Women

"Even many of Roe’s friends want to rewrite it, but so far no attempt to do so has been wholly successful. Those who have followed the Court’s lead by emphasizing the exceedingly personal nature of the woman’s decision have had as little success at locating her privacy in the text of the Constitution as the Court itself did. Philip Bobbitt’s proposed principle, tat “[g]overnment may not coerce intimate acts,” is appealing, but it appears nowhere in the document. Hermann and Barzelay’s defense of Roe, which has been called “the principal scholarly defense of that opinion,” largely concedes the critics’ point by relying heavily on the thesis (not explicitly adopted by Roe itself) that constitutional law need not bear any direct relationship to the text of the Constitution. Many lawyers and judges endorse that thesis, but it is dangerous for a defense of abortion to rely upon it exclusively, given the increasingly influential view that “[t]he Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.” Moreover, the privacy argument has internal tensions, because “[t]he pregnant woman cannot be isolated in her privacy.” Unlike the liberties protected in the other privacy cases, abortion is arguably not private at all, because “the termination of a pregnancy typically involves the destruction of another entity: the fetus.” A privacy-based defense of abortion seems to depend on the premise that the woman’s choice affects only herself-in other words, that the fetus is not a person. And this premise is, of course, impossible to prove."

"Footnote 4 Webster, 109 S. Ct. at 2067 (Blackmun, J., concurring in part and dissenting in part) (“The simple truth is that Roe would not survive the plurality's analysis.” And (id. At 3058 (opinion of Rehnquist, C.J.) (“This case . . . affords us no occasion to revisit the holding of Roe . . . and we leave it undisturbed.”) and id. At 3060 (O’Connor, J., concurring in part and concurring in the judgment) (“there is no necessity to accept the State’s invitation to reexamine the constitutional validity of Roe v. Wade”). Probably the bet summary of Webster’s effect is Justice Scalia’s observation that the decision “preserves a chaos that is evident to anyone who can read and count.” Id. At 3065 (Scalia, J. concurring in part and concurring in the judgment). Since Webster purports to leave it undisturbed, this Article will take the Court at its words and presume that Roe is still good law."

"[A] law forbidding abortion cannot be sustained if the state is unable to carry the burden of persuading the court that a fetus is, or should be considered to be, a person.154 While its opinion has many weaknesses, the Roe Court was surely correct to conclude that this burden had not been met."

"The right to abortion has become taken for granted by many. Whatever the deficiencies of Roe’s original reasoning, “millions of women, and their families, have ordered their lives around the right to reproductive choice, and . . . this right has become vital to the full participation of women in the economic and political walks of American life” An upheaval in the nation’s fundamental law requires a more compelling justification than the bald fact that were the present personnel of the Court writing on a blank slate, they would construct the law differently. The point of adhering to precedent is that the public deserves protection from such precipitous judicial revolutions; that is why before the ordinary rule of “stare decisis” is rejected, “the unconstitutionality of the course pursued” should be “made clear.” Because such clarity is simply unavailable in the abortion controversy, Roe should remain the law."

"Despite the Supreme Court's putative "reaffirmation" of part of Roe in Planned Parenthood v. Casey, these opinions remain highly contentious because the constitutional premises upon which they rest are so wholly erroneous as to be non-existent in law. The writer Santyana enjoins us to learn from history."

"None of the Justices claim there is a specific textual guarantee of abortion to be found anywhere in the constitutional document. Nor does the abortion claim find legitimacy within the background principles of common law out of which the American Constitution emerged. As Bracton records, and the draft opinions within the internal Marshall papers indicate the Justices knew, abortion has little common law support, and was clearly thought by some to be homicide. [II Bracton, On the Laws and Customs of England 341 (Thorne ed. 1968), a citation to which can be found in Justice Blackmun's 4th circulated draft in December 1972]. Because of the more rudimentary nature of science in the 18th and 19th centuries, the common law drew a distinction between abortions before and after quickening [16 to 18 weeks], but under English codification in 1803 both were criminal only in different degrees. When medical science advanced, the quickening distinction receded, and penalties for all abortions increased. In 1868, when the 14th Amendment was adopted, statutory prohibitions or restrictions on abortion were commonplace. Twenty-eight states of the then 37 and 8 territories banned or limited abortion. [J. Mohr, Abortion in America at 200 (1978)]. The Court's drafts also reveal that the decision was not being guided by ancient precepts of medical ethics. In this respect, the Hippocratic Oath dating back three to four hundred years before Christ, had doctors pledging that they "will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner . . . not give to a woman a pessary to produce abortion." [The 4th circulated draft of Justice Blackmun's opinion in Roe cites the Hippocratic Oath, but cavalierly dismisses it on the basis of academic writing that found it to be held as true only within Pythagorean Greek culture. Why the Pythagoreans should be so ill-treated, or deemed uninfluential, is not explained. Indeed the Oath, which coincides with prevalent Christian belief since the end of antiquity, became the "nucleus" of medical ethics.]"

"By late May, Justice Blackmun had fully joined the Douglas-Brennan circle [which also included Potter Stewart and Thurgood Marshall] in favor of creating an abortion right. [Memorandum to the Conference, dated May 31, 1972]. Justice Blackmun's memoranda reflect highly legislative considerations almost exclusively. For example, he proposes to invalidate most of the Georgia statute, except maybe those requiring an abortion to occur in a licensed and accredited hospital. [Memorandum to the Conference from Harry Blackmun, dated May 25, 1972]. Demonstrating that none of these specific invalidations were rooted in constitutional text or history, however, Justice Blackmun holds open the possibility, like a good legislative lobbyist, that may be "some of you may wish to take that step, too [that is, allowing abortions outside hospitals]." [Id., the Court did take that step.] The particulars of the Court's legislative considerations still tangled, Justice Blackmun, at month's end, urges that Roe and Doe be reargued. [Memorandum to Conference from Harry Blackmun, dated May 31, 1972]."

"The cases were reargued, but only over Justice Douglas' extraordinary and harshly written protest. [An internal Letter from William O. Douglas to Warren Burger, dated June 1, 1972, threatens "[i]f the vote of the Conference is to reargue, then I will file a statement telling what is happening to us and the tragedy it entails." Justice Douglas filed a published written dissent to setting the cases over for reargument]. Perhaps, the key to understanding why the Court, notwithstanding Douglas' protestations, pursued reargument lies with the gentlemanly prodding of new Justice Powell. As mentioned, Powell had recently joined the Court, and he asked politely for reargument, pointing out that "Harry Blackmun, the author of the (draft] opinions, thinks the cases should be carried over and reargued next fall. His position, based on months of study, suggests enough doubt on an issue of large national importance to justify the few months delay." [Memorandum to the Conference from Lewis Powell, dated June 1, 1972]."

"In November, Harry Blackmun writes the final drafts of opinions that today we know rather infamously as Roe v. Wade, 410 U.S. 113 (1973) and Doe v. Bolton, 410 U.S. 179 (1973). Again, no real discussion of law occurs in the internal deliberations; instead, there is the startling admission from Justice Blackmun in the presentation of his near final draft that "you will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary." [Memorandum to Conference from Harry Blackmun, dated November 21, 1972, emphasis added]. So, there you have it. A confession by the principal author of the most infamous decision in this century, and perhaps after Dred Scott, ever, revealing that arbitrary choice -- not discernment of the law of the land -- accounts for the result in Roe. Law, legal history, constitutional allocations of power, all ignored. The abortion right derives not from background principles of common law; not in the first principles of our constitutional republic; not as a result of careful parsing of constitutional text."

"Between late November and the end of the year, Blackmun observes how he's thinking about moving what he called previously the "critical" line from the end of the first trimester to viability. He admits that he chose the end of the first trimester largely for marketing reasons, writing: "I selected the earlier point because I felt that it would be more easily accepted (by us as well as others) . . ." [Memorandum to the Conference from Harry Blackmun, dated December 11, 1972]. He is hesitant, however, if moving the line would cost him votes on the merits. ["I would be willing to recast the opinions at the later date (viability instead of the end of the first trimester), but I do not wish to do so if it would alienate any Justice who has expressed to me, either by writing or orally, that he is in general agreement, on the merits, with the circulated memorandum." [Id.]"

"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."

"37. According to polls, most Americans held views that aligned with Roe v Wade at the time it was decided: ‘64 percent of American believed that abortion should be a personal decision to be made by a woman and her physician’ (Faux 304). Nonetheless, opponents of the decision tried to reverse Roe v Wade with congressional legislation (Emerson 129–30), with a constitutional amendment (Faux 318), and with litigation before the → Inter-American Court of Human Rights (IACtHR) (Baby Boy Case 18(h), 30–31). All of these efforts failed. 38. More limited efforts to cabin the effects of Roe v Wade proved successful, however. In 1976, Congress passed the Hyde Amendment, which barred federal Medicaid funds for abortion and thereby made abortion inaccessible for many poor women, at least in those states without state funds for such purposes. A narrowly divided Supreme Court upheld the law in Harris v McRae. Opponents of abortion also advanced other laws that impeded access to abortion to varying degrees (Thornburgh v American College of Obstetricians and Gynaecologists 759), noting that such laws will ‘often shut down clinics’ (Biskupic). Roe v Wade itself signaled that some of these efforts might be permissible by acknowledging the state’s interest in maternal health (Roe v Wade 165), although Doe v Bolton suggested real limits. These efforts caused courts to be ‘drawn further and further into an array of subsidiary technical questions regarding abortion’ (Wilkinson 276). As of 2009, the Supreme Court had decided ‘more than twenty-five cases involving abortion’ (ibid)."

"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."

"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."

"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."

"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."

"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."

"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.”"

"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."

"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."

"[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."

"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."

"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."

"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."

"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."

"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."

"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."

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

"“The 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."

"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.”"

"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."

"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."

"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?”"

"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."

"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."

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

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

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

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

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

"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."

"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."

"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."

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

"Today, as in the early 1970s, the American public appears to have decidedly mixed views on abortion. In a Gallup poll in May, for instance, only 23% of those surveyed said abortion should be “legal under any circumstances,” the rule set by Roe vs. Wade. Only 22% said abortion should be “illegal in all circumstances,” the rule that could take effect in many states if the Supreme Court were to overturn Roe vs. Wade. The largest group -- 53% -- said abortion should be “legal only under certain circumstances.” But Roe vs. Wade foreclosed this middle course -- for the states as well as for the court. It does not give states the room to adopt what might be a popular compromise: permitting abortions during the first three months of a pregnancy, but not afterward. Nor does it permit states to authorize only “medically necessary” abortions, a reform idea of the late 1960s."

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

"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.”"

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