United States Case Law

"In the early 1970s, most Protestant denominations did not share the Catholic Church’s view of abortion. As we have seen, mainline Protestant groups approved of liberalizing access to abortion; some approved repeal, while others endorsed variants of the “reform” position, advocating regulation on the “therapeutic model.” In this period, conservative evangelical groups did not view abortion as a categorical wrong. Even after Roe, in June 1973, Southern Baptist Convention President Owen Cooper criticized the Supreme Court for decisions liberalizing abortion—and banning capital punishment—and then proceeded to observe that the Southern Baptists would support abortions “where it clearly serves the best interests of society.” His view of abortion was far from absolute, and expressed in secular, not religious, terms."

"In the immediate aftermath of Roe, organized opposition to the decision was still carried by the National Right to Life Committee and the Catholic Church. The National Right to Life Committee began mobilizing in support of a constitutional amendment that would overturn Roe and constitutionalize an embryo’s/ fetus’s right to life, thereby requiring all states to recriminalize abortion. By 1975, the National Conference of Catholic Bishops had promulgated a Pastoral Plan for Pro-Life Activities that declared that “the decisions of the United States Supreme Court (January 22, 1973) violate the moral order, and have disrupted the legal process which previously attempted to safeguard the rights of children.” The plan urged “[p]assage of a constitutional amendment providing protection for the unborn child to the maximum degree possible,” and “[p]assage of federal and state laws and adoption of administrative policies that will restrict the practice of abortion as much as possible.” During the years after Roe, opponents were unable to muster broad-based support for overturning the decision and requiring abortion’s recriminalization. Many Americans supported the right recognized in Roe, some quite passionately. Others believed that abortion should be decriminalized but criticized the Court for deciding a question that might have been left to the political process. Those who believed the question should have been left to the legislature did not support a human life amendment constitutionalizing prohibitions on abortion of the kind the right-to-life movement was then advocating. Advocates of a human life amendment could not find the support they needed, even among religious leaders."

"When Roe was handed down, the family-values movement that would mobilize against the decision and ultimately carry Ronald Reagan to national office in 1980 had already begun to take shape, but it had not yet crystallized. That coalition did not form in spontaneous response to Roe but was instead built with the help of strategists for the Republican Party, including many brilliant Catholic conservatives. In the process, opposition to abortion as murder was married to a variety of socially conservative causes, accelerating the process of party realignment that had begun before Roe during the Nixon administration. When conservatives of the New Right began to assemble a pan-Christian coalition against Roe in the late 1970s, the crusade against Roe would proceed under the banner of “pro-life” and “pro-family.” Phyllis Schlafly’s Stop ERA organization associated the Equal Rights Amendment with abortion and gay marriage, using this frame to mobilize opposition to the amendment’s ratification in state houses across the country. During the mid-1970s, funding battles in Congress provided a lower-stakes arena in which to forge new alliances and erode support for the abortion right. By the late 1970s, Richard Viguerie and Paul Weyrich—architects of a more conservative Republican Party—were approaching such Protestant evangelicals as the Reverend Jerry Falwell and helping them to see in the abortion issue a question that could create a pan-Christian movement united against “secular humanism” and for “family values.” By 1980, the Christian Harvest Times was denouncing abortion in its “Special Report on Secular Humanism vs. Christianity”: “To understand humanism is to understand women’s liberation, the ERA, gay rights, children’s rights, abortion, sex education, the ‘new’ morality, evolution, values clarification, situational ethics, the loss of patriotism, and many of the other problems that are tearing America apart today.” In this way, a new relationship was emerging among Protestant evangelicals, the Catholic right-to-life movement, and the ascendant conservatives of the New Right. Increasingly lost in this transformation was an earlier Catholic association of a pro-life position with liberal ideals of social justice; forged was an increasingly tight association of pro-life with pro-family politics."

"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?"

"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."

"The reframing of abortion that would take hold over the course of the 1970s had only incrementally begun at the time the Court handed down Roe. (The first justice to join the Court after Roe was John Paul Stevens, nominated in December 1975. His views on abortion were unknown, yet at his Senate confirmation hearing, he was not asked a single question about abortion.)"

"The Court’s decision in Roe was written by Justice Blackmun, whom President Nixon appointed to the Supreme Court in 1970, and supported by other of Nixon’s conservative appointees, including Lewis Powell, who during the Court’s deliberations actually advocated lengthening the time period in which women’s abortion decision was protected—from the end of the first trimester to the end of the second. But over the course of the 1970s, prominent Republicans shifted positions on abortion, acting on alignments and framings that were already in evidence by the 1972 election. By the decade’s end, conservatives of the New Right—led by Ronald Reagan, who, in the late 1960s, had signed California’s legislation liberalizing abortion—urged fundamentalist Christians to make common cause with Catholics in opposition to abortion and in support of family values. They attacked Roe as a threat to life and family and as a symbol of judicial overreaching. Republican Party platforms began regularly to support “the appointment of judges who respect traditional family values and the sanctity of innocent human life.” With Republican presidents appointing justices who might be counted on to oppose Roe, judicial support for the decision narrowed, and by the late 1980s, Roe looked vulnerable to outright reversal. But the women’s movement continued energetically to mobilize in support of the decision, and in 1987 it helped defeat the nomination of Robert Bork, a prominent critic of the Court’s privacy decisions. Ensuing Supreme Court appointments by Presidents Reagan and Bush seemed to provide sufficient votes to overturn Roe. And yet, in 1992—during a presidential campaign in which the abortion right was a burning issue—the Supreme Court decided Planned Parenthood v. Casey, a case that both reaffirmed and narrowed Roe."

"Through sources in our book and in this paper, we demonstrate that the abortion issue was entangled in a struggle over political party alignment before the Supreme Court decided Roe. As repeal of abortion laws became an issue that Catholics opposed and feminists supported, strategists for the Republican Party began to employ arguments about abortion in the campaign for the 1972 presidential election. We show how, in the several years before Roe, strategists for the Republican Party encouraged President Nixon to begin attacking abortion as a way (1) to attract Catholic voters from their historic alignment with the Democratic Party and (2) to attract social conservatives, by tarring George McGovern, Nixon’s opponent in the 1972 presidential election, as a radical for his associations with youth movements, including feminists seeking ratification of the Equal Rights Amendment (ERA) and “abortion on demand.”16 In reconstructing this episode, we show how strategists for the national political parties had interests in the abortion issue that diverged from single-issue movement actors, and we document some of the bridging narratives that party strategists used to connect the abortion conflict to other controversies."

"This is a compelling story. We will have a better politics—civil, respectful, compromising—which will reassert itself as soon as the Court withdraws and leaves democracy to work itself pure. Had the Court never enforced its (mistaken?) understanding of the Constitution, we would have civic peace. The power of this story is its power as a story. What is often missing is the kind of fact-based analysis of competing explanations for the abortion conflict that would support it."

"Roe’s holding fused old and new legal frameworks. By protecting a woman’s decision whether to bear a child until the period of fetal viability, the Court recognized as constitutional a framework at least partly resembling abortion “repeal.” Under Roe, government could no longer ban abortion or make access to the procedure conditional on ALI-type indications (for example, rape, maternal health) in the period of pregnancy before viability. But Roe did not altogether bar government from regulating abortion. To the contrary, Roe gave constitutional sanction to government interests in regulating abortion that grow with a pregnancy; it vindicated these interests alongside women’s right to have an abortion through the trimester framework, which allowed government to restrict abortion in the interest of protecting potential life at the point of fetal viability. In the years since Roe, the Court has allowed government more leeway to regulate abortion to express its interest in protecting potential life throughout pregnancy. Roe’s reasoning fused old and new justifications for decriminalizing abortion. Roe indirectly reflected the abortion-rights claims of the women’s movement, recognizing that laws that criminalized abortion inflict constitutionally significant harms on women, and not doctors only. But Roe expressed those harms in public health-inflected language. The decision barred government from coercing women to bear children, but its reasoning did not audibly express the feminist claim (1) that a woman has dignitary interests in making her own decision about whether to bear a child, or (2) that a woman needs the ability to control the timing of motherhood in order to negotiate institutional arrangements that exclude caregivers from participation in the workplace and other arenas of civic life."

"Both the right and regulatory interest that Roe recognized emerged from more than a decade of searching public conversation about abortion. Reasoning about the meaning of constitutional precedent in the midst of that conversation, the justices concluded that the right to privacy recognized in Griswold covered not only contraception but abortion as well. The Court conducted a lengthy analysis of historical precedent before declaring that the Constitution protected the abortion decision from state interference until the point of fetal viability. But, in explaining its decision, the Court also invoked or adverted to the judgments of growing numbers of lower courts, the decisions of public authorities such as the Rockefeller Commission that endorsed the legalization of abortion, and measures of popular support for liberalizing access. (In addition to the many briefs in Roe, Justice Blackmun had in his files the papers in Abele v. Markle, Connecticut’s abortion case, and other lower court decisions; documents reflecting the views of organizations such as the American Medical Association and the American Bar Association; and the 1972 Gallup poll reports showing steadily rising support for decriminalization.)"

"Roe justified the abortion right by appealing to Griswold and earlier decisions that protected the right to make decisions about family life free from state interference. In extending this right to privacy to encompass the abortion decision, Roe reasoned about abortion in terms drawn from the reform debates of the early 1960s, emphasizing the importance of protecting a doctor’s autonomy as much as that of his patients. Women’s advocacy helped establish women as constitutional rights holders who are entitled to make decisions about sex and parenting without control by the state—but Roe barely acknowledged that such claims were circulating in public debate. Instead, the Court explained and justified its holding in lan- guage that depicted doctors as the responsible and authoritative decisionmakers, with women as patients subject to their guidance."

"In presenting the Court’s decision throughout his oral announcement as moderate, balanced, and bounded, Justice Blackmun was, no doubt, anticipating and responding to criticism of the Court’s decision."

"On January 22, 1973, the Supreme Court issued its decisions in Roe v. Wade and Doe v. Bolton. Following the Court’s custom, Justice Harry A. Blackmun, as the author of the opinions, read a summary from the bench. Known in Supreme Court parlance as “hand-downs,” these summaries are not casual documents. While they are not formally part of the Court’s published opinion, they reflect the author’s view of what matters most about the decision. The marked-up draft in Blackmun’s file shows that he labored over the hand-down. In presenting Roe, Blackmun strives to locate the Court’s decision in history as well as in contemporary public opinion and to demonstrate how the constitutional framework"

"The meanings associated with the phrase “abortion on demand” were in flux at the time Roe was handed down. As we saw in Part I, the feminist movement used the phrase in seeking abortion rights during the movement’s Strike for Equality in 1970 [see page 44, the illustration of the flyer]. The feminist claim for abortion “on demand” sought repeal of abortion restrictions; the claim challenged as paternalistic new abortion-reform laws based on the “therapeutic” model. Those laws gave doctors the power to decide whether a woman had a sufficient reason to have an abortion, and so reduced women to supplicants of men and the state. In claiming abortion on demand, feminists asserted that women were fully competent to decide for themselves whether to continue a pregnancy, and should not have such a question decided by a stranger, even a medical professional. But women’s assertion of decisional authority was disturbing to many. What feminists understood as a question of dignity and self-governance their critics saw as an invitation to self-indulgence. Critics of the abortion-repeal movement argued that decriminalization would allow women access to abortion for insufficient reasons, and some suggested that liberalizing access to abortion would encourage moral laxity—sexual license, abdication of maternal responsibility, and a general breakdown of self- and social control. Thus, where feminists asserted that abortion’s criminalization was wrongful because it was insufficiently respectful of women, their critics expressed doubt that women’s judgment in matters of abortion was respect-worthy. Backlash came to torque and flip the very meaning of “abortion on demand.” In the early 1970s, the meaning of the phrase remained unsettled as feminist and antifeminist usages circulated. In April 1971, President Nixon invoked the phrase in his official statement repudiating the Pentagon’s liberal policy that permitted servicewomen to obtain abortions in any military hospital. [see annotation on p. 198, brief in the Struck case.] “Unrestricted abortion policies, or abortion on demand, I cannot square with my personal belief in the sanctity of human life,” the president said. Whether or not Justice Blackmun was aware of the original meaning of the phrase, it is highly likely that he was aware of the negative meaning that “abortion on demand” was then acquiring. In striking this original concluding paragraph of the hand-down, Justice Blackmun appears to have decided that he would address the concerns of Chief Justice Burger and others less contentiously, and emphasize Roe’s moderation in language that distanced the Court from the claims of both abortion rights advocates and their critics."

"In representing the abortion decision as one that a woman made under the guidance of her doctor, the Court figured the doctor as the agent responsible for abortion decisions and the criteria guiding those decisions as medical. This form of talk in Roe reflected modes of reasoning current at the time of the opinion."

"A former president of the American Bar Association, the very embodiment of the legal establishment, Powell proved not only a surprisingly strong supporter of the right to abortion but also a strategic ally who pushed Blackmun to extend until later in pregnancy the time period during which women’s abortion decisions received constitutional protection. Any fears the justices may have had that they were embarking on a radical course would have been allayed by Powell’s presence and performance."

"Justice Blackmun’s files also contained articles from the American Journal of Public Health (several of which are excerpted in parts I and II), depicting abortion reform as inevitable and highly desirable. This was not the only voice of the medical community the Court heard; among the Roe v. Wade briefs was a strongly worded one from dissenting obstetricians and gynecologists arguing for upholding the Texas law (see page 295). Further, the justices may well have viewed organized opposition to the legalization of abortion as based almost exclusively on Catholic religious conviction, as it primarily was when Roe v. Wade first arrived on the Court’s docket. The only Catholic justice then sitting on the Supreme Court was William J. Brennan, Jr., a liberal whose full support for an expansive right to abortion may have served to emphasize significant differences of opinion about the criminalization of abortion within the American Catholic community, and so undercut the weight of the Catholic opposition."

"The Supreme Court’s decision reflected the arguments of both parties, as well as many of those contained in the friend-of-the-court briefs filed on both sides. The Court rejected the state’s argument that the fetus was a “person” meriting the same protection under the Constitution as born persons. Nevertheless, the Court found that the state did have an interest in protecting “the potentiality of human life.” Similarly, the Court endeavored to strike a balance in defining the scope of the right to abortion it recognized. The majority reasoned that the right to privacy protected not only the use of contraception, but also a woman’s decision whether to bear a child. Yet, the decision emphasized, this right was not absolute."

"Two years is an unusually long time for a case to remain on the Supreme Court’s docket. As we have already discussed, these were a crucial two years for the meaning of abortion, and it is clear that Roe arrived at the Court’s doorstep in one world and emerged, 27 months later, into another. In October 1970, when the case reached the Supreme Court, New York’s repeal of its abortion law appeared to many people to suggest an inexorable march toward reform. Two years later— during which time 402,100 women, two-thirds of them from out of state, had obtained legal abortions in New York—the Legislature’s attempted repeal of the repeal failed only because of Governor Rockefeller’s veto. In the November 1972 elections, voters in Michigan and North Dakota had defeated proposals to liberalize those states’ abortion laws—and, as we have seen, abortion was one of a constellation of factors playing a role in McGovern’s landslide defeat. In early January 1973, the New York Legislature reconvened in the full expectation of a new effort to recriminalize abortion."

"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."

"As we now turn to the arguments that were formally presented to the Supreme Court in legal briefs, an intriguing question arises: What did the justices perceive of the turmoil over abortion outside their own quiet precincts? Clearly, they knew that they had on their hands “a most sensitive, emotional, and controversial” issue, as Justice Harry A. Blackmun described it when he announced Roe and Doe from the bench (see page 245). Further, as Justice Blackmun observed, the Court knew that “the controversy will continue.” The justices had not been hermetically sealed off in their chambers during the long months in which the cases were pending. They lived in the world as husbands and fathers. They had set the cases for a second argument, a sign that they regarded the cases as something other than routine. It does appear, however, that the justices in the 7-to-2 majority were responding to a consensus among the elites, particularly of the legal and medical professions, that change was appropriate and necessary. They appreciated that the decision would provoke controversy, but decided the case on grounds that they had reason to suppose would find broad public acceptance. Non-legal material in Justice Blackmun’s file included the Gallup Poll from the summer of 1972, reflecting substantial majorities supporting decriminalization, even among Catholics [see page 207.] The file also contained a series of articles from the Atlanta Journal-Constitution, passed on to Justice Blackmun by Justice Potter Stewart. In these articles, prominently displayed in the newspaper during April 1972, an Atlanta physician, Robert A. Hatcher, M.D. asserted that Georgia’s ALI-type reform law had not gone far enough and was not making enough of a difference."

"The Court’s lengthy published opinion in Roe is widely available on the Internet. But Blackmun’s brief statement exists only as typescript in the justice’s files at the Library of Congress. A personal judicial pronouncement of this kind shows how the author of an opinion wants the world to understand what the Court has done."

"Roe’s holding and its reasoning reflected dominant understandings about abortion of the time. In striking down laws that banned abortion or allowed it in only a very few circumstances, Roe decriminalized abortion along the lines that the feminists and others advocated. But the Court gave only blurry and indistinct expression to the values feminists argued were at stake in protecting women’s choices. Something similar might be said of the justification the Court offered for abortion restrictions. The Court gave constitutional approval to a government interest in regulating abortion to protect potential life, but only barely explained or justified this interest, leaving unstated how this regulatory interest related to the old statutes criminalizing abortion or the claims of the contemporary anti- abortion movement."

"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."

"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."

"During the years before January 22, 1973, the day on which the Supreme Court decided Roe v. Wade and proclaimed that the Constitution protected a woman’s right to decide whether to bring a pregnancy to term, Americans conducted a vigorous debate about abortion’s morality and meaning. It is obvious today that the Supreme Court’s decision did not end this debate. Neither, of course, did the Court start it—although public discussion of Roe v. Wade implies not infrequently that it did."

"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."

"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."

"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."

"By declaring unconstitutional laws that criminalized abortion in states across the country, the decision in Roe v. Wade also swept away much of the collective memory of what had gone before. Records of court cases that had taken years to build were now rendered irrelevant, and transcripts of testimony once painstakingly compiled were carelessly misfiled or discarded. And beyond the loss of paper records, the Supreme Court decision itself proved a distorting lens through which to look back on what had preceded it."

"The years following the Roe v. Wade decision have been very difficult, in a number of respects, but my life was never easy."

"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?"

"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."

"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."

"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 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”."

"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."

"[T]he fact that neither women nor fetuses figured very prominently in Roe v. Wade makes it plausible to assume that feminist voices and right-to-life voices were simply missing, both from the arguments presented to the Supreme Court and from the public conversation. In fact, feminist and right-to-life positions were passionately expressed in public debate and in friend-of-the-court briefs filed in Roe. Yet, the Supreme Court issued a decision that appeared mainly responsive to the arguments of the medical community. In page after page, Roe reasoned from medical science, and in its main holding affirmed the autonomy of doctors to act in what they believed to be the best interest of their patients. The organized medical profession, which had spurred the criminalization of abortion a century earlier, had come only lately to view the hundreds of thousands of illegal abortions performed every year as a public health problem of urgent dimensions."

"If Roe conformed to then-dominant modes of reasoning about abortion, at a time when the Gallup poll reported the belief of two-thirds of Americans that the abortion decision should be left to a woman and her doctor, how are we to understand the outcry against the decision that steadily mounted over the 1970s? Our review of the debate before Roe reveals several factors contributing to the conflict over abortion that were in play well before the Court issued its decision in January 1973, and identifies still other developments that intensified the conflict much later in the decade."

"Cf. FRANK, supra note 164, at 121 (invoking “the great abortion controversy, which mobilizes millions but which cannot be put to rest without a supreme Court decision overturning Roe v. Wade”)."

"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."

"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))."

"(“[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)."

"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.'"

"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."

"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."

"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."

"[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."

"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)."