abortion laws, and on August 11, 1972, he sent Blackmun revised drafts of both Doe and Roe, as well as advice on strategy.
  I want to urge you again to circulate your revised draft before oral argument," Frampton wrote to Blackmun. "[I]t will nail down your keeping the assignment, it should influence questions and thinking at oral argument, and it might well influence voting. It will also put a premium on getting the cases handed down quickly. . . .
  Frampton also told Blackmun about an analytical distinction that would prove crucial in the final Roe and Doe opinions. "I have written in, essentially, a limitation of the [abortion] right depending on the time during pregnancy when the abortion is proposed to be performed," Frampton explained. "I have chosen the point of [fetal] viability for this 'turning point' (when state interests become compelling) for several reasons: a) it seems to be the line of most significance to the medical profession, for various purposes; b) it has considerable analytic basis in terms of the state interest as I have articulated it. . . ."
  He also highlighted another addition. "I have included a section designed to show in greater detail that neither the law nor any other discipline has really arrived at a consensus about the beginning of life." But Frampton confessed that, as to constitutional privacy analysis, "I would have liked to do more here, but I really didn't have time at the end," and he regretted the deficiency. "Since the opinion does use this right throughout, and since it is a new application of it, I think considerable explanation is required in addition to what the circulated draft contained—which was little more than one sentence plus a string cite in [the] text."
• After the two cases were argued again in October 1972, Blackmun prepared for the conference, assuming that they would remain his responsibility. "I am revising and expanding the proposed opinions that commanded a majority," he jotted to himself. "I have a lot of personal investment," he added, and "It is not a happy assignment—[I] will be excoriated." The task of handling both Roe and Doe had passed to new law clerk Randall Bezanson, who now teaches law at the University of Iowa. In a November 29 memo to Blackmun, Bezanson questioned Frampton's selection of viability as the point at which the right to an abortion should be limited, a choice that Powell had also recommended.
  "By selecting viability," Bezanson asked Blackmun, "would you not be suggesting that prior to that point no limitations could be placed on abortions (except those permitted in your opinions as they now stand)." Bezanson then offered an analysis that decisively shaped how Roe would balance the woman's right and the state's interests throughout pregnancy:
  Let's assume that prior to the end of the first trimester no limitations could be placed on abortion, as your opinion now provides. And assume that after viability the state's interest becomes sufficiently compelling to prevent abortions except in limited circumstances—preserving the life of the mother, or her health as narrowly defined in a statute. I am still of the opinion that during the 'interim' period between the end of the first trimester and viability (about 6 months), the state might impose some greater restrictions relating to medical dangers posed by the operation, e.g., the operation would have to be performed in a hospital, as opposed to a clinic close to a hospital, and the like. One of the positive attributes of your approach, as I see it, is that it leaves the state free to place increasing restrictions on abortions over the period of gestation if those restrictions are narrowly tailored to state interests. Justice Powell's suggestion seems to view the relevant state interests too narrowly, and disregards the state's interest in assuring that the medical procedures employed will be safe. Your opinion, as I view it, rests on two state interest[s], which become compelling in varying degrees over time, and not simultaneously: the state's interest in preserving the life of the fetus (here the most logical cutoff, as Justice Powell suggests, is viability), and the state's interests in assuring that the abortion procedure is safe and adequately protects the health of the patient (it is this interest to which I think Justice Powell gives too little weight). The fetus is pretty large at 4 or 5 or 6 months, although it may not be 'viable.' I would imagine, and your opinion suggests to me, that the medical risks which attend abortion of a fetus increase as the size of the fetus increases. Thus the state's interests may increase vis-á-vis this factor before 'viability.'
  While the first trimester is, as you admit, an arbitrary cutoff, I don't think that it is all that arbitrary, and I would not want to prejudge a state's interests during the 'interim' period between the end of the first trimester and viability at this time. I would stand by your original position, subject to minor change, and leave the question of what legitimate interests a state might have of requiring greater protection through higher medical standards to another case.*The majority opinions in Roe v. Wade and Doe v. Bolton came down on January 22, 1973, and owed a great amount of their substance and language to Frampton and Bezanson.* Yet what stands out most in the work of Blackmun's clerks on Roe and Doe is not the remarkable extent of their contributions, but the unusually assertive and forceful manner in which the clerks voiced their views to Blackmun. Although no one has reviewed every one of Blackmun's case file folders, the behavior of Blackmun's clerks in preparing the Roe and Doe decisions was the first significant example of conduct that formed a clear pattern after the mid-1980s.

"Exclusive: Supreme Court has voted to overturn abortion rights, draft opinion shows" (May 2, 2022)

Gerstein, Josh; Ward, Alexander (May 2, 2022; updated 05/03/2022). "Exclusive: Supreme Court has voted to overturn abortion rights, draft opinion shows". Politico. Retrieved May 3, 2022.

• The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.
  The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision — Planned Parenthood v. Casey — that largely maintained the right.
• The draft opinion offers an extraordinary window into the justices’ deliberations in one of the most consequential cases before the court in the last five decades. Some court-watchers predicted that the conservative majority would slice away at abortion rights without flatly overturning a 49-year-old precedent. The draft shows that the court is looking to reject Roe’s logic and legal protections.
• On Tuesday, after this article was published, Roberts confirmed the authenticity of the draft opinion and said he was ordering an investigation into the disclosure.
  “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way,” Roberts pledged in a written statement. “This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.”
  Roberts also stressed that the draft opinion “does not represent a decision by the Court or the final position of any member on the issues in the case.” The court spokesperson had declined comment pre-publication.

“Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade" (1985)

Ruth Bader Ginsburg, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade", North Carolina Law Review, Volume 63, Number 2, Article 4, 1985

• The 1973 United States Supreme Court decision in Roe v. Wade sparked a legal and political controversy that continues to this day. Judge Ginsburg suggests that the Roe opinion would have been more acceptable if it had not gone beyond a ruling on the extreme statute involved in the case. She agrees with commentary maintaining that the Court should have adverted specifically to sex equality considerations. Such an approach might have muted the criticism of the Roe decision. The breadth and detail of the Roe opinion ironically may have stimulated, rather than discouraged, antiabortion measures, particularly with respect to public funding of abortion.
  • p.375

• The High Court has analyzed classification by gender under an equal protection/sex discrimination rubric; it has treated reproductive autonomy under a substantive due process/personal autonomy headline not expressly linked to discrimination against women. The Court's gender classification decisions overturning state and federal legislation, in the main, have not provoked large controversy; the Court's initial 1973 abortion decision, Roe v. Wade, on the other hand, became and remains a storm center. Roe v. Wade sparked public opposition and academic criticism, in part, I believe, because the Court ventured too far in the change it ordered and presented an incomplete justification for its action. I will attempt to explain these twin perspectives on Roe later in this Essay.
  • pp.375-376

• In 1971, just before the Supreme Court's turning-point gender-classification decision in Reed v. Reed, and over a year before Roe v. Wade, I visited a neighboring institution to participate in a conference on women and the law. I spoke then of the utility of litigation attacking official line-drawing by sex. My comments focused on the chance in the 1970s that courts, through constitutional adjudication, would aid in evening out the rights, responsibilities, and opportunities of women and men. I did not mention the abortion cases then on the dockets of several lower courts-I was not at that time or any other time thereafter personally engaged in reproductive-autonomy litigation. Nonetheless, the most heated questions I received concerned abortion.
  The questions were pressed by black men. The suggestion, not thinly veiled, was that legislative reform and litigation regarding abortion might have less to do with individual autonomy or discrimination against women than with restricting population growth among oppressed minorities. The strong word "genocide" was uttered more than once. It is a notable irony that, as constitutional law in this domain has unfolded, women who are not poor have achieved access to abortion with relative ease; for poor women, however, a group in which minorities are disproportionately represented, access to abortion is not markedly different from what it was in pre-Roe days.
  • pp.376-377

• Roe v. Wade, in contrast to decisions involving explicit male/female classification, has occasioned searing criticism of the Court, over a decade of demonstrations, a stream of vituperative mail addressed to Justice Blackmun (the author of the opinion), annual proposals for overruling Roe by constitutional amendment, and a variety of measures in Congress and state legislatures to contain or curtail the decision. In 1973, when Roe issued, abortion law was in a state of change across the nation. There was a distinct trend in the states, noted by the Court, "toward liberalization of abortion statutes." Several states had adopted the American Law Institute's Model Penal Code approach setting out grounds on which abortion could be justified at any stage of pregnancy; most significantly, the Code included as a permissible ground preservation of the woman's physical or mental health. 35 Four states-New York, Washington, Alaska, and Hawaii-permitted physicians to perform first-trimester abortions with virtually no restrictions. This movement in legislative arenas bore some resemblance to the law revision activity that eventually swept through the states establishing no-fault divorce as the national pattern.
  • pp.379-380

• The Texas law at issue in Roe made it a crime to "procure an abortion" except "by medical advice for the purpose of saving the life of the mother." 37 It was the most extreme prohibition extant. The Court had in close view two pathmarking opinions on reproductive autonomy: first, a 1965 precedent, Griswold v. Connecticut,3 8 holding inconsistent with personal privacy, somehow sheltered by due process, a state ban on the use of contraceptives even by married couples; second, a 1972 decision, Eisenstadt v. Baird,39 extending Griswold to strike down a state prohibition on sales of contraceptives except to married persons by prescription. The Court had already decided Reed v. Reed, recognizing the arbitrariness in the 1970s of a once traditional gender-based classification, but it did not further pursue that avenue in Roe.
  • p.380

• [B]efore Roe, women of means could end their pregnancies by traveling to states or foreign nations with less restrictive abortion laws. See Burt, The Burger Court and the Famil, THE BURGER COURT, supranote 25, at 92, 107-08 (for practical purposes, the availability of abortions in some states undermined the more restrictive regimes); Karst, supra note 1, at 59 ("Even before Roe v. Wade, wealthy women. . . could obtain abortions by traveling."); Abortion for Whom, NEW REPUBLIC, Oct. 25, 1969, at 12 ("The rich have always been able to get abortions by going abroad. The poor cannot travel . . ..."). For example, in 1971, the second year New York's liberalized abortion law was in effect, 60% of the women having abortions in New York were nonresidents.
  • Footnote 36, p.380

• The decision in Roe appeared to be a stunning victory for the plaintiffs. The Court declared that a woman, guided by the medical judgment of her physician, had a "fundamental" right to abort a pregnancy, a right the Court anchored to a concept of personal autonomy derived from the due process guarantee. The Court then proceeded to define with precision the state regulation of abortion henceforth permissible. The rulings in Roe, and in a companion case decided the same day, Doe v. Bolton, were stunning in this sense: they called into question the criminal abortion statutes of every state, even those with the least restrictive provisions.
  • pp.380-381

• Roe announced a trimester approach Professor Archibald Cox has described as "read[ing] like a set of hospital rules and regulations. During the first trimester, "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician"; in the next, roughly three-month stage, the state may, if it chooses, require other measures protective of the woman's health. 4 5 During the final months, "the stage subsequent to viability," the state also may concern itself with an emerging interest, the "potentiality of human life"; at that stage, the state "may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."
  • p.381

• Justice O'Connor, ten years after Roe, described the trimester approach as "on a collision course with itself." Advances in medical technology would continue to move forward the point at which regulation could be justified as protective of a woman's health, and to move backward the point of viability, when the state could proscribe abortions unnecessary to preserve the patient's life or health. The approach, she thought, impelled legislatures to remain aucourant with changing medical practices and called upon courts to examine legislative judgments, not as jurists applying "neutral principles," but as "science review boards."
  • p.381

• I earlier observed that, in my judgment, Roe ventured too far in the change it ordered. The sweep and detail of the opinion stimulated the mobilization of a right-to-life movement and an attendant reaction in Congress and state legislatures. In place of the trend "toward liberalization of abortion statutes" noted in Roe, legislatures adopted measures aimed at minimizing the impact of the 1973 rulings, including notification and consent requirements, prescriptions for the protection of fetal life, and bans on public expenditures for poor women's abortions.
  • pp.381-382

• Professor Paul Freund explained where he thought the Court went astray in Roe, and I agree with his statement. The Court properly invalidated the Texas proscription, he indicated, because "[a] law that absolutely made criminal all kinds and forms of abortion could not stand up; it is not a reasonable accommodation of interests."'53 If Roe had left off at that point and not adopted what Professor Freund called a "medical approach," 54 physicians might have been less pleased with the decision, but the legislative trend might have continued in the direction in which it was headed in the early 1970s. "[S]ome of the bitter debate on the issue might have been averted," Professor Freund believed; "[t]he animus against the Court might at least have been diverted to the legislative halls." a5 5 Overall, he thought that the Roe distinctions turning on trimesters and viability of the fetus illustrated a troublesome tendency of the modem Supreme Court under Chief Justices Burger and Warren "to specify by a kind of legislative code the one alternative pattern that will satisfy the Constitution."
  • p.382

• I commented at the outset that I believe the Court presented an incomplete justification for its action. Academic criticism of Roe, charging the Court with reading its own values into the due process clause, might have been less pointed had the Court placed the woman alone, rather than the woman tied to her physician, at the center of its attention. Professor Karst's commentary is indicative of the perspective not developed in the High Court's opinion; he solidly linked abortion prohibitions with discrimination against women. The issue in Roe, he wrote, deeply couched and concerned "women's position in society in relation to men."
  It is not a sufficient answer to charge it all to women's anatomy-a natural, not man-made, phenomenon. Society, not anatomy, "places a greater stigma on unmarried women who become pregnant than on the men who father their children." Society expects, but nature does not command, that "women take the major responsibility. . . for child care" 60 and that they will stay with their children, bearing nurture and support burdens alone, when fathers deny paternity or otherwise refuse to provide care or financial support for unwanted offspring.
  • pp.382-383

• On several occasions since Roe the Court has confronted legislative responses to the decision. With the notable exception of the public funding cases, the Court typically has applied Roe to overturn or limit efforts to impede access to abortion. I will not survey in the brief compass of this Essay the Court's series of opinions addressing: regulation of the abortion decision making process; specifications regarding personnel, facilities, and medical procedures; and parental notification and consent requirements in the case of minors. Instead, I will simply highlight the Court's statement last year reaffirming Roe's "basic principle that a woman has a fundamental right to make the highly personal choice whether or not to terminate her pregnancy." In City of Akron v. Akron Center for Reproductive Health, Inc.,65 the Court acknowledged arguments it continues to hear that Roe "erred in interpreting the Constitution." Nonetheless, the Court declared it would adhere to Roe because "stare decisis, while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law."
  • p.383

• I turn, finally, to the plight of the woman who lacks resources to finance privately implementation of her personal choice to terminate her pregnancy. The hostile reaction to Roe has trained largely on her.
  Some observers speculated that the seven-two judgment in Roe was motivated at least in part by pragmatic considerations-population control concerns, the specter of coat hanger abortions, and concerns about unwanted children born to impoverished women. I recalled earlier the view that the demand for open access to abortions had as its real purpose suppressing minorities. In a set of 1977 decisions, however, the Court upheld state denial of medical expense reimbursement or hospital facilities for abortions sought by indigent women. Moreover, in a 1980 decision, Harris v. McRae,70 the Court found no constitutional infirmity in the Hyde Amendment, which excluded even medically necessary abortions from Medicaid coverage. After these decisions, the Court was accused of sensitivity only to the Justices' own social milieu--"of creating a middle-class right to abortion."
  The argument for constitutionally mandated public assistance to effectuate the poor woman's choice ran along these lines. Accepting that our Constitution's Bill of Rights places restraints, not affirmative obligations, on government, counsel for the impoverished women stressed that childbirth was publicly subsidized. As long as the government paid for childbirth, the argument proceeded, public funding could not be denied for abortion, often a safer and always a far less expensive course, short and long run. By paying for childbirth but not abortion, the complainants maintained, government increased spending and intruded upon or steered a choice Roe had ranked as a woman's "fundamental" right.
  The Court responded that, like other individual rights secured by the Constitution, the right to abortion is indeed a negative right. Government could not intervene by blocking a woman's utilization of her own resources to effectuate her decision. It could not "'impose its will by force of law.'" But Roe did not demand government neutrality, the Court reasoned; it left room for substantive government control to this extent: Action "deemed in the public interest ' -in this instance, protection of the potential life of the fetus could be promoted by encouraging childbirth in preference to abortion.
  • pp.383-384

• Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the Court. The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.
  The public funding of abortion decisions appear incongruous following so soon after the intrepid 1973 rulings. The Court did not adequately explain why the "fundamental" choice principle and trimester approach embraced in Roe did not bar the sovereign, at least at the previability stage of pregnancy, from taking sides.
  Overall, the Court's Roe position is weakened, I believe, by the opinion's concentration on a medically approved autonomy idea, to the exclusion of a constitutionally based sex-equality perspective. I understand the view that for political reasons the reproductive autonomy controversy should be isolated from the general debate on equal rights, responsibilities, and opportunities for women and men. I expect, however, that organized and determined opposing efforts to inform and persuade the public on the abortion issue will continue through the 1980s. In that process there will be opportunities for elaborating in public forums the equal-regard conception of women's claims to reproductive choice uncoerced and unsteered by government.
  • pp.385-386

"Justice Ginsburg: Roe v. Wade not 'woman-centered'" (May 11, 2013)

Ruth Bader Ginsburg as quoted by Bullington, Jonathan (May 11, 2013). "Justice Ginsburg: Roe v. Wade not 'woman-centered'". Chicago Tribune.

• Forty years after the U.S. Supreme Court's landmark Roe v. Wade case legalized abortion, Justice Ruth Bader Ginsburg said the case is not her "ideal picture" for resolving the controversial issue of abortion.
  Instead, the landmark decision gave abortion-rights opponents a rallying point that is still used today, Ginsburg — the second female justice ever appointed to the court — told a packed crowd Saturday at the University of Chicago Law School auditorium.
  "The court had given the opponents a target to aim at relentlessly," she said.
• Ginsburg, 80, said another case, Struck v. Secretary of Defense, would have been her choice as the first reproductive freedom case heard by the nation's high court.
  In that case, U.S. Air Force Cpt. Susan Struck became pregnant in 1970 while serving in Vietnam. Ginsburg, who at the time represented Struck as a lawyer with the American Civil Liberties Union, said the woman had two choices: leave the military or have a legal abortion on base.
  Struck told her commanding officer that she arranged to have the child adopted upon birth, but she was still forced to leave Vietnam and was sent back to the U.S., Ginsburg said.
  Ginsburg prepared the case for the Supreme Court in 1971, but it was never heard after the Air Force changed its policy on pregnancies and allowed Struck to have the child and remain in the service.
  "The idea was: 'Government, stay out of this,' " Ginsburg said. "I wish that would have been the first case. The court would have better understood this is a question of a woman's choice."
• In Roe v. Wade, the court should have steered away from a sweeping legalization of abortion, Ginsberg argued. Instead, a ruling should have taken the narrower approach of deeming unconstitutional the Texas law that spawned the case, which only allowed abortions deemed life saving for a woman, she said.
  Doing so, Ginsberg said, would have spurred a gradual, state-by-state loosening of abortion restrictions and contributed to the democratic process.
  Instead, the court "covered the waterfront" with a decision that — by including the need to consult with a physician — is not really about a woman's right to choose, Ginsburg argued.
  "It's about a doctor's freedom to practice his profession as he thinks best," Ginsburg said. "It wasn't woman-centered. It was physician-centered."
  Roe v. Wade "seemed to stop momentum on the side of change," Ginsburg told the crowd, saying that abortion-related cases now focus on "restrictions to access, not expanding the rights of women."

“Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between Them Reveal About the History of Fundamental Rights”

“Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between Them Reveal About the History of Fundamental Rights” by Risa L. Goluboff, Stanford Law Review, Volume 62, Issue 5

• Ever since Anthony Amsterdam published his path breaking note on the void-for-vagueness doctrine in 1960, legal scholars have speculated about the Supreme Court’s use of the doctrine. On the surface, under void-for-vagueness, judges condemn as violations of the Due Process Clause of the Fifth of Fourteenth Amendment those laws they deem unduly vague or ambiguous. As Amsterdam described it, such vagueness in constitutionally problematic for two reasons. First, vagueness fails to give fair notice to the public as to what constitutes illegal conduct. Second, vagueness fails to guide the discretion of executive officers and judges it accordingly encouraged arbitrary and potentially discriminatory arrests and criminal convictions. Vagueness thus poses problems for the principle of legality and the rule of law itself.
  • p.1362

• Brennan’s memo shows that he saw connections between Douglas’s fundamental rights-based “Papacristou” opinion and Blackmun’s forthcoming Roe opinion, which was to be based on the same constitutional theory. He was worried that other, more conservative Justices would see the same connections and that they would hesitate to sign onto Roe for fear of broadening substantive due process to include everything in Douglas’s opinion as well.
  That Brennan was preoccupied with Roe in the winter of 1971 is hardly surprising. Think of the historical context. Behind the Court was Griswold v. Connecticut-that wide-ranging survey of constitutional provisions that the Justices hopes might justify judicial protection of fundamental rights. Griswold is the constitutional law professor’s dream The Court struck down Connecticut’s law prohibiting the use of contraceptives by married couples with numerous Justices in multiple opinions transparently struggling to find protection or rights nowhere listed in the Constitution. Famously, Douglas constructed a majority opinion in which the “penumbras” of the Bill o Rights created a right to privacy that thwarted the Connecticut law.
  The Court was clearly still wrangling with such issues six years later, when it faced both Eisenstadt v. Baird and Roe v. Wade in 1971. In Eisenstadt, Brennan authored a somewhat strained plurality opinion holding that equal protection required that individuals have the same rights to contraceptives as married couples. He thereby avoided expanding any of the substantive theories Griswold had propounded.
  • pp.1378-1379

• In Roe, Blackmun’s initial impulse was also avoidance. Although the conference had voted to invalidate the abortion statute on privacy grounds, Blackmun’s early draft opinion relied not on any substantive right, but on-wait for it-void-for-vagueness doctrine. Unlike feminists’ claims that abortion laws violated women’s fundamental rights, doctors’ claims against abortion laws often sounded in void-for-vagueness. Under laws prohibiting all abortion but those necessary for the “life” or “health” of the mother, doctors argued that they chanced a felony every time they guessed that a particular abortion came within such exceptions. Blackmun, the former resident counsel for the Mayo Clinic, was sympathetic to these professional concerns. Moreover, he hoped that void-for-vagueness would help him to avoid the more controversial issue of when life began that he feared a fundamental rights approach would ultimately require.
  Brennan and Douglas found that approach unsatisfying. In response to Blackmun’s draft, they urged Blackmun to reach “the core issue” of privacy rather than rely on vagueness. These interchanges between Justices in Roe offer further support for the conclusion Amsterdam had offered a decade before-that vagueness was at least in part an avoidance mechanism, denying and shielding the Justice’s substantive commitments. Afraid to embrace fully the implications of Griswold and wade too deeply into the abortion issue, Blackmun thought he could escape the problem by using void-for-vagueness.
  • pp.1379-1380

• What might seem more surprising than Brennan’s general preoccupation with Roe in the winter of 1971 was that he connected Roe to Papchristou. Thought about as privacy, sexual freedom, or reproduction cases, Roe, Eisenstadt, and Griswold has little in common with Papachristou. True, the Jacksonville police were using the city’s vagrancy ordinance to regulate the sexuality of the interracial double-daters. But sexuality was not the central issue in Papachristou. Moreover, the acts that led to the vagrancy arrests, more so even than abortions, could hardly be considered “private” For the most part, in fact, not only did vagrancy laws regulate people in public spaces, they usually regulated men in public spaces. The abortion cases, by contrast, largely involved the choices of women in private.
  Going up a level of generality, however, the various opinions and memos in the archives make clear the questions preoccupying much of the Court were the same in the two sets of cases: what were fundamental rights, and where in the Constitution, if anywhere, the Justices might find protection for them. In particular, an individual’s right to choose his or her own “lifestyle” was at least as affected by choices about reproduction as by choices about where to live, how to dissent, and whether to shave one’s facial hair. Within that context, it is less surprising that Brennan would connect Papachristou with Roe.
  • p.1380

• [I]n thinking about how to resolve Roe, Brennan was then in the process of constructing a systematic framework for the ”fundamental freedoms” that he deemed within the meaning of “liberty.” He viewed the first of three groups of such freedoms as including “freedom from bodily restraint or inspection, freedom to do with one’s body as one likes, and freedom to care for one’s health and person.” For these, he cited Terry v. Ohio, Meyer v. Nebraska, and Jacobson v. Massachusetts, among others. The second group included “freedom of choice in the basic decisions of life, such as marriage, divorce, procreation, contraception, and the education and upbringing of children.” Here he relied on Living v. Virginia, Boddie v. Connecticut, Skinner v. Oklahoma, Eisenstadt v. Baird, Griswold v. Connecticut, and others. The third group included “autonomous control over the development and expression of one’s intellect and personality.” The precedent for this last group was thinner. Brennan cited only Stanley v. Georgia (protecting the possession of obscene materials in the home) and Justice Brandeis’s reference in Olmstead v. United States to a “right to be let alone.” Brennan thought that the decision to have an abortion “obviously fits directly within each of the categories of fundamental freedoms,” and therefore “should be held to involve a basic individual right.”
  Brennan described this framework in a memo he wrote to Justice Douglas about Roe on December 30, 1971.
  • pp.1380-1381

• In a long missive to Douglas proposing the fundamental-freedoms framework described above, Brennan also told Douglas that he hoped that Roe would rely on the Ninth Amendment, “as in your proposed Papachristou opinion.”
  Neither Blackmun’s majority nor Douglas’s concurrence in Roe ultimately drew much on the Ninth Amendment. By 1973, even those like Douglas who had long opposed renewing substantive due process had fallen into line. Douglas’s concurrence in Roe and Doe did, however, largely adopt the categories of fundamental rights Brennan had identified in his memo. Douglas’s most significant divergence from Brennan’s framework unsurprisingly involved Papachristou. Douglas mad ea more explicit connection between Roe/Doe and Papachristou than Brennan had. He added to Brennan’s “freedom to care for one’s health and person,” and “freedom from bodily restraint or compulsion,” his own ‘freedom to walk, stroll, or loaf.” Quoting Papachristou, he called “walking, strolling, and wandering” “historically part of the amenities of life as we have known them.” Douglas described these rights as fundamental and subject to strict scrutiny. Although the final draft of his Papachristou opinion had not made these rights fundamental, the earlier drafts remained alive in his reimagining and reworking of the opinion. Douglas’s opinion in Roe/Doe reads as if his draft opinion in Papachristou had actually been published.
  • pp.1381-1382

• As Brennan predicted, he and Douglas were not alone in seeing connections between Roe and Papachristou. The constitutional understanding that roe represented would be potentially deeper, more expansive, and more secure with related fundamental rights protected in Papachristou. That security appealed to some Justices and repelled others. Skeptics of this newfound judicial penchant for creating rights saw the connections as threatening rather than auspicious. In particular, Justice Potter Stewart thought Douglas’s opinion off the mark in its constitutional interpretation. Stewart had dissented in Griswold, galled by the Justices' apparent fishing expedition to find some justification for its decision. By 1971, however, Stewart seems to have resigned himself to the growing consensus to base privacy rights to reproduction, contraception, and abortion on a new form of substantive due process. He joined the opinions in Eisenstadt and Roe.
  • p.1382

• With Douglas, Brennan, and Stewart provoking us to view Papachristou and Roe together-whether for good or ill-implications beyond those for fundamental-rights doctrine come into focus. In particular, placing the two cases in conversation provides additional fodder for Stuntz’s analysis of the relative absence of constitutional criminal law. Because we usually consider Griswold, Loving, Eisenstadt, Roe, and their ilk as substantive due process or fundamental rights (or even equal protection) cases, we fail to see them as criminal law cases. But they were. They were all cases in which the Court was placing substantive limits on the extent to which the criminal law could be used as a mechanism of morals regulation.
  • p.1384

• Justice Douglas had initially relied on fundamental rights to strike down the vagrancy ordinance in Papachristou. Justice Blackmun had initially used vagueness to avoid relying on fundamental rights to strike down the law in Roe. But ultimately, the two cases switched places. Roe fessed up to its substantive right of privacy, while Papachristou’s reliance on vagueness masked the connections between Papachristou and the burgeoning fundamental rights-particularly privacy and sexual autonomy rights-that the Court was wrestling with in Roe.
  One wonders how constitutional law would have looked if the early drafts of roe and Papachritou had been published, if the reasoning of the two cases had not switched places. Would we have elaborated a substantive due process in which people had greater rights in public than in private? Would low-level criminal regulation of mobility have actually disappeared while legislatures reenacted abortion regulations sooner and with even greater teeth? Even further, one wonders how constitutional law would have looked if both Papachritous and Roe had publicly committed to a new substantive due process of public and private, of lifestyle protection writ large, of the broader and more varied understandings of liberty represented in Brennan’s memo to Douglas.
  • pp.1384-1385

“Gonzales v. Carhart, 550 U.S. 124 (2007)”

“Gonzales v. Carhart, 550 U.S. 124 (2007)”, justia.com

• Casey involved a challenge to Roe v. Wade, 410 U. S. 113 (1973). The opinion contains this summary:
  “It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.” 505 U. S., at 846 (opinion of the Court).
  • Kennedy, Gonzales v. Carhart, 550 U.S. 124 (2007), II, justia.com

• To implement its holding, Casey rejected both Roe’s rigid trimester framework and the interpretation of Roe that considered all previability regulations of abortion unwarranted. 505 U. S., at 875–876, 878 (plurality opinion). On this point Casey overruled the holdings in two cases because they undervalued the State’s interest in potential life. See id., at 881–883 (joint opinion) (overruling Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747 (1986) and Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (1983)).
  We assume the following principles for the purposes of this opinion. Before viability, a State “may not prohibit any woman from making the ultimate decision to terminate her pregnancy.” 505 U. S., at 879 (plurality opinion). It also may not impose upon this right an undue burden, which exists if a regulation’s “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Id., at 878. On the other hand, “[r]egulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose.” Id., at 877. Casey, in short, struck a balance. The balance was central to its holding. We now apply its standard to the cases at bar.
  • Kennedy, Gonzales v. Carhart, 550 U.S. 124 (2007), II, justia.com

• I join the Court’s opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution. See Casey, supra, at 979 (Scalia, J., concurring in judgment in part and dissenting in part); Stenberg v. Carhart, 530 U. S. 914, 980–983 (2000) (Thomas, J., dissenting). I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it. See Cutter v. Wilkinson, 544 U. S. 709, 727, n. 2 (2005) (Thomas, J., concurring).
  • Concurrence (Thomas), Gonzales v. Carhart, 550 U.S. 124 (2007), justia.com,

• In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 844 (1992), the Court declared that “[l]iberty finds no refuge in a jurisprudence of doubt.” There was, the Court said, an “imperative” need to dispel doubt as to “the meaning and reach” of the Court’s 7-to-2 judgment, rendered nearly two decades earlier in Roe v. Wade, 410 U. S. 113 (1973). 505 U. S., at 845. Responsive to that need, the Court endeavored to provide secure guidance to “[s]tate and federal courts as well as legislatures throughout the Union,” by defining “the rights of the woman and the legitimate authority of the State respecting the termination of pregnancies by abortion procedures.” Ibid.
  Taking care to speak plainly, the Casey Court restated and reaffirmed Roe’s essential holding. 505 U. S., at 845–846. First, the Court addressed the type of abortion regulation permissible prior to fetal viability. It recognized “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State.” Id., at 846. Second, the Court acknowledged “the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health.” Ibid. (emphasis added). Third, the Court confirmed that “the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.” Ibid. (emphasis added).
  In reaffirming Roe, the Casey Court described the centrality of “the decision whether to bear . . . a child,” Eisenstadt v. Baird, 405 U. S. 438, 453 (1972), to a woman’s “dignity and autonomy,” her “personhood” and “destiny,” her “conception of . . . her place in society.” 505 U. S., at 851–852. Of signal importance here, the Casey Court stated with unmistakable clarity that state regulation of access to abortion procedures, even after viability, must protect “the health of the woman.” Id., at 846.
  • Dissent (Ginsburg), Gonzales v. Carhart, 550 U.S. 124 (2007), justia.com

• Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.
  I dissent from the Court’s disposition. Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman’s health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman’s reproductive choices.
  • Dissent (Ginsburg), Gonzales v. Carhart, 550 U.S. 124 (2007), justia.com

• The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label “abortion doctor.” Ante, at 14, 24, 25, 31, 33. A fetus is described as an “unborn child,” and as a “baby,” ante, at 3, 8; second-trimester, previability abortions are referred to as “late-term,” ante, at 26; and the reasoned medical judgments of highly trained doctors are dismissed as “preferences” motivated by “mere convenience,” ante, at 3, 37. Instead of the heightened scrutiny we have previously applied, the Court determines that a “rational” ground is enough to uphold the Act, ante, at 28, 37. And, most troubling, Casey’s principles, confirming the continuing vitality of “the essential holding of Roe,” are merely “assume[d]” for the moment, ante, at 15, 31, rather than “retained” or “reaffirmed,” Casey, 505 U. S., at 846.
  • IIB Dissent (Ginsburg), Gonzales v. Carhart, 550 U.S. 124 (2007), justia.com,

• (“[V]irtually all of the abortion cases reaching the Supreme Court since Roe v. Wade, 410 U. S. 113 (1973), have involved facial attacks on state statutes, and the Court, whether accepting or rejecting the challenges on the merits, has typically accepted this framing of the question presented.”). Accord Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1356 (2000); Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 271–276 (1994).

• As the Court wrote in Casey, “overruling Roe’s central holding would not only reach an unjustifiable result under principles of stare decisis, but would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.” 505 U. S., at 865. “[T]he very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable.” Id., at 854. See also id., at 867 (“[T]o overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question.”).
  Though today’s opinion does not go so far as to discard Roe or Casey, the Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of “the rule of law” and the “principles of stare decisis.” Congress imposed a ban despite our clear prior holdings that the State cannot proscribe an abortion procedure when its use is necessary to protect a woman’s health. See supra, at 7, n. 4. Although Congress’ findings could not withstand the crucible of trial, the Court defers to the legislative override of our Constitution-based rulings. See supra, at 7–9. A decision so at odds with our jurisprudence should not have staying power.
  In sum, the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational. The Court’s defense of the statute provides no saving explanation. In candor, the Act, and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court—and with increasing comprehension of its centrality to women’s lives. See supra, at 3, n. 2; supra, at 7, n. 4. When “a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue.” Stenberg, 530 U. S., at 952 (Ginsburg, J., concurring) (quoting Hope Clinic v. Ryan, 195 F. 3d 857, 881 (CA7 1999) (Posner, C. J., dissenting)).
  • IV Dissent (Ginsburg), Gonzales v. Carhart, 550 U.S. 124 (2007), justia.com

The "Right" to an Abortion, the Scope of Fourteenth Amendment Personhood, and the Supreme Court's Birth Requirement (1979)

"The "Right" to an Abortion, the Scope of Fourteenth Amendment Personhood, and the Supreme Court's Birth Requirement" by John D. Gorby, Southern Illinois University Law Review, Volume 4, 1979

• In spite of Mr. Justice Powell's suggestion in Maher that "[o]ur conclusion signals no retreat from Roe or the cases applying it, "one wonders if those words of reassurance are to be taken with the same degree of seriousness as the assurance of Mr. Justice Blackmun in Roe v. Wade that the Supreme Court was not reviving substantive due process.'
  • p.2

• [T]he dominant democratic theme of Maher v. Roe, Poelker v. Doe' and Beal v. Doe, the bitterness expressed by the dissenters (all previous members of the Roe majority), the compulsion of the author of Roe to dissent,' and the continuing efforts to change Roe with a constitutional amendment cause one to wonder if the majority in Colauti would not have preferred to have followed the spirit of the dissenting opinions in Roe and left the entire abortion problem in the hands of the state legislatures. This approach, at least on the surface, would be consistent with recent suggestions that the judiciary return to the fourteenth amendment its intended "procedural" as op- posed to "substantive" significance, defer to the "spirit of our democracy" in matters not controlled by the fourteenth amendment as originally intended, and not "govern" under the guise of interpreting the Constitution.
  • pp.2-3

• A legislative solution to the abortion problem is necessarily based upon the premise that the Constitution is neutral about abortion and does not impose a solution, one way or another.
  In this article, the existence of such a premise is denied. More specifically, this author concludes (1) that the Constitution is not neutral about abortion and does indeed impose a solution on the abortion question; (2) that, as Justice Blackmun conceded in Roe, if the fetus is a person under the fourteenth amendment, "the [plaintiffs] case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [fourteenth] [a]mendment;' and (3) that the concept of "person" in the fifth and fourteenth amendments includes unborn human life. It thus follows that the solution to the abortion problem set forth in Roe as well as that suggested by Justices White and Rehnquist in dissent' are constitutionally unsound, both solutions permitting the violation of the fetus's constitutionally protected right to life without due process of law. More positively, there is substantial historical support for the notion that the due process clause was designed to guarantee access of all persons to the courts for the protection of fundamental rights, that those fundamental rights refer to "life, liberty and property," and that the unborn human being, as an individual living human being, is a person under the Constitution and is entitled to access to the courts to protect his fundamental right to life.
  • pp.3-4

• Since Roe v. Wade is the only case in which the Supreme Court has considered the scope of constitutional "personhood" in the context of pre-birth stages of human development and is the only Supreme Court pronouncement on the subject, a criticism of ‘’Roe’’ will serve as a departure point for this discussion as to whether or not the fetus falls within the scope of the constitutional personhood concept.
  • pp.4-5

• That the Supreme Court accepted the scope of constitutional personhood as the primary issue in ‘’Roe’’ is reflected in its statement that “[t]he appellee [Texas] and certain amici argue that the fetus is a 'per-son' within the language and meaning of the Fourteenth Amendment. . . . If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [Fourteenth] Amendment.
  • p.5; 410 U.S. at 156

• Since the Court in Roe recognized the right to life issue as crucial and was fully aware of the rank of this right in the hierarchy of fundamental legal values, one would certainly expect the Court to have carefully and thoroughly studied and analyzed the scope of constitutional personhood as well as the nature of the unborn to determine on the most rational basis possible whether the unborn falls within that scope. As the next section shows, the Court did no such thing.
  • p.7

• Since the parties to the Roe and Doe cases were, on the one side, physicians and women challenging the constitutionality of the respective state anti-abortion statutes and, on the other side, the attorneys general defending their states' statutes, the fetus was not directly represented in the December 13, 1971, hearings. Because only seven justices heard the oral arguments, Justices Black and Harlan having left the Court one month earlier, no decisions were handed down and the cases were set for rehearing in October, 1972. In the meantime, the attorneys for the fetus, whose guardian was an actual party only in the Illinois case and had filed an amicus brief' one year earlier in both the Texas and Georgia cases, filed in the Supreme Court a motion for oral argument, which was denied in the summer of 1972. Shortly thereafter, they moved to consolidate for oral arguments at the rehearing the Illinois case (Doe v. Scott)' with the Texas (Roe) and Georgia (Doe) cases. This motion was also denied. As a result, the fetus, not having been represented in the crucial hearings before the justices, never enjoyed his "day in court."
  The Supreme Court had every opportunity to hear arguments presented by the representative of the fetus that it was a "constitutional person." However, the Court chose not to take advantage of this occasion.
  • pp.8-9

• One should not lightly conclude from the Supreme Court's holding in Roe that the concept of "person" has no prenatal significance, that the unborn was not, after all, entitled to a "day in court." Such a conclusion assumes the outcome. Furthermore, it would be sound only if one is willing to assume that the adversary process is not essential to sound judicial decision-making-an assumption hardly compatible with the common law tradition. To a great degree, judicial decisions are made legitimately only if there is an opportunity for vigorous advocacy, an opportunity not allowed the fetus in the cases thus far in which his right to personhood or, expressed differently, its right to even have rights, has been adjudicated.
  • p.9

• Although the Supreme Court in Roe expressed concern about its ability to "resolve the difficult question of when life begins," the initial constitutional dilemma the Court faced was not the factual question of when life begins but rather the legal question of the scope and meaning of the concept of "person" in the fourteenth amendment, ie., whether the concept means living humans, individual humans, born humans, rational humans, wanted humans, humans capable of "meaningful life," any combination thereof or something else. In other words, what does the term "person" as used in the fourteenth amendment mean? What values was it designed to protect? If, for example, it means all individual, living human beings, which is this writer's position, the factual issue whether the fetus is an individual, living human being is presented for decision. If "life" in the biological sense is irrelevant to membership in the class of constitutional persons or if birth is an essential criterion to membership in this constitutional class, the Court in Roe was correct, for then it need not "speculate as to the answer [of when life begins]." On the other hand, if the real problem facing the Court was a "proof problem," ie., how to prove that a fetus has "life," simple judicial restraint should require the Court not to exclude the fetus from constitutional protection as a matter of law by creating a birth requirement as it did in Roe but rather to leave the ultimate question of constitutional personhood in the fetus unanswered, remand the case and ask for more "proof" on the factual question.
  • pp.10-11

• As stated by the Supreme Court and conceded by all parties, no prior case had been found in which the United States Supreme Court had addressed itself to the question of whether the term "person" as used in the fourteenth amendment has prenatal application. Thus, for all practical purposes, the question was being presented for the first time. In absence of precedent, the only legal materials with which the Court had to work were the constitutional provisions themselves.
  • p.11

• Further support for the idea that nineteenth century America was concerned with preserving the life of the fetus is ironically found in Botsford v. Union Pacific Railroad, the very case which the Supreme Court cited in Roe as its landmark right to privacy case. Although the Botsford Court acknowledged a common law right to privacy which precluded a court without statutory authority from ordering a medical examination of a female plaintiff in a personal injury case, it pointed out that one of two exceptions to this common law right of privacy was the “writ de ventre inspiciendo”. With this writ, the state was empowered to examine whether a woman convicted of a capital crime and sentenced to be executed was quick with child, thus overcoming her right to privacy. If she was, execution would be stayed until after the birth of the child. Here, the common law not only acknowledged a right to life in the fetus but also recognized precedence of this right over the common law right of privacy.
  In light of the above it seems hard to suggest-as did the majority in Roe-that the concerns of the nineteenth century were exclusively about the pregnant woman and not the unborn, and difficult to argue-as did the majority in Roe-that the purpose of nineteenth century abortion legislation was in protecting "the woman's health rather than in preserving the embryo and fetus." Indeed, the preservation of the fetus appears to have been a major purpose. Moreover, even those courts which have indicated that preservation of maternal health was a purpose for enacting the anti-abortion statute did so against a background in which abortion of at least a quickened fetus was considered a common law crime.
  If Justice Blackmun meant that an unquickened fetus may not have enjoyed protection under the common law, he should have said that. The correlation, however, would be that the quickened fetus did enjoy criminal law protection, a fact which argues against the Court's conclusion that constitutional personhood has no prenatal application.
  • pp.18-19

• In oral argument before the Roe court as well as in the Roe majority opinion, the Supreme Court seemed impressed by the historical fact that no case had been found in which the pregnant woman was prosecuted for allowing an abortion to be performed on herself and by the fact that the punishment for conviction under the abortion statutes was much milder than the punishment for homicide. The Court found this to suggest that the fetus was not considered a person, as was the victim in a homicide. Such a conclusion is simply not warranted since there are other valid explanations. For example, if a 12-year-old intentionally kills a born individual in Illinois, no crime has been committed since the child is not legally responsible. No one could suggest that the victim of the act was not a person because the killer was not or could not be prosecuted. If a 15-year-old intentionally kills another, but is proceeded against under the Juvenile Court Act, one could hardly argue that the victim is not a person. The explanation for this legal phenomenon is that there are special circumstances surrounding the commitment of an act, circumstances which the lawmaker may properly and reasonably consider in formulating means to protect state interests and values-in the examples given, the age and assumed immaturity of the actor; in the abortion situation, the assumed stresses on the woman burdened by an unwanted pregnancy. These factors may justify and explain different treatment of the woman or even the physician in the abortion context, just as they justify or explain different treatment of the child of tender years or even of one who kills another under severe provocation.
  Although in modem jurisprudence constitutional history alone has not been allowed to dispose of every question of constitutional interpretation, this brief historical background casts doubt on the soundness of two of the Supreme Court's critical conclusions in Roe v. Wade: (1) that abortion was not considered a crime by most of those who sup- ported the fourteenth amendment in 1868;' and (2) that the purpose of the anti-abortion laws was solely to protect the woman's health and not the life of the fetus. In addition, it casts doubt on the Court's holding that the concept of "person" does not embrace the unborn. The effect of this doubt surely is to augment the obligations of the Supreme Court to account for a requirement of birth as a condition precedent for membership in the class of constitutional persons.
  • pp.20-21

• In brief, there is considerable evidence which suggests that the unborn is and should be considered a constitutional person, thus entitled to fourteenth amendment protections. If this be true, both the Roe holding as well as a legislative solution permitting abortions for reasons other than a threat to the life of the mother would have the effect of violating the unborn's right to due process of law. It would thus follow that both the judicial solution set forth in Roe and the legislative solution are constitutionally unsound.
  • p.34

• A holding that the fetus is a constitutional person would have the effect of overruling Roe v. Wade and its progeny. The legal consequences would not, however, be as far-reaching as Roe itself, which had the effect of declaring century-old criminal abortion statutes invalid, cutting deeply into assumed rights of husbands and parents, and creating the possibility of required, at least via legislation, public financing of abortion. On the other hand, the consequence of the Roe decision to the aborted fetus is severe and final. This result, of course, is of no great concern to the rule of law, unless the unborn does meet the criteria of constitutional personhood and the Court either because of poor reasoning or because of some unstated reason arbitrarily denied the unborn the constitutional protections due it or unless the fourteenth amendment is inadequate as a legal device to protect the fundamental rights of all members of the human family, the avowed purpose of the drafters of the fourteenth amendment. In either case, there is reason for concern, for the legal order has failed.
  • pp.34-35

“Before Roe v. Wade” (2012)

“Before Roe v. Wade” by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012

• During the years before January 22, 1973, the day on which the Supreme Court decided Roe v. Wade and proclaimed that the Constitution protected a woman’s right to decide whether to bring a pregnancy to term, Americans conducted a vigorous debate about abortion’s morality and meaning. It is obvious today that the Supreme Court’s decision did not end this debate. Neither, of course, did the Court start it—although public discussion of Roe v. Wade implies not infrequently that it did.
  • Linda Greenhouse Reva B. Siegel (2010 and 2012); foreword viii

• By declaring unconstitutional laws that criminalized abortion in states across the country, the decision in Roe v. Wade also swept away much of the collective memory of what had gone before. Records of court cases that had taken years to build were now rendered irrelevant, and transcripts of testimony once painstakingly compiled were carelessly misfiled or discarded. And beyond the loss of paper records, the Supreme Court decision itself proved a distorting lens through which to look back on what had preceded it.
  • p.viii

• [T]he fact that neither women nor fetuses figured very prominently in Roe v. Wade makes it plausible to assume that feminist voices and right-to-life voices were simply missing, both from the arguments presented to the Supreme Court and from the public conversation. In fact, feminist and right-to-life positions were passionately expressed in public debate and in friend-of-the-court briefs filed in Roe. Yet, the Supreme Court issued a decision that appeared mainly responsive to the arguments of the medical community. In page after page, Roe reasoned from medical science, and in its main holding affirmed the autonomy of doctors to act in what they believed to be the best interest of their patients. The organized medical profession, which had spurred the criminalization of abortion a century earlier, had come only lately to view the hundreds of thousands of illegal abortions performed every year as a public health problem of urgent dimensions.
  • pp.viii-ix

• Two years is an unusually long time for a case to remain on the Supreme Court’s docket. As we have already discussed, these were a crucial two years for the meaning of abortion, and it is clear that Roe arrived at the Court’s doorstep in one world and emerged, 27 months later, into another. In October 1970, when the case reached the Supreme Court, New York’s repeal of its abortion law appeared to many people to suggest an inexorable march toward reform. Two years later— during which time 402,100 women, two-thirds of them from out of state, had obtained legal abortions in New York—the Legislature’s attempted repeal of the repeal failed only because of Governor Rockefeller’s veto. In the November 1972 elections, voters in Michigan and North Dakota had defeated proposals to liberalize those states’ abortion laws—and, as we have seen, abortion was one of a constellation of factors playing a role in McGovern’s landslide defeat. In early January 1973, the New York Legislature reconvened in the full expectation of a new effort to recriminalize abortion.
  • pp.226-227

• As we now turn to the arguments that were formally presented to the Supreme Court in legal briefs, an intriguing question arises: What did the justices perceive of the turmoil over abortion outside their own quiet precincts? Clearly, they knew that they had on their hands “a most sensitive, emotional, and controversial” issue, as Justice Harry A. Blackmun described it when he announced Roe and Doe from the bench (see page 245). Further, as Justice Blackmun observed, the Court knew that “the controversy will continue.” The justices had not been hermetically sealed off in their chambers during the long months in which the cases were pending. They lived in the world as husbands and fathers. They had set the cases for a second argument, a sign that they regarded the cases as something other than routine.
  It does appear, however, that the justices in the 7-to-2 majority were responding to a consensus among the elites, particularly of the legal and medical professions, that change was appropriate and necessary. They appreciated that the decision would provoke controversy, but decided the case on grounds that they had reason to suppose would find broad public acceptance. Non-legal material in Justice Blackmun’s file included the Gallup Poll from the summer of 1972, reflecting substantial majorities supporting decriminalization, even among Catholics [see page 207.] The file also contained a series of articles from the Atlanta Journal-Constitution, passed on to Justice Blackmun by Justice Potter Stewart. In these articles, prominently displayed in the newspaper during April 1972, an Atlanta physician, Robert A. Hatcher, M.D. asserted that Georgia’s ALI-type reform law had not gone far enough and was not making enough of a difference.
  • p.227

• Justice Blackmun’s files also contained articles from the American Journal of Public Health (several of which are excerpted in parts I and II), depicting abortion reform as inevitable and highly desirable. This was not the only voice of the medical community the Court heard; among the Roe v. Wade briefs was a strongly worded one from dissenting obstetricians and gynecologists arguing for upholding the Texas law (see page 295).
  Further, the justices may well have viewed organized opposition to the legalization of abortion as based almost exclusively on Catholic religious conviction, as it primarily was when Roe v. Wade first arrived on the Court’s docket. The only Catholic justice then sitting on the Supreme Court was William J. Brennan, Jr., a liberal whose full support for an expansive right to abortion may have served to emphasize significant differences of opinion about the criminalization of abortion within the American Catholic community, and so undercut the weight of the Catholic opposition.
  • p.227

• A former president of the American Bar Association, the very embodiment of the legal establishment, Powell proved not only a surprisingly strong supporter of the right to abortion but also a strategic ally who pushed Blackmun to extend until later in pregnancy the time period during which women’s abortion decisions received constitutional protection. Any fears the justices may have had that they were embarking on a radical course would have been allayed by Powell’s presence and performance.
  • p.228

• The Supreme Court’s decision reflected the arguments of both parties, as well as many of those contained in the friend-of-the-court briefs filed on both sides. The Court rejected the state’s argument that the fetus was a “person” meriting the same protection under the Constitution as born persons. Nevertheless, the Court found that the state did have an interest in protecting “the potentiality of human life.” Similarly, the Court endeavored to strike a balance in defining the scope of the right to abortion it recognized. The majority reasoned that the right to privacy protected not only the use of contraception, but also a woman’s decision whether to bear a child. Yet, the decision emphasized, this right was not absolute.
  • Argument and Decision pp.228-229

• The Court’s lengthy published opinion in Roe is widely available on the Internet. But Blackmun’s brief statement exists only as typescript in the justice’s files at the Library of Congress. A personal judicial pronouncement of this kind shows how the author of an opinion wants the world to understand what the Court has done.
  • p.229

• On January 22, 1973, the Supreme Court issued its decisions in Roe v. Wade and Doe v. Bolton. Following the Court’s custom, Justice Harry A. Blackmun, as the author of the opinions, read a summary from the bench. Known in Supreme Court parlance as “hand-downs,” these summaries are not casual documents. While they are not formally part of the Court’s published opinion, they reflect the author’s view of what matters most about the decision.
  The marked-up draft in Blackmun’s file shows that he labored over the hand-down. In presenting Roe, Blackmun strives to locate the Court’s decision in history as well as in contemporary public opinion and to demonstrate how the constitutional framework

that the Court announced respected and coordinated competing values.
Although it is not clear whether anyone on the Court anticipated the passionate and prolonged conflict the abortion right has generated, the document indicates that Blackmun was aware that the decision would generate controversy; the previous week, he had sent a draft of the announcement to Chief Justice Warren E. Burger with the notation, “I anticipate the headlines that will be produced over the country when the abortion decisions are announced.”

• • ANNOUNCING THE DECISION, p.245

• In presenting the Court’s decision throughout his oral announcement as moderate, balanced, and bounded, Justice Blackmun was, no doubt, anticipating and responding to criticism of the Court’s decision.
  • p.249

• The meanings associated with the phrase “abortion on demand” were in flux at the time Roe was handed down. As we saw in Part I, the feminist movement used the phrase in seeking abortion rights during the movement’s Strike for Equality in 1970 [see page 44, the illustration of the flyer]. The feminist claim for abortion “on demand” sought repeal of abortion restrictions; the claim challenged as paternalistic new abortion-reform laws based on the “therapeutic” model. Those laws gave doctors the power to decide whether a woman had a sufficient reason to have an abortion, and so reduced women to supplicants of men and the state. In claiming abortion on demand, feminists asserted that women were fully competent to decide for themselves whether to continue a pregnancy, and should not have such a question decided by a stranger, even a medical professional.
  But women’s assertion of decisional authority was disturbing to many. What feminists understood as a question of dignity and self-governance their critics saw as an invitation to self-indulgence. Critics of the abortion-repeal movement argued that decriminalization would allow women access to abortion for insufficient reasons, and some suggested that liberalizing access to abortion would encourage moral laxity—sexual license, abdication of maternal responsibility, and a general breakdown of self- and social control. Thus, where feminists asserted that abortion’s criminalization was wrongful because it was insufficiently respectful of women, their critics expressed doubt that women’s judgment in matters of abortion was respect-worthy. Backlash came to torque and flip the very meaning of “abortion on demand.”
  In the early 1970s, the meaning of the phrase remained unsettled as feminist and antifeminist usages circulated. In April 1971, President Nixon invoked the phrase in his official statement repudiating the Pentagon’s liberal policy that permitted servicewomen to obtain abortions in any military hospital. [see annotation on p. 198, brief in the Struck case.] “Unrestricted abortion policies, or abortion on demand, I cannot square with my personal belief in the sanctity of human life,” the president said.
  Whether or not Justice Blackmun was aware of the original meaning of the phrase, it is highly likely that he was aware of the negative meaning that “abortion on demand” was then acquiring. In striking this original concluding paragraph of the hand-down, Justice Blackmun appears to have decided that he would address the concerns of Chief Justice Burger and others less contentiously, and emphasize Roe’s moderation in language that distanced the Court from the claims of both abortion rights advocates and their critics.
  • p.250

• Both the right and regulatory interest that Roe recognized emerged from more than a decade of searching public conversation about abortion. Reasoning about the meaning of constitutional precedent in the midst of that conversation, the justices concluded that the right to privacy recognized in Griswold covered not only contraception but abortion as well. The Court conducted a lengthy analysis of historical precedent before declaring that the Constitution protected the abortion decision from state interference until the point of fetal viability. But, in explaining its decision, the Court also invoked or adverted to the judgments of growing numbers of lower courts, the decisions of public authorities such as the Rockefeller Commission that endorsed the legalization of abortion, and measures of popular support for liberalizing access. (In addition to the many briefs in Roe, Justice Blackmun had in his files the papers in Abele v. Markle, Connecticut’s abortion case, and other lower court decisions; documents reflecting the views of organizations such as the American Medical Association and the American Bar Association; and the 1972 Gallup poll reports showing steadily rising support for decriminalization.)
  • AFTERWORD p.253-254

• Roe’s holding fused old and new legal frameworks. By protecting a woman’s decision whether to bear a child until the period of fetal viability, the Court recognized as constitutional a framework at least partly resembling abortion “repeal.” Under Roe, government could no longer ban abortion or make access to the procedure conditional on ALI-type indications (for example, rape, maternal health) in the period of pregnancy before viability. But Roe did not altogether bar government from regulating abortion. To the contrary, Roe gave constitutional sanction to government interests in regulating abortion that grow with a pregnancy; it vindicated these interests alongside women’s right to have an abortion through the trimester framework, which allowed government to restrict abortion in the interest of protecting potential life at the point of fetal viability. In the years since Roe, the Court has allowed government more leeway to regulate abortion to express its interest in protecting potential life throughout pregnancy.
  Roe’s reasoning fused old and new justifications for decriminalizing abortion. Roe indirectly reflected the abortion-rights claims of the women’s movement, recognizing that laws that criminalized abortion inflict constitutionally significant harms on women, and not doctors only. But Roe expressed those harms in public health-inflected language. The decision barred government from coercing women to bear children, but its reasoning did not audibly express the feminist claim (1) that a woman has dignitary interests in making her own decision about whether to bear a child, or (2) that a woman needs the ability to control the timing of motherhood in order to negotiate institutional arrangements that exclude caregivers from participation in the workplace and other arenas of civic life.
  • p.254

• Roe justified the abortion right by appealing to Griswold and earlier decisions that protected the right to make decisions about family life free from state interference. In extending this right to privacy to encompass the abortion decision, Roe reasoned about abortion in terms drawn from the reform debates of the early 1960s, emphasizing the importance of protecting a doctor’s autonomy as much as that of his patients. Women’s advocacy helped establish women as constitutional rights holders who are entitled to make decisions about sex and parenting without control by the state—but Roe barely acknowledged that such claims were circulating in public debate. Instead, the Court explained and justified its holding in lan- guage that depicted doctors as the responsible and authoritative decisionmakers, with women as patients subject to their guidance.
  • p.255

• In representing the abortion decision as one that a woman made under the guidance of her doctor, the Court figured the doctor as the agent responsible for abortion decisions and the criteria guiding those decisions as medical. This form of talk in Roe reflected modes of reasoning current at the time of the opinion.
  • p.255

• Roe’s holding and its reasoning reflected dominant understandings about abortion of the time. In striking down laws that banned abortion or allowed it in only a very few circumstances, Roe decriminalized abortion along the lines that the feminists and others advocated. But the Court gave only blurry and indistinct expression to the values feminists argued were at stake in protecting women’s choices. Something similar might be said of the justification the Court offered for abortion restrictions. The Court gave constitutional approval to a government interest in regulating abortion to protect potential life, but only barely explained or justified this interest, leaving unstated how this regulatory interest related to the old statutes criminalizing abortion or the claims of the contemporary anti- abortion movement.
  • p.256

• If Roe conformed to then-dominant modes of reasoning about abortion, at a time when the Gallup poll reported the belief of two-thirds of Americans that the abortion decision should be left to a woman and her doctor, how are we to understand the outcry against the decision that steadily mounted over the 1970s? Our review of the debate before Roe reveals several factors contributing to the conflict over abortion that were in play well before the Court issued its decision in January 1973, and identifies still other developments that intensified the conflict much later in the decade.
  • p.257

• The reframing of abortion that would take hold over the course of the 1970s had only incrementally begun at the time the Court handed down Roe. (The first justice to join the Court after Roe was John Paul Stevens, nominated in December 1975. His views on abortion were unknown, yet at his Senate confirmation hearing, he was not asked a single question about abortion.)
  • p.258

• In the immediate aftermath of Roe, organized opposition to the decision was still carried by the National Right to Life Committee and the Catholic Church. The National Right to Life Committee began mobilizing in support of a constitutional amendment that would overturn Roe and constitutionalize an embryo’s/ fetus’s right to life, thereby requiring all states to recriminalize abortion. By 1975, the National Conference of Catholic Bishops had promulgated a Pastoral Plan for Pro-Life Activities that declared that “the decisions of the United States Supreme Court (January 22, 1973) violate the moral order, and have disrupted the legal process which previously attempted to safeguard the rights of children.” The plan urged “[p]assage of a constitutional amendment providing protection for the unborn child to the maximum degree possible,” and “[p]assage of federal and state laws and adoption of administrative policies that will restrict the practice of abortion as much as possible.”
  During the years after Roe, opponents were unable to muster broad-based support for overturning the decision and requiring abortion’s recriminalization. Many Americans supported the right recognized in Roe, some quite passionately. Others believed that abortion should be decriminalized but criticized the Court for deciding a question that might have been left to the political process. Those who believed the question should have been left to the legislature did not support a human life amendment constitutionalizing prohibitions on abortion of the kind the right-to-life movement was then advocating. Advocates of a human life amendment could not find the support they needed, even among religious leaders.
  • p.258

• In the early 1970s, most Protestant denominations did not share the Catholic Church’s view of abortion. As we have seen, mainline Protestant groups approved of liberalizing access to abortion; some approved repeal, while others endorsed variants of the “reform” position, advocating regulation on the “therapeutic model.” In this period, conservative evangelical groups did not view abortion as a categorical wrong. Even after Roe, in June 1973, Southern Baptist Convention President Owen Cooper criticized the Supreme Court for decisions liberalizing abortion—and banning capital punishment—and then proceeded to observe that the Southern Baptists would support abortions “where it clearly serves the best interests of society.” His view of abortion was far from absolute, and expressed in secular, not religious, terms.
  • pp.258-259

• When Roe was handed down, the family-values movement that would mobilize against the decision and ultimately carry Ronald Reagan to national office in 1980 had already begun to take shape, but it had not yet crystallized. That coalition did not form in spontaneous response to Roe but was instead built with the help of strategists for the Republican Party, including many brilliant Catholic conservatives. In the process, opposition to abortion as murder was married to a variety of socially conservative causes, accelerating the process of party realignment that had begun before Roe during the Nixon administration. When conservatives of the New Right began to assemble a pan-Christian coalition against Roe in the late 1970s, the crusade against Roe would proceed under the banner of “pro-life” and “pro-family.”
  Phyllis Schlafly’s Stop ERA organization associated the Equal Rights Amendment with abortion and gay marriage, using this frame to mobilize opposition to the amendment’s ratification in state houses across the country. During the mid-1970s, funding battles in Congress provided a lower-stakes arena in which to forge new alliances and erode support for the abortion right. By the late 1970s, Richard Viguerie and Paul Weyrich—architects of a more conservative Republican Party—were approaching such Protestant evangelicals as the Reverend Jerry Falwell and helping them to see in the abortion issue a question that could create a pan-Christian movement united against “secular humanism” and for “family values.” By 1980, the Christian Harvest Times was denouncing abortion in its “Special Report on Secular Humanism vs. Christianity”: “To understand humanism is to understand women’s liberation, the ERA, gay rights, children’s rights, abortion, sex education, the ‘new’ morality, evolution, values clarification, situational ethics, the loss of patriotism, and many of the other problems that are tearing America apart today.” In this way, a new relationship was emerging among Protestant evangelicals, the Catholic right-to-life movement, and the ascendant conservatives of the New Right. Increasingly lost in this transformation was an earlier Catholic association of a pro-life position with liberal ideals of social justice; forged was an increasingly tight association of pro-life with pro-family politics.
  • p.259

• The Court’s decision in Roe was written by Justice Blackmun, whom President Nixon appointed to the Supreme Court in 1970, and supported by other of Nixon’s conservative appointees, including Lewis Powell, who during the Court’s deliberations actually advocated lengthening the time period in which women’s abortion decision was protected—from the end of the first trimester to the end of the second. But over the course of the 1970s, prominent Republicans shifted positions on abortion, acting on alignments and framings that were already in evidence by the 1972 election. By the decade’s end, conservatives of the New Right—led by Ronald Reagan, who, in the late 1960s, had signed California’s legislation liberalizing abortion—urged fundamentalist Christians to make common cause with Catholics in opposition to abortion and in support of family values. They attacked Roe as a threat to life and family and as a symbol of judicial overreaching. Republican Party platforms began regularly to support “the appointment of judges who respect traditional family values and the sanctity of innocent human life.”
  With Republican presidents appointing justices who might be counted on to oppose Roe, judicial support for the decision narrowed, and by the late 1980s, Roe looked vulnerable to outright reversal. But the women’s movement continued energetically to mobilize in support of the decision, and in 1987 it helped defeat the nomination of Robert Bork, a prominent critic of the Court’s privacy decisions. Ensuing Supreme Court appointments by Presidents Reagan and Bush seemed to provide sufficient votes to overturn Roe. And yet, in 1992—during a presidential campaign in which the abortion right was a burning issue—the Supreme Court decided Planned Parenthood v. Casey, a case that both reaffirmed and narrowed Roe.
  • p.260

• Casey justified both the abortion right and its regulation in terms that reflected the views of mobilized proponents and opponents of abortion rights more clearly than Roe itself had in 1973. Like Roe, Casey held that women had a constitutionally protected right to decide whether to bring a pregnancy to term, but, unlike Roe, Casey allowed government to regulate the exercise of that right from the beginning of pregnancy in the interests of protecting potential life—so long as the regulation did not impose an “undue burden” on a woman’s decision. Even as Casey narrowed the right recognized in Roe, it justified that right more expansively than Roe did. Casey tied constitutional protection for women’s abortion decisions to the fundamental liberty to choose one’s family life, as well as to the understanding—forged in the Court’s sex-discrimination cases—that government cannot use law to enforce traditional sex roles: “Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.”
  Casey’s account of the constitutional values that the abortion right vindicates makes clear that government respects not only women’s freedom but also their equal citizenship. Yet, Casey also listens carefully to Roe’s critics. It allows government to regulate women’s abortion decisions to express respect for the value of human life, so long as government does so in ways that express respect for the decisional autonomy of women: “[T]he State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself.” In ways that Roe did not, Casey situates the abortion right in a community deeply divided over the basic values implicated by the debate. That conflict continues—on and off the Court.
  • pp.260-261

Before (and After) Roe v. Wade: New Questions About Backlash

Linda Greenhouse and Reva B. siegel, Before (and After) Roe v. Wade: New Questions About Backlash, 120 Yale l. J. 2028 (2011).

• ABSTRACT. Today, many Americans blame polarizing conflict over abortion on the Supreme Court. If only the Court had stayed its hand or decided Roe v.

Wade on narrower grounds, they argue, the nation would have reached a political settlement and avoided backlash. We question this court-centered backlash nar- rative. Where others have deplored the abortion conflict as resulting from courts “shutting down” politics, we approach the abortion conflict as an expression of politics—a conflict in which the Supreme Court was not the only or even the most important actor.

• • p.263

• The backlash narrative suggests that turning to courts to vindicate rights is too often counter-productive, and that adjudication is to be avoided at all costs. We are not ready to accept this grim diagnosis at face value, and we urge further research into the dynamics of conflict in the decades after Roe. The stakes in understanding this history are high.
  • p.263

• When asked to name a case that the Supreme Court has decided, most Americans who can name one point to Roe v. Wade —a case that they are eight times more likely to name than Brown v. Board of Education. Roe has become nearly synonymous with political conflict. Hearing closing arguments in California’s same-sex marriage case, the presiding judge, Vaughn Walker, worried about provoking backlash and pointed to the Court’s abortion decision, which he suggested had engendered conflict that had “plagued our politics for 30 years.” Like many, Judge Walker attributed political polarization over abortion to the Supreme Court’s decision in Roe. David Brooks charges: “Justice Harry Blackmun did more inadvertent damage to our democracy than any other 20th-century American. When he and his Supreme Court colleagues issued the Roe v. Wade decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since.” Yet few who invoke “Roe rage” have actually examined its roots. What might the conflict over abortion before Roe reveal about the conflict that escalated after the Court ruled?
  • p.265

• By examining the conflict in the period before the Court ruled, we can see how the abortion conflict changed in meaning, structure, and intensity as it was joined by a successive array of advocates—not only social movements8 and the Catholic Church but also strategists for the Republican Party seeking to attract traditionally Democratic voters in the 1972 presidential campaign. The evidence that we uncover of abortion’s entanglement in party realignment before the Supreme Court handed down its decision in Roe demonstrates that the competition of political parties for voters supplies an independent institutional basis for conflict over abortion. Where proponents of a Court-centered account of backlash offer reasons that adjudication distinctively causes political conflict, the history that we analyze identifies forms of political conflict that could engulf adjudication.
  • p.266

• In the summer before Roe, a newspaper column about a new Gallup poll preserved in Justice Blackmun’s case file reported that sixty-four percent of Americans (and fifty-six percent of Catholics) agreed “with the statement that ‘the decision to have an abortion should be made solely by a woman and her physician’”—with “a greater proportion of Republicans (68 per cent) . . . than Democrats (59 per cent) holding the belief that abortion should be a decision between a woman and her physician.”Consistent with these findings, Roe was an opinion written and supported by Justices whom a Republican president had recently appointed. Indeed, it was at the urging of one of Richard Nixon’s most recent appointees, Justice Lewis F. Powell, Jr., that the seven-Justice majority in Roe extended constitutional protection from the first to the second trimester of pregnancy, until the point of fetal viability. To say the least, these legal-political alignments invert contemporary expectations, in Alice-in-Wonderland fashion.
  • p.266

• How have we moved from a world in which Republicans led the way in the decriminalization of abortion to one in which Republicans call for the recriminalization of abortion? The backlash narrative conventionally identifies the Supreme Court’s decision as the cause of polarizing conflict and imagines backlash as arising in response to the Court repressing politics. In contrast to this Court-centered account of backlash, the history that we examine shows how conflict over abortion escalated through the interaction of other institutions before the Court ruled.
  There is now a small but growing body of scholarship questioning whether abortion backlash has been provoked primarily by adjudication. Gene Burns, David Garrow, Scott Lemieux, and Laurence Tribe show that, in the decade before Roe, the enactment of laws liberalizing access to abortion provoked energetic opposition by the Catholic Church. We offer fresh evidence to substantiate these claims, as well as new evidence about conflict before Roe that points to an alternative institutional basis for the political polarization around abortion—the national party system.
  • pp.266-267

• Through sources in our book and in this paper, we demonstrate that the abortion issue was entangled in a struggle over political party alignment before the Supreme Court decided Roe. As repeal of abortion laws became an issue that Catholics opposed and feminists supported, strategists for the Republican Party began to employ arguments about abortion in the campaign for the 1972 presidential election. We show how, in the several years before Roe, strategists for the Republican Party encouraged President Nixon to begin attacking abortion as a way (1) to attract Catholic voters from their historic alignment with the Democratic Party and (2) to attract social conservatives, by tarring George McGovern, Nixon’s opponent in the 1972 presidential election, as a radical for his associations with youth movements, including feminists seeking ratification of the Equal Rights Amendment (ERA) and “abortion on demand.”16 In reconstructing this episode, we show how strategists for the national political parties had interests in the abortion issue that diverged from single-issue movement actors, and we document some of the bridging narratives that party strategists used to connect the abortion conflict to other controversies.
  • pp.267-268

• [T]he pre-Roe history that we chronicle is significant, among other reasons, because it demonstrates the motivations that different actors had for engaging in conflict over abortion at a time when their engagement cannot be construed as a reaction to the Court. As different groups joined and changed the stakes of the abortion conflict, conflict escalated without the intermediation of judicial review.
  Understanding the dynamics of conflict before Roe changes the questions that we might ask of the record after Roe. The dynamics of conflict before the Court ruled suggest many reasons to explore the role played by nonjudicial actors and institutions in helping make the Supreme Court’s decision notorious as a source of polarization. In particular, it raises the question of how the competition of the national political parties for voters might have shaped reception of the decision. “Roe” is now a shorthand reference for positions staked out in long-running debates over gender, religion, and politics. But is the decision a cause or a symbol of these conflicts? We conclude the paper with a call for scholarly inquiry, in the hope that this history of the abortion conflict before Roe demonstrates why facts matter in any conversation about Roe as an exemplar of the possibilities and limits of judicial review.
  • p.268

• Part III surveys expressions of this “common-sense” understanding in the popular media and the academy, where Roe is regularly invoked as the sole and sufficient cause of political polarization around abortion. The history of abortion conflict in the years before Roe offers a rich counterpoint as it illustrates motives for conflict emanating from institutions other than the Court. Attuned to these alternative institutional bases for conflict over abortion, we can pick out features of the post-Roe landscape that raise deep questions about the sufficiency of Court-centered accounts of backlash and confront a series of puzzles about the institutions and actors that have helped make Roe matter as it has.
  Of course, no history of the pre-Roe period can settle the story of Roe’s reception. But it can unsettle that story, as our history does. If we are to better understand Roe’s role in causing political polarization, we need a history that attends to the different institutions that distinctively contributed to the abortion conflict—including the national political parties in a realignment contest. Only with such history can we look to Roe to teach us about the prospects and limits of judicial review.
  • p.269

• That the major political parties have decisively changed positions on abortion is clear. On the eve of Roe, as we have noted, the Gallup Poll reported that a sizeable majority of all Americans—by 64% to 31%—agreed with the statement that “the decision to have an abortion should be made solely by a woman and her physician”; 68% of Republicans supported that categorical statement compared with 58% of Democrats. Today, of course, it is the Republican Party that opposes constitutional protections for abortion, and the Democratic Party that supports them.
• pp.299-300

• Polarization of the national parties over abortion did not appear at the time of Roe but took shape years after. While party platforms began to diverge on abortion in the 1970s, it took years after Roe for Republicans to vote more consistently against abortion than Democrats, a shift that seems to have begun with party leaders and then spread to its base. Greg Adams, examining abortion-related votes in Congress from 1973 through 1994 as a measure of the abortion views of the political system’s elites, concluded that it was not until 1979 (perhaps not coincidentally, at the same time Weyrich and Viguerie organized pro-life PACs) that congressional Republicans began to vote against abortion at a higher rate than Democrats in Congress.
  • pp.300-301

• In this Part, we survey commentary in the academy and popular press that attributes escalating conflict over abortion to the Court’s decision in Roe. The “Roe-caused-backlash” narrative has acquired a life of its own, such that those who invoke it scarcely look to history.
  • p.303

• Accounts of abortion backlash differ in the particular failings that they ascribe to the Supreme Court, but the assumption that binds them together is that it was the Court’s decision in Roe that began conflict over abortion. As Ken I. Kersch, director of the Clough Center for the Study of Constitutional Democracy at Boston College, explains, “Politically, the Court’s decision to declare abortion to be a national right served as a catalyst for the Right to Life movement. That movement, in turn, played a major role in realigning the party loyalties of millions of Americans.”
  • pp.303-304

• [F]ar from reconciling abortion opponents to a woman’s fundamental right to terminate her pregnancy, the decision actually spawned a right-to-life opposition which did not previously exist.
  • Michael J. Klarman, Fidelity, Indeterminacy, and the Problem of Constitutional Evil, 65 FORDHAM l. REV. 1739, 1751 (1997)); as quoted in footnote 158, p.304

• It is also commonly asserted that the Court caused conflict because it rendered a decision that diverged from popular opinion. Jeffrey Rosen, for example, contrasts Roe with Brown, which he asserts “was supported by more than half of the country when it was handed down . . . [while] Roe v. Wade was an entirely different matter. The Court’s decision, in 1973, to strike down abortion laws in forty-six states and the District of Columbia was high-handed, and represents one of the few times that the Court leaped ahead of a national consensus.” Jeffrey Rosen, The Day After Roe, THE ATLANTIC, June 2006, at 56, 56-57. Rosen also contends that the Court could have avoided backlash if only it had limited its holding to the termination of early pregnancies. Jeffrey Rosen, The Supreme Court: Judicial Temperament and the Democratic Ideal, 47 WASHBURN L.J. 1, 8 (2007) (“The parts of Roe that provoked a backlash were those that called into question later term restrictions that most Americans support.”).
  Historical evidence does not suggest that a more temporally limited abortion right would have been acceptable to the antiabortion movement at the time of Roe. The fervent minority who entered politics to work against abortion rights before and after Roe sought criminalization and were not willing to settle for less. To those who believe that abortion is murder, there is no middle ground; it makes no difference whether a judicial or legislative decision permits abortion up to twelve weeks’ gestation or twenty. That is why the Catholic Church began to organize at the national level to block abortion reform when the only reform on offer was the ALI therapeutic legislation. see supra notes 66-79 and accompanying text; see also Eugene Quay, Justifiable Abortion—Medical and Legal Foundations, 49 GEO. L.J. 173, 173 (1960) (attacking, from a Catholic perspective, the abortion provisions of the proposed Model Penal Code, recently tentatively approved by the ALI, and describing the proposal as “a violent departure from all existing laws”).
  • Footnote 163, p.305

• Not only is it commonly assumed that Roe started the conflict over abortion but the common assumption, both outside and within the legal academy, is that Roe has driven the realignment of Republican and Democratic voters around abortion. According to Benjamin Wittes, “One effect of Roe was to mobilize a permanent constituency for criminalizing abortion—a constituency that has driven much of the southern realignment toward conservatism.” As Cass Sunstein put it, “[T]he decision may well have created the Moral Majority, helped defeat the equal rights amendment, and undermined the women’s movement by spurring opposition and demobilizing potential adherents.” Or as Sandford Levinson explains, “I have often referred to Roe as ‘the gift that keeps on giving’ inasmuch as it has served to send many, good, decent, committed largely (though certainly not exclusively) working-class voters into the arms of a party that works systematically against their material interests but is willing to pander to their serious value commitment to a ‘right to life.’” David Brooks charges yet more harshly: “Justice Harry Blackmun did more inadvertent damage to our democracy than any other 20th-century American. When he and his Supreme Court colleagues issued the Roe v. Wade decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since.” Robert P. George invokes Roe in warning the Supreme Court not to accept the constitutional claim for same-sex marriage: “By short-circuiting the democratic process, Roe inflamed the culture war that has divided our nation and polarized our politics.”
  • pp.304-305

• Roe not only is believed by many to have ignited conflict over abortion but also is commonly represented as having single-handedly caused societal polarization and party realignment around the question of abortion. Backlash narratives about Roe thus rest both on temporal assumptions (that conflict over abortion and polarization began with Roe) and on institutional assumptions (that the Supreme Court decision caused the abortion conflict, societal polarization, and party realignment).
  Those who claim that the Court caused the abortion conflict in fact offer different accounts of why the Court’s decision had such powerful effects on the nation’s politics. They assert that Roe caused backlash because the decision nationalized conflict, because the Court was too far ahead of public opinion,163 or because the decision prevented compromise. The premise on which all of these accounts rest is that bad judicial decisionmaking—whatever the opinion’s precise flaws—caused bad politics. Escalating conflict is a symbol of a politics deformed by judicial overreaching.
  • pp.305-306

• See William n. Eskridge, Jr., Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics, 114 YALE L.J. 1279, 1312 (2005) (“Roe essentially declared a winner in one of the most difficult and divisive public law debates of American history. Don’t bother going to state legislatures to reverse that decision. Don’t bother trying to persuade your neighbors (unless your neighbor is Justice Powell).”); Michael Klarman, Fidelity, Indeterminacy, and the Problem of Constitutional Evil, 65 FORDHAM l. REV. 1739, 1751 (1997) (describing the “conventional understanding of Roe v. Wade” as being that, “far from reconciling abortion opponents to a woman’s fundamental right to terminate her pregnancy, the decision actually spawned a right-to-life opposition which did not previously exist”).
  • Footnote 165, p.306

• The underlying assumption is that the Court blundered by issuing a decision that shut down politics, short-circuiting a process of democratic-based legislative change that would have been accorded more legitimacy, even by those members of the public who disagreed with it. In What’s the Matter with Kansas, Thomas Frank charged that:
  [Roe] unilaterally quashed the then-nascent debate over abortion, settling the issue by fiat and from the top down. And it cemented forever a stereotype of liberalism as a doctrine of a tiny clique of experts, an unholy combination of doctors and lawyers, of bureaucrats and professionals, securing their “reforms” by judicial command rather than by democratic consensus.
  • p.306

• The assumption that Roe caused backlash by repressing politics is now part of how we reason about courts. It made an appearance in the case challenging the

constitutionality of California’s ban on same-sex marriage, in the form of Judge Vaughn Walker’s question to Ted Olson at the close of testimony. Questioning the plaintiffs’ attorney, Judge Walker asked:
[I]sn’t the danger . . . to the position that you are taking is not that you’re going to lose this case, either here or at the Court of Appeals or at the supreme Court, but that you might win it?
And, as in other areas where the supreme Court has ultimately constitutionalized something that touches upon highly-sensitive social issues, and taken that issue out of the political realm, that all that has happened is that the forces, the political forces that otherwise have been frustrated, have been generated and built up this pressure, and have, as in a subject matter that I’m sure you’re familiar with, plagued our politics for 30 years, isn’t the same danger here with this issue?

• • p.306

• This is a compelling story. We will have a better politics—civil, respectful, compromising—which will reassert itself as soon as the Court withdraws and leaves democracy to work itself pure. Had the Court never enforced its (mistaken?) understanding of the Constitution, we would have civic peace. The power of this story is its power as a story. What is often missing is the kind of fact-based analysis of competing explanations for the abortion conflict that would support it.
  • p.307

• Cf. FRANK, supra note 164, at 121 (invoking “the great abortion controversy, which mobilizes millions but which cannot be put to rest without a supreme Court decision overturning Roe v. Wade”).
  • Footnote 168, p.307

• Critics of Roe frequently assert that Roe disrupted a process of state-by-state legislative compromise on abortion that would have produced general public acceptance of laws liberalizing access to abortion. The case is very far from clear. liberalization efforts seem to have stalled after 1970.
  • Footnote 169, p.307

• Why did the abortion debate escalate and become the defining site of political division in the nation? The history of the abortion conflict in the period before Roe raises a variety of questions about Court-centric explanations for Roe rage—and accordingly suggests the need for historical inquiry into the sources of the polarization so often attributed to the decision. While the history of conflict over abortion before Roe cannot tell us what happened after the Court ruled, it can and does raise powerful questions about the logic of polarization in the decades after Roe precisely because it demonstrates how the abortion conflict could accelerate and become entangled in party politics in a period when the abortion conflict cannot be plausibly construed as a response to judicial review. The history of the pre-Roe period thus illustrates the need for a deep history of the post-Roe period if we are to make any reliable judgments about how and why Roe came to be the site of polarizing and identitarian conflict that it now is.
  • pp.307-308

• The dominant account of the abortion conflict is Court-centered: it explains the abortion conflict as a bad form of politics triggered in response to the Supreme Court’s efforts to shut down democratic decision making. Our history of the pre-Roe period, by contrast, shows how ordinary politics can produce escalating forms of conflict over abortion, without the intervention of courts. This political account of conflict generates a variety of historical questions about the genesis and shape of the abortion controversy. With an appreciation of the many ways in which nonjudicial actors can provoke escalating forms of conflict, the political account is interested in the role that the Catholic Church played in escalating and in nationalizing the abortion conflict in the years before Roe. By 1967, the National Conference of Catholic Bishops responded to the introduction of ALI reform bills in state houses across the nation by creating a national organization devoted to blocking abortion reform. What led the National Conference of Catholic Bishops to found what would come to be known as the National Right to Life Committee—an organization that funded and organized opponents of abortion reform at the state level and helped develop secular and nonsectarian arguments against abortion’s decriminalization? The provocation was not judicial review but instead increasing popular support for reforming abortion law. Conflict intensified precisely because law was beginning to change in response to growing public interest in abortion reform, and a minority that cared passionately about the issue had the resources to organize in opposition—a possibility that the Court-centered account of backlash does not consider.
  • p.308

• The political account understands that countermobilization and escalating conflict (often referred to as “backlash”) is a normal response to increasing public support for change that may—but certainly need not—have a relationship to judicial review. Just as the political account suggests why increasing public support for change can motivate conflict, it understands that countermobilization can block change, despite increasing public support. The political account of conflict thus generates questions about the dynamics of legislative change in the period before Roe. Does the fact that legislative abortion reform seemed to stall after 1970 reflect the countermobilizing efforts of a large, well-financed, and nationally networked group that voted on a single-issue basis, or does the failure of legislative reform after 1970 instead reflect the views of a popular majority? Examining the logic of conflict in the pre-Roe era identifies important questions about the dynamics of conflict in the period after the decision and, more generally, about the model of politics that implicitly organizes stories of constitutional change.
  • pp.309-310

• Opinion polls offer an important window into political developments, even if opinion polls supply no information about who enters politics in order to vindicate their views, who has the resources to persuade others, or how issues are bundled or presented. In this case, it is striking that polling data from the period just before and after the Roe decision seem to show rising public support for liberalizing access to abortion.
  • Footnote 176, p.310

• There were, in short, several institutions engaged in conflict over abortion in the decade before Roe that had independent motives and independent pathways for conflict in the decades after Roe (for example, the Catholic Church, the adversaries in the campaign to ratify the ERA, and the national political parties competing for voters).
  • p.311

• If we are to understand not only “whether” but also “how” and “why” judicial review played a role in escalating the abortion conflict, there is much that we yet need to investigate concerning the dynamics of conflict over abortion the years after Roe. For example, if the Court’s decision in Roe was the sole cause of backlash, why did polls after Roe show no sign of decline in public support for abortion—and by some measures, record an increase in support for liberalizing access to abortion? Who attacked the Court’s abortion decision and when? Why, for example, was there not a single question asked about Roe at the confirmation hearings of Justice John Paul Stevens nearly three years after the decision? Why did it take until the end of the 1970s for the Southern Baptist Convention to oppose abortion categorically185 and for leaders of conservative Protestant evangelicals to enter politics in opposition to Roe? And, strikingly, why did those affiliated with the Democratic and Republican parties switch positions on abortion in the decades after Roe? For that matter, how is it that leaders of the national political parties seem to have switched positions on abortion nearly a decade before citizens affiliated with the parties?
  A Court-centered account of conflict does not seem well suited to notice these historically specific features of polarization over abortion—or to explain them.
  Where the Court-centered account interprets signs of extraordinary conflict over abortion as evidence that the Court has repressed politics,188 the political account of backlash asks whether extraordinary conflict and polarization over abortion might instead be the very expression of politics.
  • pp.312-313

• Popular support for abortion’s legalization had been rising before the decision, see supra note 119 and accompanying text, and, depending on the poll, either continued to rise afterward or remained stable at a high level. See, e.g., Donald Granberg & Beth Wellman Granberg, Abortion Attitudes, 1965- 1980: Trends and Determinants, FAM. PLAN. PERSP., Sept.-Oct. 1980, at 250, 252 (“Following the 1973 supreme Court decisions that ruled restrictive state abortion laws unconstitutional, there was a five-point rise in average approval. . . . The one-year increase between 1972 (before the supreme Court abortion decisions) and 1973 (after the decisions) was sharper than the average annual increase of about three points between 1965 and 1972.”). More than two years after Roe, the Harris survey reported that approval of permitting access to abortion during the first trimester of pregnancy had reached “the highest level of support the Harris survey has ever recorded for legal abortion [54 percent] and a turnabout from 1972 when abortion in the first trimester of pregnancy was opposed by a 46 to 42 percent plurality.” Louis Harris, Majority Supporting Abortion Laws Grows, CHI. TRIB., May 26, 1975, at 7. This article concluded that “[t]here is no doubt that the U.S. Supreme Court decision solidified public support for legalizing abortion.” Id. Also in 1975, the respected California-based Field Poll reported a sharp increase in support for abortion among California adults. See Mervin D. Field, Poll Shows Dramatic Rise in Support for Abortions, L.A. TIMEs, Apr. 2, 1975, at D1. Whatever these various polls have to offer in the nature of scientific proof, they at least serve to refute any notion that the public greeted Roe with a spontaneous negative reaction.
  • Footnote 183, p.312

• There are many possible explanations for how Roe has come to matter as it has. Perhaps polarization around abortion occurred because the Supreme Court repressed politics. Or perhaps partisan conflict escalated because the Court channeled politics into federal arenas, by enunciating law for the nation that was most easily reversed through national institutions. With polls in the wake of Roe showing growing public support for liberalizing access to abortion, perhaps conflict escalated because a cohesive and well-organized minority opposed the decision and was encouraged to resist it by voting on a single-issue basis. Or perhaps conflict escalated because in the years after the decision Roe came increasingly to be associated with feminist challenges to the family, and so came to be viewed as a threat to traditional and religious forms of social order. Or perhaps conflict escational authority because they associated the decision with a line of cases that the legal academy had criticized for a generation. Or perhaps conflict escalated because criticism of Roe by liberal elites legitimized demands to replace Supreme Court Justices by Americans who hated the Supreme Court’s race decisions but who no longer felt as free to campaign against those rulings as they once had. Or perhaps conflict escalated because the Court’s involvement in abortion gave political leaders the opportunity to unite disparate groups against the Court and in a quest for constitutional restoration, forging a new governing coalition of citizens who before never made common cause with one another.
  • pp.315-316

• Note how very different are these various explanations for Roe’s role in polarization. Note, too, how very different are their implications for the institution of judicial review. With a better account of the facts, we might conclude that the particular storm of forces that made “Roe” is not likely to converge again. Or, we might identify features of the Court’s decision responsible for inflaming an already ongoing conflict. Even so, our ability to identify which aspects of the Court’s decision aggravated an ongoing conflict would still require some account, beyond that provided by the conventional Court-centered narrative, of the structure of conflict in which the Court ruled.
  • p.316

• To be clear, we do not argue that the Supreme Court played no role in provoking conflict over the legalization of abortion. We suggest rather that the dominance of the “Court-caused-it” backlash narrative has shortchanged both legal scholars and the general public of a more complete understanding of an important chapter in America’s social, political, and legal history. Our book’s account of the sources and dimensions of the abortion conflict before Roe suggests a considerably more complex explanation than what the conventional backlash narrative provides for what happened after Roe, as we demonstrate here with further evidence of the entanglement of abortion with party realignment not only after the decision but before it, as well.
  The powerful preemptive effect of the juricentric narrative has blunted curiosity about Roe’s roots and its reception; it has become a barrier to the kind of scholarly reexamination that we hope this paper inspires. A generation of lawyers and political actors has come of age schooled in Roe as a chastening lesson on the consequences of relying on courts to address the claims of those engaged in challenging social norms and existing arrangements. But we believe that a more complete understanding of Roe’s story may offer a different, more productive lesson. That lesson is not that adjudication inevitably causes political conflict and polarization and is thus to be avoided at all cost. Conflict is a part of our political life. And adjudication plays a special role in defining our political community. Rather, the history of conflict before and after Roe suggests that in thinking about the possibilities and limits of adjudication, we need to be attentive to the motives for conflict that emerge from sources outside as well as inside the courtroom, from directions and actors that may shift over time.
  • pp.316-317

• As we noted at the beginning of the paper, facts matter. The stakes in achieving a more accurate appreciation of what occurred before (and after) Roe v. Wade are substantial for our understanding of the relationship between courts and politics. An account of the pre-Roe period in all its multidimensional richness instructs us, on the one hand, that extremes of conflict can occur, and important social conversations can emerge, without reference to courts at all. On the other hand, from the perspective of nearly four decades after the decision, we see that judicial review, far from forcing an end to politics, offers a canvas on which nonjudicial actors continue to paint, reconfiguring legal meaning to their own uses, until Roe v. Wade the case is all but effaced and “Roe” the symbol is what remains.
  • p.317

• Fifteen individual or collective “friends of the court”—amici curiae—filed briefs in Roe v. Wade, eight for the challengers to the Texas law and seven in the state’s defense. (Several on both sides also filed supplemental briefs for the second argument.) This was a substantial number for the time, although it looks small by the standards of today, when even in cases of only moderate importance, the Court often receives two dozen briefs or more.
  • APPENDIX Briefs Filed by “Friends of the Court”, p.318

“Abortion Legalization and Child Living Circumstances: Who is the "Marginal Child?"” (May 1997)

“Abortion Legalization and Child Living Circumstances: Who is the "Marginal Child?"” by Jonathan Gruber, Phillip Levine, and Douglas Staiger, National Bureau of Economic Research, Working Paper 6034, May 1997

• We estimate the impact of changes in abortion access in the early 1970s on the average living standards of cohorts born in those years. In particular, we address the selection inherent in the abortion decision: is the marginal child who is not born when abortion access increases more or less disadvantaged than the average child? Legalization of abortion in five states around 1970, followed by legalization nationwide due to the 1973 Roe v. Wade decision, generates natural variation which can be used to estimate the effect of abortion access. We find that cohorts born after abortion was legalized experienced a significant reduction in a number of adverse outcomes. Our estimates imply that the marginal child who was not born due to legalization would have been 70% more likely to live in a single parent family, 40% more likely to live in poverty, 50% more likely to receive welfare, and 35% more likely to die as an infant. These selection effects imply that the legalization of abortion saved the government over $14 billion in welfare expenditures through 1994.
  • p.1

• Access to abortion is one of the most contentious public policy issues facing the United States today. The period since the legalization of abortion under the Roe v. Wade decision of 1973 has been marked by incessant debate over the appropriate government financing and legal status of abortions. Meanwhile, pregnancy resolution through abortion is a very common outcome in the U.S.; roughly 25% of all pregnancies are aborted (Ventura et al., 1995). As a result, major changes in abortion access could have substantial effects on the birth rate. Indeed, Levine et al. (1996) find that the legalization of abortion in the early 1970s led to a 5% - 10% reduction in the birthrate.
  • p.1

• In this paper, we take a new and more direct approach to measuring the effect of abortion access on the living circumstances of subsequent cohorts of children. We examine the effect of the largest change in abortion availability in the U.S., increased access in the early 1970s through Roe v. Wade and comparable state laws, on the living circumstances of the cohorts of children born in these years. More specifically, following Levine et al. (1996), who note that Roe v. Wade followed on the heels of abortion legalization in five states around 1970. This generates two “natural experiments” for analyzing the effect of abortion access: the change in these five states, versus the remainder of the country, around 1970, and the change for the remainder of the country, versus these five states, around the time of Roe v. Wade (1973). The large reduction in the number of births associated with legalization, as documented by Levine et al, provides the impetus for focusing on the resultant living standards of the remaining cohort of children.
  • p.4

• We find evidence of sizeable positive selection: the average living circumstances of cohorts of children born immediately after abortion became legalized improved substantially relative to preceding cohorts, and relative to places where the legal status of abortion was not changing. Our results suggest that the marginal children who were not born as a result of abortion legalization would have systematically been born into worse circumstances had the pregnancies not been terminate: they would have been 70% more likely to live in a single parent household, 40% more likely to live in poverty, 35% more likely to die during the first year of life, and 50% more likely to be in a household collecting welfare. The last of these finding implies that the selection effect operating through the legalization of abortion saved the government over $14 billion in welfare payments through the year 1994.
  • p.5

• By being first movers in increasing abortion access, the five repeal states revealed their willingness to make abortion available. The states that were forced into legalization by Roe v. Wade may have been less positively disposed towards abortion availability, so even de jure legalization may not have implied a large increase in de facto access. Moreover, the women who wanted abortions most in the non-repeal states may have travelled to the repeal states to obtain them, so that the shift in use of abortion after Roe v. Wade was muted.
  In fact, this view is supported by the evidence on abortion legalization and birth rates in Levine et al. (1996). Their results for the effect o legalization on birth rates are depicted in Figure 2. This figure graphs the relative birth rates of the repeal and non-repeal states over time. Following legalization of abortion in the repeal states in 1970, birth rates in these states fell precipitously relative to birth rates in other states. There is then a corresponding fall in birth rates in the non-repeal states after 1973, so that by 1976 relative birth rates were once again equalized. However, the “bounceback” is slow, only reducing the gap somewhat by 1974-75. Levine et al. present regression results which support the narrative above: relative birth rates fell precipitously in the repeal states during 1971-73, recovered to some extent by 1974-75, and fully recovered by 1976-80. Overall, abortion legalization appears to be correlated with roughly a 6% decline in relative birth rates, which occurred immediately in the repeal states and more gradually in the non-repeal states.
  • pp.8-9

• The most important change in government fertility policy over the past 30 years was the legalization of abortion under the Roe v. Wade decision. As has been shown elsewhere, this change had a dramatic effect on the size of birth cohorts. As we demonstrate in this paper, the change also had a significant effect on the living circumstances of the cohort that were born after legalization. Subsequent cohorts were less likely to be in single parent households, and as a result less likely to live in poverty, and less likely to receive welfare. In addition, these cohorts experienced lower infant mortality. In particular, we find that for the marginal child not born due to increased abortion access, the odds of living in a single parent family would have been roughly 70% higher, the odds of living in poverty nearly 40% higher, the odds of welfare receipt 50% higher, and the odds of dying as an infant 35% higher. From these results, we estimate that the legalization of abortion saved the government over $14 billion in welfare payments through 1994.
  Perhaps more importantly, these findings also potentially have implications for the lifelong prospects of the average child born after legalization. The children not born due to abortion availability would have grown up in adverse living circumstances which have been shown in other work to have very detrimental effects on later prospects. Of course, as we note above, this conclusion is complicated by the fact that we cannot necessarily apply the effects on the average child of living in poverty (for example) to the effects on the marginal child who would live in poverty if their pregnancy was not terminated. However, as these cohorts age, researchers will be able to directly observe outcomes such as educational attainment, income, and family structure, for example using the year 2000 U.S. Census, to assess whether such outcomes improved for the average person born after legalized abortion. This is an important question that should be the focus of future analysis.
  • pp.26-27

"Support for Roe v. Wade Increases Significantly, Reaches Highest Level in Nine Years” (November 9, 2007)

Harris Interactive, (November 9, 2007). "Support for Roe v. Wade Increases Significantly, Reaches Highest Level in Nine Years” Archived January 1, 2008, at the Wayback Machine. Retrieved December 14, 2007.

• The Harris Poll® has been measuring attitudes toward the Roe v. Wade decision legalizing abortion ever since it was handed down by the Supreme Court in 1973. During the 34 years since, Harris Polls found majorities, between 49 and 65 percent of all U.S. adults, in favor of Roe v. Wade.
  The latest Harris Poll finds that support for Roe v. Wade has increased fairly significantly in a relatively short time. A majority – 56 percent – now favors the U.S. Supreme Court decision, the highest level since 1998 and an increase of seven percentage points from just last year when a slender 49 to 47 percent is supported the decision. Furthermore, only 20 percent of U.S. adults favor not permitting a woman to get an abortion under any circumstances.
  This Harris Poll also finds that a substantial 69 to 24 percent majority of all adults do not think it is likely that this Supreme Court will overturn Roe v. Wade. (Of course, that is not a prediction).
• While it is perhaps not surprising that most Democrats (63%) favor Roe v. Wade and half of Republicans (51%) oppose it, substantial percentages disagree. Over four in ten (45%) Republicans favor Roe v. Wade and a third (33%) of Democrats oppose it;
• Interestingly, the percentage of Republicans who favor it has significantly increased (from 37 percent to the current 45 percent) in the past year and the percentage of Democrats who oppose the U.S. Supreme Court decision has decreased (from 43 percent to the current 33 percent);
• Heading into the 2008 election year, it is worth noting that a majority of Independents (61 to 36 percent) favors Roe v. Wade. In 2006 the comparable views of Independents were 56 to 37 percent.
• From 1998 until this year, the U.S. adult public’s support for Roe v. Wade had been declining. A year ago, The Harris Poll reported that Roe v. Wade was supported "only by a slender 49 percent to 47 percent plurality" – "support and opposition are almost equal". Today, a majority now supports the U.S. Supreme Court decision (56% vs. 40%) and almost seven in ten think that the U.S. Supreme Court decision will remain unchanged. What might explain such a shift in 18 months?

Harris v. McRae, 448 U.S. 297 (1980)

• In the Wade case, this Court held unconstitutional a Texas statute making it a crime to procure or attempt an abortion except on medical advice for the purpose of saving the mother's life. The constitutional underpinning of Wade was a recognition that the "liberty" protected by the Due Process Clause of the Fourteenth Amendment includes not only the freedoms explicitly mentioned in the Bill of Rights, but also a freedom of personal choice in certain matters of marriage and family life. [Footnote 18] This implicit constitutional liberty, the Court in Wade held, includes the freedom of a woman to decide whether to terminate a pregnancy.
  But the Court in Wade also recognized that a State has legitimate interests during a pregnancy in both ensuring the health of the mother and protecting potential human life. These state interests, which were found to be "separate and distinct" and to "gro[w] in substantiality as the woman approaches term," id. at 410 U. S. 162-163, pose a conflict with a woman's untrammeled freedom of choice. In resolving this conflict, the Court held that, before the end of the first trimester of pregnancy, neither state interest is sufficiently substantial to justify any intrusion on the woman's freedom of choice. In the second trimester, the state interest in maternal health was found to be sufficiently substantial to justify regulation reasonably related to that concern. And at viability, usually in the third trimester, the state interest in protecting the potential life of the fetus was found to justify a criminal prohibition against abortions, except where necessary for the preservation of the life or health of the mother. Thus, inasmuch as the Texas criminal statute allowed abortions only where necessary to save the life of the mother and without regard to the stage of the pregnancy, the Court held in Wade that the statute violated the Due Process Clause of the Fourteenth Amendment.
  In Maher v. Roe, 432 U. S. 464, the Court was presented with the question whether the scope of personal constitutional freedom recognized in Roe v. Wade included an entitlement to Medicaid payments for abortions that are not medically necessary. At issue in Maher was a Connecticut welfare regulation under which Medicaid recipients received payments for medical services incident to childbirth, but not for medical services incident to nontherapeutic abortions. The District Court held that the regulation violated the Equal Protection Clause of the Fourteenth Amendment because the unequal subsidization of childbirth and abortion impinged on the "fundamental right to abortion" recognized in Wade and its progeny.
  It was the view of this Court that "the District Court misconceived the nature and scope of the fundamental right recognized in Roe." 432 U.S. at 432 U. S. 471. The doctrine of Roe v. Wade, the Court held in Maher, "protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy," id. at 432 U. S. 473-474, such as the severe criminal sanctions at issue in Roe v. Wade, supra, or the absolute requirement of spousal consent for an abortion challenged in Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52.
  But the constitutional freedom recognized in Wade and its progeny, the Maher Court explained, did not prevent Connecticut from making "a value judgment favoring childbirth over abortion, and . . implement[ing] that judgment by the allocation of public funds." 432 U.S. at 432 U. S. 474. As the Court elaborated:
  • pp.312-314

• The Court in Maher noted that its description of the doctrine recognized in Wade and its progeny signaled "no retreat" from those decisions. In explaining why the constitutional principle recognized in Wade and later cases -- protecting a woman's freedom of choice -- did not translate into a constitutional obligation of Connecticut to subsidize abortions, the Court cited the" basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy. Constitutional concerns are greatest when the State attempts to impose its will by force of law; the State's power to encourage actions deemed to be in the public interest is necessarily far broader." 432 U.S. at 432 U. S. 475-476 (footnote omitted). Thus, even though the Connecticut regulation favored childbirth over abortion by means of subsidization of one and not the other, the Court in Maher concluded that the regulation did not impinge on the constitutional freedom recognized in Wade because it imposed no governmental restriction on access to abortions.
  • Harris v. McRae, 448 U.S. 297 (1980), pp.314-315

• It is evident that a woman's interest in protecting her health was an important theme in Wade. In concluding that the freedom of a woman to decide whether to terminate her pregnancy falls within the personal liberty protected by the Due Process Clause, the Court in Wade emphasized the fact that the woman's decision carries with it significant personal health implications -- both physical and psychological. 410 U.S. at 410 U. S. 153. In fact, although the Court in Wade recognized that the state interest in protecting potential life becomes sufficiently compelling in the period after fetal viability to justify an absolute criminal prohibition of nontherapeutic abortions, the Court held that, even after fetal viability, a State may not prohibit abortions "necessary to preserve the life or health of the mother." Id. at 410 U. S. 164. Because even the compelling interest of the State in protecting potential life after fetal viability was held to be insufficient to outweigh a woman's decision to protect her life or health, it could be argued that the freedom of a woman to decide whether to terminate her pregnancy for health reasons does, in fact, lie at the core of the constitutional liberty identified in Wade. But, regardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in Wade, it simply does not follow that a woman's freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices. The reason why was explained in Maher: although government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation. Indigency falls in the latter category. The financial constraints that restrict an indigent woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency. Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions, the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all. We are thus not persuaded that the Hyde Amendment impinges on the constitutionally protected freedom of choice recognized in Wade. [Footnote 19]
  • pp.317-318

• In Wade, the Court recognized that the State has an "important and legitimate interest in protecting the potentiality of human life." 410 U.S. at 410 U. S. 162. That interest was found to exist throughout a pregnancy, "grow[ing] in substantiality as the woman approaches term." Id. at 410 U. S. 162-163. See also Beal v. Doe, 432 U.S. at 432 U. S. 445-446. Moreover, in Maher, the Court held that Connecticut's decision to fund the costs associated with childbirth but not those associated with nontherapeutic abortions was a rational means of advancing the legitimate state interest in protecting potential life by encouraging childbirth. 432 U.S. at 432 U. S. 478-479. See also Poelker v. Doe, 432 U. S. 519, 432 U. S. 520-521.
  It follows that the Hyde Amendment, by encouraging childbirth except in the most urgent circumstances, is rationally related to the legitimate governmental objective of protecting potential life. By subsidizing the medical expenses of indigent women who carry their pregnancies to term while not subsidizing the comparable expenses of women who undergo abortions (except those whose lives are threatened), [Footnote 27] Congress has established incentives that make childbirth a more attractive alternative than abortion for persons eligible for Medicaid. These incentives bear a direct relationship to the legitimate congressional interest in protecting potential life. Nor is it irrational that Congress has authorized federal reimbursement for medically necessary services generally, but not for certain medically necessary abortions. [Footnote 28] Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life.
  • pp.324-325

• The Court in Wade observed that previous decisions of this Court had recognized that the liberty protected by the Due Process Clause
  "has some extension to activities relating to marriage, Loving v. Virginia, 388 U. S. 1, 388 U. S. 12 (1967); procreation, Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S. [438,] 405 U. S. 453-454, id. at 405 U. S. 460, 405 U. S. 463-465 (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 166 (1944); and childrearing and education, Pierce v. Society of Sisters, 268 U. S. 510, 268 U. S. 535 (1925); Meyer v. Nebraska, [262 U.S. 390, 262 U. S. 399 (1923)]."
  410 U.S. at 410 U. S. 152-153.
  • Footnote 18

• Roe v. Wade, 410 U. S. 113 (1973), held that, prior to viability of the fetus, the governmental interest in potential life was insufficient to justify overriding the due process right of a pregnant woman to terminate her pregnancy by abortion. In the last trimester, however, the State's interest in fetal life was deemed sufficiently strong to warrant a ban on abortions, but only if continuing the pregnancy did not threaten the life or health of the mother. In the latter event, the State was required to respect the choice of the mother to terminate the pregnancy and protect her health.
  Drawing upon Roe v. Wade and the cases that followed it, MR. JUSTICE STEVENS' dissent extrapolates the general proposition that the governmental interest in potential life may in no event be pursued at the expense of the mother's health. It then notes that, under the Hyde Amendment, Medicaid refuses to fund abortions where carrying to term threatens maternal health but finances other medically indicated procedures, including childbirth. The dissent submits that the Hyde Amendment therefore fails the first requirement imposed by the Fifth Amendment and recognized by the Court's opinion today -- that the challenged official action must serve a legitimate governmental goal, ante at 448 U. S. 324.
  The argument has a certain internal logic, but it is not legally sound. The constitutional right recognized in Roe v. Wade was the right to choose to undergo an abortion without coercive interference by the government. As the Court points out, Roe v. Wade did not purport to adjudicate a right to have abortions funded by the government, but only to be free from unreasonable official interference with private choice. At an appropriate stage in a pregnancy, for example, abortions could be prohibited to implement the governmental interest in potential life, but in no case to the damage of the health of the mother, whose choice to suffer an abortion rather than risk her health the government was forced to respect.
  Roe v. Wade thus dealt with the circumstances in which the governmental interest in potential life would justify official interference with the abortion choices of pregnant women. There is no such calculus involved here. The Government does not seek to interfere with or to impose any coercive restraint on the choice of any woman to have an abortion. The woman's choice remains unfettered, the Government is not attempting to use its interest in life to justify a coercive restraint, and hence, in disbursing its Medicaid funds, it is free to implement rationally what Roe v. Wade recognized to be its legitimate interest in a potential life by covering the medical costs of childbirth but denying funds for abortions. Neither Roe v. Wade nor any of the cases decided in its wake invalidates this legislative preference. We decided as much in Maher v. Roe, 432 U. S. 464 (1977), when we rejected the claims that refusing funds for nontherapeutic abortions while defraying the medical costs of childbirth, although not an outright prohibition, nevertheless infringed the fundamental right to choose to terminate a pregnancy by abortion and also violated the equal protection component of the Fifth Amendment. I would not abandon Maher and extend Roe v. Wade to forbid the legislative policy expressed in the Hyde Amendment
  • MR. JUSTICE WHITE, concurring, pp.327-328

• I agree entirely with my Brother STEVENS that the State's interest in protecting the potential life of the fetus cannot justify the exclusion of financially and medically needy women from the benefits to which they would otherwise be entitled solely because the treatment that a doctor has concluded is medically necessary involves an abortion. See post at 448 U. S. 351-352. I write separately to express my continuing disagreement [Footnote 2/1] with the Court's mischaracterization of the nature of the fundamental right recognized in Roe v. Wade, 410 U. S. 113 (1973), and its misconception of the manner in which that right is infringed by federal and state legislation withdrawing all funding for medically necessary abortions.
  Roe v. Wade held that the constitutional right to personal privacy encompasses a woman's decision whether or not to terminate her pregnancy. Roe and its progeny [Footnote 2/2] established that the pregnant woman has a right to be free from state interference with her choice to have an abortion -- a right which, at least prior to the end of the first trimester, absolutely prohibits any governmental regulation of that highly personal decision. [Footnote 2/3] The proposition for which these cases stand thus is not that the State is under an affirmative obligation to ensure access to abortions for all who may desire them; it is that the State must refrain from wielding its enormous power and influence in a manner that might burden the pregnant woman's freedom to choose whether to have an abortion. The Hyde Amendment's denial of public funds for medically necessary abortions plainly intrudes upon this constitutionally protected decision, for both by design and in effect, it serves to coerce indigent pregnant women to bear children that they would otherwise elect not to have. [Footnote 2/4]
  • MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR. JUSTICE BLACKMUN join, dissenting. p.329-231

• When viewed in the context of the Medicaid program to which it is appended, it is obvious that the Hyde Amendment is nothing less than an attempt by Congress to circumvent the dictates of the Constitution and achieve indirectly what Roe v. Wade said it could not do directly.
  • MR. JUSTICE BRENNAN, p.331

• Three years ago, in Maher v. Roe, 432 U. S. 464 (1977), the Court upheld a state program that excluded nontherapeutic abortions from a welfare program that generally subsidized the medical expenses incidental to pregnancy and childbirth. At that time, I expressed my fear
  "that the Court's decisions will be an invitation to public officials, already under extraordinary pressure from well-financed and carefully orchestrated lobbying campaigns, to approve more such restrictions"
  on governmental funding for abortion. Id. at 432 U.S. 462 (dissenting both in Maher v. Roe, supra, and in Beal v. Doe, 432 U. S. 438 (1977), and Poelker v. Doe, 432 U. S. 519 (1977)).
  That fear has proved justified. Under the Hyde Amendment, federal funding is denied for abortions that are medically necessary and that are necessary to avert severe and permanent damage to the health of the mother. The Court's opinion studiously avoids recognizing the undeniable fact that, for women eligible for Medicaid -- poor women -- denial of a Medicaid-funded abortion is equivalent to denial of legal abortion altogether. By definition, these women do not have the money to pay for an abortion themselves. If abortion is medically necessary and a funded abortion is unavailable, they must resort to back-alley butchers, attempt to induce an abortion themselves by crude and dangerous methods, or suffer the serious medical consequences of attempting to carry the fetus to term. Because legal abortion is not a realistic option for such women, the predictable result of the Hyde Amendment will be a significant increase in the number of poor women who will die or suffer significant health damage because of an inability to procure necessary medical services.
  The legislation before us is the product of an effort to deny to the poor the constitutional right recognized in Roe v. Wade, 410 U. S. 113 (1973), even though the cost may be serious and long-lasting health damage. As my Brother STEVENS has demonstrated, see post, p. 448 U. S. 349 (dissenting opinion), the premise underlying the Hyde Amendment was repudiated in Roe v. Wade, where the Court made clear that the state interest in protecting fetal life cannot justify jeopardizing the life or health of the mother. The denial of Medicaid benefits to individuals who meet all the statutory criteria for eligibility, solely because the treatment that is medically necessary involves the exercise of the fundamental right to chose abortion, is a form of discrimination repugnant to the equal protection of the laws guaranteed by the Constitution. The Court's decision today marks a retreat from Roe v. Wade and represents a cruel blow to the most powerless members of our society. I dissent.
  • MR. JUSTICE MARSHALL, dissenting, pp.337-338

• Moreover, both the legislation in Maher and the Hyde Amendment were designed to deprive poor and minority women of the constitutional right to choose abortion. That purpose is not constitutionally permitted under Roe v. Wade.
  • MR. JUSTICE MARSHALL, dissenting, p.344

• In this case, the Federal Government has taken upon itself the burden of financing practically all medically necessary expenditures. One category of medically necessary expenditure has been singled out for exclusion, and the sole basis for the exclusion is a premise repudiated for purposes of constitutional law in Roe v. Wade. The consequence is a devastating impact on the lives and health of poor women. I do not believe that a Constitution committed to the equal protection of the laws can tolerate this result. I dissent.
  • MR. JUSTICE MARSHALL, dissenting, p.348

• In Roe v. Wade, 410 U. S. 113, and Doe v. Bolton, 410 U. S. 179, the Court recognized that the States have a legitimate and protectible interest in potential human life. 410 U.S. at 410 U. S. 162. But the Court explicitly held that, prior to fetal viability, that interest may not justify any governmental burden on the woman's choice to have an abortion, [Footnote 4/2] nor even any regulation of abortion except in furtherance of the State's interest in the woman's health. In effect, the Court held that a woman's freedom to elect to have an abortion prior to viability has absolute constitutional protection, subject only to valid health regulations. Indeed, in Roe v. Wade the Court held that, even after fetal viability, a State may
  "regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."
  • MR. JUSTICE STEVENS, dissenting, pp.350-351

• If a woman has a constitutional right to place a higher value on avoiding either serious harm to her own health or perhaps an abnormal childbirth [Footnote 4/3] than on protecting potential life, the exercise of that right cannot provide the basis for the denial of a benefit to which she would otherwise be entitled. The Court's sterile equal protection analysis evades this critical, though simple, point. The Court focuses exclusively on the "legitimate interest in protecting the potential life of the fetus." Ante at 448 U. S. 324. It concludes that, since the Hyde Amendments further that interest, the exclusion they create is rational, and therefore constitutional. But it is misleading to speak of the Government's legitimate interest in the fetus without reference to the context in which that interest was held to be legitimate. For Roe v. Wade squarely held that the States may not protect that interest when a conflict with the interest in a pregnant woman's health exists. It is thus perfectly clear that neither the Federal Government nor the States may exclude a woman from medical benefits to which she would otherwise be entitled solely to further an interest in potential life when a physician, "in appropriate medical judgment," certifies that an abortion is necessary "for the preservation of the life or health of the mother." Roe v. Wade, supra at 410 U. S. 165. The Court totally fails to explain why this reasoning is not dispositive here. [Footnote 4/4]
  • MR. JUSTICE STEVENS, dissenting, pp.351-352

• "In Roe v. Wade, 410 U. S. 113, the Court held that a woman's right to decide whether to abort a pregnancy is entitled to constitutional protection. That decision . . . is now part of our law. . . ."
  Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52, 428 U. S. 101 (STEVENS, J., concurring in part and dissenting in part).
  • MR. JUSTICE STEVENS, dissenting, [Footnote 4/1]

• Roe v. Wade involved Texas statutes making it a crime to "procure an abortion," except when attempted to save the pregnant woman's life. 410 U.S. at 410 U. S. 117-118. Doe v. Bolton involved the somewhat less onerous Georgia statutes making abortion a crime in most circumstances, the exceptions being abortions to save the pregnant woman from life or permanent health endangerment, cases in which there was a very likely irremediable birth defect in the child, and cases in which the pregnancy was the result of rape. Those exceptions were subject to burdensome prior medical approvals, which were held to be unconstitutional. Subsequent cases have invalidated other burdens on the pregnant woman's free choice to abort. See Planned Parenthood of Central Missouri v. Danforth, supra, (consent required of husband or, for an unmarried woman under 18, of a parent); Bellotti v. Baird, 443 U. S. 622 (consent required of either parent or superior court judge for an unmarried woman under 18).
  • MR. JUSTICE STEVENS, dissenting, [Footnote 4/2]

• The Court rests heavily on the premise -- recognized in both Roe and Maher -- that the State's legitimate interest in preserving potential life provides a sufficient justification for funding medical services that are necessarily associated with normal childbirth without also funding abortions that are not medically necessary. The Maher opinion repeatedly referred to the policy of favoring "normal childbirth." See 432 U.S. at 432 U. S. 477, 432 U. S. 478, 432 U. S. 479. But this case involves a refusal to fund abortions which are medically necessary to avoid abnormal childbirth.
  • MR. JUSTICE STEVENS, dissenting, [Footnote 4/3]

• In responding to my analysis of this case, MR. JUSTICE WHITE has described the constitutional right recognized in Roe v. Wade as "the right to choose to undergo an abortion without coercive interference by the government" or a right "only to be free from unreasonable official interference with private choice." Ante at 448 U. S. 327, 448 U. S. 328. No such language is found in the Roe opinion itself. Rather, that case squarely held that state interference is unreasonable if it attaches a greater importance to the interest in potential life than to the interest in protecting the mother's health. One could with equal justification describe the right protected by the First Amendment as the right to make speeches without coercive interference by the government and then sustain a government subsidy for all medically needy persons except those who publicly advocate a change of administration.
  • MR. JUSTICE STEVENS, dissenting, [Footnote 4/4]

“Woman's Right to an Abortion: Roe v. Wade” (2016)

“Woman's Right to an Abortion: Roe v. Wade” by D. J. Herda, Berkeley Heights, New Jersey: Enslow Publishing, 2016

• In more than four decades since its landmark 1973 Roe v. Wade decision legalizing abortion, the Supreme Court has weighed I on the abortion issue on numerous occasions. Sometimes it has upheld the availability of abortion granted by Roe more often than not, it has leaned toward restricting that availability.
  Regardless, the Court has repeatedly upheld Roe’s central premise: that the US Constitution guarantees a right of privacy, and that right of privacy includes a woman’s right to have an abortion during the first thirteen weeks of pregnancy (and even after that it necessary in order to safeguard the woman’s life, health, or well-being).
  But along the way, the anti-abortion (pro-life) movement has convinced legislators in Congress to enact a host of laws aimed at reducing Roe’s effects. Some of these laws require parental notification (in the case of underage females), spousal consent (in the case of married females), or a waiting period before the abortion procedure may be legally performed. Other laws require that women having second-trimester abortions do so in a hospital, rather than in a non-hospital clinic. They also require that physicians use abortion methods that are least harmful to the fetus; that is, they must use methods that will most likely result in the survival of the fetus after removing it from the mother’s womb. More recent laws and regulations also prevent public funds from tax revenues from being spent on abortion procedures.
  The legislative flood of new laws over the years has led to a string of Supreme Court challenges and ruling that have served not only to limit the scope of Roe, but also to establish Roe as a legal precedent. In so doing, Roe has become the “norm” against which all abortion law challenges are measured.
  • pp.89-90

• In 2004, in an ironic and surprising reversal, Norma McCorvey (Jane Roe, the plaintiff in 1973’s groundbreaking Roe v. Wade) filed a motion with the US District Court in Dallas to have the Roe case overturned. In doing so, she asked the court to consider new evidence that abortion hurts women. Included in her filings were affidavits from more than a thousand women who said they had regretted having had their abortions. For McCorvey, the journey from abortion advocate to abortion foe had been long and winding.
  In 1970, Norma McCorvey was described as a pregnant woman who “wished to terminate her pregnancy by an abortion ‘performed by a competent, licensed physician, under sage, clinical conditions’; …. Was unable to get a ‘legal’ abortion in Texas,” and the case focused on the idea that “the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy …”
  But the true story, as Norma McCorvey later explained it, was nowhere near what had been portrayed in court. A woman who was relatively ignorant of the facts of her own case, McCorvey claimed that her attorneys used her for their own predetermined ends. They “were looking for somebody, anybody, to use to further their own agenda. I was their most willing dupe.”
  After becoming pregnant with her second child, she sought to end her pregnancy. She was not aware of all the implications of abortion or even what the term meant. ‘Abortion to me,” she said, “meant ‘going back’ to the condition of not being pregnant.” She did not realize that the process would end a human life. She said that her attorney, Sarah Weddington, rather than correcting her misconceptions, merely confused the issue: “For their part, my lawyers lied to me about the nature of abortion. Weddington convinced me, ‘It’s just a piece of tissue. You just missed your period.” Another problem was that Norma claimed that her pregnancy was the result of a gang-rape in order to present a more sympathetic picture. That, as she has since confessed, was untrue.
  McCorvey has long admitted that her actual involvement in the case was minimal. She had signed the initial affidavit without ever reading it, and “was never invited into court. I never testified. I was never present before any court on any level, and I was never at any hearing on my case … I found out about the decision from the newspaper just like the rest of the country.”
  • pp.96-97

• Even though she had spearheaded the pro-choice movement and its goal of opening up the right to legalized abortion to women, Norma McCorvey never experienced the abortion procedure. Instead, she delivered her baby and gave it up for adoption.
  • p.97

• After hearing the evidence presented by McCorvey to overturn Roe, a three-judge panel of the Fifth US Circuit Court of Appeals in New Orleans dismissed Norma McCorvey’s motion on November 14, 2004. McCorvey had claimed that she had new information that would affect the 1973 case. The lower court disagreed, and the Supreme Court denied review of the case.
  • p.97

“Roe v. Wade: Abortion and a Woman's Right to Privacy” (2012)

“Roe v. Wade: Abortion and a Woman's Right to Privacy” by Melissa Higgins, North Mankato, MN: Abdo Publishing, 2012

• On a February afternoon in 1970, 22-year-old Norma McCorvey, a petite woman wearing jeans, sandals, and a shirt tied at her waist, walked into Columbo’s an Italian restaurant in Dallas, Texas. She scanned the red-and-white checked tables, looking for the two women she had arranged to meet. It did not take long to spot them.
  As McCorvey later recalled in her 1993 autobiography, I Am Roe: My Life, Roe v. Wade, and Freedom of Choice, the women wore expensive-looking suits that were out of place in the casual restaurant. Linda Coffee was tall, thin, dark, and delicate. Sarah Weddington was shorter, blonde, and slightly plump. They were both a little older than McCorvey, more educated, and more sophisticated.
  • p.8

• McCorvey had a ninth-grade education. She had been married and divorced. She drank heavily and did drugs. And, though she was a lesbian, McCorvey was pregnant-the reason for meeting with Coffee and Weddington. Feeling intimidated, McCorbey considered walking away. But she stayed, hoping the pair could-and would-provide what she wanted.
  McCorvey shook Weddington’s hand and thanked her for coming. McCorvey had little in common ith the attorneys-making small talk was uncomfortable. She was eager to get to the point. After ordering pizza and beer, she asked about what she assumed they had come to help her with. McCorvey wanted to know if either rof the lawyers new where she could get an abortion.
  When they told her they did not, McCorvey felt angry. Again, she considered leaving. But Weddington, at least, seemed sympathetic to McCorvey’s situation, and McCorvey decided to stay. Weddington asked why she wanted an abortion so badly. McCorvey answered that it was hard to find work when she was pregnant. Her mother was raising her first child, whom she hardly ever saw. She was in no shape to be a mother.
  Weddington recommended McCorvey not get an abortion. Elective abortions were illegal in Texas, as they were in most other states. Illegal abortions were also dangerous. Every year, women bled to deaths the result of abortions, trying to perform them themselves or suffering at the hands of doctor in illegal abortion clinics. Weddington explained that she, coffee, and a group of other like-minded people were working to overturn the Texas law banning abortion. But they needed a lawsuit to accomplish this and woman to put her name on the lawsuit-a pregnant woman just like McCorvey.
  McCorvey was interested, but she had difficulty keeping track as Weddigton described the legal steps the lawsuit would take: district, appeals, state, and federal courts. But she was impressed with Weddington’s passion. The two lawyers wanted to hear all about McCorvey. She decided to trust the women and told them her story.
  • pp.9-10

• When McCorvey was seeking an abortion, she claimed her pregnancy resulted from rape. She thought the lie would help her situation. The first time she made the claim was to an adoption lawyer she met before McCluskey. He would not help her obtain an abortion. After assuming the child was mixed race, he would not help with an adoption either. McCorvey told Weddington and Coffee the same lie. McCorvey wrote in “I Am Roe”, “The horrible lie-this was the second time I’d used it-pulled at the insides of my stomach.” Again, lying did not help. According to McCorbey, Weddington responded, “Well Norma, it’s awful that you were raped. But actually, the Texas abortion law doesn’t make any exception for rape. So it doesn’t matter in terms of our lawsuit.”
  • p.14

• After listening to McCorvey’s story, Coffee and Weddington asked if she would be interested in being the plaintiff in their case. Weddington explained what that meant. McCorvey’s involvement would hopefully be minimal. She would probably not have to attend court hearings or answer oral questions. And she would not need to pay anything because Coffee and Weddington would donate their time and money to the case. Also, McCorvey could use a pseudonym to remain anonymous, unless she chose to disclose her identity. McCorvey agreed to be their plaintiff.
  After the meeting at the restaurant, Coffee and Weddington considered whether McCorvey was really their best choice for a plaintiff.. This would be an important case. If the two young lawyers succeeded in overturning Texas’s law, they believed their work would benefit all Texas women. And perhaps they could benefit women in the other 42 states with restrictive provisions for abortion.
  Some abortion laws had been changed in recent years to allow for the procedure. In some states, new laws legalized abortion or could be interpreted so broadly that abortion was essentially legal. In time, Coffee and Weddington hoped all states might legalize abortion or at least broaden the criteria under which it could be performed. They wanted women to have abortion as an option and for that option to be safe and legal. But in 1970 Texas, as in most other states, abortion statutes were still in effect, leaving very few women eligible for legal abortions. Coffee and Weddington were impatient, unsure when abortion reform legislation would pass in their conservative state. They saw the courts as a faster alternative for change.
  • pp.15-16

• The lawyers thought their ideal plaintiff needed to meet certain criteria. She would have to hold up under the intense legal and public scrutiny that would certainly result from such a court case-scrutiny that would likely increase for a woman with the kind of history McCorvey had.
  Another consideration was McCorvey’s desperate desire for an abortion. She was far enough along in her pregnancy that she would have given birth by the time the case concluded. Coffee and Weddington could try to get McCorvey a legal abortion, but it would be a complicated process. It would also be a lengthy one.
  • p.16

• After discussing the pros and cons off McCorvey as their plaintiff, Coffee and Weddington realized the ideal plaintiff simply did not exist. If she were willing to be the plaintiff in the case, the two young lawyers would represent MccCorvey in a fight to change Texas’s abortion legislation.
  The three women met again. McCorvey signed the legal paperwork, setting into motion a case that would become one of the most controversial and divisive Supreme Court decisions in modern US history.
  • p.17

• Although she wasn’t finding an answer to the abortion referral group’s problem, Weddington felt encouraged by the Griswold case and by the court cases and legislation cropping up across the country challenging or changing state abortion laws. One day in 1969, two of Weddington’s friends asked if she would file a lawsuit challenging the constitutionality of the Texas abortion statute in federal court and add their case to others being filed on the federal level. Their hope was that one of these cases would be heard by the Supreme Court.
  Weddington has graduated from the University of Texas Law School only in 1967 and had never handled a contested care. Still, her friends respected the research she had already done and believed the case should have a female lawyer since it was a women’s issue. Plus, Weddington was the only attorney they knew who might be willing to do the work for free. Although afraid of failing and uncertain she was really the right person for the job, Weddington agreed.
  • pp.49-51

• Weddington began gathering a group of people to assist her with the case, including Coffee, her law school classmate. Coffee was living in Dallas at the time and working as an attorney in a bankruptcy firm. She had clerked for a federal judge, and Weddington was eager for Coffee’s federal court expertise.
  In December 1969, Coffee readily agreed to help, and the two attorneys began meeting to discuss strategy. They needed one or more plaintiffs, “who could how a personal, direct, significant impact of the Texas anti-abortion statues,” Weddington remembered. It would become an ongoing worry as they drafted the complaint and lined up their legal points.
  • p.51

• The lawyers’ first selection as plaintiff was a woman who was not pregnant, but, due to a neurochemical disorder, was advised by her doctor to avoid getting pregnant and not to take birth control pills. If the contraception method the woman and her husband used failed and she became pregnant, her health would be at risk without an abortion. An abortion under these conditions was illegal in Texas. The couple wanted to be plaintiffs because they believed the Texas law compromised their right to normal marital intimacy. They would become “John Doe” and “Mary Doe.”
  Weddington and Coffee needed an additional plaintiff, a pregnant woman who wanted an abortion. A friend of Coffee’s, attorney Henry McCuskey, called her with a referral, a young, pregnant woman living in Dallas who was looking for an abortion. Coffee talked to the woman and arranged for Weddington to meet them at an Italian restaurant in Dallas. The pregnant woman’s name was Norma McCorvey. She would become “Jane Roe.” Their plaintiffs selected, Weddington and Coffee now had to construct and file their case.
  • Chapter 5, Constructing and Filing Roe v. Wade, pp.52-53

• Weddington and Coffee decided to file two separate lawsuits to challenge Texas’s abortion statutes. They did that because the issues in each case were slightly different: one of their plaintiffs was pregnant and the other was not. Filing two cases would also incrase their chances of at least one case landing in the court of Judge Sarah Hughes. As Coffee’s former boss, Hughes would probably be sympathetic to their cause. Once one case was assigned, Coffee and Weddington planned to request the oter case be joined with it so they could present a single case with combined facts.
  The women also requested tha ta federalthree-judge cort hear their case, since a state court couldnot determine their constitutional rights. The lawyers strategized that because a three-judge court included one member of the circuit court and two judges from district court, its decision would carry more weight than that of a single-judge federal court. In addition, three-judge courts were required to proceed with cases as quickly as possible, which meant Coffee and Weddington-and their pregnant plaintiff-would get a speedy hearing.
  • pp.54-56

• Unlike many legal docuents, the filing documents Coffee drafted in February 1970 were not lengthy: only three legal-sized pages. In the petition, the lawyers asked the court to do two things. First they wanted the court to affirm that the Texas abortion statutes were unconcstituional. Second, they wanted the court to order a stop to enforcement of those statutes. Weddington recalled.
  In essence, we wantedthe court to say the Texas anti-abortion laws violated the US Constitution and to tell local law enforcement officials to quit prosecuting doctors under those statutes.
  • pp.56-57

• In the documents for Jane Roe’s case, Coffee also included a seven-point statement of facts. Facts one through five were specific to McCorvey’ssituation. They stated that Roe was an unmarried pregnant woman who, due to economic hardship and the social stigma of having an illegitimate child,wanted to end her pregnant with an abortion performed by a licensed physician in safe circumstances. Because her life was not threatened by her pregnancy, she could not secure a legal abortion under Texas law and did not have the funds to travel to a location outside of the state where she could obtain a safe abortion.
  facts six and seven were more general:
  6. An abortion performed by a competent, licensed physician under hospital or clinic conditions is a safe and simple procedure whish presents less danger to the pregnant woman than ordinary childbirth.
  7. An abortion performed outside of the clinical setting by unqualified personnel is extremely dangerous and often results in death, maiming, sterility, r serious infection.
  • pp.57-58

• On the evening of March 2, 1970, Coffee and Weddington made a few final changes to the documents. The following day, March3, Coffee walked to the federal courthouse in Dallas, paying $30 of her own money to file the two cases. Roe’s case was docketed as ccase number 3-3690-B. By naming as their defendant the highest-ranking official responsible for law enforcement in Dallas Country, Texas-District Attorney Henry Wade-the case took on the title Roe v. Wade.
  • p.58

• On March 19, two Dallas attorneys-Fred Brunter and Roy L. Merrill Jr.-asked to have a third plaintiff added to the Roe case. The attorney’s client, James Hallford, was a doctor who had performed baortions for years and had been indicted under the Texas abortion law for performing an illegal abortion. Bruner and Merril argued that the stat e statute was so vague and difficult to interpret that Hallford could not determine when a woman’s life was in danger. Weddington and Coffee were glad to add the physician’s case to theirs, believing it made Roe stronger. The request was granted.
  Coffee and Weddington had always imagined their case affecting more than McCorvey, their Jane Roe, including the many women facing unwanted pregnancies. The two young lawyers considered the case a good candidate for a class action.
  • pp.61-62

"Human Life Alliance Advertising Supplement" (May 24, 1993)

Tulsa World, May 24, 1993, selection reprinted in The Coyote Chronicle, California State University, San Bernadino, Volume 30, Issue 14, May 29, 1996, page four of the Human Life Alliance Advertising Supplement

• Norma McCorvey was the "Jane Roe" of Roe v. Wade.
  Early in 1970 Norma Mccorvey claimed that she had been gang-raped and became pregnant. Attorneys Sarah Weddington and Linda Coffee, newly graduated from the University of Texas Law School, needed a "client" in order to challenge Texas' 100-yearold law that banned abortions. They convinced Norma that she should be seeking an abortion.
  The case was subsequently argued all the way to the Supreme Court which resulted in legalizing abortion in all SO states in 1973. In the meantime, Norma's baby was born and released for adoption. In 1987, McCorvey admitted that the gang-rape was a lie. In August 1995, she joined Operation Rescue stating that she was tired of being exploited by the pro-abortionists.
  While Roe v. Wade legalized abortion, on the same date, Doe v. Bolton provided for abortion-on-demand for the entire nine months of pregnancy and was the legal vehicle which provided Court sanction for the over 2200 abortion mills across the country.
• Sandra Cano was "Mary Doe" of Doe v. Bolton
  Sandra Cano now says she was an unwitting participant in fraud on the highest court in the land. Sandra was a young expectant mother with three children facing a divorce from a husband who was in jail for child molestation. Cano's three children had been taken from her by family service workers. They were being shunted from one bad environment to another. Cano loved her children dearly. She was almost insane with grief when she turned to Legal Aid Services for help. The offer of N.O.W. lawyers to take the whole mess off her hands, obtain a divorce and regain custody of her children sounded too good to be true.
  When the attorneys hinted that they would like to strike a deal which would include abating the child Sandra was carrying she made it very clear that she could never do that Yet, her attorneys ignored her objections and ran roughshod over her. When she realized her case had been used to obtain abortion-on-demand she said, "...why would I stretch my imagination to include a plan so bizarre that it would give people in a civilized society permission to kill their own babies?...I surely never thought they would tie my personal anxieties about retrieving my children to a scheme to make abortion-on-demand legal." Ironically, the Cano baby, like the McCorvey baby, was carried to term and relinquished fa adoption. Yet, 30,000,000 other babies have lost their lives to abortion because of these two cases.
• Sarah Weddington was the Attorney Sarah Weddington, the attorney who argued Roe v. Wade before the U.S. Supreme Court, gave a speech at the Education Ethics Institute in Oklahoma. She explained why she defended the sketchy story and false rape charge of a Texas waitress "Jane Roe" all the way to the Supreme Court: "My behavior may not have been totally ethical. But I did it for what I thought were the right reasons." Tulsa World 5/24/93.
• Hugh Heffner, founder of Playboy claims to have done one great thing for women: "Playboy probably had more to do than any other company with Roe v. Wade. We supplied the money for those early cases and actually wrote the amicus curiae for Roe."

"Women's Health Protection Act: Unconstitutional and More Radical Than Roe v. Wade" (February 28, 2022)

Jipping, Thomas (February 28, 2022). "Women's Health Protection Act: Unconstitutional and More Radical Than Roe v. Wade". The Heritage Foundation. Archived from the original on May

• The U.S. Senate will next week take up S.1975, the so-called Women’s Health Protection Act (WHPA). Its backers want everyone to believe that it will simply protect by statute the right to abortion that the Supreme Court defined in its Roe v. Wade decision. They know this is a lie, and the rest of the American people need to know it too.
• In Roe v. Wade, the Supreme Court said it should because of the “detriment” that prohibiting abortion “would impose upon the pregnant woman.” That, however, is a policy decision that courts do not have authority to make. The Supreme Court, therefore, said that the 14th Amendment protects a “right to privacy” that “is broad enough” to include abortion. Since the Court made no attempt to actually interpret the 14th Amendment, though, that did not fool anyone, and no constitutional scholar of any ideological stripe even tries to defend it. But that’s where we have been for the past five decades.
  Roe v. Wade got the job done, making legislative efforts to protect life before birth all but impossible, a policy more permissive than all but ones in seven other nations. Yet the Court now has before it a case, Dobbs v. Jackson Women’s Health Organization, in which it may finally acknowledge that Roe v. Wade is an indefensible distortion of the Constitution and overrule it. That would once again put state and local governments in primary charge of abortion policy.
• The WHPA’s two most glaring defects are that Congress has no authority to dictate how state and local legislatures may handle abortion and, even if it did, the WHPA is far more radical than even Roe v. Wade itself.
  The WHPA refers repeatedly to the “constitutional right to terminate a pregnancy.” Congress does have authority to “enforce, by appropriate legislation, the provisions” of the 14th Amendment. Those provisions, of course, say nothing about privacy or abortion and, if the Supreme Court overrules Roe v. Wade, no one will be able even to pretend otherwise. There will nothing for Congress to enforce.
• Roe v. Wade, for example, recognized that “[t]he pregnant woman cannot be isolated in her privacy.” The “developing young in the human uterus” makes abortion “inherently different” from other privacy rights. In fact, the Court said, abortion may not have a “close relationship” to those other rights at all. The child in the womb, in other words, changes everything.
  In Roe, the Supreme Court referred to the unborn “child,” “prenatal life,” “fetus,” “embryo,” and “unborn children.” These were not simply casual or random references. The state, Justice Harry Blackmun wrote, has an “important and legitimate interest” in protecting human beings before birth. Only four years after Roe, the Supreme Court held that the right to abortion “implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment” through certain kinds of legislation.
  The WHPA repudiates, rather than codifies, that aspect of Roe v. Wade. The bill, in fact, tries mightily to erase, avoid, or deny any suggestion, hint, or whisper that a second human being exists at all. It even drops the definition of “abortion” found in previous versions of the WHPA because that definition referred to “a live birth” (of what?) and a “dead fetus” (that must once have been alive). The WHPA’s proponents apparently believe that abortion focuses too much, even in death, on the unborn child. Instead, the current WHPA refers only to “abortion services” which, it claims, “are essential health care” and, therefore, focus exclusively on the pregnant woman.
• In a 1983 essay titled “Abortion and the Conscience of the Nation,” President Ronald Reagan wrote that “[w]e cannot diminish the value of one category of human life—the unborn—without diminishing the value of all human life.” The “real question,” he wrote, “is not when human life begins, but, what is the value of human life?” The Supreme Court’s answer in Roe v. Wade was that human life has almost no value before birth. The WHPA scoffs even at that, denying that human life exists at all before birth. Senators will give their answer when they take up the bill next week.

“Abortion Before & After Roe” (September 2013)

“Abortion Before & After Roe” by Ted Joyce, Ruoding Tan, and Yuxiu Zhang, Journal of Health Economics. Volume 32, Number 5, September, 2013, pages 804–815

• Abortion on demand was legal in a few states in 1970. Not until the 1973 Supreme Court decision in Roe v. Wade was legalized abortion available nationally.
• The story that emerges from these data is that the availability of legalized abortion services had a significant effect on fertility, but marginal changes in the distance to a legal provider had less of an effect. In other words, Roe v. Wade was arguably less important for unintended childbearing than was access to services in California, the District of Columbia and especially New York in the years before Roe.
• The conclusion that Roe had a relatively modest impact on birth rates is somewhat at odds with previous work (Gruber, Levine and Staiger 1999; Levine et al. 1999; Levine 2004). These authors argued that national legalization in 1973 led to an equally large decrease in birth rates in the non-repeal states as had occurred in the repeal states in the previous three years. Gruber, Levine and Staiger (1999) refer to this as the “bounce back” effect of Roe. However, they lack a comparison group after 1973. Consequently, they cannot distinguish the “bounce back” effect from a relatively larger decrease in birth rates in the repeal states relative to the non-repeal states in the pre-Roe years followed by no meaningful effect of Roe in the subsequent years.19 Although the latter seems surprising given the dramatic change in distance to the nearest abortion provider between 1972 and 1973 (Figure 7), trends in birth rates are consistent with this interpretation.
• The likelihood that Roe is overturned in the near future is remote. Nevertheless, states have imposed new requirements of abortion providers that, if enforced, will increase the distance women have to travel to access services.

"Did Legalized Abortion Lower Crime?" (2003)

Theodore Joyce, "Did Legalized Abortion Lower Crime?", Journal of Human Resources, 2003, 38(1), pp. 1–28.

• In a recent and controversial article, Donohue and Levitt (2001) pre- sent evidence that the legalization of abortion in 1973 explains over half of the recent decline in crime across the United States. A 50 percent increase in the mean abortion ratio is associated with an 11 percent decrease in violent crime, an 8 percent decrease in property crime and a 12 percent decrease in murder. These effects are generally larger and more precisely estimated than the effects of incarceration and police man-power. Moreover, they conclude that the full impact on crime of Roe v. Wade will not be felt for another 20 years. To quote, “Our results suggest that all else equal, legalized abortion will account for persistent declines of 1 percent a year in crime over the next two decades” (p. 415). Given the social costs associated with crime and the controversy surrounding abortion, a causal link between abortion and crime has profound implications for social policy.
  • pp.1-2

• Donohue and Levitt use no data on abortion prior to 1973. Their analysis of arrests by single year of age, for instance, pertains to birth cohorts born between 1961 and 1981 where approximately 60 percent of the state/ age / cohort cells are assigned an abortion ratio of zero. However, demographers have concluded that most legal abortions in the early 1970s replaced illegal abortions (Tietze 1973; Sklar and Berkov 1974). If the underreporting of abortion were random among states, their estimates would be biased downward. As I show below, however, the measurement error is negatively correlated with the true abortion rate in 1972 and thus the direction of the bias is unknown.
  • p.3

• Demographers estimate that approximately two-thirds of all legal abortions replaced illegal ones in the first year after legalization. Estimates are based on the change in births between 1970 and 1971 compared to the number of reported abortions in 1971 (Sklar and Berkov 1974; Tietze 1973). As noted above, Donohue and Levitt have no data on abortion for cohorts born before 1974 and thus assume a zero abortion ratio for more than half their observations. A facile argument is to assume that any error is likely random and estimates are biased downward. But this assumption is decisively contradicted by the data. As a simple example, Kansas had an abortion ratio of 414 per 1,000 live births in 1973. Donohue and Levitt assume the abortion ratio in Kansas is zero in 1972. However, data collected by the Centers for Disease Control (CDC) (Centers for Disease Control 1974) indicate that Kansas had an observed abortion ratio of 369 per 1,000 live births in 1972! Going further, I estimated the resident abortion rate in 1972 using published CDC data and the algorithm used by AGI for assigning abortions by state of residence in 1973. The correlation between resident abortion rates or ratios in 1972 and 1973 is 0.95. In other words, states with the greatest abortion ratios in 1973 had the greatest abortion ratios in 1972. By assuming the abortion ratio was zero in the 45 nonrepeal states and Washington, D.C., Donohue and Levitt build in an error that is negatively correlated with the true abortion rate. As a result, the direction of the bias is unknown.
  • p.5

• Donohue and Levitt (2003) argue that tests of abortion and total crime are weak between 1985 and 1990 because a relatively small proportion of all criminals were exposed to legalized abortion before 1990. As evidence, they point to their relatively low effective abortion ratio over this period. However, the low figure results from their inappropriate assumption that there were no abortions prior to 1973 in the 45 nonrepeal states. Early surveillance by the CDC found that there were 175,508 reported abortions in 1970, 480,259 in 1971, and 586,760 in 1972 in the United States (Centers for Disease Control 1971, 1972, 1973). Moreover, the resident abortion ratio in the repeal states: Alaska, California, Washington D.C., Hawaii, New York, and Washington, was 340 in 1971 and 370 in 1972 (Author’s calculations based on data from CDC (1972, Table 4) and CDC (1974, Table 5). According to CDC data, the abortion ratio for the entire US peaked in 1981 at 358 (Koonin et al. 1997). In other words, cohorts born in repeal states between 1971 and 1973 were exposed to a level of abortion that exceeded the maximum average exposure for the entire country at any time since abortion became legal.
  • Footnote 7, pp.8-9

• If the legalization of abortion following Roe lowered crime, then I would expect to see a drop in arrest and homicide rates among the 18- and 19-year-olds relative to 21- and 22-year-olds from the before to after period. Figures 4a and 4, however, provide no evidence of a cohort effect. Rates of violent crime arrests are practically identical for the two age groups. What is particularly impressive is the similarity in the violent crime arrest rates prior to 1990, which supports the use of 21- and 22-year-olds as a plausible comparison group. The plot for murder and murder arrest rates point to signiŽ cant period effects as all series begin to rise steeply around 1988 and peak between 1993 and 1994.
  • p.21

• Because the exposure group includes individuals 20 and 21 years of age, instead of 18 and 19 as in Figure 3, the pre-Roe period is now 1992– 93 and the post-Roe or exposure period is 1995 and 1996. Again, with the exception of property crime, the pre-Roe levels and trends in arrest and homicide rates are similar. Moreover, there is little to suggest that arrests or homicide rates fell differentially for 20- and 21-year-olds relative to 23- and 24-year-olds before and after exposure to legalized abortion.
  • p.23

• Given Figures 4 and 5, it is not surprising that I find that exposure to legalized abortion following Roe v. Wade has no effect on arrest or homicide rates of the two exposed groups. Consider arrest rates for violent crime in Panel A. The estimated coefficient, 0.064, indicates that violent crime arrests rose 6.4 percent more among teens 18 to 19 years of age relative to 21- and 22-year-olds. The remaining DDs indicate that Roe had a statistically insignificant and qualitatively unimportant impact on arrest and homicide rates.
  • p.23

• Recall that Donohue and Levitt assume that the abortion ratio is zero in all 45 nonrepeal states in 1972. As noted above this assumption is extreme. Nevertheless, the absolute change in resident abortion rates between 1972 and 1973 in nonrepeal states is correlated with the level of the abortion rate in 1973. The weighted mean abortion rate in 1973 for states below the median is 6.6 abortions per 1,000 women 15 to 44 as compared to 16.0 in states above the median. If there is a “dose-response” effect of abortion on crime, then the effect of Roe v. Wade on arrest and homicide rates should be greater in absolute value for the states with greater abortion rates in the year immediately following Roe. I find no evidence of such an effect.
  • pp.23, 25

• In closing, however, it would be useful to pull back from issues of measurement and identification and ask more generally why a cohort effect associated with legalized abortion was not more evident in the data. I have two explanations. First, the actual number of unintended births averted, although signicant, was an order of magnitude less than the number of reported legal abortions in the early 1970s. Many analysts, including Donohue and Levitt treat reported abortions as an appropriate counterfactual for unintended childbearing. I have questioned this strategy because the availability of legal abortion may figure into decisions regarding sex and contraception, which weakens the link between abortion and fertility. Second, analysts, I being one, have tended to overestimate the selection effects associated with abortion. A careful examination of studies of pregnancy resolution reveals that women who abort are at lower risk of having children with criminal propensities than women of similar age, race and marital status who instead carried to term. For instance, in an early study of teens in Ventura County, California between 1972 and 1974, researchers demonstrated that pregnant teens with better grades, more completed schooling, and not on public assistance were much more likely to abort than their poorer, less academically oriented counterparts (Leibowitz, Eisen, and Chow 1986). Studies based on data from the National Health and Social Life Survey (NHSLS) and the National Longitudinal Survey of Youth (NLSY) make the same point (Michael 2000; Hotz, McElroy, and Sanders 1999). Indeed, Hotz, McElroy, and Sanders (1999) found that teens who abort are similar along observed characteristics to teens that were never pregnant, both of whom differ significantly from pregnant teens that spontaneously abort or carry to term. Nor is favorable selection limited to teens. Unmarried women that abort have more completed schooling and higher AFQT scores than their counterparts that carry the pregnancy to term (Powell-Griner and Trent 1987; Currie, Nixon, and Cole 1995). In sum, legalized abortion has improved the lives of many women by allowing them to avoid an unwanted birth. I found little evidence to suggest, however, that the legalization of abortion had an appreciable effect on the criminality of subsequent cohorts.
  • pp.25-26

"The Supreme Court may toss Roe. But Congress can still preserve abortion rights" (June 7, 2021)

Neal Kumar Katyal (June 7, 2021). "The Supreme Court may toss Roe. But Congress can still preserve abortion rights". The Washington Post. Archived from the original on March 19, 2022.

• The Supreme Court’s recent decision to accept a major abortion case out of Mississippi has led to fear among many Americans that Roe v. Wade will be overruled next year. There is some chance of this — but that’s why it is crucial to understand that reproductive rights do not depend only on the justices.
  Here’s the thing: Congress can, right now, by simple majority vote, protect those rights and nullify any threat posed by the Mississippi case or any other.
  A year ago, when the last abortion case reached the high court, Chief Justice John G. Roberts Jr. cast the deciding vote to invalidate Louisiana’s abortion restrictions. Roberts surprised many by joining the four justices appointed to the court by Democratic presidents, one of whom was Ruth Bader Ginsburg. Today, however, Justice Amy Coney Barrett occupies the seat Ginsburg once did, leading some who support abortion rights to predict doom from the Mississippi case. Predictions are always tough in this business, but the far more important point is that this focus on the Supreme Court is misplaced. Reproductive rights need not depend at all on what the court does with Roe.
• In this sense, Roe is unique — it occupies a role in Senate confirmations unlike any other case. If 50 is good enough to confirm a justice for life and against Roe, it should be good enough to democratically enshrine Roe into law, too. All it takes is 50 senators to sidestep the filibuster (or return it to its original roots, like a speaking filibuster) for this particular piece of legislation. And especially when such legislation is designed to preserve the status quo over reproductive rights and codify five decades of understandings, it is hard to see how senators representing a small fraction of the United States should be able to block the popular will.
• Citizens can easily feel disempowered when issues they care about are reduced to analyzing the proclivities of nine people in Washington sitting in black robes. Since 1973, the questions about reproductive rights have been dominated by the court, not Congress. But now we have an opportunity to recalibrate the balance and guarantee reproductive justice for Americans in every state. We don’t need the court to protect these rights. We just need a majority vote in Congress.

“Abortion and Constitution: United States and West Germany” (1977)

“Abortion and Constitution: United States and West Germany” by Donald P. Kommers, Notre Dame Law School, (1977)

• On 22 January 1973 the U.S. Supreme Court substantially curtailed the power of the American states to prohibit or limit the right of a woman to procure an abortion.' On 25 February 1975, the West German Federal Constitutional Court ruled that the German Parliament, by permitting abortions within the first three months of pregnancy, violated the constitutional rights of unborn children. These decisions provide us with an uncommon opportunity to compare the constitutional law of different nations on abortion. That the highest tribunals of two robust constitutional democracies and secular political cultures should decide differently the question of the unborn child's right to life under the constitutions of their respective countries must excite curiosity, no matter one's stand or stake in the abortion controversy.
  This article seeks to restate and assess the reasoning in support of the doctrinal results in the German and American cases and then to relate those results to the legal cultures and constitutional values of the two countries. Yet we cannot wholly separate the two decisions from their political contexts or from the debate, intense in both countries, about the role of the judiciary in their respective systems of government. In both countries the very propriety of judicial intervention in the policy-making process on abortion has been severely deplored. In fact, the issue of the judiciary's role in the making of abortion policy received considerable stress by the dissenting justices of both tribunals. Thus we cannot afford to ignore the issue here.
  • p.255

• [T]he Court remarked in Wade that litigation involving pregnancy, Which is "capable of repetition" is an exception to the federal rule that an actual controversy must exist at the time a case is decided on appeal. In Bolton the Court held that even licensed physicians consulted by pregnant women have standing to sue because they are within reach of the law's criminal provisions. These physicians "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief, asserted the Court. Thus, the abortion cases were capable of judicial resolution.
  Some of the Court's critics have noted that this apparent stretching of the standing rule is the result of significant enlargement of the Court's own perception of its institutional role. They would probably agree with Richard A. Epstein's assertion that "the Supreme Court today views constitutional litigation as a means of settling great conflicts of the social order." On the other hand, as Tocqueville once reminded us, all great political conflicts in America tend eventually to resolve themselves into constitutional questions. Failing to achieve their objectives by political means, proponents of liberalized abortion laws naturally gravitated to the judiciary, seeking victory on more favorable terrain. For purposes of this analysis, however, it is not the victory that is important, but rather the Court's own capacity to persuade a reasonably open mind of the validity and propriety of its ultimate ruling.
  • p.258

• There are several interesting steps in the Supreme Court's argument in Wade and Bolton. Speaking through Mr. Justice Blackmun, the Court first explored the historical origin of American state abortion laws. Its rather detailed excursion through history includes a description of abortion policy as reflected in Greek and Roman Law, the Hippocratic Oath, Common Law, English statutory law, and American law, followed by an analysis of the evolving policy and current attitudes of the American Medical Association, the American Public Health Association, and the American Bar Association. Without indicating precisely the relevance of its historical overview to the doctrinal point made later in the opinion, the Court then hastens into a discussion of the reasons justifying American criminal abortion statutes; after noting that most were passed in the latter half of the nineteenth century, the Court concludes that they were intended mainly for the purpose of protecting the woman from a dangerous medical procedure as well as for the purpose of preserving prenatal life.
  • p.264

• In White's view, the Court had merely substituted its values with respect to the ordering of priorities between mother and unborn child for those of the states, a policy which "should be left with the people and to the political processes the people have devised to govern their affairs. Justice Rehnquist, in an opinion which questioned the plaintiffs' standing, also attacked the sweeping invalidation of all restrictions on abortion during the first trimester of pregnancy. He denied that the right to privacy was involved in these cases and reproached the majority for ignoring the history of the Fourteenth Amendment whose adoption discloses, according to the Justice, no understanding in the minds of the framers that unborn children were not to be regarded as "persons" within its protection.
  • pp.265-266

• Three justices concurred in the majority opinion. Chief Justice Burger, displeased with the dissenting Justices' wide interpretation of the majority opinion, rejected the contention that the rule in the cases permits abortion on demand. Justice Douglas, hedging against a too-narrow interpretation of the rule and meeting Justice White's argument about the ordering of priorities between fetus and mother, found Georgia's statute constitutionally defective precisely "because it equates the value of embryonic life immediately after conception with the worth of life immediately before birth" and because the statute fails to include the psychological as well as the physical "health" of the woman as a permissible reason for the right of a woman to interrupt her pregnancy prior to viability. In Douglas' view, the right of a woman to procure an abortion was well within the marital privacy cases on contraception. The concurring opinion of Justice Stewart was a reluctant acceptance-a capitulation following his long resistance, beginning with the Connecticut Birth Control Case, to the doctrine of substantive due process-of the prevailing view that social policy is now subject to judicial review on substantive grounds. Rather than scouring the Constitution's hidden recesses for a nonexistent right of personal privacy, he squarely held on the basis of his reading of the precedents that the right of a woman to procure an abortion is part of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment.
  • p.266

• Let us restate the main constitutional rulings and principles of the German and American abortion cases. The American case holds that the right to privacy, founded upon the Fourteenth Amendment's concept of personal liberty, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. A zone of privacy is created within which the decision to procure an abortion is exclusively that of the pregnant woman and her physician. Accordingly, the state has no legitimate interest whatever in preventing abortions from occurring within the first trimester of pregnancy. Its only interest is seeing to it that abortions are performed under circumstances that insure adequate surgical procedures and care for patients. Yet the right to procure an abortion is not absolute, and so, following the first trimester of pregnancy, the state may begin to assert important interests in maintaining medical standards. It may assert these interests because an abortion performed in the second trimester is a greater medical risk than one performed in the first trimester. It is only in the last trimester, when the fetus becomes viable and potentially able to survive outside of the womb, that the state may promote its interest in protecting future life, but even during this period the unborn child may be destroyed, medical standards permitting, to preserve the life or health of the mother. What we have here is a constitutional policy on abortion based on the Court's conclusion that a fetus or unborn child is not a "person" within the meaning of the Fourteenth Amendment.
  • p.275

• [T]he presuppositions of Roe v. Wade are no less religious than those of the German Abortion Case. After all, the value of privacy is squarely rooted in the historical belief in man's spirituality, out of which grew a theory of personal autonomy.
  • p.279

• Thus, although the logic of Roe v. Wade leaves much to be desired, the result affirms themes central to a major tradition of American constitutionalism. The effect of that decision is to deny the individual states the right to consider, in shaping their abortion policies, the community's interest in protecting the fetus. In effect, the Court was saying that the question of whether a woman has the right to procure an abortion is not an issue to be effectively considered in the public realm. Thus, oddly enough, free speech cannot be used here to influence the development of public policy. The decision seems perfectly consistent with Madisonian liberalism: the constitutional order is to serve the individual and his interest. In the Supreme Court's Weltanschauung, society is not viewed as fundamentally communitarian in nature. Just as the apportionment cases see the individual voter as an autonomous political agent, Roe v. Wade sees the human person as an autonomous moral agent. A woman is thus entitled to separate herself from the community while the community is rendered powerless to act in its common defense for the purpose of safeguarding shared values. It is the Fourteenth Amendment concept of "liberty" that is given overwhelming significance in Roe v. Wade, to the virtual exclusion of countervailing considerations that might have been deemed to inhere in the related concepts of "person" and "life." As one writer noted: "The basic assumption of the whole [American] system is very clear: no partial community may impose its substantive vision of the good life on the whole community. On the level of the whole, our unity is formal, not substantive. ' 86
  In another sense, however, the Supreme Court did underscore the importance of unity, although not the unity or a community glued together by a moral consensus. In the Court's view, this moral consensus does not exist, and the Court is probably correct here. It appears that Justice Blackmun's dreary recitation of the history of moral and philosophical thinking about abortion was actually intended to illustrate this lack of consensus. What other reason could there have been for his long prologue to the merits of the case? Surely it provided no theological or scientific basis for dividing pregnancy into three periods and formulating different constitutional rules pertaining to each. The Court's interest seemed to lie in the promotion of social peace-a policy of "live and let live"-best achieved through the constitutional right of privacy.
  • pp.282-283

• In a pluralistic society composed of a multitude of belief systems, the Court seems intent on keeping certain issues-those likely to be religiously or theologically divisive-out of the forum of effective public discussion. By not allowing the abortion question to be legislatively determined, the Court has effectively "depoliticized" the issue. If the people's representatives are incapable of acting on an issue after its exhaustion by discussion, it makes no sense, politically, to talk about it. Lemon v. Kurtzman, where the Court invalidated a Pennsylvania statute reimbursing church-related schools for costs of teachers salaries and textbooks in specific secular subjects, is an even clearer illustration of the Court's attempt to "depoliticize" a public issue and, incidentally-to return to the anti-communitarian theme-to erode the significance of religion as an intermediating agency between the individual and mass society. Remarked Chief Justice Burger: "Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. The potential divisiveness of such conflict is a threat to the normal political process." Thus is social peace achieved.
  This analysis is a rather circumspect way of saying that the result in Roe v. Wade not only conforms to the individualistic ethic at the heart of the conventional "Madisonian" interpretation of American constitutionalism, but is also understandable in the light of the pluralistic nature of American society.
  • p.283

• Measured by any logical test that we would wish to apply, the constitutional reasoning in the German Case is more tightly argued and more analytically precise than the argument advanced in Roe v. Wade. The German opinion is carefully crafted and composed in measured language, leaving little room for doubt or ambiguity with regard to its meaning. On the other hand, the privacy argument in Roe v. Wade is confusing and even contradictory. In the end, the American decision does not lend itself to a clear and unambiguous interpretation. Justice Douglas was even impelled to write a concurring opinion to hedge against a too narrow interpretation of the Court's opinion, studiously avoiding, for example, any reference to "potential life," a concept that Blackmun introduced as a limitation of privacy. Chief Justice Burger, on the other hand, concurred in what amounted to a near dissent by warning against a too broad interpretation of the opinion and by deploring Blackmun's use of current medical knowledge in support of the opinion. Of course, eroded logic is one of the costs of the high value that the justices as well as Americans generally place on the practice of individualized opinion writing on the Supreme Court. In Germany, such personalized expressions of opinion remain a clear exception to the rule. The law-certainly the highest law of the land-ideally speaks with one voice in Germany's legal culture, underscoring both the authority and the unity of the law.
  • p.284

• The German and American Abortion Cases are both products of political regimes in which judicial review plays a central role in the process of government. The enlightened conscience of a future generation may condemn Roe v. Wade in tones that we now reserve for the despised Dred Scott case. Or it may regard Roe v. Wade as an- other step on man's road to freedom. Or men may take a middle position, much like the German Court, and seek a balancing of rights. Whatever the future may hold in this regard, the magnitude of the power that certain constitutional democracies have conferred on their courts of law must be clear to the men of this generation. The reversal of legislative policies as important to society as American state anti-abortion laws and the German Abortion Reform Act is a very serious matter. But the judicial overriding of legislative policy on the ground of constitutionality is apparently one of the prices that citizens within a constitutional regime that confers such authority on its courts are willing to pay.
  • p.285

"Forced Labor: A Thirteenth Amendment Defense of Abortion" (1990)

"Forced Labor: A Thirteenth Amendment Defense of Abortion", Archived February 25, 2009, by Andrew Koppelman, Northwestern Law Review, Vol. 84, p. 480 (1990).

• Roe v. Wade is an unpersuasive opinion, and the root of its unpersuasiveness is the Supreme Court’s failure to ground its decision, that abortion is a fundamental right, in the text of the Constitution. Because the Court ignored its “obligation to trace it premises to the charter from which it derives its authority” commentators have felt entitled to conclude that a woman’s right to choose whether or not to carry a pregnancy to term “is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure.” Some have concluded that the decision is so completely devoid of any foundation in the Constitution that it ought to be overruled, and the authority to ban or permit abortion returned to the states.
  • pp.480-481

• Even many of Roe’s friends want to rewrite it, but so far no attempt to do so has been wholly successful. Those who have followed the Court’s lead by emphasizing the exceedingly personal nature of the woman’s decision have had as little success at locating her privacy in the text of the Constitution as the Court itself did. Philip Bobbitt’s proposed principle, tat “[g]overnment may not coerce intimate acts,” is appealing, but it appears nowhere in the document. Hermann and Barzelay’s defense of Roe, which has been called “the principal scholarly defense of that opinion,” largely concedes the critics’ point by relying heavily on the thesis (not explicitly adopted by Roe itself) that constitutional law need not bear any direct relationship to the text of the Constitution. Many lawyers and judges endorse that thesis, but it is dangerous for a defense of abortion to rely upon it exclusively, given the increasingly influential view that “[t]he Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.” Moreover, the privacy argument has internal tensions, because “[t]he pregnant woman cannot be isolated in her privacy.” Unlike the liberties protected in the other privacy cases, abortion is arguably not private at all, because “the termination of a pregnancy typically involves the destruction of another entity: the fetus.” A privacy-based defense of abortion seems to depend on the premise that the woman’s choice affects only herself-in other words, that the fetus is not a person. And this premise is, of course, impossible to prove.
  • pp.481-482

• Footnote 4 Webster, 109 S. Ct. at 2067 (Blackmun, J., concurring in part and dissenting in part) (“The simple truth is that Roe would not survive the plurality's analysis.” And (id. At 3058 (opinion of Rehnquist, C.J.) (“This case . . . affords us no occasion to revisit the holding of Roe . . . and we leave it undisturbed.”) and id. At 3060 (O’Connor, J., concurring in part and concurring in the judgment) (“there is no necessity to accept the State’s invitation to reexamine the constitutional validity of Roe v. Wade”). Probably the bet summary of Webster’s effect is Justice Scalia’s observation that the decision “preserves a chaos that is evident to anyone who can read and count.” Id. At 3065 (Scalia, J. concurring in part and concurring in the judgment). Since Webster purports to leave it undisturbed, this Article will take the Court at its words and presume that Roe is still good law.
  • p.481

• The most impressive attempts to anchor the right to abortion in the Constitution’s text have been built on the equal protection clause of the fourteenth amendment. These have argued that the real issue in the abortion controversy is not privacy, but the equality of women Sylvia Law has shown how sex equality concerns are implicated when laws outlawing abortion “impose upon women burdens of unwanted pregnancy that men do not bear,” and correctly observed that “[n]othing the Supreme Court has ever done has been more concretely important for women than its decision in Roe.” The difficulties of this argument stem from the indeterminacy of sex discrimination doctrine: the Court has never made clear what the “intermediate scrutiny” to which sex-based classifications are subject amounts to, so it is difficult for a defense of abortion that relies upon it to secure enough doctrinal traction to get where it wants to go.
  • p.482

• Bailey’s libertarian reading go the amendment, in which the right to freedom outweighs any other consideration, may seem unsatisfying, both morally and as an account of the amendment’s purpose. Its vision of society may appear more harmonious with the constitutionalization of laissez-faire individualism in Lochner v. Newyor,53 decided six years before Bailey, than with modern sensibilities. The modern administrative state needs to interfere with traditional individual liberties in myriad ways, some of them vitally linked to the promotion of women’s equality. This way be why, when an amicus in Roe relied on Bailey’s libertarianism to argue for a thirteenth amendment right to abortion, the Court expressly rejected the view “that one has an unlimited right to do with one’s body as one pleases”
  • pp.493-494

• Finally, the abortion case resembles that of Bailey in that Radin’s double bind arises again. To some extent, inalienability provides a real as well as a symbolic remedy for women, because at the same time that the state refuses to enforce the “agreement” to accept the risk of pregnancy, it effectively alters the initial distribution of entitlements. When abortion is illegal, a woman is entitled to sex only if she is also willing to accept the risk of coerced motherhood; the right to abortion gives her both the right to refrain from procreation and the right to sex, so that she no longer has to trade one for the other. But the double bind persists in another form. All the pressures that force women to submit to unprotected sex remain in place. In the face of such pressures, the prospect of irreversible pregnancy and its legal consequences for men did give women some power in their sexual negotiations. Readily available abortion deprives them of this power, thereby rendering them more vulnerable to sexual exploitation.119 Thus, just as Bailey alone was insufficient to guarantee blacks’ freedom and equality, Roe alone is insufficient to guarantee the freedom and equality of women. Without more, both decisions harmed some of those they purported to help. They were, at best, a step in the right direction.120
  • pp.507-508

• [A] law forbidding abortion cannot be sustained if the state is unable to carry the burden of persuading the court that a fetus is, or should be considered to be, a person.154 While its opinion has many weaknesses, the Roe Court was surely correct to conclude that this burden had not been met.
  • pp.515-516

• The right to abortion has become taken for granted by many. Whatever the deficiencies of Roe’s original reasoning, “millions of women, and their families, have ordered their lives around the right to reproductive choice, and . . . this right has become vital to the full participation of women in the economic and political walks of American life” An upheaval in the nation’s fundamental law requires a more compelling justification than the bald fact that were the present personnel of the Court writing on a blank slate, they would construct the law differently. The point of adhering to precedent is that the public deserves protection from such precipitous judicial revolutions; that is why before the ordinary rule of “stare decisis” is rejected, “the unconstitutionality of the course pursued” should be “made clear.” Because such clarity is simply unavailable in the abortion controversy, Roe should remain the law.
  • pp.534-535

"Testimony Before Subcommittee on the Constitution, Judiciary Committee, U.S. House of Representatives" (August 21, 2008)

Kmiec, Douglas. "Testimony Before Subcommittee on the Constitution, Judiciary Committee, U.S. House of Representatives" (April 22, 1996), page 97, Archived August 21, 2008

• With reference to internal Supreme Court memoranda relating to the drafting of Roe v. Wade made public by Thurgood Marshall, but to my knowledge, not previously analyzed, it will be illustrated how, by Justice Blackmun's own admission, the holding in Roe is more "arbitrary" preference than constitutional interpretation.
• Despite the Supreme Court's putative "reaffirmation" of part of Roe in Planned Parenthood v. Casey, these opinions remain highly contentious because the constitutional premises upon which they rest are so wholly erroneous as to be non-existent in law. The writer Santyana enjoins us to learn from history.
• None of the Justices claim there is a specific textual guarantee of abortion to be found anywhere in the constitutional document. Nor does the abortion claim find legitimacy within the background principles of common law out of which the American Constitution emerged. As Bracton records, and the draft opinions within the internal Marshall papers indicate the Justices knew, abortion has little common law support, and was clearly thought by some to be homicide. [II Bracton, On the Laws and Customs of England 341 (Thorne ed. 1968), a citation to which can be found in Justice Blackmun's 4th circulated draft in December 1972]. Because of the more rudimentary nature of science in the 18th and 19th centuries, the common law drew a distinction between abortions before and after quickening [16 to 18 weeks], but under English codification in 1803 both were criminal only in different degrees. When medical science advanced, the quickening distinction receded, and penalties for all abortions increased. In 1868, when the 14th Amendment was adopted, statutory prohibitions or restrictions on abortion were commonplace. Twenty-eight states of the then 37 and 8 territories banned or limited abortion. [J. Mohr, Abortion in America at 200 (1978)].
  The Court's drafts also reveal that the decision was not being guided by ancient precepts of medical ethics. In this respect, the Hippocratic Oath dating back three to four hundred years before Christ, had doctors pledging that they "will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner . . . not give to a woman a pessary to produce abortion." [The 4th circulated draft of Justice Blackmun's opinion in Roe cites the Hippocratic Oath, but cavalierly dismisses it on the basis of academic writing that found it to be held as true only within Pythagorean Greek culture. Why the Pythagoreans should be so ill-treated, or deemed uninfluential, is not explained. Indeed the Oath, which coincides with prevalent Christian belief since the end of antiquity, became the "nucleus" of medical ethics.]
• While many of us associate the abortion right with Roe's author, Justice Harry Blackmun, mid-December 1971 correspondence actually identifies William O. Douglas to be the strongest advocate for abortion as an extension of his earlier opinion in Griswold v. Connecticut, 381 U.S. 479 (1965) invalidating a Connecticut law limiting the use of artificial contraception. (Letter from William O. Douglas to Chief Justice Warren Burger, dated December 18, 1971. Following oral argument, the Justices discuss cases and take a straw vote. The senior justice in the majority [or the Chief Justice if he is in the majority] then usually assigns the opinion writing. Chief Justice Burger reports that the discussion following the first [Roe] argument was so confused, that there were "literally not enough columns to mark up an accurate reflection of the voting." [Letter from Warren Burger to William O. Douglas, dated December 20, 1971].
  Out of expedience, perhaps, Burger assigned the draft writing to Blackmun, his fellow Minnesotan. This infuriated Douglas, since Blackmun was perceived by Douglas as then favoring state abortion restriction. (Blackmun had been appointed to the Court by President Nixon about a year earlier]. By mid-January 1972, Blackmun had looked at the cases and found the issue so unclear that he urged the Chief. Justice to ask for re-argument in both Roe and Doe. (Letter from Harry Blackmun to Warren Burger, dated January 18, 1972].
• Douglas steadfastly resisted reargument. Matters dragged on nonetheless and by mid-May, 1972, Justice Blackmun tried to rid the Court of the issue on procedural grounds -- namely, that the Texas statute was too vague to be enforced. He wrote: "I think that [vagueness] would be all that is necessary for disposition of the case, and that we need not get into the more complex Ninth Amendment issue." [Memorandum to Conference from Harry Blackmun, dated May 18, 1972]. This did not suit Justice Douglas, who argued that there were at least 4 votes [enough for a majority on an understaffed Court] that "an abortion [may] be performed by a licensed physician within a limited time after conception." (Letter from William O. Douglas to Harry Blackmun, dated May 19, 1972]. Douglas must have talked with Justice Brennan, because at about the same time Brennan by letter gives his support for the abortion proposition in almost identical language; namely, that "an abortion be performed by a licensed physician within some limited time after conception." [Letter from William Brennan to Harry Blackmun, dated May 18, 19721.
  Several things are striking about this internal correspondence beyond, of course, Justice Blackmun's change of posture from assigned draftsman to abortion advocate and the overall bewilderment of the Court after the case was first argued. First, there was considerable internal pressure to get a decision, perhaps before new members of the Court might change the outcome. [Nixon appointees' Lewis Powell and William Rehnquist replaced Black and Harlan; as it later turned out, Powell and Rehnquist split over the issue]. Douglas, in particular, seemed especially agitated to push the opinions out, writing "I feel very strongly that [Roe and Doe] should not be reargued. . . I hope the 5 can agree to get the cases down this Term, so that we can spend our energies next Term on other matters." [Letter from William O. Douglas to Harry Blackmun, dated May 31, 1972]. Second, the internal correspondence is almost completely devoid of what one could call constitutional argument. Instead of a careful examination of the common law or argumentation premised upon the textual provisions of the Constitutional document, there is merely vote counting and assertion. Third, taking Justices Douglas and Brennan at their word, the initial 4-person majority envisioned only a very narrowly-worded abortion privilege -- one that would be confined to a limited time after conception. The last point is particularly striking in light of President Clinton's insupportable claim and recent veto that the abortion license formulated by the Court extends even to the most graphically hideous procedure and to the moment of birth.
• By late May, Justice Blackmun had fully joined the Douglas-Brennan circle [which also included Potter Stewart and Thurgood Marshall] in favor of creating an abortion right. [Memorandum to the Conference, dated May 31, 1972]. Justice Blackmun's memoranda reflect highly legislative considerations almost exclusively. For example, he proposes to invalidate most of the Georgia statute, except maybe those requiring an abortion to occur in a licensed and accredited hospital. [Memorandum to the Conference from Harry Blackmun, dated May 25, 1972]. Demonstrating that none of these specific invalidations were rooted in constitutional text or history, however, Justice Blackmun holds open the possibility, like a good legislative lobbyist, that may be "some of you may wish to take that step, too [that is, allowing abortions outside hospitals]." [Id., the Court did take that step.] The particulars of the Court's legislative considerations still tangled, Justice Blackmun, at month's end, urges that Roe and Doe be reargued. [Memorandum to Conference from Harry Blackmun, dated May 31, 1972].
• The cases were reargued, but only over Justice Douglas' extraordinary and harshly written protest. [An internal Letter from William O. Douglas to Warren Burger, dated June 1, 1972, threatens "[i]f the vote of the Conference is to reargue, then I will file a statement telling what is happening to us and the tragedy it entails." Justice Douglas filed a published written dissent to setting the cases over for reargument]. Perhaps, the key to understanding why the Court, notwithstanding Douglas' protestations, pursued reargument lies with the gentlemanly prodding of new Justice Powell. As mentioned, Powell had recently joined the Court, and he asked politely for reargument, pointing out that "Harry Blackmun, the author of the (draft] opinions, thinks the cases should be carried over and reargued next fall. His position, based on months of study, suggests enough doubt on an issue of large national importance to justify the few months delay." [Memorandum to the Conference from Lewis Powell, dated June 1, 1972].
• Except for the exchange of personal opinion or medical speculation, there is no evidence of constitutional study or consideration. Only Chief Justice Burger attempted to anchor the discussion in the Constitution, expressing the patent federalism objection that "the states have,..., as much concern in this area as in any within their province; federal power has only that which can be traced to a specific provision of the Constitution." [Memorandum to the Conference from Warren Burger, dated May 31, 1972]. There is little other argument or discussion in the internal correspondence touching upon the substance of constitutional law.
• In November, Harry Blackmun writes the final drafts of opinions that today we know rather infamously as Roe v. Wade, 410 U.S. 113 (1973) and Doe v. Bolton, 410 U.S. 179 (1973). Again, no real discussion of law occurs in the internal deliberations; instead, there is the startling admission from Justice Blackmun in the presentation of his near final draft that "you will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary." [Memorandum to Conference from Harry Blackmun, dated November 21, 1972, emphasis added].
  So, there you have it. A confession by the principal author of the most infamous decision in this century, and perhaps after Dred Scott, ever, revealing that arbitrary choice -- not discernment of the law of the land -- accounts for the result in Roe. Law, legal history, constitutional allocations of power, all ignored. The abortion right derives not from background principles of common law; not in the first principles of our constitutional republic; not as a result of careful parsing of constitutional text.
• Between late November and the end of the year, Blackmun observes how he's thinking about moving what he called previously the "critical" line from the end of the first trimester to viability. He admits that he chose the end of the first trimester largely for marketing reasons, writing: "I selected the earlier point because I felt that it would be more easily accepted (by us as well as others) . . ." [Memorandum to the Conference from Harry Blackmun, dated December 11, 1972]. He is hesitant, however, if moving the line would cost him votes on the merits. ["I would be willing to recast the opinions at the later date (viability instead of the end of the first trimester), but I do not wish to do so if it would alienate any Justice who has expressed to me, either by writing or orally, that he is in general agreement, on the merits, with the circulated memorandum." [Id.]
• Justice Blackmun writes: "many pregnant women, particularly younger girls, who may refuse to face the fact of pregnancy and who, for one reason or another, do not get around to medical consultation until the end of the first trimester is upon them or, indeed, has passed. [Memorandum to the Conference from Harry Blackmun, dated December 11, 1972].
• A few of the justices were squeamish. Justice Potter Stewart wondered "about the desirability of the dicta being quite so inflexibly 'legislative,' suggesting that he might extend to the States more latitude to make policy judgments." [Letter from Potter Stewart to Harry Blackmun, dated December 14, 1972]. The flexibility was not to be, though Justice Blackmun in a small concession urged that the "cases . . . come down no later than the week of January 15 to tie in with the convening of most state legislatures." [Memorandum to Conference from Harry Blackmun, dated December 15, 1972]. A professional courtesy perhaps to fellow legislators.
  Of course, a Court that engages in practices well beyond its Article III function to decide "cases or controversies" under the principles and usages of established law, needs its own press office to put, as political figures say today, the proper "spin" on matters. Writing that he anticipated the headlines that will be produced over the country when the abortion decisions are announced," Justice Blackmun prepared an 8-page press release personally. [Memorandum to the Conference, with press attachment, from Harry Blackmun, dated January 16, 1973].
• It was, after all, Justice Blackmun, himself, in Casey, who echoed the sentiment of the plurality that "a decision to overrule Roe 'would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to a rule of law." 112 S.Ct. at 2845. In truly Orwellian terms, Justice Blackmun then scowled at the four dissenting justices, with the comment: "What has happened today should serve as a model for future Justices and a warning to all who have tried to turn this Court into yet another political branch. Id.
  This is a skeptical age and for those more generally inclined to be distrustful of public figures and events than myself the history recounted here may not impart the same level of surprise, as it disappointingly conveys to me. In light of these revelations, however, I now better understand Chief Justice Rehnquist's strong criticism of Justice Blackmun for "mak[ing] . . . decisions (in the abortion context] with a view toward speculative public perceptions," Casey, 112 S.Ct. at 2866 (Rehnquist, C.J., dissenting. Possibly, the Chief Justice merely was recalling from internal memoranda that Roe was constructed largely upon personal preferences and an accompanying press release. This may also explain why Justice Scalia, who was not on the Court when Roe was decided, could plaintively wonder in dissent in Casey why the Court skirted the fundamental question of "how wrong was the decision on its face?" 112 S. Ct. at 2875.
• The Court's decision in Roe effectively blocked the state legislative process. In the years between Roe and Casey, few state laws survived the Court's imposed value preference allowing the application of lethal force to be applied against the unborn. In Casey, the Court slightly loosened its grip, and brief waiting periods, informed decisionmaking, minor reporting requirements, and parental consent with judicial by-pass, were tolerated by the Court.
  It seemed, for one transient moment, that Justice Scalia may have been a bit too pessimistic when he wrote that "Roe's mandate for abortion-on-demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level." 112 S.Ct. at 2882.

"American Constitutional Law: Essays, Cases, and Comparative Notes" (2004)

Kommers, Donald P.; Finn, John E.; Jacobsohn, Gary J. (2004). "American Constitutional Law: Essays, Cases, and Comparative Notes". Rowman & Littlefield. ISBN 978-0-7425-2687-7.

• As one of the most restrictive abortion laws in the nation, the Texas law, passed in 1858, prohibited abortion unless it was necessary to save the life of the mother. Roe, unmarried and pregnant, challenged the law. She claimed it violated her constitutional right to privacy and the equal protection clause of the Fourteenth Amendment.
  • p.595

• 1. The Court’s decision in Roe touched off a national controversy over the politics of abortion that shows no signs of abating. Similarly, Roe sparked a continuing debate among scholars about the legitimacy of privacy as a constitutional right and the role of the Court in the political process. Nearly a quarter century after the decision, perhaps we should reconsider why the decision is so controversial. What, precisely, does Roe stand for?
  In the issue in Roe about whether we, males and females alike, have the right to control our bodies? Is the issue whether women should be autonomous with regard to decisions they make about matters of reproduction? Or is the issue about the question of when life begins? About whether a fetus is a “person” in a constitutional sense? About patriarchy and gender discrimination?
  • p.602

• Alternatively, the issues in Roe might have more to do with the question of who bears responsibility for addressing such momentous matters. Should questions about reproductive autonomy be left solely with individuals, or does the community (or the state) have a legitimate interest in such decisions? Is a woman’s relationship with the fetus a matter over which a community ought to have some say, perhaps because such issues raise questions about the conditions of membership in the community?
  As is obvious from the various opinions in Roe and our questions here, much of the controversy surrounding the case revolves around the role of the Supreme Court in the abortion controversy. The dissents by Justices White and Rehnquist castigate the majority for its “usurpation” of the legislative process and the powers of the people acting through their state governments. Clearly such criticisms, shared by many students of the Constitution, rest upon a particular understanding of the relationship between the democratic process and judicial protection of individual liberties. Do the opinions in Roe address this tension satisfactorily.
  • p.602

• Roe also nicely illustrates how individual liberties are tied to issues of constitutional structure and architecture. Justice White, for example, complained that “The upshot of the majority’s decision] is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. . . . “ Implicit in Justice White’s criticism is concern for the constitutional value of federalism. Roe essentially deprives the states of the ability to take part in a continuing public dialogue over the issues raised by abortion. Remember that prior to Roe, many states had already relaxed their tough anti-abortion laws. Would this trend have continued absent Roe?
  • p.602

“Joe Biden Dropped His Support for the Hyde Amendment. Here's How It Became a Flashpoint on Abortion” (June 7, 2019)

Tara Law, “Joe Biden Dropped His Support for the Hyde Amendment. Here's How It Became a Flashpoint on Abortion”, Time Magazine, June 7, 2019

• For years, the Hyde Amendment represented a rare point of bipartisan consensus on abortion in Congress, with lawmakers from both parties agreeing that taxpayer money should not be used to fund abortions, with some exceptions.
  But with abortion rights supporters increasingly concerned about the future of Roe v. Wade, that consensus is over.
• Biden has changed his position on the issue during his long tenure in the Senate.
  In 1981, he supported a constitutional amendment that would enable states to overturn Roe v. Wade. In his 2007 book, Promises to Keep, he wrote that while he is “personally opposed to abortion,” he didn’t feel he had the “right to impose [his] view on the rest of society.”
  He said at that time that he would not support federal funding for abortion, but he was against a constitutional amendment to prohibit the procedure.
• Even if the Hyde Amendment is revoked, Ziegler and Bridges say that the provision has had a major influence on the anti-abortion movement.
  Bridges says that the amendment also provided “guidance” to states that wanted a straightforward way to curb abortion funding.
  “It’s been very impactful as a model of how funds can and should be spent on abortion care,” he said.
  Ziegler said that the amendment showed the anti-abortion movement early on that there were other ways to limit access to abortion without mounting a direct attack on Roe v. Wade.
  “For years, the anti-abortion movement’s strategy has been to kind of chip away at Roe and limit access, instead of the more direct attacks that we’ve seen lately. And the Hyde Amendment was the first successful attempt to do that, and it created a road map that really lasted for decades,” says Ziegler.

"If Roe Falls, Is Same-Sex Marriage Next?" (May 8, 2022)

Liptak, Adam (May 8, 2022). "If Roe Falls, Is Same-Sex Marriage Next?". The New York Times. Archived from the original on May 8, 2022. Retrieved May 30, 2022.

• WASHINGTON — When the Supreme Court heard arguments in December over the fate of the constitutional right to abortion, it was already clear that other rights, notably including same-sex marriage, could be at risk if the court overruled Roe v. Wade.
  The logic of that legal earthquake, Justice Sonia Sotomayor predicted, would produce a jurisprudential tsunami that could sweep away other precedents, too.
  The justices’ questions on the broader consequences of a decision eliminating the right to abortion were probing but abstract and conditional. The disclosure last Monday of a draft opinion that would overturn Roe, the 1973 decision that established a constitutional right to abortion, has made those questions urgent and concrete.
• The opinion, by Justice Samuel A. Alito Jr., provided conflicting signals about its sweep and consequences. On the one hand, he asserted, in a sort of disclaimer that struck a defensive tone, that other rights would remain secure.
  “To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right,” he wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
  On the other hand, the logic of the opinion left plenty of room for debate.
  It said a right to abortion cannot be found in the Constitution or inferred from its provisions. The same could be said, using the draft opinion’s general reasoning, for contraception, gay intimacy and same-sex marriage, rights established by three Supreme Court decisions that were discussed at some length in the argument in December.
• At the argument, Justice Sotomayor sparred with Scott Stewart, Mississippi’s solicitor general, who was defending a state law banning most abortions after 15 weeks of pregnancy.
  “I’m not trying to argue that we should overturn those cases,” she said of the other decisions. “I just think you’re dissimilating when you say that any ruling here wouldn’t have an effect on those.”
  Mr. Stewart tried to distinguish the three other rulings from Roe, saying they were clearer, had given rise to more public reliance and did not “involve the purposeful termination of a human life.”
  Justice Sotomayor was unimpressed, saying all of the cases were grounded in the same kind of constitutional reasoning. “I’m not sure how your answer makes any sense,” she said.
• “Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception and marriage,” Justice Alito wrote, “but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’”
• “None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion,” he wrote. “They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.”
• In general, Justice Alito wrote that he was wary of “attempts to justify abortion through appeals to a broader right to autonomy,” saying that “could license fundamental rights to illicit drug use, prostitution and the like.”
  “None of these rights has any claim to being deeply rooted in history,” he added, a point that could be made about same-sex marriage, too.
• The Biden administration, in its brief supporting the abortion providers challenging the Mississippi law, said that overruling Roe and Casey “would also threaten the court’s precedents holding that the due process clause protects other rights, including the rights to same-sex intimacy and marriage, to interracial marriage and to use contraception.”
  “None of those practices is explicitly mentioned in the Constitution,” the brief said, “and most of them were widely prohibited when the 14th Amendment was adopted.”

“Roe v Wade and American Fertility” (February 1999)

“Roe v Wade and American Fertility” by Phillip B. Levine, Douglas Staigei, Thomas J. Kane, and David J. Zimmerman, American Journal of Public Health, Volume 89, Number 2, February 1999

• Results. States legalizing abortion experienced a 4% decline in fertility relative to states where the elgal status of abortion was unchanged. The relative reductions in births to teens, women more than 35 years of age, non-White women, and unmarried women were considerably larger. If women did not travel between states to obtain an abortion, the estimated impact of abortion legalization on birth rates would be about 11%
  Conclusions. A complete recriminalization of abortion nationwide could result in 444 000 additional births per year. A reversal of the Roe v Wade decision leaving abortion legal in some states would substantially limit this impact because of the extent of travel between states.
  • p.199

• January 1998 marked the 25th anniversary of the Supreme Court decision in Roe v Wade (410 US 113) that legalized abortion nationwide. Since that decision, abortion policy has remained one of the most contentious of issues in American politics; as recently as 1992, the Supreme Court came within 1 vote of reversing the Roe decision (Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833). Although positions are largely developed on philosophical and moral grounds, the empirical magnitude of the effect of legal access to abortion is both important and rarely studied. Our purpose in this article is to estimate the effects of abortion legalization on fertility rates in the United States.
  • p.199

• Surprisingly, little research has looked directly at the impact of Roe v Wade on births. The work that has been done has focused on the experience of those states that legalized abortion prior to Roe. However, the experience of these states may result in a misleading impression of the impact of Roe for several reasons. First, since abortion as already effectively legalized in a handful of states, the effect of Roe may have been less pronounced than the effect of initial legalization because many women were already traveling across state lines to receive abortions. Second, women in states where abortion as not legalized until the 1973 court decision may have been less likely to make use of abortion services, even if they were available, than women ins states that chose to legalize abortion earlier Third, many of the evaluations of legalization simply y compared birth rates before and after legalization, thereby conflating the effect of abortion legalization with ongoing declines in fertility around that time that may have been attributable to changes in the availability of contraception, shifts in social attitudes, improved labor market opportunities for women, and the like.
  • p.199

• Our findings indicate that states that legalized abortion prior to the 1973 Roe v Wade Supreme Court ruling experienced a 4% decline in fertility rates relative to other states. Following the Roe decision, fertility rates in these other states fell by a similar magnitude relative to fertility rates in states that had legalized abortion earlier. The relative reductions in births to teens, women more than 35 years of age, non-White women, and unmarried women were considerably larger. In addition, we found that travel between states to obtain an abortion was significant. Estimates obtained from comparisons between early repeal states and distant states (where travel to obtain an abortion as least likely) indicate that abortion legalization reduced births by 11%. These findings imply that a nationwide prohibition of abortion would have a considerably larger impact on births than would a repeal of Roe v Wade in which abortion remained legal in a handful of states.
  • pp.199-200

• Before 1967, abortion was illegal nationwide except when necessary to save the life of the mother. Between 1967 and 1970, 12 states implemented modest reforms legalizing abortion s under special circumstances such as rape or incest. Abortion was fully legalized in 4 states (New York, Washington, Alaska, and Hawaii) in 1970 and became widely available in California at about that time after a 1969 state Supreme Court ruling. Following the 1973 US Supreme Court decision in Roe v Wade, abortion became legal in all states.
  • p.200

• Figure 1 displays the difference in fertility rates between repeal states and states with no law change. The pattern shows that differences were roughly constant through 1970. A sharp drop of about 6% observed in 1971 remained through 1973, indicating that fertility rates fell in repeal states relative to states with no law change during this period. Through 1974/75, the difference narrowed, and beginning in 1976 there were few differences between the states. The relative decline in fertility rates in repeal states occurred in exactly the years in which abortion was legal only in repeal states. The partial rebound in 1974/75 may indicate that abortion access in states affected by Roe v Wade increased less quickly following this decision relative to the rapid introduction of abortion services in repeal states in 1970. (A corresponding figure for reform states vs states with no legal changes showed no obvious difference in fertility rates over time and for purposes of brevity is not displayed here.)
  • p.200

• The results reported in Table 1 indicate that abortion legalization had an effect on fertility rates among all women. Overall, births in repeal states fell by 4% relative to states with no law change between 1971 and 1973. No statistically significant difference in births between the 2 sets of states was observed in 1974;75 or from 1976 to 1980. In addition, these results provide no evidence that modest abortion reforms reduced birth rates, since the estimated differences between fertility rates in reform states and states with no law change were small in magnitude and imply that, if anything, modest reforms were associated with increased birth rates.
  Table 1 also reports estimates from similar models for fertility among women in different population subgroups. Results indicate that abortion legalization reduced the relative fertility rates of teens and women 35 years of age and older by 12% and 8% respectively, but only by 2% for women between 20 and 34 years of age. Estimates show that births to non-White women in repeal states (vs states with no law change) fell by 12% just following repeal, more than 3 times the effect on White women’s fertility. Nonmarital births fell by almost twice the rate of marital births (5.5% -significant at the 10% level] vs 3.1%) in repeal states between 1971 and 1973 relative to states with no law change. All of these differences disappeared in the years following Roe v Wade.
  • p.200

• The results indicate that travel between states to obtain abortions was important. Births in repeal states fell by almost 11% relative to births in nonrepeal states more tan 750 miles away but only by 4.5% relative to births in nonrepeal states more than 750 miles away but only by 4.5% relative to births in states less than 50 miles away and those in state between 250 and 750 miles away. Although not reported here, similar evidence was obtained indicating that travel was roughly equally common across all age groups, including teens. Assuming that no travel took place from distant states, these estimates for all births indicate that abortion legalization in New York, California, and a few other state sin 1970 reduced the fertility rate in these states by almost 11%. The Roe v Wade decision had a similar effect on births in this group of distant states in t eh years following 1973.
  These estimates can also e used to examine the extent to which birth rates fell between 1971 and 1973 in nonrepeal states as the result of travel or repeal states to obtain an abortion. To do so, we again assumed that women in states more than 750 miles away from repeal states did not travel to obtain abortions. Then the difference between the estimated reduction in birth rates in repeal states relative to that in states less than 250 miles away and states more than 750 miles away (6.32%) represents the extent to which births fell in the closest nonrepeal states owing to travel. A similar exercise for nonrepeal states between 250 and 720 away indicated that birth rates fell in those states by 6.25%. Taking a weighted average of all women by their distance from a repeal state, these estimates imply that travel to obtain an abortion led to a 4.5% decline in births to women in all nonrepeal states following legalization of abortion in repeal states.
  • p.201

• Another interesting pattern in the results reported in Table 2 involves the rate at which the difference in fertility rates converged between early legalization states and states legalizing in 1973. In the set of states closest to early legalization states, there was no statistically significant difference in fertility rates as of the 1974-75 period. In the set of states farthest from early legalization states, a smaller but still statistically significant difference in fertility rates was observed during the 1974/1975 period before convergence was observed by the 1976 to 1980 period. This pattern is consistent with slower growth in abortion access in these states. As reported in Table 3, states farther from repeal states still had lower abortion rates in 1976, along with a lower percentage of women in counties with abortion providers and a much larger fraction of women living more than 50 miles from the nearest abortion provider.
  • pp.201-202

• What do these results reveal about the potential effects on birth rates if Roe v Wade were ever to be overturned? The answer depends on the uniformity of the ban on abortions across states. If Roe were supplanted by a constitutional amendment outlawing abortion nationwide, we might expect an 11% rise in fertility rates based on the experience of the early 1970s. Applying this estimate to the current level of births (roughly 4 million per year), we estimate that a complete recriminalizaiton of abortion would result in perhaps as many as 44 000 additional births per year.
  On the other hand, the effect might be considerably smaller if a future Supreme Court decision returned to states the authority to determine the legality of abortion. The increase in births would then depend on the number of states in which abortion remained legal and their geographic distribution (currently, 13 state have laws on the books to recriminalize abortion if Roe v Wade is overturned). If the 5 repeal states were to maintain the legality of abortion, then our findings indicate that birth rates might still increase by perhaps 4.5% in the remaining states that recriminalize abortion. This would result in an increase in births on the order of 135 000 per year (4.5% of the roughly 3 million births in those states that recriminalize.) If more states were to keep abortion legal, the effect on births probably would be smaller since interstate travel to obtain abortions would increase.
  While our results provide a useful frame of reference, they have important limitations. Changes since 1973 in contraceptive technology, employment opportunities for women, social attitudes, and other factors have altered the environment in which fertility decisions are made. Moreover, a complete evaluation of the impact of overturning Roe v Wade would require consideration of other social, health, and demographic effects. Nevertheless, our results suggest that if Roe v Wade were overturned today, one of the effects would be a substantial rise in American fertility.
  • p.202

"Roe v. Wade at 40: Most Oppose Overturning Abortion Decision" (January 16, 2013)

Joseph Liu, "Roe v. Wade at 40: Most Oppose Overturning Abortion Decision". Pewresearch.org, (January 16, 2013).

• As the 40th anniversary of the Supreme Court’s Roe v. Wade decision approaches, the public remains opposed to completely overturning the historic ruling on abortion. More than six-in-ten (63%) say they would not like to see the court completely overturn the Roe v. Wade decision, which established a woman’s constitutional right to abortion at least in the first three months of pregnancy. Only about three-in-ten (29%) would like to see the ruling overturned. These opinions are little changed from surveys conducted 10 and 20 years ago.
  Decades after the Supreme Court rendered its decision, on Jan. 22, 1973, most Americans (62%) know that Roe v. Wade dealt with abortion rather than school desegregation or some other issue. But the rest either guess incorrectly (17%) or do not know what the case was about (20%). And there are substantial age differences in awareness: Among those ages 50 to 64, 74% know that Roe v. Wade dealt with abortion, the highest percentage of any age group. Among those younger than 30, just 44% know this.
• There continue to be substantial religious and partisan differences over whether to overturn Roe v. Wade, and over the broader question of whether abortion should be legal or illegal in all or most cases.
  White evangelical Protestants are the only major religious group in which a majority (54%) favors completely overturning the Roe v. Wade decision. Large percentages of white mainline Protestants (76%), black Protestants (65%) and white Catholics (63%) say the ruling should not be overturned. Fully 82% of the religiously unaffiliated oppose overturning Roe v. Wade.
  Half of Americans who attend religious services at least weekly favor completely overturning the Roe v. Wade decision, compared with just 17% of those who attend less often.
  Republicans are evenly divided over whether the ruling should be overturned: 46% say it should, while 48% say it should not. By wide margins, Democrats (74% to 20%) and independents (64% to 28%) oppose overturning Roe v. Wade.
  There is no gender gap in opinions about Roe v. Wade: Nearly identical percentages of women (64%) and men (63%) oppose reversing the decision.
• There also are educational differences in awareness of which issue Roe v. Wade addressed. Fully 91% of those with post-graduate education know it dealt with abortion, as do 79% of college graduates, 63% of those with only some college experience and 47% of those with no more than a high school education.
  Identical percentages of women and men (62% each) are aware that Roe dealt with abortion. Nearly seven-in-ten Republicans (68%) answered this question correctly, compared with 63% of independents and 57% of Democrats.
• Those who would like to see Roe v. Wade overturned are particularly inclined to view abortion as a critical issue facing the country. Nearly four-in-ten (38%) of those who support overturning the abortion ruling say abortion is a critical issue, compared with just 9% of those who oppose overturning Roe v. Wade. Among those who favor retaining Roe, 68% say abortion is not that important compared with other issues.
• Those who favor overturning Roe v. Wade overwhelmingly say it is morally wrong to have an abortion; fully 85% express this view. Opinions about the morality of abortion are more divided among those who oppose overturning Roe. Nearly four-in-ten (38%) say abortion is not a moral issue, while 29% say having an abortion is morally wrong; just 17% of those who favor retaining Roe view abortion as morally acceptable.
  Overall, nearly one-in-five Americans (18%) say they personally believe that abortion is morally unacceptable, yet also oppose the Supreme Court overturning its Roe v. Wade ruling.

"The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell's Nomination Only Underlined Them" (October 3, 2002)

Lazarus, Edward. "The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell's Nomination Only Underlined Them", Findlaw's Writ, (October 3, 2002). Retrieved January 23, 2007.

• Within the circle of former clerks to Justice Harry Blackmun, I have more than occasionally been taken to task for breaking with the party line and sharply criticizing Roe v. Wade, the opinion that will forever stand as the Justice's most famous contribution to American jurisprudence. But over the years, I've come to believe even more strongly that my initial doubts about the decision were valid.
  Over the last few weeks, as the Senate completed another chapter in the sorry saga that we call the judicial nomination process, we were treated to another lesson in why Roe must be ranked among the most damaging of judicial decisions. The case in point is the nomination of Professor Michael McConnell to the U.S. Court of Appeals for the Tenth Circuit - on which the Senate held hearings last month.
  McConnell is a prominent and ideologically conservative academic who nonetheless enjoys a fair amount of bipartisan support. For reasons I will explain, it would be more than reasonable for the Senate to reject McConnell. But it should not do so because of his views on Roe. Sadly, however, if McConnell's nomination fails, that will be why.
• If the Senate rejects McConnell, it will not be because of his views on religious freedom and establishment, or on race and federal power. No, it will be for one reason, and one only - because he has said with candor and some enthusiasm that Roe is a very bad decision with no foundation in law.
  At McConnell's hearing, Senate Democrats fulminated about his harsh assessment of Roe. Replaying the theme they worked so successfully when torpedoing the nomination of Robert Bork, the Democrats portrayed McConnell as an enemy of the constitutional right to privacy generally and, more particularly, of a woman's privacy-based, Roe-enshrined right to control her body.
  No doubt this makes for very good politics. But it corrupts the judicial nomination and confirmation process, and deeply injures those on the liberal side of our legal culture war who would like to wage the fight from a position of intellectual strength and integrity.
• As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe's author like a grandfather.
• What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent - at least, it does not if those sources are fairly described and reasonably faithfully followed.
  Before Roe, the right to contraception established in Griswold v. Connecticut and Eisenstadt v. Baird was a concept that was already barely hanging onto the high ledge of defensible constitutional thinking. In Roe, the Court added a 500 lb. lead weight. And the Court's been looking up at the ledge ever since.
  Instead, as conservatives now scurry to do with Bush v. Gore, the friends of Roe seek to find other constitutional bases to defend its outcome. Might Roe be a stealth equal protection case - really relating not to the right of privacy, but instead to women's equality? Perhaps, but to say so amounts to a concession that the decision itself, as written, is unsustainable.
• In any event, when Democratic senators oppose a judicial appointment because of the nominee's opposition to Roe, they not only endorse but make a litmus test out of one of the most intellectually suspect constitutional decisions of the modern era. They practically require that a judicial nominee sign on to logic that is, at best, questionable, and at worst, disingenuous and results-oriented. In doing so, they select not for faithful, but for unfaithful, constitutional interpreters to people the federal judiciary.
  This is a strategy with baleful long-term consequences. The standard critique of liberal judges trumpets their willingness to substitute personal preference for legal analysis - and Roe is universally featured as Exhibit A.
• By not only embracing Roe, but pointing to it as the defining case of liberal constitutionalism, the Senate grandstanders only enhance the all too popular perception that liberal (but never conservative) judges routinely depart from the law, and give it far more credibility than it deserves.
  The real debate in constitutional law today ought to be over the truly revolutionary nature of the conservatives' agenda, and their willingness to do exactly what they accuse the liberals of having done in Roe: depart from constitutional sources to impose their own policy preferences. But until Democrats abandon Roe as the be all and end all of constitutional decision-making, they will continue to fight an uphill battle, having yielded the intellectual high ground to those who have no just claim to that terrain.

"Why hundreds of scientists are weighing in on a high-stakes US abortion case" (October 26, 2021)

Maxmen, Amy (October 26, 2021). "Why hundreds of scientists are weighing in on a high-stakes US abortion case". Nature. 599 (7884): 187–189. Bibcode:2021Natur.599..187M. doi:10.1038/d41586-021-02834-7. PMID 34703018. S2CID 240000294.

• Since Roe, many states have diminished abortion access by, collectively, issuing more than 1,000 restrictions on the procedure, the majority in midwestern and southern states (see ‘Abortion regulations’).
• The amicus briefs authored by hundreds of scientists ahead of the Mississippi case address a particular line of argument made by state attorney-general Lynn Fitch and her colleagues in their court filing — namely, that abortion is unnecessary and possibly harmful to women. “Roe and Casey block the States and the people from fully protecting unborn life, women’s health, and their professions,” Fitch and her colleagues write.
• Even if the justices don’t overturn Roe, they could effectively end the precedent by erasing its viability standard, which permits abortion up until a fetus can survive outside of the womb. If the court shifts this standard on the basis of arguments about when a fetus becomes a person, the research filed to the justices might not matter. Because this question is not something that science clearly defines, Toti says, courts generally haven’t debated it. But that could change.
• [S]ome researchers are forecasting what the future might look like in the United States if Roe is overturned or significantly curtailed by the Supreme Court. In one unpublished analysis, Myers modelled what will happen if abortions are banned in 12 states with pre-emptive ‘trigger bans’ — which will automatically block abortion if Roe is overturned — and in 10 other states with several types of abortion restrictions in place. She estimates that, on average, a woman in these states who seeks an abortion will need to travel 280 miles (450 kilometres) to reach a clinic (see ‘If Roe is overturned’), and each year the distance will present an insurmountable obstacle for around 100,000 of them, who don’t have the means to travel far.
  Laurie Sobel, a researcher at KFF, a non-partisan health-policy research organization based in San Francisco, California, is working on a similar assessment. KFF refrains from taking political positions, but Sobel says the evidence for the potential repercussions of this court decision is clear. “This could have a devastating impact on women that would be real and very severe in many states.”

McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004)

• Norma McCorvey filed a Rule 60(b) motion for relief from judgment in which she sought to have the district court revisit the Supreme Court's decision in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). McCorvey, her identity then protected as "Jane Roe," was the named appellant in Roe. The district court denied McCorvey's motion after concluding that it was not filed within a reasonable time after final judgment was entered.
  We review the district court's denial of relief under Rule 60(b) for abuse of discretion. See Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d 465, 470 (5th Cir. 1998); Flowers v. S. Reg'l Physician Servs., Inc., 286 F.3d 798, 800 (5th Cir. 2002). The district court's denial of an evidentiary hearing is also subject to abuse of discretion review. See Wichita Falls Office Assocs. v. Banc One Corp., 978 F.2d 915, 918 (5th Cir. 1992).
  On appeal, McCorvey: (1) asserts that the district court improperly refused to convene a three-judge court; (2) challenges the district court's ruling on her Rule 60(b) motion; and (3) contends that she was entitled to an evidentiary hearing on her Rule 60(b) motion. We address each issue in turn.

• Roe v. Wade proceeded before a three-judge district court empaneled pursuant to 28 U.S.C. § 2281. See 28 U.S.C. § 2281 (1970); 28 U.S.C. § 2284 (1970) (controlling the composition and procedure of three-judge district courts). Before its repeal,2 § 2281 required a three-judge district court to hear and determine cases involving injunctions against the enforcement of state statutes based on allegations of unconstitutionality. See Corpus v. Estelle, 551 F.2d 68, 70 (5th Cir. 1977). McCorvey asserts that the single district court judge, who ruled on her Rule 60(b) motion, acted without authority. We disagree.
  Although the original action was tried by a three-judge district court, the Rule 60(b) motion filed by McCorvey in 2003 was not properly a matter for a three-judge court. In United States v. Louisiana, 9 F.3d 1159, 1171 (5th Cir. 1993), this court ruled, in another action determined under § 2281 by a three-judge court, that a single district court judge, acting alone after the repeal of § 2281, could properly entertain and decide subsequent modified remedial orders. The instant context is no different: A single district court judge can decide threshold questions relating to McCorvey's Rule 60(b) motion even though the underlying judgment was originally tried by a three-judge court under the former § 2281. See, e.g., Bond v. White, 508 F.2d 1397, 1400-01 (5th Cir. 1975).
  McCorvey argues that the district court abused its discretion in rejecting her Rule 60(b) motion for relief from judgment as untimely. A question necessarily antecedent to McCorvey's substantive claim, however, is whether she has presented a justiciable case or controversy pursuant to Article III of the Constitution. We are under an independent obligation to examine this jurisdictional question.

• There are two conceivable bases for concluding that McCorvey does not present a live case or controversy — lack of standing and mootness. As the Supreme Court explained in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180, 120 S. Ct. 693, 704, 145 L. Ed. 2d 610 (2000), standing and mootness are related, but distinct, concepts. We may pretermit the question of standing if we find a case clearly moot. See, e.g., Nomi v. Regents of Univ. of Minn., 5 F.3d 332, 334 (8th Cir. 1993).
  The mootness doctrine "ensures that the litigant's interest in the outcome continues to exist throughout the life of the lawsuit ... including the pendency of the appeal." Cook v. Colgate, 992 F.2d 17, 19 (2d Cir. 1993) (citing United States Parole Comm'n v. Geraghty, 445 U.S. 388, 395, 100 S. Ct. 1202, 1209, 63 L. Ed. 2d 479 (1980)) (other citations omitted); see also Rocky v. King, 900 F.2d 864, 866 (5th Cir. 1990) (controversy must remain "live" throughout the litigation process). Mootness is the fatal issue for McCorvey.
  "In general, a matter is moot for Article III purposes if the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." Sierra Club v. Glickman, 156 F.3d 606, 619 (5th Cir. 1998). Suits regarding the constitutionality of statutes become moot once the statute is repealed. See Diffenderfer v. Cent. Baptist Church, 404 U.S. 412, 414-15, 92 S. Ct. 574, 575-76, 30 L. Ed. 2d 567 (1972); see also Fed'n of Adver. Indus. Executives, Inc. v. City of Chicago, 326 F.3d 924, 930 (7th Cir. 2003) (" [W]e, along with all the circuits to address the issue, have interpreted Supreme Court precedent to support the rule that repeal of a contested ordinance moots a plaintiff's injunction request, absent evidence that the City plans to or already has reenacted the challenged law or one substantially similar."); Weeks v. Connick, 733 F. Supp. 1036, 1037 (E.D. La. 1990).

• Under Texas law, statutes may be repealed expressly or by implication. See Gordon v. Lake, 163 Tex. 392, 356 S.W.2d 138, 139 (1962). The Texas statutes that criminalized abortion (former Penal Code Articles 1191, 1192, 1193, 1194 and 1196) and were at issue in Roe have, at least, been repealed by implication. Currently, Texas regulates abortion in a number of ways. For example, a comprehensive set of civil regulations governs the availability of abortions for minors. See Tex. Fam.Code §§ 33.002-011 (2000). Texas also regulates the practices and procedures of abortion clinics through its Public Health and Safety Code. See Tex. Health & Safety Code §§ 245.001-022; see also Women's Med. Center of Northwest Houston v. Bell, 248 F.3d 411, 414-16 (5th Cir. 2001) (discussing various portions of the Texas Abortion Facility License and Reporting Act). Furthermore, Texas regulates the availability of state-funded abortions. See 25 Tex. Admin. Code § 29.1121 (2002); see also Bell v. Low Income Women of Tex., 95 S.W.3d 253, 256 (Tex.2002).
  These regulatory provisions cannot be harmonized with provisions that purport to criminalize abortion. There is no way to enforce both sets of laws; the current regulations are intended to form a comprehensive scheme — not an addendum to the criminal statutes struck down in Roe. As the court stated in Weeks, a strikingly similar case, "it is clearly inconsistent to provide in one statute that abortions are permissible if set guidelines are followed and in another provide that abortions are criminally prohibited." 733 F. Supp. at 1038. Thus, because the statutes declared unconstitutional in Roe have been repealed, McCorvey's 60(b) motion is moot.4
  Finally, the district court did not abuse its discretion in denying McCorvey's request for an evidentiary hearing. See Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 171 (5th Cir. 1994) (denial of evidentiary hearing affirmed where court had written evidence sufficient to make its decision). An evidentiary hearing would have served no useful purpose in aid of the court's analysis of the threshold questions presented, which, as we explained, precluded the relief McCorvey sought.
  I agree that Ms. McCorvey's Rule 60(b) case is now moot. A judicial decision in her favor cannot turn back Texas's legislative clock to reinstate the laws, no longer effective, that formerly criminalized abortion.
  It is ironic that the doctrine of mootness bars further litigation of this case. Mootness confines the judicial branch to its appropriate constitutional role of deciding actual, live cases or controversies. Yet this case was born in an exception to mootness1 and brought forth, instead of a confined decision, an "exercise of raw judicial power." Roe v. Bolton, 410 U.S. 179, 222, 93 S. Ct. 762, 763, 35 L. Ed. 2d 147 (1973) (White, J., dissenting). Even more ironic is that although mootness dictates that Ms. McCorvey has no "live" legal controversy, the serious and substantial evidence she offered could have generated an important debate over factual premises that underlay Roe.
  • EDITH H. JONES, Circuit Judge, concurring:

• McCorvey presented evidence that goes to the heart of the balance Roe struck between the choice of a mother and the life of her unborn child. First, there are about a thousand affidavits of women who have had abortions and claim to have suffered long-term emotional damage and impaired relationships from their decision.2 Studies by scientists, offered by McCorvey, suggest that women may be affected emotionally and physically for years afterward and may be more prone to engage in high-risk, self-destructive conduct as a result of having had abortions.3 Second, Roe's assumption that the decision to abort a baby will be made in close consultation with a woman's private physician is called into question by affidavits from workers at abortion clinics, where most abortions are now performed. According to the affidavits, women are often herded through their procedures with little or no medical or emotional counseling.4 Third, McCorvey contends that the sociological landscape surrounding unwed motherhood has changed dramatically since Roe was decided. No longer does the unwed mother face social ostracism, and government programs offer medical care, social services, and even, through "Baby Moses" laws in over three-quarters of the states, the option of leaving a newborn directly in the care of the state until it can be adopted.5 Finally, neonatal and medical science, summarized by McCorvey, now graphically portrays, as science was unable to do 31 years ago, how a baby develops sensitivity to external stimuli and to pain much earlier than was then believed.6 In sum, if courts were to delve into the facts underlying Roe's balancing scheme with present-day knowledge, they might conclude that the woman's "choice" is far more risky and less beneficial, and the child's sentience far more advanced, than the Roe Court knew.
  This is not to say whether McCorvey would prevail on the merits of persuading the Supreme Court to reconsider the facts that motivated its decision in Roe.7 But the problem inherent in the Court's decision to constitutionalize abortion policy is that, unless it creates another exception to the mootness doctrine, the Court will never be able to examine its factual assumptions on a record made in court. Legislatures will not pass laws that challenge the trimester ruling adopted in Roe (and retooled as the "undue burden" test in Casey; see Casey, 505 U.S. at 872-78, 112 S. Ct. at 2817-21). No "live" controversy will arise concerning this framework. Consequently, I cannot conceive of any judicial forum in which McCorvey's evidence could be aired.
  At the same time, because the Court's rulings have rendered basic abortion policy beyond the power of our legislative bodies, the arms of representative government may not meaningfully debate McCorvey's evidence. The perverse result of the Court's having determined through constitutional adjudication this fundamental social policy, which affects over a million women and unborn babies each year, is that the facts no longer matter. This is a peculiar outcome for a Court so committed to "life" that it struggles with the particular facts of dozens of death penalty cases each year.
  • EDITH H. JONES, Circuit Judge, concurring:

• Hard and social science will of course progress even though the Supreme Court averts its eyes. It takes no expert prognosticator to know that research on women's mental and physical health following abortion will yield an eventual medical consensus, and neonatal science will push the frontiers of fetal "viability" ever closer to the date of conception. One may fervently hope that the Court will someday acknowledge such developments and re-evaluate Roe and Casey accordingly. That the Court's constitutional decision making leaves our nation in a position of willful blindness to evolving knowledge should trouble any dispassionate observer not only about the abortion decisions, but about a number of other areas in which the Court unhesitatingly steps into the realm of social policy under the guise of constitutional adjudication.
  • EDITH H. JONES, Circuit Judge, concurring:

“Encyclopedia of American Civil Rights and Liberties” (2017)

Mezey, Susan Gluck (2017). Stooksbury, Kara E.; Scheb, John M., II; Stephens, Otis H., Jr (eds.). “Encyclopedia of American Civil Rights and Liberties” (Revised and Expanded Edition, 2nd ed.). ABC-CLIO. ISBN 978-1-4408-4110-1.

• By 1973, although a number of states offered women somewhat easier access to abortion, some, such as Texas, still banned all abortions except to save the woman’s life. The Texas law was challenged in Roe v. Wade (1973), which forced the Supreme Court to decide whether it violated the woman’s constitutional right to privacy. Women’s rights groups achieved a major victory when the Supreme Court declared that the constitutional right to privacy guaranteed a woman’s choice to have an abortion. But the Court warned that the right was not absolute; its parameters must be determined by balancing the woman’s control over her body with the state’s interest in regulating the abortion procedure.
  • p.6

• Because abortion carries almost no medical risk when performed in the first three months of pregnancy, the Court found the state had no compelling reason to regulate the procedure beyond requiring the physician to be licensed. During the second trimester, the state may impose reasonable health regulations to further its interest in the woman’s health. In the third trimester, abortions may be prohibited entirely unless it is necessary for the woman’s health or life. Based on this standard, the Texas abortion law was declared unconstitutional. In a companion case, Doe v. Bolton (1973), the Court struck down a Georgia statute that restricted a woman’s access to abortion. In that case, in addition to the woman’s desire for an abortion, the statute required approval from a hospital abortion committee and two physicians, and it further mandated that the procedure be performed in an accredited hospital.
  • p.6

• Shortly after Roe v. Wade was decided, states began to impose restrictions on a minor woman’s access to abortion, initially by requiring the consent of one or both parents. In a series of cases beginning in 1976, the Court was asked to decide whether a young woman’s right to privacy was equal to that of an adult. In determining the parameters of a minor’s right to terminate her pregnancy, the Court balanced the young woman’s right to choose abortion against the parents’ interest in their child and in the integrity of their family as well as the state’s interest in regulating the health of the young woman.
  • p.6

• Webster v. Reproductive Health Services (1989) sparked renewed interest in the abortion debate by raising serious doubts about the future of Roe v. Wade. The case centered on a number of provisions in a 1986 Missouri abortion law, including a preamble that declared that life began at conception, a ban on abortions at public hospitals, and a test to determine fetal viability.
  The preamble to the Missouri law stated that human life “begins at conception” and that the state had an interest in an unborn child’s “life, health, and well-being.” The state justified this provision by arguing it simply extended the protections of tort, property, and criminal law to the fetus and that it had no effect on abortion policy because it specified that it must be interpreted in a manner consistent with past Supreme Court decisions. Chief Justice William H. Rehnquist’s plurality opinion for himself and Justices Byron White and Anthony Kennedy declined to resolve this issue, ruling that the Court did not have to decide on the constitutionality of the preamble because it did not regulate abortion; rather, it was merely expressing the state’s legitimate preference for childbirth over abortion.
  • p.8

• The most significant part of the law was the fetal testing section because it appeared to implicate the trimester framework established in Roe v. Wade. This section required that if physicians believed a woman was at least 20 weeks pregnant, before performing an abortion on her, they must first do a series of tests to determine whether the fetus was viable. The lower court ruled that because these tests were costly and potentially dangerous to the woman and the fetus, the provision was unconstitutional.
  Chief Justice Rehnquist and the other two members of the plurality upheld the law, interpreting it to require physicians to perform the tests only when they believed they would help to determine viability, not in all cases. He acknowledged that the Missouri law was inconsistent with Roe v. Wade by allowing viability tests during the second trimester. But instead of overruling the 1973 decision, the Rehnquist plurality attempted to resolve the conflict between Roe v. Wade and the Missouri law by abandoning the rigid trimester framework. It approved the fetal test provision as a permissible method for the state to further its interest in protecting fetal life, which, in their view, was not simply limited to the third trimester. Conceding that it would allow government regulation of abortion that would have been forbidden under Roe v. Wade, Rehnquist seemed to invite legislatures to pass laws challenging that ruling and indicated that he believed the trimester framework adopted in Roe v. Wade should be modified in future cases.
  • p.8

• In 1992, after a three-year hiatus in which no major abortion decision was announced, the Court issues its ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). The case addressed the 1982 Pennsylvania Abortion Control Act, amended in 1988 and 1989. Under the heading of informed consent, the law required a physician to inform a woman of the risks of abortion and wait at least 24 hours before performing the procedure. It also required married women, under most circumstances, to present signed statements that they had notified their husbands about their intention to have an abortion.
  The Court issues a lengthy and complex ruling on June 29, 1992. The opinion indicated that a new consensus had formed with Justices O’Connor and Kennedy and Justice David Souter jointly authoring a plurality opinion that retained “the essential holding” of the Court’s landmark 1973 opinion, Roe v. Wade. The joint opinion outlined three elements it considered essential to Roe v. Wade. First, the woman had a right to have an abortion before the fetus is viable without “undue interference” from the state. Second, the state could restrict abortions after the fetus was viable as long as it allowed an exception for the woman’s life or health. Third, the state’s interest in the life of the woman and the fetus began at the start of the pregnancy, not merely at the point in which the fetus was viable. The authors of the joint opinion stressed that the Court’s commitment to individual liberty, in conjunction with the constraints of its earlier decisions and the rule of law, convinced them to reaffirm Roe v. Wade.
  In light of these considerations, and in an attempt to balance the woman’s constitutional right to abortion with a state’s interest in prenatal life throughout the pregnancy, the Court drew a line at viability. Abandoning the trimester framework, which it did not consider “essential” to its ruling in Roe v. Wade, the Court replaced the three trimesters with two stages of pregnancy: pre- and postviability. Before viability, a state could enact laws to ensure that the abortion decision was “thoughtful and informed,” but it was not permitted to prohibit abortions outright or even to restrict them unduly.
  The opinion explained that because of its legitimate interest in protecting potential life, the state did not have to remove itself from the abortion decision throughout the pregnancy; it was only forbidden to enact abortion regulations during the previability stage that imposed an “undue burden” on the woman’s choice. It specified that a woman with a previable fetus would be unduly burdened if the state placed “a substantial obstacle” in her path. Thus, states were no longer required to have compelling reasons to restrict a woman’s access to abortion as long as they did not impose an undue burden on her choice. Once the fetus was viable, states were permitted to regulate or proscribe abortions entirely as long as reasonable health exception were in place, that is, as long as the laws exempted women whose life or health was at risk.
  • p.9

“Statement of James Mohr” (January 21, 1998)

“Statement of James Mohr”, (January 21, 1998); The 25th Anniversary of Roe V. Wade: Has it Stood the Test of Time? : Hearing Before the Subcommittee on the Constitution, Federalism, and Property Rights of the Committee on the Judiciary, United States Senate, One Hundred Fifth Congress, Second Session ... January 21, 1998, Volume 4

• We are here today upon the occasion of the 25th anniversary of the United States Supreme Court decision in Roe v. Wade, a decision which ruled unconstitutional a body of State-level laws that proscribed, at least on paper, the performance of most abortions. Most of the laws struck down by Roe had been passed in the last third of the 19th century under social, political, and medical conditions very different from those the Nation has faced in the last quarter of this century, and passage of those laws was pressed by very different forces than those now engaged in the abortion debate.
  • p.25

• [I]n 1973 Roe v. Wade shattered the issue of abortion into sharp fragments. We are still dealing with the medical, social, and political fallout of the Supreme Court’s willingness to go far beyond the traditional boundaries of medical ethics and practice. The tenets of Hippocratic medicine have served us well for more than 2000 years, but our 25-year experiment with unrestricted abortion has caused the practice of medicine to become increasingly inconsistent, and the tension between valuable ethical traditions and currently legal medical practice is untenable.
  • p.25

• What most strikes me, looking back a quarter of a century, is how effective the Roe decision has proved itself to be in actually practice as public policy. Perhaps I should say how surprisingly effective, since it has been almost constantly assailed from almost every imaginable perspective since the day it was delivered. Yet, the decision remains fundamentally intact and fundamentally functional, despite unprecedented public debate and legal reassessment.
  In my view, it is not difficult to understand why Roe has stood so well for this past quarter century. The Roe decision eliminated a body of legislation that was generally unenforced, or even worse, as the Court recognized at the time, enforced capriciously or with prejudicial result. Though seldom stressed, the pre-Roe data on abortion-related injury by race and by income were quite shocking. Actual abortion rates in the United States did not rise substantially or quickly on the heels of the Roe decision. The biggest single statistical change resulted from access to safe and affordable abortions for women of limited means and limited social connections.
  Principally for that reason, the Roe decision also improved te health and safety of American women, something 19th century legislators had been concerned about. Women faced with agonizing decisions about their lives and the lives of their families were granted a range of dignified private and realistic alternatives that had formerly been available only in clandestine or demeaning ways.
  • pp.25-26

• The Roe decision has also been resilient, in my view, because it has fitted so deftly into our democratic system. While guaranteeing the bedrock constitutional right of women to terminate a pregnancy early in gestation, the Supreme Court’s guidelines afforded plenty of opportunity for legitimate debates of other sorts. Exactly where do the State’s interests come into play and on what terms? Who will pay for what procedures? What changing medical considerations rise or fall at later points of pregnancy, and so forth? These debates have been acrimonois, even politically painful ,but the result of sustained defense of the basic right to an early abortion for all American women, simultaneously accompanied by vigorous, ongoing debate around related specifics, has been socially functional.
  • p.26

"Roe v. Wade and the Lesson of the Pre-Roe Case Law" (1979)

Morgan, Richard Gregory (1979). "Roe v. Wade and the Lesson of the Pre-Roe Case Law". Michigan Law Review. 77 (7): 1724–48. doi:10.2307/1288040. JSTOR 1288040. PMID 10245969.

• The standard criticism of Roe v. Wade is that the Supreme Court indulged in "Lochnering": the improper second-guessing of a legislative balance. Rarely does the Supreme Court invite critical outrage as it did in Roe by offering so little explanation for a decision that requires so much. The stark inadequacy of the Court's attempt to justify its conclusions - that abortion implicates women's "privacy," that only the most important state interests may supersede that right, and that they may do so only after certain stages of pregnancy- suggests to some scholars that the Court, finding no justification at all in the Constitution, unabashedly usurped the legislative function. Professor Ely, the first to cry "Lochner," could only adduce from the opinion that the Court "manufactured a constitutional right out of whole cloth and used it to superimpose its own view of wise social policy on those of the legislatures." Even some who approve Roe's form of judicial review concede that the opinion itself is inscrutable.
  • p.1724

• [M]ore was at stake in the Supreme Court's handling of Roe than the wrath of critics: By taking an abortion case when it did, the Court forestalled the development of one of its •traditional aids for deciding difficult questions - a thoughtful lower-court case law.
  • p.1725

• Supreme Court decisions are often thought of as if they have no history, somehow beginning and ending in the Supreme Court. But they are products of a judicial system, one that traditionally adheres to certain axioms that protect and enhance the quality of Supreme Court review. One axiom posits that the Supreme Court should hesitate to decide disputes which the political branch is still actively debating. Beyond observing the well-established "political questions" doctrine, the Court respects the representativeness of government and deepens the thoughtfulness of its own deliberations if it stays out of a dispute until legislatures and executives make an initial decision. A second axiom cautions that even after a dispute reaches the judicial system, the Supreme Court should still hesitate to hear a specific case until lower courts have "aged" the dispute by articulating the best arguments on both sides and discarding the unpersuasive or irrelevant.
  The Supreme Court completely disregarded both those axioms in Roe.
  • p.1725

• The politically unsettled and judicially confused law of abortion in 1971 and 1972, when the Court twice heard arguments and deliberated Roe, should have warned it not to decide the case. By doing so; the Court thrust itself into a political debate and stunted the development of a thoughtful lower-court case law. If the Court did perceive the warnings but continued toward a decision anyway, perhaps trusting that its own considerable wits would devise an answer the lower courts had not, the result suggest--that the judicial system's axioms deserve more respect than they received.
  • pp.1725-1726

• In 1973, political forces were still vigorously debating abortion. Most states had prohibited abortions, except to save a woman's life, since the nineteenth century, but a movement was afoot to relax that restriction. In the five years immediately preceding Roe, thirteen states had revised their statutes to resemble the Model Penal Code's provisions, which allowed abortions not only if the pregnancy threatened the woman's life, but also if it would gravely impair her physical or mental health, if it resulted from rape or incest, or if the child would be born with grave physical or mental defects.11 Four states had removed all restrictions on the permissible reasons for seeking an abortion before a pregnancy passed specified lengths. Furthermore, as the Supreme Court noted in Roe, both the American Medical Association and the American Bar Association had only recently changed their official views on abortion (and not without opposition). The abortion debate was not merely one of how far to relax restrictions, however. At least one of the states whose restrictive statutes were judicially invalidated had in 1972 reaffirmed its determination to prohibit abortions unless necessary to save the woman's life. And since several of the pre-Roe constitutional challenges were raised by defendants in state abortion prosecutions, it is clear that at least those states had not allowed their abortion statutes to lapse into desuetude. In short, the political process in many states had yet to decide on abortion. But Roe's sweeping rejection of Texas's statute voided almost every other state's as well.
  • pp.1726-1727

• Especially given the absence of a firm constitutional footing for deciding the question, the Court could sensibly have refrained from stepping into the debate when it did. Of course, the Court might never decide anything if it always waited for the last political word, and had Roe been a soundly reasoned opinion, the Court would surely never have been criticized for being a bit hasty.
  Indeed, because several states had liberalized their abortion statutes, some might argue that the Court should nudge the rest of the nation toward recognizing the right those states had found. But the second traditional axiom should still have warned the Court not to decide Roe: the dispute had not sufficiently steeped in the lower courts. Allegations that abortion statutes violated a constitutional right of privacy were new to the courts. As late as mid-1968, the New Jersey Supreme Court flatly rejected two defendants' claim that the state statute's exception for abortions with "lawful justification" included abortions to end unwanted pregnancies: "It is beyond comprehension that the defendants could have believed that our abortion statute envisioned lawful justification to exist whenever a woman wanted to avoid having a child. The statutes of no jurisdiction in this country permit such an excuse for an abortion." The court's construction of "lawful justification" was undoubtedly correct; the significant point is that the court gave no hint of even considering that a right of privacy might justify such an excuse. The landmark case of People v. Belous, apparently the first case to consider a right-of-privacy challenge to an abortion statute and certainly the first reported case to endorse one, was decided only in September 1969, less than two years before the Supreme Court decided to hear Roe. Between 1970 and 1972, a flurry of constitutional challenges hit the courts, but of the seventeen courts that decided right-of-privacy claims, twelve were three-judge district courts whose judgments allowed direct appeal to the Supreme Court. Thus, when the Court had Roe before it and looked, as the axiom has it, to the lower-court deliberations, it found not one federal decision that had received intermediate appellate consideration, and only four decisions of state supreme courts,24 none of which offered particularly illuminating analysis.
  • pp.1727-1728

• In general, three years is hardly time enough for the judicial system to evolve sound analysis for most constitutional issues, and for so emotionally charged an issue as abortion, three years was very little time indeed. The Court could justifiably have let the dispute simmer longer in the lower courts. And technically, the Court could have done so. In Roe, both parties appealed the lower-court decision to the Supreme Court: Jane Roe from the denial of an injunction against enforcement of the statute, and District Attorney Wade from the grant of a declaratory judgment that the statute was unconstitutional. But as the Court acknowledged, its own cases "are to the effect that§ 1253 does not authorize an appeal to this Court from the grant or denial of declaratory relief alone." Thus, only Roe's complaint from the denial of an injunction was properly before the Court on appeal. Nonetheless, the Court held that "those decisions do not foreclose our review of both the injunctive and declaratory aspects of a case of this kind when it is properly here, as this one is, on appeal under § 1253 from specific denial of injunctive relief, and the arguments as to both aspects are necessarily identical." Even if the arguments as to both aspects were strictly speaking identical (which they probably were only if the Court wished them to be), the Court still did not have to decide the constitutional question. It could have stayed the direct appeal on the injunction until the appeal on the declaratory judgment had progressed to the Court through the court of appeals, as technically that appeal should have done. The reason for doing so would have been clear: a decision on the injunction should logically await a decision on constitutionality (the declaratory judgment issue) and a decision on constitutionality should await a fuller consideration by the courts of appeals. Instead, worried that "[i]t would be destructive of time and energy for all concerned were we to rule otherwise," the Court reached out to grab the abortion question and thereby impaired its ability to construct a sound opinion, something much more valuable than time and energy.
  • pp.1728-1730

"Law, Policy and Reproductive Autonomy" (2013)

(Nelson, Erin (2013). "Law, Policy and Reproductive Autonomy". Bloomsbury Publishing. p. 121

• Abortion has been and continued to be a defining political issue in the US. The current starting point for a look at US abortion law is the 1973 US Supreme Court decision in Roe v. Wade. Prior to this landmark case, abortion was generally illegal in the US, having been criminalized in the nineteenth century, although legislation permitted abortion in limited circumstances. In some states, abortion was available only to preserve the life of a pregnant woman; in others, an abortion could be obtained where necessary to protect a woman’s life or health.
  • p.119

• Roe v. Wade seemed to settle the abortion question, holding that a pregnant woman has a right to privacy (pursuant to the 14th Amendment of the US Constitution), which includes the right to terminate a pregnancy. The Court did not recognize an absolute right to abortion, instead acknowledging that that State has an interest in the protection of potential life, an interest that increases in strength as the pregnancy progresses. In Roe v. Wade, the Court created a ‘trimester framework’ to mirror the growing importance of the State interest in protecting fetal life (and the reduced safety of the abortion procedure itself) as pregnancy advances. The Roe. v Wade framework permitted abortion without restriction in the first trimester of pregnancy; in the second trimester, the State was permitted to regulate some aspects of abortion (in essence, where the procedure can be performed, and by whom). Finally, in the third trimester of pregnancy, States were free to prohibit abortion except where necessary to preserve the life or health of the pregnant woman. Fetal viability (the stage at which a fetus is theoretically capable of sustained life outside of the pregnant woman’s body) was the point at which the State’s interest in protecting potential life became ‘compelling’.
  Since 1973, the abortion right has remained profoundly contentious, with opponents of abortion continuing to attempt to circumscribe (or even abrogate) the right articulated in Roe v. Wade. The challenges to Roe v Wade have come primarily in the form of state legislation that limits women’s ability to exercise the right to terminate pregnancy. The continued attempts to legislate such limits have meant that the issue of abortion rights has returned to the US Supreme Court on a number of occasions. These legislative efforts have had variable results; although the Court has not resiled from the basic holding in Roe v Wade, the continued attacks on that decision (and the partial successes its opponents can claim) make it clear that abortion rights in the US cannot be taken for granted.
  • p.120

• In Planned Parenthood of Southeastern Pennsylvania v Casey, an important post-Roe v Wade case, the constitutionality of several provisions of a Pennsylvania lw was disputed. The impunged provisions included a requirement that a woman’s spouse be notified of her plan to terminate her pregnancy, a mandatory 240hour wait between a first consultation respecting abortion and the procedure itself, mandatory informed consent provisions and a parental consent requirement where a minor sought abortion services. In its decision in Casey, the Court abandoned the trimester framework set out in Roe v Wade, holding that the state has a legitimate interest in fetal life from the beginning of pregnancy and that this interest becomes compelling at viability. The Casey decision means that there is no longer an unqualified right to terminate a pregnancy in the first trimester and that the state may regulate the provision of abortion services throughout pregnancy, provided that the regulation does not amount to an ‘undue burden’ on women’s right to choose abortion. The question for the court in making this determination is whether the law in question ‘has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus’. In the end, the Casey Court upheld all of the disputed provisions save the spousal notification requirement.
  • pp.120-121

“Key Abortion Plaintiff Now Denies She Was Raped” (September 9, 1987)

“Key Abortion Plaintiff Now Denies She Was Raped” by Kenneth B. Noble, New York Times, (September 9, 1987)

• The woman whose challenge to a state law virtually prohibiting abortion led to the Supreme Court's landmark Roe v. Wade decision now says she lied when she declared upon bringing suit that it was rape that had caused her pregnancy.
• Ms. McCorvey told Mr. Rowan that she had fabricated her account of being raped by three men and a woman in 1969 because she had hoped to circumvent a 100-year-old Texas law that banned abortions except when the woman's life was in danger. 'What I Thought Was Love'
  Ms. McCorvey said that she had actually become pregnant through what I thought was love and that she decided to challenge the state law when her doctor told her that she could not legally have an abortion in Texas. In 1970, her lawyers filed a Federal suit against Henry Wade, the Dallas County District Attorney. The suit, protecting her anonymity by identifying her as Jane Roe, was eventually upheld by the Supreme Court, which, in legalizing abortion on Jan. 22, 1973, cited the 14th Amendment's privacy protections.
  The transcript of the interview does not make clear why Ms. McCorvey thought that an account of rape would necessarily help win exemption from, or overturn, a law that allowed abortion only to protect a woman's life. Ms. McCorvey, now a 39-year-old apartment house manager in Dallas, has an unlisted telephone number there and could not be reached for comment tonight.
  However, Mr. Rowan, reached at his Washington home, said, She told me that she thought she would win so much public support by claiming that she was gang raped that she might get an exception from the Texas law.
• Ms. McCorvey was 21 years old when she became pregnant. At the time, she was working as a waitress and, she told Mr. Rowan, was too poor to travel to California, the closest state where abortion was legal, or to afford local illegal abortionists.
  I was very depressed, she said. How dare them tell me that I couldn't abort a baby that I did not want!
  Unable to have an abortion in Texas or travel to another state, she said, she grew bitter, very bitter, and in her anger fabricated the rape story.
• According to a news release issued by WUSA about the interview, Sarah Weddington, one of the two lawyers who took the case to the Supreme Court, said she had never touched the issue of rape and only emphasized the question of whether the Constitution gives to the state or leaves to a woman the questions of what she can or must do with her body.
  Kate Michelman, executive director of the National Abortion Rights Action League, said in an interview today that Ms. McCorvey's disclosure should not cloud the discussion about the right of a woman to terminate her pregnancy.
  If she lied, you have to remember that abortions were illegal, Ms. Michelman said, and that women were looked down upon if they were pregnant outside of marriage. It was her life circumstances that created the conditions that mitigated against her being straightforward about the fact that she was pregnant and wanted to terminate that pregnancy.
  After the celebrated Supreme Court decision, Ms. McCorvey at first lived in relative obscurity in Dallas, fearing that she would become a target of anti-abortion activists.
  In recent years, however, she has become active in abortion rights and feminist groups. Last month, for example, she appeared at a rally, sponsored by the National Organization for Women, denouncing President Reagan's Supreme Court nomination of Judge Robert H. Bork.

“The Root and Branch of Roe v. Wade” (1984)

“The Root and Branch of Roe v. Wade” by John T. Noonan Jr., Nebraska Law Review, Volume 63, Issue 4, Article 4, 1984

• The conflict, visible in Roe v. Wade between a natural law response to human reality and a Kelsenite freedom in recognizing human reality, was resolved in the Kelsenite direction in the cases that followed.
  • p.673

• In one passage the Court spoke of the unborn before viability as "a theory of life," as though there were competing views as to whether life in fact existed before viability. The implication could also be found that there was no reality there in the womb but merely theories about what was there. The Court seemed to be uncertain itself and to take the position that if it were unsure, nobody else could be sure. In another passage the Court spoke of life in the womb up to birth as "potential life." This description was accurate if it meant there was existing life with a great deal of development yet to come, as one might say a 5-year-old is "potential life" meaning that he or she is only potentially what he or she will be at twenty-five. The Court's description was inaccurate if the Court meant to suggest that what was in the womb was pure potentiality, a zero that could not be protected by law. To judge from the weight the Court gave the being in the womb-found to be protectable in any degree only in the last two months of pregnancy-the Court itself must have viewed the unborn as pure potentiality or a mere theory before viability. The Court's opinion appeared to rest on the assumption that the biological reality could be subordinated or ignored by the sovereign speaking through the Court.
  • p.673

• The progeny of Roe have confirmed the Kelsenite reading of Roe that there is no reality that the sovereign must recognize unless the sovereign, acting through the agency of the Court, decides to recognize it. This view would be psychologically incomprehensible if we did not have the history of the creation of the institution of slavery by judges and lawyers. With that history we can see that intelligent and humane lawyers have been able to apply a similar approach to a whole class of beings that they could see-that they were able to create a mask of legal concepts preventing humanity from being visible. A mask is a little easier to impose when the humanity concealed, being in the womb, is not even visible to the naked eye.
  • p.675

"Roe v Wade and the New Jane Crow: Reproductive Rights in the Age of Mass Incarceration" (January 2013)

Paltrow, Lynn M. (January 2013). "Roe v Wade and the New Jane Crow: Reproductive Rights in the Age of Mass Incarceration". American Journal of Public Health. 103 (1): 17–21. doi:10.2105/AJPH.2012.301104. PMC 3518325. PMID 23153159.

• All pregnant women, not just those who seek to end a pregnancy, have benefited from Roe v Wade. Today’s system of mass incarceration makes it likely that if Roe is overturned women who have abortions will go to jail.
  Efforts to establish separate legal “personhood” for fertilized eggs, embryos, and fetuses, however, are already being used as the basis for the arrests and detentions of and forced interventions on pregnant women, including those who seek to go to term.
  Examination of these punitive actions makes clear that attacks on Roe threaten all pregnant women not only with the loss of their reproductive rights and physical liberty but also with the loss of their status as full constitutional persons.
• IN HER BOOK THE NEW JIM Crow, Michelle Alexander argues that the system of mass incarceration in the United States, fueled by the war on drugs, operates in a seemingly color-blind, race-neutral way to create a new Jim Crow system that forces African Americans, especially African American men, into a permanent underclass.1 I believe that attacks on Roe v Wade2 and efforts to treat fertilized eggs, embryos, and fetuses as separate legal persons will establish a system of law in which women who have abortions will go to jail. Furthermore, all pregnant women are at risk of being assigned to a second-class status that will not only deprive them of their reproductive rights and physical liberty through arrests, but also effectively strip them of their status as full constitutional persons.
  Here I address major changes in US law enforcement since Roe v Wade was decided in 1973 that make it likely that if Roe is overturned women who have abortions will be arrested and sentenced to incarceration. I discuss how efforts to undermine Roe and to establish separate legal personhood for fertilized eggs, embryos, and fetuses are already providing the basis for the arrests and detentions of and forced interventions on pregnant women. I conclude that these efforts, if unchecked, not only will result in massive deprivations of pregnant women’s liberty, but also will create a basis for ensuring a permanent underclass for pregnant women or, for lack of a better term, a new Jane Crow.
• This new era of mass incarceration—which is largely accepted by the public, defended by an army of lobbyists, and justified by a war on drugs deeply rooted in America’s history of slavery and racism1, makes it far more likely today than in 1973 that if Roe is overturned women will themselves be arrested and jailed. It is also likely that women having or considering having abortions will be subject to far more government surveillance than in the past.
  Federal and state law enforcement agencies are twice as big as they were in 1973, and their investigative powers—including wiretapping—have been dramatically expanded. Moreover, since 1973 drug testing has become a multibillion-dollar industry. As a result of US Supreme Court decisions and local policies, even middle school students who want to join the afterschool scrapbooking club are being required in some schools to submit to urine drug testing. Once a urine sample is in the possession of state authorities, it may just as easily be used to test for pregnancy.
  In the post-Roe world, however, it is not only women who seek to end pregnancies who must fear the possibility of surveillance and arrest. Approximately one million women in the United States each year terminate their pregnancies, close to another million suffer miscarriages and stillbirths, and more than four million women continue their pregnancies to term. Each and every one of these women benefits from the US Supreme Court’s decision in Roe v Wade, which not only protects a woman’s right to terminate her pregnancy but also, as later US Supreme Court cases explained, has been “sensibly relied upon to counter” attempts to interfere with a woman’s decision to become pregnant or to carry her pregnancy to term. As a result, all pregnant women, not just those seeking to end a pregnancy, risk losing their reproductive rights and their liberty.

“What's Unconstitutional About Wrongful Life Claims? Ask Jane Roe...” (July 2020)

“What's Unconstitutional About Wrongful Life Claims? Ask Jane Roe...” by Bruce R. Parker, Scott C. Armstrong, and Thomasina Poirot, Defense Counsel Journal, Volume 87, Number 3, July 2020

• To date, no court has refused to recognize a wrongful life claim based upon the recognition that it is unconstitutional to hold that a duty of care is owed to a fetus prior to viability when under Roe v. Wade and its progeny, no duty is owed to a fetus before the fetus becomes viable. Rather, jurisdictions which have decided not to recognize wrongful life claims have done so based on reasoning that focuses on lack of a legally cognizable injury, the impossibility of calculating damages, and/or the lack of causal relationship between the defendant’s conduct and the claimed injury.
  • p.6

• In Rich v. Foye, a Connecticut state court briefly mentioned that “[r]ecognizing a claim for wrongful life can also be problematic because any theoretical fetal rights either to come to term or not are subject to the mother’s legal rights pertaining to control of her pregnancy.” Additionally, the Oregon Supreme Court briefly noted the conflict between the child’s claim and the parent’s right to terminate the pregnancy: There can be no doubt that recognizing that a child in T’s position has an interest in not being born is distinct from, and potentially at odds with, the parents’ interests [in making informed reproductive choices] recognized above . . . Thus, recognizing a child’s independent legal interest in being conceived and born (or not being conceived and born) would create potential tension with the parents’ legal interest in deciding whether or not to conceive and bear that child. Therefore, there is no duty to a fetus in the first trimester. Without a duty there can be no proximate cause and no damages, thus no liability.
  • pp.6-7

• No court has considered whether wrongful life claims are unconstitutional based on Roe v. Wade 66 and its progeny.
  • p.16

• Wrongful life claims are irreconcilable with Roe v. Wade. Wrongful life claims are necessarily predicated on the contention that there is a duty of care owed to a fetus prior to viability. This presupposes that a non-viable fetus enjoys legal standing. The courts that have recognized wrongful life claims sidestep this important part of the analysis. Courts that have held that such a duty exists have described it as a duty to provide the prospective parents with information needed to decide whether to terminate the pregnancy. Some courts simply conclude that “the duty owed to the parent inures derivatively to the child.” However, in order for the mother to choose to have an abortion, she must have access to that information prior to fetal viability. Roe v. Wade established that no such duty exists. Therefore, the courts permitting wrongful life claims have wrongfully held that a duty of care is owed by third parties to the embryo upon conception.
  • p.17

• Our legal proposition can be summarized as follows: Roe established that a mother has an unfettered constitutional right to decide if the fetus will continue to exist beyond the first trimester. Roe stands for the principle that a fetus does not have a legal right to exist in the first trimester. Since the fetus has no legal right to exist during the period prior to viability, third parties cannot owe a duty of care to the fetus during that time period. As there is no way to reconcile wrongful life claims with federal constitutional law with respect to the duty owed to a fetus, federal constitutional law prevails, rendering wrongful life claims unconstitutional and invalid.
  • pp.17-18

• Indeed, in Alexander v. Whitman, the plaintiffs challenged the constitutionality of the Wrongful Death and Survival Statute 98 as violating the Equal Protection and Due Process Clauses of the Fourteenth Amendment because they deny a cause of action to the statutory beneficiaries unless a fetus survives past birth. The Third Circuit disagreed with the constitutional challenge and reiterated the lack of a duty to a fetus during the period in which it is “unborn”: Ms. Alexander can only establish a claim on behalf of her child under the Fourteenth Amendment if her child (and others similarly situated) fall(s) within the protections afforded “person[s]” as that term is used in the Fourteenth Amendment, and it is clear it does not. The Supreme Court has already decided that difficult question for us in Roe v. Wade. There, the Court expressly held that “the word ‘person,’ as used in the Fourteenth Amendment does not include the unborn.” The Court held that “person” has “application only postnatally.” That constitutional principle was more recently re-affirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey. There, Justice Stevens, writing separately from the joint opinion of Justices O’Connor, Kennedy and Souter, wrote that, as a matter of federal constitutional law, a fetus is a “developing organism that is not yet a ‘person’ ” and “does not have what is sometimes described as a ‘right to life.’” This principle “remains a fundamental premise of our constitutional law governing reproductive autonomy.
  • pp.22-23

• While the case did not involve the abortion issue, in Matter of Baby M., a New Jersey state court struck down an abortion clause in a surrogacy contract prohibiting abortion except as allowed by the male promisor on the ground that its enforcement would violate the surrogate mother’s constitutionally protected right, under Roe v. Wade, to decide whether to have an abortion. It was clearly the court’s view that the abortion provision could not be enforced by an action for injunctive relief to prohibit an otherwise lawful abortion.
  • pp.24-25

• Roe v. Wade established as a matter of constitutional law that during the first trimester of a pregnancy, the fetus is not owed a duty of care. Without a duty, there can be no breach and thus no injury giving rise to damages. As plaintiffs continue to push courts that have either refused to recognize this tort or have not had the issue presented to it, defense counsel should raise the unconstitutionality of these claims. For counsel in the three states that have recognized this tort, we urge defense counsel to aggressively argue the unconstitutionality of the tort when it is asserted.
  • p.25

“Dobbs v. Jackson Women's Health Organization: An Opportunity to Correct a Grave Error” (November 17, 2021)

“Dobbs v. Jackson Women's Health Organization: An Opportunity to Correct a Grave Error” by Sarah Parshall Perry and Thomas Jipping, Legal Memorandum No. 293, Edwin Meese III Center for Legal and Judicial Studies, November 17, 2021

• The Supreme Court’s 1973 decision in Roe v. Wade, writes Professor Mary Ziegler, “serves as the most prominent example of the damage judicial review can do to the larger society.” In Roe, the Court held that its previously created “right to privacy...is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” This holding, and the Court’s rules for implementing it, effectively invalidated abortion laws of all kinds passed by every state legislature in the previous 150 years. Roe remains one of the most controversial judicial decisions in American history for both its result and the means the Court used to reach it.
  • p.1

• The Supreme Court has thus created one of the most permissive abortion regimes in the world; the United States, for example, is one of only seven nations allowing elective abortions after 20 weeks of pregnancy. More importantly, this regime is far more permissive than under either the common law or statutes during centuries of English or American law. Many support this extreme policy, many others oppose it, but the issue for the Supreme Court is whether the Constitution of the United States requires it.
  • p.2

• Justice Harry Blackmun devoted more than half of his majority opinion in Roe v. Wade to an account of “the history of abortion, for such insight as that history may afford us.” This narrative preceded any legal analysis and, rather than any interpretation of the Constitution, is Roe’s real foundation. While it has acquired the status of “orthodox abortion history,” however, this narrative has been crumbling since it was created.
  As Roe was heading for the Supreme Court, Cyril Means, General Counsel of the National Association for the Repeal of Abortion Laws, was constructing a “radically revisionist history” of abortion in America. His goal was to paint a long-term picture of abortion as a common procedure that the law treated lightly, if at all, in order to support the argument that abortion should be recognized as a constitutional right.
  To that end, Means made two primary claims that the Supreme Court would later embrace: American women enjoyed a “liberty of abortion” under the common law “at every stage of gestation,” and the 19th-century statutes that replaced the common law were enacted “to protect the health of mothers, not to protect the lives of unborn children.” This narrative “simply left the unborn child out of the moral and legal equation.”
  The legal team challenging the Texas abortion statute in Roe placed Means’ narrative at the center of their argument despite their own concern, reflected in an internal memorandum, that his conclusions “sometimes strain credibility.” This was a profound understatement, as a vast amount of scholarship and commentary, including by abortion rights supporters, has exposed the Means–Blackmun narrative as selective at best—and fiction at worst.
  • p.3

• Midwife Regulations. Blackmun’s claim that abortion was unrestricted until “well into the 19th century” not only distorted the common law and statutes in both England and America, but entirely ignored other sources of legal control over abortion. Municipal ordinances and regulations, for example, had long prohibited midwives, who almost exclusively handled reproductive matters, from performing or procuring abortion throughout pregnancy.
  These regulations existed in England as early as 1512 and were replicated in America long before independence. In July 1716, for example, the Common Council of New York City enacted a “Law Regulating Mid Wives within the City of New York.” It required midwives to take an oath not to “give any counsel or administer any...thing to any woman being with child” to induce a miscarriage or abortion.
  • p.3

• Pro-Life Feminists. The Means–Blackmun narrative also ignored the near-unanimous consensus among 19th-century feminists that abortion should be prohibited as “child murder.” Elizabeth Cady Stanton and Susan B. Anthony, for example, regularly condemned abortion in The Revolution, a weekly newspaper they published from 1868 to 1872. In one editorial, for example, they called abortion a “crying evil” and a “revolting outrage against the laws of nature and our common humanity.” These feminists exposed how the sexual exploitation of women often included pressure to get abortions—but they never allowed a reason for abortion to become a justification for abortion.
  Excising 19th-century feminists from this narrative was deliberate. More than 400 historians, for example, promoted the Means–Blackmun narrative in an amicus curiae brief filed in Webster v. Reproductive Health Services. A year later, the brief’s organizers admitted that, like Means had prior to Roe, they had simply “suspend[ed] certain critiques to make common cause.” Professor Sylvia Law, for example, admitted that the historians’ brief in Webster was “constructed to make an argumentative point rather than to tell the truth” and that ignoring 19th-century feminists’ opposition to abortion was a “major deficiency.” Professor Estelle Freedman was even more candid: The “political strategy of the brief,” she wrote, required “selective use of evidence, or lack of evidence.”
  • p.4

• The Means–Blackmun narrative’s claim that protection of unborn children played no part in the enactment of increasingly restrictive 19th-century abortion laws blatantly defies a clear historical record. At its May 1859 meeting, for example, the American Medical Association (AMA) heard a report that rejected the “mistaken and exploded medical dogma” that the unborn child has no “independent and actual existence...as a living being.” The AMA unanimously adopted a resolution that condemned the “unwarrantable destruction of human life” and “the slaughter of countless children” and sought “the zealous co-operation of the various state Medical Societies” in pressing for laws prohibiting abortion, “at every period of gestation,” except when necessary to save the mother’s life.
  • p.4

• The Supreme Court itself made public opinion about abortion relevant by basing Roe’s holding on the “history of abortion,” including “man’s attitudes toward the abortion procedure over the centuries.” In addition, one of the factors the Supreme Court considers when deciding whether to overrule a precedent is whether it has been “universally accepted, acted on, and acquiesced in by...the general public.”
  In this context, the issue is whether the general public supports the legality of the abortions that would have remained illegal without Roe v. Wade. These abortions are performed for reasons defined by how women wish to live their lives and correspond to the factors covered by the Court’s definition of “health,” such as “physical, emotional, psychological, familial, and the woman’s age.” The abortions made legal by Roe v. Wade are also sought to avoid the “detriment” that the Court said prohibiting abortion would impose, including “the distress, for all concerned, associated with the unwanted child...[and] the additional difficulties and continuing stigma of unwed motherhood.”
  • p.6

• United States v. Vuitch. The Supreme Court decided one abortion-related case prior to Roe. In United States v. Vuitch, a physician challenged his indictment for violating a District of Columbia law that allowed only abortions that are “necessary to preserve the mother’s life or health.” The Supreme Court rejected Vuitch’s argument that the statute was unconstitutionally vague, construing the word “health” broadly to include “psychological as well as physical well-being.” Vuitch did not raise, and the Court did not address, the issue of a constitutional right to abortion.
  • p.9

• By the time the Court decided Roe v. Wade, the Supreme Court’s privacy jurisprudence was already in disarray. Griswold said that the right to privacy is found in the penumbra of the Bill of Rights, Eisenstadt extended Griswold but on equal protection grounds, and the district court in Roe said that the right to abortion is found in the Ninth Amendment. In Roe, the Supreme Court added multiple jurisprudential wrinkles by holding that the right to privacy is instead “founded in the Fourteenth Amendment’s concept of personal liberty.” The Court thus appeared to transplant the requirement of a “compelling state interest” for infringing on a “fundamental” right from the equal protection to the due process context, but failing to apply this standard at all. Dissenting inRoe, Justice William Rehnquist wrote that the Court “will accomplish the seemingly impossible feat of leaving this area of the law more confused than [the Court] found it.”
  Justice Clarence Thomas has explained that federal judges “interpret and apply written law to the facts of particular cases.” The Supreme Court, however, eschewed this basic approach in Roe v. Wade, putting off any examination of the constitutional issue at the heart of the case until Section VIII, nearly 40 pages into a 54-page majority opinion. Blackmun acknowledged both that “[t]he Constitution does not explicitly mention any right of privacy” and that the presence of the unborn child makes abortion “inherently different” from other unenumerated rights that the Court had deemed to be fundamental. Because the right to abortion had no connection to the Constitution’s text—and barely any connection to precedent—Blackmun justified creating the right to abortion by offering a list of “detriment[s]” that “denying this choice” would impose.
  • p.9

• Rather than defending what the Supreme Court actually said in Roe, some scholars resort to “rewriting” it or suggesting “what Roe v. Wade should have said.” Just 14 years after Roe was decided, the critical literature had so proliferated that three scholars organized it into 12 different categories. Scholars and commentators across the ideological spectrum have shown how little, if anything, Roe has to commend it.
  Professor John Hart Ely, who candidly favored Roe’s result, called it a “very bad decision...because it is...not constitutional law and gives almost no sense of an obligation to try to be.”
• Professor Kermit Roosevelt, who similarly supports recognition of a constitutional right to abortion, writes: “As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether. It supported that right via a lengthy, but purposeless, cross-cultural history review of abortion restrictions.”
• Professor Richard Morgan writes: “The stark inadequacy of the Court’s attempt to justify its conclusions” suggests that “the Court, finding no justification at all in the Constitution, unabashedly usurped the legislative function.”
• Professors Philip Heymann and Douglas Barzelay write that Roe “leaves the impression that the abortion decisions rest in part on unexplained precedents, in part on an extremely tenuous relation to provisions of the Bill of Rights, and in part on a raw exercise of judicial fiat.”
• Professor Mark Tushnet writes that “[m]ost academic commentators probably believe that, as a matter of sound public policy, access to abortions should be relatively unrestricted. But none has been able to provide conclusive arguments that the Supreme Court correctly found that policy in the Constitution.”

• p.10

• Chief Justice Warren Burger was in the Roe majority but, within little more than a decade, joined a dissent arguing that the Court was striking down abortion restrictions that Roe was supposed to allow and then writing his own dissent to say that Roe should be reexamined.
  • p.11

• First, many Americans know nothing about Roe, and much of what others do know is incorrect. According to Pew Research Center polls, for example, nearly 40 percent of all Americans and 57 percent of those under 30 cannot associate Roe with any particular subject or believe that it involved issues such as school desegregation or environmental protection.
  Second, many polls asking about support for Roe v. Wade describe it in ways that falsely inflate its support. Polls by the Pew Research Center and NBC News, for example, frequently say that Roe established “a woman’s constitutional right to an abortion, at least in the first three months of pregnancy.” Acceptance of this incorrect description inflates support for Roe because support for legal abortion is highest in the same period. Support for Roe would likely decline significantly if these polls accurately described it as establishing “a woman’s constitutional right to an abortion during all nine months of pregnancy.” Research has yet to find polls that include such an accurate description.
  Third, opinions of Roe are likely influenced by what people think would happen if it were overturned. CBS News polls asking if Roe should be overturned, for example, say that it “made abortion legal.” Respondents who incorrectly believe that overturning Roe would automatically make abortion illegal may oppose doing so for that reason alone.
  • p.12

• No one honestly argues that Roe v. Wade was correctly decided in the first place. In Professor Ely’s words, Roe “is not constitutional law, and gives almost no sense of an obligation to try to be.” The decision does not come close to meeting the standard of being “universally accepted, acted on, and acquiesced in by courts, the legal profession, and the general public.”
  • p.13

• A past decision’s reaffirmance strengthens its precedential weight, but like any judicial holding, that reaffirmance must be explicit. “Most important, the court must have decided the issue for which the precedent is claimed; it cannot merely have discussed it in dictum, ignored it, or assumed the point without ruling upon it.” To be counted as a “reaffirmance,” the issue ofRoe’s validity as a precedent must have been “brought to the attention of the court” and “ruled upon” through a “dispositive judgment” or a “determinate holding.” Only three Supreme Court decisions meet this standard.
  1. In Akron v. Akron Center for Reproductive Health, the Court voted 6–3 that while “the doctrine of stare decisis [is] perhaps never entirely persuasive on a constitutional question...[w]e respect it today, and reaffirm Roe v. Wade.”
  2. In Thornburgh v. American College of Obstetricians and Gynecologists,149 the Court voted 5–4 to reaffirm “the general principles laid down in Roe and in Akron.”
  3. In Planned Parenthood v. Casey, the Court also voted 5–4 to reaffirm Roe’s “central holding” that “the Constitution protects a woman’s right to terminate her pregnancy in its early stages.”
  By declining margins, therefore, the Supreme Court has reaffirmed some aspect of Roe v. Wade three times in nearly 50 years. As Senator Orrin Hatch (R–UT) has written, there is nothing “super” about Roe v. Wade as a precedent. Should the Court reconsider whether Roe remains a valid precedent, it will apply traditional principles ofstare decisis to determine if Roe should be retained or abandoned. The case to be argued on December 1, 2021, provides that opportunity.
  • pp.13-14

• Mississippi’s Arguments. Recall that the Supreme Court concluded that the Constitution protects a right to abortion without actually interpreting the Constitution. Mississippi fills this gap in its brief to the Court, in which Attorney General Lynn Fitch argues that nothing in the Constitution’s text, structure, history, or tradition supports a constitutional right to abortion. In the absence of such a right, Mississippi may legislate on abortion as it does on other subjects.
  When assessing any democratically enacted law that does not implicate a constitutional right, courts will generally uphold the law if there is a rational basis to conclude that the law will help achieve a legitimate objective of the state. The state argues:
  Roe and Casey are...at odds with the straightforward, constitutionally grounded answer to the question presented. So the question becomes whether this Court should overrule those decisions. It should. The...case for overruling Roe and Casey is overwhelming.... Roe and Casey have proven hopelessly unworkable. Heightened scrutiny of abortion restrictions has not promoted administrability or predictability. And heightened scrutiny of abortion laws can never serve those aims. Because the Constitution does not protect a right to abortion, it provides no guidance to courts on how to account for the interests in this context.... Roe and Casey have inflicted significant damage.
  • p.16

• Mississippi targets viability as the key constitutional concept. While often placed at approximately 24 weeks, viability is an inherently subjective standard and depends on many variables. Medical advances have now made the survival of even 22-week-old unborn children possible. Nearly four decades ago, in Akron, Justice Sandra Day O’Connor observed: “As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception.” Viability is no more an objective standard today than it was then.
  With O’Connor’s support, the Supreme Court in Casey appeared to simplify its method of evaluating abortion restrictions by abandoning Roe’s system of different rules for different trimesters in favor of a two-part framework. Mississippi points out, however, that all the Court succeeded in doing was creating another subjective, unworkable standard of whether a restriction is an “undue burden” on the right to abortion. Mississippi argues that there “is no objective way to decide whether a burden is ‘undue,’” and in case after case, the court has been deeply divided “not just over what result Casey requires...but also over what Casey even means.”
  Mississippi’s brief also addresses Roe’s real foundation, namely, the “detriment” that prohibiting abortion would impose on women. The circumstances that pregnant women face have changed markedly in the past 50 years. These include expansion of the type and flexibility of work opportunities, laws preventing pregnancy discrimination, provision of sick and family leave time, access to childcare and affordable contraception, and “safe-haven” laws. Women today are, more than ever before, able to avoid the “detriment” that the Supreme Court described in 1973 as practically inevitable. Women have, Mississippi reminds the Court, reached “the highest echelons of economic and social life independent of the right bestowed on them by seven men in Roe.”
  • p.17

• The difficulty of anticipating, let alone predicting, how the Supreme Court will rule in any individual case certainly intensifies when the Court reconsiders precedent as significant as Roe v. Wade. Many thought, for example, that the Court would do so in Webster v. Reproductive Health Services, which drew a then-record 78 amicus briefs. However, the Court declined even to reconsider Roe.
  • p.18

• In June Medical, the plaintiffs wanted the Court to establish a blanket rule that abortion providers have legal standing to challenge abortion restrictions simply because they perform abortions, that is, “based solely on their role in the abortion process.” The right created in Roe and continued in Casey belongs to women, not to abortion providers.
  • p.20

• Speaking in the same year that Casey was decided, Justice Ruth Bader Ginsburg observed that the Supreme Court has a “will for self-preservation and the knowledge that they are not a bevy of Platonic Guardians, and the Justices generally follow, they do not lead, changes taking place elsewhere in society.” Roe was an egregious and glaring exception; the Supreme Court attempted to lead the country in a different direction on abortion, but the country has not followed.
  Roe v. Wade remains one of the most controversial judicial decisions in American history. Even after 50 years, dozens of additional abortion decisions, and an ongoing vigorous national debate, most Americans oppose most of the abortions that Roe made legal. Even the most creative legal scholars have failed to find a reasonable constitutional justification for Roe, and most have stopped trying. Roe’s abortion regime is far more permissive than the common law or statutes, in England or America, have ever provided. Lower courts have never been able consistently to discern and apply the subjective holdings in the Court’s abortion cases. And even the Court’s chosen basis for creating the right to abortion—the detriment that prohibiting abortion would impose—has been significantly undermined by dramatic economic, legal, and social changes in society and culture.
  From changing public sentiment on abortion to advances in medical technology that reveal the mysteries of fetal development to expanding opportunities for women, the redefinition of their societal roles, and a wanting connection between abortion and women’s economic and social progress, it is appropriate for the Court to—as Justice Ginsburg rightly noted—follow the changes that have occurred elsewhere in society and put a halt to its misguided leadership on the issue of abortion.
  The only solution to this crisis is for the Supreme Court to correct its grave error and acknowledge that the Constitution does not protect a right to abortion. Roe and Casey went beyond distorting or incorrectly interpreting the Constitution; they ignored the Constitution altogether, exceeding the judiciary’s proper authority in the process. Dobbs v. Jackson Women’s Health Organization provides an opportunity for the Court to correct this grave error.
  • pp.21-22

Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976)

• Held:
  1. The physician appellants have standing to challenge the foregoing provisions of the Act with the exception of § 7, the constitutionality of which the Court declines to decide. Doe v. Bolton, 410 U. S. 179. P. 428 U. S. 62, and n. 2.
  2. The definition of viability in § 2(2) does not conflict with the definition in Roe v. Wade, 410 U. S. 113, 410 U. S. 160, 410 U. S. 163, as the point at which the fetus is "potentially able to live outside the mother's womb, albeit with artificial aid," and is presumably capable of "meaningful life outside the mother's womb." Section 2(2) maintains the flexibility of the term "viability" recognized in Roe. It is not a proper legislative or judicial function to fix viability, which is essentially for the judgment of the responsible attending physician, at a specific point in the gestation period. Pp. 428 U. S. 63-65.
  3. The consent provision in § 3(2) is not unconstitutional. The decision to abort is important and often stressful, and the awareness of the decision and its significance may be constitutionally assured by the State to the extent of requiring the woman's prior written consent. Pp. 428 U. S. 65-67.
  4. The spousal consent provision in § 3(3), which does not comport with the standards enunciated in Roe v. Wade, supra, at 410 U. S. 164-165, is unconstitutional, since the State cannot
  "'delegate to a spouse a veto power which the [S]tate itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.'" Pp. 428 U. S. 67-72.
  5. The State may not constitutionally impose a blanket parental consent requirement, such as § 3(4), as a condition for an unmarried minor's abortion during the first 12 weeks of her pregnancy for substantially the same reasons as in the case of the spousal consent provision, there being no significant state interests, whether to safeguard the family unit and parental authority or other vise, in conditioning an abortion on the consent of a parent with respect to the under-18-year-old pregnant minor. As stressed in Roe, "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician." 410 U.S. at 410 U. S. 164. Pp. 428 U. S. 72-75.
  • pp.53-54

• In Roe v. Wade, the Court concluded that the
  "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."
  410 U.S. at 410 U. S. 153. It emphatically rejected, however, the proffered argument
  "that the woman's right is absolute, and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason, she alone chooses."
  Ibid. Instead, this right "must be considered against important state interests in regulation." Id. at 410 U. S. 154.
  The Court went on to say that the "pregnant woman cannot be isolated in her privacy," for she "carries an embryo and, later, a fetus." Id. at 410 U. S. 159. It was therefore
  "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."
  Ibid. The Court stressed the measure of the State's interest in "the light of present medical knowledge." Id. at 410 U. S. 163. It concluded that the permissibility of state regulation was to be viewed in three stages:
  "For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician,"
  without interference from the State. Id. at 410 U. S. 164. The participation by the attending physician in the abortion decision, and his responsibility in that decision, thus, were emphasized. After the first stage, as so described, the State may, if it chooses, reasonably regulate the abortion procedure to preserve and protect maternal health. Ibid. Finally, for the stage subsequent to viability, a point purposefully left flexible for professional determination, and dependent upon developing medical skill and technical ability, [Footnote 1] the State may regulate an abortion to protect the life of the fetus and even may proscribe abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Id. at 410 U. S. 163-165.
  • pp.60-61

• In Roe, we used the term "viable," properly we thought, to signify the point at which the fetus is "potentially able to live outside the mother's womb, albeit with artificial aid," and presumably capable of "meaningful life outside the mother's womb," 410 U.S. at 410 U. S. 160, 410 U. S. 163. We noted that this point "is usually placed" at about seven months or 28 weeks, but may occur earlier. Id. at 410 U. S. 160.
  • p.62

• We agree with the District Court, and conclude that the definition of viability in the Act does not conflict with what was said and held in Roe. In fact, we believe that, § 2(2), even when read in conjunction with § 5 (proscribing an abortion "not necessary to preserve the life or health of the mother . . . unless the attending physician first certifies with reasonable medical certainty that the fetus is not viable"), the constitutionality of which is not explicitly challenged here, reflects an attempt on the part of the Missouri General Assembly to comply with our observations and discussion in Roe relating to viability. Appellant Hall, in his deposition, had no particular difficulty with the statutory definition. [Footnote 3] As noted above, we recognized in Roe that viability was a matter of medical judgment, skill, and technical ability, and we preserved the flexibility of the term. Section 2(2) does the same. Indeed, one might argue, as the appellees do, that the presence of the statute's words "continued indefinitely" favor, rather than disfavor, the appellants, for, arguably, the point when life can be "continued indefinitely outside the womb" may well occur later in pregnancy than the point where the fetus is "potentially able to live outside the mother's womb." Roe v. Wade, 410 U.S. at 410 U. S. 160.
  • pp.63-64

• The woman's consent. Under § 3(2) of the Act, a woman, prior to submitting to an abortion during the first 12 weeks of pregnancy, must certify in writing her consent to the procedure and "that her consent is informed and freely given, and is not the result of coercion." Appellants argue that this requirement is violative of Roe v. Wade,410 U.S. at 410 U. S. 164-165, by imposing an extra layer and burden of regulation on the abortion decision. See Doe v. Bolton, 410 U.S. at 410 U. S. 195-200. Appellants also claim that the provision is overbroad and vague.
  • pp.65-66

• We do not disagree with the result reached by the District Court as to § 3(2). It is true that Doe and Roe clearly establish that the State may not restrict the decision of the patient and her physician regarding abortion during the first stage of pregnancy. Despite the fact that apparently no other Missouri statute, with the exceptions referred to in n 6, supra, requires a patient's prior written consent to a surgical procedure, [Footnote 7] the imposition by § 3(2) of such a requirement for termination of pregnancy even during the first stage, in our view, is not, in itself, an unconstitutional requirement. The decision to abort, indeed, is an important and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences. The woman is the one primarily concerned, and her awareness of the decision and its significance may be assured, constitutionally, by the State to the extent of requiring her prior written consent.
  • pp.66-67

• The appellees defend § 3(3) on the ground that it was enacted in the light of the General Assembly's "perception of marriage as an institution," Brief for Appellee Danforth 34, and that any major change in family status is a decision to be made jointly by the marriage partners. Reference is made to an abortion's possible effect on the woman's childbearing potential. It is said that marriage always has entailed some legislatively imposed limitations: reference is made to adultery and bigamy as criminal offenses; to Missouri's general requirement, Mo.Rev.Stat. § 453.030.3 (1969), that, for an adoption of a child born in wedlock, the consent of both parents is necessary; to similar joint consent requirements imposed by a number of States with respect to artificial insemination and the legitimacy of children so conceived; to the laws of two States requiring spousal consent for voluntary sterilization; and to the long-established requirement of spousal consent for the effective disposition of an interest in real property. It is argued that
  "[r]ecognizing that the consent of both parties is generally necessary . . . to begin a family, the legislature has determined that a change in the family structure set in motion by mutual consent should be terminated only by mutual consent,"
  Brief for Appellee Danforth 38, and that what the legislature did was to exercise its inherent policymaking power "for what was believed to be in the best interests of all the people of Missouri." Id. at 40.
  The appellants, on the other hand, contend that § 3(3) obviously is designed to afford the husband the right unilaterally to prevent or veto an abortion, whether or not he is the father of the fetus, and that this not only violates Roe and Doe, but is also in conflict with other decided cases. See, e.g., Poe v. Gerstein, 517 F.2d 787, 794-796 (CA5 1975), appeal docketed, No. 75-713; Wolfe v. Schroering, 388 F.Supp. at 636-637; Doe v. Rampton, 366 F. Supp. 189, 193 (Utah 1973). They also refer to the situation where the husband's consent cannot be obtained because he cannot be located. And they assert that § 3(3) is vague and overbroad.
  • pp.68-69

• In Roe and Doe, we specifically reserved decision on the question whether a requirement for consent by the father of the fetus, by the spouse, or by the parents, or a parent, of an unmarried minor, may be constitutionally imposed. 410 U.S. at 410 U. S. 165 n. 67. We now hold that the State may not constitutionally require the consent of the spouse, as is specified under § 3(3) of the Missouri Act, as a condition for abortion during the first 12 weeks of pregnancy. We thus agree with the dissenting judge in the present case, and with the courts whose decisions are cited above, that the State cannot
  "delegate to a spouse a veto power which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy."
  • p.69

• It seems manifest that, ideally, the decision to terminate a pregnancy should be one concurred in by both the wife and her husband. No marriage my be viewed as harmonious or successful if the marriage partners are fundamentally divided on so important and vital an issue. But it is difficult to believe that the goal of fostering mutuality and trust in a marriage, and of strengthening the marital relationship and the marriage institution, will be achieved by giving the husband a veto power exercisable for any reason whatsoever or for no reason at all. Even if the State had the ability to delegate to the husband a power it itself could not exercise, it is not at all likely that such action would further, as the District Court majority phrased it, the "interest of the state in protecting the mutuality of decisions vital to the marriage relationship."
  392 F. Supp. at 1370. We recognize, of course, that, when a woman, with the approval of her physician but without the approval of her husband, decides to terminate her pregnancy, it could be said that she is acting unilaterally. The obvious fact is that, when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor. Cf. Roe v Wade, 410 U.S. at 410 U. S. 153.
  We conclude that § 3(3) of the Missouri Act is inconsistent with the standards enunciated in Roe v. Wade, 410 U.S. at 410 U. S. 164-165, and is unconstitutional. It is therefore unnecessary for us to consider the appellants' additional challenges to § 3(3) based on vagueness and overbreadth.
  • pp.71-72

• Other courts that have considered the parental consent issue in the light of Roe and Doe, have concluded that a statute like § 3(4) does not withstand constitutional scrutiny. See, e.g., Poe v. Gerstein, 517 F.2d at 792; Wolfe v. Schroering, 388 F.Supp. at 636-637; Doe v. Rampton, 366 F. Supp. at 193, 199; State v. Koome, 84 Wash. 2d 901, 530 P.2d 260 (1975).
  We agree with appellants and with the courts whose decisions have just been cited that the State may not impose a blanket provision, such as § 3(4), requiring the consent of a parent or person in loco parentis as a condition for abortion of an unmarried minor during the first 12 weeks of her pregnancy. Just as with the requirement of consent from the spouse, so here, the State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding the consent.
  Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution, and possess constitutional rights. See, e.g., Breed v. Jones, 421 U. S. 519 (1975); Goss v. Lopez, 419 U. S. 565 (1975); Tinker v. Des Moines School Dist., 393 U. S. 503 (1969); In re Gault, 387 U. S. 1 (1967). The Court indeed, however, long has recognized that the State has somewhat broader authority to regulate the activities of children than of adults.
  • p.74

• We emphasize that our holding that § 3(4) is invalid does not suggest that every minor, regardless of age or maturity, may give effective consent for termination of her pregnancy. See Bellotti v. Baird, post, p. 428 U. S. 132. The fault with § 3(4) is that it imposes a special consent provision, exercisable by a person other than the woman and her physician, as a prerequisite to a minor's termination of her pregnancy, and does so without a sufficient justification for the restriction. It violates the strictures of Roe and Doe.
  • p.75

• We held in Roe that, after the first stage,
  "the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health."
  410 U.S. at 410 U. S. 164. The question with respect to § 9 therefore is whether the flat prohibition of saline amniocentesis is a restriction which "reasonably relates to the preservation and protection of maternal health." Id. at 410 U. S. 163. The appellees urge that what the Missouri General Assembly has done here is consistent with that guideline, and is buttressed by substantial supporting medical evidence in the record to which this Court should defer.
  • p.76

• One may concede that there are important and perhaps conflicting interests affected by recordkeeping requirements. On the one hand, maintenance of records indeed may be helpful in developing information pertinent to the preservation of maternal health. On the other hand, as we stated in Roe, during the first stage of pregnancy, the State may impose no restrictions or regulations governing the medical judgment of the pregnant woman's attending physician with respect to the termination of her pregnancy. 410 U.S. at 410 U. S. 163, 410 U. S. 164. Furthermore, it is readily apparent that one reason for the recordkeeping requirement, namely, to assure that all abortions in Missouri are performed in accordance with the Act, fades somewhat into insignificance in view of our holding above as to spousal and parental consent requirements.
  Recordkeeping and reporting requirements that are reasonably directed to the preservation of maternal health and that properly respect a patient's confidentiality and privacy are permissible. This surely is so for the period after the first stage of pregnancy, for then the State may enact substantive as well as recordkeeping regulations that are reasonable means of protecting maternal health. As to the first stage, one may argue forcefully, as the appellants do, that the State should not be able to impose any recordkeeping requirements that significantly differ from those imposed with respect to other, and comparable, medical or surgical procedures. We conclude, however, that the provisions of §§ 10 and 11, while perhaps approaching impermissible limits, are not constitutionally offensive in themselves. Recordkeeping of this kind, if not abused or overdone, can be useful to the State's interest in protecting the health of its female citizens, and may be a resource that is relevant to decisions involving medical experience and judgment. [Footnote 13] The added requirements for confidentiality, with the sole exception for public health officers, and for retention for seven years, a period not unreasonable in length, assist and persuade us in our determination of the constitutional limits. As so regarded, we see no legally significant impact or consequence on the abortion decision or on the physician-patient relationship. We naturally assume, furthermore, that these recordkeeping and record-maintaining provisions will be interpreted and enforced by Missouri's Division of Health in the light of our decision with respect to the Act's other provisions, and that, of course, they will not be utilized in such a way as to accomplish, through the sheer burden of recordkeeping detail, what we have held to be an otherwise unconstitutional restriction. Obviously, the State may not require execution of spousal and parental consent forms that have been invalidated today.
  • pp.80-81

• In Roe v. Wade, 410 U. S. 113 (1073), this Court recognized a right to an abortion free from state prohibition. The task of policing this limitation on state police power is and will be a difficult and continuing venture in substantive due process. However, even accepting Roe v. Wade, there is nothing in the opinion in that case, and nothing articulated in the Court's opinion in this case, which justifies the invalidation of four provisions of House Committee Substitute for House Bill No. 1211 (hereafter Act) enacted by the Missouri 77th General Assembly in 1974 in response to Roe v. Wade. Accordingly, I dissent in part.
  • MR. JUSTICE STEWART, with whom MR. JUSTICE POWELL joins, concurring. p.92

• Roe v. Wade, supra at 410 U. S. 163, holds that, until a fetus becomes viable, the interest of the State in the life or potential life it represents is outweighed by the interest of the mother in choosing "whether or not to terminate her pregnancy." 410 U.S. at 410 U. S. 153. Section 3(3) of the Act provides that a married woman may not obtain an abortion without her husband's consent. The Court strikes down this statute in one sentence. It says that,
  "since the State cannot . . . proscribe abortion . . . the State cannot delegate authority to any particular person, even the spouse, to prevent abortion. . . ."
  Ante at 428 U. S. 69. But the State is not -- under § 3(3) -- delegating to the husband the power to vindicate the State's interest in the future life of the fetus. It is, instead, recognizing that the husband has an interest of his own in the life of the fetus which should not be extinguished by the unilateral decision of the wife. [Footnote 3/1] It by no means follows, from the fact that the mother's interest in deciding "whether or not to terminate her pregnancy" outweighs the State's interest in the potential life of the fetus, that the husband's interest is also outweighed, and may not be protected by the State. A father's interest in having a child -- perhaps his only child -- may be unmatched by any other interest in his life. See Stanley v. Illinois, 405 U. S. 645, 405 U. S. 651 (1972), and cases there cited. It is truly surprising that the majority finds in the United States Constitution, as it must in order to justify the result it reaches, a rule that the State must assign a greater value to a mother's decision to cut off a potential human life by abortion than to a father's decision to let it mature into a live child. Such a rule cannot be found there, nor can it be found in Roe v. Wade, supra. These are matters which a State should be able to decide free from the suffocating power of the federal judge, purporting to act in the name of the Constitution.
  In describing the nature of a mother's interest in terminating a pregnancy, the Court in Roe v. Wade mentioned only the post-birth burdens of rearing a child, 410 U.S. at 410 U. S. 153, and rejected a rule based on her interest in controlling her own body during pregnancy. Id. at 410 U. S. 154. Missouri has a law which prevents a woman from putting a child up for adoption over her husband's objection, Mo.Rev.Stat. § 453.030 (1969). This law represents a judgment by the State that the mother's interest in avoiding the burdens of childrearing do not outweigh or snuff out the father's interest in participating in bringing up his own child. That law is plainly valid, but no more so than § 3(3) of the Act now before us, resting, as it does, on precisely the same judgment.
  • MR. JUSTICE STEWART, with whom MR. JUSTICE POWELL joins, concurring. pp.92-94

• Section 6(1) of the Act provides:
  "No person who performs or induces an abortion shall fail to exercise that degree of professional skill, care and diligence to preserve the life and health of the fetus which such person would be required to exercise in order to preserve the life and health of any fetus intended to be born and not aborted. Any physician or person assisting in the abortion who shall fail to take such measures to encourage or to sustain the life of the child, and the death of the child results, shall be deemed guilty of manslaughter. . . . Further, such physician or other person shall be liable in an action for damages."
  If this section is read in any way other than through a microscope, it is plainly intended to require that, where a "fetus [may have] the capability of meaningful life outside the mother's womb," Roe v. Wade, 410 U.S. at 410 U. S. 163, the abortion be handled in a way which is designed to preserve that life notwithstanding the mother's desire to terminate it. Indeed, even looked at through a microscope, the statute seems to go no further. It requires a physician to exercise "that degree of professional skill . . . to preserve the . . . fetus" which he would be required to exercise if the mother wanted a live child. Plainly, if the pregnancy is to be terminated at a time when there is no chance of life outside the womb, a physician would not be required to exercise any care or skill to preserve the life of the fetus during abortion, no matter what the mother's desires. The statute would appear then to operate only in the gray area after the fetus might be viable, but while the physician is still able to certify "with reasonable medical certainty that the fetus is not viable." See § 5 of the Act, which flatly prohibits abortions absent such a certification. Since the State has a compelling interest, sufficient to outweigh the mother's desire to kill the fetus, when the "fetus . . . has the capability of meaningful life outside the mother's womb," Roe v. Wade, supra, at 410 U. S. 163, the statute is constitutional.
  Incredibly, the Court reads the statute instead to require "the physician to preserve the life and health of the fetus, whatever the stage of pregnancy," ante at 428 U. S. 83, thereby attributing to the Missouri Legislature the strange intention of passing a statute with absolutely no chance of surviving constitutional challenge under Roe v. Wade, supra.
  • MR. JUSTICE STEWART, with whom MR. JUSTICE POWELL joins, concurring. pp.99-100

• In Roe v. Wade, 410 U. S. 113, the Court held that a woman's right to decide whether to abort a pregnancy is entitled to constitutional protection. That decision, which is now part of our law, answers the question discussed in Part IV-E of the Court's opinion, but merely poses the question decided in Part IV-D.
  If two abortion procedures had been equally accessible to Missouri women, in my judgment, the United States Constitution would not prevent the state legislature from outlawing the one it found to be less safe even though its conclusion might not reflect a unanimous consensus of informed medical opinion. However, the record indicates that, when the Missouri statute was enacted, a prohibition of the saline amniocentesis procedure was almost tantamount to a prohibition of any abortion in the State after the first 12 weeks of pregnancy. Such a prohibition is inconsistent with the essential holding of Roe v. Wade, and therefore cannot stand.
  In my opinion, however, the parental consent requirement is consistent with the holding in Roe. The State's interest in the welfare of its young citizens justifies a variety of protective measures. Because he may not foresee the consequences of his decision, a minor may not make an enforceable bargain. He may not lawfully work or travel where he pleases, or even attend exhibitions of constitutionally protected adult motion pictures. Persons below a certain age may not marry without parental consent. Indeed, such consent is essential even when the young woman is already pregnant. The State's interest in protecting a young person from harm justifies the imposition of restraints on his or her freedom even though comparable restraints on adults would be constitutionally impermissible. Therefore, the holding in Roe v. Wade that the abortion decision is entitled to constitutional protection merely emphasizes the importance of the decision; it does not lead to the conclusion that the state legislature has no power to enact legislation for the purpose of protecting a young pregnant woman from the consequences of an incorrect decision.
  • MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, concurring in part and dissenting in part, pp.101-102

“Jane Roe's Baby Tells Her Story” (September 9, 2021)

“Jane Roe's Baby Tells Her Story” by Joshua Prager, The Atlantic, (September 9, 2021)

• Nearly half a century ago, Roe v. Wade secured a woman’s legal right to obtain an abortion. The ruling has been contested with ever-increasing intensity, dividing and reshaping American politics. And yet for all its prominence, the person most profoundly connected to it has remained unknown: the child whose conception occasioned the lawsuit.
  Roe’s pseudonymous plaintiff, Jane Roe, was a Dallas waitress named Norma McCorvey. Wishing to terminate her pregnancy, she filed suit in March 1970 against Dallas County District Attorney Henry Wade, challenging the Texas laws that prohibited abortion. Norma won her case. But she never had the abortion. On January 22, 1973, when the Supreme Court finally handed down its decision, she had long since given birth—and relinquished her child for adoption.
  The Court’s decision alluded only obliquely to the existence of Norma’s baby: In his majority opinion, Justice Harry Blackmun noted that a “pregnancy will come to term before the usual appellate process is complete.” The pro-life community saw the unknown child as the living incarnation of its argument against abortion. It came to refer to the child as “the Roe baby.”
• Norma was ambivalent about abortion. She no more absolutely opposed Roe than she had ever absolutely supported it; she believed that abortion ought to be legal for precisely three months after conception, a position she stated publicly after both the Roe decision and her religious awakening. She was ambivalent about adoption, too. Playgrounds were a source of distress: Empty, they reminded Norma of Roe; full, they reminded her of the children she had let go.
• I had assumed, having never given the matter much thought, that the plaintiff who had won the legal right to have an abortion had in fact had one. But as Justice Blackmun noted, the length of the legal process had made that impossible. When I read, in early 2010, that Norma had not had an abortion, I began to wonder whether the child, who would then be an adult of almost 40, was aware of his or her background. Roe might be a heavy load to carry. I wondered too if he or she might wish to speak about it.
• In April 1989, Norma McCorvey attended an abortion-rights march in Washington, D.C. She had revealed her identity as Jane Roe days after the Roe decision, in 1973, but almost a decade elapsed before she began to commit herself to the pro-choice movement. Her name was not yet widely known when, shortly before the march, three bullets pierced her home and car. Norma blamed the shooting on Roe, but it likely had to do with a drug deal. (A woman had recently accused Norma of shortchanging her in a marijuana sale.) Norma landed in the papers. The feminist lawyer Gloria Allred approached her at the Washington march and took her to Los Angeles for a run of talks, fundraisers, and interviews.
• The answers Shelley had sought all her life were suddenly at hand. She listened as Hanft began to tell what she knew of her birth mother: that she lived in Texas, that she was in touch with the eldest of her three daughters, and that her name was Norma McCorvey. The name was not familiar to Shelley or Ruth. Although Ruth read the tabloids, she had missed a story about Norma that had run in Star magazine only a few weeks earlier under the headline “Mom in Abortion Case Still Longs for Child She Tried to Get Rid Of.” Hanft began to circle around the subject of Roe, talking about unwanted pregnancies and abortion. Ruth interjected, “We don’t believe in abortion.” Hanft turned to Shelley. “Unfortunately,” she said, “your birth mother is Jane Roe.”
  That name Shelley recognized. She had recently happened upon Holly Hunter playing Jane Roe in a TV movie. The bit of the movie she watched had left her with the thought that Jane Roe was indecent. “The only thing I knew about being pro-life or pro-choice or even Roe v. Wade,” Shelley recalled, “was that this person had made it okay for people to go out and be promiscuous.”
• On June 20, 1989, in bold type, just below a photo of Elvis, the Enquirer presented the story on its cover: “Roe vs. Wade Abortion Shocker—After 19 Years Enquirer Finds Jane Roe’s Baby.” The “explosive story” unspooled on page 17, offering details about the child—her approximate date of birth, her birth weight, and the name of the adoption lawyer. The story quoted Hanft. The child was not identified but was said to be pro-life and living in Washington State. “I want her to know,” the Enquirer quoted Norma as saying, “I’ll never force myself upon her. I can wait until she’s ready to contact me—even if it takes years. And when she’s ready, I’m ready to take her in my arms and give her my love and be her friend.” But an unnamed Shelley made clear that such a day might never come. “I’m glad to know that my birth mother is alive,” she was quoted in the story as saying, “and that she loves me—but I’m really not ready to see her. And I don’t know when I’ll ever be ready—if ever.” She added: “In some ways, I can’t forgive her … I know now that she tried to have me aborted.”
  The National Right to Life Committee seized upon the story. “This nineteen-year-old woman’s life was saved by that Texas law,” a spokesman said. If Roe was overturned, he went on, countless others would be saved too.
  Perhaps because the Roe baby went unnamed, the Enquirer story got little traction, picked up only by a few Gannett papers and The Washington Times. But it left a deep mark on Shelley. Having begun work as a secretary at a law firm, she worried about the day when another someone would come calling and tell the world—against her will—who she was.
• Eight months had passed since the Enquirer story when, on a Sunday night in February 1990, there was a knock at the door of the home Shelley shared with her mother. She opened it to find a young woman who introduced herself as Audrey Lavin. She was a producer for the tabloid TV show A Current Affair. Lavin told Shelley that she would do nothing without her consent. Shelley felt herself flush, and turned Lavin away. The next day, flowers arrived with a note. Lavin wrote that Shelley was “of American history”—both a “part of a great decision for women” and “the truest example of what the ‘right to life’ can mean.” Her desire to tell Shelley’s story represented, she wrote, “an obligation to our gender.” She signed off with an invitation to call her at Seattle’s Stouffer Madison Hotel.
  Ruth contacted their lawyer. “It was like, ‘Oh God!’” Shelley said. “ ‘I am never going to be able to get away from this!’” The lawyer sent another strong letter. A Current Affair went away.
• Shelley had long considered abortion wrong, but her connection to Roe had led her to reexamine the issue. It now seemed to her that abortion law ought to be free of the influences of religion and politics. Religious certitude left her uncomfortable. And, she reflected, “I guess I don’t understand why it’s a government concern.” It had upset her that the Enquirer had described her as pro-life, a term that connoted, in her mind, “a bunch of religious fanatics going around and doing protests.” But neither did she embrace the term pro-choice: Norma was pro-choice, and it seemed to Shelley that to have an abortion would render her no different than Norma. Shelley determined that she would have the baby. Abortion, she said, was “not part of who I was.”
  Shelley and Doug moved up their wedding date. They were married in March 1991, standing before a justice of the peace in a chapel in Seattle. Later that year, Shelley gave birth to a boy. Doug asked her to give up her career and stay at home. That was fine by her. The more people Shelley knew, the more she worried that one of them might learn of her connection to Roe. Every time she got close to someone, Shelley found herself thinking, Yeah, we’re really great friends, but you don’t have a clue who I am.
• Shelley was not able to lock her birth mother away. In the decade since Norma had been thrust upon her, Shelley recalled, Norma and Roe had been “always there.” Unknowing friends on both sides of the abortion issue would invite Shelley to rallies. Every time, she declined.
  Norma had come to call Roe “my law.” And, in time, Shelley too became almost possessive of Roe; it was her conception, after all, that had given rise to it. Having previously changed the channel if there was ever a mention of Roe on TV, she began, instead, in the first years of the new millennium, to listen. She began to Google Norma too. “I don’t like not knowing what she’s doing,” Shelley explained.
  Shelley then began to look online for her pseudonymous self, to learn what was being written about “the Roe baby.” The pro-life community saw that unknown baby as a symbol. Shelley wanted no part of this. “My association with Roe,” she said, “started and ended because I was conceived.”
• From Shelley’s perspective, it was clear that if she, the Roe baby, could be said to represent anything, it was not the sanctity of life but the difficulty of being born unwanted.

“The Untold Dallas Origins of Roe v. Wade” (January 11, 2022)

Joshua Prager, “The Untold Dallas Origins of Roe v. Wade”, by D Magazine, (January 11, 2022)

• September 1969 had arrived when Coffee came upon mention, in the SMU library, of People v. Belous, a case that only days before had exonerated a California doctor for referring a woman to an illegal abortion provider. Coffee’s mind raced. Here was a ruling that rendered a state abortion law void on grounds that it was constitutionally vague, that it violated the due process clause of the Fourteenth Amendment. Surely the abortion law in Texas was vulnerable, too. “I just thought, My goodness!” recalls Coffee. “The same logic would apply!”
  The thought had not occurred to Coffee before. But suddenly it consumed her, the idea, as she later explained, that “process” aside, laws that deprive a person of “some important fundamental liberty”—such as privacy—are in and of themselves impermissible.
  Coffee was a feminist, a member of Women for Change and the National Organization for Women and the Women’s Equity Action League. Long mindful that birth control was unreliable at best, and that the illegality of abortion, says Coffee, “seemed to be something that held women back from achieving their full potential,” she now saw that the Texas law enforcing that illegality was weak—a legal relic out of step with the fact, she says, that “if a woman self-aborted, she was guilty of no crime, not even a misdemeanor.”
  In a few days, the abortion rights lawyer Roy Lucas would file in New York the first suit against a state abortion law. Coffee told McCluskey over lunch at the Adolphus that she wished to do the same. There was, she said, just one problem: “I couldn’t figure out how I could find a pregnant woman who was willing to come forward.”
  Four months later, in January 1970, McCluskey phoned Coffee with word of a woman who’d come to his office wanting an abortion.
• It was still January when Norma McCorvey and McCluskey met Coffee downtown in her office at Palmer, Palmer & Burke, where, for $450 a month, Coffee waded through petitions for bankruptcy.
  Coffee was intense, incapable of small talk, pale and unkempt besides. All at once, Norma was ill at ease beside her. She looked, said Norma, “like she got out of bed and forgot to comb her hair.”
  Looking back at Norma, Coffee saw a small woman with a big belly. Says Coffee: “She looked really pregnant.”
  Exactly how far along Norma was could not be known. In 1970, gestational age could only be estimated, and estimates could be off by up to four weeks. “We weren’t using ultrasound at that time,” explains Frank Bradley, the Dallas obstetrician who delivered Norma’s second child. Instead, he says, doctors used pelvic exams and menstrual history to “try to figure it out best they could.”
  It was more than likely that Norma had reached at least her twentieth week. And she had thus reached the legal limit at which any doctor in the United States—even where abortion was legal—could perform an elective abortion. In January 1970, abortion was legal only in Oregon, where residents were permitted to abort through the first 150 days, and in California, where nonresidents, too, could abort through 20 weeks. Abortion was also not illegal in the District of Columbia. (A federal district court had recently declared the anti-abortion law in D.C. -unconstitutional, and the appellee in that case performed abortions until at least the 20th week.)
  Coffee thus knew that it was almost certainly too late for Norma to get an abortion. “It was my opinion,” the lawyer soon recalled, “that, very likely, the suit would not solve her immediate problem.” It was not too late, however, for Norma to file suit. Indeed, it would be of no legal consequence if the suit Norma filed came to term after she did. “There were fairly established principles that that doesn’t moot the case,” says Coffee. (Among them was the category of cases deemed “capable of repetition yet evading review”—which meant, in essence, that the issue was a recurring one, but in each instance would pass before the courts had time to fully address it.)
  Coffee told Norma what she knew. “I remember saying,” she recalls, “that I thought she was probably too far along to have an abortion under the protection of the federal court.” But Norma had nowhere else to turn. Coffee was her last hope.
  Coffee told Norma that if she filed suit, she might have to testify. Norma agreed—never mind, says Coffee, that she “likely had no idea what that would entail.” Coffee sensed that Norma had little idea what filing suit even meant. “I could tell she didn’t have a lot of education,” says Coffee. “Maybe she was being a little too cooperative. … Most people would ask more questions if they were thinking about filing a lawsuit over something of that magnitude.” Norma only asked if filing suit would cost her money. It would not; Coffee would do the case pro bono. Norma agreed to file and left.
• Coffee marveled. McCluskey had come through. She had a plaintiff. And that plaintiff was perfect. As Coffee later told a reporter: “It had to be a pregnant woman wanting to get an abortion. She couldn’t have the funds to travel to California … for a legal abortion. And we had to have someone who could take the publicity. We weren’t able to guarantee her anonymity.”
  Still, Coffee would try to keep Norma anonymous. Alone in her office, she fashioned for her would-be plaintiff a pseudonym, combining Jane, which was suitably common, she says, with Roe, which was standard legal vernacular and already the surname of two plaintiffs (alongside two Hoes, two Poes, and a Doe) in a 1959 lawsuit on contraception. “In my mind,” says Coffee, “I considered her being Jane Roe as soon as I got an actual woman being ready to file.”
• Weddington seemed an odd person to ask. That she was smart was undeniable; she’d skipped two grades, graduated college magna cum laude besides. “I have received very few B’s in my whole life,” she later recalled. But at 24 years old, Weddington was hardly countercultural. She was the daughter of a Methodist minister, had headed her high school chapter of the Future Homemakers of America, and had been assistant house mother for her Delta Gamma sorority. She was middle-class and married.
  Weddington, though, fervently believed in the need for abortion reform. Unbeknownst to the group, she had found herself pregnant the year before she was to marry and had traveled to a clinic south of the border in a town called Piedras Negras to have an abortion.
  Prim in her ponytail and pantsuits, Weddington had kept her abortion secret. But when approached by the group of UT alumnae, she agreed to investigate their question at no cost. And in late November, she let the women know that she had found no clear answer; the law was ambiguous. The group then wondered if the Texas abortion law could be challenged in federal court. Weddington thought so. Asked if she might file suit, Weddington balked.
• Weddington was confident. Her parents had raised her and her younger siblings to believe, she later recalled, that they “could do whatever they wanted,” and so she had—from soloing in the church choir to serving as secretary of her college student body. But her body of legal work was sparse—a few divorces and wills, an adoption. She suggested that the group hire a lawyer in a firm, she recalled, “with research and secretarial backup.”
  The women, however, wanted Weddington. So back to the library she went, comforted by the thought, she later wrote, that any suit she filed would simply back the growing number of suits that already contested abortion laws in other states.
  Still, the drafting of documents was daunting. Weddington again wondered if the case might be better handled by a lawyer with knowledge of federal courts and procedure. A former classmate turned clerk leapt to mind. On December 3, she phoned Linda Coffee.
  Coffee was delighted. She’d arrived at this same juncture and simply needed a plaintiff. Weddington suggested that Coffee file suit on behalf of the alumnae group in Austin. Coffee agreed and typed Weddington a letter the next day. “Would you consider being co-counsel in the event that a suit is actually filed?” she wrote. “I have always found that it is a great deal more fun to work with someone on a lawsuit of this nature.” Weddington phoned to accept.
  Coffee worried, however, that because the Austin group was not a pregnant woman, it might not have standing in the eyes of the court. Besides, only a case filed in Dallas could land on the sympathetic desk of Coffee’s mentor, Judge Hughes. The search for a plaintiff thus continued, extending into late January, when an exultant Coffee phoned Weddington to tell of the pregnant woman who’d just left her office.
• Days later, Norma was all belly and blue jeans when she met the two lawyers for pizza in a restaurant popular with SMU students. Seeing Coffee again made Norma anxious. But Norma was taken with Weddington, strawberry-blonde and curvy and just two years older than she. “She was wholesome and robust and had things happening!” said Norma. “I fell in love with Sarah. She had all this hair.” Over a tablecloth of red and white gingham, talk turned to the inalienable rights of women. The lawyers asked, recalled Norma, if it was not a good thing that women could smoke in public, could vote. Norma agreed that it was, and then that women ought to have the right to an abortion, too.
  Still, it was not conviction that had led Norma to Columbo’s Pizza Parlor this winter afternoon; it was happenstance, the fact that her doctor happened to know McCluskey who happened to know Coffee. And Norma again made clear that she did not want to further a cause; she wanted an abortion. Weddington repeated what Coffee had said, about her probably being too far along. “I’m not saying I misunderstood,” said Norma. “But I thought we were all real clear on what I really wanted.”
  Had Coffee and Weddington really wanted to help their potential client get an abortion, they might have at least tried. As Victoria Foe, a biology student who worked with Weddington on the referral network in Austin, recalled: “In desperate situations, women up to 20 weeks were not turned away.” And the lawyers might have taken Norma to a doctor for an X-ray so as to better gauge how far along she actually was. If there was time to end her pregnancy, they might have asked a judge to issue a temporary restraining order to prevent state officials from enforcing the law against their client. Or they might have sent Norma to a clinic in their network—be it in Piedras Negras, just over the Mexican border (where both Weddington and Foe had had abortions), or in California, where every Friday a group of Texas women flew. “American [Airlines] was the plane,” Weddington recalled decades later. “About 10 women every Friday went to California and then they were back late on Sunday.”
  But the lawyers did none of those things. It didn’t matter that only months before, Weddington had helped to write the American Bar Association’s code of ethical standards, which instructed that every lawyer must work “solely for the benefit of his client.” Weddington and Coffee had interests of their own. They wished to file a lawsuit. And, as the law professor Kevin McMunigal later noted, they now set aside Norma’s desire for an abortion “in favor of the collective interests of the abortion rights cause.”
• Wade was happy to go unrecognized. (Working for the FBI after law school, he’d posed in Ecuador as a journalist.) And that a Texas DA would keep his liberalism quiet made sense. Crime and convictions kept him employed. Says his son Kim: “I don’t think his liberal tendencies would have helped him get elected.”
  Those tendencies extended to abortion. Unknown to everyone, Henry Menasco Wade was pro-choice.
  Wade would never say so publicly. But almost 20 years after a lawsuit had pitted him in perpetuity against Roe, he would confide in his son—as they drove east in a Chevy pickup toward the family farm in Sachse—that he had disagreed with the abortion statutes it had been his charge to defend. Says Kim: “he was not anti-abortion.”
  Wade had generally looked past the statutes; his few prosecutions regarding abortion had sought less to protect the unborn than the women carrying them, the DA targeting only the most reckless of practitioners. But no longer could he do so. For Coffee, the young and brilliant lawyer who’d once sought to work for him, had named him the defendant in Roe.
  That was actually a mistake. Coffee had sought to enjoin all the district attorneys in Texas from enforcing the abortion statute, not merely Wade. She ought to have named the Texas attorney general, Crawford Martin, as defendant. But the court did not instruct Coffee and Weddington to amend their complaint, and Wade’s office readied to work together with the office of the Texas AG.
• Roe v. Wade and Doe v. Wade were now part of the U.S. legal system. But when Coffee let Norma know, the plaintiff was unmoved. She was due to give birth in three months and had come, by March, to grasp that her suit would not end her pregnancy. It was, however, poised to end many others, after Coffee and Weddington amended Roe to make it a class action suit on behalf of their plaintiff and, they wrote, “all other women similarly situated.”
  The lawyers laid out their plaintiff’s predicament, filing an affidavit in late May. Little more than two pages, and ostensibly written by Norma, it contained a few small errors. (Fewer than five years, for example, not six, had passed since Norma’s divorce.) Its central claims, however, were true. Jane Roe had chosen to remain anonymous to avoid the “notoriety occasioned by the lawsuit.” She considered “the decision of whether to bear a child a highly personal one.” She had not traveled to where abortion was legal because she was poor. And the abortion providers she could afford were both illegal and, potentially, dangerous.
  Still, one assertion at the heart of the affidavit was not true. It was neither the economic strain of pregnancy nor the stigma of birthing an “illegitimate” child that had led Jane Roe to want an abortion. She simply did not want another child.

“Joe Biden's long evolution on abortion rights still holds surprises” (June 5, 2019)

“Joe Biden's long evolution on abortion rights still holds surprises” by Heidi Przybyla, NBC News, June 5, 2019

• A devout Roman Catholic, Biden says he personally opposes abortion and has spoken openly about his internal struggles with the issue.
  In his 2007 book “Promises to Keep,” Biden describes his beliefs and voting record on abortion as “middle of the road.” He wrote that he doesn’t think he has “a right to impose my view on the rest of society” and committed to protecting Roe v. Wade, the 1973 Supreme Court decision establishing a constitutional right to abortion. In a recent email to supporters, Biden underscored: "I refuse to impose my religious beliefs on other people."
• As recently as Tuesday, Biden reaffirmed his support for Roe, telling voters in New Hampshire that it is “the law of the land, a woman has a right to choose.” He added that if the Supreme Court overturned Roe v. Wade while he was president, he would “push” legislation to keep it legal.
  Yet his presidential campaign confirmed to NBC News that Biden still supports the Hyde Amendment, a four-decade-old ban on using federal funds for abortion services, except in cases of rape, incest or to save the life of the woman.
  Biden’s continued support for Hyde not only sets him apart from the rest of his 2020 Democratic competitors, but it may surprise progressive groups like the American Civil Liberties Union, which promoted a recent tweet by one of its activists appearing to get Biden to commit to ending Hyde during a rope-line exchange in South Carolina. Biden’s campaign told NBC he would be open to repealing Hyde if abortion avenues currently protected under Roe were threatened.
• Jamal Brown, Biden's press secretary, said the candidate’s evolution on the issue is well documented. Biden, who said he thought Roe was wrongly decided when he arrived in the Senate in 1973, now “firmly believes that Roe v. Wade is the law of the land and should not be overturned,” Brown said. He added that Biden “has fought vigorously to protect a woman's right to choose and against measures criminalizing abortion. As chairman of the Judiciary Committee, he blocked the Supreme Court nomination of Judge Robert Bork and he opposed anti-choice justices Roberts, Alito and Thomas.”
• [W]hile Biden later became a staunch defender of Roe, in addition to consistently opposing federal funding of abortions, he did vote in 1981 for a failed constitutional amendment allowing states to overturn Roe. At the time, he called it “the single most difficult vote I’ve cast as a U.S. senator.”
  When it came up again the following year, Biden voted against the bill.

“The Constitutional Right Not to Kill” (2012)

“The Constitutional Right Not to Kill” by Mark L. Rienzi, Emory Law Journal, Volume 62, Issue 1, 2012

• In each of the contexts discussed so far—the military, capital punishment, and assisted suicide—there are of course different views as to whether the killings in question are morally permissible. Yet there is essentially no room for debate that each of these contexts involves the killing of other human beings. In short, the debate is over the morality or permissibility of the killing, not whether a killing takes place at all.
  The context of abortion, of course, is different. In Roe v. Wade, the Supreme Court famously declared itself unable to determine when human life begins: “[T]he judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” Thus, in some ways the abortion debate is about whether abortion is killing at all, with some abortion supporters arguing that abortion does not involve killing, and abortion opponents arguing that it does. This dispute over whether abortion is a killing in the first place adds a difficulty that is not present in the other contexts where the fact of killing is agreed upon, and the only questions concern the permissibility of that killing.
  Nevertheless, despite this additional level of dispute, the abortion context offers the most systematic and all-encompassing example of government efforts to ensure that unwilling individuals are not forced to engage in what

they believe to be killings.

• • p.147

• Historically, healthcare providers have generally been free to refuse to perform abortions. At common law, physicians actually had no duty to treat any patient at all, even in an emergency. While the exact legal status of abortion at common law is the subject of intense debate, there has been no suggestion from historians on either side that providers were forced by the government to participate in abortions. In fact, even historians supporting the Roe decision acknowledge that abortion was at best tolerated—rather than expressly legalized—and that the law dealt quite harshly with abortion providers, including imposing the death penalty on the provider if a woman died during an abortion. Moreover, medical ethics codes for centuries prohibited participation in abortions—a prohibition that would be difficult to follow if the state could force medical providers to perform abortions.
  • pp.147-148

• Even before Roe was decided, states that permitted abortion were taking action to protect those physicians or hospitals that objected to participation in abortions. In 1971, New York enacted a criminal law prohibiting discrimination against any person for his or her refusal to participate in abortions. Many other states—including Arkansas, Alaska, Colorado, Delaware, Florida, Georgia, Hawaii, and Maryland—included explicit conscience protections for individuals and institutions in the same statutes that liberalized their abortion laws.
  That trend of protecting conscientious objectors to abortions continued and dramatically expanded in the aftermath of Roe. Today, virtually every state in the country has some sort of statute protecting individuals and, in many cases, entities who refuse to provide abortions. Most of these statutes arose in the decade following Roe. Some states expressly limit this protection to the practice of abortion, which is treated specially. Other states protect conscience for other procedures as well.
  • pp.148-149

• See Lynn D. Wardle, Protecting the Rights of Conscience of Health Care Providers, 14 J. LEGAL MED. 177, 180–81 (1993) (“Most conscience clause provisions were adopted between 1973 and 1982, when the federal courts were broadly defining a new and very controversial constitutional privacy right to abortion.

Concern about discrimination against individuals who, for religious or other moral reasons, objected to participating in providing abortion services led to the widespread adoption of conscience clause statutes.” (footnote omitted)).

• • Footnote 134, p.149

• At the federal level, Congress likewise took almost immediate action after Roe to protect physicians and hospitals from being forced to perform abortions. In particular, as part of legislation known as the “Church Amendment,” Congress clarified that recipients of certain federal funds were not required to provide abortions, and that those facilities were prohibited from discriminating against employees who refused to participate in abortions.
  When inserting the particular language in the Church Amendment that protects individual conscience, Representative Heinz said the following:
  Mr. Chairman, freedom of conscience is one of the most sacred, inviolable rights that all men hold dear. With the Supreme Court decision legalizing abortion under certain circumstances, the House must now assure people who work in hospitals, clinics, and other such health institutions that they will never be forced to engage in any procedure that they regard as morally abhorrent.
  . . . [In addition to protecting institutions from being forced to perform abortions,] we must also guarantee that no hospital will discharge, or suspend the staff privileges of, any person because he or she either cooperates or refuses to cooperate in the performance of a lawful abortion or sterilization because of moral convictions.
  . . . .
  Congress must clearly state that it will not tolerate discrimination of any kind against health personnel because of their beliefs or actions with regard to abortions or sterilizations. I ask, therefore, that the House approve my amendment . . . .
  Without further discussion, the House promptly passed the Amendment and the bill by an overwhelming margin: 372–1. The Church Amendment was ultimately enacted and signed into law in 1973.
  • pp.150-151

• Thus, in a variety of ways—and at both the state and federal levels— legislators acted quickly, decisively, and at times nearly unanimously to protect conscience rights in the wake of Roe. These protections extended not only to direct personal performance of an abortion but more broadly to providers who have an objection to being forced to “participate,” “refer,” “assist,” “arrange for,” “admit any patient for,” “allow the use of hospital facilities for,” “accommodate,” or “advise” concerning abortion. The speedy passage and near ubiquity of these laws demonstrate that a great majority of Americans at the time—regardless of their famously intense disputes as to the merits of the underlying abortion question—agreed that the government should not have the power to compel participation in abortions by unwilling individuals and institutions.
  • p.152

• Despite history-friendly Justices’ best efforts, many substantive due process decisions have not adhered strictly to the history and tradition approach. For example, the majority in Lawrence v. Texas overruled history- driven Bowers v. Hardwick without once mentioning Glucksberg’s attempt at an authoritative, history-based framework. 169 Yet even those substantive due process opinions in which history was not explicitly controlling tend to make at least some effort to portray the rights they protect as “deeply rooted in this Nation’s history and tradition.” Roe v. Wade argued at length that abortion was traditionally much less strictly regulated than in the mid-twentieth century, 170 and Lawrence v. Texas sought to undermine Bowers’s historical evidence

supporting anti-sodomy laws, rather than merely dismissing the historical approach as irrelevant.
Together, Roe and Lawrence confirm that a right can qualify for substantive due process protection even if the conduct was not previously protected as constitutional and was not even legal. Rather, the Court simply appears to be looking at whether, as a practical matter, individuals could or could not engage in the activity at issue.172 Put differently, the historical analysis appears to be satisfied by a showing of only de facto freedom, even if that freedom historically had not been de jure, or officially recognized by the law.

• • p.157

• The Court’s historical analysis in Roe and Lawrence confirms that a practice need not have longstanding legal protection in order to qualify for substantive due process protection. Thus, despite the absence of any laws affirmatively protecting elective abor tion, despite undisputed prohibitions on abortion for most of the century prior to Roe, and despite common law indications that at least some abortions were illegal, the Court in Roe found the historical analysis satisfied because it determined women enjoyed “substantially broader” freedom to abort at earlier times:
  It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well intothe 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.
  • p.166

• The right not to kill easily surpasses the historical foundations offered by the Court in Roe and Lawrence. Roe and Lawrence concerned practices that were illegal for most of the nation’s history, and were not expressly protected in law until the recent past. Yet both were deemed sufficient for substantive due process protection. In contrast, the right not to kill has enjoyed broad legal protection, across a variety of different contexts and times. Simply put, if Roe and Lawrence pass the historical foundations test, the right not to kill does so with flying colors.
  • p.166

• In Roe and Lawrence, the Court found facts more favorable to the proposed due process rights. In Roe, the Court found some support for an abortion right in the limited evidence of a trend toward legalization—a stronger trend toward legalization than anything the Glucksberg Court could find, but hardly an overwhelming one. The Court noted that “about one-third” of the states had recently changed their abortion laws to make them “less stringent.” The Roe Court also emphasized the official positions of American professional associations. For over 100 years, the American Medical Association maintained the position that abortion should generally be illegal and doctors should not participate in the procedure before finally changing its position in 1970 to support abortion. Similarly, in 1970 the American Public Health Association adopted new “Standards for Abortion Services” calling for abortion referral to be easily available, and the American Bar Association called for abortion to be largely unrestricted in the first twenty weeks of pregnancy. Though the Court did not explicitly rest its holding on these professional associations’ positions, they did support its reasoning, and the Court spent six pages of the majority opinion discussing them.
  • pp.167-168

• [T]he best example of contemporary trends and consensus in favor of a right not to kill comes in the abortion context, where protection of conscience has been almost universal and has all occurred within the last fifty years.
  In the years prior to Roe, at least fourteen states had already liberalized their abortion laws. These pre-Roe liberalization laws frequently came with the creation of express statutory protection for physicians and other healthcare personnel and institutions that refused to participate in abortions. Likewise, when it decided in 1970 to support great er access to abortion, the American Medical Association also resolved that “[n]either physician, hospital, nor hospital personnel shall be required to perform any act violative of personally-

held moral principles.”
Once the Court’s decision in Roe established a constitutional right to abortion, state and federal legislatures acted quickly and decisively to confirm that no physician could be forced to provide an abortion. At both the state and federal levels, legislators quickly enacted conscience statutes to protect individuals and institutional healthcare providers from being forced to participate in abortions. These laws were not limited solely to the direct performance of abortion. Instead, they protected against compulsion to participate even indirectly, including by referral or providing space.
The speed and near unanimity of these legislative actions confirm that the right not to be forced by the government to perform abortions is implicit in the concept of ordered liberty. For decades, abortion has been the most divisive political, social, and ethical issue in the country. Yet amidst this widespread, heated, and seemingly endless disagreement, we see something remarkable: essentially unanimous agreement from state and federal governments that providers should not be forced to participate in abortions. Moreover, this widespread agreement has occurred in th e past fifty years—the time period the Lawrence Court deemed most important.

• • pp.170-171

• Roe described the right in terms of “personal privacy, or a guarantee of certain areas or zones of privacy.” Importantly, it also rejected the idea that the state could “adopt[] one theory of life” in order to “override the rights of the pregnant woman that are at stake.”
  • p.172

• Recognizing the constitutional right not to kill in jurisdictions that have failed to provide statutory protections is entirely consistent with the Court’s prior substantive due process cases. For example, in Lawrence and Roe, the Court relied on the existence of a statutory right in some locations as a justification to extend that right to other locations as a constitutional matter.
  • p.177

"The Day After Roe" (June 2006)

Rosen, Jeffrey (June 2006). "The Day After Roe". The Atlantic. Retrieved May 20, 2019.

• With the recent appointment by President Bush of two Supreme Court justices, John G. Roberts Jr. and Samuel A. Alito Jr., interest groups on the left and the right are preparing for the end of Roe v. Wade. Leaders in both camps believe that the demise of Roe may occur sooner rather than later, and they have different scenarios for how the coup de grâce might be delivered.
• The day after Roe fell, of course, abortion would be neither legal nor illegal throughout the United States. Instead, the states and Congress would be free to ban, protect, or regulate abortion as they saw fit. But in many of the fifty states, and ultimately in Congress, the overturning of Roe would probably ignite one of the most explosive political battles since the civil-rights movement, if not the Civil War.
• [I]f a national referendum were held the day after Roe fell, there’s little doubt that early-term abortions would be protected and that later-term abortions would be restricted. But the U.S. Constitution doesn’t provide for government by referendum. Because of the intricacies of American federalism, and the polarization of American politics exacerbated by Roe itself, the moderate national consensus about abortion might not be reflected in law for years to come, and the political landscape could be transformed beyond recognition.
• A dozen state abortion bans might not dramatically change the national abortion rate, but they would dramatically change state and national politics. After Roe, women with disposable incomes would still be able to travel to have an abortion. Poor women, on the other hand, might be forced to seek abortions from illegal local providers. If television footage began to show arrests of illegal abortion doctors, the political framework for the abortion debate would almost certainly be transformed. “With Roe on the books, the focus of the abortion debate has tended to be on issues like partial-birth abortion, which is a huge political winner for Republicans,” says Michael Klarman of the University of Virginia, a scholar of the Court and public opinion. “If you take Roe off the books, the focus will be on poor women in a handful of states trying to get illegal abortions, and these highly salient examples are going to benefit the other side.”
• If Roe falls in June 2007, abortion will almost certainly become the central issue in the 2008 presidential election. And Republicans are already worrying about the political fallout. “We’d be blown away in the suburbs, and you wouldn’t see another Republican president for twenty years,” a pro-choice Republican congressman recently told Roll Call.
• Once Roe is gone, one argument goes, each state would be free to reflect the wishes of local majorities, and the country would quickly reach a democratic equilibrium. But that assumption, as we’ve seen, may be too optimistic. Since the abortion battle will be fought out in the states and in Congress, rather than settled by a national referendum, it’s possible that pro-life and pro-choice extremists could thwart the moderate compromises that national majorities have long supported.
• When the dust settles, most of the state laws may look a lot like the compromise that the Supreme Court finally settled on in the 1992 Casey decision: protecting early-term abortions and restricting late-term ones. If Roe v. Wade hadn’t short-circuited the national political debate about abortion, the state legislatures might have arrived at this compromise on their own more than a decade earlier.
• In the 1980s and 1990s, partly in response to Roe v. Wade, interest groups arose on the right and left that urged judges to ignore the views of national majorities as a sign of their constitutional virtue. For more than two decades, Republican presidents have looked for Supreme Court nominees who appeared to be pro-life—and then have prayed that they wouldn’t actually overturn Roe. But at some point, it’s possible that the GOP’s luck might run out: Republicans might get too many Court appointment opportunities to prolong this exquisite balancing act, and Roe could indeed fall. At that point, it’s not clear who would represent the views of the moderate majority that the Supreme Court has tried—and often failed—to capture in its abortion cases. But whatever party or movement managed to seize the vital center in a post-Roe world would be likely to dominate American politics for a generation to come.

"Why We'd Be Better off Without Roe: Worst Choice" (February 24, 2003)

Rosen, Jeffrey (February 24, 2003). "Why We'd Be Better off Without Roe: Worst Choice". The New Republic. Archived from the original on March 9, 2003. Retrieved January 23, 2007.

• "As the 30th anniversary of the Roe decision approaches, women's right to safe, legal abortions is in dire peril," The New York Times wrote last month in an editorial called "The War Against Women." When Roe v. Wade turned 30 on January 22, pro-choice activists repeated the conventional wisdom that abortion rights are under siege. "A woman's right to choose is probably in the greatest danger ... since Roe vs. Wade was handed down," Kate Michelman, the head of the newly renamed NARAL Pro-Choice America, told USA Today. "With a slim one-vote margin on the Supreme Court protecting freedom of choice," Michelman insists, Roe is in danger of being overturned with a single Supreme Court appointment. And, with the Senate, House, and White House in the hands of pro-lifers for the first time since Roe was decided, pro-choicers fear that its overturning would be followed by widespread restrictions on early-term abortion rights for the first time since the 1970s.
  But the alarmism about abortion rights is wrong. Rather than hanging by a five-to-four thread, the core principle of Roe is supported by six justices. And, even in the unlikely event that Roe were overturned, the core right it protects--the right to choose abortion early in pregnancy--isn't likely to be threatened on a broad scale. For the past 30 years, national polls have revealed a consistent and moderate consensus on abortion: Majorities strongly oppose bans on early-term abortions and strongly support restrictions on late-term abortions. If Roe were overturned, the relative political weakness of the extreme pro-life position would be exposed, and the Republican Party would be torn apart at the seams because many Republicans oppose early-term bans and would desert the party in droves. "The last thing in the world the White House would want is that Roe v. Wade is overturned," says a prominent Republican congressional aide. "The reason being is that it would energize the nation's pro-choice constituency, ... and it would cause a huge fissure in the Republican Party, which has been generally harmonious over the issue because of the belief that the pro-life position will never truly be tested." At the same time, if Roe were overturned, the expanded and moderate Democratic majority would be free to distance itself from extremists in the pro-choice movement who persist in fighting restrictions on late-term abortions, which most Americans embrace. In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized Roe on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people.
• Pro-choice activists, eager to suggest that the Court is one step away from the apocalypse, note that when the Court, in a five-four decision in 2000, struck down bans on so-called partial-birth or late-term abortions, Kennedy dissented. They portray his vote as an indication that he has changed his mind on the constitutionality of all abortions, including early-term procedures. "Kennedy jumped ship," Sylvia Law of New York University School of Law recently told Women's Enews. "Roe is always hanging by a thread."
  But Kennedy did not jump ship, and Roe is not hanging by a thread. In upholding Roe in the 1992 case Planned Parenthood v. Casey, Kennedy made clear that he thought the Constitution prohibited restrictions on early-term abortions and permitted restrictions on late-term ones. It was Kennedy who wrote the most sweeping and expansive sentence in that opinion upholding the core of Roe: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," he wrote. "Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." Two and a half years ago, when the Court struck down bans on late-term abortions in Stenberg v. Carhart, adopting a far more expansive position on abortion protections than the one he originally embraced, Kennedy indicated, understandably, that he felt he had been duped. His dissent, however, didn't mean that he had abandoned his moderate position. In fact, he explicitly said the opposite: "When the Court reaffirmed the essential holding of Roe [in 1992], a central premise was that the States retain a critical and legitimate role in legislating on the subject of abortion, as limited by the woman's right the Court restated and again guaranteed," Kennedy wrote in his dissent in Stenberg. "The Court's decision today ... repudiates this understanding by invalidating a statute advancing critical state interests, even though the law denies no woman the right to choose an abortion and places no undue burden upon the right."
• [E]ven in the unlikely event that O'Connor and Stevens were to retire, Bush is unlikely to replace both of them with committed opponents of Roe, because his advisers know that the decision's reversal would be a disaster for the party. Indeed, when Karl Rove was asked at a press coffee last month whether Roe should be overturned, he dodged the question. "Rove understands the political calculation, and he's never been a zealous pro-lifer," says a GOP pollster who asked not to be identified. "Hard-core conservatives want someone who passes the Souter test and will overturn Roe, but, for the Republican political establishment, that's the nightmare scenario." For this reason, it seems unlikely that Bush would risk nominating two hard-core opponents of Roe. Given the political firestorm that would ensue, it seems even less likely that two would be confirmed.
• [O]verturning Roe would expose the fundamental weakness of the extreme anti-abortion position. In the 30 years since the decision, public opinion about abortion has remained remarkably stable. As Everett Ladd and Karlyn Bowman of the American Enterprise Institute have noted, national polls from 1975 to the present suggest that public opinion on abortion for the past three decades has consistently included extremes on both sides that favor either no restrictions or total bans--each of which command about 30 and 20 percent support, respectively--and a vast majority in the middle that opposes both early-term bans and late-term abortions. Americans have reached a moderate consensus: In a CNN/Gallup/USA Today poll last month, 66 percent said abortion should be legal during the first three months of pregnancy; by the second trimester, when the fetus becomes viable, only 25 percent said abortion should be legal; and, by the third trimester, when so-called partial-birth abortions would be performed, only 10 percent say abortion should be legal. These numbers, too, have remained entirely consistent during the three decades since Roe was decided.
• [I]f Roe were overturned, it's true that some states would try to regulate early-term abortions. The precise number is hard to estimate. After the Supreme Court gave the states greater leeway to restrict abortion in 1989, only two legislatures--Louisiana and Utah--passed laws to ban early-term abortions (except in cases of rape or incest or to save the woman's life), and both were quickly struck down. By examining public records, including the campaign statements of governors and state legislators, NARAL estimates that twelve states "would likely ban abortion in all or most circumstances if Roe is reversed (AL, FL, LA, MN, MS, MO, NE, ND, OH, SD, TX, UT)." Ann Stone of Republicans for Choice offers a much lower estimate, arguing that first-trimester bans have a fighting chance of passing only in Louisiana, Mississippi, Missouri, Ohio, and Utah. Political scientists in several of the states on NARAL's list concur: They believe legislators in their states would be cowed by popular opinion. "Florida is basically a socially progressive state in its broad outlook; it is more pro-choice than pro-life on balance, and I don't believe the political culture in Florida really supports first-trimester bans," says Stephen Craig, a professor of political science at the University of Florida. "I would be surprised if a first-trimester ban made it into law, and I quite frankly would be surprised to see the Florida legislature even try to take such a draconian step." In North Dakota, says Robert Wood, a political science professor at North Dakota State University, "an absolute ban probably wouldn't pass. It's generally a conservative state but with a strong strain of libertarianism."
  GOP pollsters suggest that even legislators in the most conservative states would feel pressure from popular opinion to allow abortion not only in cases of rape or incest but also when a woman's physical or even psychological health is threatened, a broad category that would allow women and their doctors flexibility. "I think it would be hard to get a total ban through any state legislature, even Utah, because the vast majority of Americans believe that abortions are undesirable but ought to be allowable under certain circumstances," says Republican consultant Whit Ayres. And, in the handful of states that are most likely to restrict abortion except in cases of rape or incest or to save the mother's life, local scholars suggest that popular opinion tends to be more liberal than the pro-life base and that a sweeping ban would provoke a political backlash. "I think there would be a strong reaction against strict controls if the Ohio legislature passed them," says Michael Burton of Ohio University. "It would certainly cause real problems within the Republican Party in Ohio, where the Republican voters are suburban and more liberal than the legislature on most social issues." Bill Richardson of the University of South Dakota predicts a similar dynamic in his state. "I wouldn't be surprised to see a first-term-ban bill introduced" if Roe were overturned, he says. "But I think the population is more moderate." In all these states, pro-choice voters were willing to vote for pro-life candidates because they knew Roe would prevent their positions from being enacted; if Roe were overturned, they would have to think again. Pro-life legislators, as a result, would themselves think long and hard before pulling the trigger to overturn Roe.
• The fact that we are about to fight another Supreme Court nomination battle by flyspecking the nominees' views on Roe points to the real costs of the decision today. Thirty years after Roe, the finest constitutional minds in the country still have not been able to produce a constitutional justification for striking down restrictions on early-term abortions that is substantially more convincing than Justice Harry Blackmun's famously artless opinion itself. As a result, the pro-choice majority asks nominees to swear allegiance to the decision without being able to identify an intelligible principle to support it. And the pro-life minority can criticize the legal weakness of the decision without having to acknowledge its political weakness in the country as a whole.
  Thirty years ago, opposing Roe on constitutional grounds, Alexander Bickel wrote for the editors of this pro-choice magazine, "[I]t may take some time before the realization comes that this will not do." After three decades, it has become more obvious than ever that Bickel was correct and that the costs of retaining Roe outweigh any benefits. For better or for worse, Roe will not be overturned any time soon. But, if it were, the Democrats, the federal judiciary, and the moderate majority of American people could breathe a sigh of relief.

“STATEMENT OF RONALD D. ROTUNDA”, (January 21, 1998)

“STATEMENT OF RONALD D. ROTUNDA”, (January 21, 1998); The 25th Anniversary of Roe V. Wade: Has it Stood the Test of Time? : Hearing Before the Subcommittee on the Constitution, Federalism, and Property Rights of the Committee on the Judiciary, United States Senate, One Hundred Fifth Congress, Second Session ... January 21, 1998, Volume 4

• Since Roe v. Wade was first announced nearly 25 years ago, a quarter of a century of criticism by academic commentators-liberals like John Hart Ely, conservatives like Judge Bork-and the commentators are try to struggle to find some rationale for Roe v. Wade Professor Seidman referred to it as the central holding that women have a right-have reproductive freedom. That is not what Roe said. In fact, the Court had never adopted that rationale.
  Now, our constitution respects privacy in many ways, but the Curt normally derives this right from clauses in the Constitution, such as the first and the fourth amendments. It has been particularly protective of activity that occurs in the home, but abortions occur in medical clinics or hospitals.
  Indeed, the analysis of Roe specifically does not rely on any interpretation of the text of the Constitution. The Roe Court, in announcing its results, referred to cases protecting various aspects of privacy, like marital privacy, and then said that because a pregnant woman carries a fetus that can develop into a child, the Court says, “The situation is therefore inherently different from marital intimacy, bedroom possession of obscene material, or marriage, or education,” all with which the prior cases were concerned. Instead the Roe Court simply announced that the right of privacy, however based, is broad enough to cover the abortion decision.
  • p.17

• Roe turned to the question of whether life begins at some point prior to viability. The Roe Court-Justice Blackmun said that we need not resolve this difficult question we don’t know. Then Justice Blackmun specifically refrained from answering the question and then he-one of his arguments in the opinion, I think, is very peculiar. He says, we are not aware that in the taking of any census under the Census Clause a fetus has ever been counted. He has obviously never visited Chicago, where dead people can vote and are counted in the census. I have been counted twice in one census, though I am only one person and not two.
  • p.17

• What is the true rationale of Roe? Well, this is what Justice Blackmun says. He specifically rejects the argument of Roe and her lawyers and amicus that a woman has a right to control her own body. In fact, he says,
  The claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases does not bear a close relationship to the rights of privacy that this Court has articulated.
  And then he cited, with approval, two earlier decisions, Jacobson v. Massachusetts in 1905 dealing with compulsory vaccination and Buck v. Bell in 1937 dealing with sterilization.
  In Jacobson, the Supreme Court said that the State has a right to have compulsory vaccination against infectious diseases, even against those who object for religious reasons. Now, I find it astounding that the Court would compare child-bearing or abortion to mere vaccination. But this is the same Court in Roe that less than 12 months later ruled in a case called Geduldig v. Aiello that pregnancy is not a sex-related characteristic.
  I am not making this up. They referred to non-pregnant persons and pregnant persons. They did acknowledge, by the way, that pregnant persons happen to all be women. What a happy coincidence. Justice Stewart, Justice Powell, Justice Blackmun-they all joined both in Roe and in the conclusion that pregnancy is not a sex-related characteristic.
  • pp.17-18

• Roe also cited with approval Buck v. Bell. Buck upheld the power of the state to sterilize mental defectives. The Buck Court said very bluntly, “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.” And then Buck cited Jacobson v. Massachusetts, a vaccination case.
  Before Roe, I think every commentator would have thought that Buck v. Bell was no longer good law. It was like an old, derelict ship, maybe not officially decommissioned but ready to sink. Roe v. Wade resurrected Buck v. Bell. It cited it with approval and relied on it. If a future Court would seek to approve compulsory sterilization, it could cite Roe as authority, as well as citing Buck v. Bell.
  • p.18

• Roe, I think, is not about women’s rights. It is about doctor’s rights. Blackmun says in his opinion-he says not that a woman has the right to abortion. Here is the phrase. For the period of pregnancy prior to this compelling point, he says, “the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that in his medical judgment the patient’s pregnancy should be terminated;” that is, the woman doesn’t have the right to choose abortion. The doctor does, who is assumed to be male. But then in a bow to women’s rights, Blackmun said that the doctor should consult with the patient.
  • p.18

• It is commonly said that if males were the ones who got pregnant, there would be no laws limiting abortion. In fact, the public opinion polls routinely and consistently show that more males favor abortion than females. I think males regard abortion rights as a way to avoid responsibility for their actions.
  The decision in Roe was not about protecting women. It was about protecting doctors, but I think this legislature can do something about protecting women. For example, it could ban the partial birth abortion. Actually, it is a kind of infanticide. This is something that the AMA has already said is never medically justified and is a real danger for women.
  • p.19

"Americans Narrowing Support for Abortion" (June 18, 2000)

Rubin, Allisa J. (June 18, 2000). "Americans Narrowing Support for Abortion", Los Angeles Times.

• Despite the increasing level of discomfort with the high court’s ruling--43% of current survey respondents express support for Roe, compared with 56% in 1991--the poll shows continued opposition to a constitutional ban on abortion.
• In recent years, Roe has been invoked by abortion opponents as a barrier to imposing limits on abortion, said Harvard’s Blendon. As a result, increasing numbers of Americans may view Roe as an obstacle to adopting restrictions for which there is broad support.
• Typically when abortion rights are threatened, support for legal abortion rises, according to polling experts.
  In the last decade, for example, previous polls show support for Roe peaking at 56% around 1991, when the decision was under attack across the country. Most states had pushed measures through their legislatures that either put strict limits on abortion or even banned it altogether.
• In a 1996 poll, 46% of respondents endorsed Roe vs. Wade. By 1999, support had slipped slightly to 43%, the same level as in the current poll.

"Unbecoming Justice Blackmun" (May/June 2005)

Saletan, William. "Unbecoming Justice Blackmun", Legal Affairs, May/June 2005. Retrieved January 23, 2007.

• Blackmun's files show how thoroughly his thinking about Roe and its companion case, Doe v. Bolton, changed and expanded in the year between initial oral arguments and the court's rulings. His first draft of Roe dismissed the law in question, a Texas abortion ban, as too vague. In pre-argument notes for Doe, he wrote that another abortion ban, one with limited exceptions, was "pretty good and strikes a good balance of the asserted interests."
• The idea of a broader right to abortion bubbled up from lower courts, propelled by result-oriented arguments that seemed indifferent to how they were supported by the Constitution. The Georgia district court that had decided Doe before the case reached the Supreme Court cited both the "retained by the people" clause and the "penumbras" underlying the right to privacy. "For whichever reason, the concept of personal liberty embodies a right to privacy which apparently is also broad enough to include the decision to abort a pregnancy," the court said.
  Blackmun's notes convey the same casual attitude. He began with intuition and then looked for a constitutional peg. "Right of the mother to life, health, physical & mental," he wrote in October 1972. "Translated this means 9th and 14th amendment rights." In his notes, he posited an abortion right similar to the right to contraception, then conceded the difference between the two acts, but shrugged, "Whatever the answer, something fundamental is involved. [There's] much precedent for this sort of thing—Griswold, etc." In his final draft of Roe, he concluded that "This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty [or] . . . the Ninth Amendment's reservation of rights to the people, is broad enough to encompass" abortion. Fourteenth, Ninth, etc., this sort of thing, something fundamental, whatever.
• Days after the court handed down Eisenstadt, Blackmun worked a reference to it into a draft of Doe, and later into Roe. Meanwhile, a federal court in Connecticut took the cue, declaring that Eisenstadt established a right to abortion. Justice Lewis Powell advised Blackmun to follow the Connecticut court's reasoning, and Blackmun ultimately did so, completing the daisy chain.
• BLACKMUN'S PAPERS VINDICATE EVERY INDICTMENT of Roe: invention, overreach, arbitrariness, textual indifference. But they also implicate his critics. In a 1970 letter, Chief Justice Warren Burger lectured Blackmun about the evils of injecting personal morality into constitutional law. A year later, though, Burger prodded his colleagues to expand Roe or Doe to address the rights of would-be fathers. In December 1972, when Blackmun asked the other justices to comment on his trimester framework, Burger ignored the request and brought up the question of fathers again. Blackmun fended him off with a footnote pointing out that no law or litigant in either case had raised the question. This didn't stop Burger from resuming the lecture: When Blackmun drafted a decision-day announcement that the justices "have endeavored, too, to note the changes in attitudes" toward abortion among medical organizations, Burger wrote in the margin, "We ought not to look for it!" Burger edited the sentence to read, "We cannot escape noting, too . . ." Judicial restraint turns out to be less a principle than a pose.
• In 1973, Blackmun fumed under the suspicion that Burger was delaying Roe to avoid embarrassing President Richard Nixon before his second inauguration. But in 1992, Blackmun used his concurrence in Planned Parenthood v. Casey to warn women that the election might decide Roe's fate. Blackmun's clerks urged him to rush the case through so that it could be decided "before the election," giving "women the opportunity to vote their outrage." Meanwhile, they drafted a statement for him to deliver if the other justices voted not to proceed with such haste. The statement read: "I feel that this Court stands less tall when it defers decision for political reasons."
• At his retirement ceremony two decades after Roe, Blackmun portrayed the case as a pioneering advance in a difficult climate, "a step that had to be taken as we go down the road toward the full emancipation of women." Certainly the climate in Roe's day was difficult: Men dominated legal scholarship, and anxiety about feminism was rising. During the court's deliberations, President Nixon condemned "abortion on demand." Burger, who was preoccupied with fathers' rights, echoed Nixon in a concurrence insisting that Roe didn't require abortion on demand. Greenhouse interprets Nixon's remark as a gesture to pro-lifers, but phrases such as "on demand" and "for convenience" sent a more precise message: that women should not have too much control when deciding whether to have abortions.
  How could a right to abortion be established in such a climate? By emphasizing the supervisory role of doctors. That was the headline of the poll found in Blackmun's files: "ABORTION SEEN UP TO WOMAN, DOCTOR." It was also the implicit advice of the moderate Powell and the wily Brennan. Powell urged Blackmun to frame abortion as "a medical problem broadly defined," and Brennan proposed to strike down the Georgia law because it "overrides a good faith determination by the attending M.D." A male clerk of Blackmun's at the time advised the justice that he would be most likely to succeed if he reasoned "not that the woman's right is so strong but that to permit other criteria in these statutes [other than the doctor's view of the best course for the patient] is in the end to restrict medical judgment about what is best for each woman."
  Did these external constraints force Roe's emphasis on doctors rather than women? That's what Blackmun told himself later. Greenhouse finds in Blackmun's files a 1993 article excerpting a lecture in which Ruth Bader Ginsburg, then an appellate judge, faulted Roe's focus on doctors. On the article, Blackmun had penned, "She picks at Roe. Better to have been decided on equal protection. With all respect, could not have been done."
• [I]n his early notes and drafts, Blackmun, who had once been the Mayo Clinic's general counsel, saw Roe and Doe as medical discretion cases all the way. That is why he assessed the Georgia law, which subjected abortion decisions to the approval of three doctors and a hospital committee, as "a good balance of the asserted interests." It is also why he preferred to decide Roe on the grounds that the law in question was vague. His first draft rejected the Texas law as "insufficiently informative to the physician . . . who must measure its indefinite meaning at the risk of his liberty."
  Even after Blackmun shifted toward a privacy rationale—in Doe in May 1972, and in Roe five months later—his focus remained on the doctor. His outline of a revised Roe opinion posited, "A fundamental personal liberty is involved here—right to receive medical care." His final draft insisted that early in pregnancy, "the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician."
• In 1972, preparing for re-arguments in Roe and Doe, Blackmun wrote, "No absolute right to do with body as one chooses."
• By 1992, Blackmun was so bitter he couldn't see Roe's salvation in the emerging moderate bloc of Justices Kennedy, O'Connor, and David Souter. It was Justice John Paul Stevens who warned Blackmun in 1991 not to alienate the moderates and who ultimately negotiated with them to save Roe in 1992. In the biggest political coup of his career, Blackmun was where the critics of his judicial activism said he always should have been: out of the politics and out of the action.

"Roe Ruling: More Than Its Author Intended" (October 11, 2021)

Savage, David G. (September 14, 2005). "Roe Ruling: More Than Its Author Intended". Los Angeles Times. Retrieved October 11, 2021.

• In mid-1971, the Supreme Court agreed for the first time to hear a constitutional challenge to the long-standing state laws limiting abortion. Its decision to do so reverberates today.
  At that time, Texas and 30 other states had laws, dating from the 19th century, that made an abortion a crime unless it was performed to save the mother’s life.
  Georgia, like California, had revised its laws in the late 1960s to permit abortion in specific circumstances: if the mother’s health was endangered, if the pregnancy was caused by rape or if the fetus had a severe defect.
  The newest member of the Supreme Court, Justice Harry A. Blackmun, saw much to like in the revised abortion laws. A lawyer who greatly admired doctors, he had been general counsel for the Mayo Clinic in his home state of Minnesota before becoming a federal appellate judge.
  He believed that doctors needed to have leeway to do medically necessary abortions. In the court’s first private conference on the issue, he described Georgia’s law as “a fine statute [that] strikes a balance that is fair.”
  Yet, a year later, Blackmun wrote an opinion for the court that struck down all of the nation’s abortion laws. Equally important, his opinion made virtually all abortions legal as a matter of a constitutional right.
  That opinion, in the case of Roe vs. Wade, remains the court’s most disputed decision of recent decades. By abruptly voiding all laws against abortion, it galvanized a powerful antiabortion movement that has transformed American politics.
  It also dominates public debate over the court and its future. The Senate confirmation hearing for Judge John G. Roberts Jr., like those of all recent nominees, is focusing on one question: Will he vote to uphold or to reverse Roe vs. Wade?
• Last year, on the fifth anniversary of Blackmun’s death, the Library of Congress opened his papers to the public. His thick files on the abortion cases tell the little-known story of how Roe vs. Wade came to be. It is the story of a rookie justice, unsure of himself and his abilities, who set out to write a narrow ruling that would reform abortion laws, not repeal them.
  It is also the story of a sometimes rudderless court led by Chief Justice Warren Burger. On the day the ruling was announced, Burger said, “Plainly, the court today rejects any claim that the Constitution requires abortion on demand.”
  Blackmun proposed to issue a news release to accompany the decision, issued Jan. 22, 1973. “I fear what the headlines may be,” he wrote in a memo. His statement, never issued, emphasized that the court was not giving women “an absolute right to abortion,” nor was it saying that the “Constitution compels abortion on demand.”
• Blackmun had said that abortion “must be left to the medical judgment of the pregnant woman’s attending physician.” So long as doctors were willing to perform abortions -- and clinics soon opened solely to do so -- the court’s ruling said they could not be restricted from doing so, at least through the first six months of pregnancy.
  But the most important sentence appears not in the Texas case of Roe vs. Wade, but in the Georgia case of Doe vs. Bolton, decided the same day. In deciding whether an abortion is necessary, Blackmun wrote, doctors may consider “all factors -- physical, emotional, psychological, familial and the woman’s age -- relevant to the well-being of the patient.”
• Legal scholars have long pointed to the shaky constitutional basis for a right to abortion. Blackmun referred to the 14th Amendment, which says that a state may not “deprive any person of life, liberty or property, without due process of law.”
  In earlier opinions, the court had said that liberty included the concept of personal privacy. “This right to privacy ... is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” Blackmun declared.
  Earlier this year, 11 legal scholars, led by Yale’s Jack Balkin, tried to write a better opinion. Their book of essays, “What Roe v. Wade Should Have Said,” proposed several alternatives, such as saying sexual equality for women required a right to abortion.
• Today, as in the early 1970s, the American public appears to have decidedly mixed views on abortion. In a Gallup poll in May, for instance, only 23% of those surveyed said abortion should be “legal under any circumstances,” the rule set by Roe vs. Wade.
  Only 22% said abortion should be “illegal in all circumstances,” the rule that could take effect in many states if the Supreme Court were to overturn Roe vs. Wade.
  The largest group -- 53% -- said abortion should be “legal only under certain circumstances.”
  But Roe vs. Wade foreclosed this middle course -- for the states as well as for the court. It does not give states the room to adopt what might be a popular compromise: permitting abortions during the first three months of a pregnancy, but not afterward. Nor does it permit states to authorize only “medically necessary” abortions, a reform idea of the late 1960s.
• “He was thinking of this in the medical framework of Rochester, Minn. He imagined abortions would be performed by a family physician or in a hospital,” said historian David J. Garrow, the author of a scholarly history of the abortion-rights movement.
  The justices did not foresee the full impact of the ruling or the backlash it would set off, said Georgetown University law professor Mark V. Tushnet, who was a clerk for Justice Thurgood Marshall when Roe was decided. They focused on striking down the Texas-type laws that outlawed all abortions, he said.
  “All they wanted was to get those laws off the books,” Tushnet said. “They were not thinking long-term with an overall vision.”
• At the court’s private conference, the seven justices agreed that the Texas law was extreme and unconstitutional, according to the notes of several justices. Even Byron R. White, a critic of abortion, said doctors must be permitted to act when there were “health problems.”
  Blackmun voiced disdain for feminists who said women deserved control over their bodies. “There is no absolute right to do with one’s body what you like,” he said. But he agreed that the Texas law was extreme and said it did “not go far enough to protect doctors.”
  The Georgia law was much better, the justices said, except for a requirement that three doctors approve an abortion.
  Days later, the liberal justices were irked to receive a memo from Burger saying he had chosen Blackmun to write both opinions. With little guidance from colleagues, Blackmun and his clerks began research.
• Blackmun’s final opinion left no room for prohibitions on abortion. That was not apparent in the spring of 1972, however.
  In mid-May, Blackmun wrote “a first and tentative draft” for Roe vs. Wade that stopped well short of declaring a constitutional right to abortion. Instead, it said the Texas law did not give doctors enough guidance.
  Criminal laws must be clear, the court had emphasized, so people don’t unwittingly commit a crime. Blackmun said Texas physicians could not be sure whether they were committing a crime by performing an abortion on a patient whose troubled pregnancy might risk her life.
  “I come out on the theory that the Texas statute ... is unconstitutionally vague,” he said in a memo to his colleagues on May 18, 1972. “I think that this [finding] would be all that is necessary for the disposition of the case, and that we need not get into the more complex” issues.
  In retrospect, this proved to be a crucial time in the court’s handling of the abortion issue. Blackmun had proposed issuing a short opinion that would have struck down the Texas law and the 30 others like it. However, it would have also left the states ample room to revise their laws.
• Justices William O. Douglas and William J. Brennan, mindful that Nixon’s new appointees would join the deliberations if the cases were reargued in the fall, wanted quick action and a stronger opinion.
  Burger, however, wanted to go slowly. He knew the Brennan-led majority was about to announce the striking down of the death penalty on a 5-4 vote. Burger and Blackmun had dissented, as had the new Nixon appointees, Powell and Rehnquist. Burger expected the votes on abortion to line up the same way.
  If the abortion cases were carried over until the fall, Powell and Rehnquist would cast their votes, and the chief justice -- with Blackmun and White also on board -- could envision a new 5-4 majority that would uphold most of the state abortion laws.
  “This is as sensitive and difficult an issue as any in this court in my time,” Burger wrote. “Hence, I vote to reargue early in the next term.”
• Had Blackmun’s draft opinion been adopted, it would have left states free to prohibit abortions for nonmedical reasons. However, Blackmun reluctantly joined Burger in seeking a delay, and the majority voted to put off a decision on the abortion cases until the fall.
  Blackmun spent the summer working in the Mayo Clinic’s library in Minnesota. He researched the history of abortion in Persian, Greek and Roman times. He also studied abortion laws adopted in 19th century America and concluded that the bans were driven not by moral imperatives but by the reality that, before antibiotics, abortion -- like other medical procedures -- was dangerous.
  When Blackmun returned to Washington, he had a long draft. It was a thorough work of medical history, but short on constitutional law. It also was hazy on just when abortion would be permitted or prohibited.
• In October, the nine justices sat through the arguments again. When they met to discuss the cases, there was a surprise. Powell, the soft-spoken Virginian who was new to the court, firmly supported a woman’s right to abortion. He urged Blackmun to say it directly rather than attack the laws as vague.
  For Powell, the issue was personal: When he was a lawyer in Richmond, Va., a young man came to him in despair. His pregnant girlfriend had tried to abort her fetus with his help, and she had bled to death. Powell went to the authorities to explain what happened. Thereafter, he was determined to see abortion made safe and legal.
  Suddenly, there were six solid votes to strike down the Texas and Georgia laws, and Blackmun had the backing to write a broader opinion in favor of a right to abortion. The liberals, who had worried about the delay, found they had a stronger hand, and Burger found himself with no room to maneuver.
• On Nov. 21, two weeks after Nixon’s reelection, Blackmun sent around revised drafts of the majority opinions. The Roe opinion said that for the first three months of a pregnancy, states must “leave the abortion decision to the best medical judgment of the pregnant woman’s attending physician.”
  In a memo to his colleagues, however, he voiced uncertainty.
  “This has proved for me to be both difficult and elusive.... You will observe that I have concluded that the end of the first trimester is critical,” he wrote, referring to a cutoff date for permitting abortions. “This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary.” The first trimester is the first three months of a pregnancy.
  Brennan, Marshall and Powell wrote back to say that allowing abortions until “viability” -- when a fetus has developed enough to live outside the womb -- at six months made more sense.
  Douglas disagreed. “I favor the first trimester, rather than viability,” he said. He was outvoted, however, and Blackmun said he would revise the opinion over the Christmas holidays. In his final draft, states were told they could not restrict abortions through the second trimester.
• Blackmun’s opinion ends by saying: “The decision vindicates the right of the physician to administer medical treatment according to his professional judgment.... The abortion decision in all its aspects is inherently, and primarily, a medical decision.... If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.”
  As some scholars later said, his opinion treated the pregnant woman as a bit player in a doctor’s drama.
  White and Rehnquist filed dissents, but Burger delayed casting his vote. His colleagues suspected that he did not want the opinion released before Nixon’s second inauguration, set for Jan. 20.
  As that day approached, Burger filed a short concurrence and predicted the ruling would not have “sweeping consequences.”
  Blackmun’s proposed press release also downplayed the potential effects of the ruling, stressing that it would not mean “abortion on demand.” His court colleagues convinced him that it would be inappropriate to issue a statement that commented on a ruling.
• So, on Jan. 22, 1973, Roe vs. Wade and Doe vs. Bolton were handed down as 7-2 rulings in favor of a new right to abortion. That afternoon, former President Lyndon B. Johnson died, pushing aside the abortion decisions as the biggest news story of the day.
• Jan. 22, 1973: In Roe vs. Wade, the court for the first time ensures nationwide access to abortion. In Doe vs. Bolton, decided the same day, the court strikes down restrictions on performing abortions only in hospitals. The decision gives rise to a new kind of medical facility, the abortion clinic.

“Statement of Louis Michael Seidman”], (January 21, 1998 )

“Statement of Louis Michael Seidman”, (January 21, 1998); The 25th Anniversary of Roe V. Wade: Has it Stood the Test of Time? : Hearing Before the Subcommittee on the Constitution, Federalism, and Property Rights of the Committee on the Judiciary, United States Senate, One Hundred Fifth Congress, Second Session ... January 21, 1998, Volume 4

• I would like to use this opportunity to address two common misunderstandings about Roe.
  The first misunderstanding is that Roe is somehow inconsistent with conservative principles. Nothing could be further from the truth. I believe that anti-abortion activists are entirely right to emphasize the moral seriousness of the abortion decision and to publicize the cases of women who have come to regret their decision to have an abortion.
  There is, of course, a way to avoid mistakes of that sort. Instead of leaving the decision to individual women, the government could make it for them. We could make a centralized, collectivized decision about abortion that would shield individuals from the responsibility and consequences of moral choice.
  Ironically, throughout our history, it has been conservatives who have counseled against that sort of solution. They have been the ones who have warned us again and again about the risks of big government and the virtues of individual freedom and responsibility. Roe v. Wade amounts to no more than an application of this core conservative principle in the area of reproductive choice. It should therefore come as no surprise that when the Court strongly reaffirmed Roe in the Casey case recently, all five of the Justices in the 5-4 majority were appointed by Republican Presidents, including Presidents Reagan and Bush.
  • p.13

• Some conservatives have nonetheless argued that Roe is wrong because the Court took a stand on a moral issue that in a democracy ought to be resolved by the political process. It is here that the second misunderstanding takes hold. That misunderstanding is that Roe reflects indefensible judicial activism. There are two reasons why this criticism is wrong.
  First, neither conservative opponents of Roe, nor for that matter virtually anyone else in the mainstream, takes a consistent position against judicial activism. It is true that the text of the Constitution does not mention abortion. But it it just as true that the text of the fourteenth amendment says nothing about affirmative action. Indeed, the best historical evidence indicates the fourteenth amendment’s Framers intended to make constitutionally permissible the 19th century analogs to modern affirmative action programs.
  • p.13

• There is a second and even more significant difficulty with the judicial activism claim. It is true that there is a sense in which Roe rests on a contested moral premise. It is not true, however, that the Roe Court made this moral judgment for the entire country. Rather, the central holding of Roe is that the judgment should be made by individual women and by their doctors. It is in that sense that the judicial activism claim misfires.
  An analogy to religious liberty may make the point more clearly. In contemporary America, there is moral disagreement about the nature of God. If we were to settle this debate collectively and choose an established religion for everyone, I suppose that it would be better for the legislature rather than the Court to choose the religion. But, of course, the matter should not be settled collectively. It is better to allow each person to decide the question for himself instead of imposing either a judicial or a legislative collective decision on everyone.
  When the Supreme Court enforces the religious liberty clauses of the first amendment, it is not deciding a moral question about the nature of God. Instead, it is allowing individuals to decide the question for themselves. Similarly, if we were to make a collective decision about abortion, the decision should be made democratically through the political process, and it would be indefensible judicial activism for the Court to impose its views on everyone else. But it does not follow that the decision ought to be made collectively.
  When the Supreme Court decided Roe v. Wade, it was not making a moral judgment about abortion for everyone any more than it decides the truth of different religions for everyone when it enforces the free exercise clause. Instead, the Roe Court opted for individual decision making about the nature of God when it enforces the first amendment.
  • p.14

• For better or worse women have been making these individual decisions about abortion for the past 25 years. If recent public opinion polls are to be believed, more women have more doubts about abortion than they did in the past. Perhaps the day will come when very few, if any, women will opt for this alternative. If that day comes, however, it will be because they as individuals decided that abortion is wrong and not the answers to their problems. It will not be because the Government imposed that decision upon them against their will. The ability of individual women to make this judgment for themselves is the real and lasting legacy of Roe v. Wade.
  • p.14

"LGBTQ+: What happens if Roe v. Wade is overturned? LGBTQ+ legal experts are worried about civil rights" (May 6, 2022)

Kate Sosin, Orion Rummler (May 6, 2022). "LGBTQ+: What happens if Roe v. Wade is overturned? LGBTQ+ legal experts are worried about civil rights". 19thnews.org. Archived from the original on May 28, 2022.

• The Supreme Court’s draft opinion leak has James Esseks worried, and not just about abortion access. Esseks, the director of the LGBTQ & HIV Project at the ACLU, ticks off the civil rights laws he fears could be on the chopping block.
  “This potential majority of five justices seems perfectly willing to jettison 50 years of precedent and a right that has become deeply ingrained in the fabric of American society based on not a whole lot,” he said.
  Since it leaked Monday, legal experts across the nation have dug through Justice Samuel Alito’s draft opinion that would overturn Roe v. Wade, the 1973 decision that granted the right to an abortion. Some LGBTQ+ experts say the draft opinion leaves critical civil rights law vulnerable, including cases that granted Americans the right to same-sex relationships (Lawrence v. Texas) and marriage equality (Obergefell v. Hodges). The draft opinion also signals that the court is willing to disturb significant legal precedent — which could have consequences beyond immediately restricting abortion access, said Ezra Ishmael Young, who teaches constitutional law at Cornell Law School.
  “I think the concern with LGBTQ+ people is if they’re willing to do it in abortion, are there any other issues where they’re willing to do it too?”
• “The danger of overturning Roe is in the fact that you’re tipping a major leg of the right-to-privacy stool out from underneath it,” he said. “If you take that critical component piece out, then it opens all these other things up to a greater degree of susceptibility.”
  Right to privacy also plays a huge role in the legality of bans on gender-affirming care for trans youth. If Alito’s draft opinion language on privacy is preserved and a lawsuit ever reached the high court, Kreis is worried that rights to bodily autonomy and personal health care decision-making would again be threatened.
  “I think there’s an imminent danger to trans rights in a post-Roe world,” he said.
• “Roe is based on this idea of substantive due process,” said Alejandra Caraballo, a clinical instructor at the Cyber Law Clinic at Harvard Law School. “Basically all of the LGBTQ rights cases are built on this idea of equal protection and substantive due process.”
• The court’s leaked draft opinion to overturn Roe pokes holes in what protections are offered by the 14th Amendment’s due process and equal protection clauses by stating that such rights must be “deeply rooted” in the country’s history.
  “It opens up a can of worms related to legal arguments regarding the 14th Amendment and its application to the 14th amendment,” said Victoria Kirby York, deputy executive director of the National Black Justice Coalition. “It is the constitutional amendment that reset in many ways a lot of the anti-Black, anti woman messages in the original Constitution.”
• Toward the end of the draft court opinion, Alito acknowledges that the court cannot predict what political or societal consequences would arise from overturning Roe.
  “And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision,” he writes.

“Stenberg v. Carhart (99-830) 530 U.S. 914 (2000)

“Stenberg v. Carhart (99-830) 530 U.S. 914 (2000), Opinion of the Court”, law.cornell.edu

• Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of “potential life” than the equally gruesome procedure Nebraska claims it still allows. Justice Ginsburg and Judge Posner have, I believe, correctly diagnosed the underlying reason for the enactment of this legislation–a reason that also explains much of the Court’s rhetoric directed at an objective that extends well beyond the narrow issue that this case presents. The rhetoric is almost, but not quite, loud enough to obscure the quiet fact that during the past 27 years, the central holding of Roe v. Wade, 410 U.S. 113 (1973), has been endorsed by all but 4 of the 17 Justices who have addressed the issue. That holding–that the word “liberty” in the Fourteenth Amendment includes a woman’s right to make this difficult and extremely personal decision–makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty. But one need not even approach this view today to conclude that Nebraska’s law must fall. For the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational. See U.S. Const., Amdt. 14.
  • Stenberg v. Carhart (99-830) 530 U.S. 914 (2000), Stevens, J., concurring, law.cornell.edu

• In 1973, this Court struck down an Act of the Texas Legislature that had been in effect since 1857, thereby rendering unconstitutional abortion statutes in dozens of States. Roe v. Wade, 410 U.S. 113, 119. As some of my colleagues on the Court, past and present, ably demonstrated, that decision was grievously wrong. See, e.g., Doe v. Bolton, 410 U.S. 179, 221—223 (1973) (White, J., dissenting); Roe v. Wade, supra, at 171—178 (Rehnquist, J., dissenting). Abortion is a unique act, in which a woman’s exercise of control over her own body ends, depending on one’s view, human life or potential human life. Nothing in our Federal Constitution deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother. Although a State may permit abortion, nothing in the Constitution dictates that a State must do so.
  In the years following Roe, this Court applied, and, worse, extended, that decision to strike down numerous state statutes that purportedly threatened a woman’s ability to obtain an abortion. The Court voided parental consent laws, see Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 75 (1976), legislation requiring that second-trimester abortions take place in hospitals, see Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 431 (1983), and even a requirement that both parents of a minor be notified before their child has an abortion, see Hodgson v. Minnesota, 497 U.S. 417, 455 (1990). It was only a slight exaggeration when this Court described, in 1976, a right to abortion “without interference from the State.” Danforth, supra, at 61. The Court’s expansive application of Roe in this period, even more than Roe itself, was fairly described as the “unrestrained imposition of [the Court’s] own, extraconstitutional value preferences” on the American people. Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 794 (1986) (White, J., dissenting).
  It appeared that this era of Court-mandated abortion on demand had come to an end, first with our decision in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), see id., at 557 (Blackmun, J., concurring in part and dissenting in part) (lamenting that the plurality had “discard[ed]” Roe), and then finally (or so we were told) in our decision in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). Although in Casey the separate opinions of The Chief Justice and Justice Scalia urging the Court to overrule Roe did not command a majority, seven Members of that Court, including six Members sitting today, acknowledged that States have a legitimate role in regulating abortion and recognized the States’ interest in respecting fetal life at all stages of development. See 505 U.S., at 877 (joint opinion of O’Connor, Kennedy, and Souter, JJ.); id., at 944 (Rehnquist, C. J., joined by White, Scalia, Thomas, JJ., concurring in judgment in part and dissenting in part); id., at 979 (Scalia, J., joined by Rehnquist, C. J., and White and Thomas, JJ., concurring in judgment in part and dissenting in part). The joint opinion authored by Justices O’Connor, Kennedy, and Souter concluded that prior case law “went too far” in “undervalu[ing] the State’s interest in potential life” and in “striking down … some abortion regulations which in no real sense deprived women of the ultimate decision.” Id., at 875.1 Roe and subsequent cases, according to the joint opinion, had wrongly “treat[ed] all governmental attempts to influence a woman’s decision on behalf of the potential life within her as unwarranted,” a treatment that was “incompatible with the recognition that there is a substantial state interest in potential life throughout pregnancy.” Id., at 876. Accordingly, the joint opinion held that so long as state regulation of abortion furthers legitimate interests–that is, interests not designed to strike at the right itself–the regulation is invalid only if it imposes an undue burden on a woman’s ability to obtain an abortion, meaning that it places a substantial obstacle in the woman’s path. Id., at 874, 877.
  • Stenberg v. Carhart (99-830) 530 U.S. 914 (2000), Thomas, J., dissenting, law.cornell.edu

• In the almost 30 years since Roe, this Court has never described the various methods of aborting a second- or third-trimester fetus. From reading the majority’s sanitized description, one would think that this case involves state regulation of a widely accepted routine medical procedure. Nothing could be further from the truth. The most widely used method of abortion during this stage of pregnancy is so gruesome that its use can be traumatic even for the physicians and medical staff who perform it. See App. 656 (testimony of Dr. Boehm); W. Hern, Abortion Practice 134 (1990). And the particular procedure at issue in this case, “partial birth abortion,” so closely borders on infanticide that 30 States have attempted to ban it. I will begin with a discussion of the methods of abortion available to women late in their pregnancies before addressing the statutory and constitutional questions involved.
  • Stenberg v. Carhart (99-830) 530 U.S. 914 (2000), Thomas, J., dissenting, law.cornell.edu

• Though Justices O’Connor, Kennedy, and Souter declined in Casey, on the ground of stare decisis, to reconsider whether abortion enjoys any constitutional protection, 505 U.S., at 844—846, 854—869 (majority opinion); id., at 871 (joint opinion), Casey professed to be, in part, a repudiation of Roe and its progeny. The Casey joint opinion expressly noted that prior case law had undervalued the State’s interest in potential life, 505 U.S., at 875—876, and had invalidated regulations of abortion that “in no real sense deprived women of the ultimate decision,” id., at 875. See id., at 871 (“Roe v. Wade speaks with clarity in establishing … the State’s ‘important and legitimate interest in potential life.’ That portion of the decision in Roe has been given too little acknowledgment” (citation omitted)). The joint opinion repeatedly recognized the States’ weighty interest in this area. See id., at 877 (“State … may express profound respect for the life of the unborn”); id., at 878 (“the State’s profound interest in potential life”); id., at 850 (majority opinion) (“profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage”). And, the joint opinion expressed repeatedly the States’ legitimate role in regulating abortion procedures. See id., at 876 (“The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted”); id., at 875 (“Not all governmental intrusion [with abortion] is of necessity unwarranted”). According to the joint opinion, “The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.” Id., at 874.
  The Casey joint opinion therefore adopted the standard: “Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.” Ibid. A regulation imposes an “undue burden” only if it “has the effect of placing a substantial obstacle in the path of a woman’s choice.” Id., at 877.
  • IV A

• [R]oe and Casey say nothing at all about cases in which a physician considers one prohibited method of abortion to be preferable to permissible methods. Today’s majority and Justice O’Connor twist Roe and Casey to apply to the situation in which a woman desires–for whatever reason–an abortion and wishes to obtain the abortion by some particular method. See ante, at 11—12 (majority opinion); ante, at 1—2 (concurring opinion). In other words, the majority and Justice O’Connor fail to distinguish between cases in which health concerns require a woman to obtain an abortion and cases in which health concerns cause a woman who desires an abortion (for whatever reason) to prefer one method over another.
  • IV C

• Although Roe and Casey mandated a health exception for cases in which abortion is “necessary” for a woman’s health, the majority concludes that a procedure is “necessary” if it has any comparative health benefits. Ante, at 18. In other words, according to the majority, so long as a doctor can point to support in the profession for his (or the woman’s) preferred procedure, it is “necessary” and the physician is entitled to perform it. Id. See also ante, at 2 (Ginsburg, J., concurring) (arguing that a State cannot constitutionally “sto[p] a woman from choosing the procedure her doctor ‘reasonably believes’ ” is in her best interest). But such a health exception requirement eviscerates Casey’s undue burden standard and imposes unfettered abortion-on-demand. The exception entirely swallows the rule. In effect, no regulation of abortion procedures is permitted because there will always be some support for a procedure and there will always be some doctors who conclude that the procedure is preferable. If Nebraska reenacts its partial birth abortion ban with a health exception, the State will not be able to prevent physicians like Dr. Carhart from using partial birth abortion as a routine abortion procedure. This Court has now expressed its own conclusion that there is “highly plausible” support for the view that partial birth abortion is safer, which, in the majority’s view, means that the procedure is therefore “necessary.” Ante, at 18. Any doctor who wishes to perform such a procedure under the new statute will be able to do so with impunity. Therefore, Justice O’Connor’s assurance that the constitutional failings of Nebraska’s statute can be easily fixed, ante, at 5, is illusory. The majority’s insistence on a health exception is a fig leaf barely covering its hostility to any abortion regulation by the States–a hostility that Casey purported to reject.
  • IV C

• For close to two decades after Roe v. Wade, 410 U.S. 113 (1973), the Court gave but slight weight to the interests of the separate States when their legislatures sought to address persisting concerns raised by the existence of a woman’s right to elect an abortion in defined circumstances. When the Court reaffirmed the essential holding of Roe, a central premise was that the States retain a critical and legitimate role in legislating on the subject of abortion, as limited by the woman’s right the Court restated and again guaranteed. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). The political processes of the State are not to be foreclosed from enacting laws to promote the life of the unborn and to ensure respect for all human life and its potential. Id., at 871 (joint opinion of O’Connor, Kennedy, and Souter, JJ.). The State’s constitutional authority is a vital means for citizens to address these grave and serious issues, as they must if we are to progress in knowledge and understanding and in the attainment of some degree of consensus.
  • Kennedy, J. dissenting, law.cornell.edu

• Casey held that cases decided in the wake of Roe v. Wade, 410 U.S. 113 (1973), had “given [state interests] too little acknowledgment and implementation.” 505 U.S., at 871 (joint opinion of O’Connor, Kennedy, and Souter, JJ.). The decision turned aside any contention that a person has the “right to decide whether to have an abortion without ‘interference from the State,’ ” id., at 875, and rejected a strict scrutiny standard of review as “incompatible with the recognition that there is a substantial state interest in potential life throughout pregnancy.” Id., at 876. “The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted.” Ibid. We held it was inappropriate for the Judicial Branch to provide an exhaustive list of state interests implicated by abortion. Id., at 877.
  Casey is premised on the States having an important constitutional role in defining their interests in the abortion debate. It is only with this principle in mind that Nebraska’s interests can be given proper weight. The State’s brief describes its interests as including concern for the life of the unborn and “for the partially-born,” in preserving the integrity of the medical profession, and in “erecting a barrier to infanticide.” Brief for Petitioners 48—49. A review of Casey demonstrates the legitimacy of these policies. The Court should say so.
  • I Kennedy, J. dissenting, law.cornell.edu

• In deferring to the physician’s judgment, the Court turns back to cases decided in the wake of Roe, cases which gave a physician’s treatment decisions controlling weight. Before it was repudiated by Casey, the approach of deferring to physicians had reached its apex in Akron, supra, where the Court held an informed consent requirement was unconstitutional. The law challenged in Akron required the abortionist to inform the woman of the status of her pregnancy, the development of her fetus, the date of possible viability, the physical and emotional complications that may result from an abortion, and the availability of agencies to provide assistance and information. Id., at 442. The physician was also required to advise the woman of the risks associated with the abortion technique to be employed and other information. Ibid. The law was invalidated based on the physician’s right to practice medicine in the way he or she saw fit; for, according to the Akron Court, “[i]t remains primarily the responsibility of the physician to ensure that appropriate information is conveyed to his patient, depending on her particular circumstances.” Id., at 443. Dispositive for the Court was that the law was an “intrusion upon the discretion of the pregnant woman’s physician.” Id., at 445. The physician was placed in an “undesired and uncomfortable straitjacket.” Ibid. (internal quotation marks omitted). The Court’s decision today echoes the Akron Court’s deference to a physician’s right to practice medicine in the way he sees fit.
  • II Kennedy, J. dissenting, law.cornell.edu

• While I am in an I-told-you-so mood, I must recall my bemusement, in Casey, at the joint opinion’s expressed belief that Roe v. Wade had “call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution,” Casey, 505 U.S., at 867, and that the decision in Casey would ratify that happy truce. It seemed to me, quite to the contrary, that “Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since”; and that, “by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption, rather than of any Pax Roeana, that the Court’s new majority decrees.” Id., at 995—996. Today’s decision, that the Constitution of the United States prevents the prohibition of a horrible mode of abortion, will be greeted by a firestorm of criticism–as well it should. I cannot understand why those who acknowledge that, in the opening words of Justice O’Connor’s concurrence, “[t]he issue of abortion is one of the most contentious and controversial in contemporary American society,” ante, at 1, persist in the belief that this Court, armed with neither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it. If only for the sake of its own preservation, the Court should return this matter to the people–where the Constitution, by its silence on the subject, left it–and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.
  • Stenberg v. Carhart (99-830) 530 U.S. 914 (2000), Scalia, J., dissenting, law.cornell.edu

"Judges as Medical Decision Makers: Is the Cure Worse than the Disease" (1984)

"Judges as Medical Decision Makers: Is the Cure Worse than the Disease" by Alan A. Stone, Cleveland State Law Review, Volume 33, Issue 4, 1984

• Any discussion of the role of the judiciary in medical decision making in the twentieth century must begin with the abortion decisions: Roe v. Wade and Doe v. Bolton. One aspect of those decisions is relevant to my particular thesis. I quote a crucial sentence from Justice Blackmun’s decision in Wade: “For the stage, prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” Although we have come to know the abortion decision as freedom of choice versus right to life, we find Justice Blackmun writing not that the state must yield to the woman’s choice but to the physician’s “medical judgment.” A assure you this is not just a sentence taken out of context. Earlier in his opinion, Blackmun had written that the attending physician before extra-uterine viability is free to “determine . . . that, in his medical judgment, the patient’s pregnancy should be terminated.” The language of the decision throughout misleadingly suggests that some crucial sort of medical judgment is involved not only in how the abortion is performed but whether the pregnancy “should be terminated.”
  • pp.579–580

• Justice Burger in his brief comment to the abortion decisions chose to emphasize this very same crucial and misleading point.
  I do not read the Court’s holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of careful deliberated medical judgment related to life and health. Plainly, the Court today rejects any claims that the Constitution requires abortions on demand.
  What was the reality that Justice White in dissent had discounted? Implied by Blackmun and explicit in the words of Burger were the crucial and false notions that the reality of medical standards and medical judgment would keep the woman’s right to an abortion from becoming abortion on demand, abortion as a routine form of birth control. Professor Noonan, a bitter critic of the abortion decision, refers to this aspect of the decision as the “doctor as heroic figure.”
  Some have attributed Blackmun and Burger’s “heroic doctor” misleading language to political or personal motives or even to sugar-coated hypocrisy. There are even professional cynics steeped in constitutional law and court watching who suggest Machiavellian duplicity of Burger’s part. Burger, they say, is waiting for another Reagan appointee so that with a majority he will then write: I never approved abortion on demand and since that is what it became I now join with those who reject Wade and Bolton.
  • p.580

• As a psychiatrist, I am in the unusual position on insisting that we take the Justice’s words as their face value. Of course, the Chief Justice turned out to be completely wrong: the consequences predicted by the dissent were as accurate as any judicial prediction can be. As Justice White correctly interpreted the decision, “any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.” As Justice White predicted, abortion has become a routine alternative method of birth control. If we take Justice Blackmun’s and Burger’s words about medical judgment at face value, we can only assume that they were quite misled about the medical profession, its medical standards, and the medical judgments that were and would be applied to abortion. It was Blackmun and Burger who were out of touch with reality if they honestly believed that they wrote.
  My point is not that the abortion decisions were wrong or right as a matter of law or morality. My point is that to the extent these opinions involved factual inferences about medical standards and medical practice-inferences which suggested a context for the decision, inferences which suggested more limited consequences of the decision, inferences which suggested the realities of medical practice-to that extent the decision was quite misleading.
  I claim that such misleading statements about medical realities are not uncommon when judges make medical decisions. I also claim that the result of such misleading statements by judges is costly. The credibility of the courts is undermined in the eyes of the medical profession, and the credibility of the medical profession is undermined in the eyes of the public. The result is greater public distrust of both law and medicine. A loss of faith in both professions is the result of the vicious circle of counterproductive moves set in motion by these flawed decisions.
  • pp.580-581

• In Wade, Blackmun ad used the phrase “attending physician” to describe the doctor who would make the abortion decision. This conjures up an earlier time when patients actually had a personal physician who attended them at bedside both at home and in the hospital, but is certainly an inapt phrase for describing doctors who perform abortion procedures in clinics.
  Typically the pregnant woman is greeter by a nurse, a social worker, or an abortion counselor. The “medical decision” is made with them. She meets the doctor typically only after she is "prepped and in the stirrups." The physician is more appropriately characterized as a technician in an assembly line than an attending physician. There are certainly exceptions to this practice, but the picture I describe will certainly be familiar to the vast majority of the participants in this example of "deliberated medical judgments related to life and health." Doctors, of course, still use the phrase "attending physician" but with a different meaning. As Victor Fuchs has written of contemporary medical practice, my heart can get a doctor, my liver can get a doctor, my head can get a doctor, but I cannot get a doctor.' The nostalgic image of the doctor-patient relationship is important in Bolton because there the Supreme Court had a great deal to say about the importance of the privacy of the doctor-patient relation- ship. The Court made this privacy seem as sacred to law as the privacy of the marriage bed. We shall see how much respect subsequent courts have had for the privacy of the doctor-patient relationship as cases were decided in the name of privacy.
  • pp.581-582

"The original Roe v. Wade ruling was leaked, too" (May 3, 2022)

Treisman, Rachel (May 3, 2022). "The original Roe v. Wade ruling was leaked, too". NPR.

• There have indeed been leaks at the court before, albeit of a different scale. One of them actually was about the case at the heart of today's conversation: In 1973, the original Roe decision was leaked to the press before the court had formally announced it.
  Jonathan Peters, a media law professor at the University of Georgia, noted in a Twitter thread that there were actually two Roe-related leaks in the 1970s.
  First, the Washington Post published a story about the court's internal deliberations, including a June 1972 memo from Justice William O. Douglas to his colleagues that was mysteriously leaked.
  Seven months later, Time magazine published the final decision and vote details just hours before the court was due to announce it — the result of an early scoop and a delayed ruling.
  A Supreme Court clerk named Larry Hammond told Time staff reporter David Beckwith, a law school acquaintance, that the Roe ruling was coming, according to lawyer and author James Robenalt, who detailed the incident in a Washington Post column on Monday.
  Hammond gave Beckwith the information "on background," and it was only to be reported once the opinion came down from the court. But the ruling was slightly delayed, and that week's magazine ended up hitting newsstands a few hours too soon.
• Then-Chief Justice Warren Burger was reportedly furious about the leak, demanding a meeting with Time's editors to tell them off. He also sent a letter to the other justices demanding that the leaker be identified and punished, and threatened to subject law clerks to lie-detector tests if no one came forward, Robenalt said.
  According to Peters, this was also the origin of Burger's "20-second rule," in which any law clerk caught talking to a reporter would be fired in under half a minute.
  Hammond offered his resignation to his boss, Justice Lewis Powell. But Powell didn't accept it, and instead called Burger to tell him "that Hammond had been double-crossed," writes Robenalt, who interviewed Hammond for his 2015 book about the political and cultural events of January 1973.
  Burger wasn't quick to forgive the magazine, but accepted Hammond's apology and let him stay on as Powell's clerk. He continued in that role for an additional term before leaving the court to join the Watergate Special Prosecution Force.
  "The story of Hammond's close call became legend to other clerks on the court at the time and has been passed down as a cautionary tale over time," Robenalt added.

"States probe limits of abortion policy" (June 11, 2007)

Vestal, Christine. "States probe limits of abortion policy", Stateline.org. (June 11, 2007).

• The U.S. Supreme Court looms large in the history of abortion in the United States, but state capitols from the 1800s to now have been the crucibles of America's evolving laws on a woman's right to end a pregnancy.
  The initial trendsetter was Massachusetts, which in the mid-1800s became the first state to outlaw abortion, an accepted practice in colonial times. Last year, South Dakota attempted to change history with a strict new ban on abortion geared to challenge the high court's 1973 Roe v. Wade ruling, which established constitutional protections for women seeking an abortion.
  While the makeup of the Supreme Court is the focus of much of today's political calculations about the future of abortion in America, the role of states would become pivotal if the landmark decision were overturned. Any substantial weakening of Roe v. Wade would trigger an epic battle between "pro-life" and "pro-choice" forces that would be fought in state capitols - and perhaps also in Congress.
• South Dakota's 2006 assault on Roe v. Wade marked a new twist after 33 years in which most states have concentrated on whittling away at the edges of the landmark ruling.
• In a 7-to-2 decision, the justices in Roe v. Wade ensured that abortion would be legal in all 50 states. That ruling and subsequent decisions prevent states from outlawing abortion except for late in pregnancy when a fetus can live outside of the womb, and then only if the mother's physical or mental health will not be adversely affected.
  Still, getting an abortion in some states is difficult. Local laws, culture and politics create widely varying experiences for women seeking to end their pregnancies.
• After Roe v. Wade, states repeatedly tested its boundaries, passing laws that made it difficult for some women to have an abortion. Many state laws were struck down by federal courts, and some appeals made it to the high court.
  For example, a Missouri law requiring a married woman to get her husband's consent for an abortion was struck down in 1976. A Minnesota law requiring minors to notify both parents before obtaining an abortion was overturned in 1990, because it failed to provide exceptions when parents refuse to consent or cannot be contacted.
• Despite its conservative ruling in the partial-birth abortion case, a majority of the current Supreme Court remains likely to uphold Roe v. Wade . But if the court's makeup were to change and the abortion ruling were toppled, it would ignite a political firestorm in all 50 state capitols and in Congress. Because states historically have taken the lead on abortion and other social issues as prescribed in the U.S. Constitution, legal analysts expect Congress to remain in the wings as states forge new policies.
  Political analysts differ on how many states are likely to make abortion illegal if Roe v. Wade were overturned. Whether a state chooses to ban abortion will depend on what party controls the governor's mansion and the legislature, and on the social leanings of its citizens, if and when federal restrictions are lifted.
  But signs can be gleaned from states' recent records on the issue.
• On the anti-abortion side, four states already have in place so-called trigger laws, designed to make abortion illegal if federal policy permits. Three other states passed laws called statements of policy, establishing the illegality of abortion as an overriding state philosophy.
  In addition, a few states have pre-1973 abortion bans still on the books, which legal experts say could be reinstated. Abortion bans passed by Louisiana and Utah in 1991 that were immediately struck down by federal courts also remain on the books in both states and could take effect if Roe v. Wade fell, legal experts say.
  On the abortion-rights side, seven states have codified the principles of Roe v. Wade in state law, and high courts in nine other states have interpreted the state constitution as independently ensuring a woman's right to an abortion.
• In Roe v. Wade and subsequent decisions, the high court allowed states to prohibit abortions after the fetus is able to live outside of the womb, with the following exceptions: States may not prohibit abortions necessary to preserve a woman's life or physical or mental health, and states must allow the attending physician to determine when a woman's health is at risk and when the fetus is viable, without requiring a second doctor's opinion.
  Despite the court's stipulations, some state bans on late-term abortions violate those requirements, though not all have been enjoined by courts.
  In all, 36 states prohibit abortions after a certain point in pregnancy. Of those, 23 ban abortions at viability; five ban it in the third trimester; and eight ban the procedure after 24 weeks.
  In conflict with Roe v. Wade , four of the 36 states permit late-term abortions only to save a woman's life, and four use a narrower health definition. Nine states require a second physician to treat the fetus if it is born alive, and 10 states require a second physician to certify that the abortion is medically necessary.

Webster v. Reproductive Health Services, 492 U.S. 490 (1989).

• Appellees, state-employed health professionals and private nonprofit corporations providing abortion services, brought suit in the District Court for declaratory and injunctive relief challenging the constitutionality of a Missouri statute regulating the performance of abortions. The statute, inter alia: (1) sets forth "findings" in its preamble that "[t]he life of each human being begins at conception," and that "unborn children have protectable interests in life, health, and wellbeing," §§ 1.205.1(1), (2), and requires that all state laws be interpreted to provide unborn children with the same rights enjoyed by other persons, subject to the Federal Constitution and this Court's precedents, § 1.205.2; (2) specifies that a physician, prior to performing an abortion on any woman whom he has reason to believe is 20 or more weeks pregnant, must ascertain whether the fetus is "viable" by performing "such medical examinations and tests as are necessary to make a finding of [the fetus'] gestational age, weight, and lung maturity," § 188.029; (3) prohibits the use of public employees and facilities to perform or assist abortions not necessary to save the mother's life, §§ 188.210, 188.215; and (4) makes it unlawful to use public funds, employees, or facilities for the purpose of "encouraging or counseling" a woman to have an abortion not necessary to save her life, §§ 188.205, 188.210, 188.215. The District Court struck down each of the above provisions, among others, and enjoined their enforcement. The Court of Appeals affirmed, ruling that the provisions in question violated this Court's decisions in Roe v. Wade, 410 U. S. 113, and subsequent cases.
  • p.490

• THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I, II-A, II-B, and II-C, concluding that:
  1. This Court need not pass on the constitutionality of the Missouri statute's preamble. In invalidating the preamble, the Court of Appeals misconceived the meaning of the dictum in Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 462 U. S. 444, that "a State may not adopt one theory of when life begins to justify its regulation of abortions."
  That statement means only that a State could not "justify" any abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the State's view about when life begins. The preamble does not, by its terms, regulate abortions or any other aspect of appellees' medical practice, and § 1.205.2 can be interpreted to do no more than offer protections to unborn children in tort and probate law, which is permissible under Roe v. Wade, supra, at 410 U. S. 161-162. This Court has emphasized that Roe implies no limitation on a State's authority to make a value judgment favoring childbirth over abortion, Maher v. Roe, 432 U. S. 464, 432 U. S. 474, and the preamble can be read simply to express that sort of value judgment. The extent to which the preamble's language might be used to interpret other state statutes or regulations is something that only the state courts can definitively decide, and, until those courts have applied the preamble to restrict appellees' activities in some concrete way, it is inappropriate for federal courts to address its meaning. Alabama State Federation of Labor v. McAdory, 325 U. S. 450, 325 U. S. 460. Pp. 492 U. S. 504-507.
  • pp.490-491

• 2. The restrictions in §§ 188.210 and 188.215 of the Missouri statute on the use of public employees and facilities for the performance or assistance of nontherapeutic abortions do not contravene this Court's abortion decisions. The Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government may not deprive the individual. DeShaney v. Winnebago County Dept. of Social Services, 489 U. S. 189, 489 U. S. 196. Thus, in Maher v. Roe, supra; Poelker v. Doe, 432 U. S. 519; and Harris v. McRae, 448 U. S. 297, this Court upheld governmental regulations withholding public funds for nontherapeutic abortions but allowing payments for medical services related to childbirth, recognizing that a government's decision to favor childbirth over abortion through the allocation of public funds does not violate Roe v. Wade.
  • p.491

• While Roe, 410 U.S. at 410 U. S. 162, recognized the State's interest in protecting potential human life as "important and legitimate," it also limited state involvement in second-trimester abortions to protecting maternal health, id. at 410 U. S. 164, and allowed States to regulate or proscribe abortions to protect the unborn child only after viability, id. at 410 U. S. 165. Since the tests in question regulate the physician's discretion in determining the viability of the fetus, § 188.029 conflicts with language in Colautti v. Franklin, 439 U. S. 379, 439 U. S. 388-389, stating that the viability determination is, and must be, a matter for the responsible attending physician's judgment. And, in light of District Court findings that the tests increase the expenses of abortion, their validity may also be questioned under Akron, 462 U.S. at 462 U. S. 434-435, which held that a requirement that second-trimester abortions be performed in hospitals was invalid because it substantially increased the expenses of those procedures. Pp. 492 U. S. 516-517.
  • pp. 493-494

• (d) The doubt cast on the Missouri statute by these cases is not so much a flaw in the statute as it is a reflection of the fact that Roe's rigid trimester analysis has proved to be unsound in principle and unworkable in practice. In such circumstances, this Court does not refrain from reconsidering prior constitutional rulings, notwithstanding stare decisis. E.g., Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528. The Roe framework is hardly consistent with the notion of a Constitution like ours that is cast in general terms and usually speaks in general principles. The framework's key elements -- trimesters and viability -- are not found in the Constitution's text, and, since the bounds of the inquiry are essentially indeterminate, the result has been a web of legal rules that have become increasingly intricate, resembling a code of regulations, rather than a body of constitutional doctrine. There is also no reason why the State's compelling interest in protecting potential human life should not extend throughout pregnancy, rather than coming into existence only at the point of viability. Thus, the Roe trimester framework should be abandoned. Pp. 492 U. S. 517-520.
  (e) There is no merit to JUSTICE BLACKMUN's contention that the Court should join in a "great issues" debate as to whether the Constitution includes an "unenumerated" general right to privacy as recognized in cases such as Griswold v. Connecticut, 381 U. S. 479. Unlike Roe, Griswold did not purport to adopt a whole framework, complete with detailed rules and distinctions, to govern the cases in which the asserted liberty interest would apply. The Roe framework sought to deal with areas of medical practice traditionally left to the States, and to balance once and for all, by reference only to the calendar, the State's interest in protecting potential human life against the claims of a pregnant woman to decide whether or not to abort. The Court's experience in applying Roe in later cases suggests that there is wisdom in not necessarily attempting to elaborate the differences between a "fundamental right" to an abortion, Akron, supra, at 462 U. S. 420, n. 1, a "limited fundamental constitutional right," post at 492 U. S. 555, or a liberty interest protected by the Due Process Clause. Moreover, although this decision will undoubtedly allow more governmental regulation of abortion than was permissible before, the goal of constitutional adjudication is not to remove inexorably "politically devisive" issues from the ambit of the legislative process, but is, rather, to hold true the balance between that which the Constitution puts beyond the reach of the democratic process and that which it does not. Furthermore, the suggestion that legislative bodies, in a Nation where more than half the population is female, will treat this decision as an invitation to enact abortion laws reminiscent of the dark ages misreads the decision and does scant justice to those who serve in such bodies and the people who elect them. Pp. 492 U. S. 520-521.
  • pp. 494-495

• JUSTICE SCALIA would reconsider and explicitly overrule Roe v. Wade. Avoiding the Roe question by deciding this case in as narrow a manner as possible is not required by precedent and not justified by policy. To do so is needlessly to prolong this Court's involvement in a field where the answers to the central questions are political, rather than juridical, and thus to make the Court the object of the sort of organized pressure that political institutions in a democracy ought to receive. It is particularly perverse to decide this case as narrowly as possible in order to avoid reading the inexpressibly "broader than was required by the precise facts" structure established by Roe v. Wade. The question of Roe's validity is presented here, inasmuch as § 188.029 constitutes a legislative imposition on the judgment of the physician concerning the point of viability and increases the cost of an abortion. It does palpable harm, if the States can and would eliminate largely unrestricted abortion, skillfully to refrain from telling them so. Pp. 492 U. S. 532-537.
  • p.496

• In our view, the Court of Appeals misconceived the meaning of the Akron dictum, which was only that a State could not "justify" an abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the State's view about when life begins. Certainly the preamble does not, by its terms, regulate abortion or any other aspect of appellees' medical practice. The Court has emphasized that Roe v. Wade "implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion." Maher v. Roe, 432 U.S. at 432 U. S. 474. The preamble can be read simply to express that sort of value judgment.
  • CHIEF JUSTICE REHNQUIST, p.506

• Having held that the State's refusal to fund abortions does not violate Roe v. Wade, it strains logic to reach a contrary result for the use of public facilities and employees. If the State may "make a value judgment favoring childbirth over abortion and . . . implement that judgment by the allocation of public funds," Maher, supra, at 432 U. S. 474, surely it may do so through the allocation of other public resources, such as hospitals and medical staff.
  The Court of Appeals sought to distinguish our cases on the additional ground that "[t]he evidence here showed that all of the public facility's costs in providing abortion services are recouped when the patient pays." 851 F.2d at 1083. Absent any expenditure of public funds, the court thought that Missouri was "expressing" more than "its preference for childbirth over abortions," but rather was creating an "obstacle to exercise of the right to choose an abortion [that could not] stand absent a compelling state interest." Ibid. We disagree.
  "Constitutional concerns are greatest," we said in Maher, supra, at 432 U. S. 476,
  "when the State attempts to impose its will by the force of law; the State's power to encourage actions deemed to be in the public interest is necessarily far broader."
  Nothing in the Constitution requires States to enter or remain in the business of performing abortions. Nor, as appellees suggest, do private physicians and their patients have some kind of constitutional right of access to public facilities for the performance of abortions. Brief for Appellees 46-47. Indeed, if the State does recoup all of its costs in performing abortions, and no state subsidy, direct or indirect, is available, it is difficult to see how any procreational choice is burdened by the State's ban on the use of its facilities or employees for performing abortions. [Footnote 8]
  • CHIEF JUSTICE REHNQUIST, pp.509-510

• In Roe v. Wade, the Court recognized that the State has "important and legitimate" interests in protecting maternal health and in the potentiality of human life. 410 U.S. at 410 U. S. 162. During the second trimester, the State "may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health." Id. at 410 U. S. 164. After viability, when the State's interest in potential human life was held to become compelling, the State "may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."
  Id. at 165.
  • CHIEF JUSTICE REHNQUIST, p.516

• We think that the doubt cast upon the Missouri statute by these cases is not so much a flaw in the statute as it is a reflection of the fact that the rigid trimester analysis of the course of a pregnancy enunciated in Roe has resulted in subsequent cases like Colautti and Akron making constitutional law in this area a virtual Procrustean bed. Statutes specifying elements of informed consent to be provided abortion patients, for example, were invalidated if they were thought to "structur[e] . . . the dialogue between the woman and her physician." Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, 476 U. S. 763 (1986). As the dissenters in Thornburgh pointed out, such a statute would have been sustained under any traditional standard of judicial review, id. at 476 U. S. 802 (WHITE, J., dissenting), or for any other surgical procedure except abortion. Id. at 476 U. S. 783 (Burger, C.J., dissenting).
  • CHIEF JUSTICE REHNQUIST, p.517

• Stare decisis is a cornerstone of our legal system, but it has less power in constitutional cases, where, save for constitutional amendments, this Court is the only body able to make needed changes. See United States v. Scott, 437 U. S. 82, 437 U. S. 101 (1978). We have not refrained from reconsideration of a prior construction of the Constitution that has proved "unsound in principle and unworkable in practice." Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 469 U. S. 546 (1985); see Solorio v. United States, 483 U. S. 435, 483 U. S. 448-450 (1987); Erie R. Co. v. Tompkins, 304 U. S. 64, 304 U. S. 74-78 (1938). We think the Roe trimester framework falls into that category.
  In the first place, the rigid Roe framework is hardly consistent with the notion of a Constitution cast in general terms, as ours is, and usually speaking in general principles, as ours does. The key elements of the Roe framework -- trimesters and viability -- are not found in the text of the Constitution, or in any place else one would expect to find a constitutional principle. Since the bounds of the inquiry are essentially indeterminate, the result has been a web of legal rules that have become increasingly intricate, resembling a code of regulations rather than a body of constitutional doctrine. [Footnote 15] AS JUSTICE WHITE has put it, the trimester framework has left this Court to serve as the country's "ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States." Planned Parenthood of Central Mo. v. Danforth, 428 U.S. at 428 U. S. 99 (opinion concurring in part and dissenting in part). Cf. Garcia, supra, at 469 U. S. 547.
  In the second place, we do not see why the State's interest in protecting potential human life should come into existence only at the point of viability, and that there should therefore be a rigid line allowing state regulation after viability but prohibiting it before viability. The dissenters in Thornburgh, writing in the context of the Roe trimester analysis, would have recognized this fact by positing against the "fundamental right" recognized in Roe the State's "compelling interest" in protecting potential human life throughout pregnancy. "[T]he State's interest, if compelling after viability, is equally compelling before viability." Thornburgh, 476 U.S. at 476 U. S. 795 (WHITE, J., dissenting); see id. at 476 U. S. 828 (O'CONNOR, J., dissenting) ("State has compelling interests in ensuring maternal health and in protecting potential human life, and these interests exist throughout pregnancy'") (citation omitted).
  • CHIEF JUSTICE REHNQUIST, pp.518-519

• JUSTICE BLACKMUN takes us to task for our failure to join in a "great issues" debate as to whether the Constitution includes an "unenumerated" general right to privacy as recognized in cases such as Griswold v. Connecticut, 381 U. S. 479 (1965), and Roe. But Griswold v. Connecticut, unlike Roe, did not purport to adopt a whole framework, complete with detailed rules and distinctions, to govern the cases in which the asserted liberty interest would apply. As such, it was far different from the opinion, if not the holding, of Roe v. Wade, which sought to establish a constitutional framework for judging state regulation of abortion during the entire term of pregnancy. That framework sought to deal with areas of medical practice traditionally subject to state regulation, and it sought to balance once and for all by reference only to the calendar the claims of the State to protect the fetus as a form of human life against the claims of a woman to decide for herself whether or not to abort a fetus she was carrying. The experience of the Court in applying Roe v. Wade in later cases, see supra at 492 U. S. 518, n. 15, suggests to us that there is wisdom in not unnecessarily attempting to elaborate the abstract differences between a "fundamental right" to abortion, as the Court described it in Akron, 462 U.S. at 462 U. S. 420, n. 1, a "limited fundamental constitutional right," which JUSTICE BLACKMUN today treats Roe as having established, post at 492 U. S. 555, or a liberty interest protected by the Due Process Clause, which we believe it to be. The Missouri testing requirement here is reasonably designed to ensure that abortions are not performed where the fetus is viable -- an end which all concede is legitimate -- and that is sufficient to sustain its constitutionality.
  • CHIEF JUSTICE REHNQUIST, p.520

• Unlike the plurality, I do not understand these viability testing requirements to conflict with any of the Court's past decisions concerning state regulation of abortion. Therefore, there is no necessity to accept the State's invitation to reexamine the constitutional validity of Roe v. Wade, 410 U. S. 113 (1973). Where there is no need to decide a constitutional question, it is a venerable principle of this Court's adjudicatory processes not to do so, for "[t]he Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it.'" Ashwander v. TVA, 297 U. S. 288, 297 U. S. 346 (1936) (Brandeis, J., concurring), quoting Liverpool, New York and Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 113 U. S. 39 (1885). Neither will it generally "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." 297 U.S. at 297 U. S. 347. Quite simply, "[i]t is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case." Burton v. United States, 196 U. S. 283, 196 U. S. 295 (1905). The Court today has accepted the State's every interpretation of its abortion statute, and has upheld, under our existing precedents, every provision of that statute which is properly before us. Precisely for this reason, reconsideration of Roe falls not into any "good-cause exception" to this "fundamental rule of judicial restraint. . . ." Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 467 U. S. 157 (1984). See post at 492 U. S. 532-533 (SCALIA, J., concurring in part and concurring in judgment). When the constitutional invalidity of a State's abortion statute actually turns on the constitutional validity of Roe v. Wade, there will be time enough to reexamine Roe. And to do so carefully.
  • JUSTICE O'CONNOR, concurring in part and concurring in the judgment, pp.525-526

• JUSTICE O'CONNOR's assertion, ante at 492 U. S. 526, that a "fundamental rule of judicial restraint'" requires us to avoid reconsidering Roe, cannot be taken seriously. By finessing Roe we do not, as she suggests, ante at 492 U. S. 526, adhere to the strict and venerable rule that we should avoid "`decid[ing] questions of a constitutional nature.'" We have not disposed of this case on some statutory or procedural ground, but have decided, and could not avoid deciding, whether the Missouri statute meets the requirements of the United States Constitution.
  The only choice available is whether, in deciding that constitutional question, we should use Roe v. Wade as the benchmark, or something else. What is involved, therefore, is not the rule of avoiding constitutional issues where possible, but the quite separate principle that we will not "`formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.'" Ante at 492 U. S. 526. The latter is a sound general principle, but one often departed from when good reason exists.
  • JUSTICE SCALIA, concurring in part and concurring in the judgment, pp.532-533

• Ordinarily, speaking no more broadly than is absolutely required avoids throwing settled law into confusion; doing so today preserves a chaos that is evident to anyone who can read and count. Alone sufficient to justify a broad holding is the fact that our retaining control, through Roe, of what I believe to be, and many of our citizens recognize to be, a political issue, continuously distorts the public perception of the role of this Court. We can now look forward to at least another Term with carts full of mail from the public, and streets full of demonstrators, urging us -- their unelected and life-tenured judges who have been awarded those extraordinary, undemocratic characteristics precisely in order that we might follow the law despite the popular will -- to follow the popular will. Indeed, I expect we can look forward to even more of that than before, given our indecisive decision today. And if these reasons for taking the unexceptional course of reaching a broader holding are not enough, then consider the nature of the constitutional question we avoid: in most cases, we do no harm by not speaking more broadly than the decision requires. Anyone affected by the conduct that the avoided holding would have prohibited will be able to challenge it himself and have his day in court to make the argument. Not so with respect to the harm that many States believed, pre-Roe, and many may continue to believe, is caused by largely unrestricted abortion. That will continue to occur if the States have the constitutional power to prohibit it, and would do so, but we skillfully avoid telling them so. Perhaps those abortions cannot constitutionally be proscribed. That is surely an arguable question, the question that reconsideration of Roe v. Wade entails. But what is not at all arguable, it seems to me, is that we should decide now, and not insist that we be run into a corner before we grudgingly yield up our judgment. The only sound reason for the latter course is to prevent a change in the law -- but to think that desirable begs the question to be decided.
  • JUSTICE SCALIA, concurring in part and concurring in the judgment, p.535

• It was an arguable question today whether § 188.029 of the Missouri law contravened this Court's understanding of Roe v. Wade, and I would have examined Roe rather than examining the contravention. Given the Court's newly contracted abstemiousness, what will it take, one must wonder, to permit us to reach that fundamental question? The result of our vote today is that we will not reconsider that prior opinion, even if most of the Justices think it is wrong, unless we have before us a statute that in fact contradicts it -- and even then (under our newly discovered "no broader than necessary" requirement) only minor problematical aspects of Roe will be reconsidered, unless one expects state legislatures to adopt provisions whose compliance with Roe cannot even be argued with a straight face. It thus appears that the mansion of constitutionalized abortion law, constructed overnight in Roe v. Wade, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be.
  • JUSTICE SCALIA, concurring in part and concurring in the judgment, pp.536-537

• Today, Roe v. Wade, 410 U. S. 113 (1973), and the fundamental constitutional right of women to decide whether to terminate a pregnancy, survive, but are not secure. Although the Court extricates itself from this case without making a single, even incremental, change in the law of abortion, the plurality and JUSTICE SCALIA would overrule Roe (the first silently, the other explicitly) and would return to the States virtually unfettered authority to control the quintessentially intimate, personal, and life-directing decision whether to carry a fetus to term. Although today, no less than yesterday, the Constitution and the decisions of this Court prohibit a State from enacting laws that inhibit women from the meaningful exercise of that right, a plurality of this Court implicitly invites every state legislature to enact more and more restrictive abortion regulations in order to provoke more and more test cases, in the hope that, sometime down the line, the Court will return the law of procreative freedom to the severe limitations that generally prevailed in this country before January 22, 1973. Never in my memory has a plurality announced a judgment of this Court that so foments disregard for the law and for our standing decisions.
  Nor in my memory has a plurality gone about its business in such a deceptive fashion. At every level of its review, from its effort to read the real meaning out of the Missouri statute to its intended evisceration of precedents and its deafening silence about the constitutional protections that it would jettison, the plurality obscures the portent of its analysis. With feigned restraint, the plurality announces that its analysis leaves Roe "undisturbed," albeit "modif[ied] and narrow[ed]." Ante at 492 U. S. 521. But this disclaimer is totally meaningless. The plurality opinion is filled with winks, and nods, and knowing glances to those who would do away with Roe explicitly, but turns a stone face to anyone in search of what the plurality conceives as the scope of a woman's right under the Due Process Clause to terminate a pregnancy free from the coercive and brooding influence of the State. The simple truth is that Roe would not survive the plurality's analysis, and that the plurality provides no substitute for Roe's protective umbrella.
  I fear for the future. I fear for the liberty and equality of the millions of women who have lived and come of age in the 16 years since Roe was decided. I fear for the integrity of, and public esteem for, this Court.
  • JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, concurring in part and dissenting in part, pp.537-538

• Today, Roe v. Wade, 410 U. S. 113 (1973), and the fundamental constitutional right of women to decide whether to terminate a pregnancy, survive, but are not secure. Although the Court extricates itself from this case without making a single, even incremental, change in the law of abortion, the plurality and JUSTICE SCALIA would overrule Roe (the first silently, the other explicitly) and would return to the States virtually unfettered authority to control the quintessentially intimate, personal, and life-directing decision whether to carry a fetus to term. Although today, no less than yesterday, the Constitution and the decisions of this Court prohibit a State from enacting laws that inhibit women from the meaningful exercise of that right, a plurality of this Court implicitly invites every state legislature to enact more and more restrictive abortion regulations in order to provoke more and more test cases, in the hope that, sometime down the line, the Court will return the law of procreative freedom to the severe limitations that generally prevailed in this country before January 22, 1973. Never in my memory has a plurality announced a judgment of this Court that so foments disregard for the law and for our standing decisions.
  Nor in my memory has a plurality gone about its business in such a deceptive fashion. At every level of its review, from its effort to read the real meaning out of the Missouri statute to its intended evisceration of precedents and its deafening silence about the constitutional protections that it would jettison, the plurality obscures the portent of its analysis. With feigned restraint, the plurality announces that its analysis leaves Roe "undisturbed," albeit "modif[ied] and narrow[ed]." Ante at 492 U. S. 521. But this disclaimer is totally meaningless. The plurality opinion is filled with winks, and nods, and knowing glances to those who would do away with Roe explicitly, but turns a stone face to anyone in search of what the plurality conceives as the scope of a woman's right under the Due Process Clause to terminate a pregnancy free from the coercive and brooding influence of the State. The simple truth is that Roe would not survive the plurality's analysis, and that the plurality provides no substitute for Roe's protective umbrella.
  I fear for the future. I fear for the liberty and equality of the millions of women who have lived and come of age in the 16 years since Roe was decided. I fear for the integrity of, and public esteem for, this Court.
  • JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, concurring in part and dissenting in part, pp.537-538

• In the plurality's view, the viability testing provision imposes a burden on second-trimester abortions as a way of furthering the State's interest in protecting the potential life of the fetus. Since, under the Roe framework, the State may not fully regulate abortion in the interest of potential life (as opposed to maternal health) until the third trimester, the plurality finds it necessary, in order to save the Missouri testing provision, to throw out Roe's trimester framework. Ante at 492 U. S. 518-520. In flat contradiction to Roe, 410 U.S. at 410 U. S. 163, the plurality concludes that the State's interest in potential life is compelling before viability, and upholds the testing provision because it "permissibly furthers" that state interest. Ante at 492 U. S. 519.
  • JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, concurring in part and dissenting in part, pp. 541-542

• At the outset, I note that, in its haste to limit abortion rights, the plurality compounds the errors of its analysis by needlessly reaching out to address constitutional questions that are not actually presented. The conflict between § 188.029 and Roe's trimester framework, which purportedly drives the plurality to reconsider our past decisions, is a contrived conflict: the product of an aggressive misreading of the viability testing requirement and a needlessly wooden application of the Roe framework.
  • JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, concurring in part and dissenting in part, A, p.542

• No one contests that, under the Roe framework, the State, in order to promote its interest in potential human life, may regulate and even proscribe nontherapeutic abortions once the fetus becomes viable. Roe, 410 U.S. at 410 U. S. 164-165. If, as the plurality appears to hold, the testing provision simply requires a physician to use appropriate and medically sound tests to determine whether the fetus is actually viable when the estimated gestational age is greater than 20 weeks (and therefore within what the District Court found to be the margin of error for viability, ante at 492 U. S. 515-516), then I see little or no conflict with Roe. [Footnote 2/5] Nothing in Roe, or any of its progeny, holds that a State may not effectuate its compelling interest in the potential life of a viable fetus by seeking to ensure that no viable fetus is mistakenly aborted because of the inherent lack of precision in estimates of gestational age. A requirement that a physician make a finding of viability, one way or the other, for every fetus that falls within the range of possible viability does no more than preserve the State's recognized authority. Although, as the plurality correctly points out, such a testing requirement would have the effect of imposing additional costs on second-trimester abortions where the tests indicated that the fetus was not viable, these costs would be merely incidental to, and a necessary accommodation of, the State's unquestioned right to prohibit nontherapeutic abortions after the point of viability. In short, the testing provision, as construed by the plurality, is consistent with the Roe framework, and could be upheld effortlessly under current doctrine. [Footnote 2/6]
  • JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, pp.544-545

• Having set up the conflict between § 188.029 and the Roe trimester framework, the plurality summarily discards Roe's analytic core as "unsound in principle and unworkable in practice.'" Ante at 492 U. S. 518, quoting Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 469 U. S. 546 (1985). This is so, the plurality claims, because the key elements of the framework do not appear in the text of the Constitution, because the framework more closely resembles a regulatory code than a body of constitutional doctrine, and because, under the framework, the State's interest in potential human life is considered compelling only after viability, when, in fact, that interest is equally compelling throughout pregnancy. Ante at 492 U. S. 519-520. The plurality does not bother to explain these alleged flaws in Roe. Bald assertion masquerades as reasoning. The object, quite clearly, is not to persuade, but to prevail.
  • JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, p.546

• The plurality opinion is far more remarkable for the arguments that it does not advance than for those that it does. The plurality does not even mention, much less join, the true jurisprudential debate underlying this case: whether the Constitution includes an "unenumerated" general right to privacy as recognized in many of our decisions, most notably Griswold v. Connecticut, 381 U. S. 479 (1965), and Roe, and, more specifically, whether, and to what extent, such a right to privacy extends to matters of childbearing and family life, including abortion. See, e.g., Eisenstadt v. Baird, 405 U. S. 438 (1972) (contraception); Loving v. Virginia, 388 U. S. 1 (1967) (marriage); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942) (procreation); Pierce v. Society of Sisters, 268 U. S. 510 (1925) (childrearing). [Footnote 2/7] These are questions of unsurpassed significance in this Court's interpretation of the Constitution, and mark the battleground upon which this case was fought by the parties, by the Solicitor General as amicus on behalf of petitioners, and by an unprecedented number of amici. On these grounds, abandoned by the plurality, the Court should decide this case.
  But rather than arguing that the text of the Constitution makes no mention of the right to privacy, the plurality complains that the critical elements of the Roe framework -- trimesters and viability -- do not appear in the Constitution, and are, therefore, somehow inconsistent with a Constitution cast in general terms. Ante at 492 U. S. 518-519. Were this a true concern, we would have to abandon most of our constitutional jurisprudence. As the plurality well knows, or should know, the "critical elements" of countless constitutional doctrines nowhere appear in the Constitution's text. The Constitution makes no mention, for example, of the First Amendment's "actual malice" standard for proving certain libels, see New York Times Co. v. Sullivan, 376 U. S. 254 (1964), or of the standard for determining when speech is obscene. See Miller v. California, 413 U. S. 15 (1973). Similarly, the Constitution makes no mention of the rational basis test, or the specific verbal formulations of intermediate and strict scrutiny by which this Court evaluates claims under the Equal Protection Clause. The reason is simple. Like the Roe framework, these tests or standards are not, and do not purport to be, rights protected by the Constitution. Rather, they are judge-made methods for evaluating and measuring the strength and scope of constitutional rights or for balancing the constitutional rights of individuals against the competing interests of government.
  • JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, pp.546-548

• With respect to the Roe framework, the general constitutional principle, indeed the fundamental constitutional right, for which it was developed is the right to privacy, see, e.g., Griswold v. Connecticut, 381 U. S. 479 (1965), a species of "liberty" protected by the Due Process Clause, which under our past decisions safeguards the right of women to exercise some control over their own role in procreation. As we recently reaffirmed in Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747 (1986), few decisions are "more basic to individual dignity and autonomy" or more appropriate to that "certain private sphere of individual liberty" that the Constitution reserves from the intrusive reach of government than the right to make the uniquely personal, intimate, and self-defining decision whether to end a pregnancy. Id. at 476 U. S. 772. It is this general principle, the "moral fact that a person belongs to himself and not others nor to society as a whole,'" id. at 476 U. S. 777, n. 5 (STEVENS, J., concurring), quoting Fried, Correspondence, 6 Phil. & Pub.Aff. 288-289 (1977), that is found in the Constitution. See Roe, 410 U.S. at 410 U. S. 152-153. The trimester framework simply defines and limits that right to privacy in the abortion context to accommodate, not destroy, a State's legitimate interest in protecting the health of pregnant women and in preserving potential human life. Id. at 410 U. S. 154-162. Fashioning such accommodations between individual rights and the legitimate interests of government, establishing benchmarks and standards with which to evaluate the competing claims of individuals and government, lies at the very heart of constitutional adjudication. To the extent that the trimester framework is useful in this enterprise, it is not only consistent with constitutional interpretation, but necessary to the wise and just exercise of this Court's paramount authority to define the scope of constitutional rights.
  • JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, pp.548-549

• For my own part, I remain convinced, as six other Members of this Court 16 years ago were convinced, that the Roe framework, and the viability standard in particular, fairly, sensibly, and effectively functions to safeguard the constitutional liberties of pregnant women while recognizing and accommodating the State's interest in potential human life. The viability line reflects the biological facts and truths of fetal development; it marks that threshold moment prior to which a fetus cannot survive separate from the woman and cannot reasonably and objectively be regarded as a subject of rights or interests distinct from, or paramount to, those of the pregnant woman. At the same time, the viability standard takes account of the undeniable fact that, as the fetus evolves into its postnatal form, and as it loses its dependence on the uterine environment, the State's interest in the fetus' potential human life, and in fostering a regard for human life in general, becomes compelling. As a practical matter, because viability follows "quickening" -- the point at which a woman feels movement in her womb -- and because viability occurs no earlier than 23 weeks gestational age, it establishes an easily applicable standard for regulating abortion while providing a pregnant woman ample time to exercise her fundamental right with her responsible physician to terminate her pregnancy. [Footnote 2/9] Although I have stated previously for a majority of this Court that "[c]onstitutional rights do not always have easily ascertainable boundaries," to seek and establish those boundaries remains the special responsibility of this Court. Thornburgh, 476 U.S. at 476 U. S. 771. In Roe, we discharged that responsibility as logic and science compelled. The plurality today advances not one reasonable argument as to why our judgment in that case was wrong and should be abandoned.
  • JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, pp.553-554

• The "permissibly furthers" standard completely disregards the irreducible minimum of Roe: the Court's recognition that a woman has a limited fundamental constitutional right to decide whether to terminate a pregnancy. That right receives no meaningful recognition in the plurality's written opinion. Since, in the plurality's view, the State's interest in potential life is compelling as of the moment of conception, and is therefore served only if abortion is abolished, every hindrance to a woman's ability to obtain an abortion must be "permissible." Indeed, the more severe the hindrance, the more effectively (and permissibly) the State's interest would be furthered. A tax on abortions or a criminal prohibition would both satisfy the plurality's standard. So, for that matter, would a requirement that a pregnant woman memorize and recite today's plurality opinion before seeking an abortion.
  The plurality pretends that Roe survives, explaining that the facts of this case differ from those in Roe: here, Missouri has chosen to assert its interest in potential life only at the point of viability, whereas, in Roe, Texas had asserted that interest from the point of conception, criminalizing all abortions except where the life of the mother was at stake. Ante at 492 U. S. 521. This, of course, is a distinction without a difference. The plurality repudiates every principle for which Roe stands; in good conscience, it cannot possibly believe that Roe lies "undisturbed" merely because this case does not call upon the Court to reconsider the Texas statute or one like it. If the Constitution permits a State to enact any statute that reasonably furthers its interest in potential life, and if that interest arises as of conception, why would the Texas statute fail to pass muster? One suspects that the plurality agrees It is impossible to read the plurality opinion, and especially its final paragraph, without recognizing its implicit invitation to every State to enact more and more restrictive abortion laws, and to assert their interest in potential life as of the moment of conception. All these laws will satisfy the plurality's nonscrutiny until, sometime, a new regime of old dissenters and new appointees will declare what the plurality intends: that Roe is no longer good law.
  • JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, pp.555-556

• Thus, "not with a bang, but a whimper," the plurality discards a landmark case of the last generation and casts into darkness the hopes and visions of every woman in this country who had come to believe that the Constitution guaranteed her the right to exercise some control over her unique ability to bear children. The plurality does so either oblivious or insensitive to the fact that millions of women, and their families, have ordered their lives around the right to reproductive choice, and that this right has become vital to the full participation of women in the economic and political walks of American life. The plurality would clear the way once again for government to force upon women the physical labor and specific and direct medical and psychological harms that may accompany carrying a fetus to term. The plurality would clear the way again for the State to conscript a woman's body and to force upon her a "distressful life and future." Roe, 410 U.S. at 410 U. S. 153.
  The result, as we know from experience, see Cates & Rochat, Illegal Abortions in the United States: 1972-1974, 8 Family Planning Perspectives 86, 92 (1976), would be that, every year, hundreds of thousands of women, in desperation, would defy the law and place their health and safety in the unclean and unsympathetic hands of back-alley abortionists, or they would attempt to perform abortions upon themselves, with disastrous results. Every year, many women, especially poor and minority women, would die or suffer debilitating physical trauma, all in the name of enforced morality or religious dictates or lack of compassion, as it may be.
  Of the aspirations and settled understandings of American women, of the inevitable and brutal consequences of what it is doing, the tough-approach plurality utters not a word. This silence is callous. It is also profoundly destructive of this Court as an institution. To overturn a constitutional decision is a rare and grave undertaking. To overturn a constitutional decision that secured a fundamental personal liberty to millions of persons would be unprecedented in our 200 years of constitutional history. Although the doctrine of stare decisis applies with somewhat diminished force in constitutional cases generally, ante at 492 U. S. 518, even in ordinary constitutional cases, "any departure from . . . stare decisis demands special justification." Arizona v. Rumsey, 467 U. S. 203, 467 U. S. 212 (1984). See also Vasquez v. Hillery, 474 U. S. 254, 474 U. S. 266 (1986) ("[T]he careful observer will discern that any detours from the straight path of stare decisis in our past have occurred for articulable reasons, and only when the Court has felt obliged to bring its opinions into agreement with experience and with facts newly ascertained,'" quoting Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 285 U. S. 412 (1932) (Brandeis, J., dissenting)). This requirement of justification applies with unique force where, as here, the Court's abrogation of precedent would destroy people's firm belief, based on past decisions of this Court, that they possess an unabridgeable right to undertake certain conduct. [Footnote 2/12]
  As discussed at perhaps too great length above, the plurality makes no serious attempt to carry "the heavy burden of persuading . . . that changes in society or in the law dictate" the abandonment of Roe and its numerous progeny, Vasquez, 474 U.S. at 474 U. S. 266, much less the greater burden of explaining the abrogation of a fundamental personal freedom. Instead, the plurality pretends that it leaves Roe standing, and refuses even to discuss the real issue underlying this case: whether the Constitution includes an unenumerated right to privacy that encompasses a woman's right to decide whether to terminate a pregnancy. To the extent that the plurality does criticize the Roe framework, these criticisms are pure ipse dixit.
  • JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, pp.557-559

• Even if the State may decline to subsidize or to participate in the exercise of a woman's right to terminate a pregnancy, and even if a State may pursue its own abortion policies in distributing public benefits, it may not affirmatively constrict the availability of abortions by defining as "public" that which in all meaningful respects is private. With the certain knowledge that a substantial percentage of private health care providers will fall under the public facility ban, see Brief for National Association of Public Hospitals as Amicus Curiae 10-11, Missouri does not "leav[e] a pregnant woman with the same choices as if the State had chosen not to operate any public hospitals at all," ante at 492 U. S. 509; rather, the public facility ban leaves the pregnant woman with far fewer choices, or, for those too sick or too poor to travel, perhaps no choice at all. This aggressive and shameful infringement on the right of women to obtain abortions in consultation with their chosen physicians, unsupported by any state interest, much less a compelling one, violates the command of Roe.
  • JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join Footnote 2/1

• The plurality, ignoring all of the aforementioned cases except Griswold, responds that this case does not require consideration of the "great issues" underlying this case because Griswold, "unlike Roe, did not purport to adopt a whole framework . . . to govern the cases in which the asserted liberty interest would apply." Ante at 492 U. S. 520. This distinction is highly ironic. The Court in Roe adopted the framework of which the plurality complains as a mechanism necessary to give effect both to the constitutional rights of the pregnant woman and to the State's significant interests in maternal health and potential life. Concededly, Griswold does not adopt a framework for determining the permissible scope of state regulation of contraception. The reason is simple: in Griswold (and Eisenstadt), the Court held that the challenged statute, regulating the use of medically safe contraception, did not properly serve any significant state interest. Accordingly, the Court had no occasion to fashion a framework to accommodate a State's interests in regulating contraception. Surely the plurality is not suggesting that it would find Roe unobjectionable if the Court had forgone the framework and, as in the contraception decisions, had left the State with little or no regulatory authority. The plurality's focus on the framework is merely an excuse for avoiding the real issues embedded in this case, and a mask for its hostility to the constitutional rights that Roe recognized.
  • JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join Footnote 2/8

• Notably, neither the plurality nor JUSTICE O'CONNOR advances the now-familiar catch-phrase criticism of the Roe framework that, because the point of viability will recede with advances in medical technology, Roe "is clearly on a collision course with itself." See Akron, 462 U.S. at 462 U. S. 458 (dissenting opinion). This critique has no medical foundation. As the medical literature and the amicus briefs filed in this case conclusively demonstrate, "there is an anatomic threshold' for fetal viability of about 23-24 weeks of gestation." Brief for American Medical Association et al. as Amici Curiae 7. See also Brief for 167 Distinguished Scientists and Physicians, including 11 Nobel Laureates, as Amici Curiae 8-14. Prior to that time, the crucial organs are not sufficiently mature to provide the mutually sustaining functions that are prerequisite to extrauterine survival, or viability. Moreover, "no technology exists to bridge the development gap between the three-day embryo culture and the 24th week of gestation." Fetal Extrauterine Survivability, Report to the New York State Task Force on Life and the Law 3 (1988). Nor does the medical community believe that the development of any such technology is possible in the foreseeable future. Id. at 12. In other words, the threshold of fetal viability is, and will remain, no different from what it was at the time Roe was decided. Predictions to the contrary are pure science fiction. See Brief for A Group of American Law Professors as Amicus Curiae 23-25.
  • JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join [Footnote 2/11]

• The plurality claims that its treatment of Roe, and a woman's right to decide whether to terminate a pregnancy, "hold[s] true the balance between that which the Constitution puts beyond the reach of the democratic process and that which it does not." Ante at 492 U. S. 521. This is unadulterated nonsense. The plurality's balance matches a lead weight (the State's allegedly compelling interest in fetal life as of the moment of conception) against a feather (a "liberty interest" of the pregnant woman that the plurality barely mentions, much less describes). The plurality's balance -- no balance at all -- places nothing, or virtually nothing, beyond the reach of the democratic process.
  • JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join Footnote 2/12

• It seems to me that in 492 U. S. the plurality strains to place a construction on § 188.029 [Footnote 3/2] that enables it to conclude: "[W]e would modify and narrow Roe and succeeding cases," ante at 492 U. S. 521. That statement is ill-advised, because there is no need to modify even slightly the holdings of prior cases in order to uphold § 188.029.
  • JUSTICE STEVENS, concurring in part and dissenting in part, pp.560-561

• No Member of this Court has ever questioned the holding in Roe, 410 U.S. at 410 U. S. 156-159, that a fetus is not a "person" within the meaning of the Fourteenth Amendment. Even the dissenters in Roe implicitly endorsed that holding by arguing that state legislatures should decide whether to prohibit or to authorize abortions. See id. at 410 U. S. 177 (REHNQUIST, J., dissenting) (arguing that the Fourteenth Amendment did not "withdraw from the States the power to legislate with respect to this matter"); Doe v. Bolton, 410 U. S. 179, 410 U. S. 222 (1973) (WHITE, J., dissenting jointly in Doe and Roe). By characterizing the basic question as "a political issue," see ante at 492 U. S. 535 (concurring in part and concurring in judgment), JUSTICE SCALIA likewise implicitly accepts this holding.
  • JUSTICE STEVENS, concurring in part and dissenting in part, [Footnote 3/13]

“A Question of Choice” (1993)

“A Question of Choice”, by Sarah Weddington, New York: Penguin Books, 1993

• Linda and I met frequently in person and talked by phone in preparation for the lawsuit. As we drafted the complaint and lined up our legal points, our constant worry was about the right plaintiffs. After Linda did some research, we decided neither the Austin volunteers nor the referral project would be certain to have standing, so we started looking for individuals who could demonstrate a more direct impact.
  Our first agreed-upon plaintiff was a woman we knew in Dallas who had heard Linda give a speech about the contemplated lawsuit. A brilliant women’s activist with a Ph.D. in English, she felt strongly that the Texas anti-abortion statutes kept women from making decisions that were rightfully theirs. She had no children and was not pregnant, but she had a neurochemical disorder Although pregnancy would not present a serious risk to her life, her doctor had told her it would be best if she avoided pregnancy until her condition materially improved. He also told her not to take the most effective means of contraception, the birth control pill. She and her husband offered to be plaintiffs on the basis that their normal marital intimacies were endangered because, although they were conscientiously practicing an alternative method of contraception, there was a significant risk of contraceptive failure and they knew that if she were to become pregnant, consideration for her health would suggest an abortion. In Texas, that would be illegal and therefore also dangerous to her health. Yet they did not wish to be a celibate married couple.
  We also needed to find a pregnant Texas woman who wanted an abortion and would be willing to be a plaintiff. At one of the meetings with the Austin women, I was explaining the need for a pregnant plaintiff and asked, “”Are any of you pregnant?” “No’”, they said, “but if you need someone who is, just give us some time.” In fact, it turned out to be a bigger problem than we anticipated. Several women who came to the referral project for information indicated they would be happy to help, but they were all at an early stage of pregnancy and had the money to get a prompt abortion-certainly the safest route for them. We did not know how long it would take us to get the case filed or how long after that it would take for a court to act. It was best for them to go ahead and have an abortion. Our search would have to continue.
  • pp.50–51

• As an outgrowth of my work on the case, I had become involved in a variety of activities, including making frequent speeches about the plans for the suit. The more people who knew about our pans, the more likely it was that a suitable plaintiff would appear.
  Then a woman went to Dallas lawyer Henry McCluskey, a friend of Linda’s who knew of the proposed lawsuit. The woman said she was pregnant, did not want to be, and wanted an abortion. He told her there was nothing he could do abut the abortion, but he knew two young women who might be of help, and referred her to Linda.
  Linda talked to the woman, and then called and asked me to come to Dallas to meet her. I flew there a few days later and met Linda t a place the woman had suggested, a pizza parlor. It was fairly large, and very clean, but without much decoration-plastic-topped tables and black-and-white-checkered linoleum on the floor. Linda filled me in on her impressions of the woman, who was in her early twenties. Then the person who would later become Jane Roe arrived.
  • p.51

• [W]e did not want the Texas law changed only to allow abortion in cases of rape. We wanted a decision that abortion was covered by the right of privacy. After all, the women coming to the referral project were there as a result of a wide variety of circumstances. Our principles were not based on how conception occurred.
  Jane Roe asked that being a plaintiff would involve. First, we told her, a minimal amount of time. In fact, she signed a one-page affidavit stating her situation. She never had to answer written or oral questions from the opposing lawyers. She did not attend any of the court hearings. Second no money. Lind and I were donating our time, and we were covering the expenses.
  Third, she could be anonymous. No one would know who she was unless she chose to tell them. Using pseudonyms or false names in legal cases was a long-standing tradition, and especially common in abortion cases, to protect the privacy of plaintiffs who did not want the “whole world” to know they had had or had wanted an abortion. On the other hand, doctors, social workers, and nonpregnant plaintiffs in abortion cases generally filed using their real names.
  When Jane Roe agreed to be a plaintiff, I was grateful for her help. I found her street-smart and likeable. Her hard-luck stories touched a sympathetic chord.
  Linda and I decided to file two lawsuits. A pregnant plaintiff had standing, but since our wife plaintiff wasn’t pregnant, we were afraid the court would say she and her husband were not sufficiently at risk to have standing. There was another reason for filing two lawsuits: Since we would file the cases in Dallas, where Linda, Jane Roe, and the married couple resided, and where the federal court had a rotating docket, each case would be filed in a different judge’s court. We hoped to increase our chances of having one of the cases filed in Judge Jughe’s court; Linda thought she would be sympathetic. Our strategy then would be to ask that the other case be consolidated with it, so that we could try one case with the combined facts instead of two.
  • p.53

• As we finished drawing up the necessary legal papers in 1970, Jane Roe’s pregnancy was progressing. Linda spent the end of February on rough drafts of the documents to file. Our petitions were straightforward and only three legal-size pages in length. We asked the court to do two things: first, to declare or state that the Texas laws against abortion were unconstitutional on their face, that is, as one could see by merely reading them; and second, to enjoin, or stop, the enforcement of those statutes. In essence we wanted the court to say the Texas anti-abortion laws violated the U.S. Constitution and to tell local law enforcement officials to quit prosecuting doctors under those statutes.
  We still had to name our plaintiffs. We picked names that rhymed. I liked “Jane Roe.” To me the name represented all women, not just one. We decided on “John and Mary Doe” for the couple. The names seemed generic.
  • p.54

• We asked that a three-judge court be appointed to hear our case, our justification being that our plaintiffs were alleging the statutes abridged their constitutional rights, and were seeking an injunction against enforcement of the statutes. We also pointed out that there was not a state forum or court in which their federal constitutional rights could be determined.
  • p.54

• In law there are “magic words.” If one of them applies to what you are challenging, you have a good chance of getting it overturned. Linda and I used all the magic words that might possibly apply: The statutes were “vague” and uncertain on their face; they were “unconstitutionally broad” on their face in that they infringed upon plaintiff’s “right to safe and adequate medical advice” about the decision of whether to carry a pregnancy to term, upon the “fundamental” right of all women to choose whether to bear children, and upon plaintiff’s “right to privacy” in the physician-patient relationship; on their face they infringed upon plaintiff’s “right to life” in violation of the due-process clause of the Fourteenth Amendment; on their ace they violated the “First Amendment” prohibition against laws respecting an establishment of religion; and on their face they denied plaintiffs the “equal protection of the laws.”
  • p.54

• Two and a half months later, Linda and I were seated at a long wooden table facing the much higher bench where the three judges would sit. We were on the fourth floor of the Dallas Federal Courthouse, an imposing building that had previously been a post office, in a courtroom that was more utilitarian than elegant. We were waiting for the judges to file in and hear Roe. We were unabashedly excited, and as prepared as would ever be.
  We have had some very good luck and had accomplished a great deal thus far. One of our two cases landed in Hughes’s court; the other in that of Federal District Judge William M. Taylor of Dallas. Federal Circuit Judge Irving L. Goldberg had been appointed to join Hughes and Taylor on a three-judge panel to hear our cases. After a pretrial conference in Hughes’s office in April, our cases were consolidated; we now said just Roe when actually referring to both Roe and Doe. Taylor had a reputation for fairness and open-mindedness. Goldberg was reputed to be brilliant, but domineering in court proceedings. We did not look forward to his trial questions, which we knew would be tough and incisive, but we calculated that he was our best chance of a second vote in our favor.
  • p.58

• Of Course, we had done our homework. Once trial was set for May 22, 1970, we rushed to prepare and file two affidavits, notarized, signed statements used to prove important facts instead of having a witness testify in court. One contained facts about Jane Roe; the other was filed by Dr. Paul Trickett, the direction of the University of Texas Student Health Center, and presented medical aspects of the abortion issue. The original Texas statutes had been passed to protect a woman’s health in an era when doctors did not know how to prevent infection, and we wanted to show that now, at the time of trial, abortion was a safe procedure and medical problems resulted precisely because abortion was illegal.
  • p.58

• Sitting with Linda and me in the courtroom were Fred Bruner and Roy L. Merrill, Jr. two Dallas lawyers who had joined our case on behalf of their client, James Hubert Hallford, a physician under indictment for allegedly performing illegal abortions. On March 19 they had filed an application for intervention asking that Hallford be included as a third plaintiff. Hallford had been a licensed physician since 1958; among the women who had come to him seeking abortions were rape and incest victims, women suffering from cancer, and women who had contracted German measles, a virus that can cause gross fetal abnormalities, while pregnant. We welcome Hallford’s participation because his problems added weight to our arguments that the statute was vague and could be interpreted in many ways. We were skeptical that he would be recognized to have standing, however; very seldom do federal courts allow people with criminal charges pending against them in state court to escape from the litigation already in progress to a federal court.
  At another table in the courtroom were representatives of DA Henry Wade and of the Texas attorney general, Crawford Martin. Judge Hughes had notified Martin of the suit because he was the elected official responsible for defending state laws. Linda and were up against the combined forces of the AG’s experienced legal force of some 130 attorneys and the DA’ s legal staff.
  • pp.58-59

• Yet another rumor was that Blackmun, the justice with the best background in medical-legal issues, who had been appointed by Chief Justice Burger to write the opinion, had asked for more time. The rumor added that Douglas was dissenting to the reargument probably because Burger had designated Blackmun to write the opinion. By Court custom, if the chief justice is on the majority side during the postargument conference, then he designates the justice who will write the opinion. If the chief justice is “not” on the majority side, as was rumored in this case, then the justice with seniority on the majority side makes that designation. The rumor was that Douglas, the senior justice on the majority side during the postargument conference, was upset by Burger’s action to step in and appoint Blackmun, which contravened tradition (Later, in their book “The Brethren”, Bob Woodward and Scott Armstrong confirmed that rumor.) Speculation was that Burger felt he would have the most influence with Blackmun and that an opinion Blackmun would write would be more conservative. There was also media speculation that we had in fact won the case five to two, but Burger was in dissent and used his position to force the Court into setting it up for reargument. If that was true, it meant we would win if we simply held those five votes, regardless of how the new justices voted.
  Unbeknowst to us, as “The Douglas Letters", edited by Melvin Urofsky, revealed in 1987, Douglas had written Blackmun on May 10, 1972:
  In No. 70-18-Roe v. Wade, my notes confirm what Bill Brennan wrote yesterday in his memo to you-that abortion statutes were invalid save as they required that an abortion be performed by a licensed physician within a limited time after conception.
  That was the clear view of a majority of the seven who heard the argument. My notes also indicate the Chief [Burger] had the opposed view, which made it puzzling as to why he made the assignment at all except that he indicated he might affirm on vagueness. My notes indicate that Byron [White] was not firmly settled and that you might join the majority of four.
  So I think we should meet what Bill Brennan calls the “core issue.”
  I believe I gave you, some time back, my draft opinion in the Georgia case. I see no reason for reargument on what case.
  It always seemed to me to be an easier case than Texas,
  • pp.132–133

• On May 31, according to the same book, Douglas wrote Blackmmun again:
  I have your memorandum submitted to the Conference with suggestion that these cases be reargued
  I feel quite strongly that they should not be reargued. My reasons are as follows.
  In the first place, these cases which were argued last October have been as thoroughly worked over and considered as any cases ever before the Court in my time.
  I know you have done yeoman service and I have written two difficult cases, and you have opinions now for a majority, which is 5.
  There are always minor differences in style, one writing differently [from[ another. But those two opinions of yours in Texas and Georgia are creditable jobs of craftsmanship and will, I think, stand the test of time.
  While we could sit around and make pages of suggestions, I really don’t think that it is important. The important thing is to get them down.
  • p.133

• [M]ost of the quotations I read that day reflected my thoughts accurately. The Houston Post quoted me as “feeling glad for the women of Texas, who now will have access to abortion services.” It also noted my statement that “I would much prefer [that] we did not have the abortion problem, that instead pregnancies be prevented,” and my vow “to lead the legislative battle to liberalize the flow of contraceptive information to minors.”
  One of the few stories that captured my real feelings on the day we won, however, didn’t appear until a few weeks later, in the Milwaukee Journal: “Sarah Weddington looked uncomfortable as the women pressed close to her, offering their thanks. ‘If I hadn’t done it, someone else would have,’ she explained to them.” Indeed, I saw Roe as part of a much larger effort by many attorneys. I was the one who, through a series of quirks, stood before the Court to represent all of us. Had a different string of events occurred, another case might have been the one to make history.
  Ron and I also read observations from those who were distressed by the Court’s decision; obviously, not everyone was as pleased as we were about the news. Around the country the antis too had been burning up the telephone wires-but they were talking about how they could overturn the decision, or avoid or blunt its impact. I have always wondered if some of the anti-abortion folk thought the fact that United States and Texas flags flew at half-mast on that January 22, as they did because of President Johnson’s death, was doubly appropriate because of the depths of their disagreement with the decision.
  • p.154

• The copy of the Roe opinion sent by the Court arrived a few days after the decision. It was a thrill to hold the document Blackmun wrote for the Court. I skimmed it first for the main points:
  A direct appeal was proper because of the specific denial of injunctive relief regarding a statute declared unconstitutional by a three-judge federal court.
  Roe had standing to sue; the Does and Dr. Hallford did not. (Geesh, I thought, we went backward on that part. At least the lower court had recognized Hallford’s standing. But it didn’t matter the outcome freed Hallford anyway.)
  The natural termination of Roe’s pregnancy did not cancel her status as an appropriate plaintiff. Under strict mootness principles, hers would be a situation “capable of repetition, yet evading review.”
  The Texas statute violated the due-process clause of the Fourteenth Amendment, which protects from state action the right to privacy, including a woman’s qualified right to terminate pregnancy.
  the state, however, had a legitimate interest in protecting both the pregnant woman’s health and the potentiality of human life.
  • pp.154-155

• I settled back with my feet up to read the majority opinion in detail and savor its words. First the Court noted the sensitive nature of the subject: We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.
  • p.155

• Neither Linda nor I questioned her further about how she had gotten pregnant. I was not going to allege something in the complaint that I could not back up with proof. Also, we did not want the Texas law changed only to allow abortion in cases of rape. We wanted a decision that abortion was covered by the right of privacy. After all, the women coming to the referral project were there as a result of a wide variety of circumstances. Our principles were not based on how conception occurred.

“Winning Roe v. Wade: Q&A with Sarah Weddington” (January 22, 2013)

“Winning Roe v. Wade: Q&A with Sarah Weddington”, by Valerie Lapinski, Time (January 22, 2013)

• Q: Ten years ago, we asked if you thought the Roe v Wade ruling will stand for another 30 more years. You said, “I despair when I look at who has the power today.” Do you still feel that way?
  Having Obama as president means that if there are any vacancies on the Supreme Court, I think that Obama would be likely to appoint a judge who would favor Roe vs. Wade. What I worry about now and for the next ten years is, will women still have access to abortion?
  State legislatures have begun to pass all kinds of restrictions that really make it harder for women to access services. If you look at who’s passing those regulations, they are not people who say, “We’re in favor of abortion being available and we just want to be sure they’re safe.” They are people who are totally opposed to abortion. What they really want is to try and do everything they can to be sure there are no abortions available.
• I look back in history, and there was a time when many states had laws making contraception illegal. The Supreme Court in ’65 ruled (in Griswold v. Connecticut) that there is a right of privacy and that married people have the right to use contraception. And then the Supreme Court in Baird vs. Eisenstadt (1972) said that right of privacy to decide whether you want to bear or beget a child, and therefore the right to use contraception, is [for] married and single people. So, I thought that this would be a case where Roe vs. Wade would be accepted, maybe not just right at first, but within a few years. And that we could go ahead and move on to work on other issues.
  But while we were doing that, the opposition was gaining strength. And today, we see the opposition being strong, very strong, and we see a lot of people who have forgotten what it was like when abortion was illegal. And you can’t blame ‘em. They’re too young to remember!
  What we know from the past is that if abortion is illegal, there will be illegal abortion. And if we come to a period that abortion is theoretically legal, but the laws in various states make it almost impossible for women who are younger or poorer to have access, you’re going to have more illegal or self-abortion.
  So, I still worry. I’m not as frantic now as I was then, because I think, looking at the Supreme Court, we have a better chance of good decisions right now.
• Q: Abortion is a very emotional issue and a religious issue for a lot of people. As an attorney, you had to argue using very specific language about constitutional rights. Do you think that’s hard for people to understand?
  Sometimes I think it is, because some people just say, “My faith is opposed to abortion.” But we live in a country where we can have many faiths, and we don’t impose the law of one faith on everybody. And so we go back to the constitution. What was the view of our founders? And it was that there are many parts of life which are so personal – the word privacy is not in the constitution but certainly the concept is – and so the founders basically were saying, “We really believe that the government should not make our most important decisions.”
  When I was arguing Roe vs. Wade, there were a lot of religious groups that were saying, what the anti-abortion laws do to women in terms of their health, physical and psychological, isn’t right. We’ve got to change it. So the United Methodist Church, Unitarian Universalist Alliance, and the Jewish groups, a whole variety of religious groups filed in our favor.
• Q: The audio from your arguments before the Supreme Court is widely available online. Do you ever go back and listen to it?
  Yes, I do. It’s the argument where 40 years ago, I was saying, “We are not asking this court to decide that abortion is good, or that everyone should have one. We are asking this court to decide that that issue is one for the individual to decide, not the government.” And it’s the same thing that I would say today.

"Roe v. Wade Case (US)" (August 2016)

"Roe v. Wade Case (US)", by Merle H. Weiner, Oxford Constitutional Law, August 2016

• 2. The case has interested many comparatists. Considerable attention has been paid to parallel German and US developments with their different emphases (see eg Gorby and Jonas; Kommers; Glendon; Miedel; Werner; Levy and Somek; Lange; Siegel). Others have used the case to reflect upon developments in countries as diverse as Spain, South Africa, Russia, and Taiwan (see eg Stith; Davis; Johnson; Hung).
  • p.2

• 3. The case has influenced jurists outside the United States. Judges have cited the decision in judgments that liberalize abortion law. For example, this has happened in Canada (see R v Morgentaler (Dickson, CJ at 46; Beetz, J at 113; Wilson, J at 169–171, 181) (holding that Section 251 of the Criminal Code, which restricted access to nontherapeutic abortion, infringed a woman’s right to personal security under § 7 of the Canadian Charter of Rights and Freedoms), in South Africa (see Christian Lawyers Association of South Africa and Others v Minister of Health and Others (upholding legislation permitting abortion during the first twelve weeks of pregnancy; → right to life provision in the constitution did not apply to the fetus); Christian Lawyers Association v National Minister of Health and Others (upholding legislation allowing those under the age of 18 to get an abortion without consent of their parents or guardians)), and in Colombia (see Decision C-355/06 (striking as unconstitutional a statute that barred abortion in all instances)). Jurists who have dissented from decisions that restrict abortion have also cited Roe v Wade, such as in Germany (see Schwangerschaftsabbruch I (dissenting opinion of Rupp-von Brünneck, J and Simon, J)). At times, adjudicators have cited the case when they have decided issues outside the abortion context. Examples exist in England (see Rance v Mid-Downs Health Authority and Another (citing Roe v Wade’s summary of English common law in evaluation of plaintiff’s wrongful birth tort claim)) and India (see Gobind v State of M.P (citing Roe v Wade’s privacy language when deciding a constitutional challenge to surveillance law); Naz Foundation v Govt of NCT of Delhi (citing Roe v Wade’s privacy language when invalidating as unconstitutional a criminal law prohibiting homosexual conduct in private), rev’d Suresh Kumar Koushal v Naz Foundation).
  • p.2

• 6. Most states criminalized abortion at the time of Roe v Wade. Although abortion performed before ‘quickening’ had been legal at the nation’s founding (‘quickening’ refers to the time when the mother can first feel fetal movement), the American Medical Association, starting in the 1850s, promoted the criminalization of abortion, except to save the mother’s life (Greenhouse and Siegel 2035). Texas, the state whose law was challenged in Roe v Wade, made abortion criminal in 1854, and a majority of US states had similar laws at the time the Supreme Court decided Roe v Wade (Roe v Wade 118 n.2; Doe v Bolton 181–82). Consequently, prior to the decision, illegal abortions were common in the United States, with estimates of 1,000,000 a year or ‘one to every four births’ (Calderone 950). The danger of the procedure differed by class. Many doctors ‘secretly performed abortions for women whom they knew and who could pay’, while other women were relegated to ‘unsafe circumstances’ (Garrow (1999) 834).
  • p.2

• 7. Roe v Wade reached the Supreme Court as part of a growing movement in the US to liberalize abortion law. Liberalization was promoted on the political front with arguments centred on public health, overpopulation, sexual freedom, and feminism (Greenhouse and Siegel 2036–2046). Colorado, North Carolina, and California had, for example, adopted ‘liberalization statutes’ in 1967 (Garrow (1999) 834). The movement to liberalize abortion law was similarly occurring overseas, in places such as Sweden, France, Denmark and the United Kingdom, and activists drew upon each other’s advances (Ernst et al 755, 759).
  • p.2

• 8. Both in the US and abroad, constitutional courts had an important role in defining the permissible limits of legislative attempts to regulate abortion. In the US, a ‘nationwide movement of young lawyers’ sought to use the courts to secure a woman’s constitutional right to an abortion (Garrow (1999) 836–37). Because abortion was regulated at the state level in the United States, Roe v Wade and its companion, Doe v Bolton, ‘were only two of approximately fifteen to twenty roughly simultaneous cases’ percolating through the courts at the time. When the Supreme Court heard Roe v Wade and Doe v Bolton, approximately a dozen such cases were on its docket (ibid 836–37). Abroad, cases in Austria, France and Italy reached the constitutional courts of those nations in 1974, 1975, and 1975, respectively (Ernst et al 759–60; Siegel 357).
  • pp.2-3

• 19. The decision established a woman’s constitutional right to an abortion. The Court framed the discussion by acknowledging the sensitive, deeply held, and diverse views on the topic of abortion. However, it suggested, not without criticism by some scholars (Myers 1029 and n. 29), that the law historically was more permissive regarding abortion, especially for abortion performed during the early stages of pregnancy (Roe v Wade 140–41). The Court canvassed Greek and Roman law, English and US statutes, and the medical and legal establishments’ positions on abortion. This analysis supported the Court’s trimester framework set forth later in the opinion (ibid 165). The references to English statutory and case law, in particular, ‘bolstered its own case that the US Constitution created a right to an abortion, even though the Court never explained why foreign law ought to control the meaning of the Fourteenth Amendment’ (Calabresi and Zimdahl 872).
  • p.5

• 37. According to polls, most Americans held views that aligned with Roe v Wade at the time it was decided: ‘64 percent of American believed that abortion should be a personal decision to be made by a woman and her physician’ (Faux 304). Nonetheless, opponents of the decision tried to reverse Roe v Wade with congressional legislation (Emerson 129–30), with a constitutional amendment (Faux 318), and with litigation before the → Inter-American Court of Human Rights (IACtHR) (Baby Boy Case 18(h), 30–31). All of these efforts failed.
  38. More limited efforts to cabin the effects of Roe v Wade proved successful, however. In 1976, Congress passed the Hyde Amendment, which barred federal Medicaid funds for abortion and thereby made abortion inaccessible for many poor women, at least in those states without state funds for such purposes. A narrowly divided Supreme Court upheld the law in Harris v McRae. Opponents of abortion also advanced other laws that impeded access to abortion to varying degrees (Thornburgh v American College of Obstetricians and Gynaecologists 759), noting that such laws will ‘often shut down clinics’ (Biskupic). Roe v Wade itself signaled that some of these efforts might be permissible by acknowledging the state’s interest in maternal health (Roe v Wade 165), although Doe v Bolton suggested real limits. These efforts caused courts to be ‘drawn further and further into an array of subsidiary technical questions regarding abortion’ (Wilkinson 276). As of 2009, the Supreme Court had decided ‘more than twenty-five cases involving abortion’ (ibid).
  • pp.8-9

• 43. Grounding the right to abortion in the Fourteenth Amendment and in the concept of substantive due process (Roe v Wade 153, 164) was, and still is, one of the most controversial aspects of Roe v Wade. Justice Stewart concurred in Roe v Wade mainly to pay homage to substantive due process and the Court’s willingness to invoke it so explicitly after having seemingly put the doctrine to rest in Ferguson v Skrupa. Justice Stewart noted that Griswold v Connecticut should itself be understood as a substantive due process case, although the case did not rest expressly on that basis.
  44. Justice Rehnquist, one of two dissenters in Roe v Wade, took issue with the new right. He thought the right to an abortion was a form of ‘liberty’ protected by the Fourteenth Amendment, but the Fourteenth Amendment imposed a procedural requirement, not a substantive one. The right, therefore, was only protected against its deprivation without due process of law (Roe v Wade 173). He disagreed that abortion was part of a right to privacy because neither the abortion procedure was private, as abortion involved a doctor, nor was abortion connected to the ‘privacy’ associated with the Fourth Amendment’s protection against unreasonable searches and seizures (ibid 172). Moreover, although Justice Rehnquist conceded that due process protected some substantive rights, he thought abortion was not among those because approximately 36 state and territorial legislatures limited abortion at the time the Fourteenth Amendment was adopted (ibid 174–75). He preferred a rational basis test that would permit more deference to the legislature, especially for some restrictions on first-trimester abortions. He thought the ‘compelling state interest’ test was inappropriate: it was borrowed from Equal Protection cases and would leave ‘this area of the law more confused’ (ibid 173), and it would trample upon the legislature’s judgment (ibid 174). He called the Court’s tripartite framework ‘judicial legislation’ not reflective of the founders’ intent (ibid 174).
  45. Justice White also dissented. He focused on the claims of women who had no threat to their life or health from carrying a fetus to term, like the plaintiffs before the Court, and noted that they wanted to end the pregnancy potentially for ‘convenience, sham or caprice’ (ibid 221). He thought the resolution of the competing interests ‘should be left with the people and to the political processes’ because ‘nothing in the language or history of the Constitution’ required otherwise (ibid 221–22).
  • p.10

• 46. Individual justices continued to critique Roe v Wade in later cases. For example, in Planned Parenthood of Southeastern Pennsylvania v Casey, Justice Scalia said that the Constitution does not limit states’ ability to regulate abortion ‘because of two simple facts:
  (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed’ (Planned Parenthood of Southeastern Pennsylvania v Casey 980 (Scalia, J, dissenting, joined by Rehnquist, CJ, White, J, and Thomas, J)). In his dissent in Whole Woman’s Health v Hellerstedt, Justice Thomas, while not blaming Roe itself for the Court’s ‘illegitimate made-up tests’ (ibid 12, 14), blamed the Court’s ‘special treatment of certain personal liberties’, including those created though substantive due process, for the wrong outcome in many abortion decisions. This special treatment included the right to privacy that lead to Roe v Wade itself (ibid 15).
  • p.10

• 47. Scholars are divided about whether the Court should have created a constitutional right to abortion. John Hart Ely criticized the Court for not explaining why privacy is involved, and argued the right ‘lacks even colorable support in the constitutional text, history, or any other appropriate source of constitutional doctrine’ (Ely 931–32, 943). Others have echoed this sentiment, calling the Court’s analysis ‘startlingly shoddy’, (Myers at 1027) and ‘outcome-based jurisprudence’ (Lamparello and Swann 2–3). Ronald Dworkin, in contrast, found critics’ distinction between ‘unenumerated rights’ and ‘enumerated rights’ preposterous (Dworkin 390). He applauded the Court’s ability to derive the right to procreative autonomy from a ‘holistic interpretation of the Bill of Rights’ (Dworkin 418–26). Yet others have suggested that the Equal Protection Clause would have been a preferable or an additional justification for the holding (see eg Ginsburg), and that rationale has crept into some subsequent cases. For example, the joint opinion in Planned Parenthood of Southeastern Pennsylvania v Casey mentioned that ‘[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives’ (Planned Parenthood of Southeastern Pennsylvania v Casey 856). Justice Ginsburg has also mentioned that rationale in later cases (see eg Gonzales v Carhart 172 (Ginsburg, J, dissenting)).
  • p.11

• 48. The implications of the Court’s methodology have pleased some, but not others. For critics of Roe v Wade, the decision undermined democracy by putting the abortion issue in the hands of an unelected Court, with the result that ‘centrist’ compromises on abortion have been lost (Brooks A23). Critics also claim that the decision has harmed → federalism because decisions about abortion were removed from the state level (Wilkinson 305–11). The decision has also been blamed for undermining the Court’s legitimacy because, critics say, the Court has been ‘motivated by outcomes and ideology, not process and reason’, and this perception, in turn, has politicized the process for nominating Supreme Court justices (Lamparello and Swann 6–7).
  • p.11

• 49. Those who like Roe v Wade claim that substantive due process allows the Court to meet present day challenges. It reflects ‘living constitutionalism’, and is consistent with the drafters’ intent. After all, as Chief Justice Rehnquist has said, somewhat ironically given his position in Roe v Wade, ‘Where the framers of the Constitution...used general language, they have given latitude to those who would later interpret the instrument to make that language applicable to cases that the framers might not have foreseen’ (Rehnquist 403). Substantive due process has permitted, among other outcomes, constitutional protection for same-sex relationships. In Lawrence v Texas, for example, the Court, citing Roe v Wade and other cases, held that the criminalization of same-sex intimate conduct violated the Due Process Clause of the Fourteenth Amendment. In Obergefell v Hodges, the Court held that the Due Process and the Equal Protection Clauses entitled same-sex couples to marry.
  • p.11

• 51. Today the ‘pro-choice’ position in the United States is associated with the Democratic Party and the ‘pro-life’ position with the Republican Party (Greenhouse and Siegel 2068). However, the year before Roe was decided, more Republicans (68 percent) than Democrats (59 percent) thought that abortion should be a decision between a woman and her physician (Greenhouse and Siegel 2031). In addition, Republican presidents nominated five of the seven justices in the Roe v Wade majority (Justices Blackmun, Burger, Powell, Brennan, Stewart). The opinion also seemed to be influenced by the abortion decisions of Judge Jon O Newman, then a judge for the District of Connecticut, who was also nominated by a Republican president (Hurwitz 236–39, 242–45). Some scholars explain that Roe v Wade embodied ‘conservative views’ because it was a ‘family planning case’, embodying the views ‘[t]hat social stability is threatened by excessive population growth; and that family stability is threatened by unwanted pregnancies, with their accompanying fragile marriages, single-parent families, irresponsible youthful parents, and abandoned or neglected children’ (Grey 88).
  52. After Roe v Wade, a gradual party realignment occurred. By the end of the 1980s, Republicans were more ‘pro-life’ than Democrats (Greenhouse and Siegel 2069). However, it is ‘simply and utterly wrong’ to attribute the anti-abortion movement and the resulting political division to Roe v Wade (Garrow (1999) 841). Prior to Roe v Wade, ‘political party realignment’ had already started because the Catholic Church was involved in opposing legislative efforts at abortion liberalization, and Republicans were already trying to attract Catholic voters (Greenhouse and Siegel 2032–33, 2047–67). The extent to which Roe v Wade accelerated the political polarization on the issue abortion in the United States, and by how much, is an open question.
  F. Conclusion
  53. Roe v Wade has had a significant impact in the United States on abortion rights, women’s self-determination, the constitutional notion of privacy, and the Supreme Court’s role in adapting the Constitution to changing conditions. Roe v Wade drew on other nations’ experiences and has become, in turn, a reference point for others outside of the United States as they grapple with many of the same issues. The case provides an important source of analysis for comparatists.
  • pp.11-12

“From Choice to Reproductive Justice: De Constitutionalizing Abortion Rights" (2009)

West R (2009). “From Choice to Reproductive Justice: De Constitutionalizing Abortion Rights". Yale Law Journal. 118: 1394–1432.

• The Essay argues that the right to abortion constitutionalized in Roe v. Wade is by some measure at odds with a capacious understanding of the demands of reproductive justice. No matter its rationale, the constitutional right to abortion is fundamentally a negative right that rhetorically keeps the state out of the domain of family life. As such, the decision privatizes not only the abortion decision, but also parenting, by rendering the decision to carry a pregnancy to term a choice. It thereby legitimates a minimalist state response to the problems of pregnant women who carry their pregnancies to term and for poor parents who might need greater public support. These marginalized groups need greater community and state assistance with the demands of parenting, and the equation of reproductive justice with a right to terminate a pregnancy is in tension with a political or legal agenda for meeting those needs. The Essay then explores the possibility of creating a right to legal abortion through ordinary political means, rather than through constitutional adjudication, in such a way as not to carry these costs.
  • p.1394

• The preferred moral foundations of the abortion right created in Roe v. Wade and its progeny continue to shift, from marital and medical privacy, to women’s equality, to individual liberty or dignity, and back, in the minds of both the Supreme Court Justices and the pro-choice advocates and legal scholars that have argued or celebrated these famous cases. What has not shifted is the commitment of the pro-choice community to the right itself, and to the propriety of its judicial origin. Legal abortion, according to this near- universal pro-choice consensus, is and should be an individual, constitutional right protected against political winds, rather than simply good policy reflected in a state’s laws, and it is therefore entirely fitting that we look to the courts, and to the Supreme Court in particular, for its articulation and enforcement. It is the work of the courts and their actors—judges, lawyers, litigants, amici, judicial clerks, and academic commentators—to orate the basis of this important individual right, to develop its contours, and to expand or contract it when appropriate—to subject it in effect to the ordinary and extraordinary processes of constitutional adjudication.
  • p.1396

• Briefly, I look at three such costs of the abortion right, which I refer to as (1) legitimation costs, (2) democratic costs, and (3) aspirational costs. All three of these general types of costs of rights have been well developed in the various “rights critiques” produced by critical legal scholars during the 1970s and 1980s. None, however, has been applied to the particular case of abortion rights. Individual, negative, constitution al rights, according to their critics, keep the state off our backs and out of our lives, but they also run the risk of legitimating the injustices we sustain in the insulated privacy so created; they denigrate the democratic processes that might generate positive law that could better respond to our vulnerabilities and meet our needs; and they truncate our collective visions of law’s moral possibilities. All three costs, I will argue, attend to the abortion right created by Roe v. Wade.
  • p.1398

• Why is there not more pro-choice criticism of Roe, and of its varying and various rationales? The lack of such commentary is odder than it might first seem. The liberal adjudicated victories of the Warren and Burger Courts, with the one exception of Roe, generated massive amounts of critical commentary from theorists purporting to speak for the interests of the victorious parties in those cases and the communities they roughly represented. Brown v. Board of Education, to take the most iconic example, has generated a burgeoning cottage industry of critique, eventually coalescing in the creation of an entire scholarly movement—critical race theory—that was rigorously critical, on left-wing and racial-justice grounds, of that decision’s liberal, rights-expansive, and integrationist ideals. Thus, according to its progressive critics, Brown hid the massive problems of underfunded public education under the false covering of a legally reformed and racially fair integrationist ideal, and articulated an account of de jure segregation as the evil to be addressed by civil rights law that left an insidious pattern of de facto segregation both intact and legitimated. It birthed an entire ideology of “color blindness” that did little but undercut serious attempts at redistributive racial justice, including affirmative action programs in employment and education both. Brown lent a veneer of fairness to purportedly meritocratic hierarchic orderings that result from individual and state decisionmaking and that continue to subordinate poor people. It relied on a cramped and ungenerous vision of “rights” and “integration” that both truncated rather than generated political progress on these and other progressive causes. All of this, again, stems from the champions of racial justice, not antagonists. Other less revered but nevertheless substantial Warren, Burger, and Rehnquist Court progressive victories also have prompted scathing critiques by progressive legal scholars. Miranda v. Arizona prompted worry as well as celebration among advocates for the interests of criminal defendants: the right the Court created might constitute a triumph for nothing but a formalistic and legitimating conception of interrogatory justice, setting back, rather than advancing, the cause of respectful and noncoercive treatment of criminal defendants. Likewise, the more recent Lawrence v. Texas decision prompted plenty of accolades but also its share of criticism from equality-minded legal scholars. In elevating sex into the realm of those aspects of life and identity so highly regarded as to be worthy of constitutional protection, some argued, it might further burden the work of protecting vulnerable people against sexual harassment and assault.
  • pp.1398-1400

• Whatever the merits of the criticisms of these famously progressive cases, my point here is comparative: unlike Brown, Miranda, or Lawrence, Roe v. Wade remains largely insulated from friendly critique. Why is that? I think there are three reasons for the critical reticence. None, however, is a particularly compelling justification.
  Part of the story—maybe the major part—is a widespread belief among the pro-choice community in the opinion’s relative vulnerability. This alone deters criticism of the decision by those who politically support legal abortion. Roe, by contrast to Brown, Miranda, and even Lawrence, seems to be in perpetual and great danger of being overturned. Roe is a perennial—permanent?—presidential campaign issue, and has been since it was decided.
  • p.1400

• There is, in short, no end in sight to the compulsive vote counting with respect to Roe v. Wade.
  • p.1401

• The second reason has to do with a belief in Roe’s efficacy. The gains secured by Roe seem more tangible than the gains secured by Brown and Lawrence, so the potential cost of reckless critique seems higher. Brown ended de jure segregation of the schools—but not de facto segregation, and much less real racial subordination: schools as well as neighborhoods remain segregated and unequal in much of the country. Lawrence struck from the books criminal statutes that had not been directly enforced anyway, and left untouched the unequal treatment of gay and lesbian citizens on any number of fronts, from marriage to military service, employment, and tenancy rights. There is much to criticize, if one keeps the focus on the paltry consequences of these decisions, compared with what they promised. Roe, by contrast, was by no means an empty victory, much less a Trojan horse. Rather, Roe sent a clear material and rhetorical signal to women, girls, and the larger society: women’s reproductive lives should be, and henceforth would be, governed by a regime of choice— whose choice is not so clear—and not by fate, nature, accident, biology, or men.
  The gains of this one decision, in terms of the autonomy and broadened options for women and girls, were felt to be enormous. With the advent of birth control and safe and legal abortion, women can avoid life- and health- threatening pregnancies, can limit the number of children they will mother, and can plan the major sequence of their lives—pregnancies, education, marriage, job, and career—so as to increase hugely their chances of succeeding at all. Without that control, women’s and girls’ control of these life-changing events is severely compromised. Dangerous, injurious, or simply too many pregnancies in one’s teens, twenties, thirties, and forties make completion of high school, college, professional school, graduate school, or vocational training for skilled crafts much harder even to imagine, much less to accomplish. The burdens of unwanted, dangerous, or just too many pregnancies are harder to measure but just as real in private and intimate life. Dangerous pregnancies shorten lives. Too many pregnancies make for difficult and unrewarding mothering. All of it leaves the woman feeling, justifiably, hostage to fate. If she cannot control her reproductivity, she cannot control her life. Without self-sovereignty over her body, all that remains of her life—her work, her sociability, her education, he r mothering, and her impact on the world—is miniaturized. She lives a smaller life.
  • p.1401

• Neither the vulnerability nor efficacy of Roe, nor the partial truth it expresses, is a good reason not to engage in critique. There are also, however, costs to the reticence. The lack of such a critique, I will argue, has dulled us to the degree to which the rhetoric of adjudicated abortion rights might have weakened reproductive justice more broadly conceived. But it is also worth noting that even if feminism’s or progressivism’s or the Democratic Party’s sole goal were to strengthen this embattled right, there is a strong pragmatic case for pro-choice feminist critiques of the way that right is now constructed: by its steadfast loyalty to Roe the pro-choice community is in danger of losing this war by fighting—even if winning—yesterday’s battle. Pro-life movement activists increasingly look to reduce abortions not by reversing Roe and criminalizing abortion, but rather through a three-pronged strategy, no part of which is dependent upon Roe’s reversal: first, by passing restrictions the Court will uphold even with Roe on the books; second, by reducing abortion supply and demand by intimidating clinics and clinicians and shaming the women who use them; and third, by reducing the long-range cost of pregnancy by urging more political and communitarian support for motherhood, particularly for poor women. For pro-life constituencies, the grounds of contestation of legal abortion have shifted to the local, political, and moral, and away from the constitutional-adjudicative. The pro- choice community’s fixation on the apparently never-ending project of finding adequate grounds for adjudicated abortion rights blinds it to this development.
  • pp.1404-1405

• There are at least three major costs of the right created in Roe that seem to be underappreciated by the pro-choice community. All three are suggested by the various critiques of negative rights, of the Left’s reliance on courts to create and protect them, and of the liberal-legal political commitments that underlie them, which were pioneered by the critical legal scholarship of the 1970s and 1980s. They are as follows: (1) choice-based arguments for abortion rights legitimate considerable injustice, both in women’s reproductive lives and elsewhere; (2) the Court’s active role in creating this jurisprudence exacerbates antidemocratic features of U.S. constitutionalism, to women’s detriment; and (3) the arguments do not do justice to the aspirational goals of the women’s movement’s early arguments for reproductive rights.
  • pp.1405-1406

• Does the decision in Roe, even assuming the value of the right it created, carry legitimation costs? Placing the question in a historical context, one might recall that Catharine MacKinnon’s early critiques of Roe v. Wade pointed to two important legitimating effects of that decision—one quite specific and the other more general. First, she argued, constitutionalizing a right to terminate a pregnancy broadly legitimates the sex that produced the pregnancy—sex that might well have been less than fully consensual by both parties. It shifts the focus away from addressing the social and sexual imbalances that result in unwanted pregnancies to the unwanted pregnancy itself, and strongly suggests that the appropriate social and individual response to unwanted sex is to protect the decision to end the pregnancy. This has the effect of minimizing the social costs of sexual inequality for the strong and the weak both, rather than ending the sexual inequality itself. Roe, then, legitimates both unwanted sex and the hierarchies of power that generate it. Second, MacKinnon argued, the privacy rationale of Roe v. Wade might have the pernicious effect of further insulating the already overly privatized world of intimate relations from either moral critique or political struggle. Men subordinate women, to a large degree, in private: in homes, in bedrooms, in hotel rooms, through pornography, prostitution, marriage, and sex. Extolling the privacy of these relations, and casting a constitutional wall of protection around them for the express purpose of warding off legal intervention or regulation, thus both insulates and valorizes—and hence legitimates—the subordination that occurs within them.
  These arguments, I think, were never answered satisfactorily by feminist supporters of Roe v. Wade.
  • p.1409

• The danger I want to highlight is that the individual right to terminate a pregnancy created by Roe v. Wade might have the effect not only of legitimating the coercive sex that might have led to it, but also of legitimating the profoundly inadequate social welfare net and hence the excessive economic burdens placed on poor women and men who decide to parent. As Roe and the choice it heralds to opt out of parenting become part of the architecture of our moral and legal lives, we increasingly come to think of the decision to parent, no less than the decision not to parent, as a chosen consumer good or lifestyle—albeit a very expensive one. As this shift in consciousness occurs, it may come to seem, at least for many, that the only role for a caring or just society, here as elsewhere, is to ensure that that consumer choice to parent or not parent is well informed. Making sure that choices are well informed, after all, exhausts the role of the state in regulating consensual affairs, particularly market-based ones, in a culture that valorizes consensual market transactions.
  • pp.1409-1410

• First, the critics complained that constitutional rights, in spite of their occasional progressive potential, have tended to protect individuals’ commodificationist rights to contract and property rather than to serve people’s needs, and would likely continue to do so. The right created by Roe is no exception. Roe’s holding, whether couched in terms of liberty or privacy, did indeed quickly devolve into a bare negative contract right to buy a particular medical service—an abortion—free of moralistic intrusion by state legislators who would paternalistically intervene into that—or any other—consensual purchase. The right became a stick in a bundle of negative rights to our bodies and labor, that we wield in order to keep the state out of our sex lives: we have a right to birth control, a right to same -sex sex, limited rights to produce and consume pornography, and a right to en gage in the commercial and medical consultation necessary to secure an abortion to end the pregnancies in which all that protected sex sometimes result. It has furthered the cause of unfettered sexuality in open markets, for purchase and otherwise, by giving us a property right in the pregnancy and a contract right to purchase the means to end it. It has done nothing, however, to further the satisfaction of the positive needs— whether understood as rights or not of either pregnant women or parents. By relentlessly celebrating negative rights as the route to women’s liberty and equality, and thereby impliedly castigating politically secured legislation as the evil against which negative rights—and hence, liberty and equality both—are constructed, it has undermined the case for the very sorts of positive legislative schemes that might do so.
  • p.1415

• Second, and as the rights critiques of the “public-private” distinction presaged, the libertarian rhetoric of the opinion has indeed focused attention on pernicious state intermeddling in women’s lives, rather than either the private sphere appropriation of women’ s sexuality caused by male sexual aggression, or the appropriation of women’s reproductive and parenting labor in that sphere, as the primary limit on women’s equality and liberty. Catharine MacKinnon warned in her early critiques of Roe that the pro-choice community ran the risk that it would further obfuscate both the fact and nature of private sphere sexual subordination by aggressively shrouding that sphere, and the subordination that occurs within it, in a constitutionally protected veil of laudatory privacy. The right to abortion, she argued, might further privatize the private by constitutionalizing it, and by so doing thicken the veil of privilege around intimate life, and therefore around the sexual subordinations that occur within it. Events have not proven her wrong to have so worried. The same is true, although she did not so argue, with respect to women’s labor, no less than women’s sexuality, and with respect to the economic sphere, no less than the sexual. Parenting is economic activity, as well as the consequence of sexual acts that may have been coerced. By insulating the private economic realm of parental choice against public critique and intervention, the economic deprivations occasioned by overly privatized parenting are further shielded against public intervention. The effect is not only the valorization of the “private” activities of sex and parenting, but also the denigration of the public sphere of politics. The public assistance that would be required to alleviate costs borne in private is cast as unwarranted intrusion into an exalted sphere of private economic life, rather than warranted assistance with an almost impossibly privatized burden.
  • pp.1415-1416

• [J]ust as a critical sensibility should have predicted, the right has indeed proven to be both relatively regressive and seemingly unstable. This right’s genesis in “law” rather than “politics” has not yielded the permanence or security or respect that law promises. Roe, conceived as a “right” so as to withstand the whims of hostile political opinion that would upset it, still seemingly hangs by a legal thread. The Court can broaden it, narrow it, uphold it, or overrule it. Meanwhile, and ironic ally, the activity it primarily protects—legal and safe abortion in the first trimester of an unwanted pregnancy—enjoys strong majoritarian political support. Rendering legal abortion a constitutional right, rather than an ordinary political one, may not have made it any more secure than it otherwise would have been. We have seemingly gained the regressive features of constitutionalizing this right, without enjoying the gain of security or stability that constitutionalism promises.
  • p.1416

• Roe v. Wade and its progeny are not, of course, responsible for the degradation of politics that has become the natural counterpart of the institution of judicial review, its high-minded justifications, and the reverence we now accord it. It does, though, exemplify it. When the Court speaks of the hallowed right to privacy in which it locates abortion, it speaks of the sanctity of marriage and family, of individual liberty, of equality or dignity, of respect, and of the great and deepest mysteries of life. It speaks of the constituents of individual identity, and of what is most important to a well-led life, of the grand promises of the Fourteenth Amendment, of the importance of precedent to political and social order, of the needs of all of us to be free of a “jurisprudence of doubt,” and of the importance of consistency, integrity, and moral principle in decision making and in our law. The contrast between what the Court and commentators say when speaking of this right, and what abortion rights advocates say in the public sphere when defending or addressing the need for legal abortion, could not be starker. When advocates speak of abortion in the public sphere and outside the courts, they do not talk, for the most part, about a “jurisprudence of doubt” or the importance of precedent or of principled judicial decision making, of liberty, dignity, or even equality. Rather, they most often speak of women’s bodies. They speak of the dangers to women’s health that are posed by many pregnancies. They speak of the lives that have been lost to illegal abortion. They talk a lot about hemorrhaging, and of women and girls bleeding to death in botched back-alley abortions. They speak of fear and terror. They speak of lives shortened, or narrowed, or rendered mean and uncompromising by dangerous pregnancies, or too many unplanned pregnancies, or too many children, or too much mothering. They speak of shattered dreams, or girls with low or no expectations for their own futures. They often speak of abusive stepfamily members, of domestic violence, and child rape. They speak of intentional, deeply wanted pregnancies gone wrong: they talk about diseased fetuses, miscarriages, and tragic choices. They talk about stillbirths and life-threatening complications. They speak of the earthy, present, demanding, felt, fought-over need of women to control their bodies and fate.
  • pp.1418-1419

• The contrast on the other side of this debate, between the rhetoric of the Court and commentators on the one hand, and activists on the other, is if anything even more stark, although it is beginning to narrow somewhat, at least if Gonzales v. Carhart is any guide. In the public square, pro-life advocates speak, argue, petition, canvas, and beseech us to attend to the biological lives of unborn babies. They wield pictures of fetal life and body parts. They deploy sonograms and give voice to silent screams. They push their listeners to identify with the unborn, to open their sympathies and their hearts to the least of these, to pull fetal life into the human community, to recognize us in them and them in us. Conservative legal critics of Roe v. Wade, on the other hand, speak rarely if at all of any of this. Rather, they speak of originalism, of constitutional integrity, of the close readings of texts, of plain meaning, and of the lack of the word “privacy” in the text of the Constitution. They worry over the integrity, identity, and future of the Constitution. There is little talk, either on the Court or in the pages of scholarly commentary that is hostile to Roe, about fetal life, silent screams, or unborn babies, and even less about the struggles facing women with unwanted or dangerous pregnancies. The discussion is principled, constitutional, and historical. It does not stem from a visceral identification with or sympathy for the plight of murdered babies.
  • pp.1419-1420

• One might, for example, think of Roe as the first in a possible trajectory of future cases revitalizing a libertarian and antimoralistic strand of Lochner v. New York .Lochner famously found a right to contract for labor in the Constitution that in turn trumped democratic control of labor markets, and Roe likewise found a right to contract for an abortion that trumped democratic control of markets for reproductive services. Roe, then, like Lawrence v. Texas, might be sensibly viewed as a stepping stone toward a revitalized libertarian understanding of the relation between citizen, state, and contract. The libertarian and antimoralistic language in Lawrence also supports such a reading, as commentators have noted. Perhaps the extreme administrative and legal intervention in to markets that characterized so much of the twentieth century, whether prompted by moralistic impulses or by redistributive impulses, is the anomaly. The norm may be an ecumenical understanding of the individual liberty protected by the substantive prong of the Due Process Clause—a liberty that arguably protects the sale and purchase of labor, contraception, abortions, subprime mortgages, high interest loans, prostitution services, surrogacy services, babies, gambling contracts, guns, or kidneys, and protects all of these contractual transactions against either moralistic or paternalistic intervention. That is one way to string the beads.
  • pp.1423-1424

• Another way to string the beads aligns Roe with other cases that establish what I call “lethal rights,” or defensive rights to kill. On this understanding, Roe is part of a narrative that also prominently includes District of Columbia v. Heller. Thus, the Court in Heller created, or discovered, a right to own a handgun, desired not only by gun enthusiasts and hunters, but also by citizens who worry that the state will not defend them against aggressors in their home or elsewhere. The right to own a gun, read in this way, is the complement to the Court’s refusal to grant a positive right to a state’s protection against private violence: if you do not have a right to the state’s protection against violence, but you do have a right to kill in self-defense, then it becomes quite natural that you must have a prior right to the arms necessary to exercise it. Viewed as a bead on that string, we might understand Roe as granting a right to kill fetal life, made all the more desirable by virtue of the state’s refusal to create meaningful systems of health and child care, and the Court’s refusal even to consider the possibility of creating a ri ght to such assistance. A right to an abortion looks all the more desirable if one has no right to assistance in dealing with the economic stresses of parenting. It becomes another “defensive” lethal right, necessitated, in part, by an excessively minimalist state. The rights created by the Court in Heller and Roe have more than a slight family resemblance.
  • p.1424

• [T]he dominant narrative puts Roe in line with cases protecting sexual expression, not personal liberty, and not self-defense. On the dominant understanding, Roe is on a string of beads with Griswold v. Connecticut, Eisenstadt v. Baird , and Lawrence, not with Lochner, and certainly not with Heller. What Roe does, along with Griswold, Eisenstadt, and Lawrence, is protect an individual’s right to have nonreproductive sex. What is stressed, on this story, is the consequence for sexual freedom to be garnered from the right to be free of the risk of pregnancy.
  • p.1425

• It is not possible, for example, to read Roe as protective of marital, as opposed to individual privacy. That is foreclosed by Eisenstadt. It is not possible, I believe, to read Roe as a part of an adjudicative, narrative movement toward a robust conception of reproductive justice. That is ruled out by the right’s negativity. Reproductive justice requires a state that provides a network of support for the processes of reproduction: protection against rape and access to affordable and effective birth control, healthcare, including but not limited to abortion services, prenatal care, support in childbirth and postpartum, support for breastfeeding mothers, early childcare for infants and toddlers, income support for parents who stay home to care for young babies, and high quality public education for school age children. The Court is not equipped to mandate any of that, and has stated repeatedly that it is not inclined even to suggest that a citizen might have a right to a state that does so. The negative right that it has recognized suggests something very different: it suggests at best a right to nonreproductive sex, and at worst, a right to end a pregnancy by killing the fetus so as to free oneself of the burden of impossible parental obligations in an unjust world. Either way, it is not all that clear that women, parents, or children are the beneficiaries.
  • p.1425

• Reproductive justice is a political and moral project. The Court-created abortion right is a judicial and constitutional one.
  • p.1426

• We should be explaining the pragmatic reasons that women here and now must have control over their own reproductive lives, rather than focus as exclusively as we have on principled constitutional claims that purport to rest on timeless principle.
  • p.1428

Whole Woman’s Health v. Hellerstedt, 579 U.S. ___ (2016)

Whole Woman’s Health v. Hellerstedt, 579 U.S. ___ (2016), justia.com

• A “State has a legitimate interest in seeing to it that abortion . . . is performed under circumstances that insure maximum safety for the patient.” Roe v. Wade, 410 U. S. 113 . But “a statute which, while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends,” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (plurality opinion), and “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right,” id., at 878.
  • Whole Woman’s Health v. Hellerstedt, 579 U.S. ___ (2016), justia.com

• So long as this Court adheres to Roe v. Wade, 410 U. S. 113 (1973) , and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) , Targeted Regulation of Abortion Providers laws like H. B. 2 that “do little or nothing for health, but rather strew impediments to abortion,” Planned Parenthood of Wis., 806 F. 3d, at 921, cannot survive judicial inspection.
  • Whole Woman's Health v. Hellerstedt, 579 U.S. ___ (2016), Concurrence Ginsburg, justia.com

• Roe v. Wade, 410 U. S. 113 (1973), held that women seeking abortions fell into the mootness exception for cases “ ‘capable of repetition, yet seeking review,’ ” enabling them to sue after they terminated their pregnancies without showing that they intended to become pregnant and seek an abortion again. Id., at 125. Yet, since Singleton, the Court has unquestioningly accepted doctors’ and clinics’ vicarious assertion of the constitutional rights of hypothetical patients, even as women seeking abortions have successfully and repeatedly asserted their own rights before this Court.
  • Whole Woman's Health v. Hellerstedt, 579 U.S. ___ (2016), Dissent Thomas, I, justia.com

• Though the tiers of scrutiny have become a ubiquitous feature of constitutional law, they are of recent vintage. Only in the 1960’s did the Court begin in earnest to speak of “strict scrutiny” versus reviewing legislation for mere rationality, and to develop the contours of these tests. See Fallon, Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1274, 1284–1285 (2007). In short order, the Court adopted strict scrutiny as the standard for reviewing everything from race-based classifications under the Equal Protection Clause to restrictions on constitutionally protected speech. Id., at 1275–1283. Roe v. Wade, 410 U. S. 113 , then applied strict scrutiny to a purportedly “fundamental” substantive due process right for the first time. Id., at 162–164; see Fallon, supra, at 1283; accord, Casey, supra, at 871 (plurality opinion) (noting that post-Roe cases interpreted Roe to demand “strict scrutiny”). Then the tiers of scrutiny proliferated into ever more gradations. See, e.g., Craig, 429 U. S., at 197–198 (intermediate scrutiny for sex-based classifications); Lawrence v. Texas, 539 U. S. 558, 580 (2003) (O’Connor, J., concurring in judgment) (“a more searching form of rational basis review” applies to laws reflecting “a desire to harm a politically unpopular group”); Buckley v. Valeo, 424 U. S. 1, 25 (1976) (per cu-riam) (applying “ ‘closest scrutiny’ ” to campaign-finance contribution limits). Casey’s undue-burden test added yet another right-specific test on the spectrum between rational-basis and strict-scrutiny review.
  The illegitimacy of using “made-up tests” to “displace longstanding national traditions as the primary determinant of what the Constitution means” has long been apparent. United States v. Virginia, 518 U. S. 515, 570 (1996) (Scalia, J., dissenting). The Constitution does not prescribe tiers of scrutiny. The three basic tiers—“rational basis,” intermediate, and strict scrutiny—“are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case.” Id., at 567; see also Craig, supra, at 217–221 (Rehnquist, J., dissenting).
  • Whole Woman's Health v. Hellerstedt, 579 U.S. ___ (2016), Dissent Thomas, III, justia.com

• It is tempting to identify the Court’s invention of a constitutional right to abortion in Roe v. Wade, 410 U. S. 113 , as the tipping point that transformed third-party standing doctrine and the tiers of scrutiny into an unworkable morass of special exceptions and arbitrary applications. But those roots run deeper, to the very notion that some constitutional rights demand preferential treatment. During the Lochner era, the Court considered the right to contract and other economic liberties to be fundamental requirements of due process of law. See Lochner v. New York, 198 U. S. 45 (1905) . The Court in 1937 repudiated Lochner’s foundations. See West Coast Hotel Co. v. Parrish, 300 U. S. 379 –387, 400 (1937). But the Court then created a new taxonomy of preferred rights.
  • Whole Woman's Health v. Hellerstedt, 579 U.S. ___ (2016), Dissent Thomas, IV, justia.com

• In 1938, seven Justices heard a constitutional challenge to a federal ban on shipping adulterated milk in interstate commerce. Without economic substantive due process, the ban clearly invaded no constitutional right. See United States v. Carolene Products Co., 304 U. S. 144 –153 (1938). Within Justice Stone’s opinion for the Court, however, was a footnote that just three other Justices joined—the famous Carolene Products Footnote 4. See ibid., n. 4; Lusky, Footnote Redux: A Carolene Products Reminiscence, 82 Colum. L. Rev. 1093, 1097 (1982). The footnote’s first paragraph suggested that the presumption of constitutionality that ordinarily attaches to legislation might be “narrower . . . when legislation appears on its face to be within a specific prohibition of the Constitution.” 304 U. S., at 152–153, n. 4. Its second paragraph appeared to question “whether legislation which restricts those political processes, which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the [14th] Amendment than are most other types of legislation.” Ibid. And its third and most familiar paragraph raised the question “whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” Ibid.
  Though the footnote was pure dicta, the Court seized upon it to justify its special treatment of certain personal liberties like the First Amendment and the right against discrimination on the basis of race—but also rights not enumerated in the Constitution.[2] As the Court identified which rights deserved special protection, it developed the tiers of scrutiny as part of its equal protection (and, later, due process) jurisprudence as a way to demand extra justifications for encroachments on these rights. See Fallon, 54 UCLA L. Rev., at 1270–1273, 1281–1285. And, having created a new category of fundamental rights, the Court loosened the reins to recognize even putative rights like abortion, see Roe, 410 U. S., at 162–164, which hardly implicate “discrete and insular minorities.”
  • Whole Woman's Health v. Hellerstedt, 579 U.S. ___ (2016), Dissent Thomas, IV, justia.com

• The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting, or not—and if not, the judiciary has no business creating ad hoc exceptions so that others can assert rights that seem especially important to vindicate. A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment. Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.
  • Whole Woman's Health v. Hellerstedt, 579 U.S. ___ (2016), Dissent Thomas, IV, justia.com

• Beyond these paltry authorities, the Court adds only the argument that we should not “encourage a kitchen-sink approach to any litigation challenging the validity of statutes.” Ante, at 17. I agree—but that is not the situation in this case. The two claims here are very closely related. They are two parts of the same bill. They both impose new requirements on abortion clinics. They are justified by the State on the same ground, protection of the safety of women seeking abortions. They are both challenged as imposing the same kind of burden (impaired access to clinics) on the same kind of right (the right to abortion, as announced in Roe v. Wade, 410 U. S. 113 (1973) , and Casey, 505 U. S. 833 ). And petitioners attack the two provisions as a package. According to petitioners, the two provisions were both enacted for the same illegitimate purpose—to close down Texas abortion clinics. See Brief for Petitioners 35–36. And as noted, petitioners rely on the combined effect of the two requirements. Petitioners have made little effort to identify the clinics that closed as a result of each requirement but instead aggregate the two requirements’ effects.
  For these reasons, the two challenges “form a convenient trial unit.” Restatement (Second) of Judgments §24(2). In fact, for a trial court to accurately identify the effect of each provision it would also need to identify the effect of the other provision. Cf. infra, at 30.
  • Whole Woman's Health v. Hellerstedt, 579 U.S. ___ (2016), Dissent Alito, B I justia.com

Whole Woman's Health v. Jackson 594 U. S. ____ (2021)

21A24 Whole Woman's Health v. Jackson 594 U. S. ____ (2021), September 1, 2021, supremecourt.gov

• JUSTICE BREYER, with whom JUSTICE SOTOMAYOR and JUSTICE KAGAN join, dissenting.
  The procedural posture of this case leads a majority of this Court to deny the applicants’ request for provisional relief. In my view, however, we should grant that request. I agree with THE CHIEF JUSTICE, JUSTICE SOTOMAYOR, and JUSTICE KAGAN. Texas’s law delegates to private individuals the power to prevent a woman from obtaining an abortion during the first stage of pregnancy. But a woman has a federal constitutional right to obtain an abortion during that first stage. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 846 (1992); Roe v. Wade, 410 U. S. 113, 164 (1973). And a “State cannot delegate . . . a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.” Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 69 (1976) (internal quotation marks omitted). Indeed, we have made clear that “since the State cannot regulate or pro-scribe abortion during the first stage . . . the State cannot delegate authority to any particular person . . . to prevent abortion during that same period.” Ibid. The applicants persuasively argue that Texas’s law does precisely that.
  • 594 U. S. ____ (2021) BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 21A24 WHOLE WOMAN’S HEALTH ET AL. v. AUSTIN REEVE JACKSON, JUDGE, ET AL. ON APPLICATION FOR INJUNCTIVE RELIEF [September 1, 2021], p.1

• JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and JUSTICE KAGAN join, dissenting. The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention. Ante, at 1. Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent.
  • 594 U. S. ____ (2021) SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES No. 21A24 WHOLE WOMAN’S HEALTH ET AL. v. AUSTIN REEVE JACKSON, JUDGE, ET AL. ON APPLICATION FOR INJUNCTIVE RELIEF [September 1, 2021], p.1

"Defenders of the Unborn: The Pro-life Movement Before Roe V. Wade" (December 4, 2015)

“Defenders of the Unborn: The Pro-life Movement Before Roe V. Wade” by Daniel K. Williams, New York: Oxford University Press, (December 4, 2015)

• By the time that Michael Taylor sent out his communiqué, pro-life lawyers had been preparing legal arguments in Roe and its companion case Doe v. Bolton for more than a year. When the Supreme Court heard initial oral arguments in 1971, pro-life advocates submitted several amici curiae briefs outlining their standard constitutional arguments on fetal rights, and they thought that they had a good chance o persuading the Court to give them a favorable verdict. As Fr. Paul Marx remarked in a private letter in May 1971, “It would be difficult to imagine that the United States Supreme Court would declare it a personal civil right of every woman to abort.”
  In both cases, the attorneys for the plaintiffs sought a sweeping declaration that a woman’s constitutional right to privacy gave her a right to an abortion, and that all anti-abortion laws, as well as the ALI-style therapeutic abortion statutes, were unconstitutional. In the spring of 1970, when the cases were filed, this was still a bold claim, though it was rapidly winning public support. The Texas and Georgia district courts that initially heard these cases ruled in favor of the plaintiffs, which bolstered their confidence when the cases reached the Supreme Court in the fall of 1971.
  • p.197

• Lawyers for the states of both Georgia and Texas argued that abortion restrictions were appropriate because the state ad a legitimate interest in protecting “fetal life.” This was the argument that the pro-life movement had been making for years, but the attorneys-particularly the attorney for the state of Texas-struggled to articulate it during oral arguments and failed to present a coherent defense of restrictive abortion laws. The lawyer representing the state of Texas could not explain why women in his state were not prosecuted for self-abortion if the primary purpose of the restrictive abortion statute was to protect fetal life, nor could he explain why his state’s law contained to exception for rape The defense lawyer for the state of Georgia, a young assistant attorney general named Dorothy Beasley, delivered a stronger performance, beginning with her opening statement that the central issue in the case was “the value which is to be placed on fetal life.” But she struggled to explain why, if preservation of fetal life was so important, her state allowed abortion in cases of rape, fetal deformities, and instances when pregnancy endangered a woman’s health, while prohibiting abortion more generally.
  Indeed, the attorneys seemed more interested in addressing other legal arguments-such as whether the plaintiffs had standing to sue-than in addressing the fundamental issues of fetal life. At one point, the Texas state attorney even drifted into a bit of personal philosophizing that indicated he was as unsure about the beginning of human personhood as most Americans outside of the pro-life movement were- a concession that surely did not help his case “there are unanswerable questions in this field,” he said, when asked if he was prepared to argue that the fetus deserved legal protection even at “one hour” after “impregnation.” ”When does the soul come into the unborn-if a person believes in a soul?” he asked, “I don’t know.”
  • pp.197-198

• Pro-life lawyers had complained before about the poor quality of state attorney’s attempts to defend restrictive abortion statutes. This time, they decided that they would take matters into their own hands. In 1971, they sent the Court their own amici curiae briefs to make the arguments that the state attorneys were unprepared to deliver.
  Charles Rice, a Notre Dame law professor who had been producing pro-life materials for years, filed a brief on behalf of the new pro-life organization Americans United for Life (AUL) reiterating the pro-life movements longstanding Fourteenth Amendment argument. Rice cited several decades’ worth of tort cases in which lower courts had awarded damages to plaintiffs who had lost an unborn child in an accident. In some of those cases, judges had explicitly recognized the personhood of the fetus.
  A group of lawyers led by Dennis Horan, also affiliated with AUL, filed another brief consisting of several pages of fetal photographs and other medical evidence to persuade the Court that medical science supported the pro-life movement’s claim that fetuses were human persons with constitutional rights. More than 200 pro-life doctors, including most of the leading medical professionals in the movement-Mildred Jefferson, Fred Mecklenburg, Joseph Stanton, and others-signed their names to the brief.
  • p.198

• Ellen McCormack’s Long Island-based organization, Women for the Unborn, which now had 2,000 members, submitted a brief arguing that “permissive abortion constitutes an infringement on the rights and interests of women as well as of unborn children,” because abortion did not solve women’s problems or make them happier. The laws against abortion deterred women from making a choice that would likely ruin their lives, and women would suffer if that safeguard were taken away. “Most women seeking to take the life of their unborn baby, like most people seeking to take their own life, desire to be stopped by someone,” Women for the Unborn claimed. This argument posited a view of gender that might have appealed to the Supreme Court of the early twentieth century, but it seemed distinctly out of step with the opinions of a Court that had just affirmed the equality of men and women under the law in cases such as Reed v. Reed (1971). Perhaps for that reason, the justices did not refer to its arguments.
  Juan Ryan and other attorneys in the NRLC hoped their brief would have a greater effect. In sixty-one pages, they attempted to dismantle every abortion rights argument that they thought would appeal to the justices. They offered detailed arguments against the claims that legalized abortion would help the poor or that anti-abortion laws discriminated against women or inappropriately interfered with the work of doctors. They sought to demonstrate that the abortion statues at issue in Roe and Doe were not “unconstitutionally vague.” Most importantly, they offered a detailed list of cases in which lower courts had affirmed the value of fetal life, a view, they said, that was rooted not only in traditional constitutional interpretation but also in the English common law tradition the NRLC lawyers argued that if the fetus had inalienable rights under the Constitution, the “right to privacy” that the justices had asserted in Griswold could not be used to deprive the fetus of those rights, which meant that the right to privacy did not apply to abortion. The original purpose of the late nineteenth-century anti-abortion Texas statute that was at issue in Roe was to protect the life of the fetus, the lawyers argued. That purpose was just as valid in the 1970s as it had been in the 1880s, and the Supreme Court would therefore be wrong t strike down the law.
  • pp.198-199

• The Court initially seemed to indicate that it had only limited interest in listening to arguments from either side. Chief Justice Warren Burger arranged for the Court to begin hearing oral arguments in the cases before the two newest justices Lewis Powell and William Rehnquist, had been sworn in, which would have made them ineligible to vote in the decisions-a move that seemed highly unusual if the chief justice had wanted a historic, path-breaking decision. Furthermore, he allowed only the perfunctory one hour for oral arguments in each case; whenever the Court issued a major ruling, observers noted, it usually allocated far more time than that. Thus, the American Medical News concluded that there was “little likelihood” that the Court would overturn the Georgia and Texas abortion statutes. The lawyers for the plaintiffs in the two cases glumly admitted as much. The Court would probably dismiss the plaintiff’s’ claims in Roe on procedural grounds, Sarah Weddington told NARAL president Lee Gidding in August 1971, and abortion rights advocates would be denied the landmark decision that they sought.
  The Supreme Court surprised observers by refraining from issuing a ruling, and instead decided to rehear the cases in the fall of 1972, after all of the Court’s new justices had been seated. By that time, the pro-life movement was stronger, both numerically and politically, than it had been a year earlier. Yet in the courts, the abortion rights movement had won some important victories. A majority of the lower courts that had tested the constitutionality of restrictive abortion statues had ruled in favor of abortion rights, invalidating restrictive abortion rights statues. The “right to privacy,” which lay at the heart of the Roe and Doe plaintiff’s claims, had received an important reiteration earlier in the year when the Supreme Court ruled, in the birth control case Eisenstadt v. Baird (1972), that unmarried people were entitled to the same privacy as married people. Griswold had located the right to reproductive privacy in the institution of marriage, but Eisenstadt placed that right where the pro-choice movement wanted it: with the individual. “If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child,” the Court declared. Weddington quoted this line when she argued her case again before the Supreme Court, because it seemed to support everything that she had been arguing. If a woman had the constitutional right to make reproductive decisions without the interference of the state, surely the state could not legitimately prohibit her from having an abortion.
  • p.200

• Pro-lifers continued to argue that there was one compelling question that Eisenstadt had not addressed, one that made all the difference in the world. That question was the personhood of the fetus. If the Fifth and Fourteenth Amendments encompassed fetal life, a woman’s right to reproductive privacy could not extent to actions that would terminate the life of a fetus. During the second round of oral arguments in October 1972, Justice Byron White pressed Weddington on this essential question. “Is it critical to your case that the fetus not be a person under the due process clause?" he asked. “Would you lose your case if the fetus was a person?” The lawyers for the states of Texas and Georgia had wanted to discuss other issues, not for pro-life activists, the personhood of the fetus was the only relevant question. White was persuaded by this line of reasoning, and he wanted to see how Weddington would respond to it.
  Weddington tried to dodge the question, so White pressed her on it again. This time, she hedged, conceding only that if the fetus was a person, there would have to be a “balancing of interests” between the fetus and the mother, not a negation of the right to an abortion altogether. But she quickly returned to her main argument: the question was irrelevant, because the fetus was clearly not a person under the terms of the Fourteenth Amendment or any other section of the Constitution, including the due process clause of the Fifth Amendment. At most, a fetus had only “statutory rights”-that is, rights conveyed upon it by the legislative statutes of individual states. Women, by contrast, had a full “constitutional” right to an abortion grounded in the right to privacy, specified by Griswold as one of the Ninth Amendment’s implied rights. “It seems to me that you do not balance constitutional rights of one person against mere statutory rights of another, she told the Court.
  • pp.200-201

• Harry Blackmun questioned Weddington again on the issue of fetal personhood, as did Potter Stewart. They wanted her to concede that if the fetus was a person with constitutional rights, a woman could not have a constitutional right to unrestricted abortion. “If it were established that an unborn fetus is a person, with the protection of the Fourteenth Amendment, you would have an almost impossible case here, would you not?” Stewart asked, This time, Weddington reluctantly acknowledged the force of the argument. “I would have a very difficult case,” she conceded.
  This was what pro-lifers wanted to hear. It finally seemed, in the second round of oral arguments, that at least some of the justices saw the logic of the pro-lifers’ position. So did the attorney for the defense. In the re-argument, his arguments focused almost entirely on medical testimony about the fetus, combined with the case history detailing how lower court judges had recognized the value of fetal life. Once again he stumbled badly when cross-examined by the justices. But at least he focused his argument on the critical issue of fetal personhood.
  • p.201

• The justices’ questions indicated that Roe would turn on two central issues. The first was whether a woman’s constitutional right to privacy gave her the right to an abortion under the “penumbra” of the Ninth Amendment. The second was whether fetal life was constitutionally protected under the terms of either the Fifth of Fourteenth Amendment. The case was thus a contest between two competing constitutional rights. If one of the rights were granted, it would nullify the other.
  Justice Harry Blackmun recognized this, which was why the majority opinion that he wrote in Roe not only presented an argument explaining why the constitutional right to privacy gave women a right to an abortion, but also included a systematic refutation of each of the arguments in favor of fetal rights. Theologians and philosophers disagreed n when human life began, Blackmun argued, so pro-lifers’ use of medical testimony to argue for the personhood of the fetus was not persuasive. Although courts had often awarded damage claims for injuries “in utero”, these precedents were insufficient to confirm pro-lifers’ claim that fetuses had legal rights, because the law had always treated birth as the point at which human life began. Furthermore, the Fourteenth Amendment applied only to persons “born in the United States,” a qualification that clearly did not apply to the unborn.
  • pp.201-202

• By arguing that the fetus did not have any constitutional rights, Blackmun undercut the central argument of the pro-life movement, but he was not yet ready to concede that fetal life had no value or that the state had no right to protect it under any circumstances. At some point during pregnancy, he believed, the state might have a “compelling interest” in protecting fetal life. He was not sure, though, where that point was. He personally favored drawing the line at the end of the first trimester, a line that he admitted was “arbitrary.” Thurgood Marshall and Lewis Powell advocated drawing the line at viability, arguing that if only first-trimester abortions were permitted, some women who needed an abortion might not be able to obtain one, since the first twelve weeks of pregnancy offered a very narrow time frame for performing abortions. After spending several days discussing the issue with his colleagues, Blackmun produced an awkward compromise in the opinion that he wrote for the Court. Women had an unrestricted right to an abortion during the first trimester, he declared. During the second trimester, up to the point of viability, the state could implement restrictions on abortion, but only for the purposes of protecting a woman’s health not for the purpose of preserving fetal life. After viability, states had the option, though not the requirement, to ban abortion entirely, as long as they made exceptions for cases in which abortion was needed to protect a woman’s life or health.
  • p.202

• On January 22, 1973, the court ruled seven to two, in favor of the plaintiffs, Blackmun thought that his ruling offered concessions to all sides, and he tried to present it as a compromise that should not alarm anyone. “It should be stressed that the Court does not today hold that the Constitution compels abortion on demand.” He said. “It does not today pronounce that a pregnant woman has an absolute right to an abortion. It does, for the first trimester of pregnancy, cast the abortion decision and the responsibility for it upon the attending physician.”
  Regardless of Blackmun’s attempt to strike a measured tone, the decision that he wrote was sweeping in its outcome; it required the legislatures of forty-six of the nation’s fifty states to rewrite their abortion laws and make them as liberal as New York’s, and it delivered a firm victory to the abortion rights cause that pro-lifers refused to accept. For the previous year and a half, while Roe was being litigated, pro-life lawyers had made a concerted effort to convince the Supreme Court to accept their interpretation of the Constitution. Some of them had hoped that the Court would give them the definitive constitutional victory that they had been seeing. What they received instead was a systematic dismissal of their arguments. Blackmun had “contravene[d] the law of God,” ignored the scientific evidence in favor of fetal life, and misinterpreted the Constitution, they said. “It is hard to think of any decision in the 200 years of our history which has had more disastrous implications for our stability as a civilized society,” Cardinal John Krol declared as soon as the decision was announced.
  • p.203

• Blackmun had little notion of the firestorm he had just ignited. Within days, his mailbox was flooded with missives from angry pro-lifers. Some compared him to Herod and Hitler, while others pleased with him to reconsider the case. Many predicted the imminent legalization of euthanasia, a development that pro-lifers had long warned about. Blackmun was taken aback by the uproar. “The mail has been voluminous and much of it critical and some of it abusive,” he complained to a friend on January 31, a week after delivering the majority opinion in Roe. “I suspect, however, that the furor will die down before too long. At least I hope so.
  NARAL president Lee Gidding similarly dismissed the pro-lifers’ apocalyptic laments as the words of “fanatics.” Before you know it this will be past history and abortion will be just another medical procedure,” she confidently predicted. “People will forget about this whole thing.”
  Gidding and Blackmun could not have been more wrong.
  • p.203

"Letting Go of Roe" (Jan/Feb 2005)

Wittes, Benjamin. "Letting Go of Roe", The Atlantic Monthly, Jan/Feb 2005. Retrieved January 23, 2007.

• With Chief Justice William Rehnquist seriously ill, the prospect of a Supreme Court vacancy early in George Bush's second term looms over American politics. The script for this—and every—Republican high-court nomination was written long ago. You already know how it goes: Both his own convictions and the need to keep his political base happy require a conservative president to nominate someone expected to vote to overturn Roe v. Wade, the 1973 case that established the constitutional right of women to terminate their pregnancies. He has only two realistic choices. He can name someone openly hostile to Roe—and thereby trigger a major confrontation with liberal interest groups and Senate Democrats. Or he can name someone with no record on abortion rights but whose jurisprudential approach suggests a predictable skepticism toward them—in which case liberals will insist on trying to divine the nominee's views on the question, which he or she in turn will endeavor to conceal. Unless the president nominates someone the Democrats deem it not in their interests to oppose, the nomination process will become an ugly spectacle in which a single narrow issue pushes to the sidelines discussion of the broad array of other important legal questions the Supreme Court handles. And that process will cast abortion-rights supporters as intolerant of those who disagree with them—or even those they fear may disagree with them.
• [T]he liberal commitment to Roe has been deeply unhealthy—for American democracy, for liberalism, and even for the cause of abortion rights itself. All would benefit if abortion-rights proponents were forced to make their arguments in the policy arena (rather than during Supreme Court nomination hearings), and if pro-lifers were actually accountable to the electorate for their deeply unpopular policy prescriptions.
• By removing the issue from the policy arena, the Supreme Court has prevented abortion-rights supporters from winning a debate in which public opinion favors them.
  Since its inception Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion. Conservatives who fulminate that the Court made up the right to abortion, which appears explicitly nowhere in the Constitution, are being simplistic—but they're not entirely wrong. In the years since the decision an enormous body of academic literature has tried to put the right to an abortion on firmer legal ground. But thousands of pages of scholarship notwithstanding, the right to abortion remains constitutionally shaky; abortion policy is a question that the Constitution—even broadly construed—cannot convincingly be read to resolve.
• [T]he Court has not backed down on abortion. Thus the pro-life sense of disenfranchisement has been irremediable—making it all the more potent. One effect of Roe was to mobilize a permanent constituency for criminalizing abortion—a constituency that has driven much of the southern realignment toward conservatism. So although Roe created the right to choose, that right exists under perpetual threat of obliteration, and depends for its vitality on the composition of the Supreme Court at any given moment.
  Meanwhile, Roe gives pro-life politicians a free pass. A large majority of voters reject the hard-line anti-abortion stance: in Gallup polling since 1975, for example, about 80 percent of respondents have consistently favored either legal abortion in all circumstances (21 to 34 percent) or legal abortion under some circumstances (48 to 61 percent). Although a plurality of Americans appear to favor abortion rights substantially more limited than what Roe guarantees, significantly more voters describe themselves as "pro-choice" than "pro-life." Yet because the Court has removed the abortion question from the legislative realm, conservative politicians are free to cater to pro-lifers by proposing policies that, if ever actually implemented, would render those politicians quite unpopular.
• In short, Roe puts liberals in the position of defending a lousy opinion that disenfranchised millions of conservatives on an issue about which they care deeply while freeing those conservatives from any obligation to articulate a responsible policy that might command majority support.
• The day the Court overturns Roe, abortion will suddenly become a voting issue for millions of pro-choice voters who care about it but know today that the right is protected not by congressional politics but by the courts. At the same time, thousands of conservative politicians will face a dreadful choice: backtrack from the anti-abortion ground they have staked out and risk infuriating their pro-life base; or deliver on their promise to eliminate the right to abortion, and risk the wrath of a moderate, pro-choice majority. In the short term some states might pass highly restrictive abortion laws, or even outright bans—but the backlash could be devastating for conservatism. Liberals should be salivating at their electoral prospects in a post-Roe world. The simple fact is that a majority of Americans want abortion legal at least some of the time, and the majority in a democracy tends to get what it wants on issues about which it cares strongly. In the absence of Roe abortion rights would probably be protected by the laws of most states relatively quickly.
  Sure, certain state legislatures will impose restrictions that would be impermissible under the Supreme Court's current doctrine; some women might have to travel to another state to get abortions. But the right to abortion would most likely enjoy a measure of security it does not now have. Legislative compromises tend to be durable, since they bring a sense of resolution to divisive issues by balancing competing interests; mustering a working majority to upset them can be far more difficult than rallying discontent against the edicts of unelected judges. In short, overturning Roe would lead to greater regional variability in the right to abortion, but this would be a worthwhile price for pro-choice voters to pay in exchange for greater democratic legitimacy for that right and, therefore, greater acceptance of and permanence for it.
• A liberal fear of democratic dialogue may make sense regarding social issues on which the majority is conservative. But it is a special kind of pathology that would rather demand a loyalty oath to a weak and unstable Court decision than make a case before one's fellow citizens on a proposition that already commands majority support. The insistence on judicial protection from a political fight that liberals have every reason to expect to win advertises pointedly how little they still believe in their ability to persuade.

“The Brethren: Inside the Supreme Court” (1979)

“The Brethren: Inside the Supreme Court” by Bob Woodward and Scott Armstrong, New York: Simon and Schuster

• Blackmun was both pleased and frightened by the assignment. It was a no-win proposition. No matter what he wrote, the opinion would be controversial. Abortion was too emotional, the split in society too great. Either way, he could be hated and vilified.
  But from Blackmun’s point of view, the chief had had little choice but to select him. Burger could not afford to take on such a controversial case himself, particularly from the minority. Douglas was the Court’s mischievous liberal, the rebel, and couldn’t be the author. Any abortion opinion Douglas wrote would be widely questioned outside the Court, and his extreme views might split rather than unify the existing majority. Lastly, Blackmun had noticed a deterioration in the quality of Douglas’s opinions; they had become increasingly superficial.
  Brennan was certainly as firm a vote for striking down the state abortion law as there was on the Court. But Brennan was the Court’s only Catholic. As such, Blackmun reasoned, he could not be expected to be willing to take the heat from Catholic anti-abortion groups. Marshall could not be the author for similar reasons: an opinion by the Court’s only Black member could be unfairly perceived as specifically designed for Black people. That left only Stewart. Blackmun believed that Stewart would certainly relish the assignment, but he clearly had trouble going very far.
  Blackmun was convinced that he alone had the medical background and sufficient patience to sift through the voluminous record for the scientific data on which to base a decision. He was deeply disturbed by Douglas’s assumption that the chief had some malicious intent in assigning the abortion cases to him. He was “not” a Minnesota Twin.
  • p.96

• Brennan was aware that he was unlikely to get agreement on such a sweeping extension. He circulated his opinion with a carefully worded paragraph at the end. “If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
  That case dealt only with contraception-the decision to “beget a child. He included the reference to the decision to “bear” a child with the abortion cases in mind. Brennan hoped the language would help establish a constitutional basis, under the right to privacy, for a woman’s right to abortion.
  Since the last paragraph was not the basis for the decision, Stewart could join in without, renouncing his dissent in the 1965 case. Brenna got Stewart’s vote.
  But Blackmun was holding back. The chief was lobbying Blackmun not to join Brennan’s draft. Brennan’s clerks urged their boss to lobby Blackmun.
  Brennan refused. Blackmun reminded him, he said, of former justice Charles E. Whittaker, who had been paralyzed by indecisiveness. Whittaker’s indecision had ended in a nervous break-down and his resignation. Former justice Felix Frankfurter had misunderstood Whittaker’s indecision and had spent hours lobbying him. Instead on influencing him, Frankfurter had drawn Whittaker’s resentment. No, Brennan said, he would not lobby Blackmun.
  Blackmun finally decided not to join Brennan’s opinion, but simply to concur in the result. That worried Brennan. Without adopting some logic similar to that provided in the contraception case, Blackmun would have difficulty establishing a right to abortion on grounds of privacy.
  • pp.101-102

• In one case, Sarah Weddington, a poised but inexperienced advocate before the Court, argued on behalf of the women hoping to overturn an 1856 Texas law restricting abortions. Unaware the Court was focusing on jurisdiction questions, she immediately began discussing the woman’s constitutional right to an abortion.
  Stewart pointed out that there were several threshold questions to be dealt with first, including the jurisdiction issue.
  Stewart’s questions drew Douglas’s attention. As always during oral argument, he was a flurry of activity. Douglas listened with one ear, wrote, listened a moment, requested a book from the library, listened again, asked an occasional question, signed his correspondence for the day, listened again, made sarcastic comments to the Chief on his left or Stewart on his right. Now, for a change, Douglas stopped dead. He jotted a quick note to his clerks. “I need considerable research” on the jurisdiction question, he wrote. “Would one of you take it on.?”
  Weddington replied to Stewart that she saw no jurisdiction problem. Under earlier Court decisions, federal courts could intervene in state courts when constitutional issues had been raised. The Court had a number of bases for striking down Texas’s abortion law. “We had originally brought the suit alleging both the due process clause, equal protection clause, and the Ninth Amendment, and a variety of others,” Weddington began. “Since-“
  “And anything else that might have been appropriate?” White interjected sarcastically. “Yes, yeah,” Weddington said, dissolving into laughter for a moment. But White had pinned Weddington where he wanted her. She had made a broad constitutional claim, the kind a majority of the Court normally opposed.
  “Well, do you or don’t you say that the constitutional right you insist on reaches up until the time of birth, or what?” White asked
  “… The Constitution, as I see it, gives protection to people after birth,” she offered.
  Douglas then turned the questioning back to the issue they were supposed to be considering, the federal jurisdiction question, and Weddington’s time soon lapsed.
  When Assistant Attorney General of Texas, Jay Floyd, began presenting the state’s case, Marshall returned to the issue of abortion. When, he inquired, does an unborn fetus come to have full constitutional rights?
  “At any time, Mr. Justice; we make no distinction …” Floyd replied. “There is life from the moment of impregnation.”
  “And do you have any scientific data to support that?” Marshall asked.
  Well, we begin, Mr. Justice, in our brief with the development of the human embryo, carrying it through to the development of the fetus, from about seven to nine days after conception” Floyd answered.
  “Well, what about six days?” Marshall asked, eliciting a mild chuckle from the audience.
  • pp.265-266

• [A]lthough no right to privacy was explicitly stated in the Constitution, it was implied form a number of the Amendments. They had ruled that Connecticut could not prohibit married couples from using birth-control devices. Abortion advocates wanted that constitutional right to privacy extended to abortion.
  Stewart thought that the abortion advocates’ argument was too drastic. He had dissented from the 1965 decision, and he was reluctant to renounce his position. It was simply unnecessary for the Court to create another new constitutionally based right.
  In a case the previous year (U.S. v. Vuitch), when the Court had upheld restrictions on abortion in the District of Columbia, Douglas had argued in dissent that a physician’s judgment on abortion was a professional judgment that should not be second-guessed. Maybe this was the approach.
  Stewart thought he could expand Douglas’s argument to show that some anti-abortion statutes inhibited a doctor’s ability to exercise his best judgment Since a state-licensed doctor was a professional, the la should not interfere with his judgment on behalf of his patient. On that theory, Stewart could vote to knock out the Georgia law-which required that abortions be approved by two doctors and a hospital committee-without creating an explicit constitutional right to abortion. But he did not want to be the one to raise this issue in conference.
  Douglas had presented this rationale the year before. Since he was the Justice most likely to point out any inconsistency by Stewart with his past positions, one of Stewart’s clerks went to Douglas’s chambers. Stewart was considering voting against the Georgia abortion law, he told one of Douglas’s clerks. If Douglas were to resurrect his reasoning, it might help.

• Douglas had long wanted the Court to face the abortion issue head on. . . . Douglas realized, however, that a majority of his colleagues were not likely to give such a sweeping reading to the Constitution on this increasingly volatile issue. He knew also that the two cases now before the Court [Roe v. Wade and Doe v. Bolton] did not signal any sudden willingness on the part of the Court to grapple with the brad question of abortions. They had been taken only to determine whether to expand a series of recent rulings limiting the intervention of federal courts in state court proceedings. Could women and doctors who felt that state court proceedings. Could women and doctors who felt that state prosecutions for abortions violated their constitutional rights, go into federal courts to stop the state? And could they go directly into federal courts even before going through all possible appeals in the state court system? Douglas knew the Chief wanted to say no to both these jurisdiction questions. He knew the Chief hoped to use these two cases to reduce the number of federal court cases brought by activist attorneys. The two abortion cases were not to be argued primarily about abortion rights, but about jurisdiction. Douglas was doubly discouraged, believing that his side was also going to lose on the Jurisdiction issue.

“Roes Race: The Supreme Court, Population Control, and Reproductive Justice” (2013)

Mary Ziegler, “Roes Race: The Supreme Court, Population Control, and Reproductive Justice”, Yale Journal of Law and Feminism, Volume 25, Issue 1, 2013

• Notwithstanding the centrality of race to abortion politics, there has been no meaningful history of the racial politics of abortion that produced or followed Roe v. Wade.
  • p.1

• But what was the role of Roe in the racial politics of abortion in the 1970s? Although there is an impressive body of work on the histories of the abortion-legalization and population movements, leading scholars have not adequately addressed this question. 9 This Article works to close this gap in the abortion discussion. By drawing on extensive archival research, the Article offers the first comprehensive history of the racial politics leading up to and immediately following Roe. Roe came down at a time when the abortion-rights movement was closely tied to the population-control cause.
  • p.4

• [C]urrent accounts of the impact of Roe on feminist activists tell only part of a more complex story. By reinterpreting Roe, feminists created new opportunities to reshape the racial politics of abortion. This Article argues that by defending their own understanding of the opinion against anti- abortion attacks, feminists were able to redefine abortion as a right that belonged to women irrespective of its political consequences.
  • p.5

• For the most part, Roe made invisible politically powerful concerns about abortion, racism, population control, crime, and environmental decline. Roe presented a medical, rights-based framework as a way of avoiding the more explosive questions in abortion politics.
  • p.8

• Amicus curiae briefs in Roe made questions of race, population control, and race genocide central to debate about the case. Initially, when the Court conferenced the case in December 1971, Justices William 0. Douglas and Thurgood Marshall raised concerns about whether existing abortion restrictions denied "equal protection by discriminating against the poor." By the time Justice Harry Blackmun drafted the final version of Roe, however, questions of race and population control had receded into the background of the opinion. Significantly, Blackmun described the framework of Roe-one based on constitutional rights and the history of the medical profession-as a way of avoiding the more emotional questions surrounding race and abortion.
  • pp.30-31

• As David Garrow has shown, the issues of race and poverty did come up during the Court's first conference of Roe v. Wade and Doe v. Bolton.' 99 Roe involved a Texas statute that prohibited all abortions but those necessary to save the life of the mother. By contrast, Doe involved a statute patterned on the American Legal Institute's ("ALI") model reform: the statute allowed abortions subject to particular restrictions, requiring, among other things, several diagnoses by licensed physicians.
  During the conference, the Justices generally favored striking down the Texas law but found the constitutionality of the Georgia statute to be a closer question. Warren Burger, who led off voting on the Georgia measure, stated that it was constitutional. In discussing Doe, William Douglas, the next to vote, raised questions about the practical operation of the Georgia statute, asking: "Is it weighted on [the] side of only those who can afford this? What about the poor?" Thurgood Marshall similarly expressed concern about the impact of the Georgia statute on women in rural areas where "there [were] no negro doctors." Although there was some discussion of whether the Court ought to remand for lower court findings as to how the statute affected poor, non-white women, it ultimately did not. Just the same, Douglas and Marshall's comments revealed a doctrinal path the Court could have followed in Roe or Doe if it had wanted to address the question of race, poverty, and abortion. Under the Equal Protection Clause, the Court could have asked whether facially neutral statutes, like the ALI model, had an impermissibly discriminatory impact on poor, non-white women. Assuming that there was some constitutional right or liberty interest protecting the abortion decision, unequal access to abortion services might have posed an equal-protection problem.
  • p.31

• Between December 1971 and October 1972, when the cases were reargued, amicus briefs brought different but equally explosive racial arguments to the fore. No prominent civil-rights or black-power organizations participated in amicus advocacy in Roe, but Planned Parenthood, NOW, and other abortion-rights organizations joined amicus briefs arguing that abortion bans had undesirable social consequences, leading to the births of antisocial, poor, and unwanted children who depended on government services. Planned Parenthood, for example, cited a study of children born to women who had unsuccessfully sought abortions in Sweden. The study showed that "many more of the unwanted children than control children . . . registered more often in psychiatric services, . . . were more often registered for antisocial and criminal behavior, ... [and] got public assistance more often."
  Relying on the same study, an amicus brief joined by several women's organizations, including NOW, asserted that "[i]n addition to the effect of the unwanted pregnancy upon the mother and upon the unwanted children, those unwanted children who are economically or emotionally harmed transmit their psychosocial pathology to succeeding generations." The brief stressed "concrete evidence of, the direct cost in alcoholism, drunkenness, crime, and welfare costs" of existing abortion laws.
  Abortion opponents responded to these contentions partly by playing up the concerns about race genocide expressed by some in the black power movement. For example, Women for the Unborn, a prominent New York anti-abortion group, argued:
  The easy solution of abortion discourages more constructive solutions . . . . Such a fear appears to lie behind the opposition to abortion on demand within the black community. Despite assurances by abortion advocates, many members of the black community seem to suspect that numerous abortion clinics in ghetto areas could end up as the white man's solution to the problems of poverty and race.
  While not explicitly acknowledging these concerns, Planned Parenthood's amicus brief did stress that abortion bans disproportionately harmed poor women, who lacked access to adequate contraceptive services and who might try self-abortion "or may turn to the quack abortionist, and serious injury or even death may result from either course."
  • pp.31-32

• Since Roe was the lead opinion, Doe offered little in the way of novel constitutional analysis, instead applying the trimester framework set forth in Roe. Significantly, Doe made no mention of the equal-protection concerns raised by Justices Douglas and Marshall during the conference of the case.
  • p.33

• [J]ustice Blackmun's extensive research at the Mayo Clinic over the summer of 1972 convinced him to rely on the history of medical attitudes toward abortion in drafting Roe. As importantly, the final draft of Roe relied not on the Equal Protection Clause but rather on a privacy right related to interests in procreation, marriage, and contraception already recognized by the Court.
  Blackmun seemed to believe that the framing of abortion as a medical matter and a privacy right would minimize the controversy that would greet the opinion. In January 1973, in order to achieve this goal, he drafted a proposed announcement of the decision, acknowledging the complexity of the issue while stressing that "abortion is essentially a medical decision." The final draft of Roe more explicitly used Blackmun's framing of the abortion right as a way of avoiding the controversy surrounding abortion in general and the racial politics of abortion in particular[.]
  • p.33

• Roe acknowledged powerful arguments about race that had informed debate inside and outside of the Court, but the justices made no other reference to concerns about race, poverty, abortion access, or equal protection. Indeed, a few years later, in Maher v. Roe (1977) and Harrisv. McRae (1981), the Court upheld laws denying public funding for abortion, rendering seemingly irrelevant any constitutional claim that abortion restrictions disproportionately impacted poor women.
  By describing abortion as a medical matter or a private decision belonging to the woman and her doctor, the Roe Court hoped to set itself above the political fray surrounding abortion and race. This choice proved to be consequential. On the one hand, by neglecting questions involving poor, non-white women's lack of access to reproductive health care, Roe set the stage for later opinions that held that abortion funding bans did not violate the Constitution. Within a few years, Maher and Harris would translate Roe's silence on the questions of race and access to care into a conclusion that the abortion right protected women only from undue burdens on the ability to choose abortion rather than guaranteeing them access to the procedure.
  • pp.34-35

• Roe's relative silence on the issues of race and population control made the holding of the opinion an ideal symbol for feminists seeking to redefine the abortion right. Because Roe framed abortion as a right belonging at least partly to women, feminists reinterpreted the decision, arguing that it recognized that abortion mattered because of its intrinsic importance to women rather than because of any desirable impact legal abortion would have on the environment, population growth, welfare costs or crime.
  • p.35

• Advocates defending Roe, much like the decision itself, focused on claims involving constitutional rights. Fighting for Roe meant downplaying arguments about population control and highlighting and developing the kinds of claims advanced by the Court.
  • p.40

See also

• Abortion in the United States
• Freedom
• Privacy
• Texas Heartbeat act
• United States anti-abortion movement
• United States abortion-rights movement

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