Women

"On May 31, according to the same book, Douglas wrote Blackmmun again: I have your memorandum submitted to the Conference with suggestion that these cases be reargued I feel quite strongly that they should not be reargued. My reasons are as follows. In the first place, these cases which were argued last October have been as thoroughly worked over and considered as any cases ever before the Court in my time. I know you have done yeoman service and I have written two difficult cases, and you have opinions now for a majority, which is 5. There are always minor differences in style, one writing differently [from[ another. But those two opinions of yours in Texas and Georgia are creditable jobs of craftsmanship and will, I think, stand the test of time. While we could sit around and make pages of suggestions, I really don’t think that it is important. The important thing is to get them down."

"[M]ost of the quotations I read that day reflected my thoughts accurately. The Houston Post quoted me as “feeling glad for the women of Texas, who now will have access to abortion services.” It also noted my statement that “I would much prefer [that] we did not have the abortion problem, that instead pregnancies be prevented,” and my vow “to lead the legislative battle to liberalize the flow of contraceptive information to minors.” One of the few stories that captured my real feelings on the day we won, however, didn’t appear until a few weeks later, in the Milwaukee Journal: “Sarah Weddington looked uncomfortable as the women pressed close to her, offering their thanks. ‘If I hadn’t done it, someone else would have,’ she explained to them.” Indeed, I saw Roe as part of a much larger effort by many attorneys. I was the one who, through a series of quirks, stood before the Court to represent all of us. Had a different string of events occurred, another case might have been the one to make history. Ron and I also read observations from those who were distressed by the Court’s decision; obviously, not everyone was as pleased as we were about the news. Around the country the antis too had been burning up the telephone wires-but they were talking about how they could overturn the decision, or avoid or blunt its impact. I have always wondered if some of the anti-abortion folk thought the fact that United States and Texas flags flew at half-mast on that January 22, as they did because of President Johnson’s death, was doubly appropriate because of the depths of their disagreement with the decision."

"Neither Linda nor I questioned her further about how she had gotten pregnant. I was not going to allege something in the complaint that I could not back up with proof. Also, we did not want the Texas law changed only to allow abortion in cases of rape. We wanted a decision that abortion was covered by the right of privacy. After all, the women coming to the referral project were there as a result of a wide variety of circumstances. Our principles were not based on how conception occurred."

"Q: Ten years ago, we asked if you thought the Roe v Wade ruling will stand for another 30 more years. You said, “I despair when I look at who has the power today.” Do you still feel that way? Having Obama as president means that if there are any vacancies on the Supreme Court, I think that Obama would be likely to appoint a judge who would favor Roe vs. Wade. What I worry about now and for the next ten years is, will women still have access to abortion? State legislatures have begun to pass all kinds of restrictions that really make it harder for women to access services. If you look at who’s passing those regulations, they are not people who say, “We’re in favor of abortion being available and we just want to be sure they’re safe.” They are people who are totally opposed to abortion. What they really want is to try and do everything they can to be sure there are no abortions available."

"Q: Abortion is a very emotional issue and a religious issue for a lot of people. As an attorney, you had to argue using very specific language about constitutional rights. Do you think that’s hard for people to understand? Sometimes I think it is, because some people just say, “My faith is opposed to abortion.” But we live in a country where we can have many faiths, and we don’t impose the law of one faith on everybody. And so we go back to the constitution. What was the view of our founders? And it was that there are many parts of life which are so personal – the word privacy is not in the constitution but certainly the concept is – and so the founders basically were saying, “We really believe that the government should not make our most important decisions.” When I was arguing Roe vs. Wade, there were a lot of religious groups that were saying, what the anti-abortion laws do to women in terms of their health, physical and psychological, isn’t right. We’ve got to change it. So the United Methodist Church, Unitarian Universalist Alliance, and the Jewish groups, a whole variety of religious groups filed in our favor."

"Q: The audio from your arguments before the Supreme Court is widely available online. Do you ever go back and listen to it? Yes, I do. It’s the argument where 40 years ago, I was saying, “We are not asking this court to decide that abortion is good, or that everyone should have one. We are asking this court to decide that that issue is one for the individual to decide, not the government.” And it’s the same thing that I would say today."

"19. The decision established a woman’s constitutional right to an abortion. The Court framed the discussion by acknowledging the sensitive, deeply held, and diverse views on the topic of abortion. However, it suggested, not without criticism by some scholars (Myers 1029 and n. 29), that the law historically was more permissive regarding abortion, especially for abortion performed during the early stages of pregnancy (Roe v Wade 140–41). The Court canvassed Greek and Roman law, English and US statutes, and the medical and legal establishments’ positions on abortion. This analysis supported the Court’s trimester framework set forth later in the opinion (ibid 165). The references to English statutory and case law, in particular, ‘bolstered its own case that the US Constitution created a right to an abortion, even though the Court never explained why foreign law ought to control the meaning of the Fourteenth Amendment’ (Calabresi and Zimdahl 872)."

"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)."

"46. Individual justices continued to critique Roe v Wade in later cases. For example, in Planned Parenthood of Southeastern Pennsylvania v Casey, Justice Scalia said that the Constitution does not limit states’ ability to regulate abortion ‘because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed’ (Planned Parenthood of Southeastern Pennsylvania v Casey 980 (Scalia, J, dissenting, joined by Rehnquist, CJ, White, J, and Thomas, J)). In his dissent in Whole Woman’s Health v Hellerstedt, Justice Thomas, while not blaming Roe itself for the Court’s ‘illegitimate made-up tests’ (ibid 12, 14), blamed the Court’s ‘special treatment of certain personal liberties’, including those created though substantive due process, for the wrong outcome in many abortion decisions. This special treatment included the right to privacy that lead to Roe v Wade itself (ibid 15)."

"47. Scholars are divided about whether the Court should have created a constitutional right to abortion. John Hart Ely criticized the Court for not explaining why privacy is involved, and argued the right ‘lacks even colorable support in the constitutional text, history, or any other appropriate source of constitutional doctrine’ (Ely 931–32, 943). Others have echoed this sentiment, calling the Court’s analysis ‘startlingly shoddy’, (Myers at 1027) and ‘outcome-based jurisprudence’ (Lamparello and Swann 2–3). Ronald Dworkin, in contrast, found critics’ distinction between ‘unenumerated rights’ and ‘enumerated rights’ preposterous (Dworkin 390). He applauded the Court’s ability to derive the right to procreative autonomy from a ‘holistic interpretation of the Bill of Rights’ (Dworkin 418–26). Yet others have suggested that the Equal Protection Clause would have been a preferable or an additional justification for the holding (see eg Ginsburg), and that rationale has crept into some subsequent cases. For example, the joint opinion in Planned Parenthood of Southeastern Pennsylvania v Casey mentioned that ‘[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives’ (Planned Parenthood of Southeastern Pennsylvania v Casey 856). Justice Ginsburg has also mentioned that rationale in later cases (see eg Gonzales v Carhart 172 (Ginsburg, J, dissenting))."

"51. Today the ‘pro-choice’ position in the United States is associated with the Democratic Party and the ‘pro-life’ position with the Republican Party (Greenhouse and Siegel 2068). However, the year before Roe was decided, more Republicans (68 percent) than Democrats (59 percent) thought that abortion should be a decision between a woman and her physician (Greenhouse and Siegel 2031). In addition, Republican presidents nominated five of the seven justices in the Roe v Wade majority (Justices Blackmun, Burger, Powell, Brennan, Stewart). The opinion also seemed to be influenced by the abortion decisions of Judge Jon O Newman, then a judge for the District of Connecticut, who was also nominated by a Republican president (Hurwitz 236–39, 242–45). Some scholars explain that Roe v Wade embodied ‘conservative views’ because it was a ‘family planning case’, embodying the views ‘[t]hat social stability is threatened by excessive population growth; and that family stability is threatened by unwanted pregnancies, with their accompanying fragile marriages, single-parent families, irresponsible youthful parents, and abandoned or neglected children’ (Grey 88). 52. After Roe v Wade, a gradual party realignment occurred. By the end of the 1980s, Republicans were more ‘pro-life’ than Democrats (Greenhouse and Siegel 2069). However, it is ‘simply and utterly wrong’ to attribute the anti-abortion movement and the resulting political division to Roe v Wade (Garrow (1999) 841). Prior to Roe v Wade, ‘political party realignment’ had already started because the Catholic Church was involved in opposing legislative efforts at abortion liberalization, and Republicans were already trying to attract Catholic voters (Greenhouse and Siegel 2032–33, 2047–67). The extent to which Roe v Wade accelerated the political polarization on the issue abortion in the United States, and by how much, is an open question. F. Conclusion 53. Roe v Wade has had a significant impact in the United States on abortion rights, women’s self-determination, the constitutional notion of privacy, and the Supreme Court’s role in adapting the Constitution to changing conditions. Roe v Wade drew on other nations’ experiences and has become, in turn, a reference point for others outside of the United States as they grapple with many of the same issues. The case provides an important source of analysis for comparatists."

"The Essay argues that the right to abortion constitutionalized in Roe v. Wade is by some measure at odds with a capacious understanding of the demands of reproductive justice. No matter its rationale, the constitutional right to abortion is fundamentally a negative right that rhetorically keeps the state out of the domain of family life. As such, the decision privatizes not only the abortion decision, but also parenting, by rendering the decision to carry a pregnancy to term a choice. It thereby legitimates a minimalist state response to the problems of pregnant women who carry their pregnancies to term and for poor parents who might need greater public support. These marginalized groups need greater community and state assistance with the demands of parenting, and the equation of reproductive justice with a right to terminate a pregnancy is in tension with a political or legal agenda for meeting those needs. The Essay then explores the possibility of creating a right to legal abortion through ordinary political means, rather than through constitutional adjudication, in such a way as not to carry these costs."

"Briefly, I look at three such costs of the abortion right, which I refer to as (1) legitimation costs, (2) democratic costs, and (3) aspirational costs. All three of these general types of costs of rights have been well developed in the various “rights critiques” produced by critical legal scholars during the 1970s and 1980s. None, however, has been applied to the particular case of abortion rights. Individual, negative, constitution al rights, according to their critics, keep the state off our backs and out of our lives, but they also run the risk of legitimating the injustices we sustain in the insulated privacy so created; they denigrate the democratic processes that might generate positive law that could better respond to our vulnerabilities and meet our needs; and they truncate our collective visions of law’s moral possibilities. All three costs, I will argue, attend to the abortion right created by Roe v. Wade."

"Why is there not more pro-choice criticism of Roe, and of its varying and various rationales? The lack of such commentary is odder than it might first seem. The liberal adjudicated victories of the Warren and Burger Courts, with the one exception of Roe, generated massive amounts of critical commentary from theorists purporting to speak for the interests of the victorious parties in those cases and the communities they roughly represented. Brown v. Board of Education, to take the most iconic example, has generated a burgeoning cottage industry of critique, eventually coalescing in the creation of an entire scholarly movement—critical race theory—that was rigorously critical, on left-wing and racial-justice grounds, of that decision’s liberal, rights-expansive, and integrationist ideals. Thus, according to its progressive critics, Brown hid the massive problems of underfunded public education under the false covering of a legally reformed and racially fair integrationist ideal, and articulated an account of de jure segregation as the evil to be addressed by civil rights law that left an insidious pattern of de facto segregation both intact and legitimated. It birthed an entire ideology of “color blindness” that did little but undercut serious attempts at redistributive racial justice, including affirmative action programs in employment and education both. Brown lent a veneer of fairness to purportedly meritocratic hierarchic orderings that result from individual and state decisionmaking and that continue to subordinate poor people. It relied on a cramped and ungenerous vision of “rights” and “integration” that both truncated rather than generated political progress on these and other progressive causes. All of this, again, stems from the champions of racial justice, not antagonists. Other less revered but nevertheless substantial Warren, Burger, and Rehnquist Court progressive victories also have prompted scathing critiques by progressive legal scholars. Miranda v. Arizona prompted worry as well as celebration among advocates for the interests of criminal defendants: the right the Court created might constitute a triumph for nothing but a formalistic and legitimating conception of interrogatory justice, setting back, rather than advancing, the cause of respectful and noncoercive treatment of criminal defendants. Likewise, the more recent Lawrence v. Texas decision prompted plenty of accolades but also its share of criticism from equality-minded legal scholars. In elevating sex into the realm of those aspects of life and identity so highly regarded as to be worthy of constitutional protection, some argued, it might further burden the work of protecting vulnerable people against sexual harassment and assault."

"Neither the vulnerability nor efficacy of Roe, nor the partial truth it expresses, is a good reason not to engage in critique. There are also, however, costs to the reticence. The lack of such a critique, I will argue, has dulled us to the degree to which the rhetoric of adjudicated abortion rights might have weakened reproductive justice more broadly conceived. But it is also worth noting that even if feminism’s or progressivism’s or the Democratic Party’s sole goal were to strengthen this embattled right, there is a strong pragmatic case for pro-choice feminist critiques of the way that right is now constructed: by its steadfast loyalty to Roe the pro-choice community is in danger of losing this war by fighting—even if winning—yesterday’s battle. Pro-life movement activists increasingly look to reduce abortions not by reversing Roe and criminalizing abortion, but rather through a three-pronged strategy, no part of which is dependent upon Roe’s reversal: first, by passing restrictions the Court will uphold even with Roe on the books; second, by reducing abortion supply and demand by intimidating clinics and clinicians and shaming the women who use them; and third, by reducing the long-range cost of pregnancy by urging more political and communitarian support for motherhood, particularly for poor women. For pro-life constituencies, the grounds of contestation of legal abortion have shifted to the local, political, and moral, and away from the constitutional-adjudicative. The pro- choice community’s fixation on the apparently never-ending project of finding adequate grounds for adjudicated abortion rights blinds it to this development."

"There are at least three major costs of the right created in Roe that seem to be underappreciated by the pro-choice community. All three are suggested by the various critiques of negative rights, of the Left’s reliance on courts to create and protect them, and of the liberal-legal political commitments that underlie them, which were pioneered by the critical legal scholarship of the 1970s and 1980s. They are as follows: (1) choice-based arguments for abortion rights legitimate considerable injustice, both in women’s reproductive lives and elsewhere; (2) the Court’s active role in creating this jurisprudence exacerbates antidemocratic features of U.S. constitutionalism, to women’s detriment; and (3) the arguments do not do justice to the aspirational goals of the women’s movement’s early arguments for reproductive rights."

"The danger I want to highlight is that the individual right to terminate a pregnancy created by Roe v. Wade might have the effect not only of legitimating the coercive sex that might have led to it, but also of legitimating the profoundly inadequate social welfare net and hence the excessive economic burdens placed on poor women and men who decide to parent. As Roe and the choice it heralds to opt out of parenting become part of the architecture of our moral and legal lives, we increasingly come to think of the decision to parent, no less than the decision not to parent, as a chosen consumer good or lifestyle—albeit a very expensive one. As this shift in consciousness occurs, it may come to seem, at least for many, that the only role for a caring or just society, here as elsewhere, is to ensure that that consumer choice to parent or not parent is well informed. Making sure that choices are well informed, after all, exhausts the role of the state in regulating consensual affairs, particularly market-based ones, in a culture that valorizes consensual market transactions."

"First, the critics complained that constitutional rights, in spite of their occasional progressive potential, have tended to protect individuals’ commodificationist rights to contract and property rather than to serve people’s needs, and would likely continue to do so. The right created by Roe is no exception. Roe’s holding, whether couched in terms of liberty or privacy, did indeed quickly devolve into a bare negative contract right to buy a particular medical service—an abortion—free of moralistic intrusion by state legislators who would paternalistically intervene into that—or any other—consensual purchase. The right became a stick in a bundle of negative rights to our bodies and labor, that we wield in order to keep the state out of our sex lives: we have a right to birth control, a right to same -sex sex, limited rights to produce and consume pornography, and a right to en gage in the commercial and medical consultation necessary to secure an abortion to end the pregnancies in which all that protected sex sometimes result. It has furthered the cause of unfettered sexuality in open markets, for purchase and otherwise, by giving us a property right in the pregnancy and a contract right to purchase the means to end it. It has done nothing, however, to further the satisfaction of the positive needs— whether understood as rights or not of either pregnant women or parents. By relentlessly celebrating negative rights as the route to women’s liberty and equality, and thereby impliedly castigating politically secured legislation as the evil against which negative rights—and hence, liberty and equality both—are constructed, it has undermined the case for the very sorts of positive legislative schemes that might do so."

"Roe v. Wade and its progeny are not, of course, responsible for the degradation of politics that has become the natural counterpart of the institution of judicial review, its high-minded justifications, and the reverence we now accord it. It does, though, exemplify it. When the Court speaks of the hallowed right to privacy in which it locates abortion, it speaks of the sanctity of marriage and family, of individual liberty, of equality or dignity, of respect, and of the great and deepest mysteries of life. It speaks of the constituents of individual identity, and of what is most important to a well-led life, of the grand promises of the Fourteenth Amendment, of the importance of precedent to political and social order, of the needs of all of us to be free of a “jurisprudence of doubt,” and of the importance of consistency, integrity, and moral principle in decision making and in our law. The contrast between what the Court and commentators say when speaking of this right, and what abortion rights advocates say in the public sphere when defending or addressing the need for legal abortion, could not be starker. When advocates speak of abortion in the public sphere and outside the courts, they do not talk, for the most part, about a “jurisprudence of doubt” or the importance of precedent or of principled judicial decision making, of liberty, dignity, or even equality. Rather, they most often speak of women’s bodies. They speak of the dangers to women’s health that are posed by many pregnancies. They speak of the lives that have been lost to illegal abortion. They talk a lot about hemorrhaging, and of women and girls bleeding to death in botched back-alley abortions. They speak of fear and terror. They speak of lives shortened, or narrowed, or rendered mean and uncompromising by dangerous pregnancies, or too many unplanned pregnancies, or too many children, or too much mothering. They speak of shattered dreams, or girls with low or no expectations for their own futures. They often speak of abusive stepfamily members, of domestic violence, and child rape. They speak of intentional, deeply wanted pregnancies gone wrong: they talk about diseased fetuses, miscarriages, and tragic choices. They talk about stillbirths and life-threatening complications. They speak of the earthy, present, demanding, felt, fought-over need of women to control their bodies and fate."

"The contrast on the other side of this debate, between the rhetoric of the Court and commentators on the one hand, and activists on the other, is if anything even more stark, although it is beginning to narrow somewhat, at least if Gonzales v. Carhart is any guide. In the public square, pro-life advocates speak, argue, petition, canvas, and beseech us to attend to the biological lives of unborn babies. They wield pictures of fetal life and body parts. They deploy sonograms and give voice to silent screams. They push their listeners to identify with the unborn, to open their sympathies and their hearts to the least of these, to pull fetal life into the human community, to recognize us in them and them in us. Conservative legal critics of Roe v. Wade, on the other hand, speak rarely if at all of any of this. Rather, they speak of originalism, of constitutional integrity, of the close readings of texts, of plain meaning, and of the lack of the word “privacy” in the text of the Constitution. They worry over the integrity, identity, and future of the Constitution. There is little talk, either on the Court or in the pages of scholarly commentary that is hostile to Roe, about fetal life, silent screams, or unborn babies, and even less about the struggles facing women with unwanted or dangerous pregnancies. The discussion is principled, constitutional, and historical. It does not stem from a visceral identification with or sympathy for the plight of murdered babies."

"Another way to string the beads aligns Roe with other cases that establish what I call “lethal rights,” or defensive rights to kill. On this understanding, Roe is part of a narrative that also prominently includes District of Columbia v. Heller. Thus, the Court in Heller created, or discovered, a right to own a handgun, desired not only by gun enthusiasts and hunters, but also by citizens who worry that the state will not defend them against aggressors in their home or elsewhere. The right to own a gun, read in this way, is the complement to the Court’s refusal to grant a positive right to a state’s protection against private violence: if you do not have a right to the state’s protection against violence, but you do have a right to kill in self-defense, then it becomes quite natural that you must have a prior right to the arms necessary to exercise it. Viewed as a bead on that string, we might understand Roe as granting a right to kill fetal life, made all the more desirable by virtue of the state’s refusal to create meaningful systems of health and child care, and the Court’s refusal even to consider the possibility of creating a ri ght to such assistance. A right to an abortion looks all the more desirable if one has no right to assistance in dealing with the economic stresses of parenting. It becomes another “defensive” lethal right, necessitated, in part, by an excessively minimalist state. The rights created by the Court in Heller and Roe have more than a slight family resemblance."

"[T]he dominant narrative puts Roe in line with cases protecting sexual expression, not personal liberty, and not self-defense. On the dominant understanding, Roe is on a string of beads with Griswold v. Connecticut, Eisenstadt v. Baird , and Lawrence, not with Lochner, and certainly not with Heller. What Roe does, along with Griswold, Eisenstadt, and Lawrence, is protect an individual’s right to have nonreproductive sex. What is stressed, on this story, is the consequence for sexual freedom to be garnered from the right to be free of the risk of pregnancy."

"So long as this Court adheres to Roe v. Wade, 410 U. S. 113 (1973) , and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) , Targeted Regulation of Abortion Providers laws like H. B. 2 that “do little or nothing for health, but rather strew impediments to abortion,” Planned Parenthood of Wis., 806 F. 3d, at 921, cannot survive judicial inspection."

"Roe v. Wade, 410 U. S. 113 (1973), held that women seeking abortions fell into the mootness exception for cases “ ‘capable of repetition, yet seeking review,’ ” enabling them to sue after they terminated their pregnancies without showing that they intended to become pregnant and seek an abortion again. Id., at 125. Yet, since Singleton, the Court has unquestioningly accepted doctors’ and clinics’ vicarious assertion of the constitutional rights of hypothetical patients, even as women seeking abortions have successfully and repeatedly asserted their own rights before this Court."

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

"In 1938, seven Justices heard a constitutional challenge to a federal ban on shipping adulterated milk in interstate commerce. Without economic substantive due process, the ban clearly invaded no constitutional right. See United States v. Carolene Products Co., 304 U. S. 144 –153 (1938). Within Justice Stone’s opinion for the Court, however, was a footnote that just three other Justices joined—the famous Carolene Products Footnote 4. See ibid., n. 4; Lusky, Footnote Redux: A Carolene Products Reminiscence, 82 Colum. L. Rev. 1093, 1097 (1982). The footnote’s first paragraph suggested that the presumption of constitutionality that ordinarily attaches to legislation might be “narrower . . . when legislation appears on its face to be within a specific prohibition of the Constitution.” 304 U. S., at 152–153, n. 4. Its second paragraph appeared to question “whether legislation which restricts those political processes, which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the [14th] Amendment than are most other types of legislation.” Ibid. And its third and most familiar paragraph raised the question “whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” Ibid. Though the footnote was pure dicta, the Court seized upon it to justify its special treatment of certain personal liberties like the First Amendment and the right against discrimination on the basis of race—but also rights not enumerated in the Constitution.[2] As the Court identified which rights deserved special protection, it developed the tiers of scrutiny as part of its equal protection (and, later, due process) jurisprudence as a way to demand extra justifications for encroachments on these rights. See Fallon, 54 UCLA L. Rev., at 1270–1273, 1281–1285. And, having created a new category of fundamental rights, the Court loosened the reins to recognize even putative rights like abortion, see Roe, 410 U. S., at 162–164, which hardly implicate “discrete and insular minorities.”"

"JUSTICE BREYER, with whom JUSTICE SOTOMAYOR and JUSTICE KAGAN join, dissenting. The procedural posture of this case leads a majority of this Court to deny the applicants’ request for provisional relief. In my view, however, we should grant that request. I agree with THE CHIEF JUSTICE, JUSTICE SOTOMAYOR, and JUSTICE KAGAN. Texas’s law delegates to private individuals the power to prevent a woman from obtaining an abortion during the first stage of pregnancy. But a woman has a federal constitutional right to obtain an abortion during that first stage. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 846 (1992); Roe v. Wade, 410 U. S. 113, 164 (1973). And a “State cannot delegate . . . a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.” Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 69 (1976) (internal quotation marks omitted). Indeed, we have made clear that “since the State cannot regulate or pro-scribe abortion during the first stage . . . the State cannot delegate authority to any particular person . . . to prevent abortion during that same period.” Ibid. The applicants persuasively argue that Texas’s law does precisely that."

"JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and JUSTICE KAGAN join, dissenting. The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention. Ante, at 1. Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent."

"Lawyers for the states of both Georgia and Texas argued that abortion restrictions were appropriate because the state ad a legitimate interest in protecting “fetal life.” This was the argument that the pro-life movement had been making for years, but the attorneys-particularly the attorney for the state of Texas-struggled to articulate it during oral arguments and failed to present a coherent defense of restrictive abortion laws. The lawyer representing the state of Texas could not explain why women in his state were not prosecuted for self-abortion if the primary purpose of the restrictive abortion statute was to protect fetal life, nor could he explain why his state’s law contained to exception for rape The defense lawyer for the state of Georgia, a young assistant attorney general named Dorothy Beasley, delivered a stronger performance, beginning with her opening statement that the central issue in the case was “the value which is to be placed on fetal life.” But she struggled to explain why, if preservation of fetal life was so important, her state allowed abortion in cases of rape, fetal deformities, and instances when pregnancy endangered a woman’s health, while prohibiting abortion more generally. Indeed, the attorneys seemed more interested in addressing other legal arguments-such as whether the plaintiffs had standing to sue-than in addressing the fundamental issues of fetal life. At one point, the Texas state attorney even drifted into a bit of personal philosophizing that indicated he was as unsure about the beginning of human personhood as most Americans outside of the pro-life movement were- a concession that surely did not help his case “there are unanswerable questions in this field,” he said, when asked if he was prepared to argue that the fetus deserved legal protection even at “one hour” after “impregnation.” ”When does the soul come into the unborn-if a person believes in a soul?” he asked, “I don’t know.”"

"Pro-life lawyers had complained before about the poor quality of state attorney’s attempts to defend restrictive abortion statutes. This time, they decided that they would take matters into their own hands. In 1971, they sent the Court their own amici curiae briefs to make the arguments that the state attorneys were unprepared to deliver. Charles Rice, a Notre Dame law professor who had been producing pro-life materials for years, filed a brief on behalf of the new pro-life organization Americans United for Life (AUL) reiterating the pro-life movements longstanding Fourteenth Amendment argument. Rice cited several decades’ worth of tort cases in which lower courts had awarded damages to plaintiffs who had lost an unborn child in an accident. In some of those cases, judges had explicitly recognized the personhood of the fetus. A group of lawyers led by Dennis Horan, also affiliated with AUL, filed another brief consisting of several pages of fetal photographs and other medical evidence to persuade the Court that medical science supported the pro-life movement’s claim that fetuses were human persons with constitutional rights. More than 200 pro-life doctors, including most of the leading medical professionals in the movement-Mildred Jefferson, Fred Mecklenburg, Joseph Stanton, and others-signed their names to the brief."

"Harry Blackmun questioned Weddington again on the issue of fetal personhood, as did Potter Stewart. They wanted her to concede that if the fetus was a person with constitutional rights, a woman could not have a constitutional right to unrestricted abortion. “If it were established that an unborn fetus is a person, with the protection of the Fourteenth Amendment, you would have an almost impossible case here, would you not?” Stewart asked, This time, Weddington reluctantly acknowledged the force of the argument. “I would have a very difficult case,” she conceded. This was what pro-lifers wanted to hear. It finally seemed, in the second round of oral arguments, that at least some of the justices saw the logic of the pro-lifers’ position. So did the attorney for the defense. In the re-argument, his arguments focused almost entirely on medical testimony about the fetus, combined with the case history detailing how lower court judges had recognized the value of fetal life. Once again he stumbled badly when cross-examined by the justices. But at least he focused his argument on the critical issue of fetal personhood."

"The justices’ questions indicated that Roe would turn on two central issues. The first was whether a woman’s constitutional right to privacy gave her the right to an abortion under the “penumbra” of the Ninth Amendment. The second was whether fetal life was constitutionally protected under the terms of either the Fifth of Fourteenth Amendment. The case was thus a contest between two competing constitutional rights. If one of the rights were granted, it would nullify the other. Justice Harry Blackmun recognized this, which was why the majority opinion that he wrote in Roe not only presented an argument explaining why the constitutional right to privacy gave women a right to an abortion, but also included a systematic refutation of each of the arguments in favor of fetal rights. Theologians and philosophers disagreed n when human life began, Blackmun argued, so pro-lifers’ use of medical testimony to argue for the personhood of the fetus was not persuasive. Although courts had often awarded damage claims for injuries “in utero”, these precedents were insufficient to confirm pro-lifers’ claim that fetuses had legal rights, because the law had always treated birth as the point at which human life began. Furthermore, the Fourteenth Amendment applied only to persons “born in the United States,” a qualification that clearly did not apply to the unborn."

"On January 22, 1973, the court ruled seven to two, in favor of the plaintiffs, Blackmun thought that his ruling offered concessions to all sides, and he tried to present it as a compromise that should not alarm anyone. “It should be stressed that the Court does not today hold that the Constitution compels abortion on demand.” He said. “It does not today pronounce that a pregnant woman has an absolute right to an abortion. It does, for the first trimester of pregnancy, cast the abortion decision and the responsibility for it upon the attending physician.” Regardless of Blackmun’s attempt to strike a measured tone, the decision that he wrote was sweeping in its outcome; it required the legislatures of forty-six of the nation’s fifty states to rewrite their abortion laws and make them as liberal as New York’s, and it delivered a firm victory to the abortion rights cause that pro-lifers refused to accept. For the previous year and a half, while Roe was being litigated, pro-life lawyers had made a concerted effort to convince the Supreme Court to accept their interpretation of the Constitution. Some of them had hoped that the Court would give them the definitive constitutional victory that they had been seeing. What they received instead was a systematic dismissal of their arguments. Blackmun had “contravene[d] the law of God,” ignored the scientific evidence in favor of fetal life, and misinterpreted the Constitution, they said. “It is hard to think of any decision in the 200 years of our history which has had more disastrous implications for our stability as a civilized society,” Cardinal John Krol declared as soon as the decision was announced."

"Blackmun had little notion of the firestorm he had just ignited. Within days, his mailbox was flooded with missives from angry pro-lifers. Some compared him to Herod and Hitler, while others pleased with him to reconsider the case. Many predicted the imminent legalization of euthanasia, a development that pro-lifers had long warned about. Blackmun was taken aback by the uproar. “The mail has been voluminous and much of it critical and some of it abusive,” he complained to a friend on January 31, a week after delivering the majority opinion in Roe. “I suspect, however, that the furor will die down before too long. At least I hope so. NARAL president Lee Gidding similarly dismissed the pro-lifers’ apocalyptic laments as the words of “fanatics.” Before you know it this will be past history and abortion will be just another medical procedure,” she confidently predicted. “People will forget about this whole thing.” Gidding and Blackmun could not have been more wrong."

"By removing the issue from the policy arena, the Supreme Court has prevented abortion-rights supporters from winning a debate in which public opinion favors them. Since its inception Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion. Conservatives who fulminate that the Court made up the right to abortion, which appears explicitly nowhere in the Constitution, are being simplistic—but they're not entirely wrong. In the years since the decision an enormous body of academic literature has tried to put the right to an abortion on firmer legal ground. But thousands of pages of scholarship notwithstanding, the right to abortion remains constitutionally shaky; abortion policy is a question that the Constitution—even broadly construed—cannot convincingly be read to resolve."

"[T]he Court has not backed down on abortion. Thus the pro-life sense of disenfranchisement has been irremediable—making it all the more potent. One effect of Roe was to mobilize a permanent constituency for criminalizing abortion—a constituency that has driven much of the southern realignment toward conservatism. So although Roe created the right to choose, that right exists under perpetual threat of obliteration, and depends for its vitality on the composition of the Supreme Court at any given moment. Meanwhile, Roe gives pro-life politicians a free pass. A large majority of voters reject the hard-line anti-abortion stance: in Gallup polling since 1975, for example, about 80 percent of respondents have consistently favored either legal abortion in all circumstances (21 to 34 percent) or legal abortion under some circumstances (48 to 61 percent). Although a plurality of Americans appear to favor abortion rights substantially more limited than what Roe guarantees, significantly more voters describe themselves as "pro-choice" than "pro-life." Yet because the Court has removed the abortion question from the legislative realm, conservative politicians are free to cater to pro-lifers by proposing policies that, if ever actually implemented, would render those politicians quite unpopular."

"The day the Court overturns Roe, abortion will suddenly become a voting issue for millions of pro-choice voters who care about it but know today that the right is protected not by congressional politics but by the courts. At the same time, thousands of conservative politicians will face a dreadful choice: backtrack from the anti-abortion ground they have staked out and risk infuriating their pro-life base; or deliver on their promise to eliminate the right to abortion, and risk the wrath of a moderate, pro-choice majority. In the short term some states might pass highly restrictive abortion laws, or even outright bans—but the backlash could be devastating for conservatism. Liberals should be salivating at their electoral prospects in a post-Roe world. The simple fact is that a majority of Americans want abortion legal at least some of the time, and the majority in a democracy tends to get what it wants on issues about which it cares strongly. In the absence of Roe abortion rights would probably be protected by the laws of most states relatively quickly. Sure, certain state legislatures will impose restrictions that would be impermissible under the Supreme Court's current doctrine; some women might have to travel to another state to get abortions. But the right to abortion would most likely enjoy a measure of security it does not now have. Legislative compromises tend to be durable, since they bring a sense of resolution to divisive issues by balancing competing interests; mustering a working majority to upset them can be far more difficult than rallying discontent against the edicts of unelected judges. In short, overturning Roe would lead to greater regional variability in the right to abortion, but this would be a worthwhile price for pro-choice voters to pay in exchange for greater democratic legitimacy for that right and, therefore, greater acceptance of and permanence for it."

"A liberal fear of democratic dialogue may make sense regarding social issues on which the majority is conservative. But it is a special kind of pathology that would rather demand a loyalty oath to a weak and unstable Court decision than make a case before one's fellow citizens on a proposition that already commands majority support. The insistence on judicial protection from a political fight that liberals have every reason to expect to win advertises pointedly how little they still believe in their ability to persuade."

"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."

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

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

"Roe's relative silence on the issues of race and population control made the holding of the opinion an ideal symbol for feminists seeking to redefine the abortion right. Because Roe framed abortion as a right belonging at least partly to women, feminists reinterpreted the decision, arguing that it recognized that abortion mattered because of its intrinsic importance to women rather than because of any desirable impact legal abortion would have on the environment, population growth, welfare costs or crime."

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

"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."

"“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.”"

"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."

"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.”"