Women

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

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

"[T]he liberal commitment to Roe has been deeply unhealthy—for American democracy, for liberalism, and even for the cause of abortion rights itself. All would benefit if abortion-rights proponents were forced to make their arguments in the policy arena (rather than during Supreme Court nomination hearings), and if pro-lifers were actually accountable to the electorate for their deeply unpopular policy prescriptions."

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

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

"Blackmun was both pleased and frightened by the assignment. It was a no-win proposition. No matter what he wrote, the opinion would be controversial. Abortion was too emotional, the split in society too great. Either way, he could be hated and vilified. But from Blackmun’s point of view, the chief had had little choice but to select him. Burger could not afford to take on such a controversial case himself, particularly from the minority. Douglas was the Court’s mischievous liberal, the rebel, and couldn’t be the author. Any abortion opinion Douglas wrote would be widely questioned outside the Court, and his extreme views might split rather than unify the existing majority. Lastly, Blackmun had noticed a deterioration in the quality of Douglas’s opinions; they had become increasingly superficial. Brennan was certainly as firm a vote for striking down the state abortion law as there was on the Court. But Brennan was the Court’s only Catholic. As such, Blackmun reasoned, he could not be expected to be willing to take the heat from Catholic anti-abortion groups. Marshall could not be the author for similar reasons: an opinion by the Court’s only Black member could be unfairly perceived as specifically designed for Black people. That left only Stewart. Blackmun believed that Stewart would certainly relish the assignment, but he clearly had trouble going very far. Blackmun was convinced that he alone had the medical background and sufficient patience to sift through the voluminous record for the scientific data on which to base a decision. He was deeply disturbed by Douglas’s assumption that the chief had some malicious intent in assigning the abortion cases to him. He was “not” a Minnesota Twin."

"In one case, Sarah Weddington, a poised but inexperienced advocate before the Court, argued on behalf of the women hoping to overturn an 1856 Texas law restricting abortions. Unaware the Court was focusing on jurisdiction questions, she immediately began discussing the woman’s constitutional right to an abortion. Stewart pointed out that there were several threshold questions to be dealt with first, including the jurisdiction issue. Stewart’s questions drew Douglas’s attention. As always during oral argument, he was a flurry of activity. Douglas listened with one ear, wrote, listened a moment, requested a book from the library, listened again, asked an occasional question, signed his correspondence for the day, listened again, made sarcastic comments to the Chief on his left or Stewart on his right. Now, for a change, Douglas stopped dead. He jotted a quick note to his clerks. “I need considerable research” on the jurisdiction question, he wrote. “Would one of you take it on.?” Weddington replied to Stewart that she saw no jurisdiction problem. Under earlier Court decisions, federal courts could intervene in state courts when constitutional issues had been raised. The Court had a number of bases for striking down Texas’s abortion law. “We had originally brought the suit alleging both the due process clause, equal protection clause, and the Ninth Amendment, and a variety of others,” Weddington began. “Since-“ “And anything else that might have been appropriate?” White interjected sarcastically. “Yes, yeah,” Weddington said, dissolving into laughter for a moment. But White had pinned Weddington where he wanted her. She had made a broad constitutional claim, the kind a majority of the Court normally opposed. “Well, do you or don’t you say that the constitutional right you insist on reaches up until the time of birth, or what?” White asked “… The Constitution, as I see it, gives protection to people after birth,” she offered. Douglas then turned the questioning back to the issue they were supposed to be considering, the federal jurisdiction question, and Weddington’s time soon lapsed. When Assistant Attorney General of Texas, Jay Floyd, began presenting the state’s case, Marshall returned to the issue of abortion. When, he inquired, does an unborn fetus come to have full constitutional rights? “At any time, Mr. Justice; we make no distinction …” Floyd replied. “There is life from the moment of impregnation.” “And do you have any scientific data to support that?” Marshall asked. Well, we begin, Mr. Justice, in our brief with the development of the human embryo, carrying it through to the development of the fetus, from about seven to nine days after conception” Floyd answered. “Well, what about six days?” Marshall asked, eliciting a mild chuckle from the audience."

"[A]lthough no right to privacy was explicitly stated in the Constitution, it was implied form a number of the Amendments. They had ruled that Connecticut could not prohibit married couples from using birth-control devices. Abortion advocates wanted that constitutional right to privacy extended to abortion. Stewart thought that the abortion advocates’ argument was too drastic. He had dissented from the 1965 decision, and he was reluctant to renounce his position. It was simply unnecessary for the Court to create another new constitutionally based right. In a case the previous year (U.S. v. Vuitch), when the Court had upheld restrictions on abortion in the District of Columbia, Douglas had argued in dissent that a physician’s judgment on abortion was a professional judgment that should not be second-guessed. Maybe this was the approach. Stewart thought he could expand Douglas’s argument to show that some anti-abortion statutes inhibited a doctor’s ability to exercise his best judgment Since a state-licensed doctor was a professional, the la should not interfere with his judgment on behalf of his patient. On that theory, Stewart could vote to knock out the Georgia law-which required that abortions be approved by two doctors and a hospital committee-without creating an explicit constitutional right to abortion. But he did not want to be the one to raise this issue in conference. Douglas had presented this rationale the year before. Since he was the Justice most likely to point out any inconsistency by Stewart with his past positions, one of Stewart’s clerks went to Douglas’s chambers. Stewart was considering voting against the Georgia abortion law, he told one of Douglas’s clerks. If Douglas were to resurrect his reasoning, it might help."

"But what was the role of Roe in the racial politics of abortion in the 1970s? Although there is an impressive body of work on the histories of the abortion-legalization and population movements, leading scholars have not adequately addressed this question. 9 This Article works to close this gap in the abortion discussion. By drawing on extensive archival research, the Article offers the first comprehensive history of the racial politics leading up to and immediately following Roe. Roe came down at a time when the abortion-rights movement was closely tied to the population-control cause."

"[C]urrent accounts of the impact of Roe on feminist activists tell only part of a more complex story. By reinterpreting Roe, feminists created new opportunities to reshape the racial politics of abortion. This Article argues that by defending their own understanding of the opinion against anti- abortion attacks, feminists were able to redefine abortion as a right that belonged to women irrespective of its political consequences."

"Amicus curiae briefs in Roe made questions of race, population control, and race genocide central to debate about the case. Initially, when the Court conferenced the case in December 1971, Justices William 0. Douglas and Thurgood Marshall raised concerns about whether existing abortion restrictions denied "equal protection by discriminating against the poor." By the time Justice Harry Blackmun drafted the final version of Roe, however, questions of race and population control had receded into the background of the opinion. Significantly, Blackmun described the framework of Roe-one based on constitutional rights and the history of the medical profession-as a way of avoiding the more emotional questions surrounding race and abortion."

"As David Garrow has shown, the issues of race and poverty did come up during the Court's first conference of Roe v. Wade and Doe v. Bolton.' 99 Roe involved a Texas statute that prohibited all abortions but those necessary to save the life of the mother. By contrast, Doe involved a statute patterned on the American Legal Institute's ("ALI") model reform: the statute allowed abortions subject to particular restrictions, requiring, among other things, several diagnoses by licensed physicians. During the conference, the Justices generally favored striking down the Texas law but found the constitutionality of the Georgia statute to be a closer question. Warren Burger, who led off voting on the Georgia measure, stated that it was constitutional. In discussing Doe, William Douglas, the next to vote, raised questions about the practical operation of the Georgia statute, asking: "Is it weighted on [the] side of only those who can afford this? What about the poor?" Thurgood Marshall similarly expressed concern about the impact of the Georgia statute on women in rural areas where "there [were] no negro doctors." Although there was some discussion of whether the Court ought to remand for lower court findings as to how the statute affected poor, non-white women, it ultimately did not. Just the same, Douglas and Marshall's comments revealed a doctrinal path the Court could have followed in Roe or Doe if it had wanted to address the question of race, poverty, and abortion. Under the Equal Protection Clause, the Court could have asked whether facially neutral statutes, like the ALI model, had an impermissibly discriminatory impact on poor, non-white women. Assuming that there was some constitutional right or liberty interest protecting the abortion decision, unequal access to abortion services might have posed an equal-protection problem."

"In a 7-to-2 decision, the justices in Roe v. Wade ensured that abortion would be legal in all 50 states. That ruling and subsequent decisions prevent states from outlawing abortion except for late in pregnancy when a fetus can live outside of the womb, and then only if the mother's physical or mental health will not be adversely affected. Still, getting an abortion in some states is difficult. Local laws, culture and politics create widely varying experiences for women seeking to end their pregnancies."

"In Roe v. Wade and subsequent decisions, the high court allowed states to prohibit abortions after the fetus is able to live outside of the womb, with the following exceptions: States may not prohibit abortions necessary to preserve a woman's life or physical or mental health, and states must allow the attending physician to determine when a woman's health is at risk and when the fetus is viable, without requiring a second doctor's opinion. Despite the court's stipulations, some state bans on late-term abortions violate those requirements, though not all have been enjoined by courts. In all, 36 states prohibit abortions after a certain point in pregnancy. Of those, 23 ban abortions at viability; five ban it in the third trimester; and eight ban the procedure after 24 weeks. In conflict with Roe v. Wade , four of the 36 states permit late-term abortions only to save a woman's life, and four use a narrower health definition. Nine states require a second physician to treat the fetus if it is born alive, and 10 states require a second physician to certify that the abortion is medically necessary."

"In Wade, Blackmun ad used the phrase “attending physician” to describe the doctor who would make the abortion decision. This conjures up an earlier time when patients actually had a personal physician who attended them at bedside both at home and in the hospital, but is certainly an inapt phrase for describing doctors who perform abortion procedures in clinics. Typically the pregnant woman is greeter by a nurse, a social worker, or an abortion counselor. The “medical decision” is made with them. She meets the doctor typically only after she is "prepped and in the stirrups." The physician is more appropriately characterized as a technician in an assembly line than an attending physician. There are certainly exceptions to this practice, but the picture I describe will certainly be familiar to the vast majority of the participants in this example of "deliberated medical judgments related to life and health." Doctors, of course, still use the phrase "attending physician" but with a different meaning. As Victor Fuchs has written of contemporary medical practice, my heart can get a doctor, my liver can get a doctor, my head can get a doctor, but I cannot get a doctor.' The nostalgic image of the doctor-patient relationship is important in Bolton because there the Supreme Court had a great deal to say about the importance of the privacy of the doctor-patient relation- ship. The Court made this privacy seem as sacred to law as the privacy of the marriage bed. We shall see how much respect subsequent courts have had for the privacy of the doctor-patient relationship as cases were decided in the name of privacy."

"As a psychiatrist, I am in the unusual position on insisting that we take the Justice’s words as their face value. Of course, the Chief Justice turned out to be completely wrong: the consequences predicted by the dissent were as accurate as any judicial prediction can be. As Justice White correctly interpreted the decision, “any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.” As Justice White predicted, abortion has become a routine alternative method of birth control. If we take Justice Blackmun’s and Burger’s words about medical judgment at face value, we can only assume that they were quite misled about the medical profession, its medical standards, and the medical judgments that were and would be applied to abortion. It was Blackmun and Burger who were out of touch with reality if they honestly believed that they wrote. My point is not that the abortion decisions were wrong or right as a matter of law or morality. My point is that to the extent these opinions involved factual inferences about medical standards and medical practice-inferences which suggested a context for the decision, inferences which suggested more limited consequences of the decision, inferences which suggested the realities of medical practice-to that extent the decision was quite misleading. I claim that such misleading statements about medical realities are not uncommon when judges make medical decisions. I also claim that the result of such misleading statements by judges is costly. The credibility of the courts is undermined in the eyes of the medical profession, and the credibility of the medical profession is undermined in the eyes of the public. The result is greater public distrust of both law and medicine. A loss of faith in both professions is the result of the vicious circle of counterproductive moves set in motion by these flawed decisions."

"There have indeed been leaks at the court before, albeit of a different scale. One of them actually was about the case at the heart of today's conversation: In 1973, the original Roe decision was leaked to the press before the court had formally announced it. Jonathan Peters, a media law professor at the University of Georgia, noted in a Twitter thread that there were actually two Roe-related leaks in the 1970s. First, the Washington Post published a story about the court's internal deliberations, including a June 1972 memo from Justice William O. Douglas to his colleagues that was mysteriously leaked. Seven months later, Time magazine published the final decision and vote details just hours before the court was due to announce it — the result of an early scoop and a delayed ruling. A Supreme Court clerk named Larry Hammond told Time staff reporter David Beckwith, a law school acquaintance, that the Roe ruling was coming, according to lawyer and author James Robenalt, who detailed the incident in a Washington Post column on Monday. Hammond gave Beckwith the information "on background," and it was only to be reported once the opinion came down from the court. But the ruling was slightly delayed, and that week's magazine ended up hitting newsstands a few hours too soon."

"Any discussion of the role of the judiciary in medical decision making in the twentieth century must begin with the abortion decisions: Roe v. Wade and Doe v. Bolton. One aspect of those decisions is relevant to my particular thesis. I quote a crucial sentence from Justice Blackmun’s decision in Wade: “For the stage, prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” Although we have come to know the abortion decision as freedom of choice versus right to life, we find Justice Blackmun writing not that the state must yield to the woman’s choice but to the physician’s “medical judgment.” A assure you this is not just a sentence taken out of context. Earlier in his opinion, Blackmun had written that the attending physician before extra-uterine viability is free to “determine . . . that, in his medical judgment, the patient’s pregnancy should be terminated.” The language of the decision throughout misleadingly suggests that some crucial sort of medical judgment is involved not only in how the abortion is performed but whether the pregnancy “should be terminated.”"

"While I am in an I-told-you-so mood, I must recall my bemusement, in Casey, at the joint opinion’s expressed belief that Roe v. Wade had “call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution,” Casey, 505 U.S., at 867, and that the decision in Casey would ratify that happy truce. It seemed to me, quite to the contrary, that “Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since”; and that, “by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption, rather than of any Pax Roeana, that the Court’s new majority decrees.” Id., at 995—996. Today’s decision, that the Constitution of the United States prevents the prohibition of a horrible mode of abortion, will be greeted by a firestorm of criticism–as well it should. I cannot understand why those who acknowledge that, in the opening words of Justice O’Connor’s concurrence, “[t]he issue of abortion is one of the most contentious and controversial in contemporary American society,” ante, at 1, persist in the belief that this Court, armed with neither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it. If only for the sake of its own preservation, the Court should return this matter to the people–where the Constitution, by its silence on the subject, left it–and let them decide, State by State, whether this practice should be allowed. Casey must be overruled."

"Justice Burger in his brief comment to the abortion decisions chose to emphasize this very same crucial and misleading point. I do not read the Court’s holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of careful deliberated medical judgment related to life and health. Plainly, the Court today rejects any claims that the Constitution requires abortions on demand. What was the reality that Justice White in dissent had discounted? Implied by Blackmun and explicit in the words of Burger were the crucial and false notions that the reality of medical standards and medical judgment would keep the woman’s right to an abortion from becoming abortion on demand, abortion as a routine form of birth control. Professor Noonan, a bitter critic of the abortion decision, refers to this aspect of the decision as the “doctor as heroic figure.” Some have attributed Blackmun and Burger’s “heroic doctor” misleading language to political or personal motives or even to sugar-coated hypocrisy. There are even professional cynics steeped in constitutional law and court watching who suggest Machiavellian duplicity of Burger’s part. Burger, they say, is waiting for another Reagan appointee so that with a majority he will then write: I never approved abortion on demand and since that is what it became I now join with those who reject Wade and Bolton."

"Then-Chief Justice Warren Burger was reportedly furious about the leak, demanding a meeting with Time's editors to tell them off. He also sent a letter to the other justices demanding that the leaker be identified and punished, and threatened to subject law clerks to lie-detector tests if no one came forward, Robenalt said. According to Peters, this was also the origin of Burger's "20-second rule," in which any law clerk caught talking to a reporter would be fired in under half a minute. Hammond offered his resignation to his boss, Justice Lewis Powell. But Powell didn't accept it, and instead called Burger to tell him "that Hammond had been double-crossed," writes Robenalt, who interviewed Hammond for his 2015 book about the political and cultural events of January 1973. Burger wasn't quick to forgive the magazine, but accepted Hammond's apology and let him stay on as Powell's clerk. He continued in that role for an additional term before leaving the court to join the Watergate Special Prosecution Force. "The story of Hammond's close call became legend to other clerks on the court at the time and has been passed down as a cautionary tale over time," Robenalt added."

"Appellees, state-employed health professionals and private nonprofit corporations providing abortion services, brought suit in the District Court for declaratory and injunctive relief challenging the constitutionality of a Missouri statute regulating the performance of abortions. The statute, inter alia: (1) sets forth "findings" in its preamble that "[t]he life of each human being begins at conception," and that "unborn children have protectable interests in life, health, and wellbeing," §§ 1.205.1(1), (2), and requires that all state laws be interpreted to provide unborn children with the same rights enjoyed by other persons, subject to the Federal Constitution and this Court's precedents, § 1.205.2; (2) specifies that a physician, prior to performing an abortion on any woman whom he has reason to believe is 20 or more weeks pregnant, must ascertain whether the fetus is "viable" by performing "such medical examinations and tests as are necessary to make a finding of [the fetus'] gestational age, weight, and lung maturity," § 188.029; (3) prohibits the use of public employees and facilities to perform or assist abortions not necessary to save the mother's life, §§ 188.210, 188.215; and (4) makes it unlawful to use public funds, employees, or facilities for the purpose of "encouraging or counseling" a woman to have an abortion not necessary to save her life, §§ 188.205, 188.210, 188.215. The District Court struck down each of the above provisions, among others, and enjoined their enforcement. The Court of Appeals affirmed, ruling that the provisions in question violated this Court's decisions in Roe v. Wade, 410 U. S. 113, and subsequent cases."

"Although Roe and Casey mandated a health exception for cases in which abortion is “necessary” for a woman’s health, the majority concludes that a procedure is “necessary” if it has any comparative health benefits. Ante, at 18. In other words, according to the majority, so long as a doctor can point to support in the profession for his (or the woman’s) preferred procedure, it is “necessary” and the physician is entitled to perform it. Id. See also ante, at 2 (Ginsburg, J., concurring) (arguing that a State cannot constitutionally “sto[p] a woman from choosing the procedure her doctor ‘reasonably believes’ ” is in her best interest). But such a health exception requirement eviscerates Casey’s undue burden standard and imposes unfettered abortion-on-demand. The exception entirely swallows the rule. In effect, no regulation of abortion procedures is permitted because there will always be some support for a procedure and there will always be some doctors who conclude that the procedure is preferable. If Nebraska reenacts its partial birth abortion ban with a health exception, the State will not be able to prevent physicians like Dr. Carhart from using partial birth abortion as a routine abortion procedure. This Court has now expressed its own conclusion that there is “highly plausible” support for the view that partial birth abortion is safer, which, in the majority’s view, means that the procedure is therefore “necessary.” Ante, at 18. Any doctor who wishes to perform such a procedure under the new statute will be able to do so with impunity. Therefore, Justice O’Connor’s assurance that the constitutional failings of Nebraska’s statute can be easily fixed, ante, at 5, is illusory. The majority’s insistence on a health exception is a fig leaf barely covering its hostility to any abortion regulation by the States–a hostility that Casey purported to reject."

"[R]oe and Casey say nothing at all about cases in which a physician considers one prohibited method of abortion to be preferable to permissible methods. Today’s majority and Justice O’Connor twist Roe and Casey to apply to the situation in which a woman desires–for whatever reason–an abortion and wishes to obtain the abortion by some particular method. See ante, at 11—12 (majority opinion); ante, at 1—2 (concurring opinion). In other words, the majority and Justice O’Connor fail to distinguish between cases in which health concerns require a woman to obtain an abortion and cases in which health concerns cause a woman who desires an abortion (for whatever reason) to prefer one method over another."

"For close to two decades after Roe v. Wade, 410 U.S. 113 (1973), the Court gave but slight weight to the interests of the separate States when their legislatures sought to address persisting concerns raised by the existence of a woman’s right to elect an abortion in defined circumstances. When the Court reaffirmed the essential holding of Roe, a central premise was that the States retain a critical and legitimate role in legislating on the subject of abortion, as limited by the woman’s right the Court restated and again guaranteed. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). The political processes of the State are not to be foreclosed from enacting laws to promote the life of the unborn and to ensure respect for all human life and its potential. Id., at 871 (joint opinion of O’Connor, Kennedy, and Souter, JJ.). The State’s constitutional authority is a vital means for citizens to address these grave and serious issues, as they must if we are to progress in knowledge and understanding and in the attainment of some degree of consensus."

"In the almost 30 years since Roe, this Court has never described the various methods of aborting a second- or third-trimester fetus. From reading the majority’s sanitized description, one would think that this case involves state regulation of a widely accepted routine medical procedure. Nothing could be further from the truth. The most widely used method of abortion during this stage of pregnancy is so gruesome that its use can be traumatic even for the physicians and medical staff who perform it. See App. 656 (testimony of Dr. Boehm); W. Hern, Abortion Practice 134 (1990). And the particular procedure at issue in this case, “partial birth abortion,” so closely borders on infanticide that 30 States have attempted to ban it. I will begin with a discussion of the methods of abortion available to women late in their pregnancies before addressing the statutory and constitutional questions involved."

"In 1973, this Court struck down an Act of the Texas Legislature that had been in effect since 1857, thereby rendering unconstitutional abortion statutes in dozens of States. Roe v. Wade, 410 U.S. 113, 119. As some of my colleagues on the Court, past and present, ably demonstrated, that decision was grievously wrong. See, e.g., Doe v. Bolton, 410 U.S. 179, 221—223 (1973) (White, J., dissenting); Roe v. Wade, supra, at 171—178 (Rehnquist, J., dissenting). Abortion is a unique act, in which a woman’s exercise of control over her own body ends, depending on one’s view, human life or potential human life. Nothing in our Federal Constitution deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother. Although a State may permit abortion, nothing in the Constitution dictates that a State must do so. In the years following Roe, this Court applied, and, worse, extended, that decision to strike down numerous state statutes that purportedly threatened a woman’s ability to obtain an abortion. The Court voided parental consent laws, see Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 75 (1976), legislation requiring that second-trimester abortions take place in hospitals, see Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 431 (1983), and even a requirement that both parents of a minor be notified before their child has an abortion, see Hodgson v. Minnesota, 497 U.S. 417, 455 (1990). It was only a slight exaggeration when this Court described, in 1976, a right to abortion “without interference from the State.” Danforth, supra, at 61. The Court’s expansive application of Roe in this period, even more than Roe itself, was fairly described as the “unrestrained imposition of [the Court’s] own, extraconstitutional value preferences” on the American people. Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 794 (1986) (White, J., dissenting). It appeared that this era of Court-mandated abortion on demand had come to an end, first with our decision in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), see id., at 557 (Blackmun, J., concurring in part and dissenting in part) (lamenting that the plurality had “discard[ed]” Roe), and then finally (or so we were told) in our decision in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). Although in Casey the separate opinions of The Chief Justice and Justice Scalia urging the Court to overrule Roe did not command a majority, seven Members of that Court, including six Members sitting today, acknowledged that States have a legitimate role in regulating abortion and recognized the States’ interest in respecting fetal life at all stages of development. See 505 U.S., at 877 (joint opinion of O’Connor, Kennedy, and Souter, JJ.); id., at 944 (Rehnquist, C. J., joined by White, Scalia, Thomas, JJ., concurring in judgment in part and dissenting in part); id., at 979 (Scalia, J., joined by Rehnquist, C. J., and White and Thomas, JJ., concurring in judgment in part and dissenting in part). The joint opinion authored by Justices O’Connor, Kennedy, and Souter concluded that prior case law “went too far” in “undervalu[ing] the State’s interest in potential life” and in “striking down … some abortion regulations which in no real sense deprived women of the ultimate decision.” Id., at 875.1 Roe and subsequent cases, according to the joint opinion, had wrongly “treat[ed] all governmental attempts to influence a woman’s decision on behalf of the potential life within her as unwarranted,” a treatment that was “incompatible with the recognition that there is a substantial state interest in potential life throughout pregnancy.” Id., at 876. Accordingly, the joint opinion held that so long as state regulation of abortion furthers legitimate interests–that is, interests not designed to strike at the right itself–the regulation is invalid only if it imposes an undue burden on a woman’s ability to obtain an abortion, meaning that it places a substantial obstacle in the woman’s path. Id., at 874, 877."

"Though Justices O’Connor, Kennedy, and Souter declined in Casey, on the ground of stare decisis, to reconsider whether abortion enjoys any constitutional protection, 505 U.S., at 844—846, 854—869 (majority opinion); id., at 871 (joint opinion), Casey professed to be, in part, a repudiation of Roe and its progeny. The Casey joint opinion expressly noted that prior case law had undervalued the State’s interest in potential life, 505 U.S., at 875—876, and had invalidated regulations of abortion that “in no real sense deprived women of the ultimate decision,” id., at 875. See id., at 871 (“Roe v. Wade speaks with clarity in establishing … the State’s ‘important and legitimate interest in potential life.’ That portion of the decision in Roe has been given too little acknowledgment” (citation omitted)). The joint opinion repeatedly recognized the States’ weighty interest in this area. See id., at 877 (“State … may express profound respect for the life of the unborn”); id., at 878 (“the State’s profound interest in potential life”); id., at 850 (majority opinion) (“profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage”). And, the joint opinion expressed repeatedly the States’ legitimate role in regulating abortion procedures. See id., at 876 (“The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted”); id., at 875 (“Not all governmental intrusion [with abortion] is of necessity unwarranted”). According to the joint opinion, “The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.” Id., at 874. The Casey joint opinion therefore adopted the standard: “Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.” Ibid. A regulation imposes an “undue burden” only if it “has the effect of placing a substantial obstacle in the path of a woman’s choice.” Id., at 877."

"Casey held that cases decided in the wake of Roe v. Wade, 410 U.S. 113 (1973), had “given [state interests] too little acknowledgment and implementation.” 505 U.S., at 871 (joint opinion of O’Connor, Kennedy, and Souter, JJ.). The decision turned aside any contention that a person has the “right to decide whether to have an abortion without ‘interference from the State,’ ” id., at 875, and rejected a strict scrutiny standard of review as “incompatible with the recognition that there is a substantial state interest in potential life throughout pregnancy.” Id., at 876. “The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted.” Ibid. We held it was inappropriate for the Judicial Branch to provide an exhaustive list of state interests implicated by abortion. Id., at 877. Casey is premised on the States having an important constitutional role in defining their interests in the abortion debate. It is only with this principle in mind that Nebraska’s interests can be given proper weight. The State’s brief describes its interests as including concern for the life of the unborn and “for the partially-born,” in preserving the integrity of the medical profession, and in “erecting a barrier to infanticide.” Brief for Petitioners 48—49. A review of Casey demonstrates the legitimacy of these policies. The Court should say so."

"The court’s leaked draft opinion to overturn Roe pokes holes in what protections are offered by the 14th Amendment’s due process and equal protection clauses by stating that such rights must be “deeply rooted” in the country’s history. “It opens up a can of worms related to legal arguments regarding the 14th Amendment and its application to the 14th amendment,” said Victoria Kirby York, deputy executive director of the National Black Justice Coalition. “It is the constitutional amendment that reset in many ways a lot of the anti-Black, anti woman messages in the original Constitution.”"

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

"Toward the end of the draft court opinion, Alito acknowledges that the court cannot predict what political or societal consequences would arise from overturning Roe. “And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision,” he writes."

"The Supreme Court’s draft opinion leak has James Esseks worried, and not just about abortion access. Esseks, the director of the LGBTQ & HIV Project at the ACLU, ticks off the civil rights laws he fears could be on the chopping block. “This potential majority of five justices seems perfectly willing to jettison 50 years of precedent and a right that has become deeply ingrained in the fabric of American society based on not a whole lot,” he said. Since it leaked Monday, legal experts across the nation have dug through Justice Samuel Alito’s draft opinion that would overturn Roe v. Wade, the 1973 decision that granted the right to an abortion. Some LGBTQ+ experts say the draft opinion leaves critical civil rights law vulnerable, including cases that granted Americans the right to same-sex relationships (Lawrence v. Texas) and marriage equality (Obergefell v. Hodges). The draft opinion also signals that the court is willing to disturb significant legal precedent — which could have consequences beyond immediately restricting abortion access, said Ezra Ishmael Young, who teaches constitutional law at Cornell Law School. “I think the concern with LGBTQ+ people is if they’re willing to do it in abortion, are there any other issues where they’re willing to do it too?”"

"For better or worse women have been making these individual decisions about abortion for the past 25 years. If recent public opinion polls are to be believed, more women have more doubts about abortion than they did in the past. Perhaps the day will come when very few, if any, women will opt for this alternative. If that day comes, however, it will be because they as individuals decided that abortion is wrong and not the answers to their problems. It will not be because the Government imposed that decision upon them against their will. The ability of individual women to make this judgment for themselves is the real and lasting legacy of Roe v. Wade."

"“The danger of overturning Roe is in the fact that you’re tipping a major leg of the right-to-privacy stool out from underneath it,” he said. “If you take that critical component piece out, then it opens all these other things up to a greater degree of susceptibility.” Right to privacy also plays a huge role in the legality of bans on gender-affirming care for trans youth. If Alito’s draft opinion language on privacy is preserved and a lawsuit ever reached the high court, Kreis is worried that rights to bodily autonomy and personal health care decision-making would again be threatened. “I think there’s an imminent danger to trans rights in a post-Roe world,” he said."

"Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of “potential life” than the equally gruesome procedure Nebraska claims it still allows. Justice Ginsburg and Judge Posner have, I believe, correctly diagnosed the underlying reason for the enactment of this legislation–a reason that also explains much of the Court’s rhetoric directed at an objective that extends well beyond the narrow issue that this case presents. The rhetoric is almost, but not quite, loud enough to obscure the quiet fact that during the past 27 years, the central holding of Roe v. Wade, 410 U.S. 113 (1973), has been endorsed by all but 4 of the 17 Justices who have addressed the issue. That holding–that the word “liberty” in the Fourteenth Amendment includes a woman’s right to make this difficult and extremely personal decision–makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty. But one need not even approach this view today to conclude that Nebraska’s law must fall. For the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational. See U.S. Const., Amdt. 14."

"In deferring to the physician’s judgment, the Court turns back to cases decided in the wake of Roe, cases which gave a physician’s treatment decisions controlling weight. Before it was repudiated by Casey, the approach of deferring to physicians had reached its apex in Akron, supra, where the Court held an informed consent requirement was unconstitutional. The law challenged in Akron required the abortionist to inform the woman of the status of her pregnancy, the development of her fetus, the date of possible viability, the physical and emotional complications that may result from an abortion, and the availability of agencies to provide assistance and information. Id., at 442. The physician was also required to advise the woman of the risks associated with the abortion technique to be employed and other information. Ibid. The law was invalidated based on the physician’s right to practice medicine in the way he or she saw fit; for, according to the Akron Court, “[i]t remains primarily the responsibility of the physician to ensure that appropriate information is conveyed to his patient, depending on her particular circumstances.” Id., at 443. Dispositive for the Court was that the law was an “intrusion upon the discretion of the pregnant woman’s physician.” Id., at 445. The physician was placed in an “undesired and uncomfortable straitjacket.” Ibid. (internal quotation marks omitted). The Court’s decision today echoes the Akron Court’s deference to a physician’s right to practice medicine in the way he sees fit."

"THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I, II-A, II-B, and II-C, concluding that: 1. This Court need not pass on the constitutionality of the Missouri statute's preamble. In invalidating the preamble, the Court of Appeals misconceived the meaning of the dictum in Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 462 U. S. 444, that "a State may not adopt one theory of when life begins to justify its regulation of abortions." That statement means only that a State could not "justify" any abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the State's view about when life begins. The preamble does not, by its terms, regulate abortions or any other aspect of appellees' medical practice, and § 1.205.2 can be interpreted to do no more than offer protections to unborn children in tort and probate law, which is permissible under Roe v. Wade, supra, at 410 U. S. 161-162. This Court has emphasized that Roe implies no limitation on a State's authority to make a value judgment favoring childbirth over abortion, Maher v. Roe, 432 U. S. 464, 432 U. S. 474, and the preamble can be read simply to express that sort of value judgment. The extent to which the preamble's language might be used to interpret other state statutes or regulations is something that only the state courts can definitively decide, and, until those courts have applied the preamble to restrict appellees' activities in some concrete way, it is inappropriate for federal courts to address its meaning. Alabama State Federation of Labor v. McAdory, 325 U. S. 450, 325 U. S. 460. Pp. 492 U. S. 504-507."

"As an outgrowth of my work on the case, I had become involved in a variety of activities, including making frequent speeches about the plans for the suit. The more people who knew about our pans, the more likely it was that a suitable plaintiff would appear. Then a woman went to Dallas lawyer Henry McCluskey, a friend of Linda’s who knew of the proposed lawsuit. The woman said she was pregnant, did not want to be, and wanted an abortion. He told her there was nothing he could do abut the abortion, but he knew two young women who might be of help, and referred her to Linda. Linda talked to the woman, and then called and asked me to come to Dallas to meet her. I flew there a few days later and met Linda t a place the woman had suggested, a pizza parlor. It was fairly large, and very clean, but without much decoration-plastic-topped tables and black-and-white-checkered linoleum on the floor. Linda filled me in on her impressions of the woman, who was in her early twenties. Then the person who would later become Jane Roe arrived."

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

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

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

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

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

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

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

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

"Legal scholars have long pointed to the shaky constitutional basis for a right to abortion. Blackmun referred to the 14th Amendment, which says that a state may not “deprive any person of life, liberty or property, without due process of law.” In earlier opinions, the court had said that liberty included the concept of personal privacy. “This right to privacy ... is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” Blackmun declared. Earlier this year, 11 legal scholars, led by Yale’s Jack Balkin, tried to write a better opinion. Their book of essays, “What Roe v. Wade Should Have Said,” proposed several alternatives, such as saying sexual equality for women required a right to abortion."

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

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