Women

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

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

"A “State has a legitimate interest in seeing to it that abortion . . . is performed under circumstances that insure maximum safety for the patient.” Roe v. Wade, 410 U. S. 113 . But “a statute which, while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends,” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (plurality opinion), and “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right,” id., at 878."

"We should be explaining the pragmatic reasons that women here and now must have control over their own reproductive lives, rather than focus as exclusively as we have on principled constitutional claims that purport to rest on timeless principle."

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

"It is not possible, for example, to read Roe as protective of marital, as opposed to individual privacy. That is foreclosed by Eisenstadt. It is not possible, I believe, to read Roe as a part of an adjudicative, narrative movement toward a robust conception of reproductive justice. That is ruled out by the right’s negativity. Reproductive justice requires a state that provides a network of support for the processes of reproduction: protection against rape and access to affordable and effective birth control, healthcare, including but not limited to abortion services, prenatal care, support in childbirth and postpartum, support for breastfeeding mothers, early childcare for infants and toddlers, income support for parents who stay home to care for young babies, and high quality public education for school age children. The Court is not equipped to mandate any of that, and has stated repeatedly that it is not inclined even to suggest that a citizen might have a right to a state that does so. The negative right that it has recognized suggests something very different: it suggests at best a right to nonreproductive sex, and at worst, a right to end a pregnancy by killing the fetus so as to free oneself of the burden of impossible parental obligations in an unjust world. Either way, it is not all that clear that women, parents, or children are the beneficiaries."

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

"Reproductive justice is a political and moral project. The Court-created abortion right is a judicial and constitutional one."

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

"By the time that Michael Taylor sent out his communiqué, pro-life lawyers had been preparing legal arguments in Roe and its companion case Doe v. Bolton for more than a year. When the Supreme Court heard initial oral arguments in 1971, pro-life advocates submitted several amici curiae briefs outlining their standard constitutional arguments on fetal rights, and they thought that they had a good chance o persuading the Court to give them a favorable verdict. As Fr. Paul Marx remarked in a private letter in May 1971, “It would be difficult to imagine that the United States Supreme Court would declare it a personal civil right of every woman to abort.” In both cases, the attorneys for the plaintiffs sought a sweeping declaration that a woman’s constitutional right to privacy gave her a right to an abortion, and that all anti-abortion laws, as well as the ALI-style therapeutic abortion statutes, were unconstitutional. In the spring of 1970, when the cases were filed, this was still a bold claim, though it was rapidly winning public support. The Texas and Georgia district courts that initially heard these cases ruled in favor of the plaintiffs, which bolstered their confidence when the cases reached the Supreme Court in the fall of 1971."

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

"[J]ust as a critical sensibility should have predicted, the right has indeed proven to be both relatively regressive and seemingly unstable. This right’s genesis in “law” rather than “politics” has not yielded the permanence or security or respect that law promises. Roe, conceived as a “right” so as to withstand the whims of hostile political opinion that would upset it, still seemingly hangs by a legal thread. The Court can broaden it, narrow it, uphold it, or overrule it. Meanwhile, and ironic ally, the activity it primarily protects—legal and safe abortion in the first trimester of an unwanted pregnancy—enjoys strong majoritarian political support. Rendering legal abortion a constitutional right, rather than an ordinary political one, may not have made it any more secure than it otherwise would have been. We have seemingly gained the regressive features of constitutionalizing this right, without enjoying the gain of security or stability that constitutionalism promises."

"Second, and as the rights critiques of the “public-private” distinction presaged, the libertarian rhetoric of the opinion has indeed focused attention on pernicious state intermeddling in women’s lives, rather than either the private sphere appropriation of women’ s sexuality caused by male sexual aggression, or the appropriation of women’s reproductive and parenting labor in that sphere, as the primary limit on women’s equality and liberty. Catharine MacKinnon warned in her early critiques of Roe that the pro-choice community ran the risk that it would further obfuscate both the fact and nature of private sphere sexual subordination by aggressively shrouding that sphere, and the subordination that occurs within it, in a constitutionally protected veil of laudatory privacy. The right to abortion, she argued, might further privatize the private by constitutionalizing it, and by so doing thicken the veil of privilege around intimate life, and therefore around the sexual subordinations that occur within it. Events have not proven her wrong to have so worried. The same is true, although she did not so argue, with respect to women’s labor, no less than women’s sexuality, and with respect to the economic sphere, no less than the sexual. Parenting is economic activity, as well as the consequence of sexual acts that may have been coerced. By insulating the private economic realm of parental choice against public critique and intervention, the economic deprivations occasioned by overly privatized parenting are further shielded against public intervention. The effect is not only the valorization of the “private” activities of sex and parenting, but also the denigration of the public sphere of politics. The public assistance that would be required to alleviate costs borne in private is cast as unwarranted intrusion into an exalted sphere of private economic life, rather than warranted assistance with an almost impossibly privatized burden."

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

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

"Does the decision in Roe, even assuming the value of the right it created, carry legitimation costs? Placing the question in a historical context, one might recall that Catharine MacKinnon’s early critiques of Roe v. Wade pointed to two important legitimating effects of that decision—one quite specific and the other more general. First, she argued, constitutionalizing a right to terminate a pregnancy broadly legitimates the sex that produced the pregnancy—sex that might well have been less than fully consensual by both parties. It shifts the focus away from addressing the social and sexual imbalances that result in unwanted pregnancies to the unwanted pregnancy itself, and strongly suggests that the appropriate social and individual response to unwanted sex is to protect the decision to end the pregnancy. This has the effect of minimizing the social costs of sexual inequality for the strong and the weak both, rather than ending the sexual inequality itself. Roe, then, legitimates both unwanted sex and the hierarchies of power that generate it. Second, MacKinnon argued, the privacy rationale of Roe v. Wade might have the pernicious effect of further insulating the already overly privatized world of intimate relations from either moral critique or political struggle. Men subordinate women, to a large degree, in private: in homes, in bedrooms, in hotel rooms, through pornography, prostitution, marriage, and sex. Extolling the privacy of these relations, and casting a constitutional wall of protection around them for the express purpose of warding off legal intervention or regulation, thus both insulates and valorizes—and hence legitimates—the subordination that occurs within them. These arguments, I think, were never answered satisfactorily by feminist supporters of Roe v. Wade."

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

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

"The second reason has to do with a belief in Roe’s efficacy. The gains secured by Roe seem more tangible than the gains secured by Brown and Lawrence, so the potential cost of reckless critique seems higher. Brown ended de jure segregation of the schools—but not de facto segregation, and much less real racial subordination: schools as well as neighborhoods remain segregated and unequal in much of the country. Lawrence struck from the books criminal statutes that had not been directly enforced anyway, and left untouched the unequal treatment of gay and lesbian citizens on any number of fronts, from marriage to military service, employment, and tenancy rights. There is much to criticize, if one keeps the focus on the paltry consequences of these decisions, compared with what they promised. Roe, by contrast, was by no means an empty victory, much less a Trojan horse. Rather, Roe sent a clear material and rhetorical signal to women, girls, and the larger society: women’s reproductive lives should be, and henceforth would be, governed by a regime of choice— whose choice is not so clear—and not by fate, nature, accident, biology, or men. The gains of this one decision, in terms of the autonomy and broadened options for women and girls, were felt to be enormous. With the advent of birth control and safe and legal abortion, women can avoid life- and health- threatening pregnancies, can limit the number of children they will mother, and can plan the major sequence of their lives—pregnancies, education, marriage, job, and career—so as to increase hugely their chances of succeeding at all. Without that control, women’s and girls’ control of these life-changing events is severely compromised. Dangerous, injurious, or simply too many pregnancies in one’s teens, twenties, thirties, and forties make completion of high school, college, professional school, graduate school, or vocational training for skilled crafts much harder even to imagine, much less to accomplish. The burdens of unwanted, dangerous, or just too many pregnancies are harder to measure but just as real in private and intimate life. Dangerous pregnancies shorten lives. Too many pregnancies make for difficult and unrewarding mothering. All of it leaves the woman feeling, justifiably, hostage to fate. If she cannot control her reproductivity, she cannot control her life. Without self-sovereignty over her body, all that remains of her life—her work, her sociability, her education, he r mothering, and her impact on the world—is miniaturized. She lives a smaller life."

"There is, in short, no end in sight to the compulsive vote counting with respect to Roe v. Wade."

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

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

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

"Whatever the merits of the criticisms of these famously progressive cases, my point here is comparative: unlike Brown, Miranda, or Lawrence, Roe v. Wade remains largely insulated from friendly critique. Why is that? I think there are three reasons for the critical reticence. None, however, is a particularly compelling justification. Part of the story—maybe the major part—is a widespread belief among the pro-choice community in the opinion’s relative vulnerability. This alone deters criticism of the decision by those who politically support legal abortion. Roe, by contrast to Brown, Miranda, and even Lawrence, seems to be in perpetual and great danger of being overturned. Roe is a perennial—permanent?—presidential campaign issue, and has been since it was decided."

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

"One might, for example, think of Roe as the first in a possible trajectory of future cases revitalizing a libertarian and antimoralistic strand of Lochner v. New York .Lochner famously found a right to contract for labor in the Constitution that in turn trumped democratic control of labor markets, and Roe likewise found a right to contract for an abortion that trumped democratic control of markets for reproductive services. Roe, then, like Lawrence v. Texas, might be sensibly viewed as a stepping stone toward a revitalized libertarian understanding of the relation between citizen, state, and contract. The libertarian and antimoralistic language in Lawrence also supports such a reading, as commentators have noted. Perhaps the extreme administrative and legal intervention in to markets that characterized so much of the twentieth century, whether prompted by moralistic impulses or by redistributive impulses, is the anomaly. The norm may be an ecumenical understanding of the individual liberty protected by the substantive prong of the Due Process Clause—a liberty that arguably protects the sale and purchase of labor, contraception, abortions, subprime mortgages, high interest loans, prostitution services, surrogacy services, babies, gambling contracts, guns, or kidneys, and protects all of these contractual transactions against either moralistic or paternalistic intervention. That is one way to string the beads."

"49. Those who like Roe v Wade claim that substantive due process allows the Court to meet present day challenges. It reflects ‘living constitutionalism’, and is consistent with the drafters’ intent. After all, as Chief Justice Rehnquist has said, somewhat ironically given his position in Roe v Wade, ‘Where the framers of the Constitution...used general language, they have given latitude to those who would later interpret the instrument to make that language applicable to cases that the framers might not have foreseen’ (Rehnquist 403). Substantive due process has permitted, among other outcomes, constitutional protection for same-sex relationships. In Lawrence v Texas, for example, the Court, citing Roe v Wade and other cases, held that the criminalization of same-sex intimate conduct violated the Due Process Clause of the Fourteenth Amendment. In Obergefell v Hodges, the Court held that the Due Process and the Equal Protection Clauses entitled same-sex couples to marry."

"48. The implications of the Court’s methodology have pleased some, but not others. For critics of Roe v Wade, the decision undermined democracy by putting the abortion issue in the hands of an unelected Court, with the result that ‘centrist’ compromises on abortion have been lost (Brooks A23). Critics also claim that the decision has harmed → federalism because decisions about abortion were removed from the state level (Wilkinson 305–11). The decision has also been blamed for undermining the Court’s legitimacy because, critics say, the Court has been ‘motivated by outcomes and ideology, not process and reason’, and this perception, in turn, has politicized the process for nominating Supreme Court justices (Lamparello and Swann 6–7)."

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

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

"43. Grounding the right to abortion in the Fourteenth Amendment and in the concept of substantive due process (Roe v Wade 153, 164) was, and still is, one of the most controversial aspects of Roe v Wade. Justice Stewart concurred in Roe v Wade mainly to pay homage to substantive due process and the Court’s willingness to invoke it so explicitly after having seemingly put the doctrine to rest in Ferguson v Skrupa. Justice Stewart noted that Griswold v Connecticut should itself be understood as a substantive due process case, although the case did not rest expressly on that basis. 44. Justice Rehnquist, one of two dissenters in Roe v Wade, took issue with the new right. He thought the right to an abortion was a form of ‘liberty’ protected by the Fourteenth Amendment, but the Fourteenth Amendment imposed a procedural requirement, not a substantive one. The right, therefore, was only protected against its deprivation without due process of law (Roe v Wade 173). He disagreed that abortion was part of a right to privacy because neither the abortion procedure was private, as abortion involved a doctor, nor was abortion connected to the ‘privacy’ associated with the Fourth Amendment’s protection against unreasonable searches and seizures (ibid 172). Moreover, although Justice Rehnquist conceded that due process protected some substantive rights, he thought abortion was not among those because approximately 36 state and territorial legislatures limited abortion at the time the Fourteenth Amendment was adopted (ibid 174–75). He preferred a rational basis test that would permit more deference to the legislature, especially for some restrictions on first-trimester abortions. He thought the ‘compelling state interest’ test was inappropriate: it was borrowed from Equal Protection cases and would leave ‘this area of the law more confused’ (ibid 173), and it would trample upon the legislature’s judgment (ibid 174). He called the Court’s tripartite framework ‘judicial legislation’ not reflective of the founders’ intent (ibid 174). 45. Justice White also dissented. He focused on the claims of women who had no threat to their life or health from carrying a fetus to term, like the plaintiffs before the Court, and noted that they wanted to end the pregnancy potentially for ‘convenience, sham or caprice’ (ibid 221). He thought the resolution of the competing interests ‘should be left with the people and to the political processes’ because ‘nothing in the language or history of the Constitution’ required otherwise (ibid 221–22)."

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

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

"8. Both in the US and abroad, constitutional courts had an important role in defining the permissible limits of legislative attempts to regulate abortion. In the US, a ‘nationwide movement of young lawyers’ sought to use the courts to secure a woman’s constitutional right to an abortion (Garrow (1999) 836–37). Because abortion was regulated at the state level in the United States, Roe v Wade and its companion, Doe v Bolton, ‘were only two of approximately fifteen to twenty roughly simultaneous cases’ percolating through the courts at the time. When the Supreme Court heard Roe v Wade and Doe v Bolton, approximately a dozen such cases were on its docket (ibid 836–37). Abroad, cases in Austria, France and Italy reached the constitutional courts of those nations in 1974, 1975, and 1975, respectively (Ernst et al 759–60; Siegel 357)."

"7. Roe v Wade reached the Supreme Court as part of a growing movement in the US to liberalize abortion law. Liberalization was promoted on the political front with arguments centred on public health, overpopulation, sexual freedom, and feminism (Greenhouse and Siegel 2036–2046). Colorado, North Carolina, and California had, for example, adopted ‘liberalization statutes’ in 1967 (Garrow (1999) 834). The movement to liberalize abortion law was similarly occurring overseas, in places such as Sweden, France, Denmark and the United Kingdom, and activists drew upon each other’s advances (Ernst et al 755, 759)."

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

"3. The case has influenced jurists outside the United States. Judges have cited the decision in judgments that liberalize abortion law. For example, this has happened in Canada (see R v Morgentaler (Dickson, CJ at 46; Beetz, J at 113; Wilson, J at 169–171, 181) (holding that Section 251 of the Criminal Code, which restricted access to nontherapeutic abortion, infringed a woman’s right to personal security under § 7 of the Canadian Charter of Rights and Freedoms), in South Africa (see Christian Lawyers Association of South Africa and Others v Minister of Health and Others (upholding legislation permitting abortion during the first twelve weeks of pregnancy; → right to life provision in the constitution did not apply to the fetus); Christian Lawyers Association v National Minister of Health and Others (upholding legislation allowing those under the age of 18 to get an abortion without consent of their parents or guardians)), and in Colombia (see Decision C-355/06 (striking as unconstitutional a statute that barred abortion in all instances)). Jurists who have dissented from decisions that restrict abortion have also cited Roe v Wade, such as in Germany (see Schwangerschaftsabbruch I (dissenting opinion of Rupp-von Brünneck, J and Simon, J)). At times, adjudicators have cited the case when they have decided issues outside the abortion context. Examples exist in England (see Rance v Mid-Downs Health Authority and Another (citing Roe v Wade’s summary of English common law in evaluation of plaintiff’s wrongful birth tort claim)) and India (see Gobind v State of M.P (citing Roe v Wade’s privacy language when deciding a constitutional challenge to surveillance law); Naz Foundation v Govt of NCT of Delhi (citing Roe v Wade’s privacy language when invalidating as unconstitutional a criminal law prohibiting homosexual conduct in private), rev’d Suresh Kumar Koushal v Naz Foundation)."

"2. The case has interested many comparatists. Considerable attention has been paid to parallel German and US developments with their different emphases (see eg Gorby and Jonas; Kommers; Glendon; Miedel; Werner; Levy and Somek; Lange; Siegel). Others have used the case to reflect upon developments in countries as diverse as Spain, South Africa, Russia, and Taiwan (see eg Stith; Davis; Johnson; Hung)."

"6. Most states criminalized abortion at the time of Roe v Wade. Although abortion performed before ‘quickening’ had been legal at the nation’s founding (‘quickening’ refers to the time when the mother can first feel fetal movement), the American Medical Association, starting in the 1850s, promoted the criminalization of abortion, except to save the mother’s life (Greenhouse and Siegel 2035). Texas, the state whose law was challenged in Roe v Wade, made abortion criminal in 1854, and a majority of US states had similar laws at the time the Supreme Court decided Roe v Wade (Roe v Wade 118 n.2; Doe v Bolton 181–82). Consequently, prior to the decision, illegal abortions were common in the United States, with estimates of 1,000,000 a year or ‘one to every four births’ (Calderone 950). The danger of the procedure differed by class. Many doctors ‘secretly performed abortions for women whom they knew and who could pay’, while other women were relegated to ‘unsafe circumstances’ (Garrow (1999) 834)."

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

"The preferred moral foundations of the abortion right created in Roe v. Wade and its progeny continue to shift, from marital and medical privacy, to women’s equality, to individual liberty or dignity, and back, in the minds of both the Supreme Court Justices and the pro-choice advocates and legal scholars that have argued or celebrated these famous cases. What has not shifted is the commitment of the pro-choice community to the right itself, and to the propriety of its judicial origin. Legal abortion, according to this near- universal pro-choice consensus, is and should be an individual, constitutional right protected against political winds, rather than simply good policy reflected in a state’s laws, and it is therefore entirely fitting that we look to the courts, and to the Supreme Court in particular, for its articulation and enforcement. It is the work of the courts and their actors—judges, lawyers, litigants, amici, judicial clerks, and academic commentators—to orate the basis of this important individual right, to develop its contours, and to expand or contract it when appropriate—to subject it in effect to the ordinary and extraordinary processes of constitutional adjudication."

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

"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."

"I settled back with my feet up to read the majority opinion in detail and savor its words. First the Court noted the sensitive nature of the subject: We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion."

"The copy of the Roe opinion sent by the Court arrived a few days after the decision. It was a thrill to hold the document Blackmun wrote for the Court. I skimmed it first for the main points: A direct appeal was proper because of the specific denial of injunctive relief regarding a statute declared unconstitutional by a three-judge federal court. Roe had standing to sue; the Does and Dr. Hallford did not. (Geesh, I thought, we went backward on that part. At least the lower court had recognized Hallford’s standing. But it didn’t matter the outcome freed Hallford anyway.) The natural termination of Roe’s pregnancy did not cancel her status as an appropriate plaintiff. Under strict mootness principles, hers would be a situation “capable of repetition, yet evading review.” The Texas statute violated the due-process clause of the Fourteenth Amendment, which protects from state action the right to privacy, including a woman’s qualified right to terminate pregnancy. the state, however, had a legitimate interest in protecting both the pregnant woman’s health and the potentiality of human life."

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

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

"Yet another rumor was that Blackmun, the justice with the best background in medical-legal issues, who had been appointed by Chief Justice Burger to write the opinion, had asked for more time. The rumor added that Douglas was dissenting to the reargument probably because Burger had designated Blackmun to write the opinion. By Court custom, if the chief justice is on the majority side during the postargument conference, then he designates the justice who will write the opinion. If the chief justice is “not” on the majority side, as was rumored in this case, then the justice with seniority on the majority side makes that designation. The rumor was that Douglas, the senior justice on the majority side during the postargument conference, was upset by Burger’s action to step in and appoint Blackmun, which contravened tradition (Later, in their book “The Brethren”, Bob Woodward and Scott Armstrong confirmed that rumor.) Speculation was that Burger felt he would have the most influence with Blackmun and that an opinion Blackmun would write would be more conservative. There was also media speculation that we had in fact won the case five to two, but Burger was in dissent and used his position to force the Court into setting it up for reargument. If that was true, it meant we would win if we simply held those five votes, regardless of how the new justices voted. Unbeknowst to us, as “The Douglas Letters", edited by Melvin Urofsky, revealed in 1987, Douglas had written Blackmun on May 10, 1972: In No. 70-18-Roe v. Wade, my notes confirm what Bill Brennan wrote yesterday in his memo to you-that abortion statutes were invalid save as they required that an abortion be performed by a licensed physician within a limited time after conception. That was the clear view of a majority of the seven who heard the argument. My notes also indicate the Chief [Burger] had the opposed view, which made it puzzling as to why he made the assignment at all except that he indicated he might affirm on vagueness. My notes indicate that Byron [White] was not firmly settled and that you might join the majority of four. So I think we should meet what Bill Brennan calls the “core issue.” I believe I gave you, some time back, my draft opinion in the Georgia case. I see no reason for reargument on what case. It always seemed to me to be an easier case than Texas,"

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

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