Abortion In The United States

"Roe v. Wade was sort of conjured up out of very general phrases and was recorded, even by most liberal scholars like Archibald Cox at the time, John Harvey Link—just to name two Harvard scholars—as kind of made-up constitutional law."

"The Supreme Court came close to virtually overturning Roe v. Wade, according to papers of the late Justice Harry Blackmun being released today. NPR's Nina Totenberg was the only broadcast journalist granted advance access to 1,576 boxes of his files and 38 hours of oral history tapes. In the first of a series of reports, Totenberg examines shifts within the court that allowed the Roe ruling to be maintained. The Blackmun papers reveal that the court's first vote was to overrule Roe in all but name, Totenberg reports on Morning Edition. But as the issue came to a head, Chief Justice William Rehnquist and the court's three other anti-Roe justices were blindsided by three centrist justices who worked together in secret to preserve a woman's right to an abortion. The 1992 abortion case was Planned Parenthood v. Casey, in which the first Bush administration was pushing hard for the reversal of Roe, the landmark 1973 ruling authored by Blackmun. Justice Anthony Kennedy initially voted with the anti-Roe conservatives, giving them a majority of five, but he subsequently changed his vote to support, not eviscerate Roe, the Blackmun papers show. The switch came even as Rehnquist, was circulating a so-called majority opinion that would have left Roe a meaningless shell, Totenberg reports."

""It's the legal equivalent of a nuclear bomb," NPR's Nina Totenberg, the dean of Supreme Court reporters, noted, adding that it's possible this ruling opens the door for the potential "for undoing other areas of personal autonomy," from contraception to interracial marriage."

"UNLIKE Yeats’ “rough beast, its hour come round at last,” substantive due process may yet enjoy an auspicious second coming. For the Supreme Court’s 1972 Term points the way toward a conception of substantive due process that may avoid the fate of that doctrine’s earlier incarnation in American constitutional law. This Foreword will venture a tentative exploration of the “widening gyre” implicit in several of the Court’s recent decisions."

"Roe AND Rodriguez: THE CHALLENGE Last year in these pages, Gerald Gunther proposed a revitalized enforcement of the constitutional requirement that legislative means substantially further legislative ends. For the pragmatic reason that “due process carries a repulsive connotation of value-laden intervention for most of the Justices, of the Burger Court as well as the Warren Court,” Professor Gunther suggested that the inquiry could “best be carried forward under the banner of equal protection than due process . . . .” But in San Antonio Independent School District v. Rodriguez, its major opportunity this Term to scrutinize a means-end relationship."

"“One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”"

"And in Roe v. Wade and Doe v. Bolton, when the Court had its most dramatic opportunity to express its supposed aversion to substantive due process, it carried that doctrine to lengths few observers had expected, imposing limits on permissible abortion legislation so severe that no abortion law in the United States remained valid."

"Given that the Supreme Court long ago determined that the Constitution protects a woman’s right to choose an abortion, the ultimate issue in this appeal is whether the State of Mississippi can impose a regulation that effectively will close its only abortion clinic. The State of Mississippi, however, argues that Mississippi citizens can obtain an abortion in Tennessee, Louisiana, or Alabama without imposing an undue burden upon Mississippi citizens in the exercise of their constitutional rights."

"Today, we follow the principle announced by the Supreme Court nearly fifty years before the right to an abortion was found in the penumbras of the Constitution and hold that Mississippi may not shift its obligation to respect the established constitutional rights of its citizens to another state. Such a proposal would not only place an undue burden on the exercise of the constitutional right, but would also disregard a state’s obligation under the principle of federalism—applicable to all fifty states—to accept the burden of the non-delegable duty of protecting the established federal constitutional rights of its own citizens."

"WASHINGTON -- The woman whose famous abortion case led to the Supreme Court's Roe vs. Wade decision said in an interview released Tuesday she lied when she told lawyers her unwanted pregnancy was the result of a gang rape. Norma McCorvey, the woman called 'Jane Roe' in the famous 1973 decision that said women had a constitutional right to an abortion, told WUSA-TV in an interview to be broadcast Sept. 13 that she fabricated the rape story to get around a Texas law that banned abortions except to save the mother's life."

"Sarah Weddington, the Austin, Texas, lawyer who represented McCorvey, told United Press International Tuesday, 'The issue of how Jane Roe became pregnant is irrelevant to the case. There was nothing in any of the papers filed with the court or in any of the oral arguments made that related to the cause of the pregnancy. 'Rather, the case was about a young woman who was pregnant, who didn't want to be pregnant, and who had been denied an abortion because of the provisions of the Texas anti-abortion statute. All of these facts are true. No fact was ever presented to the court unless I was certain we could prove it,' she said."

"While rape was never an issue in the case, public opinion was considered swayed by the media accounts detailing what McCorvey claimed was a gang rape by three men and a woman while she worked for a circus in Georgia. 'I found out I was pregnant through what I thought was love,' McCorvey said in the interview with Carl Rowan. 'When I came back to Texas ... I went to my doctor. ... I told him I wanted an abortion, that I did not want to carry the child because of economic reasons. ... He told me that abortions were illegal in the state of Texas and that I would have to go to another state in order to obtain a legal abortion.' In the interview with the Washington CBS affiliate, McCorvey said, 'How dare them tell me that I couldn't abort a baby that I did not want ... and couldn't have control over my own body.' McCorvey said she had the baby and put it up for adoption, then told the rape story to the lawyers who took her case to the Supreme Court."

"To the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases."

"It thus appears that the mansion of constitutionalized abortion law, constructed overnight in Roe v. Wade, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be.")"

"In discussing early American law pertaining to abortion, the Supreme Court stated that “most of [the] initial statutes dealt severely with abortion after quickening but were lenient with it before quickening.” The Court also emphasized the fact that the Connecticut Legislature did not amend its 1821 antiabortion statute to proscribe pre-quickening abortions until 1860. These statements are quite misleading. At the end of 1868, twenty-seven of the thirty states with antiabortion statutes prohibited attempts to induce abortion “before” quickening."

"In short, the Supreme Court’s analysis in Roe v. Wade of the development, purposes, and the understandings underlying the nineteenth century antiabortion statutes, was fundamentally erroneous. That analysis can provide no support whatsoever for the Court’s conclusions that the unborn children are not “persons” within the meaning of the fourteenth amendment, and that states do not otherwise have a “compelling interest” in protecting their lives by prohibiting abortion. A correct analysis of these statutes weighs entirely and heavily against these conclusions, to the extent that these conclusions depend on the purposes and understandings of the legislatures which proposed, ratified, and legislated in purported compliance with the fourteenth amendment. If the Supreme Court is to be faithful to the purposes and understandings of those who enacted and have implemented the fourteenth amendment, it must reevaluate and overrule its decision in “Roe”."

"In their quieter moments, many liberal scholars recognize that the decision is a mess."

"In the view of influential feminist legal scholars, Roe v. Wade weakened the ability of both movements to campaign effectively for the rights of the poor and women of color for whom Jackson spoke. Scholars and advocates such as Catherine MacKinnon, Rhonda Copelon, and Martha Minow have suggested that Roe’s privacy framework paved the way for laws and judicial decisions denying access to public facilities or funding for abortions, constraining “the emerging jurisprudence of privacy within a framework that produced inequalities.” Viewed in this way, Roe is supposed to have “undercut . . . arguments . . . for the rights of caretakers” and served “to siphon off deeper challenges to our scientistic, capitalist society.”"

"MR. STEWART: Mr. Chief Justice, and may it please the Court: Roe versus Wade and Planned Parenthood versus Casey haunt our country. They have no basis in the Constitution. They have no home in our history or traditions. They've damaged the democratic process. They've poisoned the law. They've choked off compromise. For 50 years, they've kept this Court at the center of a political battle that it can never resolve. And 50 years on, they stand alone. Nowhere else does this Court recognize a right to end a human life."

"JUSTICE THOMAS: General Stewart, you focus on the right to abortion, but our jurisprudence seems to -- seem to focus on, in Casey, autonomy; in Roe, privacy. Does it make a difference that we focus on privacy or autonomy or more specifically on abortion?"

"JUSTICE BREYER: I assume you've read Casey pretty thoroughly."

"MR. STEWART: I'm -- I'm sorry, Your Honor. What I'd emphasize, Your Honor, is that to the extent that -- that the -- I would not say it was the people that -- that called this Court to end the controversy. The people – you know, many, many people vocally really just wanted to have the matter returned to them so that they could decide it -- decide it locally, deal with it the way they thought best and at least have a fighting chance to have their view prevail, which was not given to them under Roe and then, as a result, under Casey."

"MR. STEWART: On all the metrics that Casey was describing or the vast bulk of them, Casey fails. And I'd also emphasize this as well, Justice Breyer, that Casey was not -- was – was not a -- a great example of simply letting precedents stand. It -- it recast Roe's reasoning. It overruled two of the Court's most important abortion decisions. It jettisoned the trimester framework of Roe itself and adopted a new standard unknown to other parts of the law."

"MR. STEWART: Casey gave one paragraph to the workability of Roe. It then adopted the undue burden standard, which is perhaps the most unworkable standard in American law. It gave about three paragraphs, if memory serves, to reliance, which doesn't account for the last 30 years and the changes that have occurred since Casey. It did -- it -- it gave a brief factual view to things that have changed since Roe. Those, of course, are not going to take account of the last 30 years of advancements in medicine, science, all of those things."

"CHIEF JUSTICE ROBERTS: In fact, if I remember correctly, and I -- it's an unfortunate source, but it's there -- in his papers, Justice Blackmun said that the viability line was -- actually was dicta. And, presumably, he had some insight on the question."

"MR. STEWART: I don't think it was squarely at issue, Your Honor. Again, it's -- it's a little hard not to take the Court at its word when it emphasized that viability -- the -- that viability is -- is the central part of Roe -- Roe's holding and saying that it is reaffirming that, so we kind of take that as it -- as it stands. But the Court has not – it did not face a law like this certainly, Mr. Chief Justice."

"JUSTICE SOTOMAYOR: Counsel, there's so much that's not in the Constitution, including the fact that we have the last word. Marbury versus Madison. There is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means. It was totally novel at that time. And yet, what the Court did was reason from the structure of the Constitution that that's what was intended. And, here, in Casey and in Roe, the Court said there is inherent in our structure that there are certain personal decisions that belong to individuals and the states can't intrude on them. We've recognized them in terms of the religion parents will teach their children. We've recognized it in -- in their ability to educate at home if they choose. They just have to educate them. We have recognized that sense of privacy in people's choices about whether to use contraception or not. We've recognized it in their right to choose who they're going to marry. I fear none of those things are written in the Constitution. They have all, like Marbury versus Madison, been discerned from the structure of the Constitution."

"JUSTICE KAGAN: I guess what strikes me when I look at this case is that, you know, not much has changed since Roe and Casey, that people think it's right or wrong based on the things that they have always thought it was right and wrong for."

"JUSTICE KAGAN: I mean, it strikes me that people -- some people think those decisions made the right balance and some people thought they made the wrong balance, but, in the end, we are in the same exact place as we were then, except that we're not because there's been 50 years of water under the bridge, 50 years of decisions saying that this is part of our law, that this is part of the fabric of women's existence in this country, and that that places us in an entirely different situation than if you had come in 50 years ago and made the same arguments."

"Julie Rikelman: In Casey, this Court carefully examined and rejected every possible reason for overruling Roe, holding that a woman's right to end a pregnancy before viability was a rule of law and a component of liberty it could not renounce. The question then is not whether Roe should be overturned but whether Casey was egregiously wrong to adhere to Roe's central holding."

"Casey and Roe were correct. For a state to take control of a woman's body and demand that she go through pregnancy and childbirth with all the physical risks and life-altering consequences that brings is a fundamental deprivation of her liberty. Preserving a woman's right to make this decision until viability preserve -- protects her liberty while logically balancing the other interests at stake."

"CHIEF JUSTICE ROBERTS: Are -- are you suggesting that the difference between 15 weeks and viability are going to have the same sort of impacts as you were talking about -- or as we were talking about in Roe?"

"MS. RIKELMAN: I would refer the Court to the brief of the economists in this case, Your Honor, and it compiles data showing studies based actually on causal inference, showing that it's the legalization of abortion and not other changes that have had these benefits for women in society, and, again, those benefits are clear for education, for the ability to pursue a profession, for the ability to have –"

"JUSTICE BARRETT: So are you saying -- I mean, actually, as I read Roe and Casey, they don't talk very much about adoption. It's a passing reference that that means out of the obligations of parenthood. But, as I hear this answer then, are you saying that the right as you conceive of it is grounded primarily in the bearing of the child, in the carrying of a pregnancy, and not so much looking forward into the consequences on professional opportunities and work life and economic burdens?"

"MS. RIKELMAN: Your Honor, it -- certainly, the arguments that the state has presented is what we're responding to there, which is that all of the state's arguments, including their alternatives, which are undue burden without viability, would be the equivalent of overruling Casey and Roe because the viability line is the central holding of those cases. Casey mentioned it no fewer than 19 times. And the Court in June Medical just a year ago affirmed that the viability line is the central holding of both Casey and Roe."

"Justice Alito: But suppose we were considering that question now for the first time. I'm sure you know the arguments about the viability line as well as I do, probably better than I do. What would you say in defense of that line? What would you say to the argument that has been made many times by people who are pro-choice and pro-life that the line really doesn't make any sense, that it is, as Justice Blackmun himself described it, arbitrary? The -- the woman's -- if a woman wants to be free of the burdens of pregnancy, that interest does not disappear the moment the viability line is crossed. Isn't that right?"

"MS. RIKELMAN: [I]f I may answer your earlier question about whether viability was squarely at issue in Casey, it clearly was, Your Honor. At pages 869 to 871, the Court squarely discussed viability because the government had made the argument that viability was arbitrary --"

"JUSTICE THOMAS: Back to my original question. If I were -- I know your interest here is in abortion, I understand that, but, if I were to ask you what constitutional right protects the right to abortion, is it privacy? Is it autonomy? What would it be?"

"MS. RIKELMAN: Because the view that a previous precedent is wrong, Your Honor, has never been enough for this Court to overrule, and it certainly shouldn't be enough here when there's 50 years of precedent. Instead, the Court has required something else, a special justification. And the state doesn't come forward with any special justification. It makes the same exact arguments the Court already considered and rejected in its stare decisis analysis in Casey."

"JUSTICE THOMAS: I understand we're talking about abortion here, but what is confusing is that we -- if we were talking about the Second Amendment, I know exactly what we're talking about. If we're talking about the Fourth Amendment, I know what we're talking about because it's written. It's there. What specifically is the right here that we're talking about?"

"GENERAL PRELOGAR: Well, there are multiple reliance interests here, as I think Casey correctly recognized. Casey pointed to the individual reliance of women and their partners who had been able to organize their lives and make important life decisions against the backdrop of having control over this incredibly consequential decision whether to have a child. And people make decisions in reliance on having that kind of reproductive control, decisions about where to live, what relationships to enter into, what investments to make in their jobs and careers. And so I think, on a very individual level, there has been profound reliance. And it's certainly the case that not every woman in America has needed to exercise this right or has wanted to, but one in four American women have had an abortion, and for those women, the right secured by Roe and Casey has been critical in ensuring that they can control their bodies and control their lives."

"The past thirty years have witnessed a continuous battle over the legitimacy of Roe that has shaped not only the abortion right but also the composition of the federal courts, and American politics generally. Hence, this is also a book about the role of courts in defining and enforcing fundamental rights in a constitutional democracy and how the work of courts necessarily interacts with and is affected by the work of legislatures, political parties, and social movements."

"In each generation, a handful of Supreme Court decisions crystallize the problems and tensions in American constitutional theory and raise crucial questions about the proper role of the courts in interpreting the Constitution in a democracy. Brown v. Board of Education was such a case for the generation of the 1950s and 1960s. Roe v. Wade has proven to be the key case for the generation of scholars that came afterward. Brown and Roe differ in many respects, but perhaps the most important difference is the degree of public acceptance each has enjoyed. Like Roe v. Wade, Brown v. Board of Education was hotly contested in the first few years after it was decided. For a decade or more, the legitimacy of Brown was bitterly disputed in the South. However, ten years after the decision, Congress ratified the result in Brown in Title VI of the Civil Rights Act of 1964. The success of the Civil Rights Movement altered the racial attitudes of most Americans. In the years that followed, Brown was transformed from a flashpoint of controversy into a hallowed icon that symbolized Americans’ aspirations toward equality and human rights. In subsequent controversies over busing, affirmative action, and the expansion of civil rights to women and gays, people no longer disputed whether Brown v. Board of Education was correct. Rather, different groups of Americans, both liberal and conservative, attempted to seize the mantle of Brown for themselves, arguing that they were the true adherents of Brown and that their opponents were distorting its meaning for political ends. The political debate was framed within the parameters set by Brown, rather than as a debate over the legitimacy of Brown itself. The story of Roe v. wade would be very different. No Civil Rights Act of 1983 ratified the result in Roe ten years after the case was decided. The second wave of American feminism did change American attitudes about gender equality. But Roe v. Wade also energized conservative and religious social movements that were deeply hostile to the decision. These social movements became important features of contemporary politics and helped produce the American party system as we know it today."

"In contrast to Brown, many Americans-and particularly many American politicians-continue to argue that Roe v. Wade was wrongly decided and should be overruled. Since 1980, the platform of one of the country’s two major political parties-the Republicans-has called for overturning the decision. Roe has not become a hallowed icon like Brown but rather has remained a site of political and legal controversy. For this reason, the debate over abortion rights has not occurred solely within the framework set by Roe but has continually put the very legitimacy of the decision into question. And, since the 1980s, debates about federal judicial nominations have often focused, directly or indirectly, on the continued vitality and authority of Roe."

"The title of this book, What Roe v. Wade Should Have Said, might suggest that changing the language of the opinion might have changed history. That may or may not be the case. The exact language of a decision may matter much less than most people (and most legal scholars) think. Most Americans do not read Supreme Court opinions and have only the vaguest idea of their contents. Moreover, whatever the original language, no decision is immune from subsequent revision, especially a controversial one like Roe v. Wade. Judges and Justices reshape and transform older decisions to conform with current concerns. The meaning of Roe was transformed repeatedly over time, and substantial features of Roe were jettisoned and replaced by the 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey."

"[L]ike many great and controversial cases, Roe has spurred people to offer and defend different theories of constitutional interpretation. Some have tried to offer accounts of why the result (if not the precise reasoning) in Roe is consistent with sound constitutional interpretation, while others have pointed to Roe as the central example of a decision that lacks fidelity to the Constitution and sound interpretive principles. Several of the contributors to this volume have distinctive theories of how that Constitution should be read and interpreted. Rewriting Roe is a good way of putting those theories to the test. This second reason leads naturally to a third: Roe v. Wade has become a key point of controversy in an ongoing debate about the role of courts in a constitutional democracy. Roe has been a central example in debates about when courts should recognize and guarantee rights that are opposed by significant segments of society, an the legitimacy of courts’ trying to do so. Rewriting Roe is a good way to address these important questions, and many of the opinions in this book are deeply concerned with the proper role of the judiciary three decades after Roe."

"If “Brown v. Board of Education” is America’s most hallowed modern Supreme Court decision, Roe v. Wade is surely its most controversial. In 1973, Roe v. Wade struck down the abortion laws of most of the states in a single opinion, but it did not settle the question of abortion rights in America. Far from it: Roe was merely the opening event in a political and legal struggle over reproductive rights that continue to this day. Roe energized new social movements that eventually divided the two major political parties over abortion rights and reshaped their respective coalitions. Securing and expanding the right to abortion became a central concern of the women’s movement, while opposition to Roe v. Wade awakened the sleeping giant of religious conservatives, who in turn helped shape the contemporary Republican Party. In the process, Roe v. Wade became a central issue in federal judicial nominations, symbolizing not only the issue of reproductive freedom but also the larger question of the proper role of courts in a democratic society. Attacking and defending the principles and reasoning of Roe v. Wade has been a central preoccupation of constitutional theorists ever since it was decided. It is hardly an exaggeration to say that, more than any other Supreme Court decision, Roe v. Wade has defined the constitutional jurisprudence and the constitutional debates of the modern era."

"Justice Harry A. Blackmun, who had been appointed by President Richard Nixon in 1970, wrote the majority opinions in both Roe and Doe. He argued that the right of privacy recognized in Griswold and extended to single persons in Eisenstadt “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” Denying the right to choose would impose a “detriment . . . on the pregnant woman,” including possible medical and psychological harm. Child care could tax a woman’s mental and physical health. Blackmun also pointed to “the distress, for all concerned, associated with the unwanted child, and . . . the problem of bringing a child into a family already unable, psychologically and other-wise, to care for it, [as well as] the additional difficulties and continuing stigma of unwed motherhood.” Nevertheless, the central problem with extending the right of contraception to abortion was that abortion ended the existence of an embryo or fetus. Counsel for Texas argued that human life began at conception, tat a fetus was a person under the meaning of the Fourteenth Amendment, and therefore that a fetus had constitutional rights of its own. Blackmun responded that the fetus was not a person within the meaning of the Constitution, point out that in many places the Constitution referred to the rights and duties of persons that would make to sense if applied to fetuses. He also noted that abortion was not a felony at common law before “quickening”, the point at which a fetus’s movement could be felt by a pregnant woman, which usually occurred in the fourth or fifth month of pregnancy. Nevertheless, the State of Texas argued, even if the fetus was not a person, the state had a compelling interest in protecting the life of the fetus. That compelling interest could be vindicated only by prohibiting abortion."

"None of the Justices believed that the right to abortion extended to the very moment of birth. At some stage in the pregnancy, the state’s interest in protecting the fetus became sufficiently compelling that states could proscribe abortion in almost all cases other than when necessary to preserve the woman’s life or health. To determine when that point occurred, Blackmun effectively had to decide when the life of the fetus “began” at least to the extent of deciding when the state’s interest in protecting the fetus became compelling."

"The trimester system was actually the result of a compromise among the Justices. Blackmun’s original idea was that a woman had the right to an abortion without interference from the state until the end of the first trimester. During the first trimester, the abortion decision was left to “the best medical judgment of the pregnant woman’s attending physician.” Afterward states could limit legal abortions to “stated reasonable therapeutic categories”-such as the woman’s physical or mental health-“that are articulated with sufficient clarity” to give physicians fair warning. The idea was that health regulations were unnecessary until the second trimester because first-trimester abortions were as safe for women as carrying the fetus to term. However, Justices William Brennan and Thurgood Marshall objected that the first trimester didn’t give women enough time to discover that they were pregnant, find a doctor, and take the necessary steps to obtain an abortion. Marshall, in particular, was worried about the effect of Blackmun’s rule on poor and minority women. Blackmun agreed that the first trimester was an arbitrary point, and he responded by pushing the cutoff point to the moment of viability. However, Blackmun believed that states should still be able to regulate abortions for health reasons after the first trimester. In effect, this produced three different sets of rules for three different trimesters. Brennan responded that the point of viability was imprecise. The Court did not have to specify a specific cutoff point but should leave that question to “medically informed” legislatures I the first instance. However, Blackmun ignored this suggestion, and the result was Roe’s trimester framework."