Women

"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."

"In Roe v. Wade, the Court recognized that the State has "important and legitimate" interests in protecting maternal health and in the potentiality of human life. 410 U.S. at 410 U. S. 162. During the second trimester, the State "may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health." Id. at 410 U. S. 164. After viability, when the State's interest in potential human life was held to become compelling, the State "may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Id. at 165."

"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."

"On the anti-abortion side, four states already have in place so-called trigger laws, designed to make abortion illegal if federal policy permits. Three other states passed laws called statements of policy, establishing the illegality of abortion as an overriding state philosophy. In addition, a few states have pre-1973 abortion bans still on the books, which legal experts say could be reinstated. Abortion bans passed by Louisiana and Utah in 1991 that were immediately struck down by federal courts also remain on the books in both states and could take effect if Roe v. Wade fell, legal experts say. On the abortion-rights side, seven states have codified the principles of Roe v. Wade in state law, and high courts in nine other states have interpreted the state constitution as independently ensuring a woman's right to an abortion."

"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."

"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."

"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."

"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."

"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."

"We think that the doubt cast upon the Missouri statute by these cases is not so much a flaw in the statute as it is a reflection of the fact that the rigid trimester analysis of the course of a pregnancy enunciated in Roe has resulted in subsequent cases like Colautti and Akron making constitutional law in this area a virtual Procrustean bed. Statutes specifying elements of informed consent to be provided abortion patients, for example, were invalidated if they were thought to "structur[e] . . . the dialogue between the woman and her physician." Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, 476 U. S. 763 (1986). As the dissenters in Thornburgh pointed out, such a statute would have been sustained under any traditional standard of judicial review, id. at 476 U. S. 802 (WHITE, J., dissenting), or for any other surgical procedure except abortion. Id. at 476 U. S. 783 (Burger, C.J., dissenting)."

"Thus, "not with a bang, but a whimper," the plurality discards a landmark case of the last generation and casts into darkness the hopes and visions of every woman in this country who had come to believe that the Constitution guaranteed her the right to exercise some control over her unique ability to bear children. The plurality does so either oblivious or insensitive to the fact that millions of women, and their families, have ordered their lives around the right to reproductive choice, and that this right has become vital to the full participation of women in the economic and political walks of American life. The plurality would clear the way once again for government to force upon women the physical labor and specific and direct medical and psychological harms that may accompany carrying a fetus to term. The plurality would clear the way again for the State to conscript a woman's body and to force upon her a "distressful life and future." Roe, 410 U.S. at 410 U. S. 153. The result, as we know from experience, see Cates & Rochat, Illegal Abortions in the United States: 1972-1974, 8 Family Planning Perspectives 86, 92 (1976), would be that, every year, hundreds of thousands of women, in desperation, would defy the law and place their health and safety in the unclean and unsympathetic hands of back-alley abortionists, or they would attempt to perform abortions upon themselves, with disastrous results. Every year, many women, especially poor and minority women, would die or suffer debilitating physical trauma, all in the name of enforced morality or religious dictates or lack of compassion, as it may be. Of the aspirations and settled understandings of American women, of the inevitable and brutal consequences of what it is doing, the tough-approach plurality utters not a word. This silence is callous. It is also profoundly destructive of this Court as an institution. To overturn a constitutional decision is a rare and grave undertaking. To overturn a constitutional decision that secured a fundamental personal liberty to millions of persons would be unprecedented in our 200 years of constitutional history. Although the doctrine of stare decisis applies with somewhat diminished force in constitutional cases generally, ante at 492 U. S. 518, even in ordinary constitutional cases, "any departure from . . . stare decisis demands special justification." Arizona v. Rumsey, 467 U. S. 203, 467 U. S. 212 (1984). See also Vasquez v. Hillery, 474 U. S. 254, 474 U. S. 266 (1986) ("[T]he careful observer will discern that any detours from the straight path of stare decisis in our past have occurred for articulable reasons, and only when the Court has felt obliged to bring its opinions into agreement with experience and with facts newly ascertained,'" quoting Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 285 U. S. 412 (1932) (Brandeis, J., dissenting)). This requirement of justification applies with unique force where, as here, the Court's abrogation of precedent would destroy people's firm belief, based on past decisions of this Court, that they possess an unabridgeable right to undertake certain conduct. [Footnote 2/12] As discussed at perhaps too great length above, the plurality makes no serious attempt to carry "the heavy burden of persuading . . . that changes in society or in the law dictate" the abandonment of Roe and its numerous progeny, Vasquez, 474 U.S. at 474 U. S. 266, much less the greater burden of explaining the abrogation of a fundamental personal freedom. Instead, the plurality pretends that it leaves Roe standing, and refuses even to discuss the real issue underlying this case: whether the Constitution includes an unenumerated right to privacy that encompasses a woman's right to decide whether to terminate a pregnancy. To the extent that the plurality does criticize the Roe framework, these criticisms are pure ipse dixit."

"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."

"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."

"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."

"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.”"

"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."

"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."

"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."

"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."

"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."

"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."

"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."

"[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."

"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."

"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."

"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.”"

"“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.”"

"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."

"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?”"

"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."

"“The danger of overturning Roe is in the fact that you’re tipping a major leg of the right-to-privacy stool out from underneath it,” he said. “If you take that critical component piece out, then it opens all these other things up to a greater degree of susceptibility.” Right to privacy also plays a huge role in the legality of bans on gender-affirming care for trans youth. If Alito’s draft opinion language on privacy is preserved and a lawsuit ever reached the high court, Kreis is worried that rights to bodily autonomy and personal health care decision-making would again be threatened. “I think there’s an imminent danger to trans rights in a post-Roe world,” he said."

"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."

"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."

"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."

"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."

"Our legal proposition can be summarized as follows: Roe established that a mother has an unfettered constitutional right to decide if the fetus will continue to exist beyond the first trimester. Roe stands for the principle that a fetus does not have a legal right to exist in the first trimester. Since the fetus has no legal right to exist during the period prior to viability, third parties cannot owe a duty of care to the fetus during that time period. As there is no way to reconcile wrongful life claims with federal constitutional law with respect to the duty owed to a fetus, federal constitutional law prevails, rendering wrongful life claims unconstitutional and invalid."

"Donohue and Levitt (2003) argue that tests of abortion and total crime are weak between 1985 and 1990 because a relatively small proportion of all criminals were exposed to legalized abortion before 1990. As evidence, they point to their relatively low effective abortion ratio over this period. However, the low figure results from their inappropriate assumption that there were no abortions prior to 1973 in the 45 nonrepeal states. Early surveillance by the CDC found that there were 175,508 reported abortions in 1970, 480,259 in 1971, and 586,760 in 1972 in the United States (Centers for Disease Control 1971, 1972, 1973). Moreover, the resident abortion ratio in the repeal states: Alaska, California, Washington D.C., Hawaii, New York, and Washington, was 340 in 1971 and 370 in 1972 (Author’s calculations based on data from CDC (1972, Table 4) and CDC (1974, Table 5). According to CDC data, the abortion ratio for the entire US peaked in 1981 at 358 (Koonin et al. 1997). In other words, cohorts born in repeal states between 1971 and 1973 were exposed to a level of abortion that exceeded the maximum average exposure for the entire country at any time since abortion became legal."

"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."

"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."

"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."

"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."

"Even if the State may decline to subsidize or to participate in the exercise of a woman's right to terminate a pregnancy, and even if a State may pursue its own abortion policies in distributing public benefits, it may not affirmatively constrict the availability of abortions by defining as "public" that which in all meaningful respects is private. With the certain knowledge that a substantial percentage of private health care providers will fall under the public facility ban, see Brief for National Association of Public Hospitals as Amicus Curiae 10-11, Missouri does not "leav[e] a pregnant woman with the same choices as if the State had chosen not to operate any public hospitals at all," ante at 492 U. S. 509; rather, the public facility ban leaves the pregnant woman with far fewer choices, or, for those too sick or too poor to travel, perhaps no choice at all. This aggressive and shameful infringement on the right of women to obtain abortions in consultation with their chosen physicians, unsupported by any state interest, much less a compelling one, violates the command of Roe."

"It is tempting to identify the Court’s invention of a constitutional right to abortion in Roe v. Wade, 410 U. S. 113 , as the tipping point that transformed third-party standing doctrine and the tiers of scrutiny into an unworkable morass of special exceptions and arbitrary applications. But those roots run deeper, to the very notion that some constitutional rights demand preferential treatment. During the Lochner era, the Court considered the right to contract and other economic liberties to be fundamental requirements of due process of law. See Lochner v. New York, 198 U. S. 45 (1905) . The Court in 1937 repudiated Lochner’s foundations. See West Coast Hotel Co. v. Parrish, 300 U. S. 379 –387, 400 (1937). But the Court then created a new taxonomy of preferred rights."

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

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

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

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

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