Women

"Unlike the plurality, I do not understand these viability testing requirements to conflict with any of the Court's past decisions concerning state regulation of abortion. Therefore, there is no necessity to accept the State's invitation to reexamine the constitutional validity of Roe v. Wade, 410 U. S. 113 (1973). Where there is no need to decide a constitutional question, it is a venerable principle of this Court's adjudicatory processes not to do so, for "[t]he Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it.'" Ashwander v. TVA, 297 U. S. 288, 297 U. S. 346 (1936) (Brandeis, J., concurring), quoting Liverpool, New York and Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 113 U. S. 39 (1885). Neither will it generally "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." 297 U.S. at 297 U. S. 347. Quite simply, "[i]t is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case." Burton v. United States, 196 U. S. 283, 196 U. S. 295 (1905). The Court today has accepted the State's every interpretation of its abortion statute, and has upheld, under our existing precedents, every provision of that statute which is properly before us. Precisely for this reason, reconsideration of Roe falls not into any "good-cause exception" to this "fundamental rule of judicial restraint. . . ." Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 467 U. S. 157 (1984). See post at 492 U. S. 532-533 (SCALIA, J., concurring in part and concurring in judgment). When the constitutional invalidity of a State's abortion statute actually turns on the constitutional validity of Roe v. Wade, there will be time enough to reexamine Roe. And to do so carefully."

"While Roe, 410 U.S. at 410 U. S. 162, recognized the State's interest in protecting potential human life as "important and legitimate," it also limited state involvement in second-trimester abortions to protecting maternal health, id. at 410 U. S. 164, and allowed States to regulate or proscribe abortions to protect the unborn child only after viability, id. at 410 U. S. 165. Since the tests in question regulate the physician's discretion in determining the viability of the fetus, § 188.029 conflicts with language in Colautti v. Franklin, 439 U. S. 379, 439 U. S. 388-389, stating that the viability determination is, and must be, a matter for the responsible attending physician's judgment. And, in light of District Court findings that the tests increase the expenses of abortion, their validity may also be questioned under Akron, 462 U.S. at 462 U. S. 434-435, which held that a requirement that second-trimester abortions be performed in hospitals was invalid because it substantially increased the expenses of those procedures. Pp. 492 U. S. 516-517."

"2. The restrictions in §§ 188.210 and 188.215 of the Missouri statute on the use of public employees and facilities for the performance or assistance of nontherapeutic abortions do not contravene this Court's abortion decisions. The Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government may not deprive the individual. DeShaney v. Winnebago County Dept. of Social Services, 489 U. S. 189, 489 U. S. 196. Thus, in Maher v. Roe, supra; Poelker v. Doe, 432 U. S. 519; and Harris v. McRae, 448 U. S. 297, this Court upheld governmental regulations withholding public funds for nontherapeutic abortions but allowing payments for medical services related to childbirth, recognizing that a government's decision to favor childbirth over abortion through the allocation of public funds does not violate Roe v. Wade."

"(d) The doubt cast on the Missouri statute by these cases is not so much a flaw in the statute as it is a reflection of the fact that Roe's rigid trimester analysis has proved to be unsound in principle and unworkable in practice. In such circumstances, this Court does not refrain from reconsidering prior constitutional rulings, notwithstanding stare decisis. E.g., Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528. The Roe framework is hardly consistent with the notion of a Constitution like ours that is cast in general terms and usually speaks in general principles. The framework's key elements -- trimesters and viability -- are not found in the Constitution's text, and, since the bounds of the inquiry are essentially indeterminate, the result has been a web of legal rules that have become increasingly intricate, resembling a code of regulations, rather than a body of constitutional doctrine. There is also no reason why the State's compelling interest in protecting potential human life should not extend throughout pregnancy, rather than coming into existence only at the point of viability. Thus, the Roe trimester framework should be abandoned. Pp. 492 U. S. 517-520. (e) There is no merit to JUSTICE BLACKMUN's contention that the Court should join in a "great issues" debate as to whether the Constitution includes an "unenumerated" general right to privacy as recognized in cases such as Griswold v. Connecticut, 381 U. S. 479. Unlike Roe, Griswold did not purport to adopt a whole framework, complete with detailed rules and distinctions, to govern the cases in which the asserted liberty interest would apply. The Roe framework sought to deal with areas of medical practice traditionally left to the States, and to balance once and for all, by reference only to the calendar, the State's interest in protecting potential human life against the claims of a pregnant woman to decide whether or not to abort. The Court's experience in applying Roe in later cases suggests that there is wisdom in not necessarily attempting to elaborate the differences between a "fundamental right" to an abortion, Akron, supra, at 462 U. S. 420, n. 1, a "limited fundamental constitutional right," post at 492 U. S. 555, or a liberty interest protected by the Due Process Clause. Moreover, although this decision will undoubtedly allow more governmental regulation of abortion than was permissible before, the goal of constitutional adjudication is not to remove inexorably "politically devisive" issues from the ambit of the legislative process, but is, rather, to hold true the balance between that which the Constitution puts beyond the reach of the democratic process and that which it does not. Furthermore, the suggestion that legislative bodies, in a Nation where more than half the population is female, will treat this decision as an invitation to enact abortion laws reminiscent of the dark ages misreads the decision and does scant justice to those who serve in such bodies and the people who elect them. Pp. 492 U. S. 520-521."

"Appellees, state-employed health professionals and private nonprofit corporations providing abortion services, brought suit in the District Court for declaratory and injunctive relief challenging the constitutionality of a Missouri statute regulating the performance of abortions. The statute, inter alia: (1) sets forth "findings" in its preamble that "[t]he life of each human being begins at conception," and that "unborn children have protectable interests in life, health, and wellbeing," §§ 1.205.1(1), (2), and requires that all state laws be interpreted to provide unborn children with the same rights enjoyed by other persons, subject to the Federal Constitution and this Court's precedents, § 1.205.2; (2) specifies that a physician, prior to performing an abortion on any woman whom he has reason to believe is 20 or more weeks pregnant, must ascertain whether the fetus is "viable" by performing "such medical examinations and tests as are necessary to make a finding of [the fetus'] gestational age, weight, and lung maturity," § 188.029; (3) prohibits the use of public employees and facilities to perform or assist abortions not necessary to save the mother's life, §§ 188.210, 188.215; and (4) makes it unlawful to use public funds, employees, or facilities for the purpose of "encouraging or counseling" a woman to have an abortion not necessary to save her life, §§ 188.205, 188.210, 188.215. The District Court struck down each of the above provisions, among others, and enjoined their enforcement. The Court of Appeals affirmed, ruling that the provisions in question violated this Court's decisions in Roe v. Wade, 410 U. S. 113, and subsequent cases."

"In Roe v. Wade and subsequent decisions, the high court allowed states to prohibit abortions after the fetus is able to live outside of the womb, with the following exceptions: States may not prohibit abortions necessary to preserve a woman's life or physical or mental health, and states must allow the attending physician to determine when a woman's health is at risk and when the fetus is viable, without requiring a second doctor's opinion. Despite the court's stipulations, some state bans on late-term abortions violate those requirements, though not all have been enjoined by courts. In all, 36 states prohibit abortions after a certain point in pregnancy. Of those, 23 ban abortions at viability; five ban it in the third trimester; and eight ban the procedure after 24 weeks. In conflict with Roe v. Wade , four of the 36 states permit late-term abortions only to save a woman's life, and four use a narrower health definition. Nine states require a second physician to treat the fetus if it is born alive, and 10 states require a second physician to certify that the abortion is medically necessary."

"THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I, II-A, II-B, and II-C, concluding that: 1. This Court need not pass on the constitutionality of the Missouri statute's preamble. In invalidating the preamble, the Court of Appeals misconceived the meaning of the dictum in Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 462 U. S. 444, that "a State may not adopt one theory of when life begins to justify its regulation of abortions." That statement means only that a State could not "justify" any abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the State's view about when life begins. The preamble does not, by its terms, regulate abortions or any other aspect of appellees' medical practice, and § 1.205.2 can be interpreted to do no more than offer protections to unborn children in tort and probate law, which is permissible under Roe v. Wade, supra, at 410 U. S. 161-162. This Court has emphasized that Roe implies no limitation on a State's authority to make a value judgment favoring childbirth over abortion, Maher v. Roe, 432 U. S. 464, 432 U. S. 474, and the preamble can be read simply to express that sort of value judgment. The extent to which the preamble's language might be used to interpret other state statutes or regulations is something that only the state courts can definitively decide, and, until those courts have applied the preamble to restrict appellees' activities in some concrete way, it is inappropriate for federal courts to address its meaning. Alabama State Federation of Labor v. McAdory, 325 U. S. 450, 325 U. S. 460. Pp. 492 U. S. 504-507."

"JUSTICE SCALIA would reconsider and explicitly overrule Roe v. Wade. Avoiding the Roe question by deciding this case in as narrow a manner as possible is not required by precedent and not justified by policy. To do so is needlessly to prolong this Court's involvement in a field where the answers to the central questions are political, rather than juridical, and thus to make the Court the object of the sort of organized pressure that political institutions in a democracy ought to receive. It is particularly perverse to decide this case as narrowly as possible in order to avoid reading the inexpressibly "broader than was required by the precise facts" structure established by Roe v. Wade. The question of Roe's validity is presented here, inasmuch as § 188.029 constitutes a legislative imposition on the judgment of the physician concerning the point of viability and increases the cost of an abortion. It does palpable harm, if the States can and would eliminate largely unrestricted abortion, skillfully to refrain from telling them so. Pp. 492 U. S. 532-537."

"JUSTICE O'CONNOR's assertion, ante at 492 U. S. 526, that a "fundamental rule of judicial restraint'" requires us to avoid reconsidering Roe, cannot be taken seriously. By finessing Roe we do not, as she suggests, ante at 492 U. S. 526, adhere to the strict and venerable rule that we should avoid "`decid[ing] questions of a constitutional nature.'" We have not disposed of this case on some statutory or procedural ground, but have decided, and could not avoid deciding, whether the Missouri statute meets the requirements of the United States Constitution. The only choice available is whether, in deciding that constitutional question, we should use Roe v. Wade as the benchmark, or something else. What is involved, therefore, is not the rule of avoiding constitutional issues where possible, but the quite separate principle that we will not "`formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.'" Ante at 492 U. S. 526. The latter is a sound general principle, but one often departed from when good reason exists."

"The plurality claims that its treatment of Roe, and a woman's right to decide whether to terminate a pregnancy, "hold[s] true the balance between that which the Constitution puts beyond the reach of the democratic process and that which it does not." Ante at 492 U. S. 521. This is unadulterated nonsense. The plurality's balance matches a lead weight (the State's allegedly compelling interest in fetal life as of the moment of conception) against a feather (a "liberty interest" of the pregnant woman that the plurality barely mentions, much less describes). The plurality's balance -- no balance at all -- places nothing, or virtually nothing, beyond the reach of the democratic process."

"South Dakota's 2006 assault on Roe v. Wade marked a new twist after 33 years in which most states have concentrated on whittling away at the edges of the landmark ruling."

"The U.S. Supreme Court looms large in the history of abortion in the United States, but state capitols from the 1800s to now have been the crucibles of America's evolving laws on a woman's right to end a pregnancy. The initial trendsetter was Massachusetts, which in the mid-1800s became the first state to outlaw abortion, an accepted practice in colonial times. Last year, South Dakota attempted to change history with a strict new ban on abortion geared to challenge the high court's 1973 Roe v. Wade ruling, which established constitutional protections for women seeking an abortion. While the makeup of the Supreme Court is the focus of much of today's political calculations about the future of abortion in America, the role of states would become pivotal if the landmark decision were overturned. Any substantial weakening of Roe v. Wade would trigger an epic battle between "pro-life" and "pro-choice" forces that would be fought in state capitols - and perhaps also in Congress."

"In a 7-to-2 decision, the justices in Roe v. Wade ensured that abortion would be legal in all 50 states. That ruling and subsequent decisions prevent states from outlawing abortion except for late in pregnancy when a fetus can live outside of the womb, and then only if the mother's physical or mental health will not be adversely affected. Still, getting an abortion in some states is difficult. Local laws, culture and politics create widely varying experiences for women seeking to end their pregnancies."

"There have indeed been leaks at the court before, albeit of a different scale. One of them actually was about the case at the heart of today's conversation: In 1973, the original Roe decision was leaked to the press before the court had formally announced it. Jonathan Peters, a media law professor at the University of Georgia, noted in a Twitter thread that there were actually two Roe-related leaks in the 1970s. First, the Washington Post published a story about the court's internal deliberations, including a June 1972 memo from Justice William O. Douglas to his colleagues that was mysteriously leaked. Seven months later, Time magazine published the final decision and vote details just hours before the court was due to announce it — the result of an early scoop and a delayed ruling. A Supreme Court clerk named Larry Hammond told Time staff reporter David Beckwith, a law school acquaintance, that the Roe ruling was coming, according to lawyer and author James Robenalt, who detailed the incident in a Washington Post column on Monday. Hammond gave Beckwith the information "on background," and it was only to be reported once the opinion came down from the court. But the ruling was slightly delayed, and that week's magazine ended up hitting newsstands a few hours too soon."

"In Wade, Blackmun ad used the phrase “attending physician” to describe the doctor who would make the abortion decision. This conjures up an earlier time when patients actually had a personal physician who attended them at bedside both at home and in the hospital, but is certainly an inapt phrase for describing doctors who perform abortion procedures in clinics. Typically the pregnant woman is greeter by a nurse, a social worker, or an abortion counselor. The “medical decision” is made with them. She meets the doctor typically only after she is "prepped and in the stirrups." The physician is more appropriately characterized as a technician in an assembly line than an attending physician. There are certainly exceptions to this practice, but the picture I describe will certainly be familiar to the vast majority of the participants in this example of "deliberated medical judgments related to life and health." Doctors, of course, still use the phrase "attending physician" but with a different meaning. As Victor Fuchs has written of contemporary medical practice, my heart can get a doctor, my liver can get a doctor, my head can get a doctor, but I cannot get a doctor.' The nostalgic image of the doctor-patient relationship is important in Bolton because there the Supreme Court had a great deal to say about the importance of the privacy of the doctor-patient relation- ship. The Court made this privacy seem as sacred to law as the privacy of the marriage bed. We shall see how much respect subsequent courts have had for the privacy of the doctor-patient relationship as cases were decided in the name of privacy."

"Then-Chief Justice Warren Burger was reportedly furious about the leak, demanding a meeting with Time's editors to tell them off. He also sent a letter to the other justices demanding that the leaker be identified and punished, and threatened to subject law clerks to lie-detector tests if no one came forward, Robenalt said. According to Peters, this was also the origin of Burger's "20-second rule," in which any law clerk caught talking to a reporter would be fired in under half a minute. Hammond offered his resignation to his boss, Justice Lewis Powell. But Powell didn't accept it, and instead called Burger to tell him "that Hammond had been double-crossed," writes Robenalt, who interviewed Hammond for his 2015 book about the political and cultural events of January 1973. Burger wasn't quick to forgive the magazine, but accepted Hammond's apology and let him stay on as Powell's clerk. He continued in that role for an additional term before leaving the court to join the Watergate Special Prosecution Force. "The story of Hammond's close call became legend to other clerks on the court at the time and has been passed down as a cautionary tale over time," Robenalt added."

"After Roe v. Wade, states repeatedly tested its boundaries, passing laws that made it difficult for some women to have an abortion. Many state laws were struck down by federal courts, and some appeals made it to the high court. For example, a Missouri law requiring a married woman to get her husband's consent for an abortion was struck down in 1976. A Minnesota law requiring minors to notify both parents before obtaining an abortion was overturned in 1990, because it failed to provide exceptions when parents refuse to consent or cannot be contacted."

"While I am in an I-told-you-so mood, I must recall my bemusement, in Casey, at the joint opinion’s expressed belief that Roe v. Wade had “call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution,” Casey, 505 U.S., at 867, and that the decision in Casey would ratify that happy truce. It seemed to me, quite to the contrary, that “Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since”; and that, “by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption, rather than of any Pax Roeana, that the Court’s new majority decrees.” Id., at 995—996. Today’s decision, that the Constitution of the United States prevents the prohibition of a horrible mode of abortion, will be greeted by a firestorm of criticism–as well it should. I cannot understand why those who acknowledge that, in the opening words of Justice O’Connor’s concurrence, “[t]he issue of abortion is one of the most contentious and controversial in contemporary American society,” ante, at 1, persist in the belief that this Court, armed with neither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it. If only for the sake of its own preservation, the Court should return this matter to the people–where the Constitution, by its silence on the subject, left it–and let them decide, State by State, whether this practice should be allowed. Casey must be overruled."

"For close to two decades after Roe v. Wade, 410 U.S. 113 (1973), the Court gave but slight weight to the interests of the separate States when their legislatures sought to address persisting concerns raised by the existence of a woman’s right to elect an abortion in defined circumstances. When the Court reaffirmed the essential holding of Roe, a central premise was that the States retain a critical and legitimate role in legislating on the subject of abortion, as limited by the woman’s right the Court restated and again guaranteed. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). The political processes of the State are not to be foreclosed from enacting laws to promote the life of the unborn and to ensure respect for all human life and its potential. Id., at 871 (joint opinion of O’Connor, Kennedy, and Souter, JJ.). The State’s constitutional authority is a vital means for citizens to address these grave and serious issues, as they must if we are to progress in knowledge and understanding and in the attainment of some degree of consensus."

"Any discussion of the role of the judiciary in medical decision making in the twentieth century must begin with the abortion decisions: Roe v. Wade and Doe v. Bolton. One aspect of those decisions is relevant to my particular thesis. I quote a crucial sentence from Justice Blackmun’s decision in Wade: “For the stage, prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” Although we have come to know the abortion decision as freedom of choice versus right to life, we find Justice Blackmun writing not that the state must yield to the woman’s choice but to the physician’s “medical judgment.” A assure you this is not just a sentence taken out of context. Earlier in his opinion, Blackmun had written that the attending physician before extra-uterine viability is free to “determine . . . that, in his medical judgment, the patient’s pregnancy should be terminated.” The language of the decision throughout misleadingly suggests that some crucial sort of medical judgment is involved not only in how the abortion is performed but whether the pregnancy “should be terminated.”"

"In the almost 30 years since Roe, this Court has never described the various methods of aborting a second- or third-trimester fetus. From reading the majority’s sanitized description, one would think that this case involves state regulation of a widely accepted routine medical procedure. Nothing could be further from the truth. The most widely used method of abortion during this stage of pregnancy is so gruesome that its use can be traumatic even for the physicians and medical staff who perform it. See App. 656 (testimony of Dr. Boehm); W. Hern, Abortion Practice 134 (1990). And the particular procedure at issue in this case, “partial birth abortion,” so closely borders on infanticide that 30 States have attempted to ban it. I will begin with a discussion of the methods of abortion available to women late in their pregnancies before addressing the statutory and constitutional questions involved."

"Toward the end of the draft court opinion, Alito acknowledges that the court cannot predict what political or societal consequences would arise from overturning Roe. “And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision,” he writes."

"Though Justices O’Connor, Kennedy, and Souter declined in Casey, on the ground of stare decisis, to reconsider whether abortion enjoys any constitutional protection, 505 U.S., at 844—846, 854—869 (majority opinion); id., at 871 (joint opinion), Casey professed to be, in part, a repudiation of Roe and its progeny. The Casey joint opinion expressly noted that prior case law had undervalued the State’s interest in potential life, 505 U.S., at 875—876, and had invalidated regulations of abortion that “in no real sense deprived women of the ultimate decision,” id., at 875. See id., at 871 (“Roe v. Wade speaks with clarity in establishing … the State’s ‘important and legitimate interest in potential life.’ That portion of the decision in Roe has been given too little acknowledgment” (citation omitted)). The joint opinion repeatedly recognized the States’ weighty interest in this area. See id., at 877 (“State … may express profound respect for the life of the unborn”); id., at 878 (“the State’s profound interest in potential life”); id., at 850 (majority opinion) (“profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage”). And, the joint opinion expressed repeatedly the States’ legitimate role in regulating abortion procedures. See id., at 876 (“The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted”); id., at 875 (“Not all governmental intrusion [with abortion] is of necessity unwarranted”). According to the joint opinion, “The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.” Id., at 874. The Casey joint opinion therefore adopted the standard: “Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.” Ibid. A regulation imposes an “undue burden” only if it “has the effect of placing a substantial obstacle in the path of a woman’s choice.” Id., at 877."

"Justice Burger in his brief comment to the abortion decisions chose to emphasize this very same crucial and misleading point. I do not read the Court’s holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of careful deliberated medical judgment related to life and health. Plainly, the Court today rejects any claims that the Constitution requires abortions on demand. What was the reality that Justice White in dissent had discounted? Implied by Blackmun and explicit in the words of Burger were the crucial and false notions that the reality of medical standards and medical judgment would keep the woman’s right to an abortion from becoming abortion on demand, abortion as a routine form of birth control. Professor Noonan, a bitter critic of the abortion decision, refers to this aspect of the decision as the “doctor as heroic figure.” Some have attributed Blackmun and Burger’s “heroic doctor” misleading language to political or personal motives or even to sugar-coated hypocrisy. There are even professional cynics steeped in constitutional law and court watching who suggest Machiavellian duplicity of Burger’s part. Burger, they say, is waiting for another Reagan appointee so that with a majority he will then write: I never approved abortion on demand and since that is what it became I now join with those who reject Wade and Bolton."

"Despite its conservative ruling in the partial-birth abortion case, a majority of the current Supreme Court remains likely to uphold Roe v. Wade . But if the court's makeup were to change and the abortion ruling were toppled, it would ignite a political firestorm in all 50 state capitols and in Congress. Because states historically have taken the lead on abortion and other social issues as prescribed in the U.S. Constitution, legal analysts expect Congress to remain in the wings as states forge new policies. Political analysts differ on how many states are likely to make abortion illegal if Roe v. Wade were overturned. Whether a state chooses to ban abortion will depend on what party controls the governor's mansion and the legislature, and on the social leanings of its citizens, if and when federal restrictions are lifted. But signs can be gleaned from states' recent records on the issue."

"There is a second and even more significant difficulty with the judicial activism claim. It is true that there is a sense in which Roe rests on a contested moral premise. It is not true, however, that the Roe Court made this moral judgment for the entire country. Rather, the central holding of Roe is that the judgment should be made by individual women and by their doctors. It is in that sense that the judicial activism claim misfires. An analogy to religious liberty may make the point more clearly. In contemporary America, there is moral disagreement about the nature of God. If we were to settle this debate collectively and choose an established religion for everyone, I suppose that it would be better for the legislature rather than the Court to choose the religion. But, of course, the matter should not be settled collectively. It is better to allow each person to decide the question for himself instead of imposing either a judicial or a legislative collective decision on everyone. When the Supreme Court enforces the religious liberty clauses of the first amendment, it is not deciding a moral question about the nature of God. Instead, it is allowing individuals to decide the question for themselves. Similarly, if we were to make a collective decision about abortion, the decision should be made democratically through the political process, and it would be indefensible judicial activism for the Court to impose its views on everyone else. But it does not follow that the decision ought to be made collectively. When the Supreme Court decided Roe v. Wade, it was not making a moral judgment about abortion for everyone any more than it decides the truth of different religions for everyone when it enforces the free exercise clause. Instead, the Roe Court opted for individual decision making about the nature of God when it enforces the first amendment."

"Jan. 22, 1973: In Roe vs. Wade, the court for the first time ensures nationwide access to abortion. In Doe vs. Bolton, decided the same day, the court strikes down restrictions on performing abortions only in hospitals. The decision gives rise to a new kind of medical facility, the abortion clinic."

"For better or worse women have been making these individual decisions about abortion for the past 25 years. If recent public opinion polls are to be believed, more women have more doubts about abortion than they did in the past. Perhaps the day will come when very few, if any, women will opt for this alternative. If that day comes, however, it will be because they as individuals decided that abortion is wrong and not the answers to their problems. It will not be because the Government imposed that decision upon them against their will. The ability of individual women to make this judgment for themselves is the real and lasting legacy of Roe v. Wade."

"Had Blackmun’s draft opinion been adopted, it would have left states free to prohibit abortions for nonmedical reasons. However, Blackmun reluctantly joined Burger in seeking a delay, and the majority voted to put off a decision on the abortion cases until the fall. Blackmun spent the summer working in the Mayo Clinic’s library in Minnesota. He researched the history of abortion in Persian, Greek and Roman times. He also studied abortion laws adopted in 19th century America and concluded that the bans were driven not by moral imperatives but by the reality that, before antibiotics, abortion -- like other medical procedures -- was dangerous. When Blackmun returned to Washington, he had a long draft. It was a thorough work of medical history, but short on constitutional law. It also was hazy on just when abortion would be permitted or prohibited."

"Justices William O. Douglas and William J. Brennan, mindful that Nixon’s new appointees would join the deliberations if the cases were reargued in the fall, wanted quick action and a stronger opinion. Burger, however, wanted to go slowly. He knew the Brennan-led majority was about to announce the striking down of the death penalty on a 5-4 vote. Burger and Blackmun had dissented, as had the new Nixon appointees, Powell and Rehnquist. Burger expected the votes on abortion to line up the same way. If the abortion cases were carried over until the fall, Powell and Rehnquist would cast their votes, and the chief justice -- with Blackmun and White also on board -- could envision a new 5-4 majority that would uphold most of the state abortion laws. “This is as sensitive and difficult an issue as any in this court in my time,” Burger wrote. “Hence, I vote to reargue early in the next term.”"

"In October, the nine justices sat through the arguments again. When they met to discuss the cases, there was a surprise. Powell, the soft-spoken Virginian who was new to the court, firmly supported a woman’s right to abortion. He urged Blackmun to say it directly rather than attack the laws as vague. For Powell, the issue was personal: When he was a lawyer in Richmond, Va., a young man came to him in despair. His pregnant girlfriend had tried to abort her fetus with his help, and she had bled to death. Powell went to the authorities to explain what happened. Thereafter, he was determined to see abortion made safe and legal. Suddenly, there were six solid votes to strike down the Texas and Georgia laws, and Blackmun had the backing to write a broader opinion in favor of a right to abortion. The liberals, who had worried about the delay, found they had a stronger hand, and Burger found himself with no room to maneuver."

"At the court’s private conference, the seven justices agreed that the Texas law was extreme and unconstitutional, according to the notes of several justices. Even Byron R. White, a critic of abortion, said doctors must be permitted to act when there were “health problems.” Blackmun voiced disdain for feminists who said women deserved control over their bodies. “There is no absolute right to do with one’s body what you like,” he said. But he agreed that the Texas law was extreme and said it did “not go far enough to protect doctors.” The Georgia law was much better, the justices said, except for a requirement that three doctors approve an abortion. Days later, the liberal justices were irked to receive a memo from Burger saying he had chosen Blackmun to write both opinions. With little guidance from colleagues, Blackmun and his clerks began research."

"“He was thinking of this in the medical framework of Rochester, Minn. He imagined abortions would be performed by a family physician or in a hospital,” said historian David J. Garrow, the author of a scholarly history of the abortion-rights movement. The justices did not foresee the full impact of the ruling or the backlash it would set off, said Georgetown University law professor Mark V. Tushnet, who was a clerk for Justice Thurgood Marshall when Roe was decided. They focused on striking down the Texas-type laws that outlawed all abortions, he said. “All they wanted was to get those laws off the books,” Tushnet said. “They were not thinking long-term with an overall vision.”"

"Blackmun’s final opinion left no room for prohibitions on abortion. That was not apparent in the spring of 1972, however. In mid-May, Blackmun wrote “a first and tentative draft” for Roe vs. Wade that stopped well short of declaring a constitutional right to abortion. Instead, it said the Texas law did not give doctors enough guidance. Criminal laws must be clear, the court had emphasized, so people don’t unwittingly commit a crime. Blackmun said Texas physicians could not be sure whether they were committing a crime by performing an abortion on a patient whose troubled pregnancy might risk her life. “I come out on the theory that the Texas statute ... is unconstitutionally vague,” he said in a memo to his colleagues on May 18, 1972. “I think that this [finding] would be all that is necessary for the disposition of the case, and that we need not get into the more complex” issues. In retrospect, this proved to be a crucial time in the court’s handling of the abortion issue. Blackmun had proposed issuing a short opinion that would have struck down the Texas law and the 30 others like it. However, it would have also left the states ample room to revise their laws."

"On Nov. 21, two weeks after Nixon’s reelection, Blackmun sent around revised drafts of the majority opinions. The Roe opinion said that for the first three months of a pregnancy, states must “leave the abortion decision to the best medical judgment of the pregnant woman’s attending physician.” In a memo to his colleagues, however, he voiced uncertainty. “This has proved for me to be both difficult and elusive.... You will observe that I have concluded that the end of the first trimester is critical,” he wrote, referring to a cutoff date for permitting abortions. “This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary.” The first trimester is the first three months of a pregnancy. Brennan, Marshall and Powell wrote back to say that allowing abortions until “viability” -- when a fetus has developed enough to live outside the womb -- at six months made more sense. Douglas disagreed. “I favor the first trimester, rather than viability,” he said. He was outvoted, however, and Blackmun said he would revise the opinion over the Christmas holidays. In his final draft, states were told they could not restrict abortions through the second trimester."

"The Supreme Court’s draft opinion leak has James Esseks worried, and not just about abortion access. Esseks, the director of the LGBTQ & HIV Project at the ACLU, ticks off the civil rights laws he fears could be on the chopping block. “This potential majority of five justices seems perfectly willing to jettison 50 years of precedent and a right that has become deeply ingrained in the fabric of American society based on not a whole lot,” he said. Since it leaked Monday, legal experts across the nation have dug through Justice Samuel Alito’s draft opinion that would overturn Roe v. Wade, the 1973 decision that granted the right to an abortion. Some LGBTQ+ experts say the draft opinion leaves critical civil rights law vulnerable, including cases that granted Americans the right to same-sex relationships (Lawrence v. Texas) and marriage equality (Obergefell v. Hodges). The draft opinion also signals that the court is willing to disturb significant legal precedent — which could have consequences beyond immediately restricting abortion access, said Ezra Ishmael Young, who teaches constitutional law at Cornell Law School. “I think the concern with LGBTQ+ people is if they’re willing to do it in abortion, are there any other issues where they’re willing to do it too?”"

"Blackmun’s opinion ends by saying: “The decision vindicates the right of the physician to administer medical treatment according to his professional judgment.... The abortion decision in all its aspects is inherently, and primarily, a medical decision.... If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.” As some scholars later said, his opinion treated the pregnant woman as a bit player in a doctor’s drama. White and Rehnquist filed dissents, but Burger delayed casting his vote. His colleagues suspected that he did not want the opinion released before Nixon’s second inauguration, set for Jan. 20. As that day approached, Burger filed a short concurrence and predicted the ruling would not have “sweeping consequences.” Blackmun’s proposed press release also downplayed the potential effects of the ruling, stressing that it would not mean “abortion on demand.” His court colleagues convinced him that it would be inappropriate to issue a statement that commented on a ruling."

"So, on Jan. 22, 1973, Roe vs. Wade and Doe vs. Bolton were handed down as 7-2 rulings in favor of a new right to abortion. That afternoon, former President Lyndon B. Johnson died, pushing aside the abortion decisions as the biggest news story of the day."

"I would like to use this opportunity to address two common misunderstandings about Roe. The first misunderstanding is that Roe is somehow inconsistent with conservative principles. Nothing could be further from the truth. I believe that anti-abortion activists are entirely right to emphasize the moral seriousness of the abortion decision and to publicize the cases of women who have come to regret their decision to have an abortion. There is, of course, a way to avoid mistakes of that sort. Instead of leaving the decision to individual women, the government could make it for them. We could make a centralized, collectivized decision about abortion that would shield individuals from the responsibility and consequences of moral choice. Ironically, throughout our history, it has been conservatives who have counseled against that sort of solution. They have been the ones who have warned us again and again about the risks of big government and the virtues of individual freedom and responsibility. Roe v. Wade amounts to no more than an application of this core conservative principle in the area of reproductive choice. It should therefore come as no surprise that when the Court strongly reaffirmed Roe in the Casey case recently, all five of the Justices in the 5-4 majority were appointed by Republican Presidents, including Presidents Reagan and Bush."

"Some conservatives have nonetheless argued that Roe is wrong because the Court took a stand on a moral issue that in a democracy ought to be resolved by the political process. It is here that the second misunderstanding takes hold. That misunderstanding is that Roe reflects indefensible judicial activism. There are two reasons why this criticism is wrong. First, neither conservative opponents of Roe, nor for that matter virtually anyone else in the mainstream, takes a consistent position against judicial activism. It is true that the text of the Constitution does not mention abortion. But it it just as true that the text of the fourteenth amendment says nothing about affirmative action. Indeed, the best historical evidence indicates the fourteenth amendment’s Framers intended to make constitutionally permissible the 19th century analogs to modern affirmative action programs."

"“Roe is based on this idea of substantive due process,” said Alejandra Caraballo, a clinical instructor at the Cyber Law Clinic at Harvard Law School. “Basically all of the LGBTQ rights cases are built on this idea of equal protection and substantive due process.”"

"The court’s leaked draft opinion to overturn Roe pokes holes in what protections are offered by the 14th Amendment’s due process and equal protection clauses by stating that such rights must be “deeply rooted” in the country’s history. “It opens up a can of worms related to legal arguments regarding the 14th Amendment and its application to the 14th amendment,” said Victoria Kirby York, deputy executive director of the National Black Justice Coalition. “It is the constitutional amendment that reset in many ways a lot of the anti-Black, anti woman messages in the original Constitution.”"

"Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of “potential life” than the equally gruesome procedure Nebraska claims it still allows. Justice Ginsburg and Judge Posner have, I believe, correctly diagnosed the underlying reason for the enactment of this legislation–a reason that also explains much of the Court’s rhetoric directed at an objective that extends well beyond the narrow issue that this case presents. The rhetoric is almost, but not quite, loud enough to obscure the quiet fact that during the past 27 years, the central holding of Roe v. Wade, 410 U.S. 113 (1973), has been endorsed by all but 4 of the 17 Justices who have addressed the issue. That holding–that the word “liberty” in the Fourteenth Amendment includes a woman’s right to make this difficult and extremely personal decision–makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty. But one need not even approach this view today to conclude that Nebraska’s law must fall. For the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational. See U.S. Const., Amdt. 14."

"In 1973, this Court struck down an Act of the Texas Legislature that had been in effect since 1857, thereby rendering unconstitutional abortion statutes in dozens of States. Roe v. Wade, 410 U.S. 113, 119. As some of my colleagues on the Court, past and present, ably demonstrated, that decision was grievously wrong. See, e.g., Doe v. Bolton, 410 U.S. 179, 221—223 (1973) (White, J., dissenting); Roe v. Wade, supra, at 171—178 (Rehnquist, J., dissenting). Abortion is a unique act, in which a woman’s exercise of control over her own body ends, depending on one’s view, human life or potential human life. Nothing in our Federal Constitution deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother. Although a State may permit abortion, nothing in the Constitution dictates that a State must do so. In the years following Roe, this Court applied, and, worse, extended, that decision to strike down numerous state statutes that purportedly threatened a woman’s ability to obtain an abortion. The Court voided parental consent laws, see Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 75 (1976), legislation requiring that second-trimester abortions take place in hospitals, see Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 431 (1983), and even a requirement that both parents of a minor be notified before their child has an abortion, see Hodgson v. Minnesota, 497 U.S. 417, 455 (1990). It was only a slight exaggeration when this Court described, in 1976, a right to abortion “without interference from the State.” Danforth, supra, at 61. The Court’s expansive application of Roe in this period, even more than Roe itself, was fairly described as the “unrestrained imposition of [the Court’s] own, extraconstitutional value preferences” on the American people. Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 794 (1986) (White, J., dissenting). It appeared that this era of Court-mandated abortion on demand had come to an end, first with our decision in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), see id., at 557 (Blackmun, J., concurring in part and dissenting in part) (lamenting that the plurality had “discard[ed]” Roe), and then finally (or so we were told) in our decision in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). Although in Casey the separate opinions of The Chief Justice and Justice Scalia urging the Court to overrule Roe did not command a majority, seven Members of that Court, including six Members sitting today, acknowledged that States have a legitimate role in regulating abortion and recognized the States’ interest in respecting fetal life at all stages of development. See 505 U.S., at 877 (joint opinion of O’Connor, Kennedy, and Souter, JJ.); id., at 944 (Rehnquist, C. J., joined by White, Scalia, Thomas, JJ., concurring in judgment in part and dissenting in part); id., at 979 (Scalia, J., joined by Rehnquist, C. J., and White and Thomas, JJ., concurring in judgment in part and dissenting in part). The joint opinion authored by Justices O’Connor, Kennedy, and Souter concluded that prior case law “went too far” in “undervalu[ing] the State’s interest in potential life” and in “striking down … some abortion regulations which in no real sense deprived women of the ultimate decision.” Id., at 875.1 Roe and subsequent cases, according to the joint opinion, had wrongly “treat[ed] all governmental attempts to influence a woman’s decision on behalf of the potential life within her as unwarranted,” a treatment that was “incompatible with the recognition that there is a substantial state interest in potential life throughout pregnancy.” Id., at 876. Accordingly, the joint opinion held that so long as state regulation of abortion furthers legitimate interests–that is, interests not designed to strike at the right itself–the regulation is invalid only if it imposes an undue burden on a woman’s ability to obtain an abortion, meaning that it places a substantial obstacle in the woman’s path. Id., at 874, 877."

"[R]oe and Casey say nothing at all about cases in which a physician considers one prohibited method of abortion to be preferable to permissible methods. Today’s majority and Justice O’Connor twist Roe and Casey to apply to the situation in which a woman desires–for whatever reason–an abortion and wishes to obtain the abortion by some particular method. See ante, at 11—12 (majority opinion); ante, at 1—2 (concurring opinion). In other words, the majority and Justice O’Connor fail to distinguish between cases in which health concerns require a woman to obtain an abortion and cases in which health concerns cause a woman who desires an abortion (for whatever reason) to prefer one method over another."

"Although Roe and Casey mandated a health exception for cases in which abortion is “necessary” for a woman’s health, the majority concludes that a procedure is “necessary” if it has any comparative health benefits. Ante, at 18. In other words, according to the majority, so long as a doctor can point to support in the profession for his (or the woman’s) preferred procedure, it is “necessary” and the physician is entitled to perform it. Id. See also ante, at 2 (Ginsburg, J., concurring) (arguing that a State cannot constitutionally “sto[p] a woman from choosing the procedure her doctor ‘reasonably believes’ ” is in her best interest). But such a health exception requirement eviscerates Casey’s undue burden standard and imposes unfettered abortion-on-demand. The exception entirely swallows the rule. In effect, no regulation of abortion procedures is permitted because there will always be some support for a procedure and there will always be some doctors who conclude that the procedure is preferable. If Nebraska reenacts its partial birth abortion ban with a health exception, the State will not be able to prevent physicians like Dr. Carhart from using partial birth abortion as a routine abortion procedure. This Court has now expressed its own conclusion that there is “highly plausible” support for the view that partial birth abortion is safer, which, in the majority’s view, means that the procedure is therefore “necessary.” Ante, at 18. Any doctor who wishes to perform such a procedure under the new statute will be able to do so with impunity. Therefore, Justice O’Connor’s assurance that the constitutional failings of Nebraska’s statute can be easily fixed, ante, at 5, is illusory. The majority’s insistence on a health exception is a fig leaf barely covering its hostility to any abortion regulation by the States–a hostility that Casey purported to reject."

"Casey held that cases decided in the wake of Roe v. Wade, 410 U.S. 113 (1973), had “given [state interests] too little acknowledgment and implementation.” 505 U.S., at 871 (joint opinion of O’Connor, Kennedy, and Souter, JJ.). The decision turned aside any contention that a person has the “right to decide whether to have an abortion without ‘interference from the State,’ ” id., at 875, and rejected a strict scrutiny standard of review as “incompatible with the recognition that there is a substantial state interest in potential life throughout pregnancy.” Id., at 876. “The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted.” Ibid. We held it was inappropriate for the Judicial Branch to provide an exhaustive list of state interests implicated by abortion. Id., at 877. Casey is premised on the States having an important constitutional role in defining their interests in the abortion debate. It is only with this principle in mind that Nebraska’s interests can be given proper weight. The State’s brief describes its interests as including concern for the life of the unborn and “for the partially-born,” in preserving the integrity of the medical profession, and in “erecting a barrier to infanticide.” Brief for Petitioners 48—49. A review of Casey demonstrates the legitimacy of these policies. The Court should say so."

"In deferring to the physician’s judgment, the Court turns back to cases decided in the wake of Roe, cases which gave a physician’s treatment decisions controlling weight. Before it was repudiated by Casey, the approach of deferring to physicians had reached its apex in Akron, supra, where the Court held an informed consent requirement was unconstitutional. The law challenged in Akron required the abortionist to inform the woman of the status of her pregnancy, the development of her fetus, the date of possible viability, the physical and emotional complications that may result from an abortion, and the availability of agencies to provide assistance and information. Id., at 442. The physician was also required to advise the woman of the risks associated with the abortion technique to be employed and other information. Ibid. The law was invalidated based on the physician’s right to practice medicine in the way he or she saw fit; for, according to the Akron Court, “[i]t remains primarily the responsibility of the physician to ensure that appropriate information is conveyed to his patient, depending on her particular circumstances.” Id., at 443. Dispositive for the Court was that the law was an “intrusion upon the discretion of the pregnant woman’s physician.” Id., at 445. The physician was placed in an “undesired and uncomfortable straitjacket.” Ibid. (internal quotation marks omitted). The Court’s decision today echoes the Akron Court’s deference to a physician’s right to practice medicine in the way he sees fit."

"As a psychiatrist, I am in the unusual position on insisting that we take the Justice’s words as their face value. Of course, the Chief Justice turned out to be completely wrong: the consequences predicted by the dissent were as accurate as any judicial prediction can be. As Justice White correctly interpreted the decision, “any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.” As Justice White predicted, abortion has become a routine alternative method of birth control. If we take Justice Blackmun’s and Burger’s words about medical judgment at face value, we can only assume that they were quite misled about the medical profession, its medical standards, and the medical judgments that were and would be applied to abortion. It was Blackmun and Burger who were out of touch with reality if they honestly believed that they wrote. My point is not that the abortion decisions were wrong or right as a matter of law or morality. My point is that to the extent these opinions involved factual inferences about medical standards and medical practice-inferences which suggested a context for the decision, inferences which suggested more limited consequences of the decision, inferences which suggested the realities of medical practice-to that extent the decision was quite misleading. I claim that such misleading statements about medical realities are not uncommon when judges make medical decisions. I also claim that the result of such misleading statements by judges is costly. The credibility of the courts is undermined in the eyes of the medical profession, and the credibility of the medical profession is undermined in the eyes of the public. The result is greater public distrust of both law and medicine. A loss of faith in both professions is the result of the vicious circle of counterproductive moves set in motion by these flawed decisions."

"Last year, on the fifth anniversary of Blackmun’s death, the Library of Congress opened his papers to the public. His thick files on the abortion cases tell the little-known story of how Roe vs. Wade came to be. It is the story of a rookie justice, unsure of himself and his abilities, who set out to write a narrow ruling that would reform abortion laws, not repeal them. It is also the story of a sometimes rudderless court led by Chief Justice Warren Burger. On the day the ruling was announced, Burger said, “Plainly, the court today rejects any claim that the Constitution requires abortion on demand.” Blackmun proposed to issue a news release to accompany the decision, issued Jan. 22, 1973. “I fear what the headlines may be,” he wrote in a memo. His statement, never issued, emphasized that the court was not giving women “an absolute right to abortion,” nor was it saying that the “Constitution compels abortion on demand.”"