United States Case Law

"No one honestly argues that Roe v. Wade was correctly decided in the first place. In Professor Ely’s words, Roe “is not constitutional law, and gives almost no sense of an obligation to try to be.” The decision does not come close to meeting the standard of being “universally accepted, acted on, and acquiesced in by courts, the legal profession, and the general public.”"

"A past decision’s reaffirmance strengthens its precedential weight, but like any judicial holding, that reaffirmance must be explicit. “Most important, the court must have decided the issue for which the precedent is claimed; it cannot merely have discussed it in dictum, ignored it, or assumed the point without ruling upon it.” To be counted as a “reaffirmance,” the issue ofRoe’s validity as a precedent must have been “brought to the attention of the court” and “ruled upon” through a “dispositive judgment” or a “determinate holding.” Only three Supreme Court decisions meet this standard. 1. In Akron v. Akron Center for Reproductive Health, the Court voted 6–3 that while “the doctrine of stare decisis [is] perhaps never entirely persuasive on a constitutional question...[w]e respect it today, and reaffirm Roe v. Wade.” 2. In Thornburgh v. American College of Obstetricians and Gynecologists,149 the Court voted 5–4 to reaffirm “the general principles laid down in Roe and in Akron.” 3. In Planned Parenthood v. Casey, the Court also voted 5–4 to reaffirm Roe’s “central holding” that “the Constitution protects a woman’s right to terminate her pregnancy in its early stages.” By declining margins, therefore, the Supreme Court has reaffirmed some aspect of Roe v. Wade three times in nearly 50 years. As Senator Orrin Hatch (R–UT) has written, there is nothing “super” about Roe v. Wade as a precedent. Should the Court reconsider whether Roe remains a valid precedent, it will apply traditional principles ofstare decisis to determine if Roe should be retained or abandoned. The case to be argued on December 1, 2021, provides that opportunity."

"The difficulty of anticipating, let alone predicting, how the Supreme Court will rule in any individual case certainly intensifies when the Court reconsiders precedent as significant as Roe v. Wade. Many thought, for example, that the Court would do so in Webster v. Reproductive Health Services, which drew a then-record 78 amicus briefs. However, the Court declined even to reconsider Roe."

"In June Medical, the plaintiffs wanted the Court to establish a blanket rule that abortion providers have legal standing to challenge abortion restrictions simply because they perform abortions, that is, “based solely on their role in the abortion process.” The right created in Roe and continued in Casey belongs to women, not to abortion providers."

"Held: 1. The physician appellants have standing to challenge the foregoing provisions of the Act with the exception of § 7, the constitutionality of which the Court declines to decide. Doe v. Bolton, 410 U. S. 179. P. 428 U. S. 62, and n. 2. 2. The definition of viability in § 2(2) does not conflict with the definition in Roe v. Wade, 410 U. S. 113, 410 U. S. 160, 410 U. S. 163, as the point at which the fetus is "potentially able to live outside the mother's womb, albeit with artificial aid," and is presumably capable of "meaningful life outside the mother's womb." Section 2(2) maintains the flexibility of the term "viability" recognized in Roe. It is not a proper legislative or judicial function to fix viability, which is essentially for the judgment of the responsible attending physician, at a specific point in the gestation period. Pp. 428 U. S. 63-65. 3. The consent provision in § 3(2) is not unconstitutional. The decision to abort is important and often stressful, and the awareness of the decision and its significance may be constitutionally assured by the State to the extent of requiring the woman's prior written consent. Pp. 428 U. S. 65-67. 4. The spousal consent provision in § 3(3), which does not comport with the standards enunciated in Roe v. Wade, supra, at 410 U. S. 164-165, is unconstitutional, since the State cannot "'delegate to a spouse a veto power which the [S]tate itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.'" Pp. 428 U. S. 67-72. 5. The State may not constitutionally impose a blanket parental consent requirement, such as § 3(4), as a condition for an unmarried minor's abortion during the first 12 weeks of her pregnancy for substantially the same reasons as in the case of the spousal consent provision, there being no significant state interests, whether to safeguard the family unit and parental authority or other vise, in conditioning an abortion on the consent of a parent with respect to the under-18-year-old pregnant minor. As stressed in Roe, "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician." 410 U.S. at 410 U. S. 164. Pp. 428 U. S. 72-75."

"In Roe v. Wade, the Court concluded that the "right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." 410 U.S. at 410 U. S. 153. It emphatically rejected, however, the proffered argument "that the woman's right is absolute, and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason, she alone chooses." Ibid. Instead, this right "must be considered against important state interests in regulation." Id. at 410 U. S. 154. The Court went on to say that the "pregnant woman cannot be isolated in her privacy," for she "carries an embryo and, later, a fetus." Id. at 410 U. S. 159. It was therefore "reasonable and appropriate for a State to decide that, at some point in time, another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole, and any right of privacy she possesses must be measured accordingly." Ibid. The Court stressed the measure of the State's interest in "the light of present medical knowledge." Id. at 410 U. S. 163. It concluded that the permissibility of state regulation was to be viewed in three stages: "For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician," without interference from the State. Id. at 410 U. S. 164. The participation by the attending physician in the abortion decision, and his responsibility in that decision, thus, were emphasized. After the first stage, as so described, the State may, if it chooses, reasonably regulate the abortion procedure to preserve and protect maternal health. Ibid. Finally, for the stage subsequent to viability, a point purposefully left flexible for professional determination, and dependent upon developing medical skill and technical ability, [Footnote 1] the State may regulate an abortion to protect the life of the fetus and even may proscribe abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Id. at 410 U. S. 163-165."

"The appellees defend § 3(3) on the ground that it was enacted in the light of the General Assembly's "perception of marriage as an institution," Brief for Appellee Danforth 34, and that any major change in family status is a decision to be made jointly by the marriage partners. Reference is made to an abortion's possible effect on the woman's childbearing potential. It is said that marriage always has entailed some legislatively imposed limitations: reference is made to adultery and bigamy as criminal offenses; to Missouri's general requirement, Mo.Rev.Stat. § 453.030.3 (1969), that, for an adoption of a child born in wedlock, the consent of both parents is necessary; to similar joint consent requirements imposed by a number of States with respect to artificial insemination and the legitimacy of children so conceived; to the laws of two States requiring spousal consent for voluntary sterilization; and to the long-established requirement of spousal consent for the effective disposition of an interest in real property. It is argued that "[r]ecognizing that the consent of both parties is generally necessary . . . to begin a family, the legislature has determined that a change in the family structure set in motion by mutual consent should be terminated only by mutual consent," Brief for Appellee Danforth 38, and that what the legislature did was to exercise its inherent policymaking power "for what was believed to be in the best interests of all the people of Missouri." Id. at 40. The appellants, on the other hand, contend that § 3(3) obviously is designed to afford the husband the right unilaterally to prevent or veto an abortion, whether or not he is the father of the fetus, and that this not only violates Roe and Doe, but is also in conflict with other decided cases. See, e.g., Poe v. Gerstein, 517 F.2d 787, 794-796 (CA5 1975), appeal docketed, No. 75-713; Wolfe v. Schroering, 388 F.Supp. at 636-637; Doe v. Rampton, 366 F. Supp. 189, 193 (Utah 1973). They also refer to the situation where the husband's consent cannot be obtained because he cannot be located. And they assert that § 3(3) is vague and overbroad."

"In Roe and Doe, we specifically reserved decision on the question whether a requirement for consent by the father of the fetus, by the spouse, or by the parents, or a parent, of an unmarried minor, may be constitutionally imposed. 410 U.S. at 410 U. S. 165 n. 67. We now hold that the State may not constitutionally require the consent of the spouse, as is specified under § 3(3) of the Missouri Act, as a condition for abortion during the first 12 weeks of pregnancy. We thus agree with the dissenting judge in the present case, and with the courts whose decisions are cited above, that the State cannot "delegate to a spouse a veto power which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.""

"Other courts that have considered the parental consent issue in the light of Roe and Doe, have concluded that a statute like § 3(4) does not withstand constitutional scrutiny. See, e.g., Poe v. Gerstein, 517 F.2d at 792; Wolfe v. Schroering, 388 F.Supp. at 636-637; Doe v. Rampton, 366 F. Supp. at 193, 199; State v. Koome, 84 Wash. 2d 901, 530 P.2d 260 (1975). We agree with appellants and with the courts whose decisions have just been cited that the State may not impose a blanket provision, such as § 3(4), requiring the consent of a parent or person in loco parentis as a condition for abortion of an unmarried minor during the first 12 weeks of her pregnancy. Just as with the requirement of consent from the spouse, so here, the State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding the consent. Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution, and possess constitutional rights. See, e.g., Breed v. Jones, 421 U. S. 519 (1975); Goss v. Lopez, 419 U. S. 565 (1975); Tinker v. Des Moines School Dist., 393 U. S. 503 (1969); In re Gault, 387 U. S. 1 (1967). The Court indeed, however, long has recognized that the State has somewhat broader authority to regulate the activities of children than of adults."

"We emphasize that our holding that § 3(4) is invalid does not suggest that every minor, regardless of age or maturity, may give effective consent for termination of her pregnancy. See Bellotti v. Baird, post, p. 428 U. S. 132. The fault with § 3(4) is that it imposes a special consent provision, exercisable by a person other than the woman and her physician, as a prerequisite to a minor's termination of her pregnancy, and does so without a sufficient justification for the restriction. It violates the strictures of Roe and Doe."

"In Roe v. Wade, 410 U. S. 113 (1073), this Court recognized a right to an abortion free from state prohibition. The task of policing this limitation on state police power is and will be a difficult and continuing venture in substantive due process. However, even accepting Roe v. Wade, there is nothing in the opinion in that case, and nothing articulated in the Court's opinion in this case, which justifies the invalidation of four provisions of House Committee Substitute for House Bill No. 1211 (hereafter Act) enacted by the Missouri 77th General Assembly in 1974 in response to Roe v. Wade. Accordingly, I dissent in part."

"Roe v. Wade, supra at 410 U. S. 163, holds that, until a fetus becomes viable, the interest of the State in the life or potential life it represents is outweighed by the interest of the mother in choosing "whether or not to terminate her pregnancy." 410 U.S. at 410 U. S. 153. Section 3(3) of the Act provides that a married woman may not obtain an abortion without her husband's consent. The Court strikes down this statute in one sentence. It says that, "since the State cannot . . . proscribe abortion . . . the State cannot delegate authority to any particular person, even the spouse, to prevent abortion. . . ." Ante at 428 U. S. 69. But the State is not -- under § 3(3) -- delegating to the husband the power to vindicate the State's interest in the future life of the fetus. It is, instead, recognizing that the husband has an interest of his own in the life of the fetus which should not be extinguished by the unilateral decision of the wife. [Footnote 3/1] It by no means follows, from the fact that the mother's interest in deciding "whether or not to terminate her pregnancy" outweighs the State's interest in the potential life of the fetus, that the husband's interest is also outweighed, and may not be protected by the State. A father's interest in having a child -- perhaps his only child -- may be unmatched by any other interest in his life. See Stanley v. Illinois, 405 U. S. 645, 405 U. S. 651 (1972), and cases there cited. It is truly surprising that the majority finds in the United States Constitution, as it must in order to justify the result it reaches, a rule that the State must assign a greater value to a mother's decision to cut off a potential human life by abortion than to a father's decision to let it mature into a live child. Such a rule cannot be found there, nor can it be found in Roe v. Wade, supra. These are matters which a State should be able to decide free from the suffocating power of the federal judge, purporting to act in the name of the Constitution. In describing the nature of a mother's interest in terminating a pregnancy, the Court in Roe v. Wade mentioned only the post-birth burdens of rearing a child, 410 U.S. at 410 U. S. 153, and rejected a rule based on her interest in controlling her own body during pregnancy. Id. at 410 U. S. 154. Missouri has a law which prevents a woman from putting a child up for adoption over her husband's objection, Mo.Rev.Stat. § 453.030 (1969). This law represents a judgment by the State that the mother's interest in avoiding the burdens of childrearing do not outweigh or snuff out the father's interest in participating in bringing up his own child. That law is plainly valid, but no more so than § 3(3) of the Act now before us, resting, as it does, on precisely the same judgment."

"In Roe v. Wade, 410 U. S. 113, the Court held that a woman's right to decide whether to abort a pregnancy is entitled to constitutional protection. That decision, which is now part of our law, answers the question discussed in Part IV-E of the Court's opinion, but merely poses the question decided in Part IV-D. If two abortion procedures had been equally accessible to Missouri women, in my judgment, the United States Constitution would not prevent the state legislature from outlawing the one it found to be less safe even though its conclusion might not reflect a unanimous consensus of informed medical opinion. However, the record indicates that, when the Missouri statute was enacted, a prohibition of the saline amniocentesis procedure was almost tantamount to a prohibition of any abortion in the State after the first 12 weeks of pregnancy. Such a prohibition is inconsistent with the essential holding of Roe v. Wade, and therefore cannot stand. In my opinion, however, the parental consent requirement is consistent with the holding in Roe. The State's interest in the welfare of its young citizens justifies a variety of protective measures. Because he may not foresee the consequences of his decision, a minor may not make an enforceable bargain. He may not lawfully work or travel where he pleases, or even attend exhibitions of constitutionally protected adult motion pictures. Persons below a certain age may not marry without parental consent. Indeed, such consent is essential even when the young woman is already pregnant. The State's interest in protecting a young person from harm justifies the imposition of restraints on his or her freedom even though comparable restraints on adults would be constitutionally impermissible. Therefore, the holding in Roe v. Wade that the abortion decision is entitled to constitutional protection merely emphasizes the importance of the decision; it does not lead to the conclusion that the state legislature has no power to enact legislation for the purpose of protecting a young pregnant woman from the consequences of an incorrect decision."

"Nearly half a century ago, Roe v. Wade secured a woman’s legal right to obtain an abortion. The ruling has been contested with ever-increasing intensity, dividing and reshaping American politics. And yet for all its prominence, the person most profoundly connected to it has remained unknown: the child whose conception occasioned the lawsuit. Roe’s pseudonymous plaintiff, Jane Roe, was a Dallas waitress named Norma McCorvey. Wishing to terminate her pregnancy, she filed suit in March 1970 against Dallas County District Attorney Henry Wade, challenging the Texas laws that prohibited abortion. Norma won her case. But she never had the abortion. On January 22, 1973, when the Supreme Court finally handed down its decision, she had long since given birth—and relinquished her child for adoption. The Court’s decision alluded only obliquely to the existence of Norma’s baby: In his majority opinion, Justice Harry Blackmun noted that a “pregnancy will come to term before the usual appellate process is complete.” The pro-life community saw the unknown child as the living incarnation of its argument against abortion. It came to refer to the child as “the Roe baby.”"

"The answers Shelley had sought all her life were suddenly at hand. She listened as Hanft began to tell what she knew of her birth mother: that she lived in Texas, that she was in touch with the eldest of her three daughters, and that her name was Norma McCorvey. The name was not familiar to Shelley or Ruth. Although Ruth read the tabloids, she had missed a story about Norma that had run in Star magazine only a few weeks earlier under the headline “Mom in Abortion Case Still Longs for Child She Tried to Get Rid Of.” Hanft began to circle around the subject of Roe, talking about unwanted pregnancies and abortion. Ruth interjected, “We don’t believe in abortion.” Hanft turned to Shelley. “Unfortunately,” she said, “your birth mother is Jane Roe.” That name Shelley recognized. She had recently happened upon Holly Hunter playing Jane Roe in a TV movie. The bit of the movie she watched had left her with the thought that Jane Roe was indecent. “The only thing I knew about being pro-life or pro-choice or even Roe v. Wade,” Shelley recalled, “was that this person had made it okay for people to go out and be promiscuous.”"

"On June 20, 1989, in bold type, just below a photo of Elvis, the Enquirer presented the story on its cover: “Roe vs. Wade Abortion Shocker—After 19 Years Enquirer Finds Jane Roe’s Baby.” The “explosive story” unspooled on page 17, offering details about the child—her approximate date of birth, her birth weight, and the name of the adoption lawyer. The story quoted Hanft. The child was not identified but was said to be pro-life and living in Washington State. “I want her to know,” the Enquirer quoted Norma as saying, “I’ll never force myself upon her. I can wait until she’s ready to contact me—even if it takes years. And when she’s ready, I’m ready to take her in my arms and give her my love and be her friend.” But an unnamed Shelley made clear that such a day might never come. “I’m glad to know that my birth mother is alive,” she was quoted in the story as saying, “and that she loves me—but I’m really not ready to see her. And I don’t know when I’ll ever be ready—if ever.” She added: “In some ways, I can’t forgive her … I know now that she tried to have me aborted.” The National Right to Life Committee seized upon the story. “This nineteen-year-old woman’s life was saved by that Texas law,” a spokesman said. If Roe was overturned, he went on, countless others would be saved too. Perhaps because the Roe baby went unnamed, the Enquirer story got little traction, picked up only by a few Gannett papers and The Washington Times. But it left a deep mark on Shelley. Having begun work as a secretary at a law firm, she worried about the day when another someone would come calling and tell the world—against her will—who she was."

"Shelley had long considered abortion wrong, but her connection to Roe had led her to reexamine the issue. It now seemed to her that abortion law ought to be free of the influences of religion and politics. Religious certitude left her uncomfortable. And, she reflected, “I guess I don’t understand why it’s a government concern.” It had upset her that the Enquirer had described her as pro-life, a term that connoted, in her mind, “a bunch of religious fanatics going around and doing protests.” But neither did she embrace the term pro-choice: Norma was pro-choice, and it seemed to Shelley that to have an abortion would render her no different than Norma. Shelley determined that she would have the baby. Abortion, she said, was “not part of who I was.” Shelley and Doug moved up their wedding date. They were married in March 1991, standing before a justice of the peace in a chapel in Seattle. Later that year, Shelley gave birth to a boy. Doug asked her to give up her career and stay at home. That was fine by her. The more people Shelley knew, the more she worried that one of them might learn of her connection to Roe. Every time she got close to someone, Shelley found herself thinking, Yeah, we’re really great friends, but you don’t have a clue who I am."

"Shelley was not able to lock her birth mother away. In the decade since Norma had been thrust upon her, Shelley recalled, Norma and Roe had been “always there.” Unknowing friends on both sides of the abortion issue would invite Shelley to rallies. Every time, she declined. Norma had come to call Roe “my law.” And, in time, Shelley too became almost possessive of Roe; it was her conception, after all, that had given rise to it. Having previously changed the channel if there was ever a mention of Roe on TV, she began, instead, in the first years of the new millennium, to listen. She began to Google Norma too. “I don’t like not knowing what she’s doing,” Shelley explained. Shelley then began to look online for her pseudonymous self, to learn what was being written about “the Roe baby.” The pro-life community saw that unknown baby as a symbol. Shelley wanted no part of this. “My association with Roe,” she said, “started and ended because I was conceived.”"

"It was still January when Norma McCorvey and McCluskey met Coffee downtown in her office at Palmer, Palmer & Burke, where, for $450 a month, Coffee waded through petitions for bankruptcy. Coffee was intense, incapable of small talk, pale and unkempt besides. All at once, Norma was ill at ease beside her. She looked, said Norma, “like she got out of bed and forgot to comb her hair.” Looking back at Norma, Coffee saw a small woman with a big belly. Says Coffee: “She looked really pregnant.” Exactly how far along Norma was could not be known. In 1970, gestational age could only be estimated, and estimates could be off by up to four weeks. “We weren’t using ultrasound at that time,” explains Frank Bradley, the Dallas obstetrician who delivered Norma’s second child. Instead, he says, doctors used pelvic exams and menstrual history to “try to figure it out best they could.” It was more than likely that Norma had reached at least her twentieth week. And she had thus reached the legal limit at which any doctor in the United States—even where abortion was legal—could perform an elective abortion. In January 1970, abortion was legal only in Oregon, where residents were permitted to abort through the first 150 days, and in California, where nonresidents, too, could abort through 20 weeks. Abortion was also not illegal in the District of Columbia. (A federal district court had recently declared the anti-abortion law in D.C. -unconstitutional, and the appellee in that case performed abortions until at least the 20th week.) Coffee thus knew that it was almost certainly too late for Norma to get an abortion. “It was my opinion,” the lawyer soon recalled, “that, very likely, the suit would not solve her immediate problem.” It was not too late, however, for Norma to file suit. Indeed, it would be of no legal consequence if the suit Norma filed came to term after she did. “There were fairly established principles that that doesn’t moot the case,” says Coffee. (Among them was the category of cases deemed “capable of repetition yet evading review”—which meant, in essence, that the issue was a recurring one, but in each instance would pass before the courts had time to fully address it.) Coffee told Norma what she knew. “I remember saying,” she recalls, “that I thought she was probably too far along to have an abortion under the protection of the federal court.” But Norma had nowhere else to turn. Coffee was her last hope. Coffee told Norma that if she filed suit, she might have to testify. Norma agreed—never mind, says Coffee, that she “likely had no idea what that would entail.” Coffee sensed that Norma had little idea what filing suit even meant. “I could tell she didn’t have a lot of education,” says Coffee. “Maybe she was being a little too cooperative. … Most people would ask more questions if they were thinking about filing a lawsuit over something of that magnitude.” Norma only asked if filing suit would cost her money. It would not; Coffee would do the case pro bono. Norma agreed to file and left."

"Coffee marveled. McCluskey had come through. She had a plaintiff. And that plaintiff was perfect. As Coffee later told a reporter: “It had to be a pregnant woman wanting to get an abortion. She couldn’t have the funds to travel to California … for a legal abortion. And we had to have someone who could take the publicity. We weren’t able to guarantee her anonymity.” Still, Coffee would try to keep Norma anonymous. Alone in her office, she fashioned for her would-be plaintiff a pseudonym, combining Jane, which was suitably common, she says, with Roe, which was standard legal vernacular and already the surname of two plaintiffs (alongside two Hoes, two Poes, and a Doe) in a 1959 lawsuit on contraception. “In my mind,” says Coffee, “I considered her being Jane Roe as soon as I got an actual woman being ready to file.”"

"Weddington was confident. Her parents had raised her and her younger siblings to believe, she later recalled, that they “could do whatever they wanted,” and so she had—from soloing in the church choir to serving as secretary of her college student body. But her body of legal work was sparse—a few divorces and wills, an adoption. She suggested that the group hire a lawyer in a firm, she recalled, “with research and secretarial backup.” The women, however, wanted Weddington. So back to the library she went, comforted by the thought, she later wrote, that any suit she filed would simply back the growing number of suits that already contested abortion laws in other states. Still, the drafting of documents was daunting. Weddington again wondered if the case might be better handled by a lawyer with knowledge of federal courts and procedure. A former classmate turned clerk leapt to mind. On December 3, she phoned Linda Coffee. Coffee was delighted. She’d arrived at this same juncture and simply needed a plaintiff. Weddington suggested that Coffee file suit on behalf of the alumnae group in Austin. Coffee agreed and typed Weddington a letter the next day. “Would you consider being co-counsel in the event that a suit is actually filed?” she wrote. “I have always found that it is a great deal more fun to work with someone on a lawsuit of this nature.” Weddington phoned to accept. Coffee worried, however, that because the Austin group was not a pregnant woman, it might not have standing in the eyes of the court. Besides, only a case filed in Dallas could land on the sympathetic desk of Coffee’s mentor, Judge Hughes. The search for a plaintiff thus continued, extending into late January, when an exultant Coffee phoned Weddington to tell of the pregnant woman who’d just left her office."

"Days later, Norma was all belly and blue jeans when she met the two lawyers for pizza in a restaurant popular with SMU students. Seeing Coffee again made Norma anxious. But Norma was taken with Weddington, strawberry-blonde and curvy and just two years older than she. “She was wholesome and robust and had things happening!” said Norma. “I fell in love with Sarah. She had all this hair.” Over a tablecloth of red and white gingham, talk turned to the inalienable rights of women. The lawyers asked, recalled Norma, if it was not a good thing that women could smoke in public, could vote. Norma agreed that it was, and then that women ought to have the right to an abortion, too. Still, it was not conviction that had led Norma to Columbo’s Pizza Parlor this winter afternoon; it was happenstance, the fact that her doctor happened to know McCluskey who happened to know Coffee. And Norma again made clear that she did not want to further a cause; she wanted an abortion. Weddington repeated what Coffee had said, about her probably being too far along. “I’m not saying I misunderstood,” said Norma. “But I thought we were all real clear on what I really wanted.” Had Coffee and Weddington really wanted to help their potential client get an abortion, they might have at least tried. As Victoria Foe, a biology student who worked with Weddington on the referral network in Austin, recalled: “In desperate situations, women up to 20 weeks were not turned away.” And the lawyers might have taken Norma to a doctor for an X-ray so as to better gauge how far along she actually was. If there was time to end her pregnancy, they might have asked a judge to issue a temporary restraining order to prevent state officials from enforcing the law against their client. Or they might have sent Norma to a clinic in their network—be it in Piedras Negras, just over the Mexican border (where both Weddington and Foe had had abortions), or in California, where every Friday a group of Texas women flew. “American [Airlines] was the plane,” Weddington recalled decades later. “About 10 women every Friday went to California and then they were back late on Sunday.” But the lawyers did none of those things. It didn’t matter that only months before, Weddington had helped to write the American Bar Association’s code of ethical standards, which instructed that every lawyer must work “solely for the benefit of his client.” Weddington and Coffee had interests of their own. They wished to file a lawsuit. And, as the law professor Kevin McMunigal later noted, they now set aside Norma’s desire for an abortion “in favor of the collective interests of the abortion rights cause.”"

"[W]hile Biden later became a staunch defender of Roe, in addition to consistently opposing federal funding of abortions, he did vote in 1981 for a failed constitutional amendment allowing states to overturn Roe. At the time, he called it “the single most difficult vote I’ve cast as a U.S. senator.” When it came up again the following year, Biden voted against the bill."

"In each of the contexts discussed so far—the military, capital punishment, and assisted suicide—there are of course different views as to whether the killings in question are morally permissible. Yet there is essentially no room for debate that each of these contexts involves the killing of other human beings. In short, the debate is over the morality or permissibility of the killing, not whether a killing takes place at all. The context of abortion, of course, is different. In Roe v. Wade, the Supreme Court famously declared itself unable to determine when human life begins: “[T]he judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” Thus, in some ways the abortion debate is about whether abortion is killing at all, with some abortion supporters arguing that abortion does not involve killing, and abortion opponents arguing that it does. This dispute over whether abortion is a killing in the first place adds a difficulty that is not present in the other contexts where the fact of killing is agreed upon, and the only questions concern the permissibility of that killing. Nevertheless, despite this additional level of dispute, the abortion context offers the most systematic and all-encompassing example of government efforts to ensure that unwilling individuals are not forced to engage in what"

"Even before Roe was decided, states that permitted abortion were taking action to protect those physicians or hospitals that objected to participation in abortions. In 1971, New York enacted a criminal law prohibiting discrimination against any person for his or her refusal to participate in abortions. Many other states—including Arkansas, Alaska, Colorado, Delaware, Florida, Georgia, Hawaii, and Maryland—included explicit conscience protections for individuals and institutions in the same statutes that liberalized their abortion laws. That trend of protecting conscientious objectors to abortions continued and dramatically expanded in the aftermath of Roe. Today, virtually every state in the country has some sort of statute protecting individuals and, in many cases, entities who refuse to provide abortions. Most of these statutes arose in the decade following Roe. Some states expressly limit this protection to the practice of abortion, which is treated specially. Other states protect conscience for other procedures as well."

"See Lynn D. Wardle, Protecting the Rights of Conscience of Health Care Providers, 14 J. LEGAL MED. 177, 180–81 (1993) (“Most conscience clause provisions were adopted between 1973 and 1982, when the federal courts were broadly defining a new and very controversial constitutional privacy right to abortion."

"Despite history-friendly Justices’ best efforts, many substantive due process decisions have not adhered strictly to the history and tradition approach. For example, the majority in Lawrence v. Texas overruled history- driven Bowers v. Hardwick without once mentioning Glucksberg’s attempt at an authoritative, history-based framework. 169 Yet even those substantive due process opinions in which history was not explicitly controlling tend to make at least some effort to portray the rights they protect as “deeply rooted in this Nation’s history and tradition.” Roe v. Wade argued at length that abortion was traditionally much less strictly regulated than in the mid-twentieth century, 170 and Lawrence v. Texas sought to undermine Bowers’s historical evidence"

"The Court’s historical analysis in Roe and Lawrence confirms that a practice need not have longstanding legal protection in order to qualify for substantive due process protection. Thus, despite the absence of any laws affirmatively protecting elective abor tion, despite undisputed prohibitions on abortion for most of the century prior to Roe, and despite common law indications that at least some abortions were illegal, the Court in Roe found the historical analysis satisfied because it determined women enjoyed “substantially broader” freedom to abort at earlier times: It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well intothe 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy."

"In Roe and Lawrence, the Court found facts more favorable to the proposed due process rights. In Roe, the Court found some support for an abortion right in the limited evidence of a trend toward legalization—a stronger trend toward legalization than anything the Glucksberg Court could find, but hardly an overwhelming one. The Court noted that “about one-third” of the states had recently changed their abortion laws to make them “less stringent.” The Roe Court also emphasized the official positions of American professional associations. For over 100 years, the American Medical Association maintained the position that abortion should generally be illegal and doctors should not participate in the procedure before finally changing its position in 1970 to support abortion. Similarly, in 1970 the American Public Health Association adopted new “Standards for Abortion Services” calling for abortion referral to be easily available, and the American Bar Association called for abortion to be largely unrestricted in the first twenty weeks of pregnancy. Though the Court did not explicitly rest its holding on these professional associations’ positions, they did support its reasoning, and the Court spent six pages of the majority opinion discussing them."

"[T]he best example of contemporary trends and consensus in favor of a right not to kill comes in the abortion context, where protection of conscience has been almost universal and has all occurred within the last fifty years. In the years prior to Roe, at least fourteen states had already liberalized their abortion laws. These pre-Roe liberalization laws frequently came with the creation of express statutory protection for physicians and other healthcare personnel and institutions that refused to participate in abortions. Likewise, when it decided in 1970 to support great er access to abortion, the American Medical Association also resolved that “[n]either physician, hospital, nor hospital personnel shall be required to perform any act violative of personally-"

"The day after Roe fell, of course, abortion would be neither legal nor illegal throughout the United States. Instead, the states and Congress would be free to ban, protect, or regulate abortion as they saw fit. But in many of the fifty states, and ultimately in Congress, the overturning of Roe would probably ignite one of the most explosive political battles since the civil-rights movement, if not the Civil War."

"[I]f a national referendum were held the day after Roe fell, there’s little doubt that early-term abortions would be protected and that later-term abortions would be restricted. But the U.S. Constitution doesn’t provide for government by referendum. Because of the intricacies of American federalism, and the polarization of American politics exacerbated by Roe itself, the moderate national consensus about abortion might not be reflected in law for years to come, and the political landscape could be transformed beyond recognition."

"If Roe falls in June 2007, abortion will almost certainly become the central issue in the 2008 presidential election. And Republicans are already worrying about the political fallout. “We’d be blown away in the suburbs, and you wouldn’t see another Republican president for twenty years,” a pro-choice Republican congressman recently told Roll Call."

"Once Roe is gone, one argument goes, each state would be free to reflect the wishes of local majorities, and the country would quickly reach a democratic equilibrium. But that assumption, as we’ve seen, may be too optimistic. Since the abortion battle will be fought out in the states and in Congress, rather than settled by a national referendum, it’s possible that pro-life and pro-choice extremists could thwart the moderate compromises that national majorities have long supported."

""As the 30th anniversary of the Roe decision approaches, women's right to safe, legal abortions is in dire peril," The New York Times wrote last month in an editorial called "The War Against Women." When Roe v. Wade turned 30 on January 22, pro-choice activists repeated the conventional wisdom that abortion rights are under siege. "A woman's right to choose is probably in the greatest danger ... since Roe vs. Wade was handed down," Kate Michelman, the head of the newly renamed NARAL Pro-Choice America, told USA Today. "With a slim one-vote margin on the Supreme Court protecting freedom of choice," Michelman insists, Roe is in danger of being overturned with a single Supreme Court appointment. And, with the Senate, House, and White House in the hands of pro-lifers for the first time since Roe was decided, pro-choicers fear that its overturning would be followed by widespread restrictions on early-term abortion rights for the first time since the 1970s. But the alarmism about abortion rights is wrong. Rather than hanging by a five-to-four thread, the core principle of Roe is supported by six justices. And, even in the unlikely event that Roe were overturned, the core right it protects--the right to choose abortion early in pregnancy--isn't likely to be threatened on a broad scale. For the past 30 years, national polls have revealed a consistent and moderate consensus on abortion: Majorities strongly oppose bans on early-term abortions and strongly support restrictions on late-term abortions. If Roe were overturned, the relative political weakness of the extreme pro-life position would be exposed, and the Republican Party would be torn apart at the seams because many Republicans oppose early-term bans and would desert the party in droves. "The last thing in the world the White House would want is that Roe v. Wade is overturned," says a prominent Republican congressional aide. "The reason being is that it would energize the nation's pro-choice constituency, ... and it would cause a huge fissure in the Republican Party, which has been generally harmonious over the issue because of the belief that the pro-life position will never truly be tested." At the same time, if Roe were overturned, the expanded and moderate Democratic majority would be free to distance itself from extremists in the pro-choice movement who persist in fighting restrictions on late-term abortions, which most Americans embrace. In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized Roe on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people."

"Pro-choice activists, eager to suggest that the Court is one step away from the apocalypse, note that when the Court, in a five-four decision in 2000, struck down bans on so-called partial-birth or late-term abortions, Kennedy dissented. They portray his vote as an indication that he has changed his mind on the constitutionality of all abortions, including early-term procedures. "Kennedy jumped ship," Sylvia Law of New York University School of Law recently told Women's Enews. "Roe is always hanging by a thread." But Kennedy did not jump ship, and Roe is not hanging by a thread. In upholding Roe in the 1992 case Planned Parenthood v. Casey, Kennedy made clear that he thought the Constitution prohibited restrictions on early-term abortions and permitted restrictions on late-term ones. It was Kennedy who wrote the most sweeping and expansive sentence in that opinion upholding the core of Roe: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," he wrote. "Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." Two and a half years ago, when the Court struck down bans on late-term abortions in Stenberg v. Carhart, adopting a far more expansive position on abortion protections than the one he originally embraced, Kennedy indicated, understandably, that he felt he had been duped. His dissent, however, didn't mean that he had abandoned his moderate position. In fact, he explicitly said the opposite: "When the Court reaffirmed the essential holding of Roe [in 1992], a central premise was that the States retain a critical and legitimate role in legislating on the subject of abortion, as limited by the woman's right the Court restated and again guaranteed," Kennedy wrote in his dissent in Stenberg. "The Court's decision today ... repudiates this understanding by invalidating a statute advancing critical state interests, even though the law denies no woman the right to choose an abortion and places no undue burden upon the right.""

"[O]verturning Roe would expose the fundamental weakness of the extreme anti-abortion position. In the 30 years since the decision, public opinion about abortion has remained remarkably stable. As Everett Ladd and Karlyn Bowman of the American Enterprise Institute have noted, national polls from 1975 to the present suggest that public opinion on abortion for the past three decades has consistently included extremes on both sides that favor either no restrictions or total bans--each of which command about 30 and 20 percent support, respectively--and a vast majority in the middle that opposes both early-term bans and late-term abortions. Americans have reached a moderate consensus: In a CNN/Gallup/USA Today poll last month, 66 percent said abortion should be legal during the first three months of pregnancy; by the second trimester, when the fetus becomes viable, only 25 percent said abortion should be legal; and, by the third trimester, when so-called partial-birth abortions would be performed, only 10 percent say abortion should be legal. These numbers, too, have remained entirely consistent during the three decades since Roe was decided."

"[I]f Roe were overturned, it's true that some states would try to regulate early-term abortions. The precise number is hard to estimate. After the Supreme Court gave the states greater leeway to restrict abortion in 1989, only two legislatures--Louisiana and Utah--passed laws to ban early-term abortions (except in cases of rape or incest or to save the woman's life), and both were quickly struck down. By examining public records, including the campaign statements of governors and state legislators, NARAL estimates that twelve states "would likely ban abortion in all or most circumstances if Roe is reversed (AL, FL, LA, MN, MS, MO, NE, ND, OH, SD, TX, UT)." Ann Stone of Republicans for Choice offers a much lower estimate, arguing that first-trimester bans have a fighting chance of passing only in Louisiana, Mississippi, Missouri, Ohio, and Utah. Political scientists in several of the states on NARAL's list concur: They believe legislators in their states would be cowed by popular opinion. "Florida is basically a socially progressive state in its broad outlook; it is more pro-choice than pro-life on balance, and I don't believe the political culture in Florida really supports first-trimester bans," says Stephen Craig, a professor of political science at the University of Florida. "I would be surprised if a first-trimester ban made it into law, and I quite frankly would be surprised to see the Florida legislature even try to take such a draconian step." In North Dakota, says Robert Wood, a political science professor at North Dakota State University, "an absolute ban probably wouldn't pass. It's generally a conservative state but with a strong strain of libertarianism." GOP pollsters suggest that even legislators in the most conservative states would feel pressure from popular opinion to allow abortion not only in cases of rape or incest but also when a woman's physical or even psychological health is threatened, a broad category that would allow women and their doctors flexibility. "I think it would be hard to get a total ban through any state legislature, even Utah, because the vast majority of Americans believe that abortions are undesirable but ought to be allowable under certain circumstances," says Republican consultant Whit Ayres. And, in the handful of states that are most likely to restrict abortion except in cases of rape or incest or to save the mother's life, local scholars suggest that popular opinion tends to be more liberal than the pro-life base and that a sweeping ban would provoke a political backlash. "I think there would be a strong reaction against strict controls if the Ohio legislature passed them," says Michael Burton of Ohio University. "It would certainly cause real problems within the Republican Party in Ohio, where the Republican voters are suburban and more liberal than the legislature on most social issues." Bill Richardson of the University of South Dakota predicts a similar dynamic in his state. "I wouldn't be surprised to see a first-term-ban bill introduced" if Roe were overturned, he says. "But I think the population is more moderate." In all these states, pro-choice voters were willing to vote for pro-life candidates because they knew Roe would prevent their positions from being enacted; if Roe were overturned, they would have to think again. Pro-life legislators, as a result, would themselves think long and hard before pulling the trigger to overturn Roe."

"Roe also cited with approval Buck v. Bell. Buck upheld the power of the state to sterilize mental defectives. The Buck Court said very bluntly, “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.” And then Buck cited Jacobson v. Massachusetts, a vaccination case. Before Roe, I think every commentator would have thought that Buck v. Bell was no longer good law. It was like an old, derelict ship, maybe not officially decommissioned but ready to sink. Roe v. Wade resurrected Buck v. Bell. It cited it with approval and relied on it. If a future Court would seek to approve compulsory sterilization, it could cite Roe as authority, as well as citing Buck v. Bell."

"Roe, I think, is not about women’s rights. It is about doctor’s rights. Blackmun says in his opinion-he says not that a woman has the right to abortion. Here is the phrase. For the period of pregnancy prior to this compelling point, he says, “the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that in his medical judgment the patient’s pregnancy should be terminated;” that is, the woman doesn’t have the right to choose abortion. The doctor does, who is assumed to be male. But then in a bow to women’s rights, Blackmun said that the doctor should consult with the patient."

"Despite the increasing level of discomfort with the high court’s ruling--43% of current survey respondents express support for Roe, compared with 56% in 1991--the poll shows continued opposition to a constitutional ban on abortion."

"In recent years, Roe has been invoked by abortion opponents as a barrier to imposing limits on abortion, said Harvard’s Blendon. As a result, increasing numbers of Americans may view Roe as an obstacle to adopting restrictions for which there is broad support."

"Blackmun's files show how thoroughly his thinking about Roe and its companion case, Doe v. Bolton, changed and expanded in the year between initial oral arguments and the court's rulings. His first draft of Roe dismissed the law in question, a Texas abortion ban, as too vague. In pre-argument notes for Doe, he wrote that another abortion ban, one with limited exceptions, was "pretty good and strikes a good balance of the asserted interests.""

"The idea of a broader right to abortion bubbled up from lower courts, propelled by result-oriented arguments that seemed indifferent to how they were supported by the Constitution. The Georgia district court that had decided Doe before the case reached the Supreme Court cited both the "retained by the people" clause and the "penumbras" underlying the right to privacy. "For whichever reason, the concept of personal liberty embodies a right to privacy which apparently is also broad enough to include the decision to abort a pregnancy," the court said. Blackmun's notes convey the same casual attitude. He began with intuition and then looked for a constitutional peg. "Right of the mother to life, health, physical & mental," he wrote in October 1972. "Translated this means 9th and 14th amendment rights." In his notes, he posited an abortion right similar to the right to contraception, then conceded the difference between the two acts, but shrugged, "Whatever the answer, something fundamental is involved. [There's] much precedent for this sort of thing—Griswold, etc." In his final draft of Roe, he concluded that "This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty [or] . . . the Ninth Amendment's reservation of rights to the people, is broad enough to encompass" abortion. Fourteenth, Ninth, etc., this sort of thing, something fundamental, whatever."

"BLACKMUN'S PAPERS VINDICATE EVERY INDICTMENT of Roe: invention, overreach, arbitrariness, textual indifference. But they also implicate his critics. In a 1970 letter, Chief Justice Warren Burger lectured Blackmun about the evils of injecting personal morality into constitutional law. A year later, though, Burger prodded his colleagues to expand Roe or Doe to address the rights of would-be fathers. In December 1972, when Blackmun asked the other justices to comment on his trimester framework, Burger ignored the request and brought up the question of fathers again. Blackmun fended him off with a footnote pointing out that no law or litigant in either case had raised the question. This didn't stop Burger from resuming the lecture: When Blackmun drafted a decision-day announcement that the justices "have endeavored, too, to note the changes in attitudes" toward abortion among medical organizations, Burger wrote in the margin, "We ought not to look for it!" Burger edited the sentence to read, "We cannot escape noting, too . . ." Judicial restraint turns out to be less a principle than a pose."

"In 1973, Blackmun fumed under the suspicion that Burger was delaying Roe to avoid embarrassing President Richard Nixon before his second inauguration. But in 1992, Blackmun used his concurrence in Planned Parenthood v. Casey to warn women that the election might decide Roe's fate. Blackmun's clerks urged him to rush the case through so that it could be decided "before the election," giving "women the opportunity to vote their outrage." Meanwhile, they drafted a statement for him to deliver if the other justices voted not to proceed with such haste. The statement read: "I feel that this Court stands less tall when it defers decision for political reasons.""

"By 1992, Blackmun was so bitter he couldn't see Roe's salvation in the emerging moderate bloc of Justices Kennedy, O'Connor, and David Souter. It was Justice John Paul Stevens who warned Blackmun in 1991 not to alienate the moderates and who ultimately negotiated with them to save Roe in 1992. In the biggest political coup of his career, Blackmun was where the critics of his judicial activism said he always should have been: out of the politics and out of the action."

"In mid-1971, the Supreme Court agreed for the first time to hear a constitutional challenge to the long-standing state laws limiting abortion. Its decision to do so reverberates today. At that time, Texas and 30 other states had laws, dating from the 19th century, that made an abortion a crime unless it was performed to save the mother’s life. Georgia, like California, had revised its laws in the late 1960s to permit abortion in specific circumstances: if the mother’s health was endangered, if the pregnancy was caused by rape or if the fetus had a severe defect. The newest member of the Supreme Court, Justice Harry A. Blackmun, saw much to like in the revised abortion laws. A lawyer who greatly admired doctors, he had been general counsel for the Mayo Clinic in his home state of Minnesota before becoming a federal appellate judge. He believed that doctors needed to have leeway to do medically necessary abortions. In the court’s first private conference on the issue, he described Georgia’s law as “a fine statute [that] strikes a balance that is fair.” Yet, a year later, Blackmun wrote an opinion for the court that struck down all of the nation’s abortion laws. Equally important, his opinion made virtually all abortions legal as a matter of a constitutional right. That opinion, in the case of Roe vs. Wade, remains the court’s most disputed decision of recent decades. By abruptly voiding all laws against abortion, it galvanized a powerful antiabortion movement that has transformed American politics. It also dominates public debate over the court and its future. The Senate confirmation hearing for Judge John G. Roberts Jr., like those of all recent nominees, is focusing on one question: Will he vote to uphold or to reverse Roe vs. Wade?"

"Blackmun had said that abortion “must be left to the medical judgment of the pregnant woman’s attending physician.” So long as doctors were willing to perform abortions -- and clinics soon opened solely to do so -- the court’s ruling said they could not be restricted from doing so, at least through the first six months of pregnancy. But the most important sentence appears not in the Texas case of Roe vs. Wade, but in the Georgia case of Doe vs. Bolton, decided the same day. In deciding whether an abortion is necessary, Blackmun wrote, doctors may consider “all factors -- physical, emotional, psychological, familial and the woman’s age -- relevant to the well-being of the patient.”"

"[T]he Court remarked in Wade that litigation involving pregnancy, Which is "capable of repetition" is an exception to the federal rule that an actual controversy must exist at the time a case is decided on appeal. In Bolton the Court held that even licensed physicians consulted by pregnant women have standing to sue because they are within reach of the law's criminal provisions. These physicians "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief, asserted the Court. Thus, the abortion cases were capable of judicial resolution. Some of the Court's critics have noted that this apparent stretching of the standing rule is the result of significant enlargement of the Court's own perception of its institutional role. They would probably agree with Richard A. Epstein's assertion that "the Supreme Court today views constitutional litigation as a means of settling great conflicts of the social order." On the other hand, as Tocqueville once reminded us, all great political conflicts in America tend eventually to resolve themselves into constitutional questions. Failing to achieve their objectives by political means, proponents of liberalized abortion laws naturally gravitated to the judiciary, seeking victory on more favorable terrain. For purposes of this analysis, however, it is not the victory that is important, but rather the Court's own capacity to persuade a reasonably open mind of the validity and propriety of its ultimate ruling."