Roe v. Wade

"Hammond summarized for Powell the constitutional privacy analyses that different justices had offered in the landmark 1965 birth control case, Griswold v. Connecticut, and concluded that "it would not be difficult for this Ct. to find a fundamental right of a woman to control the decision whether to go through the experience of pregnancy and assume the responsibilities that occur thereafter." Hammond suggested that "you might reason as Judge Newman does that the state interest becomes more dominant when the fetus is capable of independent existence (or becomes `viable')." Alluding to Texas's and Connecticut's claims that fetuses become constitutional "persons" at the "moment of conception," Hammond noted how "the crux of Judge Newman's analysis is that the state may not bar abortional freedom altogether on the basis of a proposition that is subject to such a great public debate and affects individuals so personally." Hammond concluded by observing that "I do believe that a well-reasoned opinion can be written reaching this result without placing the Ct. in the position of deciding as a super legislature whether it will permit abortions at any specific point in time.""

"The Roe opinion’s “refutation” of the legislative judgment that anti abortion statutes can be justified in terms of the protection of the fetus takes neither of these forms. The Court grants that protecting the fetus is an “important and legitimate” governmental goal and of course it does not deny that restricting abortion promotes it. What it does, instead, is simply announce that that goal is not important enough to sustain the restriction. There is little doubt that judgments of this sort were involved in Lochner et al., but what the Court said in those cases was not that the legislature had incorrectly balanced two legitimate but competing goals, but rather that the goal it had favored was impermissible or the legislation involved did not really promote it. Perhaps this is merely a rhetorical difference, but it could prove to be important. Lochner et al. were thoroughly disreputable decisions, but at least they did us the favor of sowing the seeds of their own destruction. To say that the equalization of bargaining power or the fostering of the labor movement is a goal outside the ambit of a “police power” broad enough to forbid all contracts the state legislature can reasonably regard “as inconsistent with the public interests or as hurtful to the public order or as detrimental to the common good” is to say something that is, in a word, wrong. And it is just as obviously wrong to declare, for example, that restrictions on long working hours cannot reasonably be said to promote health and safety. Roe’s “refutation” of the legislative judgment, on the other, is not obviously wrong, for the substitution of one nonrational judgment for another concerning the relative importance of a mother’s opportunity to live the life she has planned and a fetus’s opportunity to live at all, can be labeled neither wrong nor right. The problem with Roe is not so much that it bungles the question it sets itself, but rather that it sets itself a question the Constitution has not made the Court’s business. It looks different from Lochner—it has the shape if not the substance of a judgment that is very much the Court’s business, one vindicating an interest the Constitution marks as special—and it is for that reason perhaps more dangerous. Of course in a sense it is more candid than Lochner. But the employment of a higher standard of judicial re view, no matter how candid the recognition that it is indeed higher, loses some of its admirability when it is accompanied by neither a coherent account of why such a standard is appropriate nor any indication of why it has not been satisfied.*Roe is a case in point. Certainly, many will view it as social progress. (Surely that is the Court’s view, and indeed the legislatures had been moving perceptibly, albeit too slowly for many of us, toward relaxing their anti-abortion legislation.) And it is difficult to see how it will weaken the Court’s position. Fears of official disobedience are obviously groundless when it is a criminal statute that has been invalidated. To the public the Roe decision must look very much like the New York Legislature’s recent liberalization of its abortion law. Even in the unlikely event someone should catch the public’s ear long enough to charge that the wrong institution did the repealing, they have heard that “legalism” before without taking to the streets. Nor are the political branches, and this of course is what really counts, likely to take up the cry very strenuously: The sighs of relief as this particular albatross was cut from the legislative and executive necks seemed to me audible. Perhaps I heard wrong—I live in the North east, indeed not so very far from Hyannis Port. It is even possible that a constitutional amendment will emerge, though that too has happened before without serious impairment of the Position of the Institution. But I doubt one will: Roe v. Wade seems like a durable decision. It is, nevertheless, a very bad decision. Not because it will perceptibly weaken the Court—it won’t; and not because it conflicts with either my idea of progress or what the evidence suggests is society’s—it doesn’t. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be."

"Thus the test Lochner and its progeny purported to apply is that which would theoretically control the same questions today: whether a plausible argument can be made that the legislative action furthers some permissible governmental goal. The trouble, of course, is they misapplied it. Roe, on the other hand, is quite explicit that the right to an abortion is a “fundamental” one, requiring not merely a “rational” defense for its inhibition but rather a “compelling” one. A second difference between Lochner et al. and Roe has to do with the nature of the legislative judgments being second-guessed. In the main, the “refutations” tendered by the Lochner series were of two sorts. The first took the form of declarations that the goals in terms of which the legislatures’ actions were defended were impermissible. Thus, for example, the equalization of unequal bargaining power and the strengthening of the labor movement are simply ends the legislature had no business pursuing, and consequently its actions cannot thereby be justified. The second form of “refutation” took the form not of denying the legitimacy of the goal relied on but rather of denying the plausibility of the legislature’s empirical judgment that its action would promote that goal."

"Identification and definition of the values with which the Constitution is concerned will often fall short of indicating with anything resembling clarity the deference to be given those values when they conflict with others society finds important. (Though even here the process is sometimes more helpful than the commentators would allow.) Nor is it often likely to generate, fullblown, the “neutral” principle that will avoid embarrassment in future cases. But though the identification of a constitutional connection is only the beginning of analysis, it is a necessary beginning. The point that often gets lost in the commentary, and obviously got lost in Roe, is that before the Court can get to the “balancing” stage, before it can worry about the next case and the case after that (or even about its institutional position) it is under an obligation to trace its premises to the charter from which it derives its authority. A neutral and durable principle may be a thing of beauty and a joy forever. But if it lacks connection with any value the Constitution marks as special. it is not a constitutional principle and the Court has no business imposing it. I hope that will seem obvious to the point of banality. Yet those of us to whom it does seem obvious have seldom troubled to say so. And because we have not, we must share in the blame for this decision."

"Powell's notes indicate that while White believed that a "woman must have some const. right to protection," he nonetheless was "unwilling to second-guess state leg. as to its interest. Pure convenience of woman can't override state interest," and the Court "can't allow abortion on demand." Powell's notes fail to indicate, as both Brennan's and Douglas's do, that it was Powell's own comments that led Blackmun to say that he would jettison his void-for-vagueness approach to Roe and make the Texas case, rather than the Georgia one, the "lead" decision."

"The Court reports that some amici curiae argued for an unlimited right to do as one wishes with one’s body. This theory holds, for meat any rate, much appeal. However, there would have been serious problems with its invocation in this case. In the first place, more than the mother’s own body is involved in a decision to have an abortion; a fetus may not be a “person in the whole sense,” but it is certainly not nothing. Second, it is difficult to find a basis for thinking that the theory was meant to be given constitutional sanction: Surely it is no part of the “privacy” interest the Bill of Rights suggests. [I]t is not clear to us that the claim . . . that one has an unlimited right to do with one’s body as one pleases bears a close relation ship to the right of privacy. . . Unfortunately, having thus rejected the amici’s attempt to define the bounds of the general constitutional right of which the right to an abortion is a part, on the theory that the general right described has little to do with privacy, the Court provides neither an alternative definition nor an account of why it thinks privacy is involved. It simply announces that the right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Apparently this conclusion is thought to derive from the passage that immediately follows it: The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All of this is true and ought to be taken very seriously. But it has nothing to do with privacy in the Bill of Rights sense or any other the Constitution suggests. I suppose there is nothing to prevent one from using the word “privacy” to mean the freedom to live one’s life without governmental interference. But the Court obviously does not so use the term. Nor could it, for such a right is at stake in every case. Our life styles are constantly limited, often seriously, by governmental regulation; and while many of us would prefer less direction, granting that desire the status of a preferred constitutional right would yield a sys tem of “government” virtually unrecognizable to us and only slightly more recognizable to our forefathers. The Court’s observations concerning the serious, life-shaping costs of having a child prove what might to the thoughtless have seemed unprovable: That even though a human life, or a potential human life, hangs in the balance, the moral dilemma abortion poses is so difficult as to be heartbreaking. What they fail to do is even begin to resolve that dilemma so far as our governmental system is concerned by associating either side of the balance with a value inferable from the Constitution."

"Were I a legislator I would vote for a statute very much like the one the Court ends up drafting. I hope this reaction reflects more than the psychological phenomenon that keeps bombardiers sane—the fact that it is somehow easier to “terminate” those you cannot see—and am inclined to think it does: that the mother, unlike the unborn child, has begun to imagine a future for herself strikes me as morally quite significant. But God knows I’m not happy with that resolution. Abortion is too much like infanticide on the one hand, and too much like contraception on the other, to leave one comfortable with any answer; and the moral issue it poses is as fiendish as any philosopher’s hypothetical."

"Of course a woman’s freedom to choose an abortion is part of the “liberty” the Fourteenth Amendment says shall not be denied without due process of law, as indeed is anyone’s freedom to do what he wants. But “due process” generally guarantees only that the inhibition be procedurally fair and that it have some “rational” connection—though plausible is probably a better word—with a permissible governmental goal. What is unusual about Roe is that the liberty involved is accorded a far more stringent protection, so stringent that a desire to preserve the fetus’s existence is unable to overcome it—a protection more stringent, I think it fair to say, than that the present Court ac cords the freedom of the press explicitly guaranteed by the First Amendment. What is frightening about Roe is that this super-protected right 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. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-à-vis the interest that legislatively prevailed over it. And that, I believe—the predictable early reaction to Roe notwithstanding (“more of the same Warren-type activism”)—is a charge that can responsibly be leveled at no other decision of the past twenty years. At times the marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking."

"A number of fairly standard criticisms can be made of Roe. A plausible narrower basis of decision, that of vagueness, is brushed aside in the rush toward broader ground. The opinion strikes the reader initially as a sort of guidebook, addressing questions not before the Court and drawing lines with an apparent precision one generally associates with a commissioner’s regulations. On closer examination, however, the precision proves largely illusory. Confusing signals are emitted, particularly with respect to the nature of the doctor’s responsibilities and the permissible scope of health regulations after the first trimester. The Court seems, moreover, to get carried away on the subject of remedies: Even assuming the case can be made for an unusually protected constitutional right to an abortion, it hardly seems necessary to have banned during the first trimester all state regulation of the conditions under which abortions can be performed. By terming such criticisms “standard,” I do not mean to suggest they are unimportant, for they are not. But if they were all that was wrong with Roe, it would not merit special comment."

"In the first Roe argument, Weddington claimed (citing Means) that “at the time the Constitution was adopted there was no common law prohibition against abortions; that they were available to the women of this country.” This was inaccurate on both counts: the English common law’s prohibition of abortion after quickening was adopted by the American colonies, and abortion was not available as a practical matter because it was either ineffective or deadly or both. Means’s other claim was that the purpose of abortion laws was only to protect the health of the mother, not the child. If abortion laws were adopted only for the health of the mother, however, there is no adequate explanation for why abortion laws were “criminal” laws. Why was abortion, in contrast to all other surgery, uniquely abortion statutes as criminal?"

"Let us not underestimate what is at stake: Having an unwanted child can go a long way toward ruining a woman’s life. And at bottom Roe signals the Court’s judgment that this result cannot be justified by any good that anti-abortion legislation accomplishes. This surely is an understandable conclusion—indeed it is one with which I agree—but ordinarily the Court claims no mandate to second-guess legislative balances, at least not when the Constitution has designated neither of the values in conflict as entitled to special protection. But even assuming it would be a good idea for the Court to assume this function, Roe seems a curious place to have begun. Laws prohibiting the use of “soft” drugs or, even more obviously, homosexual acts between consenting adults can stunt “the preferred life styles” of those against whom enforcement is threatened in very serious ways. It is clear such acts harm no one besides the participants, and indeed the case that the participants are harmed is a rather shaky one. Yet such laws survive, on the theory that there exists a societal consensus that the behavior involved is revolting or at any rate immoral. Of course the consensus is not universal but it is sufficient, and this is what is counted crucial, to get the laws passed and keep them on the books. Whether anti-abortion legislation cramps the life style of an unwilling mother more significantly than anti-homosexuality legislation cramps the life style of a homosexual is a close question. But even granting that it does, the other side of the balance looks very different. For there is more than simple societal revulsion to support legislation restricting abortion: Abortion ends (or if it makes a difference, prevents) the life of a human being other than the one making the choice."

"It may be, however—at least it is not the sort of claim one can disprove —that the “right to an abortion,” or noneconomic rights generally, accord more closely with “this generation’s idealization of America” than the “rights” asserted in either Lochner or Dandridge. But that attitude, of course, is precisely the point of the Lochner philosophy, which would grant unusual protection to those “rights” that somehow seem most pressing, regardless of whether the Constitution suggests any special solicitude for them. The Constitution has little to say about contract, less about abortion, and those who would speculate about which the framers would have been more likely to protect may not be pleased with the answer. The Court continues to disavow the philosophy of Lochner. Yet as Justice Stewart’s concurrence admits, it is impossible candidly to regard Roe as the product of anything else."

"Powell's file discloses that a previously unrevealed private response from Rehnquist was one of the first that Blackmun received. Rehnquist acknowledged that "although I am still in significant disagreement with parts of them, I have to take my hat off to you for marshaling as well as I think could be done the arguments on your side. I think I will probably still file a dissent, although more limited than I had contemplated after the conference discussion.""

"The High Court has analyzed classification by gender under an equal protection/sex discrimination rubric; it has treated reproductive autonomy under a substantive due process/personal autonomy headline not expressly linked to discrimination against women. The Court's gender classification decisions overturning state and federal legislation, in the main, have not provoked large controversy; the Court's initial 1973 abortion decision, Roe v. Wade, on the other hand, became and remains a storm center. Roe v. Wade sparked public opposition and academic criticism, in part, I believe, because the Court ventured too far in the change it ordered and presented an incomplete justification for its action. I will attempt to explain these twin perspectives on Roe later in this Essay."

"Despite the fact that abortion was legal in some other countries and in a few states, there were no reliable peer-reviewed medical data, and certainly no long-term studies, about it. Nevertheless, Weddington and Hames argued for the elimination of all state abortion laws, relying on unsubstantiated statistics. For example in the second argument in Doe, Hames admitted that “there aren’t any statistics that are very reliable on this,” but then went on to say that “writers in the area estimate several thousand per year in the United States and several thousand deaths have occurred from illegal abortions.” Likewise, Hames claimed in the first Doe argument that “illegal abortion and the complications therefrom is the largest single cause of maternal mortality in the United States. Therefore, abortion statutes have resulted in one of our nation’s largest health problems.” This was a large claim for which there was no basis in the record, though this claim was made in several amicus curiae (“friend of the court”) briefs. No Justice questioned Hames on this or any of her other undocumented sociological claims."

"So much of the first Doe argument in December 1971 was spent on procedural issues that Hames, the attorney for the Georgia plaintiffs, made no statement in her first argument about the constitutional basis of her case or of a right to abortion. And no Justice questioned this. There were virtually no questions on the source of any constitutional right to abortion and almost no questions on the historical basis for such a right. Hames left this fundamental issue to her one-minute rebuttal of Beasley, admitting that “we have not designated a constitutional basis for our case.” So Hames gave a one-sentence answer “I would like to say that it is-we contend that the procedural requirement infringe Due Process and Equal Protection, and that the right of privacy, an enunciated in Griswold, of course, is our basic reliance.” That was the extent of the constitutional discussion at the first oral argument in Doe. The procedural problems should have cautioned the Justices that the Texas and Georgia cases prevented the evaluation of fundamental questions and were unstable and inadequate bases on which to make a decision. According to varius reports, “Burger had complained that part of his problem with the abortion cases resulted from the poor quality of the oral argument. On reargument, he suggested, the Court could appoint ‘friends of the court’ (amici curiae) forboth sides, outside counsel who could make better presentations.” Blackmun, too, acknowledged that the cases were poorly argued the first time. White probably shared this view. Instead, the bloc of four Justices-Douglas, Brennan, Marshall, and Stewart-heavily pressured Blackmun in May and June 1972 against a second argument."

""Total maternal deaths” per year-from all causes-had dropped from 7,267 in 1942 to 780 in 1972. Of the 780 maternal deaths in 1972, 140 (or 18 percent) were attributed to “abortion deaths.” But this included spontaneous miscarriages, too. The NCHS data were obviously not in the record and were not submitted in any “friend-of-the-court” brief. Weddington’s arguments were filled with sociological claims that had no foundation in the record, including the legal disabilities that pregnant women incurred in Texas, legal problems in Texas for unwed mothers, how many women had abortions, the numbers of illegal abortions, the risks of illegal abortion, the risks of delay in getting a legal abortion, the impact ofNew York’s law that legalized abortion in July 1970, and the impact of laws in other states that had legalized abortion since 1967."

"These procedural issues raised many red flags that the Justices ignored. Shouldn’t the lower courts have conducted a trial, with witnesses, and evidence, and cross-examination? Did either Jane Roe or Mary Doe accurately represent women who wanted abortions? Some of these “technical” issues dealt with two requirements of any viable constitutional case: “standing” (who can bring a suit to challenge a law?) and “case and controversy” (is there any real conflict between the parties that can clarify the constitutional issues?). These two requirements-“standing” and “case and controversy”-are important for sound judicial decisions because they enable judges to see the practical consequences of legislation. Georgia’s attorney Beasley brought both of these requirements directly to the Justice’s attention, but the Justices brushed them aside. The aim of Justices Brennan and Douglas-as evidenced by their phone and written exchanges on December 29 and 30, 1971-was to find the best way to get around them."

"In addition to the lack of a factual record, the oral arguments were burdened by jurisdictional and procedural issues that consumed a considerable amount of time, leaving little time to focus on the substantive medical, historical, and constitutional questions. The first twenty minutes of Weddington’s first argument in Roe in December 1971 was spent on procedure and jurisdiction, an much of the last ten minutes as well. The Court asked questions such as who brought the suit, whether they could sue, whether these was any real controversy between Jane Roe and the public officials named as defendants, whether the Court should even hear the appeal, whether the parties should have gone to the federal appeals court first, whether the case was moot, whether an injunction was appropriate. A substantial part of the discussion by Jay Floyd, the attorney for Texas in the first Roe argument, was also spent on procedure and jurisdiction. In the first Doe argument, Margie Pitts Hames addressed some questions on jurisdiction and procedure, and her final question was on jurisdiction Dorothy Beasley also addressed such questions. Again, the amount of time spent on these procedural and jurisdictional questions lends considerable credence to Justice Blackmun’s story that Justice Stewart urged the subcommittee of Justices to hear Roe and Doe under the “misapprehension” that they involved “nothing more than an application of Younger v. Harris.” Indeed, the subcommittee could have been easily misled by the first papers filed in the Supreme Court by Roy Lucas and Sarah Weddington on October 6, 1970, asking the Justices to hear the case. The papers (called a “Jurisdictional Statement) consisted of thirty-three pages and presented only two “Questions” for the Justices to address, relating to the propriety of an injunction by the federal court and whether the married couple in the case (not Jan Roe) had “standing” to sue-on other words, procedural issues."

"Little time was left for the substantive questions in both cases. For example, the question of where the right to “abortion” could be found in the Constitution became virtually a joke at the first argument. Weddington was willing to say it could be found almost anywhere-the “due process clause, equal protection clause, the Ninth Amendment, and a variety of others. . . . “ The statement was so weak that Justice Stewart equipped “and anything else that might obtain,” provoking laughter from the audience. To which Weddington responded, “yeah, right,” and laughed. Another red flag, but again, no Justice challenged Weddington’s weak assertions."

"[W]hether or not there was any record, Weddington’s arguments made a definite impact. After seventeen minutes of the first argument in Roe, with only a few minor questions to Weddington, Justice Stewart broke in to ask a question and prefaced it by saying, “so far on the merits, you’ve told us about the important impact of this law, and you made a very eloquent policy argument against” the Texas law. This may have been the most important moment in the first round of arguments, perhaps in both rounds."

"A few years after Roe, a former law clerk for Judge Edward Lumbard (who wrote the first decision in 1972 striking down the Connecticut abortion law) pointed out that the lower court decisions were not thorough and that the Supreme Court was hasty in hearing Roe and Doe before the issues were fully explored in the lower courts."

"There were numerous abortion cases in the courts in 1970, and more followed in 1971 and 1972; the Justices could have selected other cases with a factual record. At the time the Justices chose Roe and Doe, at least seven other abortion cases were pending at the Supreme Court. Remarkably, the Justices chose not one but two abortion cases without any factual record. Why?"

"Three years after Roe, Justice Thurgood Marshall wrote the opinion for a unanimous Court noting the impropriety of deciding constitutional questions “in the absence of ‘an adequate and full-bodied record.’” In another case four years after Roe, Justice Blackmun wrote, “The problem is a complex one, about which widely differing views can be held, and, as such, it would be somewhat precipitate to take judicial notice of one view over another on the basis of a record as barren as this.”"

"And that again is one of the great problems with this case. We know o no facts, there are no facts in this case, no established facts."

"The record that came up to this Court contains the amended petition of Jane Roe, an unsigned alias affidavit, and that is all."

"In the lower court hearings of Roe and Do, however, the parties did not present evidence-there were no trials- and the judges did not look at evidence. The federal court hearings in Roe an Do were conducted without examination of medical or other evidence and without hearing witnesses subjected to cross-examination. Instead, both district courts in Texas and Georgia simply decided that “the facts don’t matter” (in the words of Georgia’s attorney, Dorothy Beasley”), and merely held two-hour long oral arguments, in which much of the time was taken up with procedural and jurisdictional questions. Nor was there any intermediate review by an appeals court in Roe and Doe."

"Some of the same Justices who heard and decided Roe and Doe had emphasized the importance of a factual record in prior “privacy” cases. In Poe v. Ullman in 1961, Justice Brennan supported dismissal of the case, in part, because of the “skimpy record.” During the Supreme Court oral argument in January 1971 in the Vuitch case, involving the District of Columbia abortion law, Samuel Huntington, the attorney for the United States, pointed out that the record contained “no development whatever of any of the facts bearing on the charges contained in the indictment,” and Chief Justice Burger noted that the Court might benefit from “a record of testimony as to what is the present state of medical knowledge.” And in his opinion in the Vuitch case decided the day before the Justices voted to hear Roe, Justice White emphasized that “this case comes to us unilluminated by facts or record.” If this was true in Vuitch-which was a comparatively limited inquiry into whether the District of Columbia’s abortion law was “unconstitutionally vague”-it was even truer in Roe and Doe, which aimed to sweep away the abortion laws of all fifty states. It is not as if the Justices were not warned that there was no factual record. In the first Doe argument, Georgia’s attorney, Dorothy Beasley, made the lack-of-factual-record point no less than five times. Beasley pointed out that there was no record to show how abortions were being done under the new 1968 statute in Georgia. Georgia and thirteen other states had enacted these laws between 1967 and 1970, and the Court did not have any facts about how they operated. How could the Supreme Court decide to legalize abortion on a broader basis, through the first and second trimester, when they did not have even a basic understanding, developed through a trial, of how these “reform” statues had operated in the few months or years since they had been enacted? These problems suggest that the Court should have reached no decision, or sent the case back for trial, or taken other cases with a trial record, or at least reached a narrow decision. Instead, the Justices issues one of the broadest decisions possible."

"Historical claims also played a key role in the abortion decisions. History was critical for least two reasons: to show the purpose of the abortion laws and to see whether any right to abortion existed and could be said to be “deeply rooted” in American law and history. In Griswold, Justice Douglas had written for the Court: In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the “traditions and (collective) conscience of our people” to determine whether a principle is “so rooted (there) . . . as to be ranked as fundamental.” The inquiry is whether a right involved “is of such a character that it cannot be denied without violating those ‘fundamental principles of liberty and justice which lie at the case of all our civil and political institutions.’” That standard naturally led to the question of whether abortion qualified. But the Justices failed to apply that test in “Roe” and did not look closely at the relevant history."

"Concern about population directly influenced the Justices. On December 27, 1971, two weeks after the first argument in Roe and Doe, a psychiatrist from the Cleveland Clinic, Dr Richard A. Schwartz, wrote a letter to Justice Brennan. Believing that the Court would decide the abortion cases before July 1972, Schwartz enclosed a copy of an article he wrote that was scheduled to be published in the August 1972 issue of the American Journal of Public Health, entitled “The Social effects of Legal Abortion.” The abstract read: The yearly number of unwanted children born in the United States is 800,000 or 20 percent of all births. Forty percent of all births in poor families are unwanted. Because of the limitations of contraception the most feasible way of decreasing the incidence of unwanted births is legalization of abortion. If all unwanted births could be prevented, this would lower the birth-rate in the United States by more than 50 percent, substantially lower the incidence of poverty and lead to a decrease in the number of inadequately reared children potentially destined to become criminals, psychotics, drug addicts, and alcoholics."

"Professor Joseph Dellapenna, the foremost historian of abortion law in the Western world, has argued that, by 1960, such changes shaped the demand for abortion before the cultural upheaval of the 1960s. These included the impact of the Industrial Revolution on family life and work patterns, the entrance of more women into the workforce, greater sexual experimentation, and the desire to limit pregnanct, along with technology that made abortion-in terms of immediate risks-more effective and safer for the woman."

"If 1967 had been the breakthrough year for legislation, 1970 was the year of the court challenge. Challenges to state laws were filed in many federal courts in 1970. Roe v. Wade and Doe v. Bolton were two of some twenty cases attempting to strike down state abortion laws filed in federal courts in various states between 1969 and 1972."

"It was clear to the Justices that he practical effect of their decision would be to eliminate the laws of most states. In is May 25, 1972, memo to the Justices, Blackmun noted: I should observe that, according to the information contained in some of the briefs, knocking out the Texas statute in Roe v. Wade will invalidate the abortion laws in a majority of our States. Most states focus only on the preservation of the life of the mother. But Blackmun’s memo also shows the failure to recognize the impact of Doe in eliminating all the other abortion laws. Blackmun clearly underestimated the extent that the decision would unsettle law and policy and public health. In a memo to the Justices on December 21, 1972, Blackmun commented: “I suspect there will be other aspects of abortion that will have to be dealt with at a future time.” Justice Brennan also acknowledged the scope of Doe in a memo to Justice Blackmun in December: [D]oes not your opinion in the Georgia case [Doe v. Bolton[ ccut the heart out of the Georgia statute? If so, should we leave other portions of the statute intact, as I think you do? Is this a desirable result,, particularly during the interval between our decision and the enactment of a new, constitutionally permissible statute by the Georgia legislature?"

"Blackmun adopted the expansion to viability, and in a memo to the Justices of December 15 indicated that he would be revising the draft opinions to shift the decisive point from the end of the first trimester to viability. On December 21, Blackmun circulated his revised third draft in Roe, the first to include the trimester framework and the first to identify the right as extending to viability. At this point, the abortion cases were effectively decided."

"Blackmun assumed that the states would be able to immediately respond to the decisions with amendment to their laws, and suggested to the Justices that the abortion decisions should be released “no later than the week of January 15 to tie in with the convening of most state legislatures.” A week before the abortion decisions were released, Blackmun distributed a draft announcement with a number of political considerations that he proposed to read from the bench and distribute to the press: Fortunately, the decisions come down at a time when a majority of the legislatures of the states are in session. Presumably where these decisions cast doubt as to the constitutional validity of a state’s abortions statute, the legislature of that state may immediately reviews its statute and amend ti to bring it into line with the constitutional requirements we have endeavored to spell out today. If this is done, there is no need whatsoever for any prolonger period of unregulated abortion practice. But Blackmun failed to realize that the vagueness and complexity of the opinions, coupled with the powers of the federal courts to apply Roe and Doe, would create a public vacuum that would continue for decades. That same day, January 16, one of Justice Powell’s clerks gave him a memo that noted the “lack of state authority to regulate in the first trimester.” Perhaps the Blackmun and Powell chambers had discussed this point."

"Justice Blackmun’s tally in his opinion in Roe was six federal decisions to strike state abortion statutes and five to sustain, plus two state court decisions to strike state laws, and three state courts to uphold them. The actual tally was: seven federal court decisions struck down state laws, five federal decisions upheld state laws; five state court decisions struck downs state abortion laws, sixteen state courts upheld state laws. A number of other abortion cases in federal court had been thrown out on procedural grounds. Among the nine courts (seven federal, five state) that held state statutes “unconstitutional,” however, there was little consensus in their explanation for why abortion laws were unconstitutional or in their definition of the scope of the abortion right. About the only common theme among the courts was Griswold: the courts cited each other for the notion that Griswold’sbroad phrasesmeant that abortion laws were unconstitutional. The legal advocates put all their hopes on the Supreme Court’s decision in Griswold."

"Back in Washington, Blackmun’s law clerk had substantially revised the draft abortion opinion. He forecast this in an August 4 memo before he finished his clerkship. And then he explained the changes to Blackmun in a memo of August 11, 1972: I have written in, essentially, a limitation of the right depending on the time during pregnancy when the abortion is proposed to be performed. I have chosen the point of viability for this “turning point” (when state interests become compelling) for several reasons: (a) it seems to be the line of most significance to the medical professional, for various purposes; (b) it has considerable analytic basis in terms of the state interest as I have articulated it. The alternative, quickening, no longer seems to have much analytic or medical significance, only historical significance; (c) a number of state laws which have a “time-cut off” after which abortion must be more strongly justified by life or health interests use 24 weeks, which is about the “earliest time of viability.”"

"Our decision in Roe v. Wade, ante p. 410 U. S. 113, establishes (1) that, despite her pseudonym, we may accept as true, for this case, Mary Doe's existence and her pregnant state on April 16, 1970; (2) that the constitutional issue is substantial; (3) that the interim termination of Doe's and all other Georgia pregnancies in existence in 1970 has not rendered the case moot; and (4) that Doe presents a justiciable controversy, and has standing to maintain the action."

"In this appeal, the criminal abortion statutes recently enacted in Georgia are challenged on constitutional grounds. The statutes are §§ 26-1201 through 26-1203 of the State's Criminal Code, formulated by Georgia Laws, 1968 Session, pp. 1249, 1277-1280. In Roe v. Wade, ante p. 410 U. S. 113, we today have struck down, as constitutionally defective, the Texas criminal abortion statutes that are representative of provisions long in effect in a majority of our States. The Georgia legislation, however, is different and merits separate consideration."

"Blackmun had been “resident counsel” of the Mayo Clinic during the 1950s. The day after he was assigned the Roe opinion, he wrote Thomas Keys, the Mayo Clinic librarian, and requested research on the history of abortion. Blackmun spent about two weeks there in July, reportedly doing research on the history of abortion and the Hippocratic oath."

"Roe and Doe were reargued, back to back, on Wednesday, October 11, 1972, and the nine Justices met subsequently in conference to vote. Blackmun held to his original position and Powell, for the first time, voiced his support. Until the second argument, Blackmun had considered Doe to be more important than Roe, but when the Justices met to vote, Justice Powell urged that Roe be the lead case, and Blackmun agreed."

"Held: 1. Doe's case presents a live, justiciable controversy and she has standing to sue, Roe v. Wade, ante p. 410 U. S. 113, as do the physician appellants (who, unlike the physician in Wade, were not charged with abortion violations), and it is therefore unnecessary to resolve the issue of the other appellants' standing. Pp. 410 U. S. 187-189. 2. A woman's constitutional right to an abortion is not absolute. Roe v. Wade, supra. P. 410 U. S. 189."

"State Attorney General Steve Marshall filed a response to the ACLU and Planned Parenthood on Aug. 5, declaring his intentions to challenge the Supreme Court’s ruling of Roe V. Wade. An attorney representing Alabama’s three abortion clinics said Marshall’s arguments have already been addressed by the Supreme Court’s consistent defense of allowing people to make personal decisions, including the right to have an abortion. “Alabamians must not be forced to relitigate their settled constitutional rights every time the State of Alabama knowingly and deliberately enacts an unconstitutional abortion law,” Alexa Kolbi-Molina, the American Civil Liberties Union Foundation lawyer stated in a court document filed in August. Alabama is one of at least six other states attempting to challenge the Supreme Court’s decision on Roe V. Wade, including Ohio, Georgia, Iowa, North Dakota, Kentucky and Mississippi."

"Consistent with this finding is a dramatic decline in the number of children put up for adoption after abortion became legal. According to Stolley [1993], almost 9 percent of premarital births were placed for adoption before 1973; that number fell to 4 percent for births occurring between 1973 and 1981. The total number of adoptions rose from 90,000 in 1957 to over 170,000 in 1970; by 1975 adoptions had fallen to 130,000."

"The appellants attack on several grounds those portions of the Georgia abortion statutes that remain after the District Court decision: undue restriction of a right to personal and marital privacy; vagueness; deprivation of substantive and procedural due process; improper restriction to Georgia residents; and denial of equal protection. A. Roe v. Wade, supra, sets forth our conclusion that a pregnant woman does not have an absolute constitutional right to an abortion on her demand. What is said there is applicable here, and need not be repeated."

"My Brother STEWART, writing in Roe v. Wade, supra, says that our decision in Griswold reintroduced substantive due process that had been rejected in Ferguson v. Skrupa, 372 U. S. 726. Skrupa involved legislation governing a business enterprise; and the Court in that case, as had Mr. Justice Holmes on earlier occasions, rejected the idea that "liberty" within the meaning of the Due Process Clause of the Fourteenth Amendment was a vessel to be filled with one's personal choices of values, whether drawn from the laissez faire school, from the socialistic school, or from the technocrats. Griswold involved legislation touching on the marital relation and involving the conviction of a licensed physician for giving married people information concerning contraception. There is nothing specific in the Bill of Rights that covers that item. Nor is there anything in the Bill of Rights that, in terms, protects the right of association or the privacy in one's association. Yet we found those rights in the periphery of the First Amendment. NAACP v. Alabama, 357 U. S. 449, 357 U. S. 462. Other peripheral rights are the right to educate one's children as one chooses, Pierce v. Society of Sisters, 268 U. S. 510, and the right to study the German language, Meyer v. Nebraska, 262 U. S. 390. These decisions, with all respect, have nothing to do with substantive due process. One may think they are not peripheral to other rights that are expressed in the Bill of Rights. But that is not enough to bring into play the protection of substantive due process."

"The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court's judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court's exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs. It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience, rather than to protect their life or health. Nor is this plaintiff, who claims no threat to her mental or physical health, entitled to assert the possible rights of those women whose pregnancy assertedly implicates their health. This, together with United States v. Vuitch, 402 U. S. 62 (1971), dictates reversal of the judgment of the District Court."

"The holding in Roe v. Wade, ante p. 410 U. S. 113, that state abortion laws can withstand constitutional scrutiny only if the State can demonstrate a compelling state interest, apparently compels the Court's close scrutiny of the various provisions in Georgia's abortion statute. Since, as indicated by my dissent in Wade, I view the compelling state interest standard as an inappropriate measure of the constitutionality of state abortion laws, I respectfully dissent from the majority's holding."

"We offer evidence that legalized abortion has contributed significantly to recent crime reductions. Crime began to fall roughly eighteen years after abortion legalization. The five states that allowed abortion in 1970 experienced declines earlier than the rest of the nation, which legalized in 1973 with Roe v. Wade. States with high abortion rates in the 1970s and 1980s experienced greater crime reductions in the 1990s. In high abortion states, only arrests of those born after abortion legalization fall relative to low abortion states. Legalized abortion appears to account for as much as 50 percent of the recent drop in crime."

"State Senator Clyde Chambliss (R-Prattville), the Senate sponsor of the bill, called the judge’s preliminary injunction “judicial activism, pure and simple.” “In 2018, the people of Alabama overwhelmingly approved a constitutional amendment to declare Alabama a pro-life state, and the Human Life Protection Act was passed by supermajorities in both chambers of the Alabama Legislature,” Chambliss said. "Roe v. Wade was a terrible decision, built on faulty legal reasoning, that has resulted in the deaths of millions of innocent babies. The State of Alabama through the Attorney General’s Office will mount a vigorous defense of Alabama’s law in court — may this be the first step to restoring the rule of the U.S. Constitution and a culture of life on this matter.”"