Roe v. Wade

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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 pregnant woman's liberty to choose to have an abortion without excessive government restriction.

On June 24, 2022, the Supreme Court overruled Roe in Dobbs v. Jackson Women's Health Organization on the grounds that the substantive right to abortion was not "deeply rooted in this Nation's history or tradition", nor considered a right when the Due Process Clause was ratified in 1868, and was unknown in U.S. law until Roe. This view was disputed by some legal historians and criticized by the dissenting opinion, which argued that many other rights—contraception, interracial marriage, and same-sex marriage—did not exist when the Due Process Clause was ratified in 1868, and thus were unconstitutional by the Dobbs majority's logic.

Quotes[edit]

Majority[edit]

  • 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”
  • 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.
  • 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.
  • ”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[edit]

  • 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.
  • 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.

Dissenting[edit]

  • [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)
  • It is true that in “Griswold” the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. 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.
    • p. 453.
  • [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.
  • 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[edit]

  • 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.
  • [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.
  • [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.
  • 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).
  • 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.
  • 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.
  • "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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.’”
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • [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.
  • 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.
  • 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.”
  • 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).
  • 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.
  • 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.
  • 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.
  • 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.”
  • 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.
  • 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.
  • 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.
  • 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).
  • 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.
  • 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.
  • 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.
  • 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."
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • Thus, in one bold, cataclysmic move the Court undid about a century of legislative action. It swept away every abortion law in the country.
  • 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.
  • 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.
  • "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."
  • 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.
  • 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.
  • (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.

(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.

  • 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."
  • 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.
  • 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.
  • 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
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.”
  • 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.
  • 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).
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.”
  • 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.
  • 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."
  • 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.
  • 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.
  • 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.
  • 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.
  • “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.
  • 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.
  • 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.”
  • 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.
  • [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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • "[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."
  • 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.
  • 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.
  • 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.
  • 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.)
  • 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
  • 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.”
  • 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.”
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.

  • 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.
  • 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.
  • 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.”
  • 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.
  • 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.
  • 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.
  • “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).
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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”.
  • "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.”

"Argument transcript for No. 19-1392"[edit]

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)[edit]

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"[edit]

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)[edit]

“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)[edit]

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)[edit]

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)[edit]

“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)[edit]

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 fo th rhetorical force of Justice Blackmun’s listing og 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)[edit]

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)[edit]

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”[edit]

“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)[edit]

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.[edit]

  • 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 commonlaw, 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.
  • 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?
  • 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"[edit]

"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)[edit]

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)[edit]

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)[edit]

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)[edit]

“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)[edit]

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)[edit]

“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)[edit]

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)[edit]

“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)[edit]

  • 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)[edit]

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)[edit]

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)[edit]

“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)[edit]

“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 lws. 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 culd 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 McCorey 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 Weddingtons 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. Wedddington 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)[edit]

  • 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)[edit]

(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)[edit]

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)[edit]

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)[edit]

“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)[edit]

“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)[edit]

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)[edit]

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)[edit]

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”[edit]

“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)”[edit]

“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).
  • 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.
  • 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).
  • 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.
  • 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.
  • 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.
  • (“[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)).

The "Right" to an Abortion, the Scope of Fourteenth Amendment Personhood, and the Supreme Court's Birth Requirement (1979)[edit]

"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

“Abortion Legalization and Child Living Circumstances: Who is the "Marginal Child?"” (May 1997)[edit]

“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)[edit]

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)[edit]

  • 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.
  • 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)[edit]

“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)[edit]

“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)[edit]

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)[edit]

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)[edit]

“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)[edit]

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)[edit]

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)[edit]

“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 s