Abortion In The United States

"JUSTICE SCALIA would reconsider and explicitly overrule Roe v. Wade. Avoiding the Roe question by deciding this case in as narrow a manner as possible is not required by precedent and not justified by policy. To do so is needlessly to prolong this Court's involvement in a field where the answers to the central questions are political, rather than juridical, and thus to make the Court the object of the sort of organized pressure that political institutions in a democracy ought to receive. It is particularly perverse to decide this case as narrowly as possible in order to avoid reading the inexpressibly "broader than was required by the precise facts" structure established by Roe v. Wade. The question of Roe's validity is presented here, inasmuch as § 188.029 constitutes a legislative imposition on the judgment of the physician concerning the point of viability and increases the cost of an abortion. It does palpable harm, if the States can and would eliminate largely unrestricted abortion, skillfully to refrain from telling them so. Pp. 492 U. S. 532-537."

"In our view, the Court of Appeals misconceived the meaning of the Akron dictum, which was only that a State could not "justify" an abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the State's view about when life begins. Certainly the preamble does not, by its terms, regulate abortion or any other aspect of appellees' medical practice. The Court has emphasized that Roe v. Wade "implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion." Maher v. Roe, 432 U.S. at 432 U. S. 474. The preamble can be read simply to express that sort of value judgment."

"We think that the doubt cast upon the Missouri statute by these cases is not so much a flaw in the statute as it is a reflection of the fact that the rigid trimester analysis of the course of a pregnancy enunciated in Roe has resulted in subsequent cases like Colautti and Akron making constitutional law in this area a virtual Procrustean bed. Statutes specifying elements of informed consent to be provided abortion patients, for example, were invalidated if they were thought to "structur[e] . . . the dialogue between the woman and her physician." Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, 476 U. S. 763 (1986). As the dissenters in Thornburgh pointed out, such a statute would have been sustained under any traditional standard of judicial review, id. at 476 U. S. 802 (WHITE, J., dissenting), or for any other surgical procedure except abortion. Id. at 476 U. S. 783 (Burger, C.J., dissenting)."

"Stare decisis is a cornerstone of our legal system, but it has less power in constitutional cases, where, save for constitutional amendments, this Court is the only body able to make needed changes. See United States v. Scott, 437 U. S. 82, 437 U. S. 101 (1978). We have not refrained from reconsideration of a prior construction of the Constitution that has proved "unsound in principle and unworkable in practice." Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 469 U. S. 546 (1985); see Solorio v. United States, 483 U. S. 435, 483 U. S. 448-450 (1987); Erie R. Co. v. Tompkins, 304 U. S. 64, 304 U. S. 74-78 (1938). We think the Roe trimester framework falls into that category. In the first place, the rigid Roe framework is hardly consistent with the notion of a Constitution cast in general terms, as ours is, and usually speaking in general principles, as ours does. The key elements of the Roe framework -- trimesters and viability -- are not found in the text of the Constitution, or in any place else one would expect to find a constitutional principle. Since the bounds of the inquiry are essentially indeterminate, the result has been a web of legal rules that have become increasingly intricate, resembling a code of regulations rather than a body of constitutional doctrine. [Footnote 15] AS JUSTICE WHITE has put it, the trimester framework has left this Court to serve as the country's "ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States." Planned Parenthood of Central Mo. v. Danforth, 428 U.S. at 428 U. S. 99 (opinion concurring in part and dissenting in part). Cf. Garcia, supra, at 469 U. S. 547. In the second place, we do not see why the State's interest in protecting potential human life should come into existence only at the point of viability, and that there should therefore be a rigid line allowing state regulation after viability but prohibiting it before viability. The dissenters in Thornburgh, writing in the context of the Roe trimester analysis, would have recognized this fact by positing against the "fundamental right" recognized in Roe the State's "compelling interest" in protecting potential human life throughout pregnancy. "[T]he State's interest, if compelling after viability, is equally compelling before viability." Thornburgh, 476 U.S. at 476 U. S. 795 (WHITE, J., dissenting); see id. at 476 U. S. 828 (O'CONNOR, J., dissenting) ("State has compelling interests in ensuring maternal health and in protecting potential human life, and these interests exist throughout pregnancy'") (citation omitted)."

"Unlike the plurality, I do not understand these viability testing requirements to conflict with any of the Court's past decisions concerning state regulation of abortion. Therefore, there is no necessity to accept the State's invitation to reexamine the constitutional validity of Roe v. Wade, 410 U. S. 113 (1973). Where there is no need to decide a constitutional question, it is a venerable principle of this Court's adjudicatory processes not to do so, for "[t]he Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it.'" Ashwander v. TVA, 297 U. S. 288, 297 U. S. 346 (1936) (Brandeis, J., concurring), quoting Liverpool, New York and Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 113 U. S. 39 (1885). Neither will it generally "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." 297 U.S. at 297 U. S. 347. Quite simply, "[i]t is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case." Burton v. United States, 196 U. S. 283, 196 U. S. 295 (1905). The Court today has accepted the State's every interpretation of its abortion statute, and has upheld, under our existing precedents, every provision of that statute which is properly before us. Precisely for this reason, reconsideration of Roe falls not into any "good-cause exception" to this "fundamental rule of judicial restraint. . . ." Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 467 U. S. 157 (1984). See post at 492 U. S. 532-533 (SCALIA, J., concurring in part and concurring in judgment). When the constitutional invalidity of a State's abortion statute actually turns on the constitutional validity of Roe v. Wade, there will be time enough to reexamine Roe. And to do so carefully."

"JUSTICE O'CONNOR's assertion, ante at 492 U. S. 526, that a "fundamental rule of judicial restraint'" requires us to avoid reconsidering Roe, cannot be taken seriously. By finessing Roe we do not, as she suggests, ante at 492 U. S. 526, adhere to the strict and venerable rule that we should avoid "`decid[ing] questions of a constitutional nature.'" We have not disposed of this case on some statutory or procedural ground, but have decided, and could not avoid deciding, whether the Missouri statute meets the requirements of the United States Constitution. The only choice available is whether, in deciding that constitutional question, we should use Roe v. Wade as the benchmark, or something else. What is involved, therefore, is not the rule of avoiding constitutional issues where possible, but the quite separate principle that we will not "`formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.'" Ante at 492 U. S. 526. The latter is a sound general principle, but one often departed from when good reason exists."

"In the plurality's view, the viability testing provision imposes a burden on second-trimester abortions as a way of furthering the State's interest in protecting the potential life of the fetus. Since, under the Roe framework, the State may not fully regulate abortion in the interest of potential life (as opposed to maternal health) until the third trimester, the plurality finds it necessary, in order to save the Missouri testing provision, to throw out Roe's trimester framework. Ante at 492 U. S. 518-520. In flat contradiction to Roe, 410 U.S. at 410 U. S. 163, the plurality concludes that the State's interest in potential life is compelling before viability, and upholds the testing provision because it "permissibly furthers" that state interest. Ante at 492 U. S. 519."

"At the outset, I note that, in its haste to limit abortion rights, the plurality compounds the errors of its analysis by needlessly reaching out to address constitutional questions that are not actually presented. The conflict between § 188.029 and Roe's trimester framework, which purportedly drives the plurality to reconsider our past decisions, is a contrived conflict: the product of an aggressive misreading of the viability testing requirement and a needlessly wooden application of the Roe framework."

"Having set up the conflict between § 188.029 and the Roe trimester framework, the plurality summarily discards Roe's analytic core as "unsound in principle and unworkable in practice.'" Ante at 492 U. S. 518, quoting Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 469 U. S. 546 (1985). This is so, the plurality claims, because the key elements of the framework do not appear in the text of the Constitution, because the framework more closely resembles a regulatory code than a body of constitutional doctrine, and because, under the framework, the State's interest in potential human life is considered compelling only after viability, when, in fact, that interest is equally compelling throughout pregnancy. Ante at 492 U. S. 519-520. The plurality does not bother to explain these alleged flaws in Roe. Bald assertion masquerades as reasoning. The object, quite clearly, is not to persuade, but to prevail."

"The plurality opinion is far more remarkable for the arguments that it does not advance than for those that it does. The plurality does not even mention, much less join, the true jurisprudential debate underlying this case: whether the Constitution includes an "unenumerated" general right to privacy as recognized in many of our decisions, most notably Griswold v. Connecticut, 381 U. S. 479 (1965), and Roe, and, more specifically, whether, and to what extent, such a right to privacy extends to matters of childbearing and family life, including abortion. See, e.g., Eisenstadt v. Baird, 405 U. S. 438 (1972) (contraception); Loving v. Virginia, 388 U. S. 1 (1967) (marriage); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942) (procreation); Pierce v. Society of Sisters, 268 U. S. 510 (1925) (childrearing). [Footnote 2/7] These are questions of unsurpassed significance in this Court's interpretation of the Constitution, and mark the battleground upon which this case was fought by the parties, by the Solicitor General as amicus on behalf of petitioners, and by an unprecedented number of amici. On these grounds, abandoned by the plurality, the Court should decide this case. But rather than arguing that the text of the Constitution makes no mention of the right to privacy, the plurality complains that the critical elements of the Roe framework -- trimesters and viability -- do not appear in the Constitution, and are, therefore, somehow inconsistent with a Constitution cast in general terms. Ante at 492 U. S. 518-519. Were this a true concern, we would have to abandon most of our constitutional jurisprudence. As the plurality well knows, or should know, the "critical elements" of countless constitutional doctrines nowhere appear in the Constitution's text. The Constitution makes no mention, for example, of the First Amendment's "actual malice" standard for proving certain libels, see New York Times Co. v. Sullivan, 376 U. S. 254 (1964), or of the standard for determining when speech is obscene. See Miller v. California, 413 U. S. 15 (1973). Similarly, the Constitution makes no mention of the rational basis test, or the specific verbal formulations of intermediate and strict scrutiny by which this Court evaluates claims under the Equal Protection Clause. The reason is simple. Like the Roe framework, these tests or standards are not, and do not purport to be, rights protected by the Constitution. Rather, they are judge-made methods for evaluating and measuring the strength and scope of constitutional rights or for balancing the constitutional rights of individuals against the competing interests of government."

"The "permissibly furthers" standard completely disregards the irreducible minimum of Roe: the Court's recognition that a woman has a limited fundamental constitutional right to decide whether to terminate a pregnancy. That right receives no meaningful recognition in the plurality's written opinion. Since, in the plurality's view, the State's interest in potential life is compelling as of the moment of conception, and is therefore served only if abortion is abolished, every hindrance to a woman's ability to obtain an abortion must be "permissible." Indeed, the more severe the hindrance, the more effectively (and permissibly) the State's interest would be furthered. A tax on abortions or a criminal prohibition would both satisfy the plurality's standard. So, for that matter, would a requirement that a pregnant woman memorize and recite today's plurality opinion before seeking an abortion. The plurality pretends that Roe survives, explaining that the facts of this case differ from those in Roe: here, Missouri has chosen to assert its interest in potential life only at the point of viability, whereas, in Roe, Texas had asserted that interest from the point of conception, criminalizing all abortions except where the life of the mother was at stake. Ante at 492 U. S. 521. This, of course, is a distinction without a difference. The plurality repudiates every principle for which Roe stands; in good conscience, it cannot possibly believe that Roe lies "undisturbed" merely because this case does not call upon the Court to reconsider the Texas statute or one like it. If the Constitution permits a State to enact any statute that reasonably furthers its interest in potential life, and if that interest arises as of conception, why would the Texas statute fail to pass muster? One suspects that the plurality agrees It is impossible to read the plurality opinion, and especially its final paragraph, without recognizing its implicit invitation to every State to enact more and more restrictive abortion laws, and to assert their interest in potential life as of the moment of conception. All these laws will satisfy the plurality's nonscrutiny until, sometime, a new regime of old dissenters and new appointees will declare what the plurality intends: that Roe is no longer good law."

"Thus, "not with a bang, but a whimper," the plurality discards a landmark case of the last generation and casts into darkness the hopes and visions of every woman in this country who had come to believe that the Constitution guaranteed her the right to exercise some control over her unique ability to bear children. The plurality does so either oblivious or insensitive to the fact that millions of women, and their families, have ordered their lives around the right to reproductive choice, and that this right has become vital to the full participation of women in the economic and political walks of American life. The plurality would clear the way once again for government to force upon women the physical labor and specific and direct medical and psychological harms that may accompany carrying a fetus to term. The plurality would clear the way again for the State to conscript a woman's body and to force upon her a "distressful life and future." Roe, 410 U.S. at 410 U. S. 153. The result, as we know from experience, see Cates & Rochat, Illegal Abortions in the United States: 1972-1974, 8 Family Planning Perspectives 86, 92 (1976), would be that, every year, hundreds of thousands of women, in desperation, would defy the law and place their health and safety in the unclean and unsympathetic hands of back-alley abortionists, or they would attempt to perform abortions upon themselves, with disastrous results. Every year, many women, especially poor and minority women, would die or suffer debilitating physical trauma, all in the name of enforced morality or religious dictates or lack of compassion, as it may be. Of the aspirations and settled understandings of American women, of the inevitable and brutal consequences of what it is doing, the tough-approach plurality utters not a word. This silence is callous. It is also profoundly destructive of this Court as an institution. To overturn a constitutional decision is a rare and grave undertaking. To overturn a constitutional decision that secured a fundamental personal liberty to millions of persons would be unprecedented in our 200 years of constitutional history. Although the doctrine of stare decisis applies with somewhat diminished force in constitutional cases generally, ante at 492 U. S. 518, even in ordinary constitutional cases, "any departure from . . . stare decisis demands special justification." Arizona v. Rumsey, 467 U. S. 203, 467 U. S. 212 (1984). See also Vasquez v. Hillery, 474 U. S. 254, 474 U. S. 266 (1986) ("[T]he careful observer will discern that any detours from the straight path of stare decisis in our past have occurred for articulable reasons, and only when the Court has felt obliged to bring its opinions into agreement with experience and with facts newly ascertained,'" quoting Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 285 U. S. 412 (1932) (Brandeis, J., dissenting)). This requirement of justification applies with unique force where, as here, the Court's abrogation of precedent would destroy people's firm belief, based on past decisions of this Court, that they possess an unabridgeable right to undertake certain conduct. [Footnote 2/12] As discussed at perhaps too great length above, the plurality makes no serious attempt to carry "the heavy burden of persuading . . . that changes in society or in the law dictate" the abandonment of Roe and its numerous progeny, Vasquez, 474 U.S. at 474 U. S. 266, much less the greater burden of explaining the abrogation of a fundamental personal freedom. Instead, the plurality pretends that it leaves Roe standing, and refuses even to discuss the real issue underlying this case: whether the Constitution includes an unenumerated right to privacy that encompasses a woman's right to decide whether to terminate a pregnancy. To the extent that the plurality does criticize the Roe framework, these criticisms are pure ipse dixit."

"The plurality, ignoring all of the aforementioned cases except Griswold, responds that this case does not require consideration of the "great issues" underlying this case because Griswold, "unlike Roe, did not purport to adopt a whole framework . . . to govern the cases in which the asserted liberty interest would apply." Ante at 492 U. S. 520. This distinction is highly ironic. The Court in Roe adopted the framework of which the plurality complains as a mechanism necessary to give effect both to the constitutional rights of the pregnant woman and to the State's significant interests in maternal health and potential life. Concededly, Griswold does not adopt a framework for determining the permissible scope of state regulation of contraception. The reason is simple: in Griswold (and Eisenstadt), the Court held that the challenged statute, regulating the use of medically safe contraception, did not properly serve any significant state interest. Accordingly, the Court had no occasion to fashion a framework to accommodate a State's interests in regulating contraception. Surely the plurality is not suggesting that it would find Roe unobjectionable if the Court had forgone the framework and, as in the contraception decisions, had left the State with little or no regulatory authority. The plurality's focus on the framework is merely an excuse for avoiding the real issues embedded in this case, and a mask for its hostility to the constitutional rights that Roe recognized."

"Notably, neither the plurality nor JUSTICE O'CONNOR advances the now-familiar catch-phrase criticism of the Roe framework that, because the point of viability will recede with advances in medical technology, Roe "is clearly on a collision course with itself." See Akron, 462 U.S. at 462 U. S. 458 (dissenting opinion). This critique has no medical foundation. As the medical literature and the amicus briefs filed in this case conclusively demonstrate, "there is an anatomic threshold' for fetal viability of about 23-24 weeks of gestation." Brief for American Medical Association et al. as Amici Curiae 7. See also Brief for 167 Distinguished Scientists and Physicians, including 11 Nobel Laureates, as Amici Curiae 8-14. Prior to that time, the crucial organs are not sufficiently mature to provide the mutually sustaining functions that are prerequisite to extrauterine survival, or viability. Moreover, "no technology exists to bridge the development gap between the three-day embryo culture and the 24th week of gestation." Fetal Extrauterine Survivability, Report to the New York State Task Force on Life and the Law 3 (1988). Nor does the medical community believe that the development of any such technology is possible in the foreseeable future. Id. at 12. In other words, the threshold of fetal viability is, and will remain, no different from what it was at the time Roe was decided. Predictions to the contrary are pure science fiction. See Brief for A Group of American Law Professors as Amicus Curiae 23-25."

"[W]e did not want the Texas law changed only to allow abortion in cases of rape. We wanted a decision that abortion was covered by the right of privacy. After all, the women coming to the referral project were there as a result of a wide variety of circumstances. Our principles were not based on how conception occurred. Jane Roe asked that being a plaintiff would involve. First, we told her, a minimal amount of time. In fact, she signed a one-page affidavit stating her situation. She never had to answer written or oral questions from the opposing lawyers. She did not attend any of the court hearings. Second no money. Lind and I were donating our time, and we were covering the expenses. Third, she could be anonymous. No one would know who she was unless she chose to tell them. Using pseudonyms or false names in legal cases was a long-standing tradition, and especially common in abortion cases, to protect the privacy of plaintiffs who did not want the “whole world” to know they had had or had wanted an abortion. On the other hand, doctors, social workers, and nonpregnant plaintiffs in abortion cases generally filed using their real names. When Jane Roe agreed to be a plaintiff, I was grateful for her help. I found her street-smart and likeable. Her hard-luck stories touched a sympathetic chord. Linda and I decided to file two lawsuits. A pregnant plaintiff had standing, but since our wife plaintiff wasn’t pregnant, we were afraid the court would say she and her husband were not sufficiently at risk to have standing. There was another reason for filing two lawsuits: Since we would file the cases in Dallas, where Linda, Jane Roe, and the married couple resided, and where the federal court had a rotating docket, each case would be filed in a different judge’s court. We hoped to increase our chances of having one of the cases filed in Judge Jughe’s court; Linda thought she would be sympathetic. Our strategy then would be to ask that the other case be consolidated with it, so that we could try one case with the combined facts instead of two."

"As we finished drawing up the necessary legal papers in 1970, Jane Roe’s pregnancy was progressing. Linda spent the end of February on rough drafts of the documents to file. Our petitions were straightforward and only three legal-size pages in length. We asked the court to do two things: first, to declare or state that the Texas laws against abortion were unconstitutional on their face, that is, as one could see by merely reading them; and second, to enjoin, or stop, the enforcement of those statutes. In essence we wanted the court to say the Texas anti-abortion laws violated the U.S. Constitution and to tell local law enforcement officials to quit prosecuting doctors under those statutes. We still had to name our plaintiffs. We picked names that rhymed. I liked “Jane Roe.” To me the name represented all women, not just one. We decided on “John and Mary Doe” for the couple. The names seemed generic."

"In law there are “magic words.” If one of them applies to what you are challenging, you have a good chance of getting it overturned. Linda and I used all the magic words that might possibly apply: The statutes were “vague” and uncertain on their face; they were “unconstitutionally broad” on their face in that they infringed upon plaintiff’s “right to safe and adequate medical advice” about the decision of whether to carry a pregnancy to term, upon the “fundamental” right of all women to choose whether to bear children, and upon plaintiff’s “right to privacy” in the physician-patient relationship; on their face they infringed upon plaintiff’s “right to life” in violation of the due-process clause of the Fourteenth Amendment; on their ace they violated the “First Amendment” prohibition against laws respecting an establishment of religion; and on their face they denied plaintiffs the “equal protection of the laws.”"

"Two and a half months later, Linda and I were seated at a long wooden table facing the much higher bench where the three judges would sit. We were on the fourth floor of the Dallas Federal Courthouse, an imposing building that had previously been a post office, in a courtroom that was more utilitarian than elegant. We were waiting for the judges to file in and hear Roe. We were unabashedly excited, and as prepared as would ever be. We have had some very good luck and had accomplished a great deal thus far. One of our two cases landed in Hughes’s court; the other in that of Federal District Judge William M. Taylor of Dallas. Federal Circuit Judge Irving L. Goldberg had been appointed to join Hughes and Taylor on a three-judge panel to hear our cases. After a pretrial conference in Hughes’s office in April, our cases were consolidated; we now said just Roe when actually referring to both Roe and Doe. Taylor had a reputation for fairness and open-mindedness. Goldberg was reputed to be brilliant, but domineering in court proceedings. We did not look forward to his trial questions, which we knew would be tough and incisive, but we calculated that he was our best chance of a second vote in our favor."

"Yet another rumor was that Blackmun, the justice with the best background in medical-legal issues, who had been appointed by Chief Justice Burger to write the opinion, had asked for more time. The rumor added that Douglas was dissenting to the reargument probably because Burger had designated Blackmun to write the opinion. By Court custom, if the chief justice is on the majority side during the postargument conference, then he designates the justice who will write the opinion. If the chief justice is “not” on the majority side, as was rumored in this case, then the justice with seniority on the majority side makes that designation. The rumor was that Douglas, the senior justice on the majority side during the postargument conference, was upset by Burger’s action to step in and appoint Blackmun, which contravened tradition (Later, in their book “The Brethren”, Bob Woodward and Scott Armstrong confirmed that rumor.) Speculation was that Burger felt he would have the most influence with Blackmun and that an opinion Blackmun would write would be more conservative. There was also media speculation that we had in fact won the case five to two, but Burger was in dissent and used his position to force the Court into setting it up for reargument. If that was true, it meant we would win if we simply held those five votes, regardless of how the new justices voted. Unbeknowst to us, as “The Douglas Letters", edited by Melvin Urofsky, revealed in 1987, Douglas had written Blackmun on May 10, 1972: In No. 70-18-Roe v. Wade, my notes confirm what Bill Brennan wrote yesterday in his memo to you-that abortion statutes were invalid save as they required that an abortion be performed by a licensed physician within a limited time after conception. That was the clear view of a majority of the seven who heard the argument. My notes also indicate the Chief [Burger] had the opposed view, which made it puzzling as to why he made the assignment at all except that he indicated he might affirm on vagueness. My notes indicate that Byron [White] was not firmly settled and that you might join the majority of four. So I think we should meet what Bill Brennan calls the “core issue.” I believe I gave you, some time back, my draft opinion in the Georgia case. I see no reason for reargument on what case. It always seemed to me to be an easier case than Texas,"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"This is a compelling story. We will have a better politics—civil, respectful, compromising—which will reassert itself as soon as the Court withdraws and leaves democracy to work itself pure. Had the Court never enforced its (mistaken?) understanding of the Constitution, we would have civic peace. The power of this story is its power as a story. What is often missing is the kind of fact-based analysis of competing explanations for the abortion conflict that would support it."

"The assumption that Roe caused backlash by repressing politics is now part of how we reason about courts. It made an appearance in the case challenging the"

"Cf. FRANK, supra note 164, at 121 (invoking “the great abortion controversy, which mobilizes millions but which cannot be put to rest without a supreme Court decision overturning Roe v. Wade”)."

"See William n. Eskridge, Jr., Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics, 114 YALE L.J. 1279, 1312 (2005) (“Roe essentially declared a winner in one of the most difficult and divisive public law debates of American history. Don’t bother going to state legislatures to reverse that decision. Don’t bother trying to persuade your neighbors (unless your neighbor is Justice Powell).”); Michael Klarman, Fidelity, Indeterminacy, and the Problem of Constitutional Evil, 65 FORDHAM l. REV. 1739, 1751 (1997) (describing the “conventional understanding of Roe v. Wade” as being that, “far from reconciling abortion opponents to a woman’s fundamental right to terminate her pregnancy, the decision actually spawned a right-to-life opposition which did not previously exist”)."

"Roe not only is believed by many to have ignited conflict over abortion but also is commonly represented as having single-handedly caused societal polarization and party realignment around the question of abortion. Backlash narratives about Roe thus rest both on temporal assumptions (that conflict over abortion and polarization began with Roe) and on institutional assumptions (that the Supreme Court decision caused the abortion conflict, societal polarization, and party realignment). Those who claim that the Court caused the abortion conflict in fact offer different accounts of why the Court’s decision had such powerful effects on the nation’s politics. They assert that Roe caused backlash because the decision nationalized conflict, because the Court was too far ahead of public opinion,163 or because the decision prevented compromise. The premise on which all of these accounts rest is that bad judicial decisionmaking—whatever the opinion’s precise flaws—caused bad politics. Escalating conflict is a symbol of a politics deformed by judicial overreaching."

"The underlying assumption is that the Court blundered by issuing a decision that shut down politics, short-circuiting a process of democratic-based legislative change that would have been accorded more legitimacy, even by those members of the public who disagreed with it. In What’s the Matter with Kansas, Thomas Frank charged that: [Roe] unilaterally quashed the then-nascent debate over abortion, settling the issue by fiat and from the top down. And it cemented forever a stereotype of liberalism as a doctrine of a tiny clique of experts, an unholy combination of doctors and lawyers, of bureaucrats and professionals, securing their “reforms” by judicial command rather than by democratic consensus."

"Critics of Roe frequently assert that Roe disrupted a process of state-by-state legislative compromise on abortion that would have produced general public acceptance of laws liberalizing access to abortion. The case is very far from clear. liberalization efforts seem to have stalled after 1970."

"[F]ar from reconciling abortion opponents to a woman’s fundamental right to terminate her pregnancy, the decision actually spawned a right-to-life opposition which did not previously exist."

"Accounts of abortion backlash differ in the particular failings that they ascribe to the Supreme Court, but the assumption that binds them together is that it was the Court’s decision in Roe that began conflict over abortion. As Ken I. Kersch, director of the Clough Center for the Study of Constitutional Democracy at Boston College, explains, “Politically, the Court’s decision to declare abortion to be a national right served as a catalyst for the Right to Life movement. That movement, in turn, played a major role in realigning the party loyalties of millions of Americans.”"

"It is also commonly asserted that the Court caused conflict because it rendered a decision that diverged from popular opinion. Jeffrey Rosen, for example, contrasts Roe with Brown, which he asserts “was supported by more than half of the country when it was handed down . . . [while] Roe v. Wade was an entirely different matter. The Court’s decision, in 1973, to strike down abortion laws in forty-six states and the District of Columbia was high-handed, and represents one of the few times that the Court leaped ahead of a national consensus.” Jeffrey Rosen, The Day After Roe, THE ATLANTIC, June 2006, at 56, 56-57. Rosen also contends that the Court could have avoided backlash if only it had limited its holding to the termination of early pregnancies. Jeffrey Rosen, The Supreme Court: Judicial Temperament and the Democratic Ideal, 47 WASHBURN L.J. 1, 8 (2007) (“The parts of Roe that provoked a backlash were those that called into question later term restrictions that most Americans support.”). Historical evidence does not suggest that a more temporally limited abortion right would have been acceptable to the antiabortion movement at the time of Roe. The fervent minority who entered politics to work against abortion rights before and after Roe sought criminalization and were not willing to settle for less. To those who believe that abortion is murder, there is no middle ground; it makes no difference whether a judicial or legislative decision permits abortion up to twelve weeks’ gestation or twenty. That is why the Catholic Church began to organize at the national level to block abortion reform when the only reform on offer was the ALI therapeutic legislation. see supra notes 66-79 and accompanying text; see also Eugene Quay, Justifiable Abortion—Medical and Legal Foundations, 49 GEO. L.J. 173, 173 (1960) (attacking, from a Catholic perspective, the abortion provisions of the proposed Model Penal Code, recently tentatively approved by the ALI, and describing the proposal as “a violent departure from all existing laws”)."

"Polarization of the national parties over abortion did not appear at the time of Roe but took shape years after. While party platforms began to diverge on abortion in the 1970s, it took years after Roe for Republicans to vote more consistently against abortion than Democrats, a shift that seems to have begun with party leaders and then spread to its base. Greg Adams, examining abortion-related votes in Congress from 1973 through 1994 as a measure of the abortion views of the political system’s elites, concluded that it was not until 1979 (perhaps not coincidentally, at the same time Weyrich and Viguerie organized pro-life PACs) that congressional Republicans began to vote against abortion at a higher rate than Democrats in Congress."

"pp.299-300"

"In this Part, we survey commentary in the academy and popular press that attributes escalating conflict over abortion to the Court’s decision in Roe. The “Roe-caused-backlash” narrative has acquired a life of its own, such that those who invoke it scarcely look to history."

"Not only is it commonly assumed that Roe started the conflict over abortion but the common assumption, both outside and within the legal academy, is that Roe has driven the realignment of Republican and Democratic voters around abortion. According to Benjamin Wittes, “One effect of Roe was to mobilize a permanent constituency for criminalizing abortion—a constituency that has driven much of the southern realignment toward conservatism.” As Cass Sunstein put it, “[T]he decision may well have created the Moral Majority, helped defeat the equal rights amendment, and undermined the women’s movement by spurring opposition and demobilizing potential adherents.” Or as Sandford Levinson explains, “I have often referred to Roe as ‘the gift that keeps on giving’ inasmuch as it has served to send many, good, decent, committed largely (though certainly not exclusively) working-class voters into the arms of a party that works systematically against their material interests but is willing to pander to their serious value commitment to a ‘right to life.’” David Brooks charges yet more harshly: “Justice Harry Blackmun did more inadvertent damage to our democracy than any other 20th-century American. When he and his Supreme Court colleagues issued the Roe v. Wade decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since.” Robert P. George invokes Roe in warning the Supreme Court not to accept the constitutional claim for same-sex marriage: “By short-circuiting the democratic process, Roe inflamed the culture war that has divided our nation and polarized our politics.”"

"Why did the abortion debate escalate and become the defining site of political division in the nation? The history of the abortion conflict in the period before Roe raises a variety of questions about Court-centric explanations for Roe rage—and accordingly suggests the need for historical inquiry into the sources of the polarization so often attributed to the decision. While the history of conflict over abortion before Roe cannot tell us what happened after the Court ruled, it can and does raise powerful questions about the logic of polarization in the decades after Roe precisely because it demonstrates how the abortion conflict could accelerate and become entangled in party politics in a period when the abortion conflict cannot be plausibly construed as a response to judicial review. The history of the pre-Roe period thus illustrates the need for a deep history of the post-Roe period if we are to make any reliable judgments about how and why Roe came to be the site of polarizing and identitarian conflict that it now is."

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