Abortion In The United States

"The individuals whose names are appended here to as amici curiae are deans and vice presidents of medical schools, heads of departments of obstetrics, gynecology and pediatrics in medical schools, practicing physicians and surgeons who are specialists in those fields, and other physicians and psychiatrists having a particular interest in the subject matter of this brief. The organizations whose names are appended hereto are among the largest, oldest and most respected national organizations in the medical profession. These organizations are devoted to the promotion of the highest possible quality health care and it is toward that end that they join in this brief as amici. They include many leaders in the medical profession and renowned teachers in medical schools. As teachers, they are impelled to seek to protect the right of their students—the future generations of doctors—to give their patients the benefit of knowledge acquired in the medical schools. As practicing physicians, amici are bound by oath to give their patients the benefit of the best medical knowledge. These physicians are concerned that the Texas antiabortion law prevents them from fulfilling their sworn duties and responsibilities in the highest traditions of their profession. They believe that the Texas anti-abortion statute is wrong in principle, fundamentally unsound in the light of present day medical and surgical knowledge, and a serious obstacle to good medical practice. Amici believe that the restrictions imposed by the Texas statute on the performance of medically indicated therapeutic abortions interfere with the physician-patient relationship and with the ability of physicians to practice medicine in accordance with the highest professional standards. Amici are also concerned with the burden the law places on physicians to interpret, at their peril, a statute whose meaning and scope are not clear. Accordingly, amici deem it appropriate to offer arguments with respect to this area of law which is of vital concern to them."

"If it be true that the compelling state interest in prohibiting or regulating abortion did not exist at one time in the stage of history, under the result of the findings and research of modern medicine, a different legal conclusion can now be reached. The fact that a statute or law may originally have been enacted to serve one purpose does not serve to condemn it when the same statute, with the passage of time, serves a different but equally valid public purpose."

"It is most seriously argued that the “life” protected by the Due Process of Law Clause of the Fifth Amendment includes the life of the unborn child. Further, it would be a denial of equal protection of law not to accord protection of the life of a person who had not yet been born but still in the womb of its mother. If it is a denial of equal protection for a statute to distinguish between a thief and an embezzler under a statute providing for the sterilization of the one and not the other, then it is surely a denial of equal protection for either the state or federal government to distinguish between a person who has been born and one living in the womb of its mother. [Note: in 1942 in Skinner v. Oklahoma, the Court had ruled that it violated equal protection for the state to punish by sterilization a person convicted of three or more “felonies involving moral turpitude” while not similarly punishing a felon convicted of embezzlement.]"

"The State of Texas Has a Legitimate Interest in Prohibiting Abortion Except by Medical Advice for the Purpose of “Saving the Life of the Mother” There seems little argument necessary if one can conclude the unborn child is a human being with birth but a convenient landmark in a continuing process—a bridge between two stages of life. The basic postulates from which the Appellees’ arguments proceed are: (1) the pregnant woman has a right of control over her own body as a matter of privacy guaranteed to her by the Constitution of the United States; and (2) this right cannot be interfered with by the state since the state cannot demonstrate any compelling interest to justify its intrusion. The contrary position is the state’s interest in preventing the arbitrary and unjustified destruction of an unborn child—a living human being in the very earliest stages of its development. Whatever personal right of privacy a pregnant woman may have with respect to the disposition and use of her body must be balanced against the personal right of the unborn child to life. Whatever the metaphysical view of it is, or may have been, it is beyond argument that legal concepts as to the nature and rights of the unborn child have drastically changed, based on expanded medical knowledge, over the last 2,500 years."

"This review of the current medical status of the unborn serves us several purposes. Firstly, it shows conclusively the humanity of the fetus by showing that human life is a continuum which commences in the womb. There is no magic in birth. The child is as much a child in those several days before birth as he is those several days after. The maturation process, commenced in the womb, continues through the post-natal period, infancy, adolescence, maturity and old age. Dr. Arnold Gesell points out in his work that no king ever had any other beginning than have had all of us in our mother’s womb. [Arnold Gesell, The Embryology of Behavior (Harper & Bros., 1945.)] Quickening is only a relative concept which depends upon the sensitivity of the mother, the position of the placenta, and the size of the child."

"In the sixth month, the child develops a strong muscular grip with his hands. He also starts to breathe regularly and can maintain respiratory response for twenty-four hours if born prematurely. He may even have a slim chance of surviving in an incubator. The youngest children known to survive were between twenty to twenty-five weeks old. The concept of viability is not a static one."

"In the fifth month, the baby gains two inches in height and ten ounces in weight. By the end of the month he will be about one foot tall and will weigh one pound. Fine baby hair begins to grow on his eyebrows and on his head and a fringe of eyelashes appear. Most of the skeleton hardens. The baby’s muscles become much stronger, and as the child becomes larger his mother finally perceives his many activities. The child’s mother comes to recognize the movement and can feel the baby’s head, arms and legs. She may even perceive a rhythmic jolting movement—fifteen to thirty per minute. This is due to the child. The doctor can now hear the heartbeat with his stethoscope. The baby sleeps and wakes just as it will after birth. When he sleeps he invariably settles into his favorite position called his “lie.” Each baby has a characteristic lie. When he awakens he moves about freely in the buoyant fluid turning from side to side, and frequently head over heel.... The child hears and recognizes his mother’s voice before birth. Movements of the mother, whether locomotive, cardiac or respiratory, are communicated to the child."

"Every child shows a distinct individuality in his behavior by the end of the third month. This is because the actual structure of the muscles varies from baby to baby. The alignment of the muscles of the face, for example, follow an inherited pattern. The facial expressions of the baby in his third month are already similar to the facial expressions of his parents. Further refinements are noted in the third month. The fingernails appear. The child’s face becomes much prettier. His eyes, previously far apart, now move closer together. The eyelids close over the eyes. Sexual differentiation is apparent in both internal and external sex organs, and primitive eggs and sperm are formed. The vocal cords are completed. In the absence of air they cannot produce sound; the child cannot cry aloud until birth, although he is capable of crying long before."

"The development of the child, while very rapid, is also very specific. The genetic pattern set down in the first day of life instructs the development of a specific anatomy. The ears are formed by seven weeks and are specific, and may resemble a family pattern. The lines in the hands start to be engraved by eight weeks and remain a distinctive feature of the individual. The primitive skeletal system has completely developed by the end of six weeks. This marks the end of the child’s embryonic (from Greek, to swell or teem within) period. From this point, the child will be called a fetus (Latin, young one or offspring). In the third month, the child becomes very active. By the end of the month he can kick his legs, turn his feet, curl and fan his toes, make a fist, move his thumb, bend his wrist, turn his head, squint, frown, open his mouth, press his lips tightly together. He can swallow and drinks the amniotic fluid that surrounds him. Thumb sucking is first noted at this age. The first respiratory motions move fluid in and out of his lungs with inhaling and exhaling respiratory movements."

"From conception the child is a complex, dynamic, rapidly growing organism. By a natural and continuous process the single fertilized ovum will, over approximately nine months, develop into the trillions of cells of the newborn. The natural end of the sperm and ovum is death unless fertilization occurs. At fertilization a new and unique being is created which, although receiving one-half of its chromosomes from each patient, it really unlike either."

"The crux of the moral and legal debate over abortion is, in essence, the right of the woman to determine whether or not she should bear a particular child versus the right of the child to life. The proponents of liberalization of abortion laws speak of the fetus as “a blob of protoplasm” and feel it has no right to life until it has reached a certain stage of development. On the other hand, the opponents of liberalization maintain the fetus is human from the time of conception, and so interruption of pregnancy cannot be justified from the time of fertilization. It most certainly seems logical that from the stage of differentiation, after which neither twinning nor re-combination will occur, the fetus implanted in the uterine wall deserves respect as a human life. If we take the definition of life as being said to be present when an organism shows evidence of individual animate existence, then from the blastocyst stage the fetus qualifies for respect. It is alive because it has the ability to reproduce dying cells. It is human because it can be distinguished from other non-human species, and once implanted in the uterine wall it requires only nutrition and time to develop into one of us. The recent recognition of autonomy of the unborn child has led to the development of new medical specialties concerning the unborn child from the earliest stages of the pregnancy. Modern obstetrics has discarded as unscientific the concept that the child in the womb is but tissue of the mother.... Yet the attack on the Texas statute assumes this discredited scientific concept and argues that abortions should be considered no differently than any medical measure taken to protect maternal health (see appellant’s brief), thus completely ignoring the developing human being in the mother’s womb."

"Personal privacy is an exalted right but, as in marital privacy, it has never been regarded as absolute. A person may be subjected to a “stop and frisk” though it constitutes an intrusion upon his person, or a person may be required to submit to a vaccination, and a blood sample may forcibly be extracted from the body of an individual arrested for suspicion of driving while intoxicated. A woman has been required to submit to a blood transfusion necessary to preserve her life in order that her small child shall not be left without a mother. The “right of privacy” is a highly cherished right—however one which is nowhere expressly mentioned in the Constitution of the United States or its amendments."

"Proponents of abortion-on-demand assert that anti-abortion laws unlawfully intrude into the privacy of the physician-patient relationship. They assume necessarily that the doctor treating a pregnancy owes an obligation of good medical care to only one patient, the pregnant woman.... As a patient of the obstetrician, the child may recover damages for a prenatal injury suffered as the result of the negligence of his doctor. It is elemental that a doctor cannot be freed from legal restraints in making socio-moral judgments. The state may regulate the medical profession to protect the health and welfare of all its citizens. Appellants’ contentions of intrusion upon physician-patient relationship are not self-sustaining and must be associated with and connected to a violation of some basic right."

"VI. The Constitution of the United States Does Not Guarantee a Woman the Right to Abort an Unborn Fetus. One must recognize the interest of a husband and wife in preserving their conjugal relations from state interference, an interest which, in Griswold v. Connecticut (1965), was found to be violated by Connecticut’s statute forbidding the use of contraceptives. This law interfered with the most private aspect of the marital relation, sexual intercourse, making it criminal for a couple to engage in sexual intercourse when using contraceptives. In contrast, the usual statute restricting abortions does not affect the sexual relations of a couple except under some circumstances and only for a limited time. Prevention of abortion does not entail, therefore, state interference with the right of marital intercourse, nor does enforcement of the statute requiring invasions of the conjugal bedroom. Assuming arguendo that there are other marital rights the state must respect, may it then be urged that the right of marital privacy includes the freedom of a married couple to raise and educate a child they do not want, or commit infanticide, incest, engage in pandering and the like. Family privacy, like personal privacy, is highly valued, but not absolute. The news media may publicize the events that occur when a family is victimized by criminals though they seek seclusion. The family may not practice polygamy, may not prohibit schooling for a child, or prohibit the child’s labor, or expose the community or a child to communicable disease."

"It is obvious that the legislative decision forbidding abortions also destroys potential life—that of the pregnant woman—just as a legislative decision to permit abortions destroys potential life. The question then becomes not one of destroying or preserving potential, but one of who shall make the decision. Obviously some decisions are better left to a representative process since individual decisions on medical facilities, wars, or the release of a convict would tend toward the chaotic. It is our contention that the decision on abortion is exactly the opposite. A representative or majority decision making process has led to chaos. Indeed, in the face of two difficult, unresolvable choices—to destroy life potential in either a fetus or its host—the choice can only be left to one of the entities whose potential is threatened. The above argument is perhaps only another way of stating that when fundamental rights are infringed upon, the State bears the burden of demonstrating a compelling interest for doing so. The question of the life of the fetus versus the woman’s right to choose whether she will be the host for that life is incapable of answer through the legislative fact-finding process. Whether one considers the fetus a human being is a problem of definition rather than fact. Given a decision which cannot be reached on the basis of fact, the State must give way to the individual for it can never bear its burden of demonstrating that facts exist which set up a compelling state interest for denying individual rights."

"Once the fact that science can offer no guidance on the question of when human life begins is conceded, arguments concerning preservation of the fetus almost always fall back to the proposition of potential life."

"Thus science only leads to a worse quandary for obviously if one goes far enough back along the continuum of human development one encounters the existence of sub-microscopic double-helix molecules which have human life potential. When does something become human?"

"It is sometimes argued that scientific discoveries show that human life exists in the fetus. Scientific studies in embryology have greatly expanded our understanding of the process of fertilization and development of the fetus and studies relating to the basic elements of life have shown that life is not only present in the fertilized egg, sperm and ova but that each cell contains elements which could conceivably constitute the beginning of a new human organism. Such studies are significant to science but only confuse the problem of defining human life."

"The State does not require that a pregnant woman with a history of spontaneous abortion go into seclusion in an attempt to save the pregnancy. No pregnant woman having knowingly engaged in conduct which she reasonably could have foreseen would result in injury to the fetus (such as skiing in late pregnancy) has ever been charged with negligent homicide. No formalities of death are observed regarding a fetus of less than five months gestation. Property rights are contingent upon being born alive. There has never been a tort recovery in Texas as the result of injury to a fetus not born alive. No benefits are given prior to birth in situations, such as workman’s compensation, where benefits are normally allowed for “children.”"

"First, the pregnant woman who searches out a person willing to perform an abortion and who consents to, if not pleads for, the procedure is guilty of no crime. Texas courts have repeatedly held that the woman is neither a principal nor an accomplice. Similarly, the women who travel from Texas to states with less restrictive abortion laws in order to secure medical abortions and avoid the alleged state interest in protecting the fetus are guilty of no crime. Moreover, self-abortion has never been treated as a criminal act. The State has failed to seek to deter through criminal sanctions the person whose interests are most likely to be adverse to those of the fetus. This suggests a statutory purpose other than protecting embryonic life. An unborn fetus is not a “human being” and killing a fetus is not murder or any other form of homicide. “Homicide” in Texas is defined as “the destruction of the life of one human being by the act, agency, procurement, or culpable omission of another.” Since the common law definition of “human being” is applicable, a fetus neither born nor in the process of birth is not a “human being” within the meaning of those words as they appear in the homicide statute. In Keeler v. Superior Court (Cal. 1970), a pregnant woman was assaulted by her former husband; a Caesarean section and examination in utero revealed that the fetus, of approximately thirty-five weeks gestation, had died of a severely fractured skull and resultant hemorrhaging. The California Supreme Court held the man could not be guilty of murder; the same result would apply in Texas. A fetus is not considered equal to a “human being,” and its destruction involves a significantly lesser penalty."

"As counsel for appellee admitted during oral argument, “the State only has one interest and that is the protection of the life of the unborn child.” The question then becomes whether this interest is sufficiently compelling to overcome the couple’s or woman’s fundamental right to privacy and autonomy. In this regard it is revealing to examine other aspects of the State’s attitude toward the fetus. Such an inquiry reveals that only in the area of abortion does the State exhibit an interest in the fetus or treat it as having legal personality."

"As shown earlier, medical abortion is a safe and simple procedure when performed during the early stages of pregnancy; indeed, it is safer than childbirth. This fact alone vitiates any contention that the statute here serves a public health interest. Numerous state and federal courts have taken notice of this fact and concurred that no health rationale supports a statute like the one here. See e.g. People v. Belous (Cal. 1969). Moreover, no concern for mental health justifies the statute, for it does not permit abortion even if a woman’s mental health is threatened. Such a view is untenable for the additional reason that abortion is a procedure without clinically significant psychiatric sequelae. Additional data reveal that statutes like the one here actually create “a public health problem of pandemic proportions” by denying women the opportunity to seek safe medical treatment. Severe infection, permanent sterility, pelvic disease, and other serious complications accompany the illegal abortions to which women are driven by laws like this one. Any notion that less restrictive abortion laws would produce excessive demands on medical resources and thereby endanger public health also is unfounded. The experience in New York City after one year under an elective abortion law dispels any such fears.... The absence of a public health problem accompanying less restrictive abortion is indicated by comparative mortality rates: for the first eleven months of operation, the mortality for abortion in New York City is approximately equal to that of tonsillectomy in the United States. Against this background of medical fact, there is no support whatever for the suggestion that public health is an interest protected by this statute."

"The state must demonstrate a legitimate interest to impair doctors’ rights to practice their profession. Historically, the interest asserted by the state is a health interest, and courts have upheld laws designed to ensure the quality of medical practice. Similarly, statutes have been upheld which require doctors’ intervention in sales of medically-related products in order to protect public health. None of the above interests are applicable here, however. The statute in question here does not protect the public from unqualified practitioners. Rather the statute applies to laymen and physicians alike. Indeed, it endangers patients’ health by unduly confining doctors’ exercise of medical judgment.... Further, the statute addresses no other legitimate state interest."

"The First, Ninth, and Fourteenth Amendments protect the right of every citizen to follow any lawful calling, business, or profession he may choose, subject only to rational regulation by the state as necessary for the protection of legitimate public interests. In reviewing legislation affecting the medical profession, courts have particularly respected the knowledge and skill necessary for medical practice, the broad professional discretion necessary to apply it, and the concomitant state interest in guaranteeing the quality of medical practitioners.... Similarly, courts have been alert to protect medical practice from rash or arbitrary legislative interference.... Most recently, this Court, in United States v. Vuitch (1971), recognized that “doctors are encouraged by society’s expectations...and by their own professional standards to give their patients such treatment as is necessary to preserve their health.” The Vuitch decision went on to construe the term health to encompass “psychological as well as physical health,” and “‘the state of being sound in body or mind.’” Here, the practice of medicine clearly includes the treatment of pregnancy and conditions associated with it. However, the Texas statute prohibits physicians from administering the appropriate remedy to preserve the patient’s health or well-being. Physicians are not required to forego the right to make medically sound judgments and to act upon them with respect to any other human disease or condition. With appropriate consents they may administer electric shock therapy, excise vital organs, perform prefrontal lobotomies and take any other drastic action they believe indicated. They are not indictable for these actions. However, obstetricians and gynecologists who are asked to abort their patients for sound medical reasons risk a prison sentence if they do so. The statute severely infringes their practice and seriously compromises their professional judgments."

"The decisions of this Court which implicitly recognize rights of marital and personal privacy have been followed by state and federal court decisions expressly holding the decision of abortion to be within the sphere of constitutionally protected privacy. That there is a fundamental constitutional right to abortion was the conclusion of the court below in the instant case.... That view has been shared by a number of other courts which have considered the question and have affirmed that this is a fundamental right.... Without the ability to control their reproductive capacity, women and couples are largely unable to control determinative aspects of their lives and marriages. If the concept of “fundamental rights” means anything, it must surely include the right to determine when and under what circumstances to have children."

"When pregnancy begins, a woman is faced with a governmental mandate compelling her to serve as an incubator for months and then as an ostensibly willing mother for up to twenty or more years. She must often forego further education or a career and often must endure economic and social hardships. Under the present law of Texas she is given no other choice. Continued pregnancy is compulsory, unless she can persuade the authorities that she is potentially suicidal or that her life is otherwise endangered. The law impinges severely upon her dignity, her life plan and often her marital relationship. The Texas abortion law constitutes an invasion of her privacy with irreparable consequences. Absent the right to remedy contraceptive failure, other rights of personal and marital privacy are largely diluted."

"Pregnancy obviously does have an overwhelming impact on the woman. The most readily observable impact of pregnancy, of course, is that of carrying the pregnancy for nine months. Additionally there are numerous more subtle but no less drastic impacts. Without the right to respond to unwanted pregnancy, a woman is at the mercy of possible contraceptive failure, particularly if she is unable or unwilling to utilize the most effective measures. Failure to use contraceptives effectively, if pregnancy ensues, exacts an exceedingly high price."

"This Court has previously upheld the right to use contraceptives to avoid unwanted pregnancy [Griswold v. Connecticut (1965)]. As did the law considered in Griswold, “[t]his law...operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.” The Texas abortion law in forbidding resort to the procedure of medical abortion, has a maximum destructive impact upon the marriage relationship. In addition to rights associated with marital privacy, an overlapping body of precedent extends significant constitutional protection to the citizen’s sovereignty over his or her own physical person."

"The Supreme Court issued its first abortion opinion on January 22, 1973. That opinion, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) has ushered in a quarter century of criticism by many academic commentators. In so doing, the Supreme Court created a right to abortion (essentially abortion on demand) that was broader than the abortion rights granted by almost any other western nation. It also federalized the abortion issue, an issue that had been left in the custody of the states for nearly two centuries. Though a fragmented Court itself later backtracked on Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), it did not overrule all of Roe because, as the O’Connor-Kennedy-Souter plurality candidly stated, it was important to respect precedent. Thus we are left with Roe and the new right that it created, even though a majority of the Justices on the Court today acknowledge that Roe should be accepted simply because it is precedent, not because it is grounded in our constitution."

"In a very brief opinion, the Menillo Court simply stated that “Roe teaches that a State cannot restrict a decision by a woman, with the advice of her physician, to terminate her pregnancy during the first trimester.” 423 U.S. at 10-11, 96 S.Ct. at 171 (emphasis added.) Prosecution of a non-physician for performing an abortion, “[e]ven during the first trimester of pregnancy” infringes “upon no realm of personal privacy secured by the Constitution against state interferences.” 423 U.S. at 11, 96 S.Ct, at 171. A woman has no right to choose a non-doctor to perform an abortion, even though a woman can choose a non-doctor, such as a midwife, to deliver a full-term baby. Later cases have confirmed that Roe was primarily drafted to protect doctors, not their patients. Thus, the Court has said, in Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 2831, 49 Led.2d 586 (1979), that “neither the legislature nor the courts” can define viability objectively, “be it weeks of gestation, or fetal weight, or any other single factor,” because the judgment of the doctor must control."

"Those people who insist that no statute should limit Roe in any way, those who believe that we must follow Roe without change, without dotting another “i” or crossing another “t”-those advocates should read that decision and the others that follow in its wake. The decision is not about protecting women; it is about protecting doctors."

"Importantly, public opinion also mirrors the conceptual framework used in the 1973 landmark Roe v. Wade abortion decision. Under that historic ruling, the interests of the mother are paramount in the first trimester, but the state has an interest in protecting the fetus after viability. In the words of the decision: "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 necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." The wording of Roe v. Wade aligns almost perfectly with where Americans stand on late-term abortions -- keep them legal to save the life of the mother and in cases of rape and incest, but not for other reasons. Where Americans seem to depart from the decision is in supporting certain restrictions on first-term abortions, particularly those performed because of Down syndrome or solely at the woman's discretion. Roe v. Wade took the power of outlawing abortion out of states' hands, making it legal throughout the country. But its invitation to regulate abortion in ways focused on the health of the mother, as well as to protect the "potentiality of human life" after viability, has enabled states to pass numerous laws limiting how and when abortion can be legally performed. Many of these restrictions are likely consistent with Americans' sensitivities to abortion, but that alignment could change."

"Recently, in Roe v. Wade, 410 U. S. 113, 410 U. S. 152-154 (1973), the importance of procreation has, indeed, been explained on the basis of its intimate relationship with the constitutional right of privacy which we have recognized. Yet the limited stature thereby accorded any "right" to procreate is evident from the fact that, at the same time, the Court reaffirmed its initial decision in Buck v. Bell. See Roe v. Wade, supra, at 410 U. S. 154."

"The title of Worst Joke in Legal History belongs to one of history's highest-profile cases. Defending Texas's abortion restrictions before the Supreme Court, attorney Mr. Jay Floyd decided to open oral argument with a sexist joke. Arguing against two female attorneys, Floyd begins: “It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.” The joke is demeaning and (as Floyd himself admits) unoriginal, but it also lacks the saving grace of at least being funny. A recording of the oral argument, which can be listened to here, demonstrates just how badly the joke bombed with the Supreme Court. Painful silence endures for just over three seconds. Not captured on the recording are the physical reactions of the justices. According to the later recollection of one of the “beautiful ladies” arguing against Floyd, Chief Justice Warren Burger was so furious that he almost rushed down “right off the bench at him. He glared him down.” Dr. Ryan Malphurs, a scholar of Supreme Court humor (yes, there is such a thing), describes how “Floyd struggled to gain momentum through the rest of his argument.” A flustered Floyd responds to Justice Thurgood Marshall’s questioning with the stunning admission that these are “unanswerable questions,” a response that earns derisive laughter. (Thurgood Marshall replies, “I appreciate it.”) Floyd apologizes for his “artless statement,” which garners even more laughter. The man who had attempted to begin with a joke ends as the object of comedy. When the Supreme Court requested re-argument on Roe v. Wade eleven months later, Floyd was gone. Floyd’s disastrous “beautiful ladies get the last word” is the greatest failed joke in U.S. legal history, and some claim it is the worst joke of all time, in any setting. It occurred on the highest possible stage, in a high-profile case, while also (here’s the spoiled icing on the collapsed cake) managing to be a sexist joke during a landmark women’s rights case. But did the failed Roe v. Wade joke actually affect the Court’s eventual 7-2 ruling? This seems highly unlikely. The only justice who conceivably could have been affected by Floyd’s argument was Chief Justice Burger. Burger was a conservative who later voted to restrict abortions – and yet he voted with the Roe v. Wade majority. So was Burger swayed to vote for abortion rights based on Floyd’s calamitous oral argument? Probably not – most scholars have explained Burger’s vote in Roe as a simple strategic move. (So long as he voted with the majority, Burger, as Chief Justice, could control who wrote the majority opinion in Roe, and thus partially control what that opinion said.)"

"These facts should give conservative opponents of Roe pause. Can it be that they have misunderstood the central tenets of their own philosophy? Do they have a good account of why this philosophy should apply to all sorts of other choices, but not to the choices made by women about whether to bear a child? Many anti-Roe activists would no doubt respond that the abortion decision is different because it is not merely self-regarding. The rights of another entity-the fetus-are at stake. If this were true-if the fetus were an appropriate rights bearer-this argument would have considerable force. But some Roe supporters deny that it is true. One thing that has persisted for the quarter-century since Roe was decided-and is likely to persist for the indefinite future-is moral disagreement among intelligent and well-intentioned people about the moral status of the fetus. Some conservative opponents of Roe claim that this moral disagreement serves to undermine Roe. If people disagree about abortion, they argue, and if the disagreement cannot be settled by reference to the text of the Constitution or the intent of the framers, should not the disagreement be settled by the political process? Does not Roe therefore reflect indefensible judicial activism?"

"I will strike down Roe v. Wade, but I will also strike down a law that is the opposite of Roe v. Wade. You know, both sides in that debate want the Supreme Court to decide the matter for them. One wants no state to be able to prohibit abortion and the other one wants every state to have to prohibit abortion, and they’re both wrong . . . that’s how I read the Constitution."

"The Rev. Robert Schenck, one of the evangelical pastors who worked with McCorvey after her conversion to Christianity in the mid-1990s, looked stunned as he was shown her interview as part of the documentary. Schenck said the anti-abortion movement had exploited her weaknesses for its own ends and acknowledged she had been paid for her appearances on the movement’s behalf. “What we did with Norma was highly unethical,” Schenck said in the documentary. “The jig is up.”"

"In a separate blog post on Tuesday, Schenck said he hoped people would watch “AKA Jane Roe.” “You’ll see me express profound regret for how movement leaders (like me) mistreated Norma,” he wrote in the blog. “Her name and photo would command some of the largest windfalls of dollars for my group and many others, but the money we gave her was modest. More than once, I tried to make up for it with an added check, but it was never fair.”"

"Roe v. Wade (1973) made substantial use of that lack of protection for procreation in modifying the law on abortion."

"In a recent opinion concurring in part and dissenting in part from the Supreme Court’s decision to affirm the constitutionality of an Indiana law requiring the humane disposition of fetal remains following abortion and decline to review the constitutionality of that state’s ban on abortions solely for reasons of genetic, racial, or sex discrimination, Justice Ginsburg stated explicitly: “A woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother.’” Box v. Planned Parenthood, 139 S.ct. 1780, 1793 n.2 (2019) (Ginsburg, J., concurring in part). She was responding to Justice Thomas’s use of the word to refer to a woman who has obtained an abortion, so it is possible that she meant after an abortion is completed, a woman is no longer a mother. But it is also possible she meant to say that is solely the intention to parent that determines parenthood rather than a biological reality. It is this latter notion that the anthropology of embodiment rejects."

"In 1973, the U.S. Supreme Court ruled that the state’s important and legitimate interest in potential life becomes “compelling” at the point of fetal viability. After viability, the state’s interest allows it to regulate and eve n prohibit all abortions, with the exception of those necessary to preserve the life or health of the mother. Viability was signified as the point at which the fetus is “potentially able to live outside the mother’s womb albeit with artificial aid,” and presumably capable of “meaningful life outside the mother’s womb.” The Court indicated that this point, at that time, “is usually placed” at about 7 months or 28 weeks, but may occur earlier (see CRS Issue Brief 95095). The Court further ruled that a state may regulate the abortion procedure in ways that reasonably relate to preserving and protecting maternal health during the gestation period following approximately the end of the first trimester (after 12 weeks of gestation). However, for the period before this point (up to 12 weeks), the abortion decision and its effectuation must be left to the pregnant patient and the medical judgement of the her attending physician."

"Protecting access to the full range of reproductive health care, including abortion, is a critical business issue. Efforts to further restrict or criminalize that access would have far-reaching consequences for the American workforce, the U.S. economy and our nation’s pursuit of gender and racial equity."

"The child whose conception was the genesis of the lawsuit that became Roe v. Wade is now a 51-year-old woman ready to tell her story. Shelley Lynn Thornton has come forward after decades of secrecy to publicly identify herself as the "Roe baby" in the new book "The Family Roe: An American Story" by Joshua Prager, which will be released on Sept. 14 and was excerpted in The Atlantic on Thursday. “My association with Roe started and ended because I was conceived," Thornton is quoted saying in the excerpt. Her birth mother's lawsuit became the landmark 1973 Supreme Court case that secured the right for women to legally have an abortion across the country, even though she never went through with the procedure. "In his majority opinion, Justice Harry Blackmun noted that a 'pregnancy will come to term before the usual appellate process is complete,'" Prager writes. Still, the Dallas waitress' challenge to the Texas law resulted in a sweeping change of the laws across the country."

"What I think is that it just doesn't have the stable status of Brown or Miranda because it's been under internal and external assault pretty much from the beginning."

"As a constitutional matter, I think Roe was way overreached. I wouldn’t vote to overturn it myself, but that’s because I think it’s good to preserve precedent in general, and the country has sufficiently relied on it that it should not be overruled."

"In the Court’s first confrontation with the abortion issue, it laid down a set of rules for legislatures to follow. The Court decided too many issues too quickly. The Court should have allowed the democratic processes of the states to adapt and to generate sensible solutions that might not occur to a set of judges."

"What I think is that it just doesn’t have the stable status of Brown or Miranda because it’s been under internal and external assault pretty much from the beginning…. As a constitutional matter, I think Roe was way overreached. I wouldn’t vote to overturn it myself, but that’s because I think it’s good to preserve precedent in general, and the country has sufficiently relied on it that it should not be overruled."

"The Washington Post reports on an interesting new analysis by the National Campaign to Prevent Teen Pregnancy. The campaign, noting that U.S. teen birthrates fell 30% between 1991 and 2002, calculates that if those rates had instead remained constant, there would be some 406,000 additional children living below the federally defined poverty line and some 428,000 living in households with single mothers. Since 1991 was exactly 18 years after Roe v. Wade, we got to wondering if the Roe effect might have something to do with all this. The Roe effect would predict that the effect of a reduction in birthrates would be greatest in liberal states, where pregnant teenagers would be more likely to exercise their "right to privacy" and thus less likely to carry their babies to term. The campaign's numbers seem to bear this out."

"The argument of this chapter is that there is a fundamental difference between what the U.S. Supreme Court did in its 1973 Roe v. Wade decision and what the Supreme Court of Canada subsequently did in its 1988 ruling in Morgentaler v. The Queen. In the United States the high court created a constitutional right to an abortion, thus barring any governmental regulation unless it could withstand the highest judicial standard of strict scrutiny (and few could), whereas in Canada the high court declared the existing statute unworkable and, furthermore, invited Parliament to rework that legislation. To say that today both countries have legalized abortion as an elective procedure is to miss the point. In the United states elective abortions during the first trimester have been constitutionalized as a right; in Canada elective abortions are legal only because Parliament thus far has refused to act. If Congress wanted to overturn Roe v. Wade, it would have to garner two-thirds votes in the House and Senate and then obtain the approval of three-fourths of the states for a constitutional amendment. Parliament, to reverse the effect of Morgentaler v. The Queen (1988), would need only to enact new legislation (which presumably also would be challenged in court). In other words, the legal status quo in Canada is the result of legislative default-the failure of Parliament to act in the affirmative."

"What led the Supreme Court in 1973 to legalize abortion during the first trimester of a pregnancy was the privacy doctrine articulated in Griswold v. Connecticut (1965) and its extension via the equal-protection clause in Eisenstadt v. Baird (1972). Griswold v. Connecticut (1965) was a birth control case in which contraceptive use was declared to be a privacy right inferred from various provisions of the Bill of Rights and the language of the Ninth Amendment, which reads: “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Neither privacy nor abortion is mentioned anywhere in the constitution or the Bill of Rights, so Justice Douglas in Griswold v. Connecticut (1965) resorted to finding “penumbras” and “emanations” from the First, Third, Fourth, Fifth, and Ninth Amendments. As he declared: [Prior] cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations form those guarantees that help give them life and substance. . . . various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”"