Roe v. Wade

"In 1992, after a three-year hiatus in which no major abortion decision was announced, the Court issues its ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). The case addressed the 1982 Pennsylvania Abortion Control Act, amended in 1988 and 1989. Under the heading of informed consent, the law required a physician to inform a woman of the risks of abortion and wait at least 24 hours before performing the procedure. It also required married women, under most circumstances, to present signed statements that they had notified their husbands about their intention to have an abortion. The Court issues a lengthy and complex ruling on June 29, 1992. The opinion indicated that a new consensus had formed with Justices O’Connor and Kennedy and Justice David Souter jointly authoring a plurality opinion that retained “the essential holding” of the Court’s landmark 1973 opinion, Roe v. Wade. The joint opinion outlined three elements it considered essential to Roe v. Wade. First, the woman had a right to have an abortion before the fetus is viable without “undue interference” from the state. Second, the state could restrict abortions after the fetus was viable as long as it allowed an exception for the woman’s life or health. Third, the state’s interest in the life of the woman and the fetus began at the start of the pregnancy, not merely at the point in which the fetus was viable. The authors of the joint opinion stressed that the Court’s commitment to individual liberty, in conjunction with the constraints of its earlier decisions and the rule of law, convinced them to reaffirm Roe v. Wade. In light of these considerations, and in an attempt to balance the woman’s constitutional right to abortion with a state’s interest in prenatal life throughout the pregnancy, the Court drew a line at viability. Abandoning the trimester framework, which it did not consider “essential” to its ruling in Roe v. Wade, the Court replaced the three trimesters with two stages of pregnancy: pre- and postviability. Before viability, a state could enact laws to ensure that the abortion decision was “thoughtful and informed,” but it was not permitted to prohibit abortions outright or even to restrict them unduly. The opinion explained that because of its legitimate interest in protecting potential life, the state did not have to remove itself from the abortion decision throughout the pregnancy; it was only forbidden to enact abortion regulations during the previability stage that imposed an “undue burden” on the woman’s choice. It specified that a woman with a previable fetus would be unduly burdened if the state placed “a substantial obstacle” in her path. Thus, states were no longer required to have compelling reasons to restrict a woman’s access to abortion as long as they did not impose an undue burden on her choice. Once the fetus was viable, states were permitted to regulate or proscribe abortions entirely as long as reasonable health exception were in place, that is, as long as the laws exempted women whose life or health was at risk."

"We are here today upon the occasion of the 25th anniversary of the United States Supreme Court decision in Roe v. Wade, a decision which ruled unconstitutional a body of State-level laws that proscribed, at least on paper, the performance of most abortions. Most of the laws struck down by Roe had been passed in the last third of the 19th century under social, political, and medical conditions very different from those the Nation has faced in the last quarter of this century, and passage of those laws was pressed by very different forces than those now engaged in the abortion debate."

"The standard criticism of Roe v. Wade is that the Supreme Court indulged in "Lochnering": the improper second-guessing of a legislative balance. Rarely does the Supreme Court invite critical outrage as it did in Roe by offering so little explanation for a decision that requires so much. The stark inadequacy of the Court's attempt to justify its conclusions - that abortion implicates women's "privacy," that only the most important state interests may supersede that right, and that they may do so only after certain stages of pregnancy- suggests to some scholars that the Court, finding no justification at all in the Constitution, unabashedly usurped the legislative function. Professor Ely, the first to cry "Lochner," could only adduce from the opinion that the Court "manufactured a constitutional right out of whole cloth and used it to superimpose its own view of wise social policy on those of the legislatures." Even some who approve Roe's form of judicial review concede that the opinion itself is inscrutable."

"[M]ore was at stake in the Supreme Court's handling of Roe than the wrath of critics: By taking an abortion case when it did, the Court forestalled the development of one of its •traditional aids for deciding difficult questions - a thoughtful lower-court case law."

"The politically unsettled and judicially confused law of abortion in 1971 and 1972, when the Court twice heard arguments and deliberated Roe, should have warned it not to decide the case. By doing so; the Court thrust itself into a political debate and stunted the development of a thoughtful lower-court case law. If the Court did perceive the warnings but continued toward a decision anyway, perhaps trusting that its own considerable wits would devise an answer the lower courts had not, the result suggest--that the judicial system's axioms deserve more respect than they received."

"In 1973, political forces were still vigorously debating abortion. Most states had prohibited abortions, except to save a woman's life, since the nineteenth century, but a movement was afoot to relax that restriction. In the five years immediately preceding Roe, thirteen states had revised their statutes to resemble the Model Penal Code's provisions, which allowed abortions not only if the pregnancy threatened the woman's life, but also if it would gravely impair her physical or mental health, if it resulted from rape or incest, or if the child would be born with grave physical or mental defects.11 Four states had removed all restrictions on the permissible reasons for seeking an abortion before a pregnancy passed specified lengths. Furthermore, as the Supreme Court noted in Roe, both the American Medical Association and the American Bar Association had only recently changed their official views on abortion (and not without opposition). The abortion debate was not merely one of how far to relax restrictions, however. At least one of the states whose restrictive statutes were judicially invalidated had in 1972 reaffirmed its determination to prohibit abortions unless necessary to save the woman's life. And since several of the pre-Roe constitutional challenges were raised by defendants in state abortion prosecutions, it is clear that at least those states had not allowed their abortion statutes to lapse into desuetude. In short, the political process in many states had yet to decide on abortion. But Roe's sweeping rejection of Texas's statute voided almost every other state's as well."

"Abortion has been and continued to be a defining political issue in the US. The current starting point for a look at US abortion law is the 1973 US Supreme Court decision in Roe v. Wade. Prior to this landmark case, abortion was generally illegal in the US, having been criminalized in the nineteenth century, although legislation permitted abortion in limited circumstances. In some states, abortion was available only to preserve the life of a pregnant woman; in others, an abortion could be obtained where necessary to protect a woman’s life or health."

"Roe v. Wade seemed to settle the abortion question, holding that a pregnant woman has a right to privacy (pursuant to the 14th Amendment of the US Constitution), which includes the right to terminate a pregnancy. The Court did not recognize an absolute right to abortion, instead acknowledging that that State has an interest in the protection of potential life, an interest that increases in strength as the pregnancy progresses. In Roe v. Wade, the Court created a ‘trimester framework’ to mirror the growing importance of the State interest in protecting fetal life (and the reduced safety of the abortion procedure itself) as pregnancy advances. The Roe. v Wade framework permitted abortion without restriction in the first trimester of pregnancy; in the second trimester, the State was permitted to regulate some aspects of abortion (in essence, where the procedure can be performed, and by whom). Finally, in the third trimester of pregnancy, States were free to prohibit abortion except where necessary to preserve the life or health of the pregnant woman. Fetal viability (the stage at which a fetus is theoretically capable of sustained life outside of the pregnant woman’s body) was the point at which the State’s interest in protecting potential life became ‘compelling’. Since 1973, the abortion right has remained profoundly contentious, with opponents of abortion continuing to attempt to circumscribe (or even abrogate) the right articulated in Roe v. Wade. The challenges to Roe v Wade have come primarily in the form of state legislation that limits women’s ability to exercise the right to terminate pregnancy. The continued attempts to legislate such limits have meant that the issue of abortion rights has returned to the US Supreme Court on a number of occasions. These legislative efforts have had variable results; although the Court has not resiled from the basic holding in Roe v Wade, the continued attacks on that decision (and the partial successes its opponents can claim) make it clear that abortion rights in the US cannot be taken for granted."

"The woman whose challenge to a state law virtually prohibiting abortion led to the Supreme Court's landmark Roe v. Wade decision now says she lied when she declared upon bringing suit that it was rape that had caused her pregnancy."

"Ms. McCorvey told Mr. Rowan that she had fabricated her account of being raped by three men and a woman in 1969 because she had hoped to circumvent a 100-year-old Texas law that banned abortions except when the woman's life was in danger. 'What I Thought Was Love' Ms. McCorvey said that she had actually become pregnant through what I thought was love and that she decided to challenge the state law when her doctor told her that she could not legally have an abortion in Texas. In 1970, her lawyers filed a Federal suit against Henry Wade, the Dallas County District Attorney. The suit, protecting her anonymity by identifying her as Jane Roe, was eventually upheld by the Supreme Court, which, in legalizing abortion on Jan. 22, 1973, cited the 14th Amendment's privacy protections. The transcript of the interview does not make clear why Ms. McCorvey thought that an account of rape would necessarily help win exemption from, or overturn, a law that allowed abortion only to protect a woman's life. Ms. McCorvey, now a 39-year-old apartment house manager in Dallas, has an unlisted telephone number there and could not be reached for comment tonight. However, Mr. Rowan, reached at his Washington home, said, She told me that she thought she would win so much public support by claiming that she was gang raped that she might get an exception from the Texas law."

"The progeny of Roe have confirmed the Kelsenite reading of Roe that there is no reality that the sovereign must recognize unless the sovereign, acting through the agency of the Court, decides to recognize it. This view would be psychologically incomprehensible if we did not have the history of the creation of the institution of slavery by judges and lawyers. With that history we can see that intelligent and humane lawyers have been able to apply a similar approach to a whole class of beings that they could see-that they were able to create a mask of legal concepts preventing humanity from being visible. A mask is a little easier to impose when the humanity concealed, being in the womb, is not even visible to the naked eye."

"All pregnant women, not just those who seek to end a pregnancy, have benefited from Roe v Wade. Today’s system of mass incarceration makes it likely that if Roe is overturned women who have abortions will go to jail. Efforts to establish separate legal “personhood” for fertilized eggs, embryos, and fetuses, however, are already being used as the basis for the arrests and detentions of and forced interventions on pregnant women, including those who seek to go to term. Examination of these punitive actions makes clear that attacks on Roe threaten all pregnant women not only with the loss of their reproductive rights and physical liberty but also with the loss of their status as full constitutional persons."

"This new era of mass incarceration—which is largely accepted by the public, defended by an army of lobbyists, and justified by a war on drugs deeply rooted in America’s history of slavery and racism1, makes it far more likely today than in 1973 that if Roe is overturned women will themselves be arrested and jailed. It is also likely that women having or considering having abortions will be subject to far more government surveillance than in the past. Federal and state law enforcement agencies are twice as big as they were in 1973, and their investigative powers—including wiretapping—have been dramatically expanded. Moreover, since 1973 drug testing has become a multibillion-dollar industry. As a result of US Supreme Court decisions and local policies, even middle school students who want to join the afterschool scrapbooking club are being required in some schools to submit to urine drug testing. Once a urine sample is in the possession of state authorities, it may just as easily be used to test for pregnancy. In the post-Roe world, however, it is not only women who seek to end pregnancies who must fear the possibility of surveillance and arrest. Approximately one million women in the United States each year terminate their pregnancies, close to another million suffer miscarriages and stillbirths, and more than four million women continue their pregnancies to term. Each and every one of these women benefits from the US Supreme Court’s decision in Roe v Wade, which not only protects a woman’s right to terminate her pregnancy but also, as later US Supreme Court cases explained, has been “sensibly relied upon to counter” attempts to interfere with a woman’s decision to become pregnant or to carry her pregnancy to term. As a result, all pregnant women, not just those seeking to end a pregnancy, risk losing their reproductive rights and their liberty."

"To date, no court has refused to recognize a wrongful life claim based upon the recognition that it is unconstitutional to hold that a duty of care is owed to a fetus prior to viability when under Roe v. Wade and its progeny, no duty is owed to a fetus before the fetus becomes viable. Rather, jurisdictions which have decided not to recognize wrongful life claims have done so based on reasoning that focuses on lack of a legally cognizable injury, the impossibility of calculating damages, and/or the lack of causal relationship between the defendant’s conduct and the claimed injury."

"Wrongful life claims are irreconcilable with Roe v. Wade. Wrongful life claims are necessarily predicated on the contention that there is a duty of care owed to a fetus prior to viability. This presupposes that a non-viable fetus enjoys legal standing. The courts that have recognized wrongful life claims sidestep this important part of the analysis. Courts that have held that such a duty exists have described it as a duty to provide the prospective parents with information needed to decide whether to terminate the pregnancy. Some courts simply conclude that “the duty owed to the parent inures derivatively to the child.” However, in order for the mother to choose to have an abortion, she must have access to that information prior to fetal viability. Roe v. Wade established that no such duty exists. Therefore, the courts permitting wrongful life claims have wrongfully held that a duty of care is owed by third parties to the embryo upon conception."

"Our legal proposition can be summarized as follows: Roe established that a mother has an unfettered constitutional right to decide if the fetus will continue to exist beyond the first trimester. Roe stands for the principle that a fetus does not have a legal right to exist in the first trimester. Since the fetus has no legal right to exist during the period prior to viability, third parties cannot owe a duty of care to the fetus during that time period. As there is no way to reconcile wrongful life claims with federal constitutional law with respect to the duty owed to a fetus, federal constitutional law prevails, rendering wrongful life claims unconstitutional and invalid."

"While the case did not involve the abortion issue, in Matter of Baby M., a New Jersey state court struck down an abortion clause in a surrogacy contract prohibiting abortion except as allowed by the male promisor on the ground that its enforcement would violate the surrogate mother’s constitutionally protected right, under Roe v. Wade, to decide whether to have an abortion. It was clearly the court’s view that the abortion provision could not be enforced by an action for injunctive relief to prohibit an otherwise lawful abortion."

"Roe v. Wade established as a matter of constitutional law that during the first trimester of a pregnancy, the fetus is not owed a duty of care. Without a duty, there can be no breach and thus no injury giving rise to damages. As plaintiffs continue to push courts that have either refused to recognize this tort or have not had the issue presented to it, defense counsel should raise the unconstitutionality of these claims. For counsel in the three states that have recognized this tort, we urge defense counsel to aggressively argue the unconstitutionality of the tort when it is asserted."

"Midwife Regulations. Blackmun’s claim that abortion was unrestricted until “well into the 19th century” not only distorted the common law and statutes in both England and America, but entirely ignored other sources of legal control over abortion. Municipal ordinances and regulations, for example, had long prohibited midwives, who almost exclusively handled reproductive matters, from performing or procuring abortion throughout pregnancy. These regulations existed in England as early as 1512 and were replicated in America long before independence. In July 1716, for example, the Common Council of New York City enacted a “Law Regulating Mid Wives within the City of New York.” It required midwives to take an oath not to “give any counsel or administer any...thing to any woman being with child” to induce a miscarriage or abortion."

"Pro-Life Feminists. The Means–Blackmun narrative also ignored the near-unanimous consensus among 19th-century feminists that abortion should be prohibited as “child murder.” Elizabeth Cady Stanton and Susan B. Anthony, for example, regularly condemned abortion in The Revolution, a weekly newspaper they published from 1868 to 1872. In one editorial, for example, they called abortion a “crying evil” and a “revolting outrage against the laws of nature and our common humanity.” These feminists exposed how the sexual exploitation of women often included pressure to get abortions—but they never allowed a reason for abortion to become a justification for abortion. Excising 19th-century feminists from this narrative was deliberate. More than 400 historians, for example, promoted the Means–Blackmun narrative in an amicus curiae brief filed in Webster v. Reproductive Health Services. A year later, the brief’s organizers admitted that, like Means had prior to Roe, they had simply “suspend[ed] certain critiques to make common cause.” Professor Sylvia Law, for example, admitted that the historians’ brief in Webster was “constructed to make an argumentative point rather than to tell the truth” and that ignoring 19th-century feminists’ opposition to abortion was a “major deficiency.” Professor Estelle Freedman was even more candid: The “political strategy of the brief,” she wrote, required “selective use of evidence, or lack of evidence.”"

"The Supreme Court itself made public opinion about abortion relevant by basing Roe’s holding on the “history of abortion,” including “man’s attitudes toward the abortion procedure over the centuries.” In addition, one of the factors the Supreme Court considers when deciding whether to overrule a precedent is whether it has been “universally accepted, acted on, and acquiesced in by...the general public.” In this context, the issue is whether the general public supports the legality of the abortions that would have remained illegal without Roe v. Wade. These abortions are performed for reasons defined by how women wish to live their lives and correspond to the factors covered by the Court’s definition of “health,” such as “physical, emotional, psychological, familial, and the woman’s age.” The abortions made legal by Roe v. Wade are also sought to avoid the “detriment” that the Court said prohibiting abortion would impose, including “the distress, for all concerned, associated with the unwanted child...[and] the additional difficulties and continuing stigma of unwed motherhood.”"

"United States v. Vuitch. The Supreme Court decided one abortion-related case prior to Roe. In United States v. Vuitch, a physician challenged his indictment for violating a District of Columbia law that allowed only abortions that are “necessary to preserve the mother’s life or health.” The Supreme Court rejected Vuitch’s argument that the statute was unconstitutionally vague, construing the word “health” broadly to include “psychological as well as physical well-being.” Vuitch did not raise, and the Court did not address, the issue of a constitutional right to abortion."

"Professor Kermit Roosevelt, who similarly supports recognition of a constitutional right to abortion, writes: “As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether. It supported that right via a lengthy, but purposeless, cross-cultural history review of abortion restrictions.”"

"Professor Richard Morgan writes: “The stark inadequacy of the Court’s attempt to justify its conclusions” suggests that “the Court, finding no justification at all in the Constitution, unabashedly usurped the legislative function.”"

"Professor Mark Tushnet writes that “[m]ost academic commentators probably believe that, as a matter of sound public policy, access to abortions should be relatively unrestricted. But none has been able to provide conclusive arguments that the Supreme Court correctly found that policy in the Constitution.”"

"Chief Justice Warren Burger was in the Roe majority but, within little more than a decade, joined a dissent arguing that the Court was striking down abortion restrictions that Roe was supposed to allow and then writing his own dissent to say that Roe should be reexamined."

"The conclusion that Roe had a relatively modest impact on birth rates is somewhat at odds with previous work (Gruber, Levine and Staiger 1999; Levine et al. 1999; Levine 2004). These authors argued that national legalization in 1973 led to an equally large decrease in birth rates in the non-repeal states as had occurred in the repeal states in the previous three years. Gruber, Levine and Staiger (1999) refer to this as the “bounce back” effect of Roe. However, they lack a comparison group after 1973. Consequently, they cannot distinguish the “bounce back” effect from a relatively larger decrease in birth rates in the repeal states relative to the non-repeal states in the pre-Roe years followed by no meaningful effect of Roe in the subsequent years.19 Although the latter seems surprising given the dramatic change in distance to the nearest abortion provider between 1972 and 1973 (Figure 7), trends in birth rates are consistent with this interpretation."

"The likelihood that Roe is overturned in the near future is remote. Nevertheless, states have imposed new requirements of abortion providers that, if enforced, will increase the distance women have to travel to access services."

"Donohue and Levitt use no data on abortion prior to 1973. Their analysis of arrests by single year of age, for instance, pertains to birth cohorts born between 1961 and 1981 where approximately 60 percent of the state/ age / cohort cells are assigned an abortion ratio of zero. However, demographers have concluded that most legal abortions in the early 1970s replaced illegal abortions (Tietze 1973; Sklar and Berkov 1974). If the underreporting of abortion were random among states, their estimates would be biased downward. As I show below, however, the measurement error is negatively correlated with the true abortion rate in 1972 and thus the direction of the bias is unknown."

"Demographers estimate that approximately two-thirds of all legal abortions replaced illegal ones in the first year after legalization. Estimates are based on the change in births between 1970 and 1971 compared to the number of reported abortions in 1971 (Sklar and Berkov 1974; Tietze 1973). As noted above, Donohue and Levitt have no data on abortion for cohorts born before 1974 and thus assume a zero abortion ratio for more than half their observations. A facile argument is to assume that any error is likely random and estimates are biased downward. But this assumption is decisively contradicted by the data. As a simple example, Kansas had an abortion ratio of 414 per 1,000 live births in 1973. Donohue and Levitt assume the abortion ratio in Kansas is zero in 1972. However, data collected by the Centers for Disease Control (CDC) (Centers for Disease Control 1974) indicate that Kansas had an observed abortion ratio of 369 per 1,000 live births in 1972! Going further, I estimated the resident abortion rate in 1972 using published CDC data and the algorithm used by AGI for assigning abortions by state of residence in 1973. The correlation between resident abortion rates or ratios in 1972 and 1973 is 0.95. In other words, states with the greatest abortion ratios in 1973 had the greatest abortion ratios in 1972. By assuming the abortion ratio was zero in the 45 nonrepeal states and Washington, D.C., Donohue and Levitt build in an error that is negatively correlated with the true abortion rate. As a result, the direction of the bias is unknown."

"Because the exposure group includes individuals 20 and 21 years of age, instead of 18 and 19 as in Figure 3, the pre-Roe period is now 1992– 93 and the post-Roe or exposure period is 1995 and 1996. Again, with the exception of property crime, the pre-Roe levels and trends in arrest and homicide rates are similar. Moreover, there is little to suggest that arrests or homicide rates fell differentially for 20- and 21-year-olds relative to 23- and 24-year-olds before and after exposure to legalized abortion."

"Given Figures 4 and 5, it is not surprising that I find that exposure to legalized abortion following Roe v. Wade has no effect on arrest or homicide rates of the two exposed groups. Consider arrest rates for violent crime in Panel A. The estimated coefficient, 0.064, indicates that violent crime arrests rose 6.4 percent more among teens 18 to 19 years of age relative to 21- and 22-year-olds. The remaining DDs indicate that Roe had a statistically insignificant and qualitatively unimportant impact on arrest and homicide rates."

"In closing, however, it would be useful to pull back from issues of measurement and identification and ask more generally why a cohort effect associated with legalized abortion was not more evident in the data. I have two explanations. First, the actual number of unintended births averted, although signicant, was an order of magnitude less than the number of reported legal abortions in the early 1970s. Many analysts, including Donohue and Levitt treat reported abortions as an appropriate counterfactual for unintended childbearing. I have questioned this strategy because the availability of legal abortion may figure into decisions regarding sex and contraception, which weakens the link between abortion and fertility. Second, analysts, I being one, have tended to overestimate the selection effects associated with abortion. A careful examination of studies of pregnancy resolution reveals that women who abort are at lower risk of having children with criminal propensities than women of similar age, race and marital status who instead carried to term. For instance, in an early study of teens in Ventura County, California between 1972 and 1974, researchers demonstrated that pregnant teens with better grades, more completed schooling, and not on public assistance were much more likely to abort than their poorer, less academically oriented counterparts (Leibowitz, Eisen, and Chow 1986). Studies based on data from the National Health and Social Life Survey (NHSLS) and the National Longitudinal Survey of Youth (NLSY) make the same point (Michael 2000; Hotz, McElroy, and Sanders 1999). Indeed, Hotz, McElroy, and Sanders (1999) found that teens who abort are similar along observed characteristics to teens that were never pregnant, both of whom differ significantly from pregnant teens that spontaneously abort or carry to term. Nor is favorable selection limited to teens. Unmarried women that abort have more completed schooling and higher AFQT scores than their counterparts that carry the pregnancy to term (Powell-Griner and Trent 1987; Currie, Nixon, and Cole 1995). In sum, legalized abortion has improved the lives of many women by allowing them to avoid an unwanted birth. I found little evidence to suggest, however, that the legalization of abortion had an appreciable effect on the criminality of subsequent cohorts."

"The Supreme Court’s recent decision to accept a major abortion case out of Mississippi has led to fear among many Americans that Roe v. Wade will be overruled next year. There is some chance of this — but that’s why it is crucial to understand that reproductive rights do not depend only on the justices. Here’s the thing: Congress can, right now, by simple majority vote, protect those rights and nullify any threat posed by the Mississippi case or any other. A year ago, when the last abortion case reached the high court, Chief Justice John G. Roberts Jr. cast the deciding vote to invalidate Louisiana’s abortion restrictions. Roberts surprised many by joining the four justices appointed to the court by Democratic presidents, one of whom was Ruth Bader Ginsburg. Today, however, Justice Amy Coney Barrett occupies the seat Ginsburg once did, leading some who support abortion rights to predict doom from the Mississippi case. Predictions are always tough in this business, but the far more important point is that this focus on the Supreme Court is misplaced. Reproductive rights need not depend at all on what the court does with Roe."

"[T]he Court remarked in Wade that litigation involving pregnancy, Which is "capable of repetition" is an exception to the federal rule that an actual controversy must exist at the time a case is decided on appeal. In Bolton the Court held that even licensed physicians consulted by pregnant women have standing to sue because they are within reach of the law's criminal provisions. These physicians "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief, asserted the Court. Thus, the abortion cases were capable of judicial resolution. Some of the Court's critics have noted that this apparent stretching of the standing rule is the result of significant enlargement of the Court's own perception of its institutional role. They would probably agree with Richard A. Epstein's assertion that "the Supreme Court today views constitutional litigation as a means of settling great conflicts of the social order." On the other hand, as Tocqueville once reminded us, all great political conflicts in America tend eventually to resolve themselves into constitutional questions. Failing to achieve their objectives by political means, proponents of liberalized abortion laws naturally gravitated to the judiciary, seeking victory on more favorable terrain. For purposes of this analysis, however, it is not the victory that is important, but rather the Court's own capacity to persuade a reasonably open mind of the validity and propriety of its ultimate ruling."

"There are several interesting steps in the Supreme Court's argument in Wade and Bolton. Speaking through Mr. Justice Blackmun, the Court first explored the historical origin of American state abortion laws. Its rather detailed excursion through history includes a description of abortion policy as reflected in Greek and Roman Law, the Hippocratic Oath, Common Law, English statutory law, and American law, followed by an analysis of the evolving policy and current attitudes of the American Medical Association, the American Public Health Association, and the American Bar Association. Without indicating precisely the relevance of its historical overview to the doctrinal point made later in the opinion, the Court then hastens into a discussion of the reasons justifying American criminal abortion statutes; after noting that most were passed in the latter half of the nineteenth century, the Court concludes that they were intended mainly for the purpose of protecting the woman from a dangerous medical procedure as well as for the purpose of preserving prenatal life."

"Three justices concurred in the majority opinion. Chief Justice Burger, displeased with the dissenting Justices' wide interpretation of the majority opinion, rejected the contention that the rule in the cases permits abortion on demand. Justice Douglas, hedging against a too-narrow interpretation of the rule and meeting Justice White's argument about the ordering of priorities between fetus and mother, found Georgia's statute constitutionally defective precisely "because it equates the value of embryonic life immediately after conception with the worth of life immediately before birth" and because the statute fails to include the psychological as well as the physical "health" of the woman as a permissible reason for the right of a woman to interrupt her pregnancy prior to viability. In Douglas' view, the right of a woman to procure an abortion was well within the marital privacy cases on contraception. The concurring opinion of Justice Stewart was a reluctant acceptance-a capitulation following his long resistance, beginning with the Connecticut Birth Control Case, to the doctrine of substantive due process-of the prevailing view that social policy is now subject to judicial review on substantive grounds. Rather than scouring the Constitution's hidden recesses for a nonexistent right of personal privacy, he squarely held on the basis of his reading of the precedents that the right of a woman to procure an abortion is part of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment."

"Let us restate the main constitutional rulings and principles of the German and American abortion cases. The American case holds that the right to privacy, founded upon the Fourteenth Amendment's concept of personal liberty, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. A zone of privacy is created within which the decision to procure an abortion is exclusively that of the pregnant woman and her physician. Accordingly, the state has no legitimate interest whatever in preventing abortions from occurring within the first trimester of pregnancy. Its only interest is seeing to it that abortions are performed under circumstances that insure adequate surgical procedures and care for patients. Yet the right to procure an abortion is not absolute, and so, following the first trimester of pregnancy, the state may begin to assert important interests in maintaining medical standards. It may assert these interests because an abortion performed in the second trimester is a greater medical risk than one performed in the first trimester. It is only in the last trimester, when the fetus becomes viable and potentially able to survive outside of the womb, that the state may promote its interest in protecting future life, but even during this period the unborn child may be destroyed, medical standards permitting, to preserve the life or health of the mother. What we have here is a constitutional policy on abortion based on the Court's conclusion that a fetus or unborn child is not a "person" within the meaning of the Fourteenth Amendment."

"In a pluralistic society composed of a multitude of belief systems, the Court seems intent on keeping certain issues-those likely to be religiously or theologically divisive-out of the forum of effective public discussion. By not allowing the abortion question to be legislatively determined, the Court has effectively "depoliticized" the issue. If the people's representatives are incapable of acting on an issue after its exhaustion by discussion, it makes no sense, politically, to talk about it. Lemon v. Kurtzman, where the Court invalidated a Pennsylvania statute reimbursing church-related schools for costs of teachers salaries and textbooks in specific secular subjects, is an even clearer illustration of the Court's attempt to "depoliticize" a public issue and, incidentally-to return to the anti-communitarian theme-to erode the significance of religion as an intermediating agency between the individual and mass society. Remarked Chief Justice Burger: "Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. The potential divisiveness of such conflict is a threat to the normal political process." Thus is social peace achieved. This analysis is a rather circumspect way of saying that the result in Roe v. Wade not only conforms to the individualistic ethic at the heart of the conventional "Madisonian" interpretation of American constitutionalism, but is also understandable in the light of the pluralistic nature of American society."

"Measured by any logical test that we would wish to apply, the constitutional reasoning in the German Case is more tightly argued and more analytically precise than the argument advanced in Roe v. Wade. The German opinion is carefully crafted and composed in measured language, leaving little room for doubt or ambiguity with regard to its meaning. On the other hand, the privacy argument in Roe v. Wade is confusing and even contradictory. In the end, the American decision does not lend itself to a clear and unambiguous interpretation. Justice Douglas was even impelled to write a concurring opinion to hedge against a too narrow interpretation of the Court's opinion, studiously avoiding, for example, any reference to "potential life," a concept that Blackmun introduced as a limitation of privacy. Chief Justice Burger, on the other hand, concurred in what amounted to a near dissent by warning against a too broad interpretation of the opinion and by deploring Blackmun's use of current medical knowledge in support of the opinion. Of course, eroded logic is one of the costs of the high value that the justices as well as Americans generally place on the practice of individualized opinion writing on the Supreme Court. In Germany, such personalized expressions of opinion remain a clear exception to the rule. The law-certainly the highest law of the land-ideally speaks with one voice in Germany's legal culture, underscoring both the authority and the unity of the law."

"Roe v. Wade is an unpersuasive opinion, and the root of its unpersuasiveness is the Supreme Court’s failure to ground its decision, that abortion is a fundamental right, in the text of the Constitution. Because the Court ignored its “obligation to trace it premises to the charter from which it derives its authority” commentators have felt entitled to conclude that a woman’s right to choose whether or not to carry a pregnancy to term “is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure.” Some have concluded that the decision is so completely devoid of any foundation in the Constitution that it ought to be overruled, and the authority to ban or permit abortion returned to the states."

"Even many of Roe’s friends want to rewrite it, but so far no attempt to do so has been wholly successful. Those who have followed the Court’s lead by emphasizing the exceedingly personal nature of the woman’s decision have had as little success at locating her privacy in the text of the Constitution as the Court itself did. Philip Bobbitt’s proposed principle, tat “[g]overnment may not coerce intimate acts,” is appealing, but it appears nowhere in the document. Hermann and Barzelay’s defense of Roe, which has been called “the principal scholarly defense of that opinion,” largely concedes the critics’ point by relying heavily on the thesis (not explicitly adopted by Roe itself) that constitutional law need not bear any direct relationship to the text of the Constitution. Many lawyers and judges endorse that thesis, but it is dangerous for a defense of abortion to rely upon it exclusively, given the increasingly influential view that “[t]he Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.” Moreover, the privacy argument has internal tensions, because “[t]he pregnant woman cannot be isolated in her privacy.” Unlike the liberties protected in the other privacy cases, abortion is arguably not private at all, because “the termination of a pregnancy typically involves the destruction of another entity: the fetus.” A privacy-based defense of abortion seems to depend on the premise that the woman’s choice affects only herself-in other words, that the fetus is not a person. And this premise is, of course, impossible to prove."

"[A] law forbidding abortion cannot be sustained if the state is unable to carry the burden of persuading the court that a fetus is, or should be considered to be, a person.154 While its opinion has many weaknesses, the Roe Court was surely correct to conclude that this burden had not been met."

"The right to abortion has become taken for granted by many. Whatever the deficiencies of Roe’s original reasoning, “millions of women, and their families, have ordered their lives around the right to reproductive choice, and . . . this right has become vital to the full participation of women in the economic and political walks of American life” An upheaval in the nation’s fundamental law requires a more compelling justification than the bald fact that were the present personnel of the Court writing on a blank slate, they would construct the law differently. The point of adhering to precedent is that the public deserves protection from such precipitous judicial revolutions; that is why before the ordinary rule of “stare decisis” is rejected, “the unconstitutionality of the course pursued” should be “made clear.” Because such clarity is simply unavailable in the abortion controversy, Roe should remain the law."

"Despite the Supreme Court's putative "reaffirmation" of part of Roe in Planned Parenthood v. Casey, these opinions remain highly contentious because the constitutional premises upon which they rest are so wholly erroneous as to be non-existent in law. The writer Santyana enjoins us to learn from history."

"None of the Justices claim there is a specific textual guarantee of abortion to be found anywhere in the constitutional document. Nor does the abortion claim find legitimacy within the background principles of common law out of which the American Constitution emerged. As Bracton records, and the draft opinions within the internal Marshall papers indicate the Justices knew, abortion has little common law support, and was clearly thought by some to be homicide. [II Bracton, On the Laws and Customs of England 341 (Thorne ed. 1968), a citation to which can be found in Justice Blackmun's 4th circulated draft in December 1972]. Because of the more rudimentary nature of science in the 18th and 19th centuries, the common law drew a distinction between abortions before and after quickening [16 to 18 weeks], but under English codification in 1803 both were criminal only in different degrees. When medical science advanced, the quickening distinction receded, and penalties for all abortions increased. In 1868, when the 14th Amendment was adopted, statutory prohibitions or restrictions on abortion were commonplace. Twenty-eight states of the then 37 and 8 territories banned or limited abortion. [J. Mohr, Abortion in America at 200 (1978)]. The Court's drafts also reveal that the decision was not being guided by ancient precepts of medical ethics. In this respect, the Hippocratic Oath dating back three to four hundred years before Christ, had doctors pledging that they "will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner . . . not give to a woman a pessary to produce abortion." [The 4th circulated draft of Justice Blackmun's opinion in Roe cites the Hippocratic Oath, but cavalierly dismisses it on the basis of academic writing that found it to be held as true only within Pythagorean Greek culture. Why the Pythagoreans should be so ill-treated, or deemed uninfluential, is not explained. Indeed the Oath, which coincides with prevalent Christian belief since the end of antiquity, became the "nucleus" of medical ethics.]"

"By late May, Justice Blackmun had fully joined the Douglas-Brennan circle [which also included Potter Stewart and Thurgood Marshall] in favor of creating an abortion right. [Memorandum to the Conference, dated May 31, 1972]. Justice Blackmun's memoranda reflect highly legislative considerations almost exclusively. For example, he proposes to invalidate most of the Georgia statute, except maybe those requiring an abortion to occur in a licensed and accredited hospital. [Memorandum to the Conference from Harry Blackmun, dated May 25, 1972]. Demonstrating that none of these specific invalidations were rooted in constitutional text or history, however, Justice Blackmun holds open the possibility, like a good legislative lobbyist, that may be "some of you may wish to take that step, too [that is, allowing abortions outside hospitals]." [Id., the Court did take that step.] The particulars of the Court's legislative considerations still tangled, Justice Blackmun, at month's end, urges that Roe and Doe be reargued. [Memorandum to Conference from Harry Blackmun, dated May 31, 1972]."

"The cases were reargued, but only over Justice Douglas' extraordinary and harshly written protest. [An internal Letter from William O. Douglas to Warren Burger, dated June 1, 1972, threatens "[i]f the vote of the Conference is to reargue, then I will file a statement telling what is happening to us and the tragedy it entails." Justice Douglas filed a published written dissent to setting the cases over for reargument]. Perhaps, the key to understanding why the Court, notwithstanding Douglas' protestations, pursued reargument lies with the gentlemanly prodding of new Justice Powell. As mentioned, Powell had recently joined the Court, and he asked politely for reargument, pointing out that "Harry Blackmun, the author of the (draft] opinions, thinks the cases should be carried over and reargued next fall. His position, based on months of study, suggests enough doubt on an issue of large national importance to justify the few months delay." [Memorandum to the Conference from Lewis Powell, dated June 1, 1972]."

"In November, Harry Blackmun writes the final drafts of opinions that today we know rather infamously as Roe v. Wade, 410 U.S. 113 (1973) and Doe v. Bolton, 410 U.S. 179 (1973). Again, no real discussion of law occurs in the internal deliberations; instead, there is the startling admission from Justice Blackmun in the presentation of his near final draft that "you will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary." [Memorandum to Conference from Harry Blackmun, dated November 21, 1972, emphasis added]. So, there you have it. A confession by the principal author of the most infamous decision in this century, and perhaps after Dred Scott, ever, revealing that arbitrary choice -- not discernment of the law of the land -- accounts for the result in Roe. Law, legal history, constitutional allocations of power, all ignored. The abortion right derives not from background principles of common law; not in the first principles of our constitutional republic; not as a result of careful parsing of constitutional text."

"The difficulty of anticipating, let alone predicting, how the Supreme Court will rule in any individual case certainly intensifies when the Court reconsiders precedent as significant as Roe v. Wade. Many thought, for example, that the Court would do so in Webster v. Reproductive Health Services, which drew a then-record 78 amicus briefs. However, the Court declined even to reconsider Roe."