Women

"Blackmun's clerks played substantial roles in producing his opinions as early as 1971, when the landmark abortion cases Roe v. Wade and Doe v. Bolton first came before the court."

"BLACKMUN'S AUTHORSHIP OF ROE V. WADE and Doe v. Bolton became the signature event of his 24 years on the court. The pair of cases challenging anti-abortion statutes in Texas and Georgia was decided during Blackmun's third term as a justice. Yet even then, Blackmun allowed his clerks to play influential roles not only in drafting the two opinions but also in honing the constitutional standards that made the two cases famous. Even before Roe and Doe arrived at the court, Blackmun was clearly comfortable with interpreting the Constitution to protect women's access to abortion. Writing to himself just prior to the oral argument in United States v. Vuitch, the court's first abortion case, in January 1971, Blackmun noted that the 1965 case Griswold v. Connecticut, which upheld the right of married couples to use contraceptives, and the 1969 case Stanley v. Georgia, which protected the possession of pornography in the home, "afford potent precedence in the privacy field. I may have to push myself a bit, but I would not be offended by the extension of privacy concepts to the point presented by the present case." At conference, however, the justices decided Vuitch on grounds that allowed them to avoid the constitutional privacy issue. When Blackmun began preparing for Roe's initial oral argument in December 1971, his notes about the case reiterated his comments about Vuitch. "A fundamental personal liberty is involved here—right to receive medical care," he wrote. "Much precedent for this sort of thing—Griswold et al." After argument and the justices' private conference, Burger assigned Blackmun to write the opinions in Roe and Doe."

"The attorney for Griswold, Yale Law School Professor Thomas Emerson told the Justices at oral argument on March 29-30, 1965, that the right to privacy would not include abortion, because abortions were not done in the bedroom. In response to a question by Justice Black, Emerson told the Justices-repeatedly-that “the right to privacy” would not touch the state prohibitions on abortion: Justice Black: Would your argument concerning these things you’ve been talking about relating to privacy, invalidate all laws that punish people for bringing about abortions? Mr. Emereson: No, I think it would not cover the abortion laws or the sterilization laws, Your Honor. Those-that conduct does not occur in the privacy of the home. […] Justice Brennan: Well, apart from that, Mr. Emerson, I take it abortion involves killing a life in being [or “killing the life of a being”], doesn’t it? Isn’t that a rather different problem from conception? <br< Mr. Emerson: Oh, yes, of course. Nevertheless, Emerson was soon forecasting that the Griswold decision “could” be used against abortion laws. By the end of 1965, Emerson had even given a paper at a Michigan Law School symposium that described how “Griswold” could be used against abortion laws."

"The High Court has analyzed classification by gender under an equal protection/sex discrimination rubric; it has treated reproductive autonomy under a substantive due process/personal autonomy headline not expressly linked to discrimination against women. The Court's gender classification decisions overturning state and federal legislation, in the main, have not provoked large controversy; the Court's initial 1973 abortion decision, Roe v. Wade, on the other hand, became and remains a storm center. Roe v. Wade sparked public opposition and academic criticism, in part, I believe, because the Court ventured too far in the change it ordered and presented an incomplete justification for its action. I will attempt to explain these twin perspectives on Roe later in this Essay."

"The draft opinion offers an extraordinary window into the justices’ deliberations in one of the most consequential cases before the court in the last five decades. Some court-watchers predicted that the conservative majority would slice away at abortion rights without flatly overturning a 49-year-old precedent. The draft shows that the court is looking to reject Roe’s logic and legal protections."

"On Tuesday, after this article was published, Roberts confirmed the authenticity of the draft opinion and said he was ordering an investigation into the disclosure. “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way,” Roberts pledged in a written statement. “This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.” Roberts also stressed that the draft opinion “does not represent a decision by the Court or the final position of any member on the issues in the case.” The court spokesperson had declined comment pre-publication."

"The procedural complexities meant that the lawyers and the Justices spent so much time on procedure during the first round of arguments in December 1971 that precious little time was left for the substantive, constitutional questions. In the first argument in roe on December 13, 1971, Justice Stewart posed the second question of the morning to Sarah Weddington, emphasizing that “a good many threshold questions . . . of jurisdiction” needed to be addressed. According to Woodward and Armstrong’s account, the jurisdictional issues didn’t take a backseat to the question of a right to abortion until after the first oral argument, when the Justices met in conference* to vote on Thursday, December 16, 1971. Mitchum v. Foster, a case with a “similar question of jurisdiction,” was argued on the same Monday as the abortion ases, and the Justices discussed Mitchum before Roe and Doe that Thursday. The discussion of Mitchum among the seven justices present at that conference (Justices Powell and Rehnquist did not join the Court until January 1972) ended with a vote of Stewart, Douglas, Brennan, and Marshall for “taking jurisdiction” in Mitchum. Woodward and Armstrong recorded what was apparently Douglas’s conclusion that day: Since the jurisdiction question here was the same as in the abortion cases, the Court had effectively decided the abortion jurisdiction issue as well. The Court did have jurisdiction. Suddenly, unexpectedly, the Court fund itself faced with the underlying constitutional issue in the abortion cases. Did women have a right to obtain abortions? If the Court had jurisdiction, and such federal challenges to state laws could be filed in federal court, the Justices should have limited the decisions in Roe and Doe to the jurisdictional issue, and looked for new abortion cases with a factual and medical record. Though this oversight seems minor, it was a blunder that skewed the Justices’ consideration of abortion for the next thirteen months. By crushing aside these procedural questions, and deciding the abortion issue with no factual record, the Justices stumbled into an enduring controversy."

"In 1971, just before the Supreme Court's turning-point gender-classification decision in Reed v. Reed, and over a year before Roe v. Wade, I visited a neighboring institution to participate in a conference on women and the law. I spoke then of the utility of litigation attacking official line-drawing by sex. My comments focused on the chance in the 1970s that courts, through constitutional adjudication, would aid in evening out the rights, responsibilities, and opportunities of women and men. I did not mention the abortion cases then on the dockets of several lower courts-I was not at that time or any other time thereafter personally engaged in reproductive-autonomy litigation. Nonetheless, the most heated questions I received concerned abortion. The questions were pressed by black men. The suggestion, not thinly veiled, was that legislative reform and litigation regarding abortion might have less to do with individual autonomy or discrimination against women than with restricting population growth among oppressed minorities. The strong word "genocide" was uttered more than once. It is a notable irony that, as constitutional law in this domain has unfolded, women who are not poor have achieved access to abortion with relative ease; for poor women, however, a group in which minorities are disproportionately represented, access to abortion is not markedly different from what it was in pre-Roe days."

"[B]efore Roe, women of means could end their pregnancies by traveling to states or foreign nations with less restrictive abortion laws. See Burt, The Burger Court and the Famil, THE BURGER COURT, supranote 25, at 92, 107-08 (for practical purposes, the availability of abortions in some states undermined the more restrictive regimes); Karst, supra note 1, at 59 ("Even before Roe v. Wade, wealthy women. . . could obtain abortions by traveling."); Abortion for Whom, NEW REPUBLIC, Oct. 25, 1969, at 12 ("The rich have always been able to get abortions by going abroad. The poor cannot travel . . ..."). For example, in 1971, the second year New York's liberalized abortion law was in effect, 60% of the women having abortions in New York were nonresidents."

"The Texas law at issue in Roe made it a crime to "procure an abortion" except "by medical advice for the purpose of saving the life of the mother." 37 It was the most extreme prohibition extant. The Court had in close view two pathmarking opinions on reproductive autonomy: first, a 1965 precedent, Griswold v. Connecticut,3 8 holding inconsistent with personal privacy, somehow sheltered by due process, a state ban on the use of contraceptives even by married couples; second, a 1972 decision, Eisenstadt v. Baird,39 extending Griswold to strike down a state prohibition on sales of contraceptives except to married persons by prescription. The Court had already decided Reed v. Reed, recognizing the arbitrariness in the 1970s of a once traditional gender-based classification, but it did not further pursue that avenue in Roe."

"The only reason hat Clark’s confused article was noteworthy, apparently, is because he happened to sit on the Supreme Court at the time of Griswold. As Roy Lucas put it in a letter to Sarah Weddington after the first oral arguments in December 1971, admonishing her to reference Clark’s article more often, “the Court is more likely to read that than any brief from mortals.”"

"Douglas and Brennan conversed at length on December 29, 1971, and on the following day Brennan memorialized their conversation in an eleven-page letter to Douglas in which Brennan laid out his views on the right of privacy and his conviction that they could use the cases to decisively set forth “the existence and nature of a right to an abortion.” Brennan’s biographers, Stern and Wermiel, highlight Brennan’s strategy: Even more so than in other cases, Brennan worked quietly behind the scenes in Roe v. Wade, reluctant to push Blackmun too hard and perhaps a bit reluctant to come out front and center on the issue of abortion. In fact, he worked so quietly that for some time it remained difficult to determine exactly how influential a role he played."

"Professor Paul Freund explained where he thought the Court went astray in Roe, and I agree with his statement. The Court properly invalidated the Texas proscription, he indicated, because "[a] law that absolutely made criminal all kinds and forms of abortion could not stand up; it is not a reasonable accommodation of interests."'53 If Roe had left off at that point and not adopted what Professor Freund called a "medical approach," 54 physicians might have been less pleased with the decision, but the legislative trend might have continued in the direction in which it was headed in the early 1970s. "[S]ome of the bitter debate on the issue might have been averted," Professor Freund believed; "[t]he animus against the Court might at least have been diverted to the legislative halls." a5 5 Overall, he thought that the Roe distinctions turning on trimesters and viability of the fetus illustrated a troublesome tendency of the modem Supreme Court under Chief Justices Burger and Warren "to specify by a kind of legislative code the one alternative pattern that will satisfy the Constitution.""

"I commented at the outset that I believe the Court presented an incomplete justification for its action. Academic criticism of Roe, charging the Court with reading its own values into the due process clause, might have been less pointed had the Court placed the woman alone, rather than the woman tied to her physician, at the center of its attention. Professor Karst's commentary is indicative of the perspective not developed in the High Court's opinion; he solidly linked abortion prohibitions with discrimination against women. The issue in Roe, he wrote, deeply couched and concerned "women's position in society in relation to men." It is not a sufficient answer to charge it all to women's anatomy-a natural, not man-made, phenomenon. Society, not anatomy, "places a greater stigma on unmarried women who become pregnant than on the men who father their children." Society expects, but nature does not command, that "women take the major responsibility. . . for child care" 60 and that they will stay with their children, bearing nurture and support burdens alone, when fathers deny paternity or otherwise refuse to provide care or financial support for unwanted offspring."

"I remember that the old Chief [Warren Burger] appointed a screening committee, chaired by Potter [Stewart], to select those cases that could (it was assumed) be adequately heard by a Court of seven. I was on that little committee. We did not do a good job. Potter pressed for Roe v. Wade and Doe v. Bolton to be heard and did so in the misapprehension that they involved nothing more than an application of Younger v. Harris. How wrong we were."

"Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the Court. The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict. The public funding of abortion decisions appear incongruous following so soon after the intrepid 1973 rulings. The Court did not adequately explain why the "fundamental" choice principle and trimester approach embraced in Roe did not bar the sovereign, at least at the previability stage of pregnancy, from taking sides. Overall, the Court's Roe position is weakened, I believe, by the opinion's concentration on a medically approved autonomy idea, to the exclusion of a constitutionally based sex-equality perspective. I understand the view that for political reasons the reproductive autonomy controversy should be isolated from the general debate on equal rights, responsibilities, and opportunities for women and men. I expect, however, that organized and determined opposing efforts to inform and persuade the public on the abortion issue will continue through the 1980s. In that process there will be opportunities for elaborating in public forums the equal-regard conception of women's claims to reproductive choice uncoerced and unsteered by government."

"The chief justice was concerned that the remaining seven members of the Court would have to decide controversial cases on the docket, such as “Roe v. Wade” . . . without a full court. . . . The committee, chaired by Potter Stewart and which included Harry Blackmun, later said. “We did a poor job. I think the committee should have deferred them [the abortion cases] until we had a full Court.”"

"Ginsburg, 80, said another case, Struck v. Secretary of Defense, would have been her choice as the first reproductive freedom case heard by the nation's high court. In that case, U.S. Air Force Cpt. Susan Struck became pregnant in 1970 while serving in Vietnam. Ginsburg, who at the time represented Struck as a lawyer with the American Civil Liberties Union, said the woman had two choices: leave the military or have a legal abortion on base. Struck told her commanding officer that she arranged to have the child adopted upon birth, but she was still forced to leave Vietnam and was sent back to the U.S., Ginsburg said. Ginsburg prepared the case for the Supreme Court in 1971, but it was never heard after the Air Force changed its policy on pregnancies and allowed Struck to have the child and remain in the service. "The idea was: 'Government, stay out of this,' " Ginsburg said. "I wish that would have been the first case. The court would have better understood this is a question of a woman's choice.""

"Should we spell out-although it would then necessarily be largely dictum-just what aspects are controllable by the State and to what extent?"

"Roe and Doe began, in the Supreme Court, as a serious procedural mistake that left the Justices without any factual record to consider the complex historical, legal, medical, and constitutional issues surrounding abortion. At least some justices decided to hear the case under the “misapprehension” that they were dealing merely with procedural issues. Justice Blackmun related this mistake to at least two people, and it is confirmed by the briefs in the abortion cases, the Justices’ papers, and the oral arguments. Blackmun told the story to Chief Justice William Rehnquist in July 1987, as the Supreme Court confirmation hearings for judge Robert Bork were hearing up in the U.S. Senate. In a July 16 letter to Blackmun, Rehnquist shared his concerns that the Court would be short-handed without a full bench of nine Justices in the fall, if Bork wasn’t confirmed or the hearings were prolonged. Blackmun wrote back on July 20 to allay Rehnquist’s concerns with his story of how Roe was selected in 1971 by a subcommittee of Justices that Chief Justice Burger assembled to avoid “controversial cases” while the Court was shorthanded with two vacancies after the sudden retirements of Justices Hugo Black and John Harlan in September 1971."

"What might seem more surprising than Brennan’s general preoccupation with Roe in the winter of 1971 was that he connected Roe to Papchristou. Thought about as privacy, sexual freedom, or reproduction cases, Roe, Eisenstadt, and Griswold has little in common with Papachristou. True, the Jacksonville police were using the city’s vagrancy ordinance to regulate the sexuality of the interracial double-daters. But sexuality was not the central issue in Papachristou. Moreover, the acts that led to the vagrancy arrests, more so even than abortions, could hardly be considered “private” For the most part, in fact, not only did vagrancy laws regulate people in public spaces, they usually regulated men in public spaces. The abortion cases, by contrast, largely involved the choices of women in private. Going up a level of generality, however, the various opinions and memos in the archives make clear the questions preoccupying much of the Court were the same in the two sets of cases: what were fundamental rights, and where in the Constitution, if anywhere, the Justices might find protection for them. In particular, an individual’s right to choose his or her own “lifestyle” was at least as affected by choices about reproduction as by choices about where to live, how to dissent, and whether to shave one’s facial hair. Within that context, it is less surprising that Brennan would connect Papachristou with Roe."

"[I]n thinking about how to resolve Roe, Brennan was then in the process of constructing a systematic framework for the ”fundamental freedoms” that he deemed within the meaning of “liberty.” He viewed the first of three groups of such freedoms as including “freedom from bodily restraint or inspection, freedom to do with one’s body as one likes, and freedom to care for one’s health and person.” For these, he cited Terry v. Ohio, Meyer v. Nebraska, and Jacobson v. Massachusetts, among others. The second group included “freedom of choice in the basic decisions of life, such as marriage, divorce, procreation, contraception, and the education and upbringing of children.” Here he relied on Living v. Virginia, Boddie v. Connecticut, Skinner v. Oklahoma, Eisenstadt v. Baird, Griswold v. Connecticut, and others. The third group included “autonomous control over the development and expression of one’s intellect and personality.” The precedent for this last group was thinner. Brennan cited only Stanley v. Georgia (protecting the possession of obscene materials in the home) and Justice Brandeis’s reference in Olmstead v. United States to a “right to be let alone.” Brennan thought that the decision to have an abortion “obviously fits directly within each of the categories of fundamental freedoms,” and therefore “should be held to involve a basic individual right.” Brennan described this framework in a memo he wrote to Justice Douglas about Roe on December 30, 1971."

"Holds, calling the decision to hear the abortion cases “a serious mistake”: The chief justice was concerned that the remaining seven members of the Court would have to decide controversial cases on the docket, such as Roe v. Wade . . . without a full court. . . . The committee, chaired by Potter Stewart and which included Harry Blackmun, let Roe v. Wade and Doe v. Bolton go forward. “It was a serious mistake,” Blackmun later said. “We did a poor job. I think the committee should have deferred them [the abortion cases] until we had a full Court.”"

"With Douglas, Brennan, and Stewart provoking us to view Papachristou and Roe together-whether for good or ill-implications beyond those for fundamental-rights doctrine come into focus. In particular, placing the two cases in conversation provides additional fodder for Stuntz’s analysis of the relative absence of constitutional criminal law. Because we usually consider Griswold, Loving, Eisenstadt, Roe, and their ilk as substantive due process or fundamental rights (or even equal protection) cases, we fail to see them as criminal law cases. But they were. They were all cases in which the Court was placing substantive limits on the extent to which the criminal law could be used as a mechanism of morals regulation."

"Of course, the most obvious effect of the abortion decisions was the increase in abortions. Although the biggest percentage increase of abortions in America actually occurred before Roe, after thirteen states had legalized abortion in certain circumstances between 1967 and 1970, the nationwide legalization in January 1973 significantly increased the number of abortions performed in America. In 1972, the year before Roe, about 550,000 legal abortions were recorded. After Roe, abortions increased, reaching an annual high of 1.6 million in 1992, before declining to 1.2 million in 2006."

"Casey involved a challenge to Roe v. Wade, 410 U. S. 113 (1973). The opinion contains this summary: “It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.” 505 U. S., at 846 (opinion of the Court)."

"In the immediate aftermath of the abortion decisions, state officials from Connecticut, Louisiana, Missouri, and Rhode Island sought to reject, or limit, or clarify the abortion decisions, and asked the Justices to reconsider. Rhode Island, in particular, immediately sought to reenact abortion prohibitions, but its law was quickly shut down by the courts."

"[I]n the Roe and Doe decisions the Justices sided with a minority of the public who supported abortion for any reason, at any time of pregnancy. Already a minority position at the time of the decisions, by 2009 that minority had shrunk to just 7 percent of Americans."

"Potter [Stewart] pressed for Roe v. Wade and Doe v. Bolton to be heard and did so in the misapprehension that they involved nothing more than an application of Younger v. Harris. How wrong we were."

"The Court’s lengthy published opinion in Roe is widely available on the Internet. But Blackmun’s brief statement exists only as typescript in the justice’s files at the Library of Congress. A personal judicial pronouncement of this kind shows how the author of an opinion wants the world to understand what the Court has done."

"[T]he dominant democratic theme of Maher v. Roe, Poelker v. Doe' and Beal v. Doe, the bitterness expressed by the dissenters (all previous members of the Roe majority), the compulsion of the author of Roe to dissent,' and the continuing efforts to change Roe with a constitutional amendment cause one to wonder if the majority in Colauti would not have preferred to have followed the spirit of the dissenting opinions in Roe and left the entire abortion problem in the hands of the state legislatures. This approach, at least on the surface, would be consistent with recent suggestions that the judiciary return to the fourteenth amendment its intended "procedural" as op- posed to "substantive" significance, defer to the "spirit of our democracy" in matters not controlled by the fourteenth amendment as originally intended, and not "govern" under the guise of interpreting the Constitution."

"In spite of Mr. Justice Powell's suggestion in Maher that "[o]ur conclusion signals no retreat from Roe or the cases applying it, "one wonders if those words of reassurance are to be taken with the same degree of seriousness as the assurance of Mr. Justice Blackmun in Roe v. Wade that the Supreme Court was not reviving substantive due process.'"

"A legislative solution to the abortion problem is necessarily based upon the premise that the Constitution is neutral about abortion and does not impose a solution, one way or another. In this article, the existence of such a premise is denied. More specifically, this author concludes (1) that the Constitution is not neutral about abortion and does indeed impose a solution on the abortion question; (2) that, as Justice Blackmun conceded in Roe, if the fetus is a person under the fourteenth amendment, "the [plaintiffs] case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [fourteenth] [a]mendment;' and (3) that the concept of "person" in the fifth and fourteenth amendments includes unborn human life. It thus follows that the solution to the abortion problem set forth in Roe as well as that suggested by Justices White and Rehnquist in dissent' are constitutionally unsound, both solutions permitting the violation of the fetus's constitutionally protected right to life without due process of law. More positively, there is substantial historical support for the notion that the due process clause was designed to guarantee access of all persons to the courts for the protection of fundamental rights, that those fundamental rights refer to "life, liberty and property," and that the unborn human being, as an individual living human being, is a person under the Constitution and is entitled to access to the courts to protect his fundamental right to life."

"Since Roe v. Wade is the only case in which the Supreme Court has considered the scope of constitutional "personhood" in the context of pre-birth stages of human development and is the only Supreme Court pronouncement on the subject, a criticism of ‘’Roe’’ will serve as a departure point for this discussion as to whether or not the fetus falls within the scope of the constitutional personhood concept."

"Until the 1960s, all but a few of the fifty states prohibited abortion except when necessary to save the life of the mother. These abortion laws were enforced and updated and strengthened during the nineteenth century as medical understanding progressed. As of January 1973, however, thirty states permitted no other exception than to save the life of the mother, and most states actively enforced their abortion laws. Prosecutions against abortionists were pending in many states on the day Roe was issued."

"With Younger v. Harris, Justice Blackmun was referring to a controversial case decided on February 23, 1971, sixty days before the Justices voted on April 22 to hear Roe and Doe. For two years, while Justices Hugo Black and John Harlan were still on th Court, the Justices had been immersed in Younger v. Harris, which involved the politically delicate issue of federal court intervention in state court criminal proceedings. Argued three times before it was finally decided, Younger put limits on the power of federal courts to interfere with pending criminal prosecutions in state courts. Younger intersected with the abortion ases filed in federal courts against state laws from 1969 to 1972 because a doctor who was prosecuted for abortion in state court might file a case in federal court to block the state prosecution-the kind of scenario with which Younger was concerned. Thus, Younger overshadowed the abortion cases filed in federal court as a number of points between 1970 and 1972."

"In oral argument before the Roe court as well as in the Roe majority opinion, the Supreme Court seemed impressed by the historical fact that no case had been found in which the pregnant woman was prosecuted for allowing an abortion to be performed on herself and by the fact that the punishment for conviction under the abortion statutes was much milder than the punishment for homicide. The Court found this to suggest that the fetus was not considered a person, as was the victim in a homicide. Such a conclusion is simply not warranted since there are other valid explanations. For example, if a 12-year-old intentionally kills a born individual in Illinois, no crime has been committed since the child is not legally responsible. No one could suggest that the victim of the act was not a person because the killer was not or could not be prosecuted. If a 15-year-old intentionally kills another, but is proceeded against under the Juvenile Court Act, one could hardly argue that the victim is not a person. The explanation for this legal phenomenon is that there are special circumstances surrounding the commitment of an act, circumstances which the lawmaker may properly and reasonably consider in formulating means to protect state interests and values-in the examples given, the age and assumed immaturity of the actor; in the abortion situation, the assumed stresses on the woman burdened by an unwanted pregnancy. These factors may justify and explain different treatment of the woman or even the physician in the abortion context, just as they justify or explain different treatment of the child of tender years or even of one who kills another under severe provocation. Although in modem jurisprudence constitutional history alone has not been allowed to dispose of every question of constitutional interpretation, this brief historical background casts doubt on the soundness of two of the Supreme Court's critical conclusions in Roe v. Wade: (1) that abortion was not considered a crime by most of those who sup- ported the fourteenth amendment in 1868;' and (2) that the purpose of the anti-abortion laws was solely to protect the woman's health and not the life of the fetus. In addition, it casts doubt on the Court's holding that the concept of "person" does not embrace the unborn. The effect of this doubt surely is to augment the obligations of the Supreme Court to account for a requirement of birth as a condition precedent for membership in the class of constitutional persons."

"Further support for the idea that nineteenth century America was concerned with preserving the life of the fetus is ironically found in Botsford v. Union Pacific Railroad, the very case which the Supreme Court cited in Roe as its landmark right to privacy case. Although the Botsford Court acknowledged a common law right to privacy which precluded a court without statutory authority from ordering a medical examination of a female plaintiff in a personal injury case, it pointed out that one of two exceptions to this common law right of privacy was the “writ de ventre inspiciendo”. With this writ, the state was empowered to examine whether a woman convicted of a capital crime and sentenced to be executed was quick with child, thus overcoming her right to privacy. If she was, execution would be stayed until after the birth of the child. Here, the common law not only acknowledged a right to life in the fetus but also recognized precedence of this right over the common law right of privacy. In light of the above it seems hard to suggest-as did the majority in Roe-that the concerns of the nineteenth century were exclusively about the pregnant woman and not the unborn, and difficult to argue-as did the majority in Roe-that the purpose of nineteenth century abortion legislation was in protecting "the woman's health rather than in preserving the embryo and fetus." Indeed, the preservation of the fetus appears to have been a major purpose. Moreover, even those courts which have indicated that preservation of maternal health was a purpose for enacting the anti-abortion statute did so against a background in which abortion of at least a quickened fetus was considered a common law crime. If Justice Blackmun meant that an unquickened fetus may not have enjoyed protection under the common law, he should have said that. The correlation, however, would be that the quickened fetus did enjoy criminal law protection, a fact which argues against the Court's conclusion that constitutional personhood has no prenatal application."

"Roe eliminated the laws in thirty states that prohibited abortion except to save the life of the mother; Doe eliminated the rest, including the new abortion laws adopted by approximately thirteen states between 1967 and 1971, which had canceled or replaced traditional abortion prohibitions. As Harvard law professor and comparative law expert Mary Ann Glendon has emphasized, “It was Doe that set the United States on a far more extreme course than that taken in most other liberal democracies, where the regulation of abortion had largely been left to be worked out through the ordinary democratic processes of bargaining, education, persuasion and voting. The sweeping scope of Roe and Doe isolate the United States as one of approximately nine countries that allow abortion after fourteen weeks and one of only four nations (with Canada, China, and North Korea) that allows abortion for any reason after fetal viability."

"A holding that the fetus is a constitutional person would have the effect of overruling Roe v. Wade and its progeny. The legal consequences would not, however, be as far-reaching as Roe itself, which had the effect of declaring century-old criminal abortion statutes invalid, cutting deeply into assumed rights of husbands and parents, and creating the possibility of required, at least via legislation, public financing of abortion. On the other hand, the consequence of the Roe decision to the aborted fetus is severe and final. This result, of course, is of no great concern to the rule of law, unless the unborn does meet the criteria of constitutional personhood and the Court either because of poor reasoning or because of some unstated reason arbitrarily denied the unborn the constitutional protections due it or unless the fourteenth amendment is inadequate as a legal device to protect the fundamental rights of all members of the human family, the avowed purpose of the drafters of the fourteenth amendment. In either case, there is reason for concern, for the legal order has failed."

"Where Roe prevented any prohibition on abortion before viability, the Doe “health” exception eliminated prohibitions after viability as well. While some realized immediately that the states could no longer prohibit abortion in the first trimester, the full implication of the Supreme Court’s decisions only became clear over time as the lower federal courts decided hundreds of cases in the following decades."

"By declaring unconstitutional laws that criminalized abortion in states across the country, the decision in Roe v. Wade also swept away much of the collective memory of what had gone before. Records of court cases that had taken years to build were now rendered irrelevant, and transcripts of testimony once painstakingly compiled were carelessly misfiled or discarded. And beyond the loss of paper records, the Supreme Court decision itself proved a distorting lens through which to look back on what had preceded it."

"The Justices nationalized an issue that, until Roe, had been a state issue. By nationalizing abortion, they nationalized the politics of abortion. Within days, constitutional amendments were introduced in Congress to overturn the decisions, and a vigorous congressional debate over proposed amendments continued for ten years. Hearings were held in 1974-1975 and again in 1981-1983. Between 1973 and 2003, approximately 330 constitutional amendments on abortion were introduced in Congress. But the one and only vote in the U.S. Senate on a constitutional amendment failed on Jun 28, 1983, by a vote of 49-50, lacking the two-thirds needed."

"The outcome in Roe surprised even abortion activists. Lawrence Lader, one of the key abortion-rights leaders of the 1960s, wrote that the abortion decisions were “far broader in scope than anyone expected” and even more conclusive than any of us dared to hope.” Legal historian Lawrence Friedman wrote that “Roe v. Wade belongs to a very select club of Supreme Court decisions-those that sent shock waves through the country, affecting every aspect of political life.” The morning they were released, Time magazine, based on a leak from one of Justice Powell’s clerks pronounced the outcome, “Abortion on Demand.”"

"Casey justified both the abortion right and its regulation in terms that reflected the views of mobilized proponents and opponents of abortion rights more clearly than Roe itself had in 1973. Like Roe, Casey held that women had a constitutionally protected right to decide whether to bring a pregnancy to term, but, unlike Roe, Casey allowed government to regulate the exercise of that right from the beginning of pregnancy in the interests of protecting potential life—so long as the regulation did not impose an “undue burden” on a woman’s decision. Even as Casey narrowed the right recognized in Roe, it justified that right more expansively than Roe did. Casey tied constitutional protection for women’s abortion decisions to the fundamental liberty to choose one’s family life, as well as to the understanding—forged in the Court’s sex-discrimination cases—that government cannot use law to enforce traditional sex roles: “Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.” Casey’s account of the constitutional values that the abortion right vindicates makes clear that government respects not only women’s freedom but also their equal citizenship. Yet, Casey also listens carefully to Roe’s critics. It allows government to regulate women’s abortion decisions to express respect for the value of human life, so long as government does so in ways that express respect for the decisional autonomy of women: “[T]he State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself.” In ways that Roe did not, Casey situates the abortion right in a community deeply divided over the basic values implicated by the debate. That conflict continues—on and off the Court."

"The Supreme Court’s decision reflected the arguments of both parties, as well as many of those contained in the friend-of-the-court briefs filed on both sides. The Court rejected the state’s argument that the fetus was a “person” meriting the same protection under the Constitution as born persons. Nevertheless, the Court found that the state did have an interest in protecting “the potentiality of human life.” Similarly, the Court endeavored to strike a balance in defining the scope of the right to abortion it recognized. The majority reasoned that the right to privacy protected not only the use of contraception, but also a woman’s decision whether to bear a child. Yet, the decision emphasized, this right was not absolute."

"The impact of the abortion decisions was immediate. All of the abortion laws, across all fifty states, were rendered unenforceable, thereby lifting the threat of prosecution against abortion providers. Though abortion was legal in some states before January 1873, Roe enabled abortion clinics to open in every state. By February, abortion clinics-some run by former “back alley abortions”-opened in major cities like Chicago. Roe barred public health officials from enforcing health and safety regulations in the first trimester. By invalidating Georgia’s hospitalization requirement, the Justices encouraged the movement of abortion practice from hospitals to stand-alone clinics. The federal courts were given continued oversight of any new regulations that might be passed by state or local governments. Roe empowered abortion practitioners to challenge any abortion regulations, including health and safety regulations, in federal court."

"The backlash narrative suggests that turning to courts to vindicate rights is too often counter-productive, and that adjudication is to be avoided at all costs. We are not ready to accept this grim diagnosis at face value, and we urge further research into the dynamics of conflict in the decades after Roe. The stakes in understanding this history are high."

"By examining the conflict in the period before the Court ruled, we can see how the abortion conflict changed in meaning, structure, and intensity as it was joined by a successive array of advocates—not only social movements8 and the Catholic Church but also strategists for the Republican Party seeking to attract traditionally Democratic voters in the 1972 presidential campaign. The evidence that we uncover of abortion’s entanglement in party realignment before the Supreme Court handed down its decision in Roe demonstrates that the competition of political parties for voters supplies an independent institutional basis for conflict over abortion. Where proponents of a Court-centered account of backlash offer reasons that adjudication distinctively causes political conflict, the history that we analyze identifies forms of political conflict that could engulf adjudication."

"Roe had two essential rulings based on interpretations of the Fourteenth Amendment to the U.S. Constitution, which declares, in part, that no state shall deprive any “person” of “liberty”. First, the Justices interpreted “liberty” to include a “right to privacy” and held that abortion is part of the right to privacy the “right of privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Second, the Court held that the “unborn” are not included with other “persons” protected by the Constitution-”the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn. Not only did the Justices nullify the abortion laws of all fifty states, but-in a break from the traditional function of judges-they also prescribed what would be permissible by drafting their own national abortion standard."