1970s In The United States

"Those who favor overturning Roe v. Wade overwhelmingly say it is morally wrong to have an abortion; fully 85% express this view. Opinions about the morality of abortion are more divided among those who oppose overturning Roe. Nearly four-in-ten (38%) say abortion is not a moral issue, while 29% say having an abortion is morally wrong; just 17% of those who favor retaining Roe view abortion as morally acceptable. Overall, nearly one-in-five Americans (18%) say they personally believe that abortion is morally unacceptable, yet also oppose the Supreme Court overturning its Roe v. Wade ruling."

"Within the circle of former clerks to Justice Harry Blackmun, I have more than occasionally been taken to task for breaking with the party line and sharply criticizing Roe v. Wade, the opinion that will forever stand as the Justice's most famous contribution to American jurisprudence. But over the years, I've come to believe even more strongly that my initial doubts about the decision were valid. Over the last few weeks, as the Senate completed another chapter in the sorry saga that we call the judicial nomination process, we were treated to another lesson in why Roe must be ranked among the most damaging of judicial decisions. The case in point is the nomination of Professor Michael McConnell to the U.S. Court of Appeals for the Tenth Circuit - on which the Senate held hearings last month. McConnell is a prominent and ideologically conservative academic who nonetheless enjoys a fair amount of bipartisan support. For reasons I will explain, it would be more than reasonable for the Senate to reject McConnell. But it should not do so because of his views on Roe. Sadly, however, if McConnell's nomination fails, that will be why."

"What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent - at least, it does not if those sources are fairly described and reasonably faithfully followed. Before Roe, the right to contraception established in Griswold v. Connecticut and Eisenstadt v. Baird was a concept that was already barely hanging onto the high ledge of defensible constitutional thinking. In Roe, the Court added a 500 lb. lead weight. And the Court's been looking up at the ledge ever since. Instead, as conservatives now scurry to do with Bush v. Gore, the friends of Roe seek to find other constitutional bases to defend its outcome. Might Roe be a stealth equal protection case - really relating not to the right of privacy, but instead to women's equality? Perhaps, but to say so amounts to a concession that the decision itself, as written, is unsustainable."

"In any event, when Democratic senators oppose a judicial appointment because of the nominee's opposition to Roe, they not only endorse but make a litmus test out of one of the most intellectually suspect constitutional decisions of the modern era. They practically require that a judicial nominee sign on to logic that is, at best, questionable, and at worst, disingenuous and results-oriented. In doing so, they select not for faithful, but for unfaithful, constitutional interpreters to people the federal judiciary. This is a strategy with baleful long-term consequences. The standard critique of liberal judges trumpets their willingness to substitute personal preference for legal analysis - and Roe is universally featured as Exhibit A."

"Even if the justices don’t overturn Roe, they could effectively end the precedent by erasing its viability standard, which permits abortion up until a fetus can survive outside of the womb. If the court shifts this standard on the basis of arguments about when a fetus becomes a person, the research filed to the justices might not matter. Because this question is not something that science clearly defines, Toti says, courts generally haven’t debated it. But that could change."

"[S]ome researchers are forecasting what the future might look like in the United States if Roe is overturned or significantly curtailed by the Supreme Court. In one unpublished analysis, Myers modelled what will happen if abortions are banned in 12 states with pre-emptive ‘trigger bans’ — which will automatically block abortion if Roe is overturned — and in 10 other states with several types of abortion restrictions in place. She estimates that, on average, a woman in these states who seeks an abortion will need to travel 280 miles (450 kilometres) to reach a clinic (see ‘If Roe is overturned’), and each year the distance will present an insurmountable obstacle for around 100,000 of them, who don’t have the means to travel far. Laurie Sobel, a researcher at KFF, a non-partisan health-policy research organization based in San Francisco, California, is working on a similar assessment. KFF refrains from taking political positions, but Sobel says the evidence for the potential repercussions of this court decision is clear. “This could have a devastating impact on women that would be real and very severe in many states.”"

"Roe v. Wade proceeded before a three-judge district court empaneled pursuant to 28 U.S.C. § 2281. See 28 U.S.C. § 2281 (1970); 28 U.S.C. § 2284 (1970) (controlling the composition and procedure of three-judge district courts). Before its repeal,2 § 2281 required a three-judge district court to hear and determine cases involving injunctions against the enforcement of state statutes based on allegations of unconstitutionality. See Corpus v. Estelle, 551 F.2d 68, 70 (5th Cir. 1977). McCorvey asserts that the single district court judge, who ruled on her Rule 60(b) motion, acted without authority. We disagree. Although the original action was tried by a three-judge district court, the Rule 60(b) motion filed by McCorvey in 2003 was not properly a matter for a three-judge court. In United States v. Louisiana, 9 F.3d 1159, 1171 (5th Cir. 1993), this court ruled, in another action determined under § 2281 by a three-judge court, that a single district court judge, acting alone after the repeal of § 2281, could properly entertain and decide subsequent modified remedial orders. The instant context is no different: A single district court judge can decide threshold questions relating to McCorvey's Rule 60(b) motion even though the underlying judgment was originally tried by a three-judge court under the former § 2281. See, e.g., Bond v. White, 508 F.2d 1397, 1400-01 (5th Cir. 1975). McCorvey argues that the district court abused its discretion in rejecting her Rule 60(b) motion for relief from judgment as untimely. A question necessarily antecedent to McCorvey's substantive claim, however, is whether she has presented a justiciable case or controversy pursuant to Article III of the Constitution. We are under an independent obligation to examine this jurisdictional question."

"There are two conceivable bases for concluding that McCorvey does not present a live case or controversy — lack of standing and mootness. As the Supreme Court explained in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180, 120 S. Ct. 693, 704, 145 L. Ed. 2d 610 (2000), standing and mootness are related, but distinct, concepts. We may pretermit the question of standing if we find a case clearly moot. See, e.g., Nomi v. Regents of Univ. of Minn., 5 F.3d 332, 334 (8th Cir. 1993). The mootness doctrine "ensures that the litigant's interest in the outcome continues to exist throughout the life of the lawsuit ... including the pendency of the appeal." Cook v. Colgate, 992 F.2d 17, 19 (2d Cir. 1993) (citing United States Parole Comm'n v. Geraghty, 445 U.S. 388, 395, 100 S. Ct. 1202, 1209, 63 L. Ed. 2d 479 (1980)) (other citations omitted); see also Rocky v. King, 900 F.2d 864, 866 (5th Cir. 1990) (controversy must remain "live" throughout the litigation process). Mootness is the fatal issue for McCorvey. "In general, a matter is moot for Article III purposes if the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." Sierra Club v. Glickman, 156 F.3d 606, 619 (5th Cir. 1998). Suits regarding the constitutionality of statutes become moot once the statute is repealed. See Diffenderfer v. Cent. Baptist Church, 404 U.S. 412, 414-15, 92 S. Ct. 574, 575-76, 30 L. Ed. 2d 567 (1972); see also Fed'n of Adver. Indus. Executives, Inc. v. City of Chicago, 326 F.3d 924, 930 (7th Cir. 2003) (" [W]e, along with all the circuits to address the issue, have interpreted Supreme Court precedent to support the rule that repeal of a contested ordinance moots a plaintiff's injunction request, absent evidence that the City plans to or already has reenacted the challenged law or one substantially similar."); Weeks v. Connick, 733 F. Supp. 1036, 1037 (E.D. La. 1990)."

"Hard and social science will of course progress even though the Supreme Court averts its eyes. It takes no expert prognosticator to know that research on women's mental and physical health following abortion will yield an eventual medical consensus, and neonatal science will push the frontiers of fetal "viability" ever closer to the date of conception. One may fervently hope that the Court will someday acknowledge such developments and re-evaluate Roe and Casey accordingly. That the Court's constitutional decision making leaves our nation in a position of willful blindness to evolving knowledge should trouble any dispassionate observer not only about the abortion decisions, but about a number of other areas in which the Court unhesitatingly steps into the realm of social policy under the guise of constitutional adjudication."

"By 1973, although a number of states offered women somewhat easier access to abortion, some, such as Texas, still banned all abortions except to save the woman’s life. The Texas law was challenged in Roe v. Wade (1973), which forced the Supreme Court to decide whether it violated the woman’s constitutional right to privacy. Women’s rights groups achieved a major victory when the Supreme Court declared that the constitutional right to privacy guaranteed a woman’s choice to have an abortion. But the Court warned that the right was not absolute; its parameters must be determined by balancing the woman’s control over her body with the state’s interest in regulating the abortion procedure."

"Shortly after Roe v. Wade was decided, states began to impose restrictions on a minor woman’s access to abortion, initially by requiring the consent of one or both parents. In a series of cases beginning in 1976, the Court was asked to decide whether a young woman’s right to privacy was equal to that of an adult. In determining the parameters of a minor’s right to terminate her pregnancy, the Court balanced the young woman’s right to choose abortion against the parents’ interest in their child and in the integrity of their family as well as the state’s interest in regulating the health of the young woman."

"Webster v. Reproductive Health Services (1989) sparked renewed interest in the abortion debate by raising serious doubts about the future of Roe v. Wade. The case centered on a number of provisions in a 1986 Missouri abortion law, including a preamble that declared that life began at conception, a ban on abortions at public hospitals, and a test to determine fetal viability. The preamble to the Missouri law stated that human life “begins at conception” and that the state had an interest in an unborn child’s “life, health, and well-being.” The state justified this provision by arguing it simply extended the protections of tort, property, and criminal law to the fetus and that it had no effect on abortion policy because it specified that it must be interpreted in a manner consistent with past Supreme Court decisions. Chief Justice William H. Rehnquist’s plurality opinion for himself and Justices Byron White and Anthony Kennedy declined to resolve this issue, ruling that the Court did not have to decide on the constitutionality of the preamble because it did not regulate abortion; rather, it was merely expressing the state’s legitimate preference for childbirth over abortion."

"Except for the exchange of personal opinion or medical speculation, there is no evidence of constitutional study or consideration. Only Chief Justice Burger attempted to anchor the discussion in the Constitution, expressing the patent federalism objection that "the states have,..., as much concern in this area as in any within their province; federal power has only that which can be traced to a specific provision of the Constitution." [Memorandum to the Conference from Warren Burger, dated May 31, 1972]. There is little other argument or discussion in the internal correspondence touching upon the substance of constitutional law."

"A few of the justices were squeamish. Justice Potter Stewart wondered "about the desirability of the dicta being quite so inflexibly 'legislative,' suggesting that he might extend to the States more latitude to make policy judgments." [Letter from Potter Stewart to Harry Blackmun, dated December 14, 1972]. The flexibility was not to be, though Justice Blackmun in a small concession urged that the "cases . . . come down no later than the week of January 15 to tie in with the convening of most state legislatures." [Memorandum to Conference from Harry Blackmun, dated December 15, 1972]. A professional courtesy perhaps to fellow legislators. Of course, a Court that engages in practices well beyond its Article III function to decide "cases or controversies" under the principles and usages of established law, needs its own press office to put, as political figures say today, the proper "spin" on matters. Writing that he anticipated the headlines that will be produced over the country when the abortion decisions are announced," Justice Blackmun prepared an 8-page press release personally. [Memorandum to the Conference, with press attachment, from Harry Blackmun, dated January 16, 1973]."

"While many of us associate the abortion right with Roe's author, Justice Harry Blackmun, mid-December 1971 correspondence actually identifies William O. Douglas to be the strongest advocate for abortion as an extension of his earlier opinion in Griswold v. Connecticut, 381 U.S. 479 (1965) invalidating a Connecticut law limiting the use of artificial contraception. (Letter from William O. Douglas to Chief Justice Warren Burger, dated December 18, 1971. Following oral argument, the Justices discuss cases and take a straw vote. The senior justice in the majority [or the Chief Justice if he is in the majority] then usually assigns the opinion writing. Chief Justice Burger reports that the discussion following the first [Roe] argument was so confused, that there were "literally not enough columns to mark up an accurate reflection of the voting." [Letter from Warren Burger to William O. Douglas, dated December 20, 1971]. Out of expedience, perhaps, Burger assigned the draft writing to Blackmun, his fellow Minnesotan. This infuriated Douglas, since Blackmun was perceived by Douglas as then favoring state abortion restriction. (Blackmun had been appointed to the Court by President Nixon about a year earlier]. By mid-January 1972, Blackmun had looked at the cases and found the issue so unclear that he urged the Chief. Justice to ask for re-argument in both Roe and Doe. (Letter from Harry Blackmun to Warren Burger, dated January 18, 1972]."

"With reference to internal Supreme Court memoranda relating to the drafting of Roe v. Wade made public by Thurgood Marshall, but to my knowledge, not previously analyzed, it will be illustrated how, by Justice Blackmun's own admission, the holding in Roe is more "arbitrary" preference than constitutional interpretation."

"Douglas steadfastly resisted reargument. Matters dragged on nonetheless and by mid-May, 1972, Justice Blackmun tried to rid the Court of the issue on procedural grounds -- namely, that the Texas statute was too vague to be enforced. He wrote: "I think that [vagueness] would be all that is necessary for disposition of the case, and that we need not get into the more complex Ninth Amendment issue." [Memorandum to Conference from Harry Blackmun, dated May 18, 1972]. This did not suit Justice Douglas, who argued that there were at least 4 votes [enough for a majority on an understaffed Court] that "an abortion [may] be performed by a licensed physician within a limited time after conception." (Letter from William O. Douglas to Harry Blackmun, dated May 19, 1972]. Douglas must have talked with Justice Brennan, because at about the same time Brennan by letter gives his support for the abortion proposition in almost identical language; namely, that "an abortion be performed by a licensed physician within some limited time after conception." [Letter from William Brennan to Harry Blackmun, dated May 18, 19721. Several things are striking about this internal correspondence beyond, of course, Justice Blackmun's change of posture from assigned draftsman to abortion advocate and the overall bewilderment of the Court after the case was first argued. First, there was considerable internal pressure to get a decision, perhaps before new members of the Court might change the outcome. [Nixon appointees' Lewis Powell and William Rehnquist replaced Black and Harlan; as it later turned out, Powell and Rehnquist split over the issue]. Douglas, in particular, seemed especially agitated to push the opinions out, writing "I feel very strongly that [Roe and Doe] should not be reargued. . . I hope the 5 can agree to get the cases down this Term, so that we can spend our energies next Term on other matters." [Letter from William O. Douglas to Harry Blackmun, dated May 31, 1972]. Second, the internal correspondence is almost completely devoid of what one could call constitutional argument. Instead of a careful examination of the common law or argumentation premised upon the textual provisions of the Constitutional document, there is merely vote counting and assertion. Third, taking Justices Douglas and Brennan at their word, the initial 4-person majority envisioned only a very narrowly-worded abortion privilege -- one that would be confined to a limited time after conception. The last point is particularly striking in light of President Clinton's insupportable claim and recent veto that the abortion license formulated by the Court extends even to the most graphically hideous procedure and to the moment of birth."

"It was, after all, Justice Blackmun, himself, in Casey, who echoed the sentiment of the plurality that "a decision to overrule Roe 'would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to a rule of law." 112 S.Ct. at 2845. In truly Orwellian terms, Justice Blackmun then scowled at the four dissenting justices, with the comment: "What has happened today should serve as a model for future Justices and a warning to all who have tried to turn this Court into yet another political branch. Id. This is a skeptical age and for those more generally inclined to be distrustful of public figures and events than myself the history recounted here may not impart the same level of surprise, as it disappointingly conveys to me. In light of these revelations, however, I now better understand Chief Justice Rehnquist's strong criticism of Justice Blackmun for "mak[ing] . . . decisions (in the abortion context] with a view toward speculative public perceptions," Casey, 112 S.Ct. at 2866 (Rehnquist, C.J., dissenting. Possibly, the Chief Justice merely was recalling from internal memoranda that Roe was constructed largely upon personal preferences and an accompanying press release. This may also explain why Justice Scalia, who was not on the Court when Roe was decided, could plaintively wonder in dissent in Casey why the Court skirted the fundamental question of "how wrong was the decision on its face?" 112 S. Ct. at 2875."

"Results. States legalizing abortion experienced a 4% decline in fertility relative to states where the elgal status of abortion was unchanged. The relative reductions in births to teens, women more than 35 years of age, non-White women, and unmarried women were considerably larger. If women did not travel between states to obtain an abortion, the estimated impact of abortion legalization on birth rates would be about 11% Conclusions. A complete recriminalization of abortion nationwide could result in 444 000 additional births per year. A reversal of the Roe v Wade decision leaving abortion legal in some states would substantially limit this impact because of the extent of travel between states."

"Footnote 4 Webster, 109 S. Ct. at 2067 (Blackmun, J., concurring in part and dissenting in part) (“The simple truth is that Roe would not survive the plurality's analysis.” And (id. At 3058 (opinion of Rehnquist, C.J.) (“This case . . . affords us no occasion to revisit the holding of Roe . . . and we leave it undisturbed.”) and id. At 3060 (O’Connor, J., concurring in part and concurring in the judgment) (“there is no necessity to accept the State’s invitation to reexamine the constitutional validity of Roe v. Wade”). Probably the bet summary of Webster’s effect is Justice Scalia’s observation that the decision “preserves a chaos that is evident to anyone who can read and count.” Id. At 3065 (Scalia, J. concurring in part and concurring in the judgment). Since Webster purports to leave it undisturbed, this Article will take the Court at its words and presume that Roe is still good law."

"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."

"The German and American Abortion Cases are both products of political regimes in which judicial review plays a central role in the process of government. The enlightened conscience of a future generation may condemn Roe v. Wade in tones that we now reserve for the despised Dred Scott case. Or it may regard Roe v. Wade as an- other step on man's road to freedom. Or men may take a middle position, much like the German Court, and seek a balancing of rights. Whatever the future may hold in this regard, the magnitude of the power that certain constitutional democracies have conferred on their courts of law must be clear to the men of this generation. The reversal of legislative policies as important to society as American state anti-abortion laws and the German Abortion Reform Act is a very serious matter. But the judicial overriding of legislative policy on the ground of constitutionality is apparently one of the prices that citizens within a constitutional regime that confers such authority on its courts are willing to pay."

"The most impressive attempts to anchor the right to abortion in the Constitution’s text have been built on the equal protection clause of the fourteenth amendment. These have argued that the real issue in the abortion controversy is not privacy, but the equality of women Sylvia Law has shown how sex equality concerns are implicated when laws outlawing abortion “impose upon women burdens of unwanted pregnancy that men do not bear,” and correctly observed that “[n]othing the Supreme Court has ever done has been more concretely important for women than its decision in Roe.” The difficulties of this argument stem from the indeterminacy of sex discrimination doctrine: the Court has never made clear what the “intermediate scrutiny” to which sex-based classifications are subject amounts to, so it is difficult for a defense of abortion that relies upon it to secure enough doctrinal traction to get where it wants to go."

"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."

"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."

"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."

"Between late November and the end of the year, Blackmun observes how he's thinking about moving what he called previously the "critical" line from the end of the first trimester to viability. He admits that he chose the end of the first trimester largely for marketing reasons, writing: "I selected the earlier point because I felt that it would be more easily accepted (by us as well as others) . . ." [Memorandum to the Conference from Harry Blackmun, dated December 11, 1972]. He is hesitant, however, if moving the line would cost him votes on the merits. ["I would be willing to recast the opinions at the later date (viability instead of the end of the first trimester), but I do not wish to do so if it would alienate any Justice who has expressed to me, either by writing or orally, that he is in general agreement, on the merits, with the circulated memorandum." [Id.]"

"The Court's decision in Roe effectively blocked the state legislative process. In the years between Roe and Casey, few state laws survived the Court's imposed value preference allowing the application of lethal force to be applied against the unborn. In Casey, the Court slightly loosened its grip, and brief waiting periods, informed decisionmaking, minor reporting requirements, and parental consent with judicial by-pass, were tolerated by the Court. It seemed, for one transient moment, that Justice Scalia may have been a bit too pessimistic when he wrote that "Roe's mandate for abortion-on-demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level." 112 S.Ct. at 2882."

"As one of the most restrictive abortion laws in the nation, the Texas law, passed in 1858, prohibited abortion unless it was necessary to save the life of the mother. Roe, unmarried and pregnant, challenged the law. She claimed it violated her constitutional right to privacy and the equal protection clause of the Fourteenth Amendment."

"Alternatively, the issues in Roe might have more to do with the question of who bears responsibility for addressing such momentous matters. Should questions about reproductive autonomy be left solely with individuals, or does the community (or the state) have a legitimate interest in such decisions? Is a woman’s relationship with the fetus a matter over which a community ought to have some say, perhaps because such issues raise questions about the conditions of membership in the community? As is obvious from the various opinions in Roe and our questions here, much of the controversy surrounding the case revolves around the role of the Supreme Court in the abortion controversy. The dissents by Justices White and Rehnquist castigate the majority for its “usurpation” of the legislative process and the powers of the people acting through their state governments. Clearly such criticisms, shared by many students of the Constitution, rest upon a particular understanding of the relationship between the democratic process and judicial protection of individual liberties. Do the opinions in Roe address this tension satisfactorily."

"Roe also nicely illustrates how individual liberties are tied to issues of constitutional structure and architecture. Justice White, for example, complained that “The upshot of the majority’s decision] is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. . . . “ Implicit in Justice White’s criticism is concern for the constitutional value of federalism. Roe essentially deprives the states of the ability to take part in a continuing public dialogue over the issues raised by abortion. Remember that prior to Roe, many states had already relaxed their tough anti-abortion laws. Would this trend have continued absent Roe?"

"Even if the Hyde Amendment is revoked, Ziegler and Bridges say that the provision has had a major influence on the anti-abortion movement. Bridges says that the amendment also provided “guidance” to states that wanted a straightforward way to curb abortion funding. “It’s been very impactful as a model of how funds can and should be spent on abortion care,” he said. Ziegler said that the amendment showed the anti-abortion movement early on that there were other ways to limit access to abortion without mounting a direct attack on Roe v. Wade. “For years, the anti-abortion movement’s strategy has been to kind of chip away at Roe and limit access, instead of the more direct attacks that we’ve seen lately. And the Hyde Amendment was the first successful attempt to do that, and it created a road map that really lasted for decades,” says Ziegler."

"WASHINGTON — When the Supreme Court heard arguments in December over the fate of the constitutional right to abortion, it was already clear that other rights, notably including same-sex marriage, could be at risk if the court overruled Roe v. Wade. The logic of that legal earthquake, Justice Sonia Sotomayor predicted, would produce a jurisprudential tsunami that could sweep away other precedents, too. The justices’ questions on the broader consequences of a decision eliminating the right to abortion were probing but abstract and conditional. The disclosure last Monday of a draft opinion that would overturn Roe, the 1973 decision that established a constitutional right to abortion, has made those questions urgent and concrete."

"At the argument, Justice Sotomayor sparred with Scott Stewart, Mississippi’s solicitor general, who was defending a state law banning most abortions after 15 weeks of pregnancy. “I’m not trying to argue that we should overturn those cases,” she said of the other decisions. “I just think you’re dissimilating when you say that any ruling here wouldn’t have an effect on those.” Mr. Stewart tried to distinguish the three other rulings from Roe, saying they were clearer, had given rise to more public reliance and did not “involve the purposeful termination of a human life.” Justice Sotomayor was unimpressed, saying all of the cases were grounded in the same kind of constitutional reasoning. “I’m not sure how your answer makes any sense,” she said."

"“Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception and marriage,” Justice Alito wrote, “but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’”"

"Surprisingly, little research has looked directly at the impact of Roe v Wade on births. The work that has been done has focused on the experience of those states that legalized abortion prior to Roe. However, the experience of these states may result in a misleading impression of the impact of Roe for several reasons. First, since abortion as already effectively legalized in a handful of states, the effect of Roe may have been less pronounced than the effect of initial legalization because many women were already traveling across state lines to receive abortions. Second, women in states where abortion as not legalized until the 1973 court decision may have been less likely to make use of abortion services, even if they were available, than women ins states that chose to legalize abortion earlier Third, many of the evaluations of legalization simply y compared birth rates before and after legalization, thereby conflating the effect of abortion legalization with ongoing declines in fertility around that time that may have been attributable to changes in the availability of contraception, shifts in social attitudes, improved labor market opportunities for women, and the like."

"Our findings indicate that states that legalized abortion prior to the 1973 Roe v Wade Supreme Court ruling experienced a 4% decline in fertility rates relative to other states. Following the Roe decision, fertility rates in these other states fell by a similar magnitude relative to fertility rates in states that had legalized abortion earlier. The relative reductions in births to teens, women more than 35 years of age, non-White women, and unmarried women were considerably larger. In addition, we found that travel between states to obtain an abortion was significant. Estimates obtained from comparisons between early repeal states and distant states (where travel to obtain an abortion as least likely) indicate that abortion legalization reduced births by 11%. These findings imply that a nationwide prohibition of abortion would have a considerably larger impact on births than would a repeal of Roe v Wade in which abortion remained legal in a handful of states."

"Figure 1 displays the difference in fertility rates between repeal states and states with no law change. The pattern shows that differences were roughly constant through 1970. A sharp drop of about 6% observed in 1971 remained through 1973, indicating that fertility rates fell in repeal states relative to states with no law change during this period. Through 1974/75, the difference narrowed, and beginning in 1976 there were few differences between the states. The relative decline in fertility rates in repeal states occurred in exactly the years in which abortion was legal only in repeal states. The partial rebound in 1974/75 may indicate that abortion access in states affected by Roe v Wade increased less quickly following this decision relative to the rapid introduction of abortion services in repeal states in 1970. (A corresponding figure for reform states vs states with no legal changes showed no obvious difference in fertility rates over time and for purposes of brevity is not displayed here.)"

"The results reported in Table 1 indicate that abortion legalization had an effect on fertility rates among all women. Overall, births in repeal states fell by 4% relative to states with no law change between 1971 and 1973. No statistically significant difference in births between the 2 sets of states was observed in 1974;75 or from 1976 to 1980. In addition, these results provide no evidence that modest abortion reforms reduced birth rates, since the estimated differences between fertility rates in reform states and states with no law change were small in magnitude and imply that, if anything, modest reforms were associated with increased birth rates. Table 1 also reports estimates from similar models for fertility among women in different population subgroups. Results indicate that abortion legalization reduced the relative fertility rates of teens and women 35 years of age and older by 12% and 8% respectively, but only by 2% for women between 20 and 34 years of age. Estimates show that births to non-White women in repeal states (vs states with no law change) fell by 12% just following repeal, more than 3 times the effect on White women’s fertility. Nonmarital births fell by almost twice the rate of marital births (5.5% -significant at the 10% level] vs 3.1%) in repeal states between 1971 and 1973 relative to states with no law change. All of these differences disappeared in the years following Roe v Wade."

"What do these results reveal about the potential effects on birth rates if Roe v Wade were ever to be overturned? The answer depends on the uniformity of the ban on abortions across states. If Roe were supplanted by a constitutional amendment outlawing abortion nationwide, we might expect an 11% rise in fertility rates based on the experience of the early 1970s. Applying this estimate to the current level of births (roughly 4 million per year), we estimate that a complete recriminalizaiton of abortion would result in perhaps as many as 44 000 additional births per year. On the other hand, the effect might be considerably smaller if a future Supreme Court decision returned to states the authority to determine the legality of abortion. The increase in births would then depend on the number of states in which abortion remained legal and their geographic distribution (currently, 13 state have laws on the books to recriminalize abortion if Roe v Wade is overturned). If the 5 repeal states were to maintain the legality of abortion, then our findings indicate that birth rates might still increase by perhaps 4.5% in the remaining states that recriminalize abortion. This would result in an increase in births on the order of 135 000 per year (4.5% of the roughly 3 million births in those states that recriminalize.) If more states were to keep abortion legal, the effect on births probably would be smaller since interstate travel to obtain abortions would increase. While our results provide a useful frame of reference, they have important limitations. Changes since 1973 in contraceptive technology, employment opportunities for women, social attitudes, and other factors have altered the environment in which fertility decisions are made. Moreover, a complete evaluation of the impact of overturning Roe v Wade would require consideration of other social, health, and demographic effects. Nevertheless, our results suggest that if Roe v Wade were overturned today, one of the effects would be a substantial rise in American fertility."

"[T]he presuppositions of Roe v. Wade are no less religious than those of the German Abortion Case. After all, the value of privacy is squarely rooted in the historical belief in man's spirituality, out of which grew a theory of personal autonomy."