1970s-in-the-united-states

"I say Roberto Clemente won that game for Pittsburgh. Simply by being Roberto Clemente and running out a ground ball the way he always has since the day he began playing ball 30 years ago. I had only one thought watching Clemente run down to first base. I wondered what Alex Johnson was thinking while watching the whole thing on TV."

"It all began with Clemente hustling to first. He knows only one way to play this game."

"Roberto Clemente was on second and Wilver Stargell on first with none out. The Pirates were two games down in the Series and their knuckles were getting white in their cling to the precipice when Bob Robertson came up. Now, bear in mind, Bob Robertson had hit three home runs in one game in the playoffs. Behind him in the Pirate order was the banjo section. In this situation, naturally, the manager orders bunt. Managers never call for cards, never fade you. Managers order you to give yourself up in this situation. Managers like to blow retreat. Bob Robertson missed the bunt sign. Which was understandable; he'd never seen one. They wouldn't be in the World Series if they gave him the bunt sign during the season. So, he hit the ball out of the park. Pittsburgh had got a foot in the door in this World Series. Wilver Stargell greeted Robertson at home plate. "Nice bunt," he said laconically."

"From a personal standpoint, I have known Clemente since he came up to the Pirates 17 years ago and the thing he did that impressed me most in the Series against the Orioles wasn't that he hit .414 or got off those excellent throws, but that he got up and chased the ball when he kicked it into distant left centerfield after falling down trying for a backhanded shoestringer on 's triple in the first game. "Swoboda would've had it!" said a newspaperman I know. Seriously, though, what impressed me so much about Clemente's get-up-and-go-after-it sequence is that this was so typical of his performance. He'd do the same thing in the second game of a series with San Diego as he was doing now in the second game of a series with Baltimore."

"After we lost the second game in Baltimore, Clemente came into the clubhouse and he starts screamin’ and said that we’re gonna go back to Pittsburgh and we’re gonna kick their butts three games in a row. And we went back to Pittsburgh and we did exactly that."

"They got on his back, and he carried the team. He said, "I’m not going to let my team lose.""

"He's been popping off about ballparks and he's played in a bleeping coal hole over there at all his career. Clemente's such a great outfielder, it shouldn't matter to him. He should be able to play on the moon. Sure, it's tough to see the ball in Baltimore. But I'm not going to cry about it, I'll just play my game. We're going back there to play, so maybe he can buy a ticket for the stands if he doesn't like the outfield. And if he isn't sure where he lought to play, tell him to watch me. He says he plays in close. I see him playing on the warning track."

"For years we sent the World Series runners-up to Japan as a consolation prize. The baths, the geishas and the sake restored the losers' morale. We weren't concerned about the morale of the Japanese, who were struggling in those days, and glad to get any kind of major league product. It's different now that the Japanese are a power, and make better radio and TV sets than we do. They want the best in baseball, too. We can get away with sending the second string, Spiro, to visit the dictators in Greece, but Japan is a vibrant democracy that won't settle for No. 2. If Nixon allows the Orioles to make the trip, you can expect student riots, accompanied by chants ("We want Clemente san!") and banners ("Boog — Stay Home With Rest of Yankees — We Got Enough Sumo Wrestlers"). Don't think the President isn't aware of this. If there's one thing he's sharp on, it's sports. Why do you suppose he sent Secretary of State Rogers to the seventh game? To lend moral and official support to the Orioles, who were supposed to be our best team and thus had been given State Department approval for the tour. Unfortunately it was the all over again — the wrong side won, and it was another defeat for the State Department, too."

"Oh, my God. Unbelievable. Unbelievable. Really."

"Since the Mets surprised them, these excellents have played six playoff games and won them all; have played five World Series games and won four of them; have run off and hid from their division during the regular seasons. But they haven't beaten any great clubs. What they have beaten is expansion. They have maintained a balance, a strength, at a time when most teams have been watered down. That is your Baltimore dynasty. Now comes Pittsburgh. Like the Mets of '69, it has its skinny kid, ; it's brash young hard thrower, ; it's homer-hitter on first base, and if they put it all together and knock off the dynasty, I won't be surprised. Every once in a while a team, a fighter, a horse, comes along with no business to win, but does. I have seen Willie Mays try to sacrifice, just the other day, a slap-in-the-face reminder that things change, and the great grow old, and there always is room at the top for someone new, someone with ability, who is willing to work at it."

"I'm not selling Clemente short. He couldn't have done more than he did. But, great as Clemente was—and he was great without a question—Clemente didn't do it to us. It all boils down to Steve Blass."

"Leppert’s only regret is that Clemente didn’t have the chance to truly excel in the field. Other than his eye-popping throw to the plate in the sixth game, Clemente was required to field no more than ordinary chances. "Brooks Robinson had that great Series with the glove in 1970, but you’ve got to be lucky to field like he did. By that, I mean you’ve got to get the tough chances, and if Roberto had had some in this Series, he really would have shown them something.”"

"I want everybody in the world to know that this is the way I play all the time. All season, every season. I gave everything I had to this game."

"I never really pitched against him until the World Series. The scouting report said you can go up and in with him, but don’t go there twice. You can pitch him low and away, but don’t stay out there. So what does that leave? Throw it down the middle and hope he hits it at someone. Clemente beat us. The reason they won was Steve Blass’s two games and Clemente. He ran the bases as well as you could run them, made great plays and great throws. And he hit the home run to right field against me, the triple to left-center – he had 12 hits."

"During the Series, after arriving in Baltimore, Roberto practiced for hours, studying how the ball caromed off the right field fence at different angles and locations. His determination was of such a magnitude that one could be excused for believing he’d gone crazy. Crazy like a fox is more like it, as the World Series would ultimately demonstrate; time after time, Roberto, having left nothing to chance, would appear in precisely the right spot to field each carom. For me, Roberto Clemente has to be the greatest right fielder of all time."

"I've already had a colonoscopy by Blass."

"It all boils down to Blass, to pitching being 90 percent of the game. Blass couldn't have been better. He didn't get stronger late in the game, but he sure didn't get much weaker."

"And then, too, there was the shared experience, already permanently fixed in memory, of Roberto Clemente playing a kind of baseball that none of us had ever seen before—throwing and running and hitting at something close to the level of absolute perfection, playing to win but also playing the game almost as if it were a form of punishment for everyone else on the field."

"In case you didn't notice, and you probably didn't because TV directors were very careful, there were thousands of empty seats at the World Series. On Saturday, with the Pirates leading 3–2, in games, there were 7,963 empty seats in Baltimore's Memorial Stadium. And on Sunday, with the Series deadlocked, 4,856 stayed home and many who did show came with transistor radios so they could follow their favorite pro football teams."

"[T]he Bucs drafted Clemente for $4,000. The Dodgers lost a superstar, $6,000 and God knows how many pennants. Tomorrow night at Leone's, Roberto Clemente will be handed the keys to the Sports Mag car, for having won the World Series for Pittsburgh. At age 37, he can hit the ball back to the box and beat the car to first base."

"Well, I'm sort of glad to see Pittsburgh win because that Clemente is so great."

"The best damn ballplayer in the World Series – maybe in the whole world – is Roberto Clemente and, as far as I’m concerned, they can give him the automobile right now. Maybe some guys hit the ball farther, and some throw it harder, and one or two run faster, although I doubt that, but nobody puts it all together like Roberto. [...] In Game 3, Clemente hit a ground ball to the right side first time up. It was stamped DP. The Orioles got one. In the seventh, Clemente led off with a bouncer back to the box. Mike Cuellar knocked it down, picked it up, was aghast to see the batter streaking down the line, hurried his throw, high, and Clemente was safe. The next batter walked on four pitches, the next batter hit the ball out of the park. Mike Cuellar’s composure was shattered. The game was over. [...] Roberto Clemente is a 37-year-old roadrunner. He has spent 18 summers of those years playing baseball for the Pittsburgh Pirates. He has batted over .300 thirteen times, and for the last three seasons, in his decrepitude, he has hit .345, .352, .341. But everybody has numbers. Don’t mind the numbers. Just watch how Roberto Clemente runs 90 feet the next time he hits the ball back to the pitcher and ask yourself if you work at your job that way. Every time I see Roberto Clemente play ball, I think of the times I’ve heard about how ‘they’ dog it, and I want to vomit."

"The park didn't have any foul poles. You had the foul line on the field and then there was a fence with a yellow line on it and then about an 18-inch gap and a wall with a yellow line on it and that was it. In the second game there, the first night game ever in the World Series, of the National League was behind the plate. I was working the right-field line. In the middle of the game, Roberto Clemente hits this wicked line drive down the right field line. It went into the stands right in the area where there was no foul pole. When you have to make a call like that, it's a killer-diller. I called it foul. Everybody told me afterward if there had been a foul pole, it would have been a home run. And the next year, they put up a foul pole."

"The Court's decision in Roe effectively blocked the state legislative process. In the years between Roe and Casey, few state laws survived the Court's imposed value preference allowing the application of lethal force to be applied against the unborn. In Casey, the Court slightly loosened its grip, and brief waiting periods, informed decisionmaking, minor reporting requirements, and parental consent with judicial by-pass, were tolerated by the Court. It seemed, for one transient moment, that Justice Scalia may have been a bit too pessimistic when he wrote that "Roe's mandate for abortion-on-demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level." 112 S.Ct. at 2882."

"In November, Harry Blackmun writes the final drafts of opinions that today we know rather infamously as Roe v. Wade, 410 U.S. 113 (1973) and Doe v. Bolton, 410 U.S. 179 (1973). Again, no real discussion of law occurs in the internal deliberations; instead, there is the startling admission from Justice Blackmun in the presentation of his near final draft that "you will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary." [Memorandum to Conference from Harry Blackmun, dated November 21, 1972, emphasis added]. So, there you have it. A confession by the principal author of the most infamous decision in this century, and perhaps after Dred Scott, ever, revealing that arbitrary choice -- not discernment of the law of the land -- accounts for the result in Roe. Law, legal history, constitutional allocations of power, all ignored. The abortion right derives not from background principles of common law; not in the first principles of our constitutional republic; not as a result of careful parsing of constitutional text."

"Justice Blackmun writes: "many pregnant women, particularly younger girls, who may refuse to face the fact of pregnancy and who, for one reason or another, do not get around to medical consultation until the end of the first trimester is upon them or, indeed, has passed. [Memorandum to the Conference from Harry Blackmun, dated December 11, 1972]."

"As one of the most restrictive abortion laws in the nation, the Texas law, passed in 1858, prohibited abortion unless it was necessary to save the life of the mother. Roe, unmarried and pregnant, challenged the law. She claimed it violated her constitutional right to privacy and the equal protection clause of the Fourteenth Amendment."

"Between late November and the end of the year, Blackmun observes how he's thinking about moving what he called previously the "critical" line from the end of the first trimester to viability. He admits that he chose the end of the first trimester largely for marketing reasons, writing: "I selected the earlier point because I felt that it would be more easily accepted (by us as well as others) . . ." [Memorandum to the Conference from Harry Blackmun, dated December 11, 1972]. He is hesitant, however, if moving the line would cost him votes on the merits. ["I would be willing to recast the opinions at the later date (viability instead of the end of the first trimester), but I do not wish to do so if it would alienate any Justice who has expressed to me, either by writing or orally, that he is in general agreement, on the merits, with the circulated memorandum." [Id.]"

"A few of the justices were squeamish. Justice Potter Stewart wondered "about the desirability of the dicta being quite so inflexibly 'legislative,' suggesting that he might extend to the States more latitude to make policy judgments." [Letter from Potter Stewart to Harry Blackmun, dated December 14, 1972]. The flexibility was not to be, though Justice Blackmun in a small concession urged that the "cases . . . come down no later than the week of January 15 to tie in with the convening of most state legislatures." [Memorandum to Conference from Harry Blackmun, dated December 15, 1972]. A professional courtesy perhaps to fellow legislators. Of course, a Court that engages in practices well beyond its Article III function to decide "cases or controversies" under the principles and usages of established law, needs its own press office to put, as political figures say today, the proper "spin" on matters. Writing that he anticipated the headlines that will be produced over the country when the abortion decisions are announced," Justice Blackmun prepared an 8-page press release personally. [Memorandum to the Conference, with press attachment, from Harry Blackmun, dated January 16, 1973]."

"It was, after all, Justice Blackmun, himself, in Casey, who echoed the sentiment of the plurality that "a decision to overrule Roe 'would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to a rule of law." 112 S.Ct. at 2845. In truly Orwellian terms, Justice Blackmun then scowled at the four dissenting justices, with the comment: "What has happened today should serve as a model for future Justices and a warning to all who have tried to turn this Court into yet another political branch. Id. This is a skeptical age and for those more generally inclined to be distrustful of public figures and events than myself the history recounted here may not impart the same level of surprise, as it disappointingly conveys to me. In light of these revelations, however, I now better understand Chief Justice Rehnquist's strong criticism of Justice Blackmun for "mak[ing] . . . decisions (in the abortion context] with a view toward speculative public perceptions," Casey, 112 S.Ct. at 2866 (Rehnquist, C.J., dissenting. Possibly, the Chief Justice merely was recalling from internal memoranda that Roe was constructed largely upon personal preferences and an accompanying press release. This may also explain why Justice Scalia, who was not on the Court when Roe was decided, could plaintively wonder in dissent in Casey why the Court skirted the fundamental question of "how wrong was the decision on its face?" 112 S. Ct. at 2875."

"By late May, Justice Blackmun had fully joined the Douglas-Brennan circle [which also included Potter Stewart and Thurgood Marshall] in favor of creating an abortion right. [Memorandum to the Conference, dated May 31, 1972]. Justice Blackmun's memoranda reflect highly legislative considerations almost exclusively. For example, he proposes to invalidate most of the Georgia statute, except maybe those requiring an abortion to occur in a licensed and accredited hospital. [Memorandum to the Conference from Harry Blackmun, dated May 25, 1972]. Demonstrating that none of these specific invalidations were rooted in constitutional text or history, however, Justice Blackmun holds open the possibility, like a good legislative lobbyist, that may be "some of you may wish to take that step, too [that is, allowing abortions outside hospitals]." [Id., the Court did take that step.] The particulars of the Court's legislative considerations still tangled, Justice Blackmun, at month's end, urges that Roe and Doe be reargued. [Memorandum to Conference from Harry Blackmun, dated May 31, 1972]."

"Douglas steadfastly resisted reargument. Matters dragged on nonetheless and by mid-May, 1972, Justice Blackmun tried to rid the Court of the issue on procedural grounds -- namely, that the Texas statute was too vague to be enforced. He wrote: "I think that [vagueness] would be all that is necessary for disposition of the case, and that we need not get into the more complex Ninth Amendment issue." [Memorandum to Conference from Harry Blackmun, dated May 18, 1972]. This did not suit Justice Douglas, who argued that there were at least 4 votes [enough for a majority on an understaffed Court] that "an abortion [may] be performed by a licensed physician within a limited time after conception." (Letter from William O. Douglas to Harry Blackmun, dated May 19, 1972]. Douglas must have talked with Justice Brennan, because at about the same time Brennan by letter gives his support for the abortion proposition in almost identical language; namely, that "an abortion be performed by a licensed physician within some limited time after conception." [Letter from William Brennan to Harry Blackmun, dated May 18, 19721. Several things are striking about this internal correspondence beyond, of course, Justice Blackmun's change of posture from assigned draftsman to abortion advocate and the overall bewilderment of the Court after the case was first argued. First, there was considerable internal pressure to get a decision, perhaps before new members of the Court might change the outcome. [Nixon appointees' Lewis Powell and William Rehnquist replaced Black and Harlan; as it later turned out, Powell and Rehnquist split over the issue]. Douglas, in particular, seemed especially agitated to push the opinions out, writing "I feel very strongly that [Roe and Doe] should not be reargued. . . I hope the 5 can agree to get the cases down this Term, so that we can spend our energies next Term on other matters." [Letter from William O. Douglas to Harry Blackmun, dated May 31, 1972]. Second, the internal correspondence is almost completely devoid of what one could call constitutional argument. Instead of a careful examination of the common law or argumentation premised upon the textual provisions of the Constitutional document, there is merely vote counting and assertion. Third, taking Justices Douglas and Brennan at their word, the initial 4-person majority envisioned only a very narrowly-worded abortion privilege -- one that would be confined to a limited time after conception. The last point is particularly striking in light of President Clinton's insupportable claim and recent veto that the abortion license formulated by the Court extends even to the most graphically hideous procedure and to the moment of birth."

"The cases were reargued, but only over Justice Douglas' extraordinary and harshly written protest. [An internal Letter from William O. Douglas to Warren Burger, dated June 1, 1972, threatens "[i]f the vote of the Conference is to reargue, then I will file a statement telling what is happening to us and the tragedy it entails." Justice Douglas filed a published written dissent to setting the cases over for reargument]. Perhaps, the key to understanding why the Court, notwithstanding Douglas' protestations, pursued reargument lies with the gentlemanly prodding of new Justice Powell. As mentioned, Powell had recently joined the Court, and he asked politely for reargument, pointing out that "Harry Blackmun, the author of the (draft] opinions, thinks the cases should be carried over and reargued next fall. His position, based on months of study, suggests enough doubt on an issue of large national importance to justify the few months delay." [Memorandum to the Conference from Lewis Powell, dated June 1, 1972]."

"None of the Justices claim there is a specific textual guarantee of abortion to be found anywhere in the constitutional document. Nor does the abortion claim find legitimacy within the background principles of common law out of which the American Constitution emerged. As Bracton records, and the draft opinions within the internal Marshall papers indicate the Justices knew, abortion has little common law support, and was clearly thought by some to be homicide. [II Bracton, On the Laws and Customs of England 341 (Thorne ed. 1968), a citation to which can be found in Justice Blackmun's 4th circulated draft in December 1972]. Because of the more rudimentary nature of science in the 18th and 19th centuries, the common law drew a distinction between abortions before and after quickening [16 to 18 weeks], but under English codification in 1803 both were criminal only in different degrees. When medical science advanced, the quickening distinction receded, and penalties for all abortions increased. In 1868, when the 14th Amendment was adopted, statutory prohibitions or restrictions on abortion were commonplace. Twenty-eight states of the then 37 and 8 territories banned or limited abortion. [J. Mohr, Abortion in America at 200 (1978)]. The Court's drafts also reveal that the decision was not being guided by ancient precepts of medical ethics. In this respect, the Hippocratic Oath dating back three to four hundred years before Christ, had doctors pledging that they "will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner . . . not give to a woman a pessary to produce abortion." [The 4th circulated draft of Justice Blackmun's opinion in Roe cites the Hippocratic Oath, but cavalierly dismisses it on the basis of academic writing that found it to be held as true only within Pythagorean Greek culture. Why the Pythagoreans should be so ill-treated, or deemed uninfluential, is not explained. Indeed the Oath, which coincides with prevalent Christian belief since the end of antiquity, became the "nucleus" of medical ethics.]"

"With reference to internal Supreme Court memoranda relating to the drafting of Roe v. Wade made public by Thurgood Marshall, but to my knowledge, not previously analyzed, it will be illustrated how, by Justice Blackmun's own admission, the holding in Roe is more "arbitrary" preference than constitutional interpretation."

"While many of us associate the abortion right with Roe's author, Justice Harry Blackmun, mid-December 1971 correspondence actually identifies William O. Douglas to be the strongest advocate for abortion as an extension of his earlier opinion in Griswold v. Connecticut, 381 U.S. 479 (1965) invalidating a Connecticut law limiting the use of artificial contraception. (Letter from William O. Douglas to Chief Justice Warren Burger, dated December 18, 1971. Following oral argument, the Justices discuss cases and take a straw vote. The senior justice in the majority [or the Chief Justice if he is in the majority] then usually assigns the opinion writing. Chief Justice Burger reports that the discussion following the first [Roe] argument was so confused, that there were "literally not enough columns to mark up an accurate reflection of the voting." [Letter from Warren Burger to William O. Douglas, dated December 20, 1971]. Out of expedience, perhaps, Burger assigned the draft writing to Blackmun, his fellow Minnesotan. This infuriated Douglas, since Blackmun was perceived by Douglas as then favoring state abortion restriction. (Blackmun had been appointed to the Court by President Nixon about a year earlier]. By mid-January 1972, Blackmun had looked at the cases and found the issue so unclear that he urged the Chief. Justice to ask for re-argument in both Roe and Doe. (Letter from Harry Blackmun to Warren Burger, dated January 18, 1972]."

"Except for the exchange of personal opinion or medical speculation, there is no evidence of constitutional study or consideration. Only Chief Justice Burger attempted to anchor the discussion in the Constitution, expressing the patent federalism objection that "the states have,..., as much concern in this area as in any within their province; federal power has only that which can be traced to a specific provision of the Constitution." [Memorandum to the Conference from Warren Burger, dated May 31, 1972]. There is little other argument or discussion in the internal correspondence touching upon the substance of constitutional law."

"1. The Court’s decision in Roe touched off a national controversy over the politics of abortion that shows no signs of abating. Similarly, Roe sparked a continuing debate among scholars about the legitimacy of privacy as a constitutional right and the role of the Court in the political process. Nearly a quarter century after the decision, perhaps we should reconsider why the decision is so controversial. What, precisely, does Roe stand for? In the issue in Roe about whether we, males and females alike, have the right to control our bodies? Is the issue whether women should be autonomous with regard to decisions they make about matters of reproduction? Or is the issue about the question of when life begins? About whether a fetus is a “person” in a constitutional sense? About patriarchy and gender discrimination?"

"Footnote 4 Webster, 109 S. Ct. at 2067 (Blackmun, J., concurring in part and dissenting in part) (“The simple truth is that Roe would not survive the plurality's analysis.” And (id. At 3058 (opinion of Rehnquist, C.J.) (“This case . . . affords us no occasion to revisit the holding of Roe . . . and we leave it undisturbed.”) and id. At 3060 (O’Connor, J., concurring in part and concurring in the judgment) (“there is no necessity to accept the State’s invitation to reexamine the constitutional validity of Roe v. Wade”). Probably the bet summary of Webster’s effect is Justice Scalia’s observation that the decision “preserves a chaos that is evident to anyone who can read and count.” Id. At 3065 (Scalia, J. concurring in part and concurring in the judgment). Since Webster purports to leave it undisturbed, this Article will take the Court at its words and presume that Roe is still good law."

"In a pluralistic society composed of a multitude of belief systems, the Court seems intent on keeping certain issues-those likely to be religiously or theologically divisive-out of the forum of effective public discussion. By not allowing the abortion question to be legislatively determined, the Court has effectively "depoliticized" the issue. If the people's representatives are incapable of acting on an issue after its exhaustion by discussion, it makes no sense, politically, to talk about it. Lemon v. Kurtzman, where the Court invalidated a Pennsylvania statute reimbursing church-related schools for costs of teachers salaries and textbooks in specific secular subjects, is an even clearer illustration of the Court's attempt to "depoliticize" a public issue and, incidentally-to return to the anti-communitarian theme-to erode the significance of religion as an intermediating agency between the individual and mass society. Remarked Chief Justice Burger: "Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. The potential divisiveness of such conflict is a threat to the normal political process." Thus is social peace achieved. This analysis is a rather circumspect way of saying that the result in Roe v. Wade not only conforms to the individualistic ethic at the heart of the conventional "Madisonian" interpretation of American constitutionalism, but is also understandable in the light of the pluralistic nature of American society."

"The German and American Abortion Cases are both products of political regimes in which judicial review plays a central role in the process of government. The enlightened conscience of a future generation may condemn Roe v. Wade in tones that we now reserve for the despised Dred Scott case. Or it may regard Roe v. Wade as an- other step on man's road to freedom. Or men may take a middle position, much like the German Court, and seek a balancing of rights. Whatever the future may hold in this regard, the magnitude of the power that certain constitutional democracies have conferred on their courts of law must be clear to the men of this generation. The reversal of legislative policies as important to society as American state anti-abortion laws and the German Abortion Reform Act is a very serious matter. But the judicial overriding of legislative policy on the ground of constitutionality is apparently one of the prices that citizens within a constitutional regime that confers such authority on its courts are willing to pay."

"The most impressive attempts to anchor the right to abortion in the Constitution’s text have been built on the equal protection clause of the fourteenth amendment. These have argued that the real issue in the abortion controversy is not privacy, but the equality of women Sylvia Law has shown how sex equality concerns are implicated when laws outlawing abortion “impose upon women burdens of unwanted pregnancy that men do not bear,” and correctly observed that “[n]othing the Supreme Court has ever done has been more concretely important for women than its decision in Roe.” The difficulties of this argument stem from the indeterminacy of sex discrimination doctrine: the Court has never made clear what the “intermediate scrutiny” to which sex-based classifications are subject amounts to, so it is difficult for a defense of abortion that relies upon it to secure enough doctrinal traction to get where it wants to go."

"Let us restate the main constitutional rulings and principles of the German and American abortion cases. The American case holds that the right to privacy, founded upon the Fourteenth Amendment's concept of personal liberty, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. A zone of privacy is created within which the decision to procure an abortion is exclusively that of the pregnant woman and her physician. Accordingly, the state has no legitimate interest whatever in preventing abortions from occurring within the first trimester of pregnancy. Its only interest is seeing to it that abortions are performed under circumstances that insure adequate surgical procedures and care for patients. Yet the right to procure an abortion is not absolute, and so, following the first trimester of pregnancy, the state may begin to assert important interests in maintaining medical standards. It may assert these interests because an abortion performed in the second trimester is a greater medical risk than one performed in the first trimester. It is only in the last trimester, when the fetus becomes viable and potentially able to survive outside of the womb, that the state may promote its interest in protecting future life, but even during this period the unborn child may be destroyed, medical standards permitting, to preserve the life or health of the mother. What we have here is a constitutional policy on abortion based on the Court's conclusion that a fetus or unborn child is not a "person" within the meaning of the Fourteenth Amendment."

"Measured by any logical test that we would wish to apply, the constitutional reasoning in the German Case is more tightly argued and more analytically precise than the argument advanced in Roe v. Wade. The German opinion is carefully crafted and composed in measured language, leaving little room for doubt or ambiguity with regard to its meaning. On the other hand, the privacy argument in Roe v. Wade is confusing and even contradictory. In the end, the American decision does not lend itself to a clear and unambiguous interpretation. Justice Douglas was even impelled to write a concurring opinion to hedge against a too narrow interpretation of the Court's opinion, studiously avoiding, for example, any reference to "potential life," a concept that Blackmun introduced as a limitation of privacy. Chief Justice Burger, on the other hand, concurred in what amounted to a near dissent by warning against a too broad interpretation of the opinion and by deploring Blackmun's use of current medical knowledge in support of the opinion. Of course, eroded logic is one of the costs of the high value that the justices as well as Americans generally place on the practice of individualized opinion writing on the Supreme Court. In Germany, such personalized expressions of opinion remain a clear exception to the rule. The law-certainly the highest law of the land-ideally speaks with one voice in Germany's legal culture, underscoring both the authority and the unity of the law."

"Roe v. Wade is an unpersuasive opinion, and the root of its unpersuasiveness is the Supreme Court’s failure to ground its decision, that abortion is a fundamental right, in the text of the Constitution. Because the Court ignored its “obligation to trace it premises to the charter from which it derives its authority” commentators have felt entitled to conclude that a woman’s right to choose whether or not to carry a pregnancy to term “is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure.” Some have concluded that the decision is so completely devoid of any foundation in the Constitution that it ought to be overruled, and the authority to ban or permit abortion returned to the states."

"Even many of Roe’s friends want to rewrite it, but so far no attempt to do so has been wholly successful. Those who have followed the Court’s lead by emphasizing the exceedingly personal nature of the woman’s decision have had as little success at locating her privacy in the text of the Constitution as the Court itself did. Philip Bobbitt’s proposed principle, tat “[g]overnment may not coerce intimate acts,” is appealing, but it appears nowhere in the document. Hermann and Barzelay’s defense of Roe, which has been called “the principal scholarly defense of that opinion,” largely concedes the critics’ point by relying heavily on the thesis (not explicitly adopted by Roe itself) that constitutional law need not bear any direct relationship to the text of the Constitution. Many lawyers and judges endorse that thesis, but it is dangerous for a defense of abortion to rely upon it exclusively, given the increasingly influential view that “[t]he Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.” Moreover, the privacy argument has internal tensions, because “[t]he pregnant woman cannot be isolated in her privacy.” Unlike the liberties protected in the other privacy cases, abortion is arguably not private at all, because “the termination of a pregnancy typically involves the destruction of another entity: the fetus.” A privacy-based defense of abortion seems to depend on the premise that the woman’s choice affects only herself-in other words, that the fetus is not a person. And this premise is, of course, impossible to prove."

"[A] law forbidding abortion cannot be sustained if the state is unable to carry the burden of persuading the court that a fetus is, or should be considered to be, a person.154 While its opinion has many weaknesses, the Roe Court was surely correct to conclude that this burden had not been met."

"The right to abortion has become taken for granted by many. Whatever the deficiencies of Roe’s original reasoning, “millions of women, and their families, have ordered their lives around the right to reproductive choice, and . . . this right has become vital to the full participation of women in the economic and political walks of American life” An upheaval in the nation’s fundamental law requires a more compelling justification than the bald fact that were the present personnel of the Court writing on a blank slate, they would construct the law differently. The point of adhering to precedent is that the public deserves protection from such precipitous judicial revolutions; that is why before the ordinary rule of “stare decisis” is rejected, “the unconstitutionality of the course pursued” should be “made clear.” Because such clarity is simply unavailable in the abortion controversy, Roe should remain the law."

"Despite the Supreme Court's putative "reaffirmation" of part of Roe in Planned Parenthood v. Casey, these opinions remain highly contentious because the constitutional premises upon which they rest are so wholly erroneous as to be non-existent in law. The writer Santyana enjoins us to learn from history."

"Three justices concurred in the majority opinion. Chief Justice Burger, displeased with the dissenting Justices' wide interpretation of the majority opinion, rejected the contention that the rule in the cases permits abortion on demand. Justice Douglas, hedging against a too-narrow interpretation of the rule and meeting Justice White's argument about the ordering of priorities between fetus and mother, found Georgia's statute constitutionally defective precisely "because it equates the value of embryonic life immediately after conception with the worth of life immediately before birth" and because the statute fails to include the psychological as well as the physical "health" of the woman as a permissible reason for the right of a woman to interrupt her pregnancy prior to viability. In Douglas' view, the right of a woman to procure an abortion was well within the marital privacy cases on contraception. The concurring opinion of Justice Stewart was a reluctant acceptance-a capitulation following his long resistance, beginning with the Connecticut Birth Control Case, to the doctrine of substantive due process-of the prevailing view that social policy is now subject to judicial review on substantive grounds. Rather than scouring the Constitution's hidden recesses for a nonexistent right of personal privacy, he squarely held on the basis of his reading of the precedents that the right of a woman to procure an abortion is part of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment."