Women

"JUSTICE O'CONNOR's assertion, ante at 492 U. S. 526, that a "fundamental rule of judicial restraint'" requires us to avoid reconsidering Roe, cannot be taken seriously. By finessing Roe we do not, as she suggests, ante at 492 U. S. 526, adhere to the strict and venerable rule that we should avoid "`decid[ing] questions of a constitutional nature.'" We have not disposed of this case on some statutory or procedural ground, but have decided, and could not avoid deciding, whether the Missouri statute meets the requirements of the United States Constitution. The only choice available is whether, in deciding that constitutional question, we should use Roe v. Wade as the benchmark, or something else. What is involved, therefore, is not the rule of avoiding constitutional issues where possible, but the quite separate principle that we will not "`formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.'" Ante at 492 U. S. 526. The latter is a sound general principle, but one often departed from when good reason exists."

"Unlike the plurality, I do not understand these viability testing requirements to conflict with any of the Court's past decisions concerning state regulation of abortion. Therefore, there is no necessity to accept the State's invitation to reexamine the constitutional validity of Roe v. Wade, 410 U. S. 113 (1973). Where there is no need to decide a constitutional question, it is a venerable principle of this Court's adjudicatory processes not to do so, for "[t]he Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it.'" Ashwander v. TVA, 297 U. S. 288, 297 U. S. 346 (1936) (Brandeis, J., concurring), quoting Liverpool, New York and Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 113 U. S. 39 (1885). Neither will it generally "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." 297 U.S. at 297 U. S. 347. Quite simply, "[i]t is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case." Burton v. United States, 196 U. S. 283, 196 U. S. 295 (1905). The Court today has accepted the State's every interpretation of its abortion statute, and has upheld, under our existing precedents, every provision of that statute which is properly before us. Precisely for this reason, reconsideration of Roe falls not into any "good-cause exception" to this "fundamental rule of judicial restraint. . . ." Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 467 U. S. 157 (1984). See post at 492 U. S. 532-533 (SCALIA, J., concurring in part and concurring in judgment). When the constitutional invalidity of a State's abortion statute actually turns on the constitutional validity of Roe v. Wade, there will be time enough to reexamine Roe. And to do so carefully."

"Ordinarily, speaking no more broadly than is absolutely required avoids throwing settled law into confusion; doing so today preserves a chaos that is evident to anyone who can read and count. Alone sufficient to justify a broad holding is the fact that our retaining control, through Roe, of what I believe to be, and many of our citizens recognize to be, a political issue, continuously distorts the public perception of the role of this Court. We can now look forward to at least another Term with carts full of mail from the public, and streets full of demonstrators, urging us -- their unelected and life-tenured judges who have been awarded those extraordinary, undemocratic characteristics precisely in order that we might follow the law despite the popular will -- to follow the popular will. Indeed, I expect we can look forward to even more of that than before, given our indecisive decision today. And if these reasons for taking the unexceptional course of reaching a broader holding are not enough, then consider the nature of the constitutional question we avoid: in most cases, we do no harm by not speaking more broadly than the decision requires. Anyone affected by the conduct that the avoided holding would have prohibited will be able to challenge it himself and have his day in court to make the argument. Not so with respect to the harm that many States believed, pre-Roe, and many may continue to believe, is caused by largely unrestricted abortion. That will continue to occur if the States have the constitutional power to prohibit it, and would do so, but we skillfully avoid telling them so. Perhaps those abortions cannot constitutionally be proscribed. That is surely an arguable question, the question that reconsideration of Roe v. Wade entails. But what is not at all arguable, it seems to me, is that we should decide now, and not insist that we be run into a corner before we grudgingly yield up our judgment. The only sound reason for the latter course is to prevent a change in the law -- but to think that desirable begs the question to be decided."

"Stare decisis is a cornerstone of our legal system, but it has less power in constitutional cases, where, save for constitutional amendments, this Court is the only body able to make needed changes. See United States v. Scott, 437 U. S. 82, 437 U. S. 101 (1978). We have not refrained from reconsideration of a prior construction of the Constitution that has proved "unsound in principle and unworkable in practice." Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 469 U. S. 546 (1985); see Solorio v. United States, 483 U. S. 435, 483 U. S. 448-450 (1987); Erie R. Co. v. Tompkins, 304 U. S. 64, 304 U. S. 74-78 (1938). We think the Roe trimester framework falls into that category. In the first place, the rigid Roe framework is hardly consistent with the notion of a Constitution cast in general terms, as ours is, and usually speaking in general principles, as ours does. The key elements of the Roe framework -- trimesters and viability -- are not found in the text of the Constitution, or in any place else one would expect to find a constitutional principle. Since the bounds of the inquiry are essentially indeterminate, the result has been a web of legal rules that have become increasingly intricate, resembling a code of regulations rather than a body of constitutional doctrine. [Footnote 15] AS JUSTICE WHITE has put it, the trimester framework has left this Court to serve as the country's "ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States." Planned Parenthood of Central Mo. v. Danforth, 428 U.S. at 428 U. S. 99 (opinion concurring in part and dissenting in part). Cf. Garcia, supra, at 469 U. S. 547. In the second place, we do not see why the State's interest in protecting potential human life should come into existence only at the point of viability, and that there should therefore be a rigid line allowing state regulation after viability but prohibiting it before viability. The dissenters in Thornburgh, writing in the context of the Roe trimester analysis, would have recognized this fact by positing against the "fundamental right" recognized in Roe the State's "compelling interest" in protecting potential human life throughout pregnancy. "[T]he State's interest, if compelling after viability, is equally compelling before viability." Thornburgh, 476 U.S. at 476 U. S. 795 (WHITE, J., dissenting); see id. at 476 U. S. 828 (O'CONNOR, J., dissenting) ("State has compelling interests in ensuring maternal health and in protecting potential human life, and these interests exist throughout pregnancy'") (citation omitted)."

"We think that the doubt cast upon the Missouri statute by these cases is not so much a flaw in the statute as it is a reflection of the fact that the rigid trimester analysis of the course of a pregnancy enunciated in Roe has resulted in subsequent cases like Colautti and Akron making constitutional law in this area a virtual Procrustean bed. Statutes specifying elements of informed consent to be provided abortion patients, for example, were invalidated if they were thought to "structur[e] . . . the dialogue between the woman and her physician." Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, 476 U. S. 763 (1986). As the dissenters in Thornburgh pointed out, such a statute would have been sustained under any traditional standard of judicial review, id. at 476 U. S. 802 (WHITE, J., dissenting), or for any other surgical procedure except abortion. Id. at 476 U. S. 783 (Burger, C.J., dissenting)."

"JUSTICE BLACKMUN takes us to task for our failure to join in a "great issues" debate as to whether the Constitution includes an "unenumerated" general right to privacy as recognized in cases such as Griswold v. Connecticut, 381 U. S. 479 (1965), and Roe. But Griswold v. Connecticut, unlike Roe, did not purport to adopt a whole framework, complete with detailed rules and distinctions, to govern the cases in which the asserted liberty interest would apply. As such, it was far different from the opinion, if not the holding, of Roe v. Wade, which sought to establish a constitutional framework for judging state regulation of abortion during the entire term of pregnancy. That framework sought to deal with areas of medical practice traditionally subject to state regulation, and it sought to balance once and for all by reference only to the calendar the claims of the State to protect the fetus as a form of human life against the claims of a woman to decide for herself whether or not to abort a fetus she was carrying. The experience of the Court in applying Roe v. Wade in later cases, see supra at 492 U. S. 518, n. 15, suggests to us that there is wisdom in not unnecessarily attempting to elaborate the abstract differences between a "fundamental right" to abortion, as the Court described it in Akron, 462 U.S. at 462 U. S. 420, n. 1, a "limited fundamental constitutional right," which JUSTICE BLACKMUN today treats Roe as having established, post at 492 U. S. 555, or a liberty interest protected by the Due Process Clause, which we believe it to be. The Missouri testing requirement here is reasonably designed to ensure that abortions are not performed where the fetus is viable -- an end which all concede is legitimate -- and that is sufficient to sustain its constitutionality."

"In the plurality's view, the viability testing provision imposes a burden on second-trimester abortions as a way of furthering the State's interest in protecting the potential life of the fetus. Since, under the Roe framework, the State may not fully regulate abortion in the interest of potential life (as opposed to maternal health) until the third trimester, the plurality finds it necessary, in order to save the Missouri testing provision, to throw out Roe's trimester framework. Ante at 492 U. S. 518-520. In flat contradiction to Roe, 410 U.S. at 410 U. S. 163, the plurality concludes that the State's interest in potential life is compelling before viability, and upholds the testing provision because it "permissibly furthers" that state interest. Ante at 492 U. S. 519."

"At the outset, I note that, in its haste to limit abortion rights, the plurality compounds the errors of its analysis by needlessly reaching out to address constitutional questions that are not actually presented. The conflict between § 188.029 and Roe's trimester framework, which purportedly drives the plurality to reconsider our past decisions, is a contrived conflict: the product of an aggressive misreading of the viability testing requirement and a needlessly wooden application of the Roe framework."

"Having set up the conflict between § 188.029 and the Roe trimester framework, the plurality summarily discards Roe's analytic core as "unsound in principle and unworkable in practice.'" Ante at 492 U. S. 518, quoting Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 469 U. S. 546 (1985). This is so, the plurality claims, because the key elements of the framework do not appear in the text of the Constitution, because the framework more closely resembles a regulatory code than a body of constitutional doctrine, and because, under the framework, the State's interest in potential human life is considered compelling only after viability, when, in fact, that interest is equally compelling throughout pregnancy. Ante at 492 U. S. 519-520. The plurality does not bother to explain these alleged flaws in Roe. Bald assertion masquerades as reasoning. The object, quite clearly, is not to persuade, but to prevail."

"The plurality opinion is far more remarkable for the arguments that it does not advance than for those that it does. The plurality does not even mention, much less join, the true jurisprudential debate underlying this case: whether the Constitution includes an "unenumerated" general right to privacy as recognized in many of our decisions, most notably Griswold v. Connecticut, 381 U. S. 479 (1965), and Roe, and, more specifically, whether, and to what extent, such a right to privacy extends to matters of childbearing and family life, including abortion. See, e.g., Eisenstadt v. Baird, 405 U. S. 438 (1972) (contraception); Loving v. Virginia, 388 U. S. 1 (1967) (marriage); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942) (procreation); Pierce v. Society of Sisters, 268 U. S. 510 (1925) (childrearing). [Footnote 2/7] These are questions of unsurpassed significance in this Court's interpretation of the Constitution, and mark the battleground upon which this case was fought by the parties, by the Solicitor General as amicus on behalf of petitioners, and by an unprecedented number of amici. On these grounds, abandoned by the plurality, the Court should decide this case. But rather than arguing that the text of the Constitution makes no mention of the right to privacy, the plurality complains that the critical elements of the Roe framework -- trimesters and viability -- do not appear in the Constitution, and are, therefore, somehow inconsistent with a Constitution cast in general terms. Ante at 492 U. S. 518-519. Were this a true concern, we would have to abandon most of our constitutional jurisprudence. As the plurality well knows, or should know, the "critical elements" of countless constitutional doctrines nowhere appear in the Constitution's text. The Constitution makes no mention, for example, of the First Amendment's "actual malice" standard for proving certain libels, see New York Times Co. v. Sullivan, 376 U. S. 254 (1964), or of the standard for determining when speech is obscene. See Miller v. California, 413 U. S. 15 (1973). Similarly, the Constitution makes no mention of the rational basis test, or the specific verbal formulations of intermediate and strict scrutiny by which this Court evaluates claims under the Equal Protection Clause. The reason is simple. Like the Roe framework, these tests or standards are not, and do not purport to be, rights protected by the Constitution. Rather, they are judge-made methods for evaluating and measuring the strength and scope of constitutional rights or for balancing the constitutional rights of individuals against the competing interests of government."

"The "permissibly furthers" standard completely disregards the irreducible minimum of Roe: the Court's recognition that a woman has a limited fundamental constitutional right to decide whether to terminate a pregnancy. That right receives no meaningful recognition in the plurality's written opinion. Since, in the plurality's view, the State's interest in potential life is compelling as of the moment of conception, and is therefore served only if abortion is abolished, every hindrance to a woman's ability to obtain an abortion must be "permissible." Indeed, the more severe the hindrance, the more effectively (and permissibly) the State's interest would be furthered. A tax on abortions or a criminal prohibition would both satisfy the plurality's standard. So, for that matter, would a requirement that a pregnant woman memorize and recite today's plurality opinion before seeking an abortion. The plurality pretends that Roe survives, explaining that the facts of this case differ from those in Roe: here, Missouri has chosen to assert its interest in potential life only at the point of viability, whereas, in Roe, Texas had asserted that interest from the point of conception, criminalizing all abortions except where the life of the mother was at stake. Ante at 492 U. S. 521. This, of course, is a distinction without a difference. The plurality repudiates every principle for which Roe stands; in good conscience, it cannot possibly believe that Roe lies "undisturbed" merely because this case does not call upon the Court to reconsider the Texas statute or one like it. If the Constitution permits a State to enact any statute that reasonably furthers its interest in potential life, and if that interest arises as of conception, why would the Texas statute fail to pass muster? One suspects that the plurality agrees It is impossible to read the plurality opinion, and especially its final paragraph, without recognizing its implicit invitation to every State to enact more and more restrictive abortion laws, and to assert their interest in potential life as of the moment of conception. All these laws will satisfy the plurality's nonscrutiny until, sometime, a new regime of old dissenters and new appointees will declare what the plurality intends: that Roe is no longer good law."

"Thus, "not with a bang, but a whimper," the plurality discards a landmark case of the last generation and casts into darkness the hopes and visions of every woman in this country who had come to believe that the Constitution guaranteed her the right to exercise some control over her unique ability to bear children. The plurality does so either oblivious or insensitive to the fact that millions of women, and their families, have ordered their lives around the right to reproductive choice, and that this right has become vital to the full participation of women in the economic and political walks of American life. The plurality would clear the way once again for government to force upon women the physical labor and specific and direct medical and psychological harms that may accompany carrying a fetus to term. The plurality would clear the way again for the State to conscript a woman's body and to force upon her a "distressful life and future." Roe, 410 U.S. at 410 U. S. 153. The result, as we know from experience, see Cates & Rochat, Illegal Abortions in the United States: 1972-1974, 8 Family Planning Perspectives 86, 92 (1976), would be that, every year, hundreds of thousands of women, in desperation, would defy the law and place their health and safety in the unclean and unsympathetic hands of back-alley abortionists, or they would attempt to perform abortions upon themselves, with disastrous results. Every year, many women, especially poor and minority women, would die or suffer debilitating physical trauma, all in the name of enforced morality or religious dictates or lack of compassion, as it may be. Of the aspirations and settled understandings of American women, of the inevitable and brutal consequences of what it is doing, the tough-approach plurality utters not a word. This silence is callous. It is also profoundly destructive of this Court as an institution. To overturn a constitutional decision is a rare and grave undertaking. To overturn a constitutional decision that secured a fundamental personal liberty to millions of persons would be unprecedented in our 200 years of constitutional history. Although the doctrine of stare decisis applies with somewhat diminished force in constitutional cases generally, ante at 492 U. S. 518, even in ordinary constitutional cases, "any departure from . . . stare decisis demands special justification." Arizona v. Rumsey, 467 U. S. 203, 467 U. S. 212 (1984). See also Vasquez v. Hillery, 474 U. S. 254, 474 U. S. 266 (1986) ("[T]he careful observer will discern that any detours from the straight path of stare decisis in our past have occurred for articulable reasons, and only when the Court has felt obliged to bring its opinions into agreement with experience and with facts newly ascertained,'" quoting Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 285 U. S. 412 (1932) (Brandeis, J., dissenting)). This requirement of justification applies with unique force where, as here, the Court's abrogation of precedent would destroy people's firm belief, based on past decisions of this Court, that they possess an unabridgeable right to undertake certain conduct. [Footnote 2/12] As discussed at perhaps too great length above, the plurality makes no serious attempt to carry "the heavy burden of persuading . . . that changes in society or in the law dictate" the abandonment of Roe and its numerous progeny, Vasquez, 474 U.S. at 474 U. S. 266, much less the greater burden of explaining the abrogation of a fundamental personal freedom. Instead, the plurality pretends that it leaves Roe standing, and refuses even to discuss the real issue underlying this case: whether the Constitution includes an unenumerated right to privacy that encompasses a woman's right to decide whether to terminate a pregnancy. To the extent that the plurality does criticize the Roe framework, these criticisms are pure ipse dixit."

"The plurality, ignoring all of the aforementioned cases except Griswold, responds that this case does not require consideration of the "great issues" underlying this case because Griswold, "unlike Roe, did not purport to adopt a whole framework . . . to govern the cases in which the asserted liberty interest would apply." Ante at 492 U. S. 520. This distinction is highly ironic. The Court in Roe adopted the framework of which the plurality complains as a mechanism necessary to give effect both to the constitutional rights of the pregnant woman and to the State's significant interests in maternal health and potential life. Concededly, Griswold does not adopt a framework for determining the permissible scope of state regulation of contraception. The reason is simple: in Griswold (and Eisenstadt), the Court held that the challenged statute, regulating the use of medically safe contraception, did not properly serve any significant state interest. Accordingly, the Court had no occasion to fashion a framework to accommodate a State's interests in regulating contraception. Surely the plurality is not suggesting that it would find Roe unobjectionable if the Court had forgone the framework and, as in the contraception decisions, had left the State with little or no regulatory authority. The plurality's focus on the framework is merely an excuse for avoiding the real issues embedded in this case, and a mask for its hostility to the constitutional rights that Roe recognized."

"Notably, neither the plurality nor JUSTICE O'CONNOR advances the now-familiar catch-phrase criticism of the Roe framework that, because the point of viability will recede with advances in medical technology, Roe "is clearly on a collision course with itself." See Akron, 462 U.S. at 462 U. S. 458 (dissenting opinion). This critique has no medical foundation. As the medical literature and the amicus briefs filed in this case conclusively demonstrate, "there is an anatomic threshold' for fetal viability of about 23-24 weeks of gestation." Brief for American Medical Association et al. as Amici Curiae 7. See also Brief for 167 Distinguished Scientists and Physicians, including 11 Nobel Laureates, as Amici Curiae 8-14. Prior to that time, the crucial organs are not sufficiently mature to provide the mutually sustaining functions that are prerequisite to extrauterine survival, or viability. Moreover, "no technology exists to bridge the development gap between the three-day embryo culture and the 24th week of gestation." Fetal Extrauterine Survivability, Report to the New York State Task Force on Life and the Law 3 (1988). Nor does the medical community believe that the development of any such technology is possible in the foreseeable future. Id. at 12. In other words, the threshold of fetal viability is, and will remain, no different from what it was at the time Roe was decided. Predictions to the contrary are pure science fiction. See Brief for A Group of American Law Professors as Amicus Curiae 23-25."

"[W]e 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. Jane Roe asked that being a plaintiff would involve. First, we told her, a minimal amount of time. In fact, she signed a one-page affidavit stating her situation. She never had to answer written or oral questions from the opposing lawyers. She did not attend any of the court hearings. Second no money. Lind and I were donating our time, and we were covering the expenses. Third, she could be anonymous. No one would know who she was unless she chose to tell them. Using pseudonyms or false names in legal cases was a long-standing tradition, and especially common in abortion cases, to protect the privacy of plaintiffs who did not want the “whole world” to know they had had or had wanted an abortion. On the other hand, doctors, social workers, and nonpregnant plaintiffs in abortion cases generally filed using their real names. When Jane Roe agreed to be a plaintiff, I was grateful for her help. I found her street-smart and likeable. Her hard-luck stories touched a sympathetic chord. Linda and I decided to file two lawsuits. A pregnant plaintiff had standing, but since our wife plaintiff wasn’t pregnant, we were afraid the court would say she and her husband were not sufficiently at risk to have standing. There was another reason for filing two lawsuits: Since we would file the cases in Dallas, where Linda, Jane Roe, and the married couple resided, and where the federal court had a rotating docket, each case would be filed in a different judge’s court. We hoped to increase our chances of having one of the cases filed in Judge Jughe’s court; Linda thought she would be sympathetic. Our strategy then would be to ask that the other case be consolidated with it, so that we could try one case with the combined facts instead of two."

"As we finished drawing up the necessary legal papers in 1970, Jane Roe’s pregnancy was progressing. Linda spent the end of February on rough drafts of the documents to file. Our petitions were straightforward and only three legal-size pages in length. We asked the court to do two things: first, to declare or state that the Texas laws against abortion were unconstitutional on their face, that is, as one could see by merely reading them; and second, to enjoin, or stop, the enforcement of those statutes. In essence we wanted the court to say the Texas anti-abortion laws violated the U.S. Constitution and to tell local law enforcement officials to quit prosecuting doctors under those statutes. We still had to name our plaintiffs. We picked names that rhymed. I liked “Jane Roe.” To me the name represented all women, not just one. We decided on “John and Mary Doe” for the couple. The names seemed generic."

"In law there are “magic words.” If one of them applies to what you are challenging, you have a good chance of getting it overturned. Linda and I used all the magic words that might possibly apply: The statutes were “vague” and uncertain on their face; they were “unconstitutionally broad” on their face in that they infringed upon plaintiff’s “right to safe and adequate medical advice” about the decision of whether to carry a pregnancy to term, upon the “fundamental” right of all women to choose whether to bear children, and upon plaintiff’s “right to privacy” in the physician-patient relationship; on their face they infringed upon plaintiff’s “right to life” in violation of the due-process clause of the Fourteenth Amendment; on their ace they violated the “First Amendment” prohibition against laws respecting an establishment of religion; and on their face they denied plaintiffs the “equal protection of the laws.”"

"Two and a half months later, Linda and I were seated at a long wooden table facing the much higher bench where the three judges would sit. We were on the fourth floor of the Dallas Federal Courthouse, an imposing building that had previously been a post office, in a courtroom that was more utilitarian than elegant. We were waiting for the judges to file in and hear Roe. We were unabashedly excited, and as prepared as would ever be. We have had some very good luck and had accomplished a great deal thus far. One of our two cases landed in Hughes’s court; the other in that of Federal District Judge William M. Taylor of Dallas. Federal Circuit Judge Irving L. Goldberg had been appointed to join Hughes and Taylor on a three-judge panel to hear our cases. After a pretrial conference in Hughes’s office in April, our cases were consolidated; we now said just Roe when actually referring to both Roe and Doe. Taylor had a reputation for fairness and open-mindedness. Goldberg was reputed to be brilliant, but domineering in court proceedings. We did not look forward to his trial questions, which we knew would be tough and incisive, but we calculated that he was our best chance of a second vote in our favor."

"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,"

"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."

"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."

"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."

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

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

"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)."

"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)."

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

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

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

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

"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."

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

"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."

"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."

"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."

"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."

"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."

"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."

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

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

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

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

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

"It was an arguable question today whether § 188.029 of the Missouri law contravened this Court's understanding of Roe v. Wade, and I would have examined Roe rather than examining the contravention. Given the Court's newly contracted abstemiousness, what will it take, one must wonder, to permit us to reach that fundamental question? The result of our vote today is that we will not reconsider that prior opinion, even if most of the Justices think it is wrong, unless we have before us a statute that in fact contradicts it -- and even then (under our newly discovered "no broader than necessary" requirement) only minor problematical aspects of Roe will be reconsidered, unless one expects state legislatures to adopt provisions whose compliance with Roe cannot even be argued with a straight face. It thus appears that the mansion of constitutionalized abortion law, constructed overnight in Roe v. Wade, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be."

"In our view, the Court of Appeals misconceived the meaning of the Akron dictum, which was only that a State could not "justify" an abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the State's view about when life begins. Certainly the preamble does not, by its terms, regulate abortion or any other aspect of appellees' medical practice. The Court has emphasized that Roe v. Wade "implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion." Maher v. Roe, 432 U.S. at 432 U. S. 474. The preamble can be read simply to express that sort of value judgment."

"Pro-lifers continued to argue that there was one compelling question that Eisenstadt had not addressed, one that made all the difference in the world. That question was the personhood of the fetus. If the Fifth and Fourteenth Amendments encompassed fetal life, a woman’s right to reproductive privacy could not extent to actions that would terminate the life of a fetus. During the second round of oral arguments in October 1972, Justice Byron White pressed Weddington on this essential question. “Is it critical to your case that the fetus not be a person under the due process clause?" he asked. “Would you lose your case if the fetus was a person?” The lawyers for the states of Texas and Georgia had wanted to discuss other issues, not for pro-life activists, the personhood of the fetus was the only relevant question. White was persuaded by this line of reasoning, and he wanted to see how Weddington would respond to it. Weddington tried to dodge the question, so White pressed her on it again. This time, she hedged, conceding only that if the fetus was a person, there would have to be a “balancing of interests” between the fetus and the mother, not a negation of the right to an abortion altogether. But she quickly returned to her main argument: the question was irrelevant, because the fetus was clearly not a person under the terms of the Fourteenth Amendment or any other section of the Constitution, including the due process clause of the Fifth Amendment. At most, a fetus had only “statutory rights”-that is, rights conveyed upon it by the legislative statutes of individual states. Women, by contrast, had a full “constitutional” right to an abortion grounded in the right to privacy, specified by Griswold as one of the Ninth Amendment’s implied rights. “It seems to me that you do not balance constitutional rights of one person against mere statutory rights of another, she told the Court."

"JUSTICE SCALIA would reconsider and explicitly overrule Roe v. Wade. Avoiding the Roe question by deciding this case in as narrow a manner as possible is not required by precedent and not justified by policy. To do so is needlessly to prolong this Court's involvement in a field where the answers to the central questions are political, rather than juridical, and thus to make the Court the object of the sort of organized pressure that political institutions in a democracy ought to receive. It is particularly perverse to decide this case as narrowly as possible in order to avoid reading the inexpressibly "broader than was required by the precise facts" structure established by Roe v. Wade. The question of Roe's validity is presented here, inasmuch as § 188.029 constitutes a legislative imposition on the judgment of the physician concerning the point of viability and increases the cost of an abortion. It does palpable harm, if the States can and would eliminate largely unrestricted abortion, skillfully to refrain from telling them so. Pp. 492 U. S. 532-537."