Abortion In The United States

"The dominant account of the abortion conflict is Court-centered: it explains the abortion conflict as a bad form of politics triggered in response to the Supreme Court’s efforts to shut down democratic decision making. Our history of the pre-Roe period, by contrast, shows how ordinary politics can produce escalating forms of conflict over abortion, without the intervention of courts. This political account of conflict generates a variety of historical questions about the genesis and shape of the abortion controversy. With an appreciation of the many ways in which nonjudicial actors can provoke escalating forms of conflict, the political account is interested in the role that the Catholic Church played in escalating and in nationalizing the abortion conflict in the years before Roe. By 1967, the National Conference of Catholic Bishops responded to the introduction of ALI reform bills in state houses across the nation by creating a national organization devoted to blocking abortion reform. What led the National Conference of Catholic Bishops to found what would come to be known as the National Right to Life Committee—an organization that funded and organized opponents of abortion reform at the state level and helped develop secular and nonsectarian arguments against abortion’s decriminalization? The provocation was not judicial review but instead increasing popular support for reforming abortion law. Conflict intensified precisely because law was beginning to change in response to growing public interest in abortion reform, and a minority that cared passionately about the issue had the resources to organize in opposition—a possibility that the Court-centered account of backlash does not consider."

"The political account understands that countermobilization and escalating conflict (often referred to as “backlash”) is a normal response to increasing public support for change that may—but certainly need not—have a relationship to judicial review. Just as the political account suggests why increasing public support for change can motivate conflict, it understands that countermobilization can block change, despite increasing public support. The political account of conflict thus generates questions about the dynamics of legislative change in the period before Roe. Does the fact that legislative abortion reform seemed to stall after 1970 reflect the countermobilizing efforts of a large, well-financed, and nationally networked group that voted on a single-issue basis, or does the failure of legislative reform after 1970 instead reflect the views of a popular majority? Examining the logic of conflict in the pre-Roe era identifies important questions about the dynamics of conflict in the period after the decision and, more generally, about the model of politics that implicitly organizes stories of constitutional change."

"Opinion polls offer an important window into political developments, even if opinion polls supply no information about who enters politics in order to vindicate their views, who has the resources to persuade others, or how issues are bundled or presented. In this case, it is striking that polling data from the period just before and after the Roe decision seem to show rising public support for liberalizing access to abortion."

"There were, in short, several institutions engaged in conflict over abortion in the decade before Roe that had independent motives and independent pathways for conflict in the decades after Roe (for example, the Catholic Church, the adversaries in the campaign to ratify the ERA, and the national political parties competing for voters)."

"If we are to understand not only “whether” but also “how” and “why” judicial review played a role in escalating the abortion conflict, there is much that we yet need to investigate concerning the dynamics of conflict over abortion the years after Roe. For example, if the Court’s decision in Roe was the sole cause of backlash, why did polls after Roe show no sign of decline in public support for abortion—and by some measures, record an increase in support for liberalizing access to abortion? Who attacked the Court’s abortion decision and when? Why, for example, was there not a single question asked about Roe at the confirmation hearings of Justice John Paul Stevens nearly three years after the decision? Why did it take until the end of the 1970s for the Southern Baptist Convention to oppose abortion categorically185 and for leaders of conservative Protestant evangelicals to enter politics in opposition to Roe? And, strikingly, why did those affiliated with the Democratic and Republican parties switch positions on abortion in the decades after Roe? For that matter, how is it that leaders of the national political parties seem to have switched positions on abortion nearly a decade before citizens affiliated with the parties? A Court-centered account of conflict does not seem well suited to notice these historically specific features of polarization over abortion—or to explain them. Where the Court-centered account interprets signs of extraordinary conflict over abortion as evidence that the Court has repressed politics,188 the political account of backlash asks whether extraordinary conflict and polarization over abortion might instead be the very expression of politics."

"Popular support for abortion’s legalization had been rising before the decision, see supra note 119 and accompanying text, and, depending on the poll, either continued to rise afterward or remained stable at a high level. See, e.g., Donald Granberg & Beth Wellman Granberg, Abortion Attitudes, 1965- 1980: Trends and Determinants, FAM. PLAN. PERSP., Sept.-Oct. 1980, at 250, 252 (“Following the 1973 supreme Court decisions that ruled restrictive state abortion laws unconstitutional, there was a five-point rise in average approval. . . . The one-year increase between 1972 (before the supreme Court abortion decisions) and 1973 (after the decisions) was sharper than the average annual increase of about three points between 1965 and 1972.”). More than two years after Roe, the Harris survey reported that approval of permitting access to abortion during the first trimester of pregnancy had reached “the highest level of support the Harris survey has ever recorded for legal abortion [54 percent] and a turnabout from 1972 when abortion in the first trimester of pregnancy was opposed by a 46 to 42 percent plurality.” Louis Harris, Majority Supporting Abortion Laws Grows, CHI. TRIB., May 26, 1975, at 7. This article concluded that “[t]here is no doubt that the U.S. Supreme Court decision solidified public support for legalizing abortion.” Id. Also in 1975, the respected California-based Field Poll reported a sharp increase in support for abortion among California adults. See Mervin D. Field, Poll Shows Dramatic Rise in Support for Abortions, L.A. TIMEs, Apr. 2, 1975, at D1. Whatever these various polls have to offer in the nature of scientific proof, they at least serve to refute any notion that the public greeted Roe with a spontaneous negative reaction."

"There are many possible explanations for how Roe has come to matter as it has. Perhaps polarization around abortion occurred because the Supreme Court repressed politics. Or perhaps partisan conflict escalated because the Court channeled politics into federal arenas, by enunciating law for the nation that was most easily reversed through national institutions. With polls in the wake of Roe showing growing public support for liberalizing access to abortion, perhaps conflict escalated because a cohesive and well-organized minority opposed the decision and was encouraged to resist it by voting on a single-issue basis. Or perhaps conflict escalated because in the years after the decision Roe came increasingly to be associated with feminist challenges to the family, and so came to be viewed as a threat to traditional and religious forms of social order. Or perhaps conflict escational authority because they associated the decision with a line of cases that the legal academy had criticized for a generation. Or perhaps conflict escalated because criticism of Roe by liberal elites legitimized demands to replace Supreme Court Justices by Americans who hated the Supreme Court’s race decisions but who no longer felt as free to campaign against those rulings as they once had. Or perhaps conflict escalated because the Court’s involvement in abortion gave political leaders the opportunity to unite disparate groups against the Court and in a quest for constitutional restoration, forging a new governing coalition of citizens who before never made common cause with one another."

"Note how very different are these various explanations for Roe’s role in polarization. Note, too, how very different are their implications for the institution of judicial review. With a better account of the facts, we might conclude that the particular storm of forces that made “Roe” is not likely to converge again. Or, we might identify features of the Court’s decision responsible for inflaming an already ongoing conflict. Even so, our ability to identify which aspects of the Court’s decision aggravated an ongoing conflict would still require some account, beyond that provided by the conventional Court-centered narrative, of the structure of conflict in which the Court ruled."

"To be clear, we do not argue that the Supreme Court played no role in provoking conflict over the legalization of abortion. We suggest rather that the dominance of the “Court-caused-it” backlash narrative has shortchanged both legal scholars and the general public of a more complete understanding of an important chapter in America’s social, political, and legal history. Our book’s account of the sources and dimensions of the abortion conflict before Roe suggests a considerably more complex explanation than what the conventional backlash narrative provides for what happened after Roe, as we demonstrate here with further evidence of the entanglement of abortion with party realignment not only after the decision but before it, as well. The powerful preemptive effect of the juricentric narrative has blunted curiosity about Roe’s roots and its reception; it has become a barrier to the kind of scholarly reexamination that we hope this paper inspires. A generation of lawyers and political actors has come of age schooled in Roe as a chastening lesson on the consequences of relying on courts to address the claims of those engaged in challenging social norms and existing arrangements. But we believe that a more complete understanding of Roe’s story may offer a different, more productive lesson. That lesson is not that adjudication inevitably causes political conflict and polarization and is thus to be avoided at all cost. Conflict is a part of our political life. And adjudication plays a special role in defining our political community. Rather, the history of conflict before and after Roe suggests that in thinking about the possibilities and limits of adjudication, we need to be attentive to the motives for conflict that emerge from sources outside as well as inside the courtroom, from directions and actors that may shift over time."

"As we noted at the beginning of the paper, facts matter. The stakes in achieving a more accurate appreciation of what occurred before (and after) Roe v. Wade are substantial for our understanding of the relationship between courts and politics. An account of the pre-Roe period in all its multidimensional richness instructs us, on the one hand, that extremes of conflict can occur, and important social conversations can emerge, without reference to courts at all. On the other hand, from the perspective of nearly four decades after the decision, we see that judicial review, far from forcing an end to politics, offers a canvas on which nonjudicial actors continue to paint, reconfiguring legal meaning to their own uses, until Roe v. Wade the case is all but effaced and “Roe” the symbol is what remains."

"Fifteen individual or collective “friends of the court”—amici curiae—filed briefs in Roe v. Wade, eight for the challengers to the Texas law and seven in the state’s defense. (Several on both sides also filed supplemental briefs for the second argument.) This was a substantial number for the time, although it looks small by the standards of today, when even in cases of only moderate importance, the Court often receives two dozen briefs or more."

"We estimate the impact of changes in abortion access in the early 1970s on the average living standards of cohorts born in those years. In particular, we address the selection inherent in the abortion decision: is the marginal child who is not born when abortion access increases more or less disadvantaged than the average child? Legalization of abortion in five states around 1970, followed by legalization nationwide due to the 1973 Roe v. Wade decision, generates natural variation which can be used to estimate the effect of abortion access. We find that cohorts born after abortion was legalized experienced a significant reduction in a number of adverse outcomes. Our estimates imply that the marginal child who was not born due to legalization would have been 70% more likely to live in a single parent family, 40% more likely to live in poverty, 50% more likely to receive welfare, and 35% more likely to die as an infant. These selection effects imply that the legalization of abortion saved the government over $14 billion in welfare expenditures through 1994."

"Access to abortion is one of the most contentious public policy issues facing the United States today. The period since the legalization of abortion under the Roe v. Wade decision of 1973 has been marked by incessant debate over the appropriate government financing and legal status of abortions. Meanwhile, pregnancy resolution through abortion is a very common outcome in the U.S.; roughly 25% of all pregnancies are aborted (Ventura et al., 1995). As a result, major changes in abortion access could have substantial effects on the birth rate. Indeed, Levine et al. (1996) find that the legalization of abortion in the early 1970s led to a 5% - 10% reduction in the birthrate."

"In this paper, we take a new and more direct approach to measuring the effect of abortion access on the living circumstances of subsequent cohorts of children. We examine the effect of the largest change in abortion availability in the U.S., increased access in the early 1970s through Roe v. Wade and comparable state laws, on the living circumstances of the cohorts of children born in these years. More specifically, following Levine et al. (1996), who note that Roe v. Wade followed on the heels of abortion legalization in five states around 1970. This generates two “natural experiments” for analyzing the effect of abortion access: the change in these five states, versus the remainder of the country, around 1970, and the change for the remainder of the country, versus these five states, around the time of Roe v. Wade (1973). The large reduction in the number of births associated with legalization, as documented by Levine et al, provides the impetus for focusing on the resultant living standards of the remaining cohort of children."

"We find evidence of sizeable positive selection: the average living circumstances of cohorts of children born immediately after abortion became legalized improved substantially relative to preceding cohorts, and relative to places where the legal status of abortion was not changing. Our results suggest that the marginal children who were not born as a result of abortion legalization would have systematically been born into worse circumstances had the pregnancies not been terminate: they would have been 70% more likely to live in a single parent household, 40% more likely to live in poverty, 35% more likely to die during the first year of life, and 50% more likely to be in a household collecting welfare. The last of these finding implies that the selection effect operating through the legalization of abortion saved the government over $14 billion in welfare payments through the year 1994."

"By being first movers in increasing abortion access, the five repeal states revealed their willingness to make abortion available. The states that were forced into legalization by Roe v. Wade may have been less positively disposed towards abortion availability, so even de jure legalization may not have implied a large increase in de facto access. Moreover, the women who wanted abortions most in the non-repeal states may have travelled to the repeal states to obtain them, so that the shift in use of abortion after Roe v. Wade was muted. In fact, this view is supported by the evidence on abortion legalization and birth rates in Levine et al. (1996). Their results for the effect o legalization on birth rates are depicted in Figure 2. This figure graphs the relative birth rates of the repeal and non-repeal states over time. Following legalization of abortion in the repeal states in 1970, birth rates in these states fell precipitously relative to birth rates in other states. There is then a corresponding fall in birth rates in the non-repeal states after 1973, so that by 1976 relative birth rates were once again equalized. However, the “bounceback” is slow, only reducing the gap somewhat by 1974-75. Levine et al. present regression results which support the narrative above: relative birth rates fell precipitously in the repeal states during 1971-73, recovered to some extent by 1974-75, and fully recovered by 1976-80. Overall, abortion legalization appears to be correlated with roughly a 6% decline in relative birth rates, which occurred immediately in the repeal states and more gradually in the non-repeal states."

"The most important change in government fertility policy over the past 30 years was the legalization of abortion under the Roe v. Wade decision. As has been shown elsewhere, this change had a dramatic effect on the size of birth cohorts. As we demonstrate in this paper, the change also had a significant effect on the living circumstances of the cohort that were born after legalization. Subsequent cohorts were less likely to be in single parent households, and as a result less likely to live in poverty, and less likely to receive welfare. In addition, these cohorts experienced lower infant mortality. In particular, we find that for the marginal child not born due to increased abortion access, the odds of living in a single parent family would have been roughly 70% higher, the odds of living in poverty nearly 40% higher, the odds of welfare receipt 50% higher, and the odds of dying as an infant 35% higher. From these results, we estimate that the legalization of abortion saved the government over $14 billion in welfare payments through 1994. Perhaps more importantly, these findings also potentially have implications for the lifelong prospects of the average child born after legalization. The children not born due to abortion availability would have grown up in adverse living circumstances which have been shown in other work to have very detrimental effects on later prospects. Of course, as we note above, this conclusion is complicated by the fact that we cannot necessarily apply the effects on the average child of living in poverty (for example) to the effects on the marginal child who would live in poverty if their pregnancy was not terminated. However, as these cohorts age, researchers will be able to directly observe outcomes such as educational attainment, income, and family structure, for example using the year 2000 U.S. Census, to assess whether such outcomes improved for the average person born after legalized abortion. This is an important question that should be the focus of future analysis."

"The Harris Poll® has been measuring attitudes toward the Roe v. Wade decision legalizing abortion ever since it was handed down by the Supreme Court in 1973. During the 34 years since, Harris Polls found majorities, between 49 and 65 percent of all U.S. adults, in favor of Roe v. Wade. The latest Harris Poll finds that support for Roe v. Wade has increased fairly significantly in a relatively short time. A majority – 56 percent – now favors the U.S. Supreme Court decision, the highest level since 1998 and an increase of seven percentage points from just last year when a slender 49 to 47 percent is supported the decision. Furthermore, only 20 percent of U.S. adults favor not permitting a woman to get an abortion under any circumstances. This Harris Poll also finds that a substantial 69 to 24 percent majority of all adults do not think it is likely that this Supreme Court will overturn Roe v. Wade. (Of course, that is not a prediction)."

"While it is perhaps not surprising that most Democrats (63%) favor Roe v. Wade and half of Republicans (51%) oppose it, substantial percentages disagree. Over four in ten (45%) Republicans favor Roe v. Wade and a third (33%) of Democrats oppose it;"

"Interestingly, the percentage of Republicans who favor it has significantly increased (from 37 percent to the current 45 percent) in the past year and the percentage of Democrats who oppose the U.S. Supreme Court decision has decreased (from 43 percent to the current 33 percent);"

"Heading into the 2008 election year, it is worth noting that a majority of Independents (61 to 36 percent) favors Roe v. Wade. In 2006 the comparable views of Independents were 56 to 37 percent."

"From 1998 until this year, the U.S. adult public’s support for Roe v. Wade had been declining. A year ago, The Harris Poll reported that Roe v. Wade was supported "only by a slender 49 percent to 47 percent plurality" – "support and opposition are almost equal". Today, a majority now supports the U.S. Supreme Court decision (56% vs. 40%) and almost seven in ten think that the U.S. Supreme Court decision will remain unchanged. What might explain such a shift in 18 months?"

"In the Wade case, this Court held unconstitutional a Texas statute making it a crime to procure or attempt an abortion except on medical advice for the purpose of saving the mother's life. The constitutional underpinning of Wade was a recognition that the "liberty" protected by the Due Process Clause of the Fourteenth Amendment includes not only the freedoms explicitly mentioned in the Bill of Rights, but also a freedom of personal choice in certain matters of marriage and family life. [Footnote 18] This implicit constitutional liberty, the Court in Wade held, includes the freedom of a woman to decide whether to terminate a pregnancy. But the Court in Wade also recognized that a State has legitimate interests during a pregnancy in both ensuring the health of the mother and protecting potential human life. These state interests, which were found to be "separate and distinct" and to "gro[w] in substantiality as the woman approaches term," id. at 410 U. S. 162-163, pose a conflict with a woman's untrammeled freedom of choice. In resolving this conflict, the Court held that, before the end of the first trimester of pregnancy, neither state interest is sufficiently substantial to justify any intrusion on the woman's freedom of choice. In the second trimester, the state interest in maternal health was found to be sufficiently substantial to justify regulation reasonably related to that concern. And at viability, usually in the third trimester, the state interest in protecting the potential life of the fetus was found to justify a criminal prohibition against abortions, except where necessary for the preservation of the life or health of the mother. Thus, inasmuch as the Texas criminal statute allowed abortions only where necessary to save the life of the mother and without regard to the stage of the pregnancy, the Court held in Wade that the statute violated the Due Process Clause of the Fourteenth Amendment. In Maher v. Roe, 432 U. S. 464, the Court was presented with the question whether the scope of personal constitutional freedom recognized in Roe v. Wade included an entitlement to Medicaid payments for abortions that are not medically necessary. At issue in Maher was a Connecticut welfare regulation under which Medicaid recipients received payments for medical services incident to childbirth, but not for medical services incident to nontherapeutic abortions. The District Court held that the regulation violated the Equal Protection Clause of the Fourteenth Amendment because the unequal subsidization of childbirth and abortion impinged on the "fundamental right to abortion" recognized in Wade and its progeny. It was the view of this Court that "the District Court misconceived the nature and scope of the fundamental right recognized in Roe." 432 U.S. at 432 U. S. 471. The doctrine of Roe v. Wade, the Court held in Maher, "protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy," id. at 432 U. S. 473-474, such as the severe criminal sanctions at issue in Roe v. Wade, supra, or the absolute requirement of spousal consent for an abortion challenged in Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52. But the constitutional freedom recognized in Wade and its progeny, the Maher Court explained, did not prevent Connecticut from making "a value judgment favoring childbirth over abortion, and . . implement[ing] that judgment by the allocation of public funds." 432 U.S. at 432 U. S. 474. As the Court elaborated:"

"The Court in Maher noted that its description of the doctrine recognized in Wade and its progeny signaled "no retreat" from those decisions. In explaining why the constitutional principle recognized in Wade and later cases -- protecting a woman's freedom of choice -- did not translate into a constitutional obligation of Connecticut to subsidize abortions, the Court cited the" basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy. Constitutional concerns are greatest when the State attempts to impose its will by force of law; the State's power to encourage actions deemed to be in the public interest is necessarily far broader." 432 U.S. at 432 U. S. 475-476 (footnote omitted). Thus, even though the Connecticut regulation favored childbirth over abortion by means of subsidization of one and not the other, the Court in Maher concluded that the regulation did not impinge on the constitutional freedom recognized in Wade because it imposed no governmental restriction on access to abortions."

"It is evident that a woman's interest in protecting her health was an important theme in Wade. In concluding that the freedom of a woman to decide whether to terminate her pregnancy falls within the personal liberty protected by the Due Process Clause, the Court in Wade emphasized the fact that the woman's decision carries with it significant personal health implications -- both physical and psychological. 410 U.S. at 410 U. S. 153. In fact, although the Court in Wade recognized that the state interest in protecting potential life becomes sufficiently compelling in the period after fetal viability to justify an absolute criminal prohibition of nontherapeutic abortions, the Court held that, even after fetal viability, a State may not prohibit abortions "necessary to preserve the life or health of the mother." Id. at 410 U. S. 164. Because even the compelling interest of the State in protecting potential life after fetal viability was held to be insufficient to outweigh a woman's decision to protect her life or health, it could be argued that the freedom of a woman to decide whether to terminate her pregnancy for health reasons does, in fact, lie at the core of the constitutional liberty identified in Wade. But, regardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in Wade, it simply does not follow that a woman's freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices. The reason why was explained in Maher: although government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation. Indigency falls in the latter category. The financial constraints that restrict an indigent woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency. Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions, the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all. We are thus not persuaded that the Hyde Amendment impinges on the constitutionally protected freedom of choice recognized in Wade. [Footnote 19]"

"In Wade, the Court recognized that the State has an "important and legitimate interest in protecting the potentiality of human life." 410 U.S. at 410 U. S. 162. That interest was found to exist throughout a pregnancy, "grow[ing] in substantiality as the woman approaches term." Id. at 410 U. S. 162-163. See also Beal v. Doe, 432 U.S. at 432 U. S. 445-446. Moreover, in Maher, the Court held that Connecticut's decision to fund the costs associated with childbirth but not those associated with nontherapeutic abortions was a rational means of advancing the legitimate state interest in protecting potential life by encouraging childbirth. 432 U.S. at 432 U. S. 478-479. See also Poelker v. Doe, 432 U. S. 519, 432 U. S. 520-521. It follows that the Hyde Amendment, by encouraging childbirth except in the most urgent circumstances, is rationally related to the legitimate governmental objective of protecting potential life. By subsidizing the medical expenses of indigent women who carry their pregnancies to term while not subsidizing the comparable expenses of women who undergo abortions (except those whose lives are threatened), [Footnote 27] Congress has established incentives that make childbirth a more attractive alternative than abortion for persons eligible for Medicaid. These incentives bear a direct relationship to the legitimate congressional interest in protecting potential life. Nor is it irrational that Congress has authorized federal reimbursement for medically necessary services generally, but not for certain medically necessary abortions. [Footnote 28] Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life."

"The Court in Wade observed that previous decisions of this Court had recognized that the liberty protected by the Due Process Clause "has some extension to activities relating to marriage, Loving v. Virginia, 388 U. S. 1, 388 U. S. 12 (1967); procreation, Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S. [438,] 405 U. S. 453-454, id. at 405 U. S. 460, 405 U. S. 463-465 (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 166 (1944); and childrearing and education, Pierce v. Society of Sisters, 268 U. S. 510, 268 U. S. 535 (1925); Meyer v. Nebraska, [262 U.S. 390, 262 U. S. 399 (1923)]." 410 U.S. at 410 U. S. 152-153."

"Roe v. Wade, 410 U. S. 113 (1973), held that, prior to viability of the fetus, the governmental interest in potential life was insufficient to justify overriding the due process right of a pregnant woman to terminate her pregnancy by abortion. In the last trimester, however, the State's interest in fetal life was deemed sufficiently strong to warrant a ban on abortions, but only if continuing the pregnancy did not threaten the life or health of the mother. In the latter event, the State was required to respect the choice of the mother to terminate the pregnancy and protect her health. Drawing upon Roe v. Wade and the cases that followed it, MR. JUSTICE STEVENS' dissent extrapolates the general proposition that the governmental interest in potential life may in no event be pursued at the expense of the mother's health. It then notes that, under the Hyde Amendment, Medicaid refuses to fund abortions where carrying to term threatens maternal health but finances other medically indicated procedures, including childbirth. The dissent submits that the Hyde Amendment therefore fails the first requirement imposed by the Fifth Amendment and recognized by the Court's opinion today -- that the challenged official action must serve a legitimate governmental goal, ante at 448 U. S. 324. The argument has a certain internal logic, but it is not legally sound. The constitutional right recognized in Roe v. Wade was the right to choose to undergo an abortion without coercive interference by the government. As the Court points out, Roe v. Wade did not purport to adjudicate a right to have abortions funded by the government, but only to be free from unreasonable official interference with private choice. At an appropriate stage in a pregnancy, for example, abortions could be prohibited to implement the governmental interest in potential life, but in no case to the damage of the health of the mother, whose choice to suffer an abortion rather than risk her health the government was forced to respect. Roe v. Wade thus dealt with the circumstances in which the governmental interest in potential life would justify official interference with the abortion choices of pregnant women. There is no such calculus involved here. The Government does not seek to interfere with or to impose any coercive restraint on the choice of any woman to have an abortion. The woman's choice remains unfettered, the Government is not attempting to use its interest in life to justify a coercive restraint, and hence, in disbursing its Medicaid funds, it is free to implement rationally what Roe v. Wade recognized to be its legitimate interest in a potential life by covering the medical costs of childbirth but denying funds for abortions. Neither Roe v. Wade nor any of the cases decided in its wake invalidates this legislative preference. We decided as much in Maher v. Roe, 432 U. S. 464 (1977), when we rejected the claims that refusing funds for nontherapeutic abortions while defraying the medical costs of childbirth, although not an outright prohibition, nevertheless infringed the fundamental right to choose to terminate a pregnancy by abortion and also violated the equal protection component of the Fifth Amendment. I would not abandon Maher and extend Roe v. Wade to forbid the legislative policy expressed in the Hyde Amendment"

"I agree entirely with my Brother STEVENS that the State's interest in protecting the potential life of the fetus cannot justify the exclusion of financially and medically needy women from the benefits to which they would otherwise be entitled solely because the treatment that a doctor has concluded is medically necessary involves an abortion. See post at 448 U. S. 351-352. I write separately to express my continuing disagreement [Footnote 2/1] with the Court's mischaracterization of the nature of the fundamental right recognized in Roe v. Wade, 410 U. S. 113 (1973), and its misconception of the manner in which that right is infringed by federal and state legislation withdrawing all funding for medically necessary abortions. Roe v. Wade held that the constitutional right to personal privacy encompasses a woman's decision whether or not to terminate her pregnancy. Roe and its progeny [Footnote 2/2] established that the pregnant woman has a right to be free from state interference with her choice to have an abortion -- a right which, at least prior to the end of the first trimester, absolutely prohibits any governmental regulation of that highly personal decision. [Footnote 2/3] The proposition for which these cases stand thus is not that the State is under an affirmative obligation to ensure access to abortions for all who may desire them; it is that the State must refrain from wielding its enormous power and influence in a manner that might burden the pregnant woman's freedom to choose whether to have an abortion. The Hyde Amendment's denial of public funds for medically necessary abortions plainly intrudes upon this constitutionally protected decision, for both by design and in effect, it serves to coerce indigent pregnant women to bear children that they would otherwise elect not to have. [Footnote 2/4]"

"When viewed in the context of the Medicaid program to which it is appended, it is obvious that the Hyde Amendment is nothing less than an attempt by Congress to circumvent the dictates of the Constitution and achieve indirectly what Roe v. Wade said it could not do directly."

"Three years ago, in Maher v. Roe, 432 U. S. 464 (1977), the Court upheld a state program that excluded nontherapeutic abortions from a welfare program that generally subsidized the medical expenses incidental to pregnancy and childbirth. At that time, I expressed my fear "that the Court's decisions will be an invitation to public officials, already under extraordinary pressure from well-financed and carefully orchestrated lobbying campaigns, to approve more such restrictions" on governmental funding for abortion. Id. at 432 U.S. 462 (dissenting both in Maher v. Roe, supra, and in Beal v. Doe, 432 U. S. 438 (1977), and Poelker v. Doe, 432 U. S. 519 (1977)). That fear has proved justified. Under the Hyde Amendment, federal funding is denied for abortions that are medically necessary and that are necessary to avert severe and permanent damage to the health of the mother. The Court's opinion studiously avoids recognizing the undeniable fact that, for women eligible for Medicaid -- poor women -- denial of a Medicaid-funded abortion is equivalent to denial of legal abortion altogether. By definition, these women do not have the money to pay for an abortion themselves. If abortion is medically necessary and a funded abortion is unavailable, they must resort to back-alley butchers, attempt to induce an abortion themselves by crude and dangerous methods, or suffer the serious medical consequences of attempting to carry the fetus to term. Because legal abortion is not a realistic option for such women, the predictable result of the Hyde Amendment will be a significant increase in the number of poor women who will die or suffer significant health damage because of an inability to procure necessary medical services. The legislation before us is the product of an effort to deny to the poor the constitutional right recognized in Roe v. Wade, 410 U. S. 113 (1973), even though the cost may be serious and long-lasting health damage. As my Brother STEVENS has demonstrated, see post, p. 448 U. S. 349 (dissenting opinion), the premise underlying the Hyde Amendment was repudiated in Roe v. Wade, where the Court made clear that the state interest in protecting fetal life cannot justify jeopardizing the life or health of the mother. The denial of Medicaid benefits to individuals who meet all the statutory criteria for eligibility, solely because the treatment that is medically necessary involves the exercise of the fundamental right to chose abortion, is a form of discrimination repugnant to the equal protection of the laws guaranteed by the Constitution. The Court's decision today marks a retreat from Roe v. Wade and represents a cruel blow to the most powerless members of our society. I dissent."

"Moreover, both the legislation in Maher and the Hyde Amendment were designed to deprive poor and minority women of the constitutional right to choose abortion. That purpose is not constitutionally permitted under Roe v. Wade."

"In this case, the Federal Government has taken upon itself the burden of financing practically all medically necessary expenditures. One category of medically necessary expenditure has been singled out for exclusion, and the sole basis for the exclusion is a premise repudiated for purposes of constitutional law in Roe v. Wade. The consequence is a devastating impact on the lives and health of poor women. I do not believe that a Constitution committed to the equal protection of the laws can tolerate this result. I dissent."

"In Roe v. Wade, 410 U. S. 113, and Doe v. Bolton, 410 U. S. 179, the Court recognized that the States have a legitimate and protectible interest in potential human life. 410 U.S. at 410 U. S. 162. But the Court explicitly held that, prior to fetal viability, that interest may not justify any governmental burden on the woman's choice to have an abortion, [Footnote 4/2] nor even any regulation of abortion except in furtherance of the State's interest in the woman's health. In effect, the Court held that a woman's freedom to elect to have an abortion prior to viability has absolute constitutional protection, subject only to valid health regulations. Indeed, in Roe v. Wade the Court held that, even after fetal viability, a State may "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.""

"If a woman has a constitutional right to place a higher value on avoiding either serious harm to her own health or perhaps an abnormal childbirth [Footnote 4/3] than on protecting potential life, the exercise of that right cannot provide the basis for the denial of a benefit to which she would otherwise be entitled. The Court's sterile equal protection analysis evades this critical, though simple, point. The Court focuses exclusively on the "legitimate interest in protecting the potential life of the fetus." Ante at 448 U. S. 324. It concludes that, since the Hyde Amendments further that interest, the exclusion they create is rational, and therefore constitutional. But it is misleading to speak of the Government's legitimate interest in the fetus without reference to the context in which that interest was held to be legitimate. For Roe v. Wade squarely held that the States may not protect that interest when a conflict with the interest in a pregnant woman's health exists. It is thus perfectly clear that neither the Federal Government nor the States may exclude a woman from medical benefits to which she would otherwise be entitled solely to further an interest in potential life when a physician, "in appropriate medical judgment," certifies that an abortion is necessary "for the preservation of the life or health of the mother." Roe v. Wade, supra at 410 U. S. 165. The Court totally fails to explain why this reasoning is not dispositive here. [Footnote 4/4]"

""In Roe v. Wade, 410 U. S. 113, the Court held that a woman's right to decide whether to abort a pregnancy is entitled to constitutional protection. That decision . . . is now part of our law. . . ." Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52, 428 U. S. 101 (STEVENS, J., concurring in part and dissenting in part)."

"Roe v. Wade involved Texas statutes making it a crime to "procure an abortion," except when attempted to save the pregnant woman's life. 410 U.S. at 410 U. S. 117-118. Doe v. Bolton involved the somewhat less onerous Georgia statutes making abortion a crime in most circumstances, the exceptions being abortions to save the pregnant woman from life or permanent health endangerment, cases in which there was a very likely irremediable birth defect in the child, and cases in which the pregnancy was the result of rape. Those exceptions were subject to burdensome prior medical approvals, which were held to be unconstitutional. Subsequent cases have invalidated other burdens on the pregnant woman's free choice to abort. See Planned Parenthood of Central Missouri v. Danforth, supra, (consent required of husband or, for an unmarried woman under 18, of a parent); Bellotti v. Baird, 443 U. S. 622 (consent required of either parent or superior court judge for an unmarried woman under 18)."

"The Court rests heavily on the premise -- recognized in both Roe and Maher -- that the State's legitimate interest in preserving potential life provides a sufficient justification for funding medical services that are necessarily associated with normal childbirth without also funding abortions that are not medically necessary. The Maher opinion repeatedly referred to the policy of favoring "normal childbirth." See 432 U.S. at 432 U. S. 477, 432 U. S. 478, 432 U. S. 479. But this case involves a refusal to fund abortions which are medically necessary to avoid abnormal childbirth."

"In responding to my analysis of this case, MR. JUSTICE WHITE has described the constitutional right recognized in Roe v. Wade as "the right to choose to undergo an abortion without coercive interference by the government" or a right "only to be free from unreasonable official interference with private choice." Ante at 448 U. S. 327, 448 U. S. 328. No such language is found in the Roe opinion itself. Rather, that case squarely held that state interference is unreasonable if it attaches a greater importance to the interest in potential life than to the interest in protecting the mother's health. One could with equal justification describe the right protected by the First Amendment as the right to make speeches without coercive interference by the government and then sustain a government subsidy for all medically needy persons except those who publicly advocate a change of administration."

"In more than four decades since its landmark 1973 Roe v. Wade decision legalizing abortion, the Supreme Court has weighed I on the abortion issue on numerous occasions. Sometimes it has upheld the availability of abortion granted by Roe more often than not, it has leaned toward restricting that availability. Regardless, the Court has repeatedly upheld Roe’s central premise: that the US Constitution guarantees a right of privacy, and that right of privacy includes a woman’s right to have an abortion during the first thirteen weeks of pregnancy (and even after that it necessary in order to safeguard the woman’s life, health, or well-being). But along the way, the anti-abortion (pro-life) movement has convinced legislators in Congress to enact a host of laws aimed at reducing Roe’s effects. Some of these laws require parental notification (in the case of underage females), spousal consent (in the case of married females), or a waiting period before the abortion procedure may be legally performed. Other laws require that women having second-trimester abortions do so in a hospital, rather than in a non-hospital clinic. They also require that physicians use abortion methods that are least harmful to the fetus; that is, they must use methods that will most likely result in the survival of the fetus after removing it from the mother’s womb. More recent laws and regulations also prevent public funds from tax revenues from being spent on abortion procedures. The legislative flood of new laws over the years has led to a string of Supreme Court challenges and ruling that have served not only to limit the scope of Roe, but also to establish Roe as a legal precedent. In so doing, Roe has become the “norm” against which all abortion law challenges are measured."

"In 2004, in an ironic and surprising reversal, Norma McCorvey (Jane Roe, the plaintiff in 1973’s groundbreaking Roe v. Wade) filed a motion with the US District Court in Dallas to have the Roe case overturned. In doing so, she asked the court to consider new evidence that abortion hurts women. Included in her filings were affidavits from more than a thousand women who said they had regretted having had their abortions. For McCorvey, the journey from abortion advocate to abortion foe had been long and winding. In 1970, Norma McCorvey was described as a pregnant woman who “wished to terminate her pregnancy by an abortion ‘performed by a competent, licensed physician, under sage, clinical conditions’; …. Was unable to get a ‘legal’ abortion in Texas,” and the case focused on the idea that “the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy …” But the true story, as Norma McCorvey later explained it, was nowhere near what had been portrayed in court. A woman who was relatively ignorant of the facts of her own case, McCorvey claimed that her attorneys used her for their own predetermined ends. They “were looking for somebody, anybody, to use to further their own agenda. I was their most willing dupe.” After becoming pregnant with her second child, she sought to end her pregnancy. She was not aware of all the implications of abortion or even what the term meant. ‘Abortion to me,” she said, “meant ‘going back’ to the condition of not being pregnant.” She did not realize that the process would end a human life. She said that her attorney, Sarah Weddington, rather than correcting her misconceptions, merely confused the issue: “For their part, my lawyers lied to me about the nature of abortion. Weddington convinced me, ‘It’s just a piece of tissue. You just missed your period.” Another problem was that Norma claimed that her pregnancy was the result of a gang-rape in order to present a more sympathetic picture. That, as she has since confessed, was untrue. McCorvey has long admitted that her actual involvement in the case was minimal. She had signed the initial affidavit without ever reading it, and “was never invited into court. I never testified. I was never present before any court on any level, and I was never at any hearing on my case … I found out about the decision from the newspaper just like the rest of the country.”"

"Even though she had spearheaded the pro-choice movement and its goal of opening up the right to legalized abortion to women, Norma McCorvey never experienced the abortion procedure. Instead, she delivered her baby and gave it up for adoption."

"After hearing the evidence presented by McCorvey to overturn Roe, a three-judge panel of the Fifth US Circuit Court of Appeals in New Orleans dismissed Norma McCorvey’s motion on November 14, 2004. McCorvey had claimed that she had new information that would affect the 1973 case. The lower court disagreed, and the Supreme Court denied review of the case."

"On a February afternoon in 1970, 22-year-old Norma McCorvey, a petite woman wearing jeans, sandals, and a shirt tied at her waist, walked into Columbo’s an Italian restaurant in Dallas, Texas. She scanned the red-and-white checked tables, looking for the two women she had arranged to meet. It did not take long to spot them. As McCorvey later recalled in her 1993 autobiography, I Am Roe: My Life, Roe v. Wade, and Freedom of Choice, the women wore expensive-looking suits that were out of place in the casual restaurant. Linda Coffee was tall, thin, dark, and delicate. Sarah Weddington was shorter, blonde, and slightly plump. They were both a little older than McCorvey, more educated, and more sophisticated."

"McCorvey had a ninth-grade education. She had been married and divorced. She drank heavily and did drugs. And, though she was a lesbian, McCorvey was pregnant-the reason for meeting with Coffee and Weddington. Feeling intimidated, McCorbey considered walking away. But she stayed, hoping the pair could-and would-provide what she wanted. McCorvey shook Weddington’s hand and thanked her for coming. McCorvey had little in common ith the attorneys-making small talk was uncomfortable. She was eager to get to the point. After ordering pizza and beer, she asked about what she assumed they had come to help her with. McCorvey wanted to know if either rof the lawyers new where she could get an abortion. When they told her they did not, McCorvey felt angry. Again, she considered leaving. But Weddington, at least, seemed sympathetic to McCorvey’s situation, and McCorvey decided to stay. Weddington asked why she wanted an abortion so badly. McCorvey answered that it was hard to find work when she was pregnant. Her mother was raising her first child, whom she hardly ever saw. She was in no shape to be a mother. Weddington recommended McCorvey not get an abortion. Elective abortions were illegal in Texas, as they were in most other states. Illegal abortions were also dangerous. Every year, women bled to deaths the result of abortions, trying to perform them themselves or suffering at the hands of doctor in illegal abortion clinics. Weddington explained that she, coffee, and a group of other like-minded people were working to overturn the Texas law banning abortion. But they needed a lawsuit to accomplish this and woman to put her name on the lawsuit-a pregnant woman just like McCorvey. McCorvey was interested, but she had difficulty keeping track as Weddigton described the legal steps the lawsuit would take: district, appeals, state, and federal courts. But she was impressed with Weddington’s passion. The two lawyers wanted to hear all about McCorvey. She decided to trust the women and told them her story."

"When McCorvey was seeking an abortion, she claimed her pregnancy resulted from rape. She thought the lie would help her situation. The first time she made the claim was to an adoption lawyer she met before McCluskey. He would not help her obtain an abortion. After assuming the child was mixed race, he would not help with an adoption either. McCorvey told Weddington and Coffee the same lie. McCorvey wrote in “I Am Roe”, “The horrible lie-this was the second time I’d used it-pulled at the insides of my stomach.” Again, lying did not help. According to McCorbey, Weddington responded, “Well Norma, it’s awful that you were raped. But actually, the Texas abortion law doesn’t make any exception for rape. So it doesn’t matter in terms of our lawsuit.”"

"After listening to McCorvey’s story, Coffee and Weddington asked if she would be interested in being the plaintiff in their case. Weddington explained what that meant. McCorvey’s involvement would hopefully be minimal. She would probably not have to attend court hearings or answer oral questions. And she would not need to pay anything because Coffee and Weddington would donate their time and money to the case. Also, McCorvey could use a pseudonym to remain anonymous, unless she chose to disclose her identity. McCorvey agreed to be their plaintiff. After the meeting at the restaurant, Coffee and Weddington considered whether McCorvey was really their best choice for a plaintiff.. This would be an important case. If the two young lawyers succeeded in overturning Texas’s law, they believed their work would benefit all Texas women. And perhaps they could benefit women in the other 42 states with restrictive provisions for abortion. Some abortion laws had been changed in recent years to allow for the procedure. In some states, new laws legalized abortion or could be interpreted so broadly that abortion was essentially legal. In time, Coffee and Weddington hoped all states might legalize abortion or at least broaden the criteria under which it could be performed. They wanted women to have abortion as an option and for that option to be safe and legal. But in 1970 Texas, as in most other states, abortion statutes were still in effect, leaving very few women eligible for legal abortions. Coffee and Weddington were impatient, unsure when abortion reform legislation would pass in their conservative state. They saw the courts as a faster alternative for change."

"The lawyers thought their ideal plaintiff needed to meet certain criteria. She would have to hold up under the intense legal and public scrutiny that would certainly result from such a court case-scrutiny that would likely increase for a woman with the kind of history McCorvey had. Another consideration was McCorvey’s desperate desire for an abortion. She was far enough along in her pregnancy that she would have given birth by the time the case concluded. Coffee and Weddington could try to get McCorvey a legal abortion, but it would be a complicated process. It would also be a lengthy one."

"After discussing the pros and cons off McCorvey as their plaintiff, Coffee and Weddington realized the ideal plaintiff simply did not exist. If she were willing to be the plaintiff in the case, the two young lawyers would represent MccCorvey in a fight to change Texas’s abortion legislation. The three women met again. McCorvey signed the legal paperwork, setting into motion a case that would become one of the most controversial and divisive Supreme Court decisions in modern US history."

"Although she wasn’t finding an answer to the abortion referral group’s problem, Weddington felt encouraged by the Griswold case and by the court cases and legislation cropping up across the country challenging or changing state abortion laws. One day in 1969, two of Weddington’s friends asked if she would file a lawsuit challenging the constitutionality of the Texas abortion statute in federal court and add their case to others being filed on the federal level. Their hope was that one of these cases would be heard by the Supreme Court. Weddington has graduated from the University of Texas Law School only in 1967 and had never handled a contested care. Still, her friends respected the research she had already done and believed the case should have a female lawyer since it was a women’s issue. Plus, Weddington was the only attorney they knew who might be willing to do the work for free. Although afraid of failing and uncertain she was really the right person for the job, Weddington agreed."