Roe v. Wade

"By examining the conflict in the period before the Court ruled, we can see how the abortion conflict changed in meaning, structure, and intensity as it was joined by a successive array of advocates—not only social movements8 and the Catholic Church but also strategists for the Republican Party seeking to attract traditionally Democratic voters in the 1972 presidential campaign. The evidence that we uncover of abortion’s entanglement in party realignment before the Supreme Court handed down its decision in Roe demonstrates that the competition of political parties for voters supplies an independent institutional basis for conflict over abortion. Where proponents of a Court-centered account of backlash offer reasons that adjudication distinctively causes political conflict, the history that we analyze identifies forms of political conflict that could engulf adjudication."

"When asked to name a case that the Supreme Court has decided, most Americans who can name one point to Roe v. Wade —a case that they are eight times more likely to name than Brown v. Board of Education. Roe has become nearly synonymous with political conflict. Hearing closing arguments in California’s same-sex marriage case, the presiding judge, Vaughn Walker, worried about provoking backlash and pointed to the Court’s abortion decision, which he suggested had engendered conflict that had “plagued our politics for 30 years.” Like many, Judge Walker attributed political polarization over abortion to the Supreme Court’s decision in Roe. David Brooks charges: “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.” Yet few who invoke “Roe rage” have actually examined its roots. What might the conflict over abortion before Roe reveal about the conflict that escalated after the Court ruled?"

"In the summer before Roe, a newspaper column about a new Gallup poll preserved in Justice Blackmun’s case file reported that sixty-four percent of Americans (and fifty-six percent of Catholics) agreed “with the statement that ‘the decision to have an abortion should be made solely by a woman and her physician’”—with “a greater proportion of Republicans (68 per cent) . . . than Democrats (59 per cent) holding the belief that abortion should be a decision between a woman and her physician.”Consistent with these findings, Roe was an opinion written and supported by Justices whom a Republican president had recently appointed. Indeed, it was at the urging of one of Richard Nixon’s most recent appointees, Justice Lewis F. Powell, Jr., that the seven-Justice majority in Roe extended constitutional protection from the first to the second trimester of pregnancy, until the point of fetal viability. To say the least, these legal-political alignments invert contemporary expectations, in Alice-in-Wonderland fashion."

"ABSTRACT. Today, many Americans blame polarizing conflict over abortion on the Supreme Court. If only the Court had stayed its hand or decided Roe v."

"Casey justified both the abortion right and its regulation in terms that reflected the views of mobilized proponents and opponents of abortion rights more clearly than Roe itself had in 1973. Like Roe, Casey held that women had a constitutionally protected right to decide whether to bring a pregnancy to term, but, unlike Roe, Casey allowed government to regulate the exercise of that right from the beginning of pregnancy in the interests of protecting potential life—so long as the regulation did not impose an “undue burden” on a woman’s decision. Even as Casey narrowed the right recognized in Roe, it justified that right more expansively than Roe did. Casey tied constitutional protection for women’s abortion decisions to the fundamental liberty to choose one’s family life, as well as to the understanding—forged in the Court’s sex-discrimination cases—that government cannot use law to enforce traditional sex roles: “Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.” Casey’s account of the constitutional values that the abortion right vindicates makes clear that government respects not only women’s freedom but also their equal citizenship. Yet, Casey also listens carefully to Roe’s critics. It allows government to regulate women’s abortion decisions to express respect for the value of human life, so long as government does so in ways that express respect for the decisional autonomy of women: “[T]he State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself.” In ways that Roe did not, Casey situates the abortion right in a community deeply divided over the basic values implicated by the debate. That conflict continues—on and off the Court."

"The backlash narrative suggests that turning to courts to vindicate rights is too often counter-productive, and that adjudication is to be avoided at all costs. We are not ready to accept this grim diagnosis at face value, and we urge further research into the dynamics of conflict in the decades after Roe. The stakes in understanding this history are high."

"How have we moved from a world in which Republicans led the way in the decriminalization of abortion to one in which Republicans call for the recriminalization of abortion? The backlash narrative conventionally identifies the Supreme Court’s decision as the cause of polarizing conflict and imagines backlash as arising in response to the Court repressing politics. In contrast to this Court-centered account of backlash, the history that we examine shows how conflict over abortion escalated through the interaction of other institutions before the Court ruled. There is now a small but growing body of scholarship questioning whether abortion backlash has been provoked primarily by adjudication. Gene Burns, David Garrow, Scott Lemieux, and Laurence Tribe show that, in the decade before Roe, the enactment of laws liberalizing access to abortion provoked energetic opposition by the Catholic Church. We offer fresh evidence to substantiate these claims, as well as new evidence about conflict before Roe that points to an alternative institutional basis for the political polarization around abortion—the national party system."

"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.”"

"In the immediate aftermath of Roe, organized opposition to the decision was still carried by the National Right to Life Committee and the Catholic Church. The National Right to Life Committee began mobilizing in support of a constitutional amendment that would overturn Roe and constitutionalize an embryo’s/ fetus’s right to life, thereby requiring all states to recriminalize abortion. By 1975, the National Conference of Catholic Bishops had promulgated a Pastoral Plan for Pro-Life Activities that declared that “the decisions of the United States Supreme Court (January 22, 1973) violate the moral order, and have disrupted the legal process which previously attempted to safeguard the rights of children.” The plan urged “[p]assage of a constitutional amendment providing protection for the unborn child to the maximum degree possible,” and “[p]assage of federal and state laws and adoption of administrative policies that will restrict the practice of abortion as much as possible.” During the years after Roe, opponents were unable to muster broad-based support for overturning the decision and requiring abortion’s recriminalization. Many Americans supported the right recognized in Roe, some quite passionately. Others believed that abortion should be decriminalized but criticized the Court for deciding a question that might have been left to the political process. Those who believed the question should have been left to the legislature did not support a human life amendment constitutionalizing prohibitions on abortion of the kind the right-to-life movement was then advocating. Advocates of a human life amendment could not find the support they needed, even among religious leaders."

"The reframing of abortion that would take hold over the course of the 1970s had only incrementally begun at the time the Court handed down Roe. (The first justice to join the Court after Roe was John Paul Stevens, nominated in December 1975. His views on abortion were unknown, yet at his Senate confirmation hearing, he was not asked a single question about abortion.)"

"In the early 1970s, most Protestant denominations did not share the Catholic Church’s view of abortion. As we have seen, mainline Protestant groups approved of liberalizing access to abortion; some approved repeal, while others endorsed variants of the “reform” position, advocating regulation on the “therapeutic model.” In this period, conservative evangelical groups did not view abortion as a categorical wrong. Even after Roe, in June 1973, Southern Baptist Convention President Owen Cooper criticized the Supreme Court for decisions liberalizing abortion—and banning capital punishment—and then proceeded to observe that the Southern Baptists would support abortions “where it clearly serves the best interests of society.” His view of abortion was far from absolute, and expressed in secular, not religious, terms."

"Roe’s holding and its reasoning reflected dominant understandings about abortion of the time. In striking down laws that banned abortion or allowed it in only a very few circumstances, Roe decriminalized abortion along the lines that the feminists and others advocated. But the Court gave only blurry and indistinct expression to the values feminists argued were at stake in protecting women’s choices. Something similar might be said of the justification the Court offered for abortion restrictions. The Court gave constitutional approval to a government interest in regulating abortion to protect potential life, but only barely explained or justified this interest, leaving unstated how this regulatory interest related to the old statutes criminalizing abortion or the claims of the contemporary anti- abortion movement."

"In representing the abortion decision as one that a woman made under the guidance of her doctor, the Court figured the doctor as the agent responsible for abortion decisions and the criteria guiding those decisions as medical. This form of talk in Roe reflected modes of reasoning current at the time of the opinion."

"If Roe conformed to then-dominant modes of reasoning about abortion, at a time when the Gallup poll reported the belief of two-thirds of Americans that the abortion decision should be left to a woman and her doctor, how are we to understand the outcry against the decision that steadily mounted over the 1970s? Our review of the debate before Roe reveals several factors contributing to the conflict over abortion that were in play well before the Court issued its decision in January 1973, and identifies still other developments that intensified the conflict much later in the decade."

"When Roe was handed down, the family-values movement that would mobilize against the decision and ultimately carry Ronald Reagan to national office in 1980 had already begun to take shape, but it had not yet crystallized. That coalition did not form in spontaneous response to Roe but was instead built with the help of strategists for the Republican Party, including many brilliant Catholic conservatives. In the process, opposition to abortion as murder was married to a variety of socially conservative causes, accelerating the process of party realignment that had begun before Roe during the Nixon administration. When conservatives of the New Right began to assemble a pan-Christian coalition against Roe in the late 1970s, the crusade against Roe would proceed under the banner of “pro-life” and “pro-family.” Phyllis Schlafly’s Stop ERA organization associated the Equal Rights Amendment with abortion and gay marriage, using this frame to mobilize opposition to the amendment’s ratification in state houses across the country. During the mid-1970s, funding battles in Congress provided a lower-stakes arena in which to forge new alliances and erode support for the abortion right. By the late 1970s, Richard Viguerie and Paul Weyrich—architects of a more conservative Republican Party—were approaching such Protestant evangelicals as the Reverend Jerry Falwell and helping them to see in the abortion issue a question that could create a pan-Christian movement united against “secular humanism” and for “family values.” By 1980, the Christian Harvest Times was denouncing abortion in its “Special Report on Secular Humanism vs. Christianity”: “To understand humanism is to understand women’s liberation, the ERA, gay rights, children’s rights, abortion, sex education, the ‘new’ morality, evolution, values clarification, situational ethics, the loss of patriotism, and many of the other problems that are tearing America apart today.” In this way, a new relationship was emerging among Protestant evangelicals, the Catholic right-to-life movement, and the ascendant conservatives of the New Right. Increasingly lost in this transformation was an earlier Catholic association of a pro-life position with liberal ideals of social justice; forged was an increasingly tight association of pro-life with pro-family politics."

"Both the right and regulatory interest that Roe recognized emerged from more than a decade of searching public conversation about abortion. Reasoning about the meaning of constitutional precedent in the midst of that conversation, the justices concluded that the right to privacy recognized in Griswold covered not only contraception but abortion as well. The Court conducted a lengthy analysis of historical precedent before declaring that the Constitution protected the abortion decision from state interference until the point of fetal viability. But, in explaining its decision, the Court also invoked or adverted to the judgments of growing numbers of lower courts, the decisions of public authorities such as the Rockefeller Commission that endorsed the legalization of abortion, and measures of popular support for liberalizing access. (In addition to the many briefs in Roe, Justice Blackmun had in his files the papers in Abele v. Markle, Connecticut’s abortion case, and other lower court decisions; documents reflecting the views of organizations such as the American Medical Association and the American Bar Association; and the 1972 Gallup poll reports showing steadily rising support for decriminalization.)"

"The meanings associated with the phrase “abortion on demand” were in flux at the time Roe was handed down. As we saw in Part I, the feminist movement used the phrase in seeking abortion rights during the movement’s Strike for Equality in 1970 [see page 44, the illustration of the flyer]. The feminist claim for abortion “on demand” sought repeal of abortion restrictions; the claim challenged as paternalistic new abortion-reform laws based on the “therapeutic” model. Those laws gave doctors the power to decide whether a woman had a sufficient reason to have an abortion, and so reduced women to supplicants of men and the state. In claiming abortion on demand, feminists asserted that women were fully competent to decide for themselves whether to continue a pregnancy, and should not have such a question decided by a stranger, even a medical professional. But women’s assertion of decisional authority was disturbing to many. What feminists understood as a question of dignity and self-governance their critics saw as an invitation to self-indulgence. Critics of the abortion-repeal movement argued that decriminalization would allow women access to abortion for insufficient reasons, and some suggested that liberalizing access to abortion would encourage moral laxity—sexual license, abdication of maternal responsibility, and a general breakdown of self- and social control. Thus, where feminists asserted that abortion’s criminalization was wrongful because it was insufficiently respectful of women, their critics expressed doubt that women’s judgment in matters of abortion was respect-worthy. Backlash came to torque and flip the very meaning of “abortion on demand.” In the early 1970s, the meaning of the phrase remained unsettled as feminist and antifeminist usages circulated. In April 1971, President Nixon invoked the phrase in his official statement repudiating the Pentagon’s liberal policy that permitted servicewomen to obtain abortions in any military hospital. [see annotation on p. 198, brief in the Struck case.] “Unrestricted abortion policies, or abortion on demand, I cannot square with my personal belief in the sanctity of human life,” the president said. Whether or not Justice Blackmun was aware of the original meaning of the phrase, it is highly likely that he was aware of the negative meaning that “abortion on demand” was then acquiring. In striking this original concluding paragraph of the hand-down, Justice Blackmun appears to have decided that he would address the concerns of Chief Justice Burger and others less contentiously, and emphasize Roe’s moderation in language that distanced the Court from the claims of both abortion rights advocates and their critics."

"Roe’s holding fused old and new legal frameworks. By protecting a woman’s decision whether to bear a child until the period of fetal viability, the Court recognized as constitutional a framework at least partly resembling abortion “repeal.” Under Roe, government could no longer ban abortion or make access to the procedure conditional on ALI-type indications (for example, rape, maternal health) in the period of pregnancy before viability. But Roe did not altogether bar government from regulating abortion. To the contrary, Roe gave constitutional sanction to government interests in regulating abortion that grow with a pregnancy; it vindicated these interests alongside women’s right to have an abortion through the trimester framework, which allowed government to restrict abortion in the interest of protecting potential life at the point of fetal viability. In the years since Roe, the Court has allowed government more leeway to regulate abortion to express its interest in protecting potential life throughout pregnancy. Roe’s reasoning fused old and new justifications for decriminalizing abortion. Roe indirectly reflected the abortion-rights claims of the women’s movement, recognizing that laws that criminalized abortion inflict constitutionally significant harms on women, and not doctors only. But Roe expressed those harms in public health-inflected language. The decision barred government from coercing women to bear children, but its reasoning did not audibly express the feminist claim (1) that a woman has dignitary interests in making her own decision about whether to bear a child, or (2) that a woman needs the ability to control the timing of motherhood in order to negotiate institutional arrangements that exclude caregivers from participation in the workplace and other arenas of civic life."

"On January 22, 1973, the Supreme Court issued its decisions in Roe v. Wade and Doe v. Bolton. Following the Court’s custom, Justice Harry A. Blackmun, as the author of the opinions, read a summary from the bench. Known in Supreme Court parlance as “hand-downs,” these summaries are not casual documents. While they are not formally part of the Court’s published opinion, they reflect the author’s view of what matters most about the decision. The marked-up draft in Blackmun’s file shows that he labored over the hand-down. In presenting Roe, Blackmun strives to locate the Court’s decision in history as well as in contemporary public opinion and to demonstrate how the constitutional framework"

"The Court’s lengthy published opinion in Roe is widely available on the Internet. But Blackmun’s brief statement exists only as typescript in the justice’s files at the Library of Congress. A personal judicial pronouncement of this kind shows how the author of an opinion wants the world to understand what the Court has done."

"In presenting the Court’s decision throughout his oral announcement as moderate, balanced, and bounded, Justice Blackmun was, no doubt, anticipating and responding to criticism of the Court’s decision."

"Roe justified the abortion right by appealing to Griswold and earlier decisions that protected the right to make decisions about family life free from state interference. In extending this right to privacy to encompass the abortion decision, Roe reasoned about abortion in terms drawn from the reform debates of the early 1960s, emphasizing the importance of protecting a doctor’s autonomy as much as that of his patients. Women’s advocacy helped establish women as constitutional rights holders who are entitled to make decisions about sex and parenting without control by the state—but Roe barely acknowledged that such claims were circulating in public debate. Instead, the Court explained and justified its holding in lan- guage that depicted doctors as the responsible and authoritative decisionmakers, with women as patients subject to their guidance."

"The Court’s decision in Roe was written by Justice Blackmun, whom President Nixon appointed to the Supreme Court in 1970, and supported by other of Nixon’s conservative appointees, including Lewis Powell, who during the Court’s deliberations actually advocated lengthening the time period in which women’s abortion decision was protected—from the end of the first trimester to the end of the second. But over the course of the 1970s, prominent Republicans shifted positions on abortion, acting on alignments and framings that were already in evidence by the 1972 election. By the decade’s end, conservatives of the New Right—led by Ronald Reagan, who, in the late 1960s, had signed California’s legislation liberalizing abortion—urged fundamentalist Christians to make common cause with Catholics in opposition to abortion and in support of family values. They attacked Roe as a threat to life and family and as a symbol of judicial overreaching. Republican Party platforms began regularly to support “the appointment of judges who respect traditional family values and the sanctity of innocent human life.” With Republican presidents appointing justices who might be counted on to oppose Roe, judicial support for the decision narrowed, and by the late 1980s, Roe looked vulnerable to outright reversal. But the women’s movement continued energetically to mobilize in support of the decision, and in 1987 it helped defeat the nomination of Robert Bork, a prominent critic of the Court’s privacy decisions. Ensuing Supreme Court appointments by Presidents Reagan and Bush seemed to provide sufficient votes to overturn Roe. And yet, in 1992—during a presidential campaign in which the abortion right was a burning issue—the Supreme Court decided Planned Parenthood v. Casey, a case that both reaffirmed and narrowed Roe."

"[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."

"Two years is an unusually long time for a case to remain on the Supreme Court’s docket. As we have already discussed, these were a crucial two years for the meaning of abortion, and it is clear that Roe arrived at the Court’s doorstep in one world and emerged, 27 months later, into another. In October 1970, when the case reached the Supreme Court, New York’s repeal of its abortion law appeared to many people to suggest an inexorable march toward reform. Two years later— during which time 402,100 women, two-thirds of them from out of state, had obtained legal abortions in New York—the Legislature’s attempted repeal of the repeal failed only because of Governor Rockefeller’s veto. In the November 1972 elections, voters in Michigan and North Dakota had defeated proposals to liberalize those states’ abortion laws—and, as we have seen, abortion was one of a constellation of factors playing a role in McGovern’s landslide defeat. In early January 1973, the New York Legislature reconvened in the full expectation of a new effort to recriminalize abortion."

"[T]he fact that neither women nor fetuses figured very prominently in Roe v. Wade makes it plausible to assume that feminist voices and right-to-life voices were simply missing, both from the arguments presented to the Supreme Court and from the public conversation. In fact, feminist and right-to-life positions were passionately expressed in public debate and in friend-of-the-court briefs filed in Roe. Yet, the Supreme Court issued a decision that appeared mainly responsive to the arguments of the medical community. In page after page, Roe reasoned from medical science, and in its main holding affirmed the autonomy of doctors to act in what they believed to be the best interest of their patients. The organized medical profession, which had spurred the criminalization of abortion a century earlier, had come only lately to view the hundreds of thousands of illegal abortions performed every year as a public health problem of urgent dimensions."

"As we now turn to the arguments that were formally presented to the Supreme Court in legal briefs, an intriguing question arises: What did the justices perceive of the turmoil over abortion outside their own quiet precincts? Clearly, they knew that they had on their hands “a most sensitive, emotional, and controversial” issue, as Justice Harry A. Blackmun described it when he announced Roe and Doe from the bench (see page 245). Further, as Justice Blackmun observed, the Court knew that “the controversy will continue.” The justices had not been hermetically sealed off in their chambers during the long months in which the cases were pending. They lived in the world as husbands and fathers. They had set the cases for a second argument, a sign that they regarded the cases as something other than routine. It does appear, however, that the justices in the 7-to-2 majority were responding to a consensus among the elites, particularly of the legal and medical professions, that change was appropriate and necessary. They appreciated that the decision would provoke controversy, but decided the case on grounds that they had reason to suppose would find broad public acceptance. Non-legal material in Justice Blackmun’s file included the Gallup Poll from the summer of 1972, reflecting substantial majorities supporting decriminalization, even among Catholics [see page 207.] The file also contained a series of articles from the Atlanta Journal-Constitution, passed on to Justice Blackmun by Justice Potter Stewart. In these articles, prominently displayed in the newspaper during April 1972, an Atlanta physician, Robert A. Hatcher, M.D. asserted that Georgia’s ALI-type reform law had not gone far enough and was not making enough of a difference."

"During the years before January 22, 1973, the day on which the Supreme Court decided Roe v. Wade and proclaimed that the Constitution protected a woman’s right to decide whether to bring a pregnancy to term, Americans conducted a vigorous debate about abortion’s morality and meaning. It is obvious today that the Supreme Court’s decision did not end this debate. Neither, of course, did the Court start it—although public discussion of Roe v. Wade implies not infrequently that it did."

"A holding that the fetus is a constitutional person would have the effect of overruling Roe v. Wade and its progeny. The legal consequences would not, however, be as far-reaching as Roe itself, which had the effect of declaring century-old criminal abortion statutes invalid, cutting deeply into assumed rights of husbands and parents, and creating the possibility of required, at least via legislation, public financing of abortion. On the other hand, the consequence of the Roe decision to the aborted fetus is severe and final. This result, of course, is of no great concern to the rule of law, unless the unborn does meet the criteria of constitutional personhood and the Court either because of poor reasoning or because of some unstated reason arbitrarily denied the unborn the constitutional protections due it or unless the fourteenth amendment is inadequate as a legal device to protect the fundamental rights of all members of the human family, the avowed purpose of the drafters of the fourteenth amendment. In either case, there is reason for concern, for the legal order has failed."

"By declaring unconstitutional laws that criminalized abortion in states across the country, the decision in Roe v. Wade also swept away much of the collective memory of what had gone before. Records of court cases that had taken years to build were now rendered irrelevant, and transcripts of testimony once painstakingly compiled were carelessly misfiled or discarded. And beyond the loss of paper records, the Supreme Court decision itself proved a distorting lens through which to look back on what had preceded it."

"Justice Blackmun’s files also contained articles from the American Journal of Public Health (several of which are excerpted in parts I and II), depicting abortion reform as inevitable and highly desirable. This was not the only voice of the medical community the Court heard; among the Roe v. Wade briefs was a strongly worded one from dissenting obstetricians and gynecologists arguing for upholding the Texas law (see page 295). Further, the justices may well have viewed organized opposition to the legalization of abortion as based almost exclusively on Catholic religious conviction, as it primarily was when Roe v. Wade first arrived on the Court’s docket. The only Catholic justice then sitting on the Supreme Court was William J. Brennan, Jr., a liberal whose full support for an expansive right to abortion may have served to emphasize significant differences of opinion about the criminalization of abortion within the American Catholic community, and so undercut the weight of the Catholic opposition."

"Further support for the idea that nineteenth century America was concerned with preserving the life of the fetus is ironically found in Botsford v. Union Pacific Railroad, the very case which the Supreme Court cited in Roe as its landmark right to privacy case. Although the Botsford Court acknowledged a common law right to privacy which precluded a court without statutory authority from ordering a medical examination of a female plaintiff in a personal injury case, it pointed out that one of two exceptions to this common law right of privacy was the “writ de ventre inspiciendo”. With this writ, the state was empowered to examine whether a woman convicted of a capital crime and sentenced to be executed was quick with child, thus overcoming her right to privacy. If she was, execution would be stayed until after the birth of the child. Here, the common law not only acknowledged a right to life in the fetus but also recognized precedence of this right over the common law right of privacy. In light of the above it seems hard to suggest-as did the majority in Roe-that the concerns of the nineteenth century were exclusively about the pregnant woman and not the unborn, and difficult to argue-as did the majority in Roe-that the purpose of nineteenth century abortion legislation was in protecting "the woman's health rather than in preserving the embryo and fetus." Indeed, the preservation of the fetus appears to have been a major purpose. Moreover, even those courts which have indicated that preservation of maternal health was a purpose for enacting the anti-abortion statute did so against a background in which abortion of at least a quickened fetus was considered a common law crime. If Justice Blackmun meant that an unquickened fetus may not have enjoyed protection under the common law, he should have said that. The correlation, however, would be that the quickened fetus did enjoy criminal law protection, a fact which argues against the Court's conclusion that constitutional personhood has no prenatal application."

"As stated by the Supreme Court and conceded by all parties, no prior case had been found in which the United States Supreme Court had addressed itself to the question of whether the term "person" as used in the fourteenth amendment has prenatal application. Thus, for all practical purposes, the question was being presented for the first time. In absence of precedent, the only legal materials with which the Court had to work were the constitutional provisions themselves."

"In oral argument before the Roe court as well as in the Roe majority opinion, the Supreme Court seemed impressed by the historical fact that no case had been found in which the pregnant woman was prosecuted for allowing an abortion to be performed on herself and by the fact that the punishment for conviction under the abortion statutes was much milder than the punishment for homicide. The Court found this to suggest that the fetus was not considered a person, as was the victim in a homicide. Such a conclusion is simply not warranted since there are other valid explanations. For example, if a 12-year-old intentionally kills a born individual in Illinois, no crime has been committed since the child is not legally responsible. No one could suggest that the victim of the act was not a person because the killer was not or could not be prosecuted. If a 15-year-old intentionally kills another, but is proceeded against under the Juvenile Court Act, one could hardly argue that the victim is not a person. The explanation for this legal phenomenon is that there are special circumstances surrounding the commitment of an act, circumstances which the lawmaker may properly and reasonably consider in formulating means to protect state interests and values-in the examples given, the age and assumed immaturity of the actor; in the abortion situation, the assumed stresses on the woman burdened by an unwanted pregnancy. These factors may justify and explain different treatment of the woman or even the physician in the abortion context, just as they justify or explain different treatment of the child of tender years or even of one who kills another under severe provocation. Although in modem jurisprudence constitutional history alone has not been allowed to dispose of every question of constitutional interpretation, this brief historical background casts doubt on the soundness of two of the Supreme Court's critical conclusions in Roe v. Wade: (1) that abortion was not considered a crime by most of those who sup- ported the fourteenth amendment in 1868;' and (2) that the purpose of the anti-abortion laws was solely to protect the woman's health and not the life of the fetus. In addition, it casts doubt on the Court's holding that the concept of "person" does not embrace the unborn. The effect of this doubt surely is to augment the obligations of the Supreme Court to account for a requirement of birth as a condition precedent for membership in the class of constitutional persons."

"One should not lightly conclude from the Supreme Court's holding in Roe that the concept of "person" has no prenatal significance, that the unborn was not, after all, entitled to a "day in court." Such a conclusion assumes the outcome. Furthermore, it would be sound only if one is willing to assume that the adversary process is not essential to sound judicial decision-making-an assumption hardly compatible with the common law tradition. To a great degree, judicial decisions are made legitimately only if there is an opportunity for vigorous advocacy, an opportunity not allowed the fetus in the cases thus far in which his right to personhood or, expressed differently, its right to even have rights, has been adjudicated."

"Since the parties to the Roe and Doe cases were, on the one side, physicians and women challenging the constitutionality of the respective state anti-abortion statutes and, on the other side, the attorneys general defending their states' statutes, the fetus was not directly represented in the December 13, 1971, hearings. Because only seven justices heard the oral arguments, Justices Black and Harlan having left the Court one month earlier, no decisions were handed down and the cases were set for rehearing in October, 1972. In the meantime, the attorneys for the fetus, whose guardian was an actual party only in the Illinois case and had filed an amicus brief' one year earlier in both the Texas and Georgia cases, filed in the Supreme Court a motion for oral argument, which was denied in the summer of 1972. Shortly thereafter, they moved to consolidate for oral arguments at the rehearing the Illinois case (Doe v. Scott)' with the Texas (Roe) and Georgia (Doe) cases. This motion was also denied. As a result, the fetus, not having been represented in the crucial hearings before the justices, never enjoyed his "day in court." The Supreme Court had every opportunity to hear arguments presented by the representative of the fetus that it was a "constitutional person." However, the Court chose not to take advantage of this occasion."

"Although the Supreme Court in Roe expressed concern about its ability to "resolve the difficult question of when life begins," the initial constitutional dilemma the Court faced was not the factual question of when life begins but rather the legal question of the scope and meaning of the concept of "person" in the fourteenth amendment, ie., whether the concept means living humans, individual humans, born humans, rational humans, wanted humans, humans capable of "meaningful life," any combination thereof or something else. In other words, what does the term "person" as used in the fourteenth amendment mean? What values was it designed to protect? If, for example, it means all individual, living human beings, which is this writer's position, the factual issue whether the fetus is an individual, living human being is presented for decision. If "life" in the biological sense is irrelevant to membership in the class of constitutional persons or if birth is an essential criterion to membership in this constitutional class, the Court in Roe was correct, for then it need not "speculate as to the answer [of when life begins]." On the other hand, if the real problem facing the Court was a "proof problem," ie., how to prove that a fetus has "life," simple judicial restraint should require the Court not to exclude the fetus from constitutional protection as a matter of law by creating a birth requirement as it did in Roe but rather to leave the ultimate question of constitutional personhood in the fetus unanswered, remand the case and ask for more "proof" on the factual question."

"In brief, there is considerable evidence which suggests that the unborn is and should be considered a constitutional person, thus entitled to fourteenth amendment protections. If this be true, both the Roe holding as well as a legislative solution permitting abortions for reasons other than a threat to the life of the mother would have the effect of violating the unborn's right to due process of law. It would thus follow that both the judicial solution set forth in Roe and the legislative solution are constitutionally unsound."

"A former president of the American Bar Association, the very embodiment of the legal establishment, Powell proved not only a surprisingly strong supporter of the right to abortion but also a strategic ally who pushed Blackmun to extend until later in pregnancy the time period during which women’s abortion decisions received constitutional protection. Any fears the justices may have had that they were embarking on a radical course would have been allayed by Powell’s presence and performance."

"A legislative solution to the abortion problem is necessarily based upon the premise that the Constitution is neutral about abortion and does not impose a solution, one way or another. In this article, the existence of such a premise is denied. More specifically, this author concludes (1) that the Constitution is not neutral about abortion and does indeed impose a solution on the abortion question; (2) that, as Justice Blackmun conceded in Roe, if the fetus is a person under the fourteenth amendment, "the [plaintiffs] case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [fourteenth] [a]mendment;' and (3) that the concept of "person" in the fifth and fourteenth amendments includes unborn human life. It thus follows that the solution to the abortion problem set forth in Roe as well as that suggested by Justices White and Rehnquist in dissent' are constitutionally unsound, both solutions permitting the violation of the fetus's constitutionally protected right to life without due process of law. More positively, there is substantial historical support for the notion that the due process clause was designed to guarantee access of all persons to the courts for the protection of fundamental rights, that those fundamental rights refer to "life, liberty and property," and that the unborn human being, as an individual living human being, is a person under the Constitution and is entitled to access to the courts to protect his fundamental right to life."

"[T]he dominant democratic theme of Maher v. Roe, Poelker v. Doe' and Beal v. Doe, the bitterness expressed by the dissenters (all previous members of the Roe majority), the compulsion of the author of Roe to dissent,' and the continuing efforts to change Roe with a constitutional amendment cause one to wonder if the majority in Colauti would not have preferred to have followed the spirit of the dissenting opinions in Roe and left the entire abortion problem in the hands of the state legislatures. This approach, at least on the surface, would be consistent with recent suggestions that the judiciary return to the fourteenth amendment its intended "procedural" as op- posed to "substantive" significance, defer to the "spirit of our democracy" in matters not controlled by the fourteenth amendment as originally intended, and not "govern" under the guise of interpreting the Constitution."

"Since Roe v. Wade is the only case in which the Supreme Court has considered the scope of constitutional "personhood" in the context of pre-birth stages of human development and is the only Supreme Court pronouncement on the subject, a criticism of ‘’Roe’’ will serve as a departure point for this discussion as to whether or not the fetus falls within the scope of the constitutional personhood concept."

"As the Court wrote in Casey, “overruling Roe’s central holding would not only reach an unjustifiable result under principles of stare decisis, but would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.” 505 U. S., at 865. “[T]he very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable.” Id., at 854. See also id., at 867 (“[T]o overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question.”). Though today’s opinion does not go so far as to discard Roe or Casey, the Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of “the rule of law” and the “principles of stare decisis.” Congress imposed a ban despite our clear prior holdings that the State cannot proscribe an abortion procedure when its use is necessary to protect a woman’s health. See supra, at 7, n. 4. Although Congress’ findings could not withstand the crucible of trial, the Court defers to the legislative override of our Constitution-based rulings. See supra, at 7–9. A decision so at odds with our jurisprudence should not have staying power. In sum, the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational. The Court’s defense of the statute provides no saving explanation. In candor, the Act, and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court—and with increasing comprehension of its centrality to women’s lives. See supra, at 3, n. 2; supra, at 7, n. 4. When “a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue.” Stenberg, 530 U. S., at 952 (Ginsburg, J., concurring) (quoting Hope Clinic v. Ryan, 195 F. 3d 857, 881 (CA7 1999) (Posner, C. J., dissenting))."

"(“[V]irtually all of the abortion cases reaching the Supreme Court since Roe v. Wade, 410 U. S. 113 (1973), have involved facial attacks on state statutes, and the Court, whether accepting or rejecting the challenges on the merits, has typically accepted this framing of the question presented.”). Accord Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1356 (2000); Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 271–276 (1994)."

"In spite of Mr. Justice Powell's suggestion in Maher that "[o]ur conclusion signals no retreat from Roe or the cases applying it, "one wonders if those words of reassurance are to be taken with the same degree of seriousness as the assurance of Mr. Justice Blackmun in Roe v. Wade that the Supreme Court was not reviving substantive due process.'"

"That the Supreme Court accepted the scope of constitutional personhood as the primary issue in ‘’Roe’’ is reflected in its statement that “[t]he appellee [Texas] and certain amici argue that the fetus is a 'per-son' within the language and meaning of the Fourteenth Amendment. . . . If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [Fourteenth] Amendment."

"In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 844 (1992), the Court declared that “[l]iberty finds no refuge in a jurisprudence of doubt.” There was, the Court said, an “imperative” need to dispel doubt as to “the meaning and reach” of the Court’s 7-to-2 judgment, rendered nearly two decades earlier in Roe v. Wade, 410 U. S. 113 (1973). 505 U. S., at 845. Responsive to that need, the Court endeavored to provide secure guidance to “[s]tate and federal courts as well as legislatures throughout the Union,” by defining “the rights of the woman and the legitimate authority of the State respecting the termination of pregnancies by abortion procedures.” Ibid. Taking care to speak plainly, the Casey Court restated and reaffirmed Roe’s essential holding. 505 U. S., at 845–846. First, the Court addressed the type of abortion regulation permissible prior to fetal viability. It recognized “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State.” Id., at 846. Second, the Court acknowledged “the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health.” Ibid. (emphasis added). Third, the Court confirmed that “the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.” Ibid. (emphasis added). In reaffirming Roe, the Casey Court described the centrality of “the decision whether to bear . . . a child,” Eisenstadt v. Baird, 405 U. S. 438, 453 (1972), to a woman’s “dignity and autonomy,” her “personhood” and “destiny,” her “conception of . . . her place in society.” 505 U. S., at 851–852. Of signal importance here, the Casey Court stated with unmistakable clarity that state regulation of access to abortion procedures, even after viability, must protect “the health of the woman.” Id., at 846."

"I join the Court’s opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution. See Casey, supra, at 979 (Scalia, J., concurring in judgment in part and dissenting in part); Stenberg v. Carhart, 530 U. S. 914, 980–983 (2000) (Thomas, J., dissenting). I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it. See Cutter v. Wilkinson, 544 U. S. 709, 727, n. 2 (2005) (Thomas, J., concurring)."

"Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health. I dissent from the Court’s disposition. Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman’s health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman’s reproductive choices."

"Casey involved a challenge to Roe v. Wade, 410 U. S. 113 (1973). The opinion contains this summary: “It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.” 505 U. S., at 846 (opinion of the Court)."