Roe v. Wade

"In the documents for Jane Roe’s case, Coffee also included a seven-point statement of facts. Facts one through five were specific to McCorvey’ssituation. They stated that Roe was an unmarried pregnant woman who, due to economic hardship and the social stigma of having an illegitimate child,wanted to end her pregnant with an abortion performed by a licensed physician in safe circumstances. Because her life was not threatened by her pregnancy, she could not secure a legal abortion under Texas law and did not have the funds to travel to a location outside of the state where she could obtain a safe abortion. facts six and seven were more general: 6. An abortion performed by a competent, licensed physician under hospital or clinic conditions is a safe and simple procedure whish presents less danger to the pregnant woman than ordinary childbirth. 7. An abortion performed outside of the clinical setting by unqualified personnel is extremely dangerous and often results in death, maiming, sterility, r serious infection."

"On the evening of March 2, 1970, Coffee and Weddington made a few final changes to the documents. The following day, March3, Coffee walked to the federal courthouse in Dallas, paying $30 of her own money to file the two cases. Roe’s case was docketed as ccase number 3-3690-B. By naming as their defendant the highest-ranking official responsible for law enforcement in Dallas Country, Texas-District Attorney Henry Wade-the case took on the title Roe v. Wade."

"On March 19, two Dallas attorneys-Fred Brunter and Roy L. Merrill Jr.-asked to have a third plaintiff added to the Roe case. The attorney’s client, James Hallford, was a doctor who had performed baortions for years and had been indicted under the Texas abortion law for performing an illegal abortion. Bruner and Merril argued that the stat e statute was so vague and difficult to interpret that Hallford could not determine when a woman’s life was in danger. Weddington and Coffee were glad to add the physician’s case to theirs, believing it made Roe stronger. The request was granted. Coffee and Weddington had always imagined their case affecting more than McCorvey, their Jane Roe, including the many women facing unwanted pregnancies. The two young lawyers considered the case a good candidate for a class action."

"Norma McCorvey was the "Jane Roe" of Roe v. Wade. Early in 1970 Norma Mccorvey claimed that she had been gang-raped and became pregnant. Attorneys Sarah Weddington and Linda Coffee, newly graduated from the University of Texas Law School, needed a "client" in order to challenge Texas' 100-yearold law that banned abortions. They convinced Norma that she should be seeking an abortion. The case was subsequently argued all the way to the Supreme Court which resulted in legalizing abortion in all SO states in 1973. In the meantime, Norma's baby was born and released for adoption. In 1987, McCorvey admitted that the gang-rape was a lie. In August 1995, she joined Operation Rescue stating that she was tired of being exploited by the pro-abortionists. While Roe v. Wade legalized abortion, on the same date, Doe v. Bolton provided for abortion-on-demand for the entire nine months of pregnancy and was the legal vehicle which provided Court sanction for the over 2200 abortion mills across the country."

"Sandra Cano was "Mary Doe" of Doe v. Bolton Sandra Cano now says she was an unwitting participant in fraud on the highest court in the land. Sandra was a young expectant mother with three children facing a divorce from a husband who was in jail for child molestation. Cano's three children had been taken from her by family service workers. They were being shunted from one bad environment to another. Cano loved her children dearly. She was almost insane with grief when she turned to Legal Aid Services for help. The offer of N.O.W. lawyers to take the whole mess off her hands, obtain a divorce and regain custody of her children sounded too good to be true. When the attorneys hinted that they would like to strike a deal which would include abating the child Sandra was carrying she made it very clear that she could never do that Yet, her attorneys ignored her objections and ran roughshod over her. When she realized her case had been used to obtain abortion-on-demand she said, "...why would I stretch my imagination to include a plan so bizarre that it would give people in a civilized society permission to kill their own babies?...I surely never thought they would tie my personal anxieties about retrieving my children to a scheme to make abortion-on-demand legal." Ironically, the Cano baby, like the McCorvey baby, was carried to term and relinquished fa adoption. Yet, 30,000,000 other babies have lost their lives to abortion because of these two cases."

"Sarah Weddington was the Attorney Sarah Weddington, the attorney who argued Roe v. Wade before the U.S. Supreme Court, gave a speech at the Education Ethics Institute in Oklahoma. She explained why she defended the sketchy story and false rape charge of a Texas waitress "Jane Roe" all the way to the Supreme Court: "My behavior may not have been totally ethical. But I did it for what I thought were the right reasons." Tulsa World 5/24/93."

"Hugh Heffner, founder of Playboy claims to have done one great thing for women: "Playboy probably had more to do than any other company with Roe v. Wade. We supplied the money for those early cases and actually wrote the amicus curiae for Roe.""

"The U.S. Senate will next week take up S.1975, the so-called Women’s Health Protection Act (WHPA). Its backers want everyone to believe that it will simply protect by statute the right to abortion that the Supreme Court defined in its Roe v. Wade decision. They know this is a lie, and the rest of the American people need to know it too."

"In Roe v. Wade, the Supreme Court said it should because of the “detriment” that prohibiting abortion “would impose upon the pregnant woman.” That, however, is a policy decision that courts do not have authority to make. The Supreme Court, therefore, said that the 14th Amendment protects a “right to privacy” that “is broad enough” to include abortion. Since the Court made no attempt to actually interpret the 14th Amendment, though, that did not fool anyone, and no constitutional scholar of any ideological stripe even tries to defend it. But that’s where we have been for the past five decades. Roe v. Wade got the job done, making legislative efforts to protect life before birth all but impossible, a policy more permissive than all but ones in seven other nations. Yet the Court now has before it a case, Dobbs v. Jackson Women’s Health Organization, in which it may finally acknowledge that Roe v. Wade is an indefensible distortion of the Constitution and overrule it. That would once again put state and local governments in primary charge of abortion policy."

"The WHPA’s two most glaring defects are that Congress has no authority to dictate how state and local legislatures may handle abortion and, even if it did, the WHPA is far more radical than even Roe v. Wade itself. The WHPA refers repeatedly to the “constitutional right to terminate a pregnancy.” Congress does have authority to “enforce, by appropriate legislation, the provisions” of the 14th Amendment. Those provisions, of course, say nothing about privacy or abortion and, if the Supreme Court overrules Roe v. Wade, no one will be able even to pretend otherwise. There will nothing for Congress to enforce."

"Roe v. Wade, for example, recognized that “[t]he pregnant woman cannot be isolated in her privacy.” The “developing young in the human uterus” makes abortion “inherently different” from other privacy rights. In fact, the Court said, abortion may not have a “close relationship” to those other rights at all. The child in the womb, in other words, changes everything. In Roe, the Supreme Court referred to the unborn “child,” “prenatal life,” “fetus,” “embryo,” and “unborn children.” These were not simply casual or random references. The state, Justice Harry Blackmun wrote, has an “important and legitimate interest” in protecting human beings before birth. Only four years after Roe, the Supreme Court held that the right to abortion “implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment” through certain kinds of legislation. The WHPA repudiates, rather than codifies, that aspect of Roe v. Wade. The bill, in fact, tries mightily to erase, avoid, or deny any suggestion, hint, or whisper that a second human being exists at all. It even drops the definition of “abortion” found in previous versions of the WHPA because that definition referred to “a live birth” (of what?) and a “dead fetus” (that must once have been alive). The WHPA’s proponents apparently believe that abortion focuses too much, even in death, on the unborn child. Instead, the current WHPA refers only to “abortion services” which, it claims, “are essential health care” and, therefore, focus exclusively on the pregnant woman."

"In a 1983 essay titled “Abortion and the Conscience of the Nation,” President Ronald Reagan wrote that “[w]e cannot diminish the value of one category of human life—the unborn—without diminishing the value of all human life.” The “real question,” he wrote, “is not when human life begins, but, what is the value of human life?” The Supreme Court’s answer in Roe v. Wade was that human life has almost no value before birth. The WHPA scoffs even at that, denying that human life exists at all before birth. Senators will give their answer when they take up the bill next week."

"Abortion on demand was legal in a few states in 1970. Not until the 1973 Supreme Court decision in Roe v. Wade was legalized abortion available nationally."

"The story that emerges from these data is that the availability of legalized abortion services had a significant effect on fertility, but marginal changes in the distance to a legal provider had less of an effect. In other words, Roe v. Wade was arguably less important for unintended childbearing than was access to services in California, the District of Columbia and especially New York in the years before Roe."

"This Court has decided that the Constitution protects certain rights of privacy on the part of a woman arising from the marital relationship which cannot be unjustifiably interfered with by the State. NRLC believes that the genesis of such rights, to the extent such rights may exist, must be found among the “penumbral” personal liberties protected by the Due Process Clause of the Fifth Amendment. Yet equally unchallengeable is the proposition that an unborn child’s right not to “be deprived of life,” to quote the words of the Due Process Clause itself, is also a fundamental personal right or liberty protected by that same amendment and entitled to the traditional searching judicial scrutiny and review afforded when basic personal liberties are threatened by state action, whether legislative or judicial in character. Therefore, it is very clear that this case is not one, as the appellants would portray it, which involves merely the balancing of a right of personal liberty (i.e., a married woman’s privacy) against some competing, generalized state interest of lower priority or concern in an enlightened scheme of constitutional values, such as the state’s police power. Here, the Court must choose between a nebulous and undefined legal “right” of privacy on the part of a woman with respect to the use of her body and the State’s right to prevent the destruction of a human life. That election involves the determination as to whether the State’s judgment that human life is to be preferred is a prohibited exercise of legislative power."

"Because the Texas abortion law has the clear effect of denying disadvantaged citizens access to safe hospital abortions, without any justification, it violates the Equal Protection Clause of the Fourteenth Amendment."

"Certain assumptions must be made and constitutionally accepted to find that there is a basis of rationality to the exclusion of the above-mentioned classes of women from the statute’s protection. One is that human-life begins with fertilization of egg by sperm. Another is that this “life” is equivalent to the life of the woman, and the life-saving exception to the abortion law is a rational balancing of interests by the state, analogous to the laws of self-defense. It is remarkable that the existence of a one-day-old fetus is to be equaled with the life of a grown woman. The woman is—beyond doubt—a human being, one upon whom other human beings (husband, children, etc.) depend in a variety of ways essential to the sanctity of the family, and whose impaired health may be critically disruptive to that family; or one who may not have consented to sexual intercourse made felonious by the state, yet who is forced to bear the consequences of that same felonious act. This equivalency of interest between a microscopic embryo and the woman who bears it must be assumed in the Texas law, however, since that statute draws no lines, such as viability, as the time to invoke the state’s protection."

"The Equal Protection Clause of the Fourteenth Amendment requires the states to “exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulations.” The challenged statute operates to deny equal protection to women with compelling reasons for receiving therapeutic abortion, concurred in by their physicians, but whose physicians cannot advance as “medical advice” that the abortion is necessary to “save” their lives. Women so excluded are those who would suffer a serious impairment of physical or mental health from carrying a pregnancy to term, those whose pregnancies are the result of rape or incest, those whose fetuses will, with high medical certainty, be born with gravely disabling physical or mental defects, and those who are financially unable or emotionally incapable of supporting a child, or of adding another child to a family whose limited resources are already strained by their devotion to raising children in being. [T]he fundamental interest involved in the case of each of the excluded classes of women is as deserving of constitutional protection as the “saving” (whatever it may mean) of the mother’s life. Compelling a woman to give birth to a child which is the product of rape or incest, or which will be born deformed, or whose birth will damage the woman’s own health or capacity to be a mother to the child or to her existing family, may be as unbearable to the woman as a vague threat to her life itself. That compulsion also puts her physician in the ethically questionable position of having to decide just how much injury he must allow her to bear, despite his obvious ability to prevent that injury, before he can confidently say to the prosecutor that he ultimately acted to save her life."

"The Texas Abortion Law, While Permitting Abortion to Save a Woman’s Life, Irrationally Excludes From Its Protection Women Whose Health May Be Seriously Threatened, Who Bear a Deformed Fetus, Who Have Been Victims of Sexual Assault, Who Are Financially, Socially or Emotionally Incapable of Raising a Child and Whose Family Tranquility and Security Would Be Seriously Disrupted by the Birth of Another Child, Exclusions Which Bear Most Heavily on the Poor and Non-White, and Which Do Not Serve Any Compelling or Reasonable State Interest, Denying to These Women the Equal Protection of the Law."

"In sharp contrast to the above data has been the experience in New York State since July 1, 1970, when categorical restrictions on abortion were eliminated. On April 5, 1971, New York City health officials reported that the city’s public hospitals, which restricted abortions to city residents, were performing an average of 511 a week, and that the “vast majority” of those women would be unable to afford abortions in private hospitals. It is clear from this evidence that where the law has eliminated restrictions on the obtaining of abortions, the poor and non-white women who were previously unable to exercise the financial and other kinds of leverage required to have a “therapeutic” abortion, are able to obtain medically safe abortions on an equal basis with all other women, and they do obtain them to at least the same extent as their more privileged sisters. One result has been a drop in the maternal mortality rate: New York City hospitals now report treating far fewer victims of “botched” illegal abortions than they did in years past."

"Criminal abortion has been described as the greatest single cause of maternal mortality in the United States; it is one of the greatest cause of disease, infection, and resulting sterilization as well. The poor and the non-white suffer disproportionately from the “back-alley” abortionists, whose services they seek out in lieu of the medically safe hospital abortions generally denied them. California, the only state known to officially compile such figures, notes that approximately 7 percent of that state’s non-white female population subjected themselves to criminal abortion in 1968, as opposed to only 1.5 percent of the state’s white female population. The often tragic results of these abortions are also documented. In their New York study, Drs. Gold, et al. noted that the ratio of criminal abortion deaths per 1,000 live births was 4.0 for white women and 16.2 for non-whites. Likewise, Dr. Hall’s 1960–62 study led him to conclude that approximately half of the puerperal deaths among New York’s Negroes were due to criminal abortions as opposed to only a quarter of the puerperal deaths among white women."

"Because the poor rely primarily upon public hospitals for their medical services, denials or delays at those institutions are tantamount to a denial of prompt medical care solely because these women are without funds. A partial explanation for the marked disparity in these figures appears to lie in the far lower incidence of abortions performed for psychiatric reasons among poor and non-white women. While socioeconomic conditions never per se legally warrant therapeutic abortion, socioeconomic status nevertheless frequently determines whether or not an abortion will be performed, and if performed, whether that self-same abortion will be therapeutic or criminal."

"Presumably, therefore those women who qualify for a legal abortion according to the terms of the statute should be able to obtain one, regardless of their race or socio-economic status. There is nothing demonstrable in the differences of skin color or economic condition which suggests that a substantially smaller proportion of the poor or the non-white fall into this category than that of the white and the non-poor, or that the poor and non-white have a substantially different moral attitude on abortion. On the contrary, a recent study of births occurring between 1960 and 1965 led investigators to conclude that one-third of Negro (as contrasted with one-fifth of white) births were unwanted. Unwanted births were in general more than twice as high for families with incomes of less than $3,000 as for those with incomes of over $10,000; this differential was "particularly marked among Negroes." The results indicated, in the view of the investigators, that there is a "coincidence of poverty and unwanted births rather than a propensity of the ‘poor’ to have unwanted children." One explanation for this high level of unwanted births among the poor and the non-white is surely the fact that they do not have equal access to abortions. Data demonstrate that the poor and the non-white do not receive this medical treatment on the same terms as do others. They thus suffer a particularly harsh and adverse effect from the operation of this statute, as they do from that of the other restrictive abortion laws which have existed and currently exist in the United States...."

"While amici contend that to receive proper medical care in the form of an abortion approved and performed by a physician is, by itself, a fundamental interest protected by the Constitution, it is not necessary for abortion to be declared a constitutional right to hold that its discriminatory denial violates guarantees of equal protection. The State of Texas has prohibited all abortions except for “the purpose of saving the mother’s life.” On its face, this permits treatment in the case of all women whose lives are similarly endangered, and excludes from treatment all others."

"The State Has No Interest in Increasing Its Population; on the Contrary, Its Interest, if Any, Is in Limiting Population Growth. In view of the increasing public concern over our rapidly multiplying population, any supposed state interest in increasing the number of lives in being can hardly be raised as a justification for the prohibition of abortion. Indeed, the growing emphasis of both federal and state agencies upon preplanning of families and limitation of their size makes manifestly inconsistent treating the termination of pregnancy as a crime, while birth control devices are not merely permitted but are openly promoted and encouraged by the government...."

"These organizations share the view that restrictive state abortion laws, such as the Texas statute here under review, have a negative effect on the health and wellbeing of American women, and have a particularly severe impact on the nation’s poor and non-white populations. It is the poor and non-white who suffer most from limited access to legal abortion, and it is they who incur greatly disproportionate numbers of deaths and crippling injuries as a result of being forced to seek criminal abortion...."

"In contrast to Brown, many Americans-and particularly many American politicians-continue to argue that Roe v. Wade was wrongly decided and should be overruled. Since 1980, the platform of one of the country’s two major political parties-the Republicans-has called for overturning the decision. Roe has not become a hallowed icon like Brown but rather has remained a site of political and legal controversy. For this reason, the debate over abortion rights has not occurred solely within the framework set by Roe but has continually put the very legitimacy of the decision into question. And, since the 1980s, debates about federal judicial nominations have often focused, directly or indirectly, on the continued vitality and authority of Roe."

"The title of this book, What Roe v. Wade Should Have Said, might suggest that changing the language of the opinion might have changed history. That may or may not be the case. The exact language of a decision may matter much less than most people (and most legal scholars) think. Most Americans do not read Supreme Court opinions and have only the vaguest idea of their contents. Moreover, whatever the original language, no decision is immune from subsequent revision, especially a controversial one like Roe v. Wade. Judges and Justices reshape and transform older decisions to conform with current concerns. The meaning of Roe was transformed repeatedly over time, and substantial features of Roe were jettisoned and replaced by the 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey."

"[L]ike many great and controversial cases, Roe has spurred people to offer and defend different theories of constitutional interpretation. Some have tried to offer accounts of why the result (if not the precise reasoning) in Roe is consistent with sound constitutional interpretation, while others have pointed to Roe as the central example of a decision that lacks fidelity to the Constitution and sound interpretive principles. Several of the contributors to this volume have distinctive theories of how that Constitution should be read and interpreted. Rewriting Roe is a good way of putting those theories to the test. This second reason leads naturally to a third: Roe v. Wade has become a key point of controversy in an ongoing debate about the role of courts in a constitutional democracy. Roe has been a central example in debates about when courts should recognize and guarantee rights that are opposed by significant segments of society, an the legitimacy of courts’ trying to do so. Rewriting Roe is a good way to address these important questions, and many of the opinions in this book are deeply concerned with the proper role of the judiciary three decades after Roe."

"If “Brown v. Board of Education” is America’s most hallowed modern Supreme Court decision, Roe v. Wade is surely its most controversial. In 1973, Roe v. Wade struck down the abortion laws of most of the states in a single opinion, but it did not settle the question of abortion rights in America. Far from it: Roe was merely the opening event in a political and legal struggle over reproductive rights that continue to this day. Roe energized new social movements that eventually divided the two major political parties over abortion rights and reshaped their respective coalitions. Securing and expanding the right to abortion became a central concern of the women’s movement, while opposition to Roe v. Wade awakened the sleeping giant of religious conservatives, who in turn helped shape the contemporary Republican Party. In the process, Roe v. Wade became a central issue in federal judicial nominations, symbolizing not only the issue of reproductive freedom but also the larger question of the proper role of courts in a democratic society. Attacking and defending the principles and reasoning of Roe v. Wade has been a central preoccupation of constitutional theorists ever since it was decided. It is hardly an exaggeration to say that, more than any other Supreme Court decision, Roe v. Wade has defined the constitutional jurisprudence and the constitutional debates of the modern era."

"Justice Harry A. Blackmun, who had been appointed by President Richard Nixon in 1970, wrote the majority opinions in both Roe and Doe. He argued that the right of privacy recognized in Griswold and extended to single persons in Eisenstadt “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” Denying the right to choose would impose a “detriment . . . on the pregnant woman,” including possible medical and psychological harm. Child care could tax a woman’s mental and physical health. Blackmun also pointed to “the distress, for all concerned, associated with the unwanted child, and . . . the problem of bringing a child into a family already unable, psychologically and other-wise, to care for it, [as well as] the additional difficulties and continuing stigma of unwed motherhood.” Nevertheless, the central problem with extending the right of contraception to abortion was that abortion ended the existence of an embryo or fetus. Counsel for Texas argued that human life began at conception, tat a fetus was a person under the meaning of the Fourteenth Amendment, and therefore that a fetus had constitutional rights of its own. Blackmun responded that the fetus was not a person within the meaning of the Constitution, point out that in many places the Constitution referred to the rights and duties of persons that would make to sense if applied to fetuses. He also noted that abortion was not a felony at common law before “quickening”, the point at which a fetus’s movement could be felt by a pregnant woman, which usually occurred in the fourth or fifth month of pregnancy. Nevertheless, the State of Texas argued, even if the fetus was not a person, the state had a compelling interest in protecting the life of the fetus. That compelling interest could be vindicated only by prohibiting abortion."

"None of the Justices believed that the right to abortion extended to the very moment of birth. At some stage in the pregnancy, the state’s interest in protecting the fetus became sufficiently compelling that states could proscribe abortion in almost all cases other than when necessary to preserve the woman’s life or health. To determine when that point occurred, Blackmun effectively had to decide when the life of the fetus “began” at least to the extent of deciding when the state’s interest in protecting the fetus became compelling."

"The trimester system was actually the result of a compromise among the Justices. Blackmun’s original idea was that a woman had the right to an abortion without interference from the state until the end of the first trimester. During the first trimester, the abortion decision was left to “the best medical judgment of the pregnant woman’s attending physician.” Afterward states could limit legal abortions to “stated reasonable therapeutic categories”-such as the woman’s physical or mental health-“that are articulated with sufficient clarity” to give physicians fair warning. The idea was that health regulations were unnecessary until the second trimester because first-trimester abortions were as safe for women as carrying the fetus to term. However, Justices William Brennan and Thurgood Marshall objected that the first trimester didn’t give women enough time to discover that they were pregnant, find a doctor, and take the necessary steps to obtain an abortion. Marshall, in particular, was worried about the effect of Blackmun’s rule on poor and minority women. Blackmun agreed that the first trimester was an arbitrary point, and he responded by pushing the cutoff point to the moment of viability. However, Blackmun believed that states should still be able to regulate abortions for health reasons after the first trimester. In effect, this produced three different sets of rules for three different trimesters. Brennan responded that the point of viability was imprecise. The Court did not have to specify a specific cutoff point but should leave that question to “medically informed” legislatures I the first instance. However, Blackmun ignored this suggestion, and the result was Roe’s trimester framework."

"During the deliberations over Roe, Justice Stewart worried that Blackmun’s trimester framework made the decision seem too legislative, a criticism that would be echoed repeatedly in later years. In hindsight, Brennan’s suggestion that the Court not draw hard and fast lines but instead wait and see what legislatures would do might have been far wiser. In any event, the Court issued its opinion on January 22, 1973, striking down Texas’s virtually total ban on abortions, as well as Georgia’s procedural restrictions. Seven Justices joined the opinion, with Justices White and Rehnquist dissenting. Justice Rehnquist argued that the decision was a throwback to Lochner v. New York and had no basis in the original understanding of the Fourteenth Amendment. Justice White objected that “[t]he Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries”"

"Some supporters of abortion rights, including, most prominently, Justice Ruth Bader Ginsburg, have claimed that the Roe decision was premature and a political mistake. Roe v. Wade “halted a political process that was moving in a reform direction and thereby . . . prolonged divisiveness and deferred stable settlement of the issue.” Opposition to Roe helped energize the conservative religious and social movements of the 1970s and 1980s, which argued that an unelected judiciary was imposing its personal (and immortal) views and casting aside those of democratically elected state governments. These conservative social and religious movements eventually found a home in the Republican Party; they helped elect Ronald Reagan to the presidency and helped many other pro-life candidates gain political office. In the years following Roe, both Congress and state legislatures passed a series of laws that repeatedly attempted to water down and limit abortion rights. As Roe energized pro-life conservative social movements, it simultaneously demobilized social movement support for abortion rights. Instead of pressing for abortion reform in the states and at the national level, pro-choice advocates were constantly placed on the defensive and repeatedly turned to the courts for protection. Reliance on the courts, in turn, diverted political energy away from forming a mass political movement for abortion rights that could successfully counter the burgeoning pro-life movement."

"Several contributors offered what they believed to be the best arguments for grounding (or rejecting) the abortion right using constitutional materials available in 1973. Some tried to improve (or, in the case of the dissenters, demolish) Justice Blackmun’s arguments that abortion was a constitutionally protected liberty. Others decided to ground the abortion right in the Equal Protection Clause, taking advantage of the fact that in 1973 the Court’s sex-equality jurisprudence was still relatively unformed and could have been fashioned differently from the way it is today. None of the opinions adopted Justice Blackmun’s original trimester framework."

"My opinion argues that abortion statutes violate both women’s liberty and their equality. Restrictions on abortion compel women to become mothers, with all of the social expectations and duties that come with motherhood. Whether fairly or not, women in American society still bear most of the responsibility for child care. They are expected to make sacrifices for their children, and they feel most of the brunt of social condemnation if their children are not properly cared for. Moreover, because of the strong social expectations about the duties of motherhood, women suffer stigma and shame if they give their children up for adoption. Where a woman’s life or health is not at risk, the right to abortion is the right to have a reasonable time to decide whether to take on the responsibilities of motherhood. How long women should have to make that decision should be determined by legislatures in the first instance: “[L]egislatures must specify a period of time during pregnancy in which women may obtain medically safe abortions.” After this point, “legislatures may restrict of even completely prohibit abortions, . . . except where an abortion is necessary, in the judgment of medical professionals, to preserve the life or health of the mother.” The basic idea behind this formulation is that the right to abortion has two components: Women have a right to decide whether or not to become oarents, so the state must afford them an appropriate period of time in which to make that decision. But women also have a right not to be forced by the state to sacrifice their life or health to bear children, and this right continues through pregnancy. My opinion rejects the rigid trimester system in Roe. Instead, courts should let states try out different frameworks for abortion regulation. Over time, courts should then judge the validity of these laws based on whether they give women a reasonable time to decide and a “fair and realistic chance” to end their pregnancy."

"Reva Siegel argues that the proper basis of the abortion right is women’s equality and that the Court’s heightened scrutiny for laws that impose sex discrimination should have begun with Roe v. Wade. Abortion is a constitutional right necessary to secure women’s equal citizenship. Siegel argues that exemptions in abortion statutes like those in Roe and Doe demonstrate, often in quite telling ways, that abortion restrictions are deeply tied to stereotypical views about the sexes and about the dutes of women: “Whatever respect for unborn life abortion laws express,” Siegel notes, “state criminal kaws have never value unborn life in the way they value born life.” Instead, states “have used the criminal law to coerce and intimidate women into performing the work of motherhood.” “Abortion kaws do not treat women as murderers, but as “mothers”-citizens who exist for the purpose of rearing children, citizens who are expected to perform the work of parenting as dependents and nonparticipants in the citizenship activities in which men are engaged.” Siegel bases her opinion on the equality arguments offered in amicus briefs submitted to the Supreme Court by various women’s groups. These briefs grounded the abortion right in what we would today call an antisubordination model of equality law. Siegel’s answer to what Roe should have said is to give voice to the lawyers who were part of the legal vanguard of the second wave of American feminism and whose arguments were largely ignored by the courts."

"Mark Tushnet interprets the question of what Roe should have said differently from all the other participants; he asks what were the best arguments that could have been generated by someone who could plausibly have been a Justice on the Supreme Court in 1973. The men who decided Roe (there would not be a woman Justice for almost a decade) did not understand the connection between abortion rights and the Equal Protection Clause. In his view, Justice Douglas’s concurrence in Doe (which was drafted in conversation with Justice Brennan) was the best that the Court probably could have done under the circumstances, and it forms the model for Tushnet’s opinion."

"Anita Allen grounds her opinion on women’s procreative liberty protected by the Due Process Clause of the Fourteenth Amendment. She argues that, because laws that compel women to abort their pregnancies would clearly be unconstitutional, so too would be laws that prevent abortion: “Like the right to prevent pregnancy, the right to terminate pregnancy is a fundamental right”. Jed Rubenfeld argues that the constitutional right to privacy is part of a more general prohibition against totalitarian policies that take over people’s private lives and impose a specific occupation on them by force of law. Restrictions on abortion are unconstitutional because they conscript women against their will and force them “to carry out a specific, sustained, long-term life-altering and life-occupying course of conduct.” Robin West argues that restrictions on abortion violate both women’s liberty and their equality. However, she does not base her argument on either sex discrimination or the right of privacy. Rather, she argues that restrictions on abortion impose duties of good samaritanship on pregnant women that states impose on no other persons. Moreover, restrictions on abortion prevent pregnant women from using self-help to avoid the consequences of pregnancies imposed on them in cases of marital rape and coerced sex. Although West believes that the courts should protect a basic abortion right, courts cannot deal with the larger structural problems of sex inequality in the United States. “Mothering children, as we presently socially construct that work,” West argued, “is incompatible with the basic rights and responsibilities of citizenship,” and this “incompatability has constitutional implications.” But merely striking down abortion laws is “a pathetically inadequate remedy.” Emphasizing Congress’s duty to interperet and enforce the Fourteenth Amendment independent of the courts, West argues that Congress is the body best able to pass legislation that protects women’s equality and secures their equal citizenship."

"Yet another way of answering the question of what Roe should have said focuses not on the best doctrinal or theoretical justifications for Roe but on what was the best way for the Court to perform its institutional role. Cass Sunstein has advanced a theory of judicial minimalism; he argues that in courts should usually decided cases on narrow grounds and refrain from offering comprehensive and controversial justifications for their decisions. By leaving things undecided and underspecifying the grounds for decision, courts can act as catalysts for democratic deliberation and avoid provoking an unnecessary political backlash. Without specifying the exact contours of the abortion rights, Sunstein decided Roe and Doe on the ground that the abortion statues were “overbroad,” that is, that they abridged to much constitutionally protected liberty. Akhil Amar concurs in part and dissents in part in Roe and dissent in Doe. He argues that the Texas statute in Roe is unconstitutional because it was passed before women gained the right to vote. The Georgia abortion statute in Doe, passed in 1968, is another matter entirely, and Amar believes that the Court should have abstained from considering it, leaving the interpretation of the statute to the Georgia courts. Jeffrey Rosen dissents from both Roe and Doe. Luke Sunstien, Rosen focuses on the Court’s proper institutional role, but he argues that the question of abortion rights should be left to legislatures. He takes up many of the arguments made against Roe by John Hartely in a famous law review article in 1973. In Rosen’s view, the Court should have stayed out of controversial questions like abortion because the right to privacy has no basis in the constitution’s text, structure, and history and because the Court’s previous precedents do not require extension of the right to privacy to abortion. Instead of holding that abortion was constitutionally protected, the Court should have allowed the political process to work out the issue of abortion rights. Rosen notes that abortion reform was just beginning in the early 1970s, and in his opinion, written from the standpoint of 1973, he predicts that the Court’s hasty and ill-considered intervention will only cause severe political problems both for the protection of abortion rights and progressive causes generally in the years to come."

"Objections to Roe generally fall into two categories, procedural and moral. Procedural objections argue that the question of abortion rights should have been left to the political process. Moral objections argue that a right to abortion is a substantive wrong that should not be elevated to a constitutional right."

"Teresa Stanton Collett and Michael Stokes Paulsen offer the moral case against Roe. Roe, Collett argues, is the product of a misguided radical individualism that undermines women’s liberty and equality. Making abortion readily available will allow men to escape responsibility for sex and parenthood, while “artificial birth control and abortion . . . treat women’s bodies as unnatural: something to be altered to conform to the male model.” “I refuse to accept,” Collett declares, “that women must deny their fertility and slay their children in order to obtain equal access to the marketplace and the public square.” Michael Stokes Paulsen also offers a forthrightly pro-life opinion, arguing that abortion is deeply immoral and that the Court has severely damaged its authority by recognizing it as a fundamental right. ‘Abortion,” he insists, “does not destroy potential life. Abortion kills a living human being.” Paulsen writes in a prophetic voice, denouncing the evils of abortion and condemning the Court for having been complicit in the destruction of so many innocent human lives. Paulsen calls on the conscience of Americans to abandon what he regards as the Court’s most lawless and immoral opinion, or, as he describes it, “the most awful human atrocity inflicted by the Court in our Nation’s history.”"

"It is hardly surprising that critics of a constitutional right to abortion would find much to criticize in Blackmun’s original opinions in Roe and Doe. But supporters of the abortion right over the years have also found them wanting. Part of the problem stems from Justice Blackmun’s altogether too cursory attempts to justify and defen the abortion right, the compromises between the Jutices that led to the trimester system, and the Justices’ inability to imagine abortion as a question of sex equality as well as a question of liberty. To be sure, Blackmun’s opinion in Roe does advance from a purely medical model of abortion, which had dominated the conversation for decades. But that conversation was already changing rapidly by 1973, moving in a short space of time from the rights of doctor’s to the procreative liberty of women to the larger question of women’s equal citizenship. The Justices were simply not able to traverse two revolutions in thpught in a single opinion. Moreover, the question of abortion rights is legally difficult and morally complex, bringing together issues of life and death, humanity, equality, and liberty. The problems the Justices faced in Roe were as trying in their own way as any set of questions that come before the courts. Given the legal and moral difficulty of the issues and the inevitable need to make compromises, it was perhaps too much to expect that the Court would get it right the first time, under almost anyone’s standards of what “getting it right” might mean. That suggests that Justice Brennan’s initial instincts were probably correct and that the Court should have been more reluctant to offer hard and fast rules in Roe and Doe. It might have developed its ideas more fully over a course of decisions, perhaps in tandem with its sex-equality jurisprudence. That would probably not have prevented the emergence of a powerful pro-life movement or made abortion uncontroversial. But it might have produced a fairer, more flexible, and more democratically acceptable set of legal doctrines. Finally, although the Justices clearly understood that abortion was a controversial question, they failed to recognize sufficiently, as they had in Brown v. Board of Education, that whatever they did would cause a significant upheaval in American politics. In hindsight, they probably should have written the opinions in Roe and Doe with a much greater degree of care about winning public support and assuaging criticism. Chief Justice Warren’s decision in Brown is a model of eloquence and understatement, brief and statesmanlike, fully aware of its political context and deliberately designed to avoid confrontation and to conserve the Court’s legitimacy. Blackmun’s opinions in Roe and Doe, by contrast, although filled with scholarship and medical history, are long-winded and devote a very significant amount of space to technical legal issues. Warren’s opinion in Brown was written so that it could be republished in newspapers. Blackmun’s opinion in Roe was so complicated that Blackmun himself at one point contemplated writing an addendum explaining its meaning."

"Perhaps Roe’s most important shortcoming was not its failure to “get it right” but its relative inattention to the interactions between courts and politics and to how courts, whether they like it or not, always work in conversation with the political branches in developing constitutional norms. Defenders of constitutional rights often argue that courts exist to protect rights from political interference. But the actual process of constitutional development is much more complicated. Courts do recognize rights and defend them from legislative abridgement. But those rights also arise out of politics; they are tested by politics, and they are modified by courts as a result of politics. The work of courts, important as it may be, is always an intermediate and intermediary feature of a much longer process of legal development that stretches back into the past and forward into the future. Despite the attention that has been paid to Roe, the constitutional right to abortion, as it exists today, is not solely the work of the federal judiciary. Like all important constitutional ideas, it is the work of a dialectical process that engages all of the major institutions of American lawmaking, and it has been fashioned through controversy and strife, through trial and error-and with many mistakes and hesitations along the way-out of the raw materials of American politics."

"Georgia’s abortion statute requires prior approval by a board of physicians. Doe applied for permission to undergo an abortion at Grady Memorial Hospital in Atlanta. Doe states that she sought an abortion because she was emotionally and economically unable to care for and support another child. Three weeks after filing her request, she was notified that her application had been rejected by the hospital’s abortion committee because her case did not fall under one of the three reasons specified in Georgia’s abortion statute (1) that continued pregnancy would endanger her life or injure her health; (2) that the fetus would likely be born with a serious defect; or that the pregnancy resulted from rape. She then filed a class action against the State attorney general, the district attorney of Fulton County, and the chief of police of the city of Atlanta, seeking injunctive and declatory relief on the grounds that Georgia’s statute violated her constitutional rights. Her lawsuit was joined by twenty-one other individuals. Nine of the named plaintiffs in the complaint were described as Georgia-licensed physicians, seven as nurses registered in the State, five as clergymen, and two as social workers. In addition, two nonprofit Georgia corporations that advocate abortion reform also joined the lawsuit."

"Jane Roe’s complaint, originally filed in March 1970, states that she was pregnant and that she was unable to obtain a legal abortion in Texas because of Texas’s abortion statute. From these facts there is no doubt that she possessed standing to challenge the statute even though Texas’s criminal prohibition is directed at those who perform abortions, rather than at the women who receive them, for the law effectively prevents her from obtaining a legal abortion in Texas. Texas, however, argues that since neither Roe nor anyone in the class she represents is now pregnant, her case is moot."

"Normally, we require that an actual controversy exist at the time of appellate or certiori review, not simply at the time the action is begun. However, when the issue concerns the rights of pregnant women, the normal human gestation process (which lasts approximately 266 days) is likely to end before a case can be heard or decided by an appellate court. If we adopted the rule proposed by the State of Texas, few cases involving rights of pregnant women would be justiciable beyond the trial stage. Appellate review would effectively be denied. Moreover, although no particular pregnancy lasts as long as the normal appellate process, individual women often become pregnant more than once, and pregnancies are constantly occurring in the general population. Therefore the situation of a pregnant woman asserting her rights clearly falls into the long recognized category of cases “capable of repetition, yet evading review.” Southern Pacific Terminal Co. v. ICC, 219 U.S. 298, 515 (1911). See Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 178-79 (1968); United States v. W.T. Grant Co., 345 U.S. 629, 632-33 (1953). In such situations we hold that a litigant’s action is not moot. We therefore agree with the District Court that Jane Roe retained standing to bring this lawsuit, that her case still presents a justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot."

"[T]he lawsuit of the Georgia plaintiff, Mary Doe, is also justiciable and is not mooted by the fact that her pregnancy has terminated. The physicians who joined her lawsuit are not currently being prosecuted or threatened with prosecution under Georgia law, but they have alleged a credible fear of future prosecution if they participate in abortions. This is sufficient to give them standing. See Epperson v. Arkansas, 393 U.S. 97 (1968) (recognizing right of school teaher who had not yet been charged criminally to challenge state anti-evolution statute)."

"Appellants argue that the restrictions on abortion found in the Texas and Georgia statutes violate fundamental rights guaranteed under our Constitution, and in particular the liberty guaranteed by the Due Process Clause of the Fourteenth Amendment. In general, courts do not sit to pass judgment on the wisdom of ordinary social and economic legislation. Ferguson v. Skrupa, 272 U.S 726 (1963); United States v. Carolene Products Co., 304 U.S. 144 (1938). However, our task is different when a violation of a fundamental liberty or a basic guarantee of equality is involved. The Texas and Georgia abortion statutes raise questions both about women’s basic civil liberties and women’s equality. Moreover, as we shall see, the issues of liberty and equality are intertwined."