Abortion In The United States

"When they filed suit in Roe, Weddington and Coffee based their case on the right to privacy in Griswold. But Stearns still did her best to bring equal protection to the attention of the justices. The court scheduled the argument in Roe for December 1971, and she filed a friend-of-the-court brief (a supplemental submission that courts may or may not take into account). She sent me a copy of the pages. “The express guarantee of equal protection was originally designed to protect Black people,” Stearns wrote. “Since that time, its protection has been greatly extended.” Mbr> Stearns cited Supreme Court precedents that recognized the 14th Amendment rights of Chinese immigrants, Mexican Americans and poor people. Turning to her claims on behalf of women, she described the lack of protections for single mothers and employment policies that required pregnant women to take a leave of absence or quit their jobs. Stearns also pointed out that when Texas banned abortion in 1907, women did not have the right to vote."

"Months after the Supreme Court’s ruling, John Hart Ely, a renowned and liberal Yale law professor, eviscerated Blackmun’s opinion in The Yale Law Journal. Ely said that if he were a legislator, he would vote to legalize abortion. He understood why Griswold was about privacy, because forbidding the use of contraception would require “the most outrageous sort of governmental prying into the privacy of the home.” But Roe was not a case about governmental snooping. Ely recognized that becoming pregnant, in the wrong circumstance, can ruin a person’s life. But the potential life of the fetus also “hangs in the balance,” creating a moral dilemma the court did not “even begin to resolve.” Roe, as Blackmun wrote it, had “nothing to do with privacy in the Bill of Rights sense” and was thus untethered from the Constitution, making the decision “frightening.” Ely’s article “sent Roe into the world disabled,” Greenhouse told me. “It really was very damaging. Not because the American public cared about doctrine — they cared about results — but because it left Roe without friends in high places.”"

"In law as in life, timing is everything. The court issued Blackmun’s opinion in Roe just days after Ruth Bader Ginsburg, then a 39-year-old lawyer, argued before the court for the first time in a landmark sex-discrimination suit. The court ruled in Ginsburg’s favor in that case a few months later and in a series of others in the years that followed. But at the time of Roe, “the court was only on the verge of constructing a jurisprudence of women’s rights,” Greenhouse and Reva Siegel, the Yale law professor, pointed out in an essay in the 2019 book “Reproductive Rights and Justice Stories.” The justices could have taken a leap toward equal protection in Roe. But they weren’t prepared to. It turns out, though, that Stearns and her fellow feminist lawyers got serious consideration from a court about equal protection in their Connecticut case, Abele v. Markle. Before the Supreme Court’s ruling in Roe, a three-judge panel heard their challenge to Connecticut’s near-ban on abortion, with more than 850 women as plaintiffs. Judge Jon O. Newman wrote the opinion for the majority. “I thought about invoking gender discrimination,” Newman, now 90, told me this month. “But I concluded I would not go down that road.” As a lower-court judge, he focused on Supreme Court precedent, which meant Griswold. “I thought, marital privacy is a part of liberty that the Supreme Court has told me exists,” Newman said, explaining why that was the justification he gave for striking down Connecticut’s law in September 1972. It’s hard to claim, with any certainty, that Roe would have proved less divisive if the right to abortion in America had a sounder constitutional basis from the start. Many who support bans and restrictions do so because they think abortion is murder. Maybe they agree that carrying an unplanned pregnancy can impose a huge cost. But unless the person’s life is physically at stake (the rare exception to almost every abortion ban), supporters of restrictions believe it’s right, at some point in a pregnancy, to make a woman carry the fetus to term."

"In important ways, the Supreme Court strengthened Roe decades ago. In June 1992, in the case Planned Parenthood of Southeastern Pennsylvania v. Casey, a new five-justice majority on the Supreme Court affirmed Roe’s central holding and addressed its weaknesses. The authors of Casey included Sandra Day O’Connor, the first female justice. They spoke in clear terms of gender equality, recognizing that the right to choose whether and when to have a child made it easier for women “to participate equally in the economic and social life of the nation.”"

"Casey satisfied Ely, and he wrote a letter to Blackmun supporting the decision. (“Blackmun never responded,” Greenhouse told me. “I think he was still very hurt.”) By then, however, Roe had other prominent critics, including Ruth Bader Ginsburg, who said sex discrimination would have been a stronger rationale for the decision in a 1985 article in The North Carolina Law Review. Nine months after Casey, Ginsburg made waves by giving a lecture at New York University’s law school in which she said that Roe “might have been less of a storm center” if it had taken her incremental approach to building a jurisprudence about gender discrimination. Ginsburg’s words troubled abortion rights leaders, some of whom questioned her nomination to the Supreme Court when Bill Clinton picked her in June 1993."

"Justice Ginsburg almost got a chance to fill in what she saw as Roe’s missing piece. In 2007, she wrote an opinion in Gonzales v. Carhart, a challenge to a type of late-term procedure, that squarely framed the constitutional right to abortion in terms of equal rights for women. But Justice Anthony M. Kennedy joined the court’s four other conservatives to form a majority, leaving Ginsburg with a dissent, which had the force of her ardent feminism but not of law. In 2009, when I interviewed Ginsburg for this magazine, she said her main concern about abortion was the lack of access for poor women (because the court decided, in 1980, that Congress could forbid the use of Medicaid for medically necessary abortions). I asked if repositioning Roe on the basis of women’s equality was on the feminist wish list. “Oh, yes,” she said."

"Justice Samuel A. Alito Jr. dismissed the equality argument for abortion rights in the leaked draft majority opinion, published by Politico this month, which would overturn Roe. “The regulation of a medical procedure that only one sex can undergo,” he wrote, is constitutional unless it is a “mere pretext designed to affect an invidious discrimination.” Alito landed on this phrase by quoting a 1974 decision, Geduldig v. Aiello, which was a low point for feminists at the Supreme Court. In that case, six justices ruled that California could exclude women with pregnancy complications from receiving benefits from a state disability fund that covered other conditions. The state wasn’t discriminating against women — it was merely distinguishing between “pregnant women and nonpregnant persons,” the court said. Congress addressed the inequity by passing the Pregnancy Discrimination Act in 1978, and before Alito’s opinion, the Supreme Court had not relied on the Geduldig decision for 30 years."

"When I called Stearns to ask her about Alito’s opinion, she hadn’t yet brought herself to read it. But she had already gone with friends to a protest over the impending end of Roe. “We were the old ladies in tennis shoes,” she said. Stearns was thinking about the decades of backlash to Roe. Could anything have prevented it? “We made the argument,” she said. “It got lost for some people.” The feminists of the 1970s tried to give future generations freedom and equality, as they saw it. Now that era may end soon, Alito’s draft opinion suggests."

"Author of the abortion decision, Associate Justice Harry A. Blackmun said softly and slowly, as if restudying the phrase. We all pick up tags. I'll carry this one to my grave. When the Supreme Court legalized abortion 10 years ago, it used Justice Blackmun's words, carving his niche in American history. I knew it was a no-win case, but I didn't ask for the assignment, Justice Blackmun, in a rare on-the-record interview, said recently of how he came to write the opinion. I am mildly annoyed at those, law professors included, who personalize it, the Justice said of the landmark ruling in Roe v. Wade. It was a decision of the court, not my decision. There were seven votes."

"Justice Blackmun is convinced, however, that the Supreme Court was on solid legal ground when it ruled that a woman's constitutional right of privacy includes the right to end an unwanted pregnancy. I still think it was a correct decision, he said. We were deciding a constitutional issue, not a moral one."

"Justice Blackmun said he could not estimate how much time he had devoted to the ruling on Roe v. Wade, which was announced Jan. 22, 1973. A lot, he answered when he was asked the question. More than any other case I've ever handled. He said he could only guess why Chief Justice Burger picked him to write the decision, and he asked that his thoughts on that topic not be made public. For the record, he acknowledged that for many his role as author of the abortion decision will overshadow the rest of his work in a Supreme Court tenure dating back to 1970. In a voice betraying neither rancor nor remorse, Justice Blackmun said, So be it."

"Twenty-five years ago tomorrow, Justice Byron White wrote in his Roe v. Wade dissent, “as an exercise of raw judicial power, the Court perhaps has authority to do what it does today.” This seems correct, but also paradoxical. How can raw power possess or acquire the leigimacy authority? Justice White meant, I think, that the Court’s decision, though arbitrary, and thus in the worst sense political, would nevertheless be treated as the law of the land by the American people. Justice White was prophetic. Roe has been criticized more than any Supreme Court decision in history, but it has proved to be resilient and effective. How has the Court managed what seems such a great public relations victory? The main reason is the Court’s success last presenting itself as a uniquely principles tribunal, this pluralistic society’s last resort for settling in a non-arbitrary way our most volatile issues."

"Justice White’s prophecy still troubles. Is Roe a constitutional measurement, as the majority said it was, or is it raw power? With recent public access to Thurgood Marshall’s papers, we can see a little bit of what must have been the basis of Justice White’s charge. My colleague, Douglas Kmiec, as gone through those papers looking at the opinion drafts and interoffice memos in the run-up to January 22, 1973, and Kmiec testified over on the House side some months ago. His conclusion:: There is virtually no evidence of constitutional study or consideration. There is little other argument or discussion in the internal correspondence of the Roe Court touching the substance of constitutional law. So, did the Roe Court choose to recognize abortion rights based upon the predilections, pure and simple of the Justices sitting that term?"

"It is now almost 25 years since a prominent Harvard law professor, John Ely, wrote that, Roe is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be. Pro-choice scholars have, I think, tacitly conceded Ely’s criticism, for they have labored hard to supply the justification for Roe that the Roe Court did not. None of these scholarly attempts has, in my view, succeeded, and some of these efforts have been especially troubling. Some scholars, eager to support the legal historical claims relied upon by the Roe Court, has submitted briefs in the Supreme Court, notably the Webster case, which some scholars knew made false claims about the history of abortion law."

"Note well: if Ely’s indictment is well-founded-as momentarily I shall show it is-then Roe was indeed an arbitrary resolution of the abortion matter, no different in kind from the bare minimum that our politics could have supplied. The charge is an especially grave one. For if the charge is proved, then the Roe Court is guilty not only of false advertising, but of resolving this critical matter by standards which the Justices themselves say are unfit for a free people under this Constitution-by mere “predilection”. And if abortion is a question to which no just or principled answer is possible-a proposition I deny but which the Court evidently affirms then the question must be resolved according to someone’s “predilections.” By the Justice’s own account, that is the business of the people, acting through their elected representatives. We have, one might well say, a “principled” means under our constitution for settling inescapably arbitrary” matters-democracy, the ballot box. Can the Roe Court avoid this charge of arbitrariness? It cannot. I wish today to make that case by investigating a so far unnoticed future of the Roe opinion. I consider it dispositive evidence in favor of Justice White’s charge, seconded by Ely, that Roe represents power, pure and simple."

"Recall that the court, speaking through Justice Blackmun, said that there were two novel claims of right presented for decision. Both claims arose under the Due Process clause of the Fourteenth Amendment. They were “novel” in the sense that, again as Justice Blackmun saw it, neither had yet been recognized by the Supreme Court. These were, of course, the claim that unborn children-the “fetus”, per the Court-were “persons” with a right to “life” guaranteed by the Due Process Clause, and the female plaintiff’s claim that the “liberty” protected by that clause included a liberty to abort. The court recognized that both claims mattered much to those making them. But one had priority; the court said that if the unborn’s claim prevailed, the plaintiff’s case dissolved."

"Justice Blackmun in Roe resisted the unborn’s claim, so devastating to the appellant’s case, for several articulated reasons: (1) No case could be cited holding the fetus a person within the meaning of the Fourteenth Amendment; (2) none of the many uses of the term “person” in the Constitution indicated, “with any assurance, that it ha[d any possible pre-natal application; (3) abortion restrictions were “far freer” (Backmun’s phrase) when the Amendment was adopted “than they were today”, suggesting that the unborn were not “persons” in some whole sense he thought presupposed by counsel for the unborn. In this connection, Justice Blackmun took note of some alleged inconsistencies between Texas’ very restrictive law, and how even it fell short of the constitutional requirements which would be implied by a finding of fetal personhood. Specifically, abortion was not “murder” in Texas, but a lesser form of criminally punishable homicide. And, abortions were permitted to save the life of the mother. Blackmun cleaved closely to constitutional text, history contemporaneous with its enactment, and decided cases. He examined the “coherence” on controversial propositions asserted by the parties with settled principles of law. This is a good general approach to constitutional construction; indeed, it is originalism, or something very close to it."

"Had Justice Blackmun applied the same criteria to the woman’s assertion of right under the Fourteenth Amendment that he applied to the claim of fetal personhood, Roe would have come out differently. Were constitutional text, precedent, and nineteenth century legislative practices (as well as anomalies forces into contemporary legislative practice) the measure of the claim, an attorney who claimed that the Constitution required abortion-on-demand would face Rule 11 sanctions. If the method of the day was to be originalism, then the unborn were sure winners. Blackmun applied no such criteria to the woman’s claim. H marshaled some cases-Skinner, Pierce, Griswold, Eisenstadt-but admitted that the abortion situation was “inherently different” due to the presence of the fetus-from all of them. Blackmun noted the distress caused by an unwanted pregnancy, but only after asserting that “this right of privacy * * * is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” The “distress” of abortion to the unborn was far greater, so much so that if recognized as a “person” with a right to life, the woman’s distress, by Justice Blackmun’s own account, would justify no abortion at all. Perhaps the only plausible interpretation of this part of Roe is that the woman’s distress caused, at least in part, the adverse treatment of the unborn. This is a tragically mistaken way to analyze the situation."

"This is the time to notice the weaknesses of Blackmun’s arguments, even without doubting the general validity of his (near) originalism. For example, what the constitution usually means by “person” is not dispositive of what it mean in each particular usage. Corporations are “persons” for some purposes but not for others. Context-especially the particular action, status, or adverse treatment which is the subject matter of a clause-is central to understanding what each clause means by “person.” “Person” can be and should be defined retail- not wholesale. It is obvious that much of the rhetorical force of Justice Blackmun’s listing of the various usages of “person” stems from the inapplicability of them to the unborn. His citations to the constitutional text proved way too much; almost all of his references not only applied “postnatally”, as he said, but way “postnatally”. His references to the qualification for elected office, extradition eligibility, emoluments, etc., apply only to adults."

"Justice Blackmun’s coherence arguments are severely undercut by his naïve assumption that “personhood” means no abortions at all. He noted some features of the law of homicide which would be anomalies if the unborn were truly persons. It is certainly the case that abortion has been distinguished as a particular form of homicide, punishable approximately as manslaughter, with the important caveat that women procuring abortions were rarely prosecuted at all. Abortion has not been a class of applications of murder prohibitions. What does all this show? Not nearly what the Roe Court thought it showed. Justice Blackmun examined the case for “fetal personhood” under the Fourteenth Amendment’s Due Process Clause. It says. “[N]or shall any state deprive any person of life, liberty, or property, without due process of law; !* * *.” He seems to have thought that a successful argument for fetal personhood would constitutionally prohibit all abortions. He said that if fetal personhood could be established, the case for abortion liberty “of course, collapses, for the fetus’s right to life is then guaranteed specifically by the Amendment.”"

"Has the arbitrariness of Roe v. Wade been overcome since 1973? No. Here the discussion must focus on the 1992 decision of the Court in “Planned Parenthood v. Casey”, which reaffirmed “the central holding” of Roe. In Casey we hear the Court (the “joint opinion” of Justices Kennedy, Souter, O’Connor) note the disagreement among us about the “profound moral and spiritual implications” of abortion. “[B]ut that cannot control our decision. Our obligation is to define the liberty of all, not mandate our own moral code.”"

"Were the matter not so deadly serious the Justices’ attempts to supply the principles rationale Roe lacked would be subject of sport. The Justices said that “liberty” includes the “right to define one’s own concept of existence, of meaning, or the universe.” Really? Does the law which prohibits killing have no point of view? Besides, how does this “mystery passage” tell us who counts as a person with such an expansive right? Elsewhere in Casey the Justices said that the right o bear children depends upon the right to abort. All of us, regardless of our views about abortion, exercise the same right, and thus all of us can and should support abortion rights. Except, of course, those who draw a principled distinction between killing and nurturing life. Much has been written of these feeble attempts to mask judicial arbitrariness, and I have written some of it. But, I submit, the real “rationale” of Casey is, simply, Roe itself and the passage of time. Casey: An “entre generation has come of age free * * * to make reproductive decisions,” including the decision to abort.” Roe was based on a constitutional analysis –[sic] which we cannot now repudiate.” Roe v. Wade was indeed “raw judicial power”. And so it should surprise no one that the reaffirmation in Casey, has not silenced its critics. Tomorrow’s march here in D.C. will evidence the Court’s failure to persuade. And the march will again be testimony to the decency and law abidingness of our people. They will wonder tomorrow about the Casey retreated into the status quo. Some of the people marching tomorrow will remember Brown v. Board of Education, the decision handed down in 1954. Some of them will know that John W. Davi, who represented the segregationist states, made more than one argument, but his most forceful one was this. Davis cited the Court to its own holding nearly sixty years before, in Plessy v. Ferguson, and to six succeeding cases which, David said, affirmed Plessy. “Separate but equal”, Davis said in so many words, may not be all that the law should be, but it was the Court’s word, and the fact was that an entire culture-the South and parts of the North-had grown up around segregation. Plessy should not now be repudiated. The difference between Davis’ argument and the argument of the Casey Court is approximately one generation. The moral truth prevailed in 1954. We should hope and pray that we do not wait another generation until the truth about the unborn is finally heard, and heeded, in our highest Court."

"Although Harry claimed to be unsure of his wife’s position on abortion, Dottie told one of his law clerks (a young male attorney who favored laissez-faire abortion) that she was doing everything she could to further the cause. “You and I are working on the same thing,” she told the law clerk. “Me at home and you at work.” To write his opinions, Harry retired to the Justices’ second-floor library, where he spent most of his waking hours in silent solitude, laboriously working at a long mahogany desk. Months passed, As the winter snows melted into spring and D.C.’s cherry blossoms burst into bloom. Harry remained squirreled away in the library. When at last in mid-May Harry showed a draft of his Roe opinion for the first time to one of his politically leftist law clerks, the clerk claimed to be “astonished” the draft was so crudely written and poorly organized. When he circulated the draft on May18, 1972, to the other justices, Harry’s more liberal colleagues on the bench-Justices William Douglas, William Brennan, and Thurgood Marshall-were disappointed, whereas conservative Justice Byron White strongly dissented. Why were Douglas and Marshall so disappointed? Catholic feminist Mary Meehan suggests one possible reason. Meehan reports, “Justices Douglas and Marshall had been lacking in sexual restraint-to put it mildly-well before the ‘60s, and the problems of both were aggravated at times by heavy drinking. Perhaps they realized that legal abortion could be extremely helpful to men-enabling them to escape paternity suits, years of child support, social embarrassment, and the wrath of betrayed wives. But none of this, of course, would be mentioned in the Court’s opinions.” Meehan reports that in 1961 Justice Douglas had also written to Population Bomb pamphleteer Hugh Moore, saying, “I have seen some of the literature… all of which I thought was excellent.” In any case, when harry failed to produce a competent pro-abortion draft of his opinions, he got flak from his colleagues. Having vowed to do his best “to arrive at something which would command a court,” Harry withdrew the draft, asking that all copies be returned to him. He planned to do more work on his opinions over the summer. In late July 1972, Harry flew to Rochester to immerse himself in research at the Mayo Clinic medical library. Meanwhile, his politically liberal, $15,000-a-year law clerk George Frampton Jr., age twenty-eight, volunteered to stay in Washington until early August to help research and draft the opinions. The two talked by phone almost daily."

"An early draft Henry wrote on the history of abortion in his small, cramped longhand reveals he was still struggling. Writing is difficult, and Harry wasn’t much of a writer. On the subject of abortion, Harry was finding it hard to think clearly. Young George, on the other hand, was an excellent writer. He’s graduated from Harvard Law School in 1969 (where he was managing editor of the Harvard Law Review), and he had at his fingertips an extraordinarily handy resource-a high persuasive book entitled “Abortion: The first authoritative and documented report on the laws and practices governing abortion in the U.S. and around the world, and how-for the sake of women everywhere-they can and must be reformed..” Yes, indeed. It was Larry Lader’s masterpiece of propaganda, the same book that had so greatly impressed Betty Friedan. Lader’s masterpiece of propaganda supplied much of the historic background Blackmun’s opinion had previously lacked. But more important Lader’s book provided a coherent form or template that tied together the many disconnected fragments of thought that had previously kept Blackmun’s abortion opinions from working. In all-new sections on the history of abortion written by George and dated August 10, 1972, Lader’s book suddenly appears in the footnotes for the first time."

"In a lengthy five-page, single-spaced letter, typed on legal-size paper, which he sent to Harry along with the draft, George made an unusual suggestion. He suggested that Harry consider circulating this new draft before it was cite-checked by a clerk. Cite-checking it detailed fact-checking to ensure that a judicial decision is sound. Why would a junior law clerk suggest circulating a draft that hadn’t been cite-checked? George was eager for Harry to circulate his draft before oral arguments were reheard in October-for three reasons: He wrote that circulating the revised draft before oral argument would “nail down [Blackmun’s] keeping the assignment,” “should influence questions and thinking at oral argument,” and “might well influence voting.” Though George stated he would not recommend delayed cite-checking “as standard operating procedure,” he thought that in this particular case the benefits strongly outweighed the disadvantages."

"We don’t know when or even if the history section in Blackmun’s abortion opinions was ever cite-checked. But we do know that if it happened, the fact-checking was faulty. For when Blackmun accepted Larry Lader, a mere magazine writer, as a reliable authority on history, philosophy, and theology, he became as a blind man following a blind guide. Despite his best efforts, Harry failed to see he had embraced a well-crafted verbal mirage, mistaking it for the truth. Let us be very clear about what happened here. The picture that emerges from Blackmun’s papers, available for public inspection at the U.S. Library of Congress, is that of a justice who, in the words of Pulitzer Prize-winning, pro-abortion historian David J. Garrow, “ceded far too much of his judicial authority to his clerks.” It is plain from an inspection of Blackmun’s papers that his clerks made “historically significant and perhaps decisive contributions to Roe and Doe”-a degree of involvement Garrow calls “indefensible.”"

"Lader set himself up as an authority on centuries of abortion legal history and also on two millennia of Catholic teachings about abortion-and Blackmun and his clerk fell for the ruse. In the final version of the Roe v. Wade decision, Lader’s masterpiece of propaganda is cited at least seven times, and Cyril Chestnut Means’ scholarly papers are cited another seven times. Cyril Means, you’ll recall from Chapter 4, was the NARAL attorney who falsified abortion legal history, fabricating his own version almost entirely out of whole cloth. Lader, of course, was just a clever wordsmith-certainly no expert on history. And yet as the late Notre Dame theologian father James Burtchaell observed, it is “clear in the record that Justice Blackmun was indebted for the innards of his argument to two of the major strategists of the abortion movement”-Means and Lader."

"In any case, Harry was deceived by Lader’s propaganda, six other black-robed men on the bench went along with the ruse and the tragic result was the U.S. Supreme Court’s most controversial decision since the Dred Scott v. Sandford decision denied personhood to black Americans in 1857."

"”The immediate academic response to Roe v. Wade,” observed New York Times pro-abortion reporter Linda Greenhouse, “ranged from tepid to withering.” The first critiques came from the left."

"Americans in general and lawmakers in particular have not considered fully the legal implications of a serious reformulation or wholesale destruction of Roe. If the day does come when such a decision is handed down, Americans, whether they commiserate or celebrate, will have to wake up the next morning and decided what to do. And one need look no further than our state legislatures, which in response to ‘’Webster’’ have enacted legislation strikingly similar to pre-Roe law, to realize the impact of such a Supreme Court ruling."

"The Supreme Court’s 1973 decisions in “Roe v. Wade” and “Doe v. Bolton” created a constitutional regime for abortion, fencing off, as a matter of constitutional law, much of the ground on which state abortion laws had tread for over one hundred years. These decisions affected state abortion legislation in two ways. First, while not prohibiting all criminal sanctions for abortion, they removed abortion, for all practical purposes, from the realm of criminal conduct. Second, while the Court ended the era of criminal abortion, it also left the door open for the states to promulgate regulations concerning abortion, ushering in a new era. “Roe’s” landmark holding declared that the fundamental constitutional right to privacy includes the right to have an abortion and that any state legislation limiting that right must be justified by a compelling state interest. In particular, the “Roe” Court found that Texas’s abortion statute, typical of the nineteenth-century criminal-abortion laws, violated that fundamental right. In “Doe”, the Court declared that Georgia’s statute, a typical 1960s “reformed” law patterned after the Model Penal Code, also violated the newly established constitutional right. As a result, the Court had rendered virtually every abortion statute passed since Connecticut started the enterprise in 1821 unconstitutional. For practical purposes, criminal abortion was dead. While states retained considerable regulatory leeway, abortion no longer could be branded a crime, at least for the first and probably also the second trimester of pregnancy. “Roe” also recognized, however, that states retained a compelling interest in the health of the mother after the first trimester. The Court further acknowledged a compelling state interest in fetal life as of the third trimester. States, then, were free to pass laws reasonably related to the furtherance of those interests. While states theoretically could have responded to the Court’s instructions by enacting new criminal laws barring “unhealthy’ abortions in the second trimester and all abortions after viability, for the most part they did not do so. The longstanding criminal-abortion statutes had been deemed unconstitutional because they flatly violated a fundamental right. The entire enterprise of criminalizing conduct related to abortion thus was called into question by the Supreme Court’s rulings To criminalize at certain stages of pregnancy the very conduct declared constitutionally protected at other stages of pregnancy would have challenged too directly the new understanding of abortion advanced by the Court. Instead, states wishing to limit the exercise of abortion rights launched a new enterprise, one which “Roe” explicitly invited: they restricted access to abortion by strictly regulating it rather than by branding it criminal."

"The Court, in the years following Roe, policed the constitutional abortion right by declaring which of these new state regulations exceeded the leeway granted in Roe and which did not Some regulations carried criminal penalties, but no state attempted to ban abortion altogether at any stage of pregnancy. Instead, states used regulations to construct obstacle courses that women had to navigate before they could exercise their constitutionally protected abortion right. The Court, however, declared that certain regulations impermissibly infringed on the constitutional right. It held that a state could not require spousal consent to abortion or prohibit a particular method of abortion in the first trimester. It refused to allow states to require hospitalization for all second-trimester abortions or to require that a woman listen to a “parade of horribles” about abortion before she obtained one. And the Court refused to allow states to require doctors to exercise a prescribed degree of care to save the fetus in postviability abortions and to require that two doctors be present during postviability abortions."

"Nonetheless, the Court did approve a variety of regulations governing the practice of abortion. It held that the states were free to define “viability” and to require recordkeeping and of abortions. The Court permitted Congress and the states to discriminate against abortion in the dispensation of medical funding to the poor by denying funding for abortions. The Court permitted states to require parental consent for abortions sought by minors so long as the minor had access to an alternative judicial consent procedure. Finally, the Court permitted states to require the presence of two doctors at third-trimester abortions except in emergency situations and to require the submission of a pathology report for all abortions. These cases all involved state attempts to burden, rather than to bar, the exercise of the constitutional abortion right. In every one of these cases, at least a plurality of the Court declared continue allegiance to the right established in “Roe”. One case, however, “Colautti v. Franklin”’, did squarely confront a criminal-abortion law. Pennsylvania’s Abortion Control Act included a provision that subjected a doctor to criminal liability for failing to use a statutorily prescribed abortion technique when the fetus was “viable” or when there was “sufficient reason to believe the fetus may be viable.” The Court found two constitutional faults in this statute, both particular to the criminal law. First, the vagueness of the viability definition was found to condition “criminal liability on confusing and ambiguous criteria. It therefore present serious problems of notice, discriminatory application, and chilling effect on the exercise of constitutional rights.” Second, the statute subjected the doctor to “criminal liability without regard to fault,” thereby compounding the vagueness of the viability definition. The Colautti Court laced its opinion with references to the “Roe” abortion right and “Roe’s” deference to the role of the physician. But the Curt disposed of the case on criminal-law grounds. “Colautti” indicated that criminal sanctions did not fit comfortably, if at all, into the Court’s regime of permissible state regulation of abortion."

"Given the Court’s recent abortion decisions, adherence to “Roe” as the keystone of abortion jurisprudence appears impossible. For the Court to draw some as yet undefined and more circumscribed boundary around a surviving constitutional abortion right, thereby leaving the states free to regulate expansively on abortion, seems improbable at a time when some of the Justices increasingly disavow the construction of complicated, quasilegislative constitutional schemes such as the one established in “Roe” itself. The return of criminal abortion is a distinct probability. More pointedly, the states themselves have begun to act as if its return is inevitable."

"Following the Roe decision, several states enacted legislation imposing restrictions on a woman's right to an abortion, many of which were subsequently found to be unconstitutional under Roe. Among these unconstitutional restrictions were mandatory pre-abortion counseling, spousal and parental notification and consent requirements, and abortion clinic licensing limitations. In the 1989 decision of Webster v. Reproductive Health Services, however, a new majority of the Court signaled their willingness to uphold abortion restrictions. Three Justices expressed a desire to significantly modify and narrow Roe. One Justice called for an outright overruling of Roe. During the aftermath of the Webster decision, several states passed new legislation to protect the life of the unborn fetus and limit the right to an abortion."

"In Casey, the Supreme Court issued an elaborately splintered decision in which the joint opinion, written by Justice O'Connor and joined by Justices Kennedy and Souter, announced the judgment and opinion of the Court. The Casey joint opinion effected three principal changes to Supreme Court abortion jurisprudence: it reaffirmed "the essential holding of Roe v. Wade,"' struck down the Roe trimester framework, and replaced it with a new undue burden standard."

"In reaffirming the essential holding of Roe, the joint opinion specifically upheld what Justice O'Connor described as its "three parts": one, the right of a woman to choose and obtain an abortion before viability without undue interference from the state; two, the state power to restrict abortions after fetal viability, as long as exceptions to protect a woman's life or health are provided; and three, the state interests in protecting the health of the woman and the life of the fetus.2 By discussing the essential holding of Roe as a combination of rights and interests, the joint opinion effectively laid the groundwork for moving abortion jurisprudence away from a discussion of fundamental rights and strict scrutiny, and instead toward a balancing of interests typical of rational basis review."

"Stevens says he thinks if Roe v. Wade had been written more narrowly, the court might have avoided some of the criticism that ensued. “In all candor,” he told me, “I think Harry [Blackmun] could have written a better opinion. I think if the opinion had said what Potter Stewart said very briefly” — namely that the right to marital and family privacy previously recognized by the court included a right to choose abortion — “it might have been much more acceptable, instead of trying to create a new doctrine that really didn’t make sense.” When he went through the confirmation process in 1975, just two years after Roe, Stevens recalled, he was not asked a single question about it. Only later, because of the reaction that followed Roe, did abortion become a central issue in national politics. “I’m really not sure that it’s fair to blame the court for the hostility that’s come on, but I do think that a better opinion might have avoided some of the criticism.”"

"I asked whether Stevens thought the right to abortion recognized in Roe v. Wade would survive in his lifetime. “Well, it’s up to Justice Kennedy,” he replied. “I don’t know about the two new justices” — Roberts and Alito — “but I kind of assume it may well be up to him.” Abortion rights supporters may take solace in the fact that Stevens indicated that Kennedy seemed to view the regulation of so-called partial-birth abortions as consistent with Planned Parenthood v. Casey, which upheld the central holding of Roe v. Wade. “I don’t think he thinks this” — the recent abortion opinion — “requires him to change his views at all,” Stevens said. “We’ll have to wait and see. I suppose there are a lot of people out there praying I get out of the way.”"

"No opinion with such deficiencies could be expected to provide a sound basis for resolution of a hotly contested social issue, and indeed, Roe has aged poorly. The current Supreme Court has all but explicitly discarded the constitutional methodology on which it rests. The idea that unelected judges should consult their inner oracles to decide whether a particular activity unmentioned in the Constitution deserves to be elevated to the pantheon of "fundamental rights" was always problematic. Beginning in 1986, when it refused to create constitutional protection for homosexual sodomy, the court started to hint that it was out of the fundamental rights business. Most recently, refusing to recognize a right to physician-assisted suicide in 1997, the court did not even mention Roe. The era of judicially created fundamental rights is over. The fact that there are constitutional arguments in favor of not overruling Roe doesn't mean the opinion should be celebrated, at least not as anything other than a historical artifact. Roe is an increasingly creaky anachronism, and anyone who cares about a woman's right to choose should seek a sounder constitutional basis for that right. Such arguments have been put forth frequently in the scholarly literature, and most tend to cast the abortion controversy as a question not of liberty but of equality. Unlike the fundamental rights jurisprudence that produced Roe, the right to equal protection of the laws is alive and well in the Supreme Court. This perspective offers a way to go forward."

"[I]t is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result. ... This is not surprising. As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether. It supported that right via a lengthy, but purposeless, cross-cultural historical review of abortion restrictions and a tidy but irrelevant refutation of the straw-man argument that a fetus is a constitutional 'person' entitled to the protection of the 14th Amendment. ... By declaring an inviolable fundamental right to abortion, Roe short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values."

"Minutes after the Supreme Court voted to overturn Roe v. Wade last summer, a group of West Wing aides raced to the Oval Office to brief President Biden on the decision. As they drafted a speech, Mr. Biden was the first person in the room to say what has been his administration’s rallying cry ever since. Passing federal legislation, he told the group, was “the only thing that will actually restore the rights that were just taken away,” recalled Jen Klein, the director of the White House Gender Policy Council. But if the prospect of codifying Roe’s protections in Congress seemed like a long shot a year ago, it is all but impossible to imagine now, with an ascendant far-right bloc in the House and a slim Democratic majority in the Senate."

"To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way. We at the Court are blessed to have a workforce – permanent employees and law clerks alike – intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here. I have directed the Marshal of the Court to launch an investigation into the source of the leak."

"Claim: You want to ban women's "constitutional right" to abortion. Answer: This is a "spurious" or false "right" - having no basis in the constitution. The U.S. Supreme Court claims to have discovered a "privacy" right in the "penumbra" of the Constitution ("penumbra" definition: a partly lighted area around an area of full shadow). Court decisions (Roe v.Wade and Doe v.Bolton) are aberrations (deviations from truth) and do nothing more than grant temporary license to kill children in the womb, the most dangerous place of residence. This license is tenuous and could be over-ridden by reversal or an amendment to the U.S. Constitution. Indeed, to guarantee the permanent freedom of the slaves and establish rights for all U.S." persons" the 14th Amendment to the Constitution was passed. It states, "...No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States: nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law." (emphasis added). In Roe v.Wade the Court determined that unborn children are not "persons" even though they have the right to inherit properly and many other rights. Some states have entire sections of law outlining Crimes Against Unborn Children in which they, from conception on, are protected from negligent or willful harm or death."

"Cruel and harmful."

"It is possible that the Supreme Court itself may overturn its abortion rulings. We need only recall that in Brown v. Board of Education the court reversed its own earlier "separate-but-equal" decision. As we continue to work to overturn Roe v. Wade, we must also continue to lay the groundwork for a society in which abortion is not the accepted answer to unwanted pregnancy. Pro-life people have already taken heroic steps, often at great personal sacrifice, to provide for unwed mothers."

"As a nation today, we have not rejected the sanctity of human life. The American people have not had an opportunity to express their view on the sanctity of human life in the unborn. I am convinced that Americans do not want to play God with the value of human life. It is not for us to decide who is worthy to live and who is not. Even the Supreme Court's opinion in Roe v. Wade did not explicitly reject the traditional American idea of intrinsic worth and value in all human life; it simply dodged this issue."

"Make no mistake, abortion-on-demand is not a right granted by the Constitution. No serious scholar, including one disposed to agree with the Court's result, has argued that the framers of the Constitution intended to create such a right. The decision by the seven-man majority in Roe v. Wade has so far been made to stick. But the Court's decision has by no means settled the debate. Instead, Roe v. Wade has become a continuing prod to the conscience of the nation."

"In Roe v. Wade,' the Supreme Court concluded that the abortion decision of a female is protected by the penumbral right of privacy. The Court noted, however, that this right to abort is not absolute. Rather, the right to terminate one's pregnancy must be weighed against compelling state interests. Two such interests found by the Court in Roe were the protection of the pregnant woman's health and the protection of potential life. The Court in Roe considered the right of an adult female to an abortion. When the issue is the abortion decision of a minor, the courts must also contend with the additional interest of the parents. In Danforth, the state advanced the parents' interest in raising their children as they see fit as a compelling state interest to justify the parental consent provision. These parental consent requirement statutes, however, have not met with favorable receptions in other courts. In fact, the decisions of several courts have cast considerable doubt on their validity."

"Norma had told the press that she was Jane Roe way back in 1973. But not until 1987-when she recanted the lie that she had been raped-did the press take much notice of her. And it was two more years before Norma was famous, lifted from the veil of a pseudonym by five weeks of press in the spring of 1989."