Abortion In The United States

"Under Texas law, statutes may be repealed expressly or by implication. See Gordon v. Lake, 163 Tex. 392, 356 S.W.2d 138, 139 (1962). The Texas statutes that criminalized abortion (former Penal Code Articles 1191, 1192, 1193, 1194 and 1196) and were at issue in Roe have, at least, been repealed by implication. Currently, Texas regulates abortion in a number of ways. For example, a comprehensive set of civil regulations governs the availability of abortions for minors. See Tex. Fam.Code §§ 33.002-011 (2000). Texas also regulates the practices and procedures of abortion clinics through its Public Health and Safety Code. See Tex. Health & Safety Code §§ 245.001-022; see also Women's Med. Center of Northwest Houston v. Bell, 248 F.3d 411, 414-16 (5th Cir. 2001) (discussing various portions of the Texas Abortion Facility License and Reporting Act). Furthermore, Texas regulates the availability of state-funded abortions. See 25 Tex. Admin. Code § 29.1121 (2002); see also Bell v. Low Income Women of Tex., 95 S.W.3d 253, 256 (Tex.2002). These regulatory provisions cannot be harmonized with provisions that purport to criminalize abortion. There is no way to enforce both sets of laws; the current regulations are intended to form a comprehensive scheme — not an addendum to the criminal statutes struck down in Roe. As the court stated in Weeks, a strikingly similar case, "it is clearly inconsistent to provide in one statute that abortions are permissible if set guidelines are followed and in another provide that abortions are criminally prohibited." 733 F. Supp. at 1038. Thus, because the statutes declared unconstitutional in Roe have been repealed, McCorvey's 60(b) motion is moot.4 Finally, the district court did not abuse its discretion in denying McCorvey's request for an evidentiary hearing. See Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 171 (5th Cir. 1994) (denial of evidentiary hearing affirmed where court had written evidence sufficient to make its decision). An evidentiary hearing would have served no useful purpose in aid of the court's analysis of the threshold questions presented, which, as we explained, precluded the relief McCorvey sought. I agree that Ms. McCorvey's Rule 60(b) case is now moot. A judicial decision in her favor cannot turn back Texas's legislative clock to reinstate the laws, no longer effective, that formerly criminalized abortion. It is ironic that the doctrine of mootness bars further litigation of this case. Mootness confines the judicial branch to its appropriate constitutional role of deciding actual, live cases or controversies. Yet this case was born in an exception to mootness1 and brought forth, instead of a confined decision, an "exercise of raw judicial power." Roe v. Bolton, 410 U.S. 179, 222, 93 S. Ct. 762, 763, 35 L. Ed. 2d 147 (1973) (White, J., dissenting). Even more ironic is that although mootness dictates that Ms. McCorvey has no "live" legal controversy, the serious and substantial evidence she offered could have generated an important debate over factual premises that underlay Roe."

"McCorvey presented evidence that goes to the heart of the balance Roe struck between the choice of a mother and the life of her unborn child. First, there are about a thousand affidavits of women who have had abortions and claim to have suffered long-term emotional damage and impaired relationships from their decision.2 Studies by scientists, offered by McCorvey, suggest that women may be affected emotionally and physically for years afterward and may be more prone to engage in high-risk, self-destructive conduct as a result of having had abortions.3 Second, Roe's assumption that the decision to abort a baby will be made in close consultation with a woman's private physician is called into question by affidavits from workers at abortion clinics, where most abortions are now performed. According to the affidavits, women are often herded through their procedures with little or no medical or emotional counseling.4 Third, McCorvey contends that the sociological landscape surrounding unwed motherhood has changed dramatically since Roe was decided. No longer does the unwed mother face social ostracism, and government programs offer medical care, social services, and even, through "Baby Moses" laws in over three-quarters of the states, the option of leaving a newborn directly in the care of the state until it can be adopted.5 Finally, neonatal and medical science, summarized by McCorvey, now graphically portrays, as science was unable to do 31 years ago, how a baby develops sensitivity to external stimuli and to pain much earlier than was then believed.6 In sum, if courts were to delve into the facts underlying Roe's balancing scheme with present-day knowledge, they might conclude that the woman's "choice" is far more risky and less beneficial, and the child's sentience far more advanced, than the Roe Court knew. This is not to say whether McCorvey would prevail on the merits of persuading the Supreme Court to reconsider the facts that motivated its decision in Roe.7 But the problem inherent in the Court's decision to constitutionalize abortion policy is that, unless it creates another exception to the mootness doctrine, the Court will never be able to examine its factual assumptions on a record made in court. Legislatures will not pass laws that challenge the trimester ruling adopted in Roe (and retooled as the "undue burden" test in Casey; see Casey, 505 U.S. at 872-78, 112 S. Ct. at 2817-21). No "live" controversy will arise concerning this framework. Consequently, I cannot conceive of any judicial forum in which McCorvey's evidence could be aired. At the same time, because the Court's rulings have rendered basic abortion policy beyond the power of our legislative bodies, the arms of representative government may not meaningfully debate McCorvey's evidence. The perverse result of the Court's having determined through constitutional adjudication this fundamental social policy, which affects over a million women and unborn babies each year, is that the facts no longer matter. This is a peculiar outcome for a Court so committed to "life" that it struggles with the particular facts of dozens of death penalty cases each year."

"Webster v. Reproductive Health Services (1989) sparked renewed interest in the abortion debate by raising serious doubts about the future of Roe v. Wade. The case centered on a number of provisions in a 1986 Missouri abortion law, including a preamble that declared that life began at conception, a ban on abortions at public hospitals, and a test to determine fetal viability. The preamble to the Missouri law stated that human life “begins at conception” and that the state had an interest in an unborn child’s “life, health, and well-being.” The state justified this provision by arguing it simply extended the protections of tort, property, and criminal law to the fetus and that it had no effect on abortion policy because it specified that it must be interpreted in a manner consistent with past Supreme Court decisions. Chief Justice William H. Rehnquist’s plurality opinion for himself and Justices Byron White and Anthony Kennedy declined to resolve this issue, ruling that the Court did not have to decide on the constitutionality of the preamble because it did not regulate abortion; rather, it was merely expressing the state’s legitimate preference for childbirth over abortion."

"The most significant part of the law was the fetal testing section because it appeared to implicate the trimester framework established in Roe v. Wade. This section required that if physicians believed a woman was at least 20 weeks pregnant, before performing an abortion on her, they must first do a series of tests to determine whether the fetus was viable. The lower court ruled that because these tests were costly and potentially dangerous to the woman and the fetus, the provision was unconstitutional. Chief Justice Rehnquist and the other two members of the plurality upheld the law, interpreting it to require physicians to perform the tests only when they believed they would help to determine viability, not in all cases. He acknowledged that the Missouri law was inconsistent with Roe v. Wade by allowing viability tests during the second trimester. But instead of overruling the 1973 decision, the Rehnquist plurality attempted to resolve the conflict between Roe v. Wade and the Missouri law by abandoning the rigid trimester framework. It approved the fetal test provision as a permissible method for the state to further its interest in protecting fetal life, which, in their view, was not simply limited to the third trimester. Conceding that it would allow government regulation of abortion that would have been forbidden under Roe v. Wade, Rehnquist seemed to invite legislatures to pass laws challenging that ruling and indicated that he believed the trimester framework adopted in Roe v. Wade should be modified in future cases."

"We are here today upon the occasion of the 25th anniversary of the United States Supreme Court decision in Roe v. Wade, a decision which ruled unconstitutional a body of State-level laws that proscribed, at least on paper, the performance of most abortions. Most of the laws struck down by Roe had been passed in the last third of the 19th century under social, political, and medical conditions very different from those the Nation has faced in the last quarter of this century, and passage of those laws was pressed by very different forces than those now engaged in the abortion debate."

"[I]n 1973 Roe v. Wade shattered the issue of abortion into sharp fragments. We are still dealing with the medical, social, and political fallout of the Supreme Court’s willingness to go far beyond the traditional boundaries of medical ethics and practice. The tenets of Hippocratic medicine have served us well for more than 2000 years, but our 25-year experiment with unrestricted abortion has caused the practice of medicine to become increasingly inconsistent, and the tension between valuable ethical traditions and currently legal medical practice is untenable."

"The standard criticism of Roe v. Wade is that the Supreme Court indulged in "Lochnering": the improper second-guessing of a legislative balance. Rarely does the Supreme Court invite critical outrage as it did in Roe by offering so little explanation for a decision that requires so much. The stark inadequacy of the Court's attempt to justify its conclusions - that abortion implicates women's "privacy," that only the most important state interests may supersede that right, and that they may do so only after certain stages of pregnancy- suggests to some scholars that the Court, finding no justification at all in the Constitution, unabashedly usurped the legislative function. Professor Ely, the first to cry "Lochner," could only adduce from the opinion that the Court "manufactured a constitutional right out of whole cloth and used it to superimpose its own view of wise social policy on those of the legislatures." Even some who approve Roe's form of judicial review concede that the opinion itself is inscrutable."

"[M]ore was at stake in the Supreme Court's handling of Roe than the wrath of critics: By taking an abortion case when it did, the Court forestalled the development of one of its •traditional aids for deciding difficult questions - a thoughtful lower-court case law."

"The politically unsettled and judicially confused law of abortion in 1971 and 1972, when the Court twice heard arguments and deliberated Roe, should have warned it not to decide the case. By doing so; the Court thrust itself into a political debate and stunted the development of a thoughtful lower-court case law. If the Court did perceive the warnings but continued toward a decision anyway, perhaps trusting that its own considerable wits would devise an answer the lower courts had not, the result suggest--that the judicial system's axioms deserve more respect than they received."

"In 1973, political forces were still vigorously debating abortion. Most states had prohibited abortions, except to save a woman's life, since the nineteenth century, but a movement was afoot to relax that restriction. In the five years immediately preceding Roe, thirteen states had revised their statutes to resemble the Model Penal Code's provisions, which allowed abortions not only if the pregnancy threatened the woman's life, but also if it would gravely impair her physical or mental health, if it resulted from rape or incest, or if the child would be born with grave physical or mental defects.11 Four states had removed all restrictions on the permissible reasons for seeking an abortion before a pregnancy passed specified lengths. Furthermore, as the Supreme Court noted in Roe, both the American Medical Association and the American Bar Association had only recently changed their official views on abortion (and not without opposition). The abortion debate was not merely one of how far to relax restrictions, however. At least one of the states whose restrictive statutes were judicially invalidated had in 1972 reaffirmed its determination to prohibit abortions unless necessary to save the woman's life. And since several of the pre-Roe constitutional challenges were raised by defendants in state abortion prosecutions, it is clear that at least those states had not allowed their abortion statutes to lapse into desuetude. In short, the political process in many states had yet to decide on abortion. But Roe's sweeping rejection of Texas's statute voided almost every other state's as well."

"Roe v. Wade seemed to settle the abortion question, holding that a pregnant woman has a right to privacy (pursuant to the 14th Amendment of the US Constitution), which includes the right to terminate a pregnancy. The Court did not recognize an absolute right to abortion, instead acknowledging that that State has an interest in the protection of potential life, an interest that increases in strength as the pregnancy progresses. In Roe v. Wade, the Court created a ‘trimester framework’ to mirror the growing importance of the State interest in protecting fetal life (and the reduced safety of the abortion procedure itself) as pregnancy advances. The Roe. v Wade framework permitted abortion without restriction in the first trimester of pregnancy; in the second trimester, the State was permitted to regulate some aspects of abortion (in essence, where the procedure can be performed, and by whom). Finally, in the third trimester of pregnancy, States were free to prohibit abortion except where necessary to preserve the life or health of the pregnant woman. Fetal viability (the stage at which a fetus is theoretically capable of sustained life outside of the pregnant woman’s body) was the point at which the State’s interest in protecting potential life became ‘compelling’. Since 1973, the abortion right has remained profoundly contentious, with opponents of abortion continuing to attempt to circumscribe (or even abrogate) the right articulated in Roe v. Wade. The challenges to Roe v Wade have come primarily in the form of state legislation that limits women’s ability to exercise the right to terminate pregnancy. The continued attempts to legislate such limits have meant that the issue of abortion rights has returned to the US Supreme Court on a number of occasions. These legislative efforts have had variable results; although the Court has not resiled from the basic holding in Roe v Wade, the continued attacks on that decision (and the partial successes its opponents can claim) make it clear that abortion rights in the US cannot be taken for granted."

"In Planned Parenthood of Southeastern Pennsylvania v Casey, an important post-Roe v Wade case, the constitutionality of several provisions of a Pennsylvania lw was disputed. The impunged provisions included a requirement that a woman’s spouse be notified of her plan to terminate her pregnancy, a mandatory 240hour wait between a first consultation respecting abortion and the procedure itself, mandatory informed consent provisions and a parental consent requirement where a minor sought abortion services. In its decision in Casey, the Court abandoned the trimester framework set out in Roe v Wade, holding that the state has a legitimate interest in fetal life from the beginning of pregnancy and that this interest becomes compelling at viability. The Casey decision means that there is no longer an unqualified right to terminate a pregnancy in the first trimester and that the state may regulate the provision of abortion services throughout pregnancy, provided that the regulation does not amount to an ‘undue burden’ on women’s right to choose abortion. The question for the court in making this determination is whether the law in question ‘has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus’. In the end, the Casey Court upheld all of the disputed provisions save the spousal notification requirement."

"Ms. McCorvey told Mr. Rowan that she had fabricated her account of being raped by three men and a woman in 1969 because she had hoped to circumvent a 100-year-old Texas law that banned abortions except when the woman's life was in danger. 'What I Thought Was Love' Ms. McCorvey said that she had actually become pregnant through what I thought was love and that she decided to challenge the state law when her doctor told her that she could not legally have an abortion in Texas. In 1970, her lawyers filed a Federal suit against Henry Wade, the Dallas County District Attorney. The suit, protecting her anonymity by identifying her as Jane Roe, was eventually upheld by the Supreme Court, which, in legalizing abortion on Jan. 22, 1973, cited the 14th Amendment's privacy protections. The transcript of the interview does not make clear why Ms. McCorvey thought that an account of rape would necessarily help win exemption from, or overturn, a law that allowed abortion only to protect a woman's life. Ms. McCorvey, now a 39-year-old apartment house manager in Dallas, has an unlisted telephone number there and could not be reached for comment tonight. However, Mr. Rowan, reached at his Washington home, said, She told me that she thought she would win so much public support by claiming that she was gang raped that she might get an exception from the Texas law."

"Ms. McCorvey was 21 years old when she became pregnant. At the time, she was working as a waitress and, she told Mr. Rowan, was too poor to travel to California, the closest state where abortion was legal, or to afford local illegal abortionists. I was very depressed, she said. How dare them tell me that I couldn't abort a baby that I did not want! Unable to have an abortion in Texas or travel to another state, she said, she grew bitter, very bitter, and in her anger fabricated the rape story."

"In one passage the Court spoke of the unborn before viability as "a theory of life," as though there were competing views as to whether life in fact existed before viability. The implication could also be found that there was no reality there in the womb but merely theories about what was there. The Court seemed to be uncertain itself and to take the position that if it were unsure, nobody else could be sure. In another passage the Court spoke of life in the womb up to birth as "potential life." This description was accurate if it meant there was existing life with a great deal of development yet to come, as one might say a 5-year-old is "potential life" meaning that he or she is only potentially what he or she will be at twenty-five. The Court's description was inaccurate if the Court meant to suggest that what was in the womb was pure potentiality, a zero that could not be protected by law. To judge from the weight the Court gave the being in the womb-found to be protectable in any degree only in the last two months of pregnancy-the Court itself must have viewed the unborn as pure potentiality or a mere theory before viability. The Court's opinion appeared to rest on the assumption that the biological reality could be subordinated or ignored by the sovereign speaking through the Court."

"The progeny of Roe have confirmed the Kelsenite reading of Roe that there is no reality that the sovereign must recognize unless the sovereign, acting through the agency of the Court, decides to recognize it. This view would be psychologically incomprehensible if we did not have the history of the creation of the institution of slavery by judges and lawyers. With that history we can see that intelligent and humane lawyers have been able to apply a similar approach to a whole class of beings that they could see-that they were able to create a mask of legal concepts preventing humanity from being visible. A mask is a little easier to impose when the humanity concealed, being in the womb, is not even visible to the naked eye."

"IN HER BOOK THE NEW JIM Crow, Michelle Alexander argues that the system of mass incarceration in the United States, fueled by the war on drugs, operates in a seemingly color-blind, race-neutral way to create a new Jim Crow system that forces African Americans, especially African American men, into a permanent underclass.1 I believe that attacks on Roe v Wade2 and efforts to treat fertilized eggs, embryos, and fetuses as separate legal persons will establish a system of law in which women who have abortions will go to jail. Furthermore, all pregnant women are at risk of being assigned to a second-class status that will not only deprive them of their reproductive rights and physical liberty through arrests, but also effectively strip them of their status as full constitutional persons. Here I address major changes in US law enforcement since Roe v Wade was decided in 1973 that make it likely that if Roe is overturned women who have abortions will be arrested and sentenced to incarceration. I discuss how efforts to undermine Roe and to establish separate legal personhood for fertilized eggs, embryos, and fetuses are already providing the basis for the arrests and detentions of and forced interventions on pregnant women. I conclude that these efforts, if unchecked, not only will result in massive deprivations of pregnant women’s liberty, but also will create a basis for ensuring a permanent underclass for pregnant women or, for lack of a better term, a new Jane Crow."

"This new era of mass incarceration—which is largely accepted by the public, defended by an army of lobbyists, and justified by a war on drugs deeply rooted in America’s history of slavery and racism1, makes it far more likely today than in 1973 that if Roe is overturned women will themselves be arrested and jailed. It is also likely that women having or considering having abortions will be subject to far more government surveillance than in the past. Federal and state law enforcement agencies are twice as big as they were in 1973, and their investigative powers—including wiretapping—have been dramatically expanded. Moreover, since 1973 drug testing has become a multibillion-dollar industry. As a result of US Supreme Court decisions and local policies, even middle school students who want to join the afterschool scrapbooking club are being required in some schools to submit to urine drug testing. Once a urine sample is in the possession of state authorities, it may just as easily be used to test for pregnancy. In the post-Roe world, however, it is not only women who seek to end pregnancies who must fear the possibility of surveillance and arrest. Approximately one million women in the United States each year terminate their pregnancies, close to another million suffer miscarriages and stillbirths, and more than four million women continue their pregnancies to term. Each and every one of these women benefits from the US Supreme Court’s decision in Roe v Wade, which not only protects a woman’s right to terminate her pregnancy but also, as later US Supreme Court cases explained, has been “sensibly relied upon to counter” attempts to interfere with a woman’s decision to become pregnant or to carry her pregnancy to term. As a result, all pregnant women, not just those seeking to end a pregnancy, risk losing their reproductive rights and their liberty."

"While the case did not involve the abortion issue, in Matter of Baby M., a New Jersey state court struck down an abortion clause in a surrogacy contract prohibiting abortion except as allowed by the male promisor on the ground that its enforcement would violate the surrogate mother’s constitutionally protected right, under Roe v. Wade, to decide whether to have an abortion. It was clearly the court’s view that the abortion provision could not be enforced by an action for injunctive relief to prohibit an otherwise lawful abortion."

"Roe v. Wade established as a matter of constitutional law that during the first trimester of a pregnancy, the fetus is not owed a duty of care. Without a duty, there can be no breach and thus no injury giving rise to damages. As plaintiffs continue to push courts that have either refused to recognize this tort or have not had the issue presented to it, defense counsel should raise the unconstitutionality of these claims. For counsel in the three states that have recognized this tort, we urge defense counsel to aggressively argue the unconstitutionality of the tort when it is asserted."

"The Supreme Court has thus created one of the most permissive abortion regimes in the world; the United States, for example, is one of only seven nations allowing elective abortions after 20 weeks of pregnancy. More importantly, this regime is far more permissive than under either the common law or statutes during centuries of English or American law. Many support this extreme policy, many others oppose it, but the issue for the Supreme Court is whether the Constitution of the United States requires it."

"Justice Harry Blackmun devoted more than half of his majority opinion in Roe v. Wade to an account of “the history of abortion, for such insight as that history may afford us.” This narrative preceded any legal analysis and, rather than any interpretation of the Constitution, is Roe’s real foundation. While it has acquired the status of “orthodox abortion history,” however, this narrative has been crumbling since it was created. As Roe was heading for the Supreme Court, Cyril Means, General Counsel of the National Association for the Repeal of Abortion Laws, was constructing a “radically revisionist history” of abortion in America. His goal was to paint a long-term picture of abortion as a common procedure that the law treated lightly, if at all, in order to support the argument that abortion should be recognized as a constitutional right. To that end, Means made two primary claims that the Supreme Court would later embrace: American women enjoyed a “liberty of abortion” under the common law “at every stage of gestation,” and the 19th-century statutes that replaced the common law were enacted “to protect the health of mothers, not to protect the lives of unborn children.” This narrative “simply left the unborn child out of the moral and legal equation.” The legal team challenging the Texas abortion statute in Roe placed Means’ narrative at the center of their argument despite their own concern, reflected in an internal memorandum, that his conclusions “sometimes strain credibility.” This was a profound understatement, as a vast amount of scholarship and commentary, including by abortion rights supporters, has exposed the Means–Blackmun narrative as selective at best—and fiction at worst."

"The Means–Blackmun narrative’s claim that protection of unborn children played no part in the enactment of increasingly restrictive 19th-century abortion laws blatantly defies a clear historical record. At its May 1859 meeting, for example, the American Medical Association (AMA) heard a report that rejected the “mistaken and exploded medical dogma” that the unborn child has no “independent and actual existence...as a living being.” The AMA unanimously adopted a resolution that condemned the “unwarrantable destruction of human life” and “the slaughter of countless children” and sought “the zealous co-operation of the various state Medical Societies” in pressing for laws prohibiting abortion, “at every period of gestation,” except when necessary to save the mother’s life."

"The Supreme Court itself made public opinion about abortion relevant by basing Roe’s holding on the “history of abortion,” including “man’s attitudes toward the abortion procedure over the centuries.” In addition, one of the factors the Supreme Court considers when deciding whether to overrule a precedent is whether it has been “universally accepted, acted on, and acquiesced in by...the general public.” In this context, the issue is whether the general public supports the legality of the abortions that would have remained illegal without Roe v. Wade. These abortions are performed for reasons defined by how women wish to live their lives and correspond to the factors covered by the Court’s definition of “health,” such as “physical, emotional, psychological, familial, and the woman’s age.” The abortions made legal by Roe v. Wade are also sought to avoid the “detriment” that the Court said prohibiting abortion would impose, including “the distress, for all concerned, associated with the unwanted child...[and] the additional difficulties and continuing stigma of unwed motherhood.”"

"By the time the Court decided Roe v. Wade, the Supreme Court’s privacy jurisprudence was already in disarray. Griswold said that the right to privacy is found in the penumbra of the Bill of Rights, Eisenstadt extended Griswold but on equal protection grounds, and the district court in Roe said that the right to abortion is found in the Ninth Amendment. In Roe, the Supreme Court added multiple jurisprudential wrinkles by holding that the right to privacy is instead “founded in the Fourteenth Amendment’s concept of personal liberty.” The Court thus appeared to transplant the requirement of a “compelling state interest” for infringing on a “fundamental” right from the equal protection to the due process context, but failing to apply this standard at all. Dissenting inRoe, Justice William Rehnquist wrote that the Court “will accomplish the seemingly impossible feat of leaving this area of the law more confused than [the Court] found it.” Justice Clarence Thomas has explained that federal judges “interpret and apply written law to the facts of particular cases.” The Supreme Court, however, eschewed this basic approach in Roe v. Wade, putting off any examination of the constitutional issue at the heart of the case until Section VIII, nearly 40 pages into a 54-page majority opinion. Blackmun acknowledged both that “[t]he Constitution does not explicitly mention any right of privacy” and that the presence of the unborn child makes abortion “inherently different” from other unenumerated rights that the Court had deemed to be fundamental. Because the right to abortion had no connection to the Constitution’s text—and barely any connection to precedent—Blackmun justified creating the right to abortion by offering a list of “detriment[s]” that “denying this choice” would impose."

"Rather than defending what the Supreme Court actually said in Roe, some scholars resort to “rewriting” it or suggesting “what Roe v. Wade should have said.” Just 14 years after Roe was decided, the critical literature had so proliferated that three scholars organized it into 12 different categories. Scholars and commentators across the ideological spectrum have shown how little, if anything, Roe has to commend it. Professor John Hart Ely, who candidly favored Roe’s result, called it a “very bad decision...because it is...not constitutional law and gives almost no sense of an obligation to try to be.”"

"Professor Mark Tushnet writes that “[m]ost academic commentators probably believe that, as a matter of sound public policy, access to abortions should be relatively unrestricted. But none has been able to provide conclusive arguments that the Supreme Court correctly found that policy in the Constitution.”"

"Chief Justice Warren Burger was in the Roe majority but, within little more than a decade, joined a dissent arguing that the Court was striking down abortion restrictions that Roe was supposed to allow and then writing his own dissent to say that Roe should be reexamined."

"No one honestly argues that Roe v. Wade was correctly decided in the first place. In Professor Ely’s words, Roe “is not constitutional law, and gives almost no sense of an obligation to try to be.” The decision does not come close to meeting the standard of being “universally accepted, acted on, and acquiesced in by courts, the legal profession, and the general public.”"

"A past decision’s reaffirmance strengthens its precedential weight, but like any judicial holding, that reaffirmance must be explicit. “Most important, the court must have decided the issue for which the precedent is claimed; it cannot merely have discussed it in dictum, ignored it, or assumed the point without ruling upon it.” To be counted as a “reaffirmance,” the issue ofRoe’s validity as a precedent must have been “brought to the attention of the court” and “ruled upon” through a “dispositive judgment” or a “determinate holding.” Only three Supreme Court decisions meet this standard. 1. In Akron v. Akron Center for Reproductive Health, the Court voted 6–3 that while “the doctrine of stare decisis [is] perhaps never entirely persuasive on a constitutional question...[w]e respect it today, and reaffirm Roe v. Wade.” 2. In Thornburgh v. American College of Obstetricians and Gynecologists,149 the Court voted 5–4 to reaffirm “the general principles laid down in Roe and in Akron.” 3. In Planned Parenthood v. Casey, the Court also voted 5–4 to reaffirm Roe’s “central holding” that “the Constitution protects a woman’s right to terminate her pregnancy in its early stages.” By declining margins, therefore, the Supreme Court has reaffirmed some aspect of Roe v. Wade three times in nearly 50 years. As Senator Orrin Hatch (R–UT) has written, there is nothing “super” about Roe v. Wade as a precedent. Should the Court reconsider whether Roe remains a valid precedent, it will apply traditional principles ofstare decisis to determine if Roe should be retained or abandoned. The case to be argued on December 1, 2021, provides that opportunity."

"The difficulty of anticipating, let alone predicting, how the Supreme Court will rule in any individual case certainly intensifies when the Court reconsiders precedent as significant as Roe v. Wade. Many thought, for example, that the Court would do so in Webster v. Reproductive Health Services, which drew a then-record 78 amicus briefs. However, the Court declined even to reconsider Roe."

"In June Medical, the plaintiffs wanted the Court to establish a blanket rule that abortion providers have legal standing to challenge abortion restrictions simply because they perform abortions, that is, “based solely on their role in the abortion process.” The right created in Roe and continued in Casey belongs to women, not to abortion providers."

"Held: 1. The physician appellants have standing to challenge the foregoing provisions of the Act with the exception of § 7, the constitutionality of which the Court declines to decide. Doe v. Bolton, 410 U. S. 179. P. 428 U. S. 62, and n. 2. 2. The definition of viability in § 2(2) does not conflict with the definition in Roe v. Wade, 410 U. S. 113, 410 U. S. 160, 410 U. S. 163, as the point at which the fetus is "potentially able to live outside the mother's womb, albeit with artificial aid," and is presumably capable of "meaningful life outside the mother's womb." Section 2(2) maintains the flexibility of the term "viability" recognized in Roe. It is not a proper legislative or judicial function to fix viability, which is essentially for the judgment of the responsible attending physician, at a specific point in the gestation period. Pp. 428 U. S. 63-65. 3. The consent provision in § 3(2) is not unconstitutional. The decision to abort is important and often stressful, and the awareness of the decision and its significance may be constitutionally assured by the State to the extent of requiring the woman's prior written consent. Pp. 428 U. S. 65-67. 4. The spousal consent provision in § 3(3), which does not comport with the standards enunciated in Roe v. Wade, supra, at 410 U. S. 164-165, is unconstitutional, since the State cannot "'delegate to a spouse a veto power which the [S]tate itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.'" Pp. 428 U. S. 67-72. 5. The State may not constitutionally impose a blanket parental consent requirement, such as § 3(4), as a condition for an unmarried minor's abortion during the first 12 weeks of her pregnancy for substantially the same reasons as in the case of the spousal consent provision, there being no significant state interests, whether to safeguard the family unit and parental authority or other vise, in conditioning an abortion on the consent of a parent with respect to the under-18-year-old pregnant minor. As stressed in Roe, "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician." 410 U.S. at 410 U. S. 164. Pp. 428 U. S. 72-75."

"In Roe v. Wade, the Court concluded that the "right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." 410 U.S. at 410 U. S. 153. It emphatically rejected, however, the proffered argument "that the woman's right is absolute, and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason, she alone chooses." Ibid. Instead, this right "must be considered against important state interests in regulation." Id. at 410 U. S. 154. The Court went on to say that the "pregnant woman cannot be isolated in her privacy," for she "carries an embryo and, later, a fetus." Id. at 410 U. S. 159. It was therefore "reasonable and appropriate for a State to decide that, at some point in time, another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole, and any right of privacy she possesses must be measured accordingly." Ibid. The Court stressed the measure of the State's interest in "the light of present medical knowledge." Id. at 410 U. S. 163. It concluded that the permissibility of state regulation was to be viewed in three stages: "For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician," without interference from the State. Id. at 410 U. S. 164. The participation by the attending physician in the abortion decision, and his responsibility in that decision, thus, were emphasized. After the first stage, as so described, the State may, if it chooses, reasonably regulate the abortion procedure to preserve and protect maternal health. Ibid. Finally, for the stage subsequent to viability, a point purposefully left flexible for professional determination, and dependent upon developing medical skill and technical ability, [Footnote 1] the State may regulate an abortion to protect the life of the fetus and even may proscribe abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Id. at 410 U. S. 163-165."

"The appellees defend § 3(3) on the ground that it was enacted in the light of the General Assembly's "perception of marriage as an institution," Brief for Appellee Danforth 34, and that any major change in family status is a decision to be made jointly by the marriage partners. Reference is made to an abortion's possible effect on the woman's childbearing potential. It is said that marriage always has entailed some legislatively imposed limitations: reference is made to adultery and bigamy as criminal offenses; to Missouri's general requirement, Mo.Rev.Stat. § 453.030.3 (1969), that, for an adoption of a child born in wedlock, the consent of both parents is necessary; to similar joint consent requirements imposed by a number of States with respect to artificial insemination and the legitimacy of children so conceived; to the laws of two States requiring spousal consent for voluntary sterilization; and to the long-established requirement of spousal consent for the effective disposition of an interest in real property. It is argued that "[r]ecognizing that the consent of both parties is generally necessary . . . to begin a family, the legislature has determined that a change in the family structure set in motion by mutual consent should be terminated only by mutual consent," Brief for Appellee Danforth 38, and that what the legislature did was to exercise its inherent policymaking power "for what was believed to be in the best interests of all the people of Missouri." Id. at 40. The appellants, on the other hand, contend that § 3(3) obviously is designed to afford the husband the right unilaterally to prevent or veto an abortion, whether or not he is the father of the fetus, and that this not only violates Roe and Doe, but is also in conflict with other decided cases. See, e.g., Poe v. Gerstein, 517 F.2d 787, 794-796 (CA5 1975), appeal docketed, No. 75-713; Wolfe v. Schroering, 388 F.Supp. at 636-637; Doe v. Rampton, 366 F. Supp. 189, 193 (Utah 1973). They also refer to the situation where the husband's consent cannot be obtained because he cannot be located. And they assert that § 3(3) is vague and overbroad."

"In Roe and Doe, we specifically reserved decision on the question whether a requirement for consent by the father of the fetus, by the spouse, or by the parents, or a parent, of an unmarried minor, may be constitutionally imposed. 410 U.S. at 410 U. S. 165 n. 67. We now hold that the State may not constitutionally require the consent of the spouse, as is specified under § 3(3) of the Missouri Act, as a condition for abortion during the first 12 weeks of pregnancy. We thus agree with the dissenting judge in the present case, and with the courts whose decisions are cited above, that the State cannot "delegate to a spouse a veto power which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.""

"Other courts that have considered the parental consent issue in the light of Roe and Doe, have concluded that a statute like § 3(4) does not withstand constitutional scrutiny. See, e.g., Poe v. Gerstein, 517 F.2d at 792; Wolfe v. Schroering, 388 F.Supp. at 636-637; Doe v. Rampton, 366 F. Supp. at 193, 199; State v. Koome, 84 Wash. 2d 901, 530 P.2d 260 (1975). We agree with appellants and with the courts whose decisions have just been cited that the State may not impose a blanket provision, such as § 3(4), requiring the consent of a parent or person in loco parentis as a condition for abortion of an unmarried minor during the first 12 weeks of her pregnancy. Just as with the requirement of consent from the spouse, so here, the State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding the consent. Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution, and possess constitutional rights. See, e.g., Breed v. Jones, 421 U. S. 519 (1975); Goss v. Lopez, 419 U. S. 565 (1975); Tinker v. Des Moines School Dist., 393 U. S. 503 (1969); In re Gault, 387 U. S. 1 (1967). The Court indeed, however, long has recognized that the State has somewhat broader authority to regulate the activities of children than of adults."

"We emphasize that our holding that § 3(4) is invalid does not suggest that every minor, regardless of age or maturity, may give effective consent for termination of her pregnancy. See Bellotti v. Baird, post, p. 428 U. S. 132. The fault with § 3(4) is that it imposes a special consent provision, exercisable by a person other than the woman and her physician, as a prerequisite to a minor's termination of her pregnancy, and does so without a sufficient justification for the restriction. It violates the strictures of Roe and Doe."

"In Roe v. Wade, 410 U. S. 113 (1073), this Court recognized a right to an abortion free from state prohibition. The task of policing this limitation on state police power is and will be a difficult and continuing venture in substantive due process. However, even accepting Roe v. Wade, there is nothing in the opinion in that case, and nothing articulated in the Court's opinion in this case, which justifies the invalidation of four provisions of House Committee Substitute for House Bill No. 1211 (hereafter Act) enacted by the Missouri 77th General Assembly in 1974 in response to Roe v. Wade. Accordingly, I dissent in part."

"Roe v. Wade, supra at 410 U. S. 163, holds that, until a fetus becomes viable, the interest of the State in the life or potential life it represents is outweighed by the interest of the mother in choosing "whether or not to terminate her pregnancy." 410 U.S. at 410 U. S. 153. Section 3(3) of the Act provides that a married woman may not obtain an abortion without her husband's consent. The Court strikes down this statute in one sentence. It says that, "since the State cannot . . . proscribe abortion . . . the State cannot delegate authority to any particular person, even the spouse, to prevent abortion. . . ." Ante at 428 U. S. 69. But the State is not -- under § 3(3) -- delegating to the husband the power to vindicate the State's interest in the future life of the fetus. It is, instead, recognizing that the husband has an interest of his own in the life of the fetus which should not be extinguished by the unilateral decision of the wife. [Footnote 3/1] It by no means follows, from the fact that the mother's interest in deciding "whether or not to terminate her pregnancy" outweighs the State's interest in the potential life of the fetus, that the husband's interest is also outweighed, and may not be protected by the State. A father's interest in having a child -- perhaps his only child -- may be unmatched by any other interest in his life. See Stanley v. Illinois, 405 U. S. 645, 405 U. S. 651 (1972), and cases there cited. It is truly surprising that the majority finds in the United States Constitution, as it must in order to justify the result it reaches, a rule that the State must assign a greater value to a mother's decision to cut off a potential human life by abortion than to a father's decision to let it mature into a live child. Such a rule cannot be found there, nor can it be found in Roe v. Wade, supra. These are matters which a State should be able to decide free from the suffocating power of the federal judge, purporting to act in the name of the Constitution. In describing the nature of a mother's interest in terminating a pregnancy, the Court in Roe v. Wade mentioned only the post-birth burdens of rearing a child, 410 U.S. at 410 U. S. 153, and rejected a rule based on her interest in controlling her own body during pregnancy. Id. at 410 U. S. 154. Missouri has a law which prevents a woman from putting a child up for adoption over her husband's objection, Mo.Rev.Stat. § 453.030 (1969). This law represents a judgment by the State that the mother's interest in avoiding the burdens of childrearing do not outweigh or snuff out the father's interest in participating in bringing up his own child. That law is plainly valid, but no more so than § 3(3) of the Act now before us, resting, as it does, on precisely the same judgment."

"In Roe v. Wade, 410 U. S. 113, the Court held that a woman's right to decide whether to abort a pregnancy is entitled to constitutional protection. That decision, which is now part of our law, answers the question discussed in Part IV-E of the Court's opinion, but merely poses the question decided in Part IV-D. If two abortion procedures had been equally accessible to Missouri women, in my judgment, the United States Constitution would not prevent the state legislature from outlawing the one it found to be less safe even though its conclusion might not reflect a unanimous consensus of informed medical opinion. However, the record indicates that, when the Missouri statute was enacted, a prohibition of the saline amniocentesis procedure was almost tantamount to a prohibition of any abortion in the State after the first 12 weeks of pregnancy. Such a prohibition is inconsistent with the essential holding of Roe v. Wade, and therefore cannot stand. In my opinion, however, the parental consent requirement is consistent with the holding in Roe. The State's interest in the welfare of its young citizens justifies a variety of protective measures. Because he may not foresee the consequences of his decision, a minor may not make an enforceable bargain. He may not lawfully work or travel where he pleases, or even attend exhibitions of constitutionally protected adult motion pictures. Persons below a certain age may not marry without parental consent. Indeed, such consent is essential even when the young woman is already pregnant. The State's interest in protecting a young person from harm justifies the imposition of restraints on his or her freedom even though comparable restraints on adults would be constitutionally impermissible. Therefore, the holding in Roe v. Wade that the abortion decision is entitled to constitutional protection merely emphasizes the importance of the decision; it does not lead to the conclusion that the state legislature has no power to enact legislation for the purpose of protecting a young pregnant woman from the consequences of an incorrect decision."

"Nearly half a century ago, Roe v. Wade secured a woman’s legal right to obtain an abortion. The ruling has been contested with ever-increasing intensity, dividing and reshaping American politics. And yet for all its prominence, the person most profoundly connected to it has remained unknown: the child whose conception occasioned the lawsuit. Roe’s pseudonymous plaintiff, Jane Roe, was a Dallas waitress named Norma McCorvey. Wishing to terminate her pregnancy, she filed suit in March 1970 against Dallas County District Attorney Henry Wade, challenging the Texas laws that prohibited abortion. Norma won her case. But she never had the abortion. On January 22, 1973, when the Supreme Court finally handed down its decision, she had long since given birth—and relinquished her child for adoption. The Court’s decision alluded only obliquely to the existence of Norma’s baby: In his majority opinion, Justice Harry Blackmun noted that a “pregnancy will come to term before the usual appellate process is complete.” The pro-life community saw the unknown child as the living incarnation of its argument against abortion. It came to refer to the child as “the Roe baby.”"

"The answers Shelley had sought all her life were suddenly at hand. She listened as Hanft began to tell what she knew of her birth mother: that she lived in Texas, that she was in touch with the eldest of her three daughters, and that her name was Norma McCorvey. The name was not familiar to Shelley or Ruth. Although Ruth read the tabloids, she had missed a story about Norma that had run in Star magazine only a few weeks earlier under the headline “Mom in Abortion Case Still Longs for Child She Tried to Get Rid Of.” Hanft began to circle around the subject of Roe, talking about unwanted pregnancies and abortion. Ruth interjected, “We don’t believe in abortion.” Hanft turned to Shelley. “Unfortunately,” she said, “your birth mother is Jane Roe.” That name Shelley recognized. She had recently happened upon Holly Hunter playing Jane Roe in a TV movie. The bit of the movie she watched had left her with the thought that Jane Roe was indecent. “The only thing I knew about being pro-life or pro-choice or even Roe v. Wade,” Shelley recalled, “was that this person had made it okay for people to go out and be promiscuous.”"

"On June 20, 1989, in bold type, just below a photo of Elvis, the Enquirer presented the story on its cover: “Roe vs. Wade Abortion Shocker—After 19 Years Enquirer Finds Jane Roe’s Baby.” The “explosive story” unspooled on page 17, offering details about the child—her approximate date of birth, her birth weight, and the name of the adoption lawyer. The story quoted Hanft. The child was not identified but was said to be pro-life and living in Washington State. “I want her to know,” the Enquirer quoted Norma as saying, “I’ll never force myself upon her. I can wait until she’s ready to contact me—even if it takes years. And when she’s ready, I’m ready to take her in my arms and give her my love and be her friend.” But an unnamed Shelley made clear that such a day might never come. “I’m glad to know that my birth mother is alive,” she was quoted in the story as saying, “and that she loves me—but I’m really not ready to see her. And I don’t know when I’ll ever be ready—if ever.” She added: “In some ways, I can’t forgive her … I know now that she tried to have me aborted.” The National Right to Life Committee seized upon the story. “This nineteen-year-old woman’s life was saved by that Texas law,” a spokesman said. If Roe was overturned, he went on, countless others would be saved too. Perhaps because the Roe baby went unnamed, the Enquirer story got little traction, picked up only by a few Gannett papers and The Washington Times. But it left a deep mark on Shelley. Having begun work as a secretary at a law firm, she worried about the day when another someone would come calling and tell the world—against her will—who she was."

"Shelley had long considered abortion wrong, but her connection to Roe had led her to reexamine the issue. It now seemed to her that abortion law ought to be free of the influences of religion and politics. Religious certitude left her uncomfortable. And, she reflected, “I guess I don’t understand why it’s a government concern.” It had upset her that the Enquirer had described her as pro-life, a term that connoted, in her mind, “a bunch of religious fanatics going around and doing protests.” But neither did she embrace the term pro-choice: Norma was pro-choice, and it seemed to Shelley that to have an abortion would render her no different than Norma. Shelley determined that she would have the baby. Abortion, she said, was “not part of who I was.” Shelley and Doug moved up their wedding date. They were married in March 1991, standing before a justice of the peace in a chapel in Seattle. Later that year, Shelley gave birth to a boy. Doug asked her to give up her career and stay at home. That was fine by her. The more people Shelley knew, the more she worried that one of them might learn of her connection to Roe. Every time she got close to someone, Shelley found herself thinking, Yeah, we’re really great friends, but you don’t have a clue who I am."

"Shelley was not able to lock her birth mother away. In the decade since Norma had been thrust upon her, Shelley recalled, Norma and Roe had been “always there.” Unknowing friends on both sides of the abortion issue would invite Shelley to rallies. Every time, she declined. Norma had come to call Roe “my law.” And, in time, Shelley too became almost possessive of Roe; it was her conception, after all, that had given rise to it. Having previously changed the channel if there was ever a mention of Roe on TV, she began, instead, in the first years of the new millennium, to listen. She began to Google Norma too. “I don’t like not knowing what she’s doing,” Shelley explained. Shelley then began to look online for her pseudonymous self, to learn what was being written about “the Roe baby.” The pro-life community saw that unknown baby as a symbol. Shelley wanted no part of this. “My association with Roe,” she said, “started and ended because I was conceived.”"

"It was still January when Norma McCorvey and McCluskey met Coffee downtown in her office at Palmer, Palmer & Burke, where, for $450 a month, Coffee waded through petitions for bankruptcy. Coffee was intense, incapable of small talk, pale and unkempt besides. All at once, Norma was ill at ease beside her. She looked, said Norma, “like she got out of bed and forgot to comb her hair.” Looking back at Norma, Coffee saw a small woman with a big belly. Says Coffee: “She looked really pregnant.” Exactly how far along Norma was could not be known. In 1970, gestational age could only be estimated, and estimates could be off by up to four weeks. “We weren’t using ultrasound at that time,” explains Frank Bradley, the Dallas obstetrician who delivered Norma’s second child. Instead, he says, doctors used pelvic exams and menstrual history to “try to figure it out best they could.” It was more than likely that Norma had reached at least her twentieth week. And she had thus reached the legal limit at which any doctor in the United States—even where abortion was legal—could perform an elective abortion. In January 1970, abortion was legal only in Oregon, where residents were permitted to abort through the first 150 days, and in California, where nonresidents, too, could abort through 20 weeks. Abortion was also not illegal in the District of Columbia. (A federal district court had recently declared the anti-abortion law in D.C. -unconstitutional, and the appellee in that case performed abortions until at least the 20th week.) Coffee thus knew that it was almost certainly too late for Norma to get an abortion. “It was my opinion,” the lawyer soon recalled, “that, very likely, the suit would not solve her immediate problem.” It was not too late, however, for Norma to file suit. Indeed, it would be of no legal consequence if the suit Norma filed came to term after she did. “There were fairly established principles that that doesn’t moot the case,” says Coffee. (Among them was the category of cases deemed “capable of repetition yet evading review”—which meant, in essence, that the issue was a recurring one, but in each instance would pass before the courts had time to fully address it.) Coffee told Norma what she knew. “I remember saying,” she recalls, “that I thought she was probably too far along to have an abortion under the protection of the federal court.” But Norma had nowhere else to turn. Coffee was her last hope. Coffee told Norma that if she filed suit, she might have to testify. Norma agreed—never mind, says Coffee, that she “likely had no idea what that would entail.” Coffee sensed that Norma had little idea what filing suit even meant. “I could tell she didn’t have a lot of education,” says Coffee. “Maybe she was being a little too cooperative. … Most people would ask more questions if they were thinking about filing a lawsuit over something of that magnitude.” Norma only asked if filing suit would cost her money. It would not; Coffee would do the case pro bono. Norma agreed to file and left."

"Coffee marveled. McCluskey had come through. She had a plaintiff. And that plaintiff was perfect. As Coffee later told a reporter: “It had to be a pregnant woman wanting to get an abortion. She couldn’t have the funds to travel to California … for a legal abortion. And we had to have someone who could take the publicity. We weren’t able to guarantee her anonymity.” Still, Coffee would try to keep Norma anonymous. Alone in her office, she fashioned for her would-be plaintiff a pseudonym, combining Jane, which was suitably common, she says, with Roe, which was standard legal vernacular and already the surname of two plaintiffs (alongside two Hoes, two Poes, and a Doe) in a 1959 lawsuit on contraception. “In my mind,” says Coffee, “I considered her being Jane Roe as soon as I got an actual woman being ready to file.”"

"Weddington was confident. Her parents had raised her and her younger siblings to believe, she later recalled, that they “could do whatever they wanted,” and so she had—from soloing in the church choir to serving as secretary of her college student body. But her body of legal work was sparse—a few divorces and wills, an adoption. She suggested that the group hire a lawyer in a firm, she recalled, “with research and secretarial backup.” The women, however, wanted Weddington. So back to the library she went, comforted by the thought, she later wrote, that any suit she filed would simply back the growing number of suits that already contested abortion laws in other states. Still, the drafting of documents was daunting. Weddington again wondered if the case might be better handled by a lawyer with knowledge of federal courts and procedure. A former classmate turned clerk leapt to mind. On December 3, she phoned Linda Coffee. Coffee was delighted. She’d arrived at this same juncture and simply needed a plaintiff. Weddington suggested that Coffee file suit on behalf of the alumnae group in Austin. Coffee agreed and typed Weddington a letter the next day. “Would you consider being co-counsel in the event that a suit is actually filed?” she wrote. “I have always found that it is a great deal more fun to work with someone on a lawsuit of this nature.” Weddington phoned to accept. Coffee worried, however, that because the Austin group was not a pregnant woman, it might not have standing in the eyes of the court. Besides, only a case filed in Dallas could land on the sympathetic desk of Coffee’s mentor, Judge Hughes. The search for a plaintiff thus continued, extending into late January, when an exultant Coffee phoned Weddington to tell of the pregnant woman who’d just left her office."

"Finally, the abortion case resembles that of Bailey in that Radin’s double bind arises again. To some extent, inalienability provides a real as well as a symbolic remedy for women, because at the same time that the state refuses to enforce the “agreement” to accept the risk of pregnancy, it effectively alters the initial distribution of entitlements. When abortion is illegal, a woman is entitled to sex only if she is also willing to accept the risk of coerced motherhood; the right to abortion gives her both the right to refrain from procreation and the right to sex, so that she no longer has to trade one for the other. But the double bind persists in another form. All the pressures that force women to submit to unprotected sex remain in place. In the face of such pressures, the prospect of irreversible pregnancy and its legal consequences for men did give women some power in their sexual negotiations. Readily available abortion deprives them of this power, thereby rendering them more vulnerable to sexual exploitation.119 Thus, just as Bailey alone was insufficient to guarantee blacks’ freedom and equality, Roe alone is insufficient to guarantee the freedom and equality of women. Without more, both decisions harmed some of those they purported to help. They were, at best, a step in the right direction.120"