Abortion In The United States

"The Supreme Court’s decision reflected the arguments of both parties, as well as many of those contained in the friend-of-the-court briefs filed on both sides. The Court rejected the state’s argument that the fetus was a “person” meriting the same protection under the Constitution as born persons. Nevertheless, the Court found that the state did have an interest in protecting “the potentiality of human life.” Similarly, the Court endeavored to strike a balance in defining the scope of the right to abortion it recognized. The majority reasoned that the right to privacy protected not only the use of contraception, but also a woman’s decision whether to bear a child. Yet, the decision emphasized, this right was not absolute."

"Two years is an unusually long time for a case to remain on the Supreme Court’s docket. As we have already discussed, these were a crucial two years for the meaning of abortion, and it is clear that Roe arrived at the Court’s doorstep in one world and emerged, 27 months later, into another. In October 1970, when the case reached the Supreme Court, New York’s repeal of its abortion law appeared to many people to suggest an inexorable march toward reform. Two years later— during which time 402,100 women, two-thirds of them from out of state, had obtained legal abortions in New York—the Legislature’s attempted repeal of the repeal failed only because of Governor Rockefeller’s veto. In the November 1972 elections, voters in Michigan and North Dakota had defeated proposals to liberalize those states’ abortion laws—and, as we have seen, abortion was one of a constellation of factors playing a role in McGovern’s landslide defeat. In early January 1973, the New York Legislature reconvened in the full expectation of a new effort to recriminalize abortion."

"In ruling on this case below, the Court of Appeals for the Third Circuit first observed that "this appeal does not directly implicate Roe; this case involves the regulation of abortions rather than their outright prohibition." 947 F.2d 682, 687 (1991)."

"As we now turn to the arguments that were formally presented to the Supreme Court in legal briefs, an intriguing question arises: What did the justices perceive of the turmoil over abortion outside their own quiet precincts? Clearly, they knew that they had on their hands “a most sensitive, emotional, and controversial” issue, as Justice Harry A. Blackmun described it when he announced Roe and Doe from the bench (see page 245). Further, as Justice Blackmun observed, the Court knew that “the controversy will continue.” The justices had not been hermetically sealed off in their chambers during the long months in which the cases were pending. They lived in the world as husbands and fathers. They had set the cases for a second argument, a sign that they regarded the cases as something other than routine. It does appear, however, that the justices in the 7-to-2 majority were responding to a consensus among the elites, particularly of the legal and medical professions, that change was appropriate and necessary. They appreciated that the decision would provoke controversy, but decided the case on grounds that they had reason to suppose would find broad public acceptance. Non-legal material in Justice Blackmun’s file included the Gallup Poll from the summer of 1972, reflecting substantial majorities supporting decriminalization, even among Catholics [see page 207.] The file also contained a series of articles from the Atlanta Journal-Constitution, passed on to Justice Blackmun by Justice Potter Stewart. In these articles, prominently displayed in the newspaper during April 1972, an Atlanta physician, Robert A. Hatcher, M.D. asserted that Georgia’s ALI-type reform law had not gone far enough and was not making enough of a difference."

"The Court’s lengthy published opinion in Roe is widely available on the Internet. But Blackmun’s brief statement exists only as typescript in the justice’s files at the Library of Congress. A personal judicial pronouncement of this kind shows how the author of an opinion wants the world to understand what the Court has done."

"Roe’s holding and its reasoning reflected dominant understandings about abortion of the time. In striking down laws that banned abortion or allowed it in only a very few circumstances, Roe decriminalized abortion along the lines that the feminists and others advocated. But the Court gave only blurry and indistinct expression to the values feminists argued were at stake in protecting women’s choices. Something similar might be said of the justification the Court offered for abortion restrictions. The Court gave constitutional approval to a government interest in regulating abortion to protect potential life, but only barely explained or justified this interest, leaving unstated how this regulatory interest related to the old statutes criminalizing abortion or the claims of the contemporary anti- abortion movement."

"A holding that the fetus is a constitutional person would have the effect of overruling Roe v. Wade and its progeny. The legal consequences would not, however, be as far-reaching as Roe itself, which had the effect of declaring century-old criminal abortion statutes invalid, cutting deeply into assumed rights of husbands and parents, and creating the possibility of required, at least via legislation, public financing of abortion. On the other hand, the consequence of the Roe decision to the aborted fetus is severe and final. This result, of course, is of no great concern to the rule of law, unless the unborn does meet the criteria of constitutional personhood and the Court either because of poor reasoning or because of some unstated reason arbitrarily denied the unborn the constitutional protections due it or unless the fourteenth amendment is inadequate as a legal device to protect the fundamental rights of all members of the human family, the avowed purpose of the drafters of the fourteenth amendment. In either case, there is reason for concern, for the legal order has failed."

"In brief, there is considerable evidence which suggests that the unborn is and should be considered a constitutional person, thus entitled to fourteenth amendment protections. If this be true, both the Roe holding as well as a legislative solution permitting abortions for reasons other than a threat to the life of the mother would have the effect of violating the unborn's right to due process of law. It would thus follow that both the judicial solution set forth in Roe and the legislative solution are constitutionally unsound."

"During the years before January 22, 1973, the day on which the Supreme Court decided Roe v. Wade and proclaimed that the Constitution protected a woman’s right to decide whether to bring a pregnancy to term, Americans conducted a vigorous debate about abortion’s morality and meaning. It is obvious today that the Supreme Court’s decision did not end this debate. Neither, of course, did the Court start it—although public discussion of Roe v. Wade implies not infrequently that it did."

"Further support for the idea that nineteenth century America was concerned with preserving the life of the fetus is ironically found in Botsford v. Union Pacific Railroad, the very case which the Supreme Court cited in Roe as its landmark right to privacy case. Although the Botsford Court acknowledged a common law right to privacy which precluded a court without statutory authority from ordering a medical examination of a female plaintiff in a personal injury case, it pointed out that one of two exceptions to this common law right of privacy was the “writ de ventre inspiciendo”. With this writ, the state was empowered to examine whether a woman convicted of a capital crime and sentenced to be executed was quick with child, thus overcoming her right to privacy. If she was, execution would be stayed until after the birth of the child. Here, the common law not only acknowledged a right to life in the fetus but also recognized precedence of this right over the common law right of privacy. In light of the above it seems hard to suggest-as did the majority in Roe-that the concerns of the nineteenth century were exclusively about the pregnant woman and not the unborn, and difficult to argue-as did the majority in Roe-that the purpose of nineteenth century abortion legislation was in protecting "the woman's health rather than in preserving the embryo and fetus." Indeed, the preservation of the fetus appears to have been a major purpose. Moreover, even those courts which have indicated that preservation of maternal health was a purpose for enacting the anti-abortion statute did so against a background in which abortion of at least a quickened fetus was considered a common law crime. If Justice Blackmun meant that an unquickened fetus may not have enjoyed protection under the common law, he should have said that. The correlation, however, would be that the quickened fetus did enjoy criminal law protection, a fact which argues against the Court's conclusion that constitutional personhood has no prenatal application."

"As stated by the Supreme Court and conceded by all parties, no prior case had been found in which the United States Supreme Court had addressed itself to the question of whether the term "person" as used in the fourteenth amendment has prenatal application. Thus, for all practical purposes, the question was being presented for the first time. In absence of precedent, the only legal materials with which the Court had to work were the constitutional provisions themselves."

"In oral argument before the Roe court as well as in the Roe majority opinion, the Supreme Court seemed impressed by the historical fact that no case had been found in which the pregnant woman was prosecuted for allowing an abortion to be performed on herself and by the fact that the punishment for conviction under the abortion statutes was much milder than the punishment for homicide. The Court found this to suggest that the fetus was not considered a person, as was the victim in a homicide. Such a conclusion is simply not warranted since there are other valid explanations. For example, if a 12-year-old intentionally kills a born individual in Illinois, no crime has been committed since the child is not legally responsible. No one could suggest that the victim of the act was not a person because the killer was not or could not be prosecuted. If a 15-year-old intentionally kills another, but is proceeded against under the Juvenile Court Act, one could hardly argue that the victim is not a person. The explanation for this legal phenomenon is that there are special circumstances surrounding the commitment of an act, circumstances which the lawmaker may properly and reasonably consider in formulating means to protect state interests and values-in the examples given, the age and assumed immaturity of the actor; in the abortion situation, the assumed stresses on the woman burdened by an unwanted pregnancy. These factors may justify and explain different treatment of the woman or even the physician in the abortion context, just as they justify or explain different treatment of the child of tender years or even of one who kills another under severe provocation. Although in modem jurisprudence constitutional history alone has not been allowed to dispose of every question of constitutional interpretation, this brief historical background casts doubt on the soundness of two of the Supreme Court's critical conclusions in Roe v. Wade: (1) that abortion was not considered a crime by most of those who sup- ported the fourteenth amendment in 1868;' and (2) that the purpose of the anti-abortion laws was solely to protect the woman's health and not the life of the fetus. In addition, it casts doubt on the Court's holding that the concept of "person" does not embrace the unborn. The effect of this doubt surely is to augment the obligations of the Supreme Court to account for a requirement of birth as a condition precedent for membership in the class of constitutional persons."

"By declaring unconstitutional laws that criminalized abortion in states across the country, the decision in Roe v. Wade also swept away much of the collective memory of what had gone before. Records of court cases that had taken years to build were now rendered irrelevant, and transcripts of testimony once painstakingly compiled were carelessly misfiled or discarded. And beyond the loss of paper records, the Supreme Court decision itself proved a distorting lens through which to look back on what had preceded it."

"The years following the Roe v. Wade decision have been very difficult, in a number of respects, but my life was never easy."

"As soon as Sarah Weddington had my name on the affidavit, I had served my purpose. She called me back all right-four months after my child was born. “Sarah,” I said. “I had a baby “four months ago”. Where were you then? I didn’t hear from Sarah again. She had said everything was going to be okay and that she would be there, but she wasn’t. This lack of relationship was not exactly a disappointment to me. Though Sarah had passed herself off as my friend, in reality she used me. When I sat down with her and discussed the possibility of getting an abortion, Sarah knew where I could get one, because she had gotten one herself three years before. When I asked her if the court’s decision would come in time for me to get an abortion, she gave an evasive answer. And she did so with the full understanding that it would come way too late to help me. If Sarah Weddington was so interested in abortion, why didn’t she tell me where she got hers? Because I was of no use to her unless I was pregnant. She needed a pregnant woman who would sign the affidavit. If she told me how and where to get an abortion (or introduced me to people who knew, since, as a lawyer, she might have to cover herself, she wouldn’t have a plaintiff. And without a plaintiff, somebody else might get their case before the Supreme Court first. That’s why Sarah actually tried to talk me out of getting an illegal abortion in Mexico, as she had done."

"One should not lightly conclude from the Supreme Court's holding in Roe that the concept of "person" has no prenatal significance, that the unborn was not, after all, entitled to a "day in court." Such a conclusion assumes the outcome. Furthermore, it would be sound only if one is willing to assume that the adversary process is not essential to sound judicial decision-making-an assumption hardly compatible with the common law tradition. To a great degree, judicial decisions are made legitimately only if there is an opportunity for vigorous advocacy, an opportunity not allowed the fetus in the cases thus far in which his right to personhood or, expressed differently, its right to even have rights, has been adjudicated."

"In Roe, the Court observed that certain States recognized the right of the father to participate in the abortion decision in certain circumstances. Because neither Roe nor Doe involved the assertion of any paternal right, the Court expressly stated that the case did not disturb the validity of regulations that protected such a right. Roe v. Wade, 410 U.S., at 165, n. 67, 93 S.Ct., at 732, n. 67. But three years later, in Danforth, the Court extended its abortion jurisprudence and held that a State could not require that a woman obtain the consent of her spouse before proceeding with an abortion. Planned Parenthood of Central Mo. v. Danforth, 428 U.S., at 69-71, 96 S.Ct., at 2841-2842."

"The joint opinion, following its newly-minted variation on stare decisis, retains the outer shell of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), but beats a wholesale retreat from the substance of that case. We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases. We would adopt the approach of the plurality in Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), and uphold the challenged provisions of the Pennsylvania statute in their entirety."

"In 1973, against a background of increasing litigation surrounding contraception and abortion, the Supreme Court granted certiorari in the companion cases of Roe v. Wade and Doe v. Bolton. Jane Roe, who we know today as Norma McCorvey, challenged a Texas abortion law that prohibited abortions in all cases except to save a woman’s life. Unlike Roe, the statute at issue in Doe v. Bolton was based on the Model Penal Code of the ALI. Doe’s lawyers, acting on her behalf as well as several doctors, nurses, clergy, and social workers, alleged that the Georgia law was an unconstitutional undue restriction of personal and marital privacy. In a landmark 7 to 2 decision, the Supreme Court held that the “right of privacy . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.” The Court also recognized that the decision of whether to have a child is unique to every woman and her life circumstances, and therefore must be a personal, individual decision. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation. In invalidating the Texas and Georgia abortion laws, the Court effectively invalidated the abortion laws of all but four states. However, even in recognizing the fundamental right to obtain an abortion, the Court also held that this right was not absolute. To this end, the Court took a trimester approach toward to regulation of abortion, holding: For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. The right to privacy so central in Roe was well-recognized prior to that case, and has been repeatedly affirmed since Roe. As the Roe Court itself stated, “In a line of decisions . . . going back perhaps as far as [1891], the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.” Indeed, prior to Roe, the Court explicitly recognized the fundamental nature of a woman’s right to control her reproduction. The Court has also recognized the intensely personal nature of the decision of whether to have children. In Eisenstadt v. Baird, affirming an unmarried individual’s fundamental right to obtain contraception, the Court stated “if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." A woman’s right to control her own body, articulated in Griswold, Eisenstadt, Roe, and Doe remains just as fundamental today. The Supreme Court has repeatedly emphasized its continued viability: “Roe is clearly in no jeopardy, since subsequent constitutional developments have neither disturbed, nor do they threaten to diminish, the scope of recognized protection accorded to the liberty relating to intimate relationships, the family, and decisions about whether or not to beget or bear a child.” Moreover, the Court recently reaffirmed the fundamental right codified in Roe, and recognized how central reproductive freedom is to the lives of women. In Lawrence v. Texas, discussing the dimensions of the privacy right, the Court stated, “Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person.”"

"Although the Supreme Court in Roe expressed concern about its ability to "resolve the difficult question of when life begins," the initial constitutional dilemma the Court faced was not the factual question of when life begins but rather the legal question of the scope and meaning of the concept of "person" in the fourteenth amendment, ie., whether the concept means living humans, individual humans, born humans, rational humans, wanted humans, humans capable of "meaningful life," any combination thereof or something else. In other words, what does the term "person" as used in the fourteenth amendment mean? What values was it designed to protect? If, for example, it means all individual, living human beings, which is this writer's position, the factual issue whether the fetus is an individual, living human being is presented for decision. If "life" in the biological sense is irrelevant to membership in the class of constitutional persons or if birth is an essential criterion to membership in this constitutional class, the Court in Roe was correct, for then it need not "speculate as to the answer [of when life begins]." On the other hand, if the real problem facing the Court was a "proof problem," ie., how to prove that a fetus has "life," simple judicial restraint should require the Court not to exclude the fetus from constitutional protection as a matter of law by creating a birth requirement as it did in Roe but rather to leave the ultimate question of constitutional personhood in the fetus unanswered, remand the case and ask for more "proof" on the factual question."

"[T]he fact that neither women nor fetuses figured very prominently in Roe v. Wade makes it plausible to assume that feminist voices and right-to-life voices were simply missing, both from the arguments presented to the Supreme Court and from the public conversation. In fact, feminist and right-to-life positions were passionately expressed in public debate and in friend-of-the-court briefs filed in Roe. Yet, the Supreme Court issued a decision that appeared mainly responsive to the arguments of the medical community. In page after page, Roe reasoned from medical science, and in its main holding affirmed the autonomy of doctors to act in what they believed to be the best interest of their patients. The organized medical profession, which had spurred the criminalization of abortion a century earlier, had come only lately to view the hundreds of thousands of illegal abortions performed every year as a public health problem of urgent dimensions."

"If Roe conformed to then-dominant modes of reasoning about abortion, at a time when the Gallup poll reported the belief of two-thirds of Americans that the abortion decision should be left to a woman and her doctor, how are we to understand the outcry against the decision that steadily mounted over the 1970s? Our review of the debate before Roe reveals several factors contributing to the conflict over abortion that were in play well before the Court issued its decision in January 1973, and identifies still other developments that intensified the conflict much later in the decade."

"Cf. FRANK, supra note 164, at 121 (invoking “the great abortion controversy, which mobilizes millions but which cannot be put to rest without a supreme Court decision overturning Roe v. Wade”)."

"In the documents for Jane Roe’s case, Coffee also included a seven-point statement of facts. Facts one through five were specific to McCorvey’ssituation. They stated that Roe was an unmarried pregnant woman who, due to economic hardship and the social stigma of having an illegitimate child,wanted to end her pregnant with an abortion performed by a licensed physician in safe circumstances. Because her life was not threatened by her pregnancy, she could not secure a legal abortion under Texas law and did not have the funds to travel to a location outside of the state where she could obtain a safe abortion. facts six and seven were more general: 6. An abortion performed by a competent, licensed physician under hospital or clinic conditions is a safe and simple procedure whish presents less danger to the pregnant woman than ordinary childbirth. 7. An abortion performed outside of the clinical setting by unqualified personnel is extremely dangerous and often results in death, maiming, sterility, r serious infection."

"As the Court wrote in Casey, “overruling Roe’s central holding would not only reach an unjustifiable result under principles of stare decisis, but would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.” 505 U. S., at 865. “[T]he very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable.” Id., at 854. See also id., at 867 (“[T]o overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question.”). Though today’s opinion does not go so far as to discard Roe or Casey, the Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of “the rule of law” and the “principles of stare decisis.” Congress imposed a ban despite our clear prior holdings that the State cannot proscribe an abortion procedure when its use is necessary to protect a woman’s health. See supra, at 7, n. 4. Although Congress’ findings could not withstand the crucible of trial, the Court defers to the legislative override of our Constitution-based rulings. See supra, at 7–9. A decision so at odds with our jurisprudence should not have staying power. In sum, the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational. The Court’s defense of the statute provides no saving explanation. In candor, the Act, and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court—and with increasing comprehension of its centrality to women’s lives. See supra, at 3, n. 2; supra, at 7, n. 4. When “a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue.” Stenberg, 530 U. S., at 952 (Ginsburg, J., concurring) (quoting Hope Clinic v. Ryan, 195 F. 3d 857, 881 (CA7 1999) (Posner, C. J., dissenting))."

"(“[V]irtually all of the abortion cases reaching the Supreme Court since Roe v. Wade, 410 U. S. 113 (1973), have involved facial attacks on state statutes, and the Court, whether accepting or rejecting the challenges on the merits, has typically accepted this framing of the question presented.”). Accord Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1356 (2000); Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 271–276 (1994)."

"In spite of Mr. Justice Powell's suggestion in Maher that "[o]ur conclusion signals no retreat from Roe or the cases applying it, "one wonders if those words of reassurance are to be taken with the same degree of seriousness as the assurance of Mr. Justice Blackmun in Roe v. Wade that the Supreme Court was not reviving substantive due process.'"

"Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health. I dissent from the Court’s disposition. Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman’s health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman’s reproductive choices."

"In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 844 (1992), the Court declared that “[l]iberty finds no refuge in a jurisprudence of doubt.” There was, the Court said, an “imperative” need to dispel doubt as to “the meaning and reach” of the Court’s 7-to-2 judgment, rendered nearly two decades earlier in Roe v. Wade, 410 U. S. 113 (1973). 505 U. S., at 845. Responsive to that need, the Court endeavored to provide secure guidance to “[s]tate and federal courts as well as legislatures throughout the Union,” by defining “the rights of the woman and the legitimate authority of the State respecting the termination of pregnancies by abortion procedures.” Ibid. Taking care to speak plainly, the Casey Court restated and reaffirmed Roe’s essential holding. 505 U. S., at 845–846. First, the Court addressed the type of abortion regulation permissible prior to fetal viability. It recognized “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State.” Id., at 846. Second, the Court acknowledged “the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health.” Ibid. (emphasis added). Third, the Court confirmed that “the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.” Ibid. (emphasis added). In reaffirming Roe, the Casey Court described the centrality of “the decision whether to bear . . . a child,” Eisenstadt v. Baird, 405 U. S. 438, 453 (1972), to a woman’s “dignity and autonomy,” her “personhood” and “destiny,” her “conception of . . . her place in society.” 505 U. S., at 851–852. Of signal importance here, the Casey Court stated with unmistakable clarity that state regulation of access to abortion procedures, even after viability, must protect “the health of the woman.” Id., at 846."

"The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label “abortion doctor.” Ante, at 14, 24, 25, 31, 33. A fetus is described as an “unborn child,” and as a “baby,” ante, at 3, 8; second-trimester, previability abortions are referred to as “late-term,” ante, at 26; and the reasoned medical judgments of highly trained doctors are dismissed as “preferences” motivated by “mere convenience,” ante, at 3, 37. Instead of the heightened scrutiny we have previously applied, the Court determines that a “rational” ground is enough to uphold the Act, ante, at 28, 37. And, most troubling, Casey’s principles, confirming the continuing vitality of “the essential holding of Roe,” are merely “assume[d]” for the moment, ante, at 15, 31, rather than “retained” or “reaffirmed,” Casey, 505 U. S., at 846."

"[T]he dominant democratic theme of Maher v. Roe, Poelker v. Doe' and Beal v. Doe, the bitterness expressed by the dissenters (all previous members of the Roe majority), the compulsion of the author of Roe to dissent,' and the continuing efforts to change Roe with a constitutional amendment cause one to wonder if the majority in Colauti would not have preferred to have followed the spirit of the dissenting opinions in Roe and left the entire abortion problem in the hands of the state legislatures. This approach, at least on the surface, would be consistent with recent suggestions that the judiciary return to the fourteenth amendment its intended "procedural" as op- posed to "substantive" significance, defer to the "spirit of our democracy" in matters not controlled by the fourteenth amendment as originally intended, and not "govern" under the guise of interpreting the Constitution."

"Casey involved a challenge to Roe v. Wade, 410 U. S. 113 (1973). The opinion contains this summary: “It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.” 505 U. S., at 846 (opinion of the Court)."

"Justice Douglas had initially relied on fundamental rights to strike down the vagrancy ordinance in Papachristou. Justice Blackmun had initially used vagueness to avoid relying on fundamental rights to strike down the law in Roe. But ultimately, the two cases switched places. Roe fessed up to its substantive right of privacy, while Papachristou’s reliance on vagueness masked the connections between Papachristou and the burgeoning fundamental rights-particularly privacy and sexual autonomy rights-that the Court was wrestling with in Roe. One wonders how constitutional law would have looked if the early drafts of roe and Papachritou had been published, if the reasoning of the two cases had not switched places. Would we have elaborated a substantive due process in which people had greater rights in public than in private? Would low-level criminal regulation of mobility have actually disappeared while legislatures reenacted abortion regulations sooner and with even greater teeth? Even further, one wonders how constitutional law would have looked if both Papachritous and Roe had publicly committed to a new substantive due process of public and private, of lifestyle protection writ large, of the broader and more varied understandings of liberty represented in Brennan’s memo to Douglas."

"To implement its holding, Casey rejected both Roe’s rigid trimester framework and the interpretation of Roe that considered all previability regulations of abortion unwarranted. 505 U. S., at 875–876, 878 (plurality opinion). On this point Casey overruled the holdings in two cases because they undervalued the State’s interest in potential life. See id., at 881–883 (joint opinion) (overruling Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747 (1986) and Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (1983)). We assume the following principles for the purposes of this opinion. Before viability, a State “may not prohibit any woman from making the ultimate decision to terminate her pregnancy.” 505 U. S., at 879 (plurality opinion). It also may not impose upon this right an undue burden, which exists if a regulation’s “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Id., at 878. On the other hand, “[r]egulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose.” Id., at 877. Casey, in short, struck a balance. The balance was central to its holding. We now apply its standard to the cases at bar."

"As Brennan predicted, he and Douglas were not alone in seeing connections between Roe and Papachristou. The constitutional understanding that roe represented would be potentially deeper, more expansive, and more secure with related fundamental rights protected in Papachristou. That security appealed to some Justices and repelled others. Skeptics of this newfound judicial penchant for creating rights saw the connections as threatening rather than auspicious. In particular, Justice Potter Stewart thought Douglas’s opinion off the mark in its constitutional interpretation. Stewart had dissented in Griswold, galled by the Justices' apparent fishing expedition to find some justification for its decision. By 1971, however, Stewart seems to have resigned himself to the growing consensus to base privacy rights to reproduction, contraception, and abortion on a new form of substantive due process. He joined the opinions in Eisenstadt and Roe."

"[U]nder Roe, even a viable fetus is not entitled to constitutional protection in its own right: it must depend on what the state may consider a compelling interest. If the state decides not to protect the “potentiality of life,,”a viable fetus would not enjoy any protection in the abortion context. The only conflicting interests, as seen by the majority, are those of the woman and of the State. The rights of the fetus (and, possibly, of the father) have been completely ignored."

"With Douglas, Brennan, and Stewart provoking us to view Papachristou and Roe together-whether for good or ill-implications beyond those for fundamental-rights doctrine come into focus. In particular, placing the two cases in conversation provides additional fodder for Stuntz’s analysis of the relative absence of constitutional criminal law. Because we usually consider Griswold, Loving, Eisenstadt, Roe, and their ilk as substantive due process or fundamental rights (or even equal protection) cases, we fail to see them as criminal law cases. But they were. They were all cases in which the Court was placing substantive limits on the extent to which the criminal law could be used as a mechanism of morals regulation."

"I join the Court’s opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution. See Casey, supra, at 979 (Scalia, J., concurring in judgment in part and dissenting in part); Stenberg v. Carhart, 530 U. S. 914, 980–983 (2000) (Thomas, J., dissenting). I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it. See Cutter v. Wilkinson, 544 U. S. 709, 727, n. 2 (2005) (Thomas, J., concurring)."

"A legislative solution to the abortion problem is necessarily based upon the premise that the Constitution is neutral about abortion and does not impose a solution, one way or another. In this article, the existence of such a premise is denied. More specifically, this author concludes (1) that the Constitution is not neutral about abortion and does indeed impose a solution on the abortion question; (2) that, as Justice Blackmun conceded in Roe, if the fetus is a person under the fourteenth amendment, "the [plaintiffs] case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [fourteenth] [a]mendment;' and (3) that the concept of "person" in the fifth and fourteenth amendments includes unborn human life. It thus follows that the solution to the abortion problem set forth in Roe as well as that suggested by Justices White and Rehnquist in dissent' are constitutionally unsound, both solutions permitting the violation of the fetus's constitutionally protected right to life without due process of law. More positively, there is substantial historical support for the notion that the due process clause was designed to guarantee access of all persons to the courts for the protection of fundamental rights, that those fundamental rights refer to "life, liberty and property," and that the unborn human being, as an individual living human being, is a person under the Constitution and is entitled to access to the courts to protect his fundamental right to life."

"In Roe, Blackmun’s initial impulse was also avoidance. Although the conference had voted to invalidate the abortion statute on privacy grounds, Blackmun’s early draft opinion relied not on any substantive right, but on-wait for it-void-for-vagueness doctrine. Unlike feminists’ claims that abortion laws violated women’s fundamental rights, doctors’ claims against abortion laws often sounded in void-for-vagueness. Under laws prohibiting all abortion but those necessary for the “life” or “health” of the mother, doctors argued that they chanced a felony every time they guessed that a particular abortion came within such exceptions. Blackmun, the former resident counsel for the Mayo Clinic, was sympathetic to these professional concerns. Moreover, he hoped that void-for-vagueness would help him to avoid the more controversial issue of when life began that he feared a fundamental rights approach would ultimately require. Brennan and Douglas found that approach unsatisfying. In response to Blackmun’s draft, they urged Blackmun to reach “the core issue” of privacy rather than rely on vagueness. These interchanges between Justices in Roe offer further support for the conclusion Amsterdam had offered a decade before-that vagueness was at least in part an avoidance mechanism, denying and shielding the Justice’s substantive commitments. Afraid to embrace fully the implications of Griswold and wade too deeply into the abortion issue, Blackmun thought he could escape the problem by using void-for-vagueness."

"Brennan’s memo shows that he saw connections between Douglas’s fundamental rights-based “Papacristou” opinion and Blackmun’s forthcoming Roe opinion, which was to be based on the same constitutional theory. He was worried that other, more conservative Justices would see the same connections and that they would hesitate to sign onto Roe for fear of broadening substantive due process to include everything in Douglas’s opinion as well. That Brennan was preoccupied with Roe in the winter of 1971 is hardly surprising. Think of the historical context. Behind the Court was Griswold v. Connecticut-that wide-ranging survey of constitutional provisions that the Justices hopes might justify judicial protection of fundamental rights. Griswold is the constitutional law professor’s dream The Court struck down Connecticut’s law prohibiting the use of contraceptives by married couples with numerous Justices in multiple opinions transparently struggling to find protection or rights nowhere listed in the Constitution. Famously, Douglas constructed a majority opinion in which the “penumbras” of the Bill o Rights created a right to privacy that thwarted the Connecticut law. The Court was clearly still wrangling with such issues six years later, when it faced both Eisenstadt v. Baird and Roe v. Wade in 1971. In Eisenstadt, Brennan authored a somewhat strained plurality opinion holding that equal protection required that individuals have the same rights to contraceptives as married couples. He thereby avoided expanding any of the substantive theories Griswold had propounded."

"What might seem more surprising than Brennan’s general preoccupation with Roe in the winter of 1971 was that he connected Roe to Papchristou. Thought about as privacy, sexual freedom, or reproduction cases, Roe, Eisenstadt, and Griswold has little in common with Papachristou. True, the Jacksonville police were using the city’s vagrancy ordinance to regulate the sexuality of the interracial double-daters. But sexuality was not the central issue in Papachristou. Moreover, the acts that led to the vagrancy arrests, more so even than abortions, could hardly be considered “private” For the most part, in fact, not only did vagrancy laws regulate people in public spaces, they usually regulated men in public spaces. The abortion cases, by contrast, largely involved the choices of women in private. Going up a level of generality, however, the various opinions and memos in the archives make clear the questions preoccupying much of the Court were the same in the two sets of cases: what were fundamental rights, and where in the Constitution, if anywhere, the Justices might find protection for them. In particular, an individual’s right to choose his or her own “lifestyle” was at least as affected by choices about reproduction as by choices about where to live, how to dissent, and whether to shave one’s facial hair. Within that context, it is less surprising that Brennan would connect Papachristou with Roe."

"In Roe v. Wade, the court should have steered away from a sweeping legalization of abortion, Ginsberg argued. Instead, a ruling should have taken the narrower approach of deeming unconstitutional the Texas law that spawned the case, which only allowed abortions deemed life saving for a woman, she said. Doing so, Ginsberg said, would have spurred a gradual, state-by-state loosening of abortion restrictions and contributed to the democratic process. Instead, the court "covered the waterfront" with a decision that — by including the need to consult with a physician — is not really about a woman's right to choose, Ginsburg argued. "It's about a doctor's freedom to practice his profession as he thinks best," Ginsburg said. "It wasn't woman-centered. It was physician-centered." Roe v. Wade "seemed to stop momentum on the side of change," Ginsburg told the crowd, saying that abortion-related cases now focus on "restrictions to access, not expanding the rights of women.""

"Ginsburg, 80, said another case, Struck v. Secretary of Defense, would have been her choice as the first reproductive freedom case heard by the nation's high court. In that case, U.S. Air Force Cpt. Susan Struck became pregnant in 1970 while serving in Vietnam. Ginsburg, who at the time represented Struck as a lawyer with the American Civil Liberties Union, said the woman had two choices: leave the military or have a legal abortion on base. Struck told her commanding officer that she arranged to have the child adopted upon birth, but she was still forced to leave Vietnam and was sent back to the U.S., Ginsburg said. Ginsburg prepared the case for the Supreme Court in 1971, but it was never heard after the Air Force changed its policy on pregnancies and allowed Struck to have the child and remain in the service. "The idea was: 'Government, stay out of this,' " Ginsburg said. "I wish that would have been the first case. The court would have better understood this is a question of a woman's choice.""

"Ever since Anthony Amsterdam published his path breaking note on the void-for-vagueness doctrine in 1960, legal scholars have speculated about the Supreme Court’s use of the doctrine. On the surface, under void-for-vagueness, judges condemn as violations of the Due Process Clause of the Fifth of Fourteenth Amendment those laws they deem unduly vague or ambiguous. As Amsterdam described it, such vagueness in constitutionally problematic for two reasons. First, vagueness fails to give fair notice to the public as to what constitutes illegal conduct. Second, vagueness fails to guide the discretion of executive officers and judges it accordingly encouraged arbitrary and potentially discriminatory arrests and criminal convictions. Vagueness thus poses problems for the principle of legality and the rule of law itself."

"[I]n thinking about how to resolve Roe, Brennan was then in the process of constructing a systematic framework for the ”fundamental freedoms” that he deemed within the meaning of “liberty.” He viewed the first of three groups of such freedoms as including “freedom from bodily restraint or inspection, freedom to do with one’s body as one likes, and freedom to care for one’s health and person.” For these, he cited Terry v. Ohio, Meyer v. Nebraska, and Jacobson v. Massachusetts, among others. The second group included “freedom of choice in the basic decisions of life, such as marriage, divorce, procreation, contraception, and the education and upbringing of children.” Here he relied on Living v. Virginia, Boddie v. Connecticut, Skinner v. Oklahoma, Eisenstadt v. Baird, Griswold v. Connecticut, and others. The third group included “autonomous control over the development and expression of one’s intellect and personality.” The precedent for this last group was thinner. Brennan cited only Stanley v. Georgia (protecting the possession of obscene materials in the home) and Justice Brandeis’s reference in Olmstead v. United States to a “right to be let alone.” Brennan thought that the decision to have an abortion “obviously fits directly within each of the categories of fundamental freedoms,” and therefore “should be held to involve a basic individual right.” Brennan described this framework in a memo he wrote to Justice Douglas about Roe on December 30, 1971."

"I turn, finally, to the plight of the woman who lacks resources to finance privately implementation of her personal choice to terminate her pregnancy. The hostile reaction to Roe has trained largely on her. Some observers speculated that the seven-two judgment in Roe was motivated at least in part by pragmatic considerations-population control concerns, the specter of coat hanger abortions, and concerns about unwanted children born to impoverished women. I recalled earlier the view that the demand for open access to abortions had as its real purpose suppressing minorities. In a set of 1977 decisions, however, the Court upheld state denial of medical expense reimbursement or hospital facilities for abortions sought by indigent women. Moreover, in a 1980 decision, Harris v. McRae,70 the Court found no constitutional infirmity in the Hyde Amendment, which excluded even medically necessary abortions from Medicaid coverage. After these decisions, the Court was accused of sensitivity only to the Justices' own social milieu--"of creating a middle-class right to abortion." The argument for constitutionally mandated public assistance to effectuate the poor woman's choice ran along these lines. Accepting that our Constitution's Bill of Rights places restraints, not affirmative obligations, on government, counsel for the impoverished women stressed that childbirth was publicly subsidized. As long as the government paid for childbirth, the argument proceeded, public funding could not be denied for abortion, often a safer and always a far less expensive course, short and long run. By paying for childbirth but not abortion, the complainants maintained, government increased spending and intruded upon or steered a choice Roe had ranked as a woman's "fundamental" right. The Court responded that, like other individual rights secured by the Constitution, the right to abortion is indeed a negative right. Government could not intervene by blocking a woman's utilization of her own resources to effectuate her decision. It could not "'impose its will by force of law.'" But Roe did not demand government neutrality, the Court reasoned; it left room for substantive government control to this extent: Action "deemed in the public interest ' -in this instance, protection of the potential life of the fetus could be promoted by encouraging childbirth in preference to abortion."

"On several occasions since Roe the Court has confronted legislative responses to the decision. With the notable exception of the public funding cases, the Court typically has applied Roe to overturn or limit efforts to impede access to abortion. I will not survey in the brief compass of this Essay the Court's series of opinions addressing: regulation of the abortion decision making process; specifications regarding personnel, facilities, and medical procedures; and parental notification and consent requirements in the case of minors. Instead, I will simply highlight the Court's statement last year reaffirming Roe's "basic principle that a woman has a fundamental right to make the highly personal choice whether or not to terminate her pregnancy." In City of Akron v. Akron Center for Reproductive Health, Inc.,65 the Court acknowledged arguments it continues to hear that Roe "erred in interpreting the Constitution." Nonetheless, the Court declared it would adhere to Roe because "stare decisis, while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law.""

"Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the Court. The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict. The public funding of abortion decisions appear incongruous following so soon after the intrepid 1973 rulings. The Court did not adequately explain why the "fundamental" choice principle and trimester approach embraced in Roe did not bar the sovereign, at least at the previability stage of pregnancy, from taking sides. Overall, the Court's Roe position is weakened, I believe, by the opinion's concentration on a medically approved autonomy idea, to the exclusion of a constitutionally based sex-equality perspective. I understand the view that for political reasons the reproductive autonomy controversy should be isolated from the general debate on equal rights, responsibilities, and opportunities for women and men. I expect, however, that organized and determined opposing efforts to inform and persuade the public on the abortion issue will continue through the 1980s. In that process there will be opportunities for elaborating in public forums the equal-regard conception of women's claims to reproductive choice uncoerced and unsteered by government."

"The list of weaknesses of the ruling in “Roe” may be continued almost endlessly: (a Which specific constitutional provision was violated by the Texas abortion statute? Did the Court not act as a super legislature, imposing its own standards that cannot be derived from the Constitution? Did the Court invade the realm of political process to which the power to amend the Constitution was given? Did it violate the constitutional structure it was obliged to protect? b) Why was the state’s interest not sufficiently strong to sustain the Texas statute until the moment when the fetus becomes viable? If, as the majority seems to suggest, life is a process, may not the State protect it prior to viability?; c) Is the answer to the question of “when life begins” really irrelevant to the determination whether the fetus is a person within the meaning of the 14th Amendment? Is it possible to distinguish between certain life proesses (present, no doubt, at any stage of pregnancy from fertilization on) and “life? Can the presence of “life” be established without recognizing that it must reside in a “person?” Is the statement that the viable fetus, that is, capable of “meaningful life,” is still not a person within the meaning of the Fourteenth Amendment defensible as a matter of law, logic, and public policy?; d) Does the United States Supreme Court have the power to ‘restrict the protection of fundamental liberties to those classes the Court deems worthy?” (Destro, p.126). Was Justice Blackmun exceeding his power when he described the fetus as less than a person “in the whole sense?” Does that mean that it may be treated as less than human? (Noonan, 1979, p. 17) May the Court disregard(under the guise of avoiding deciding the issue “when life begins”) the unquestionable humanity of human beings and then deprive them of their personhood?; e) How important for the “Roe” majority were social policy implications? Were purely financial considerations relevant? The “Roe” decision is silent on this point, but Justice Blackmun, dissenting in “Beal v. Doe” (1977), one of the abortion funding cases stated clearly: To be sure, welfare funds are limited and welfare must be spread perhaps as best meets the community’s concept of its needs. But the cost of a nontherapeutic abortion is far less than the cost of maternity care and delivery, and holds no comparison whatsoever with the welfare costs that will burden the state for the new indigents and their support in the long, long years ahead (at p. 463). And Justice Marshall, another member of the “Roe” majority, made the point in “Beal v. Doe” that the effect of precluding abortions would be to “regulate millions of people to lives of poverty and despair” (p.462). Is it acceptable, as a matter of humanistic social policy, to view abortions as a relatively cheap method of improving the quality of life of those allowed to be born? Is life in poverty and despair not worth living?"