1973

"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."

"[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."

"(“[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)."

"The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label “abortion doctor.” Ante, at 14, 24, 25, 31, 33. A fetus is described as an “unborn child,” and as a “baby,” ante, at 3, 8; second-trimester, previability abortions are referred to as “late-term,” ante, at 26; and the reasoned medical judgments of highly trained doctors are dismissed as “preferences” motivated by “mere convenience,” ante, at 3, 37. Instead of the heightened scrutiny we have previously applied, the Court determines that a “rational” ground is enough to uphold the Act, ante, at 28, 37. And, most troubling, Casey’s principles, confirming the continuing vitality of “the essential holding of Roe,” are merely “assume[d]” for the moment, ante, at 15, 31, rather than “retained” or “reaffirmed,” Casey, 505 U. S., at 846."

"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))."

"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."

"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.'"

"Justice Douglas had initially relied on fundamental rights to strike down the vagrancy ordinance in Papachristou. Justice Blackmun had initially used vagueness to avoid relying on fundamental rights to strike down the law in Roe. But ultimately, the two cases switched places. Roe fessed up to its substantive right of privacy, while Papachristou’s reliance on vagueness masked the connections between Papachristou and the burgeoning fundamental rights-particularly privacy and sexual autonomy rights-that the Court was wrestling with in Roe. One wonders how constitutional law would have looked if the early drafts of roe and Papachritou had been published, if the reasoning of the two cases had not switched places. Would we have elaborated a substantive due process in which people had greater rights in public than in private? Would low-level criminal regulation of mobility have actually disappeared while legislatures reenacted abortion regulations sooner and with even greater teeth? Even further, one wonders how constitutional law would have looked if both Papachritous and Roe had publicly committed to a new substantive due process of public and private, of lifestyle protection writ large, of the broader and more varied understandings of liberty represented in Brennan’s memo to Douglas."

"The years following the Roe v. Wade decision have been very difficult, in a number of respects, but my life was never easy."

"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)."

"As soon as Sarah Weddington had my name on the affidavit, I had served my purpose. She called me back all right-four months after my child was born. “Sarah,” I said. “I had a baby “four months ago”. Where were you then? I didn’t hear from Sarah again. She had said everything was going to be okay and that she would be there, but she wasn’t. This lack of relationship was not exactly a disappointment to me. Though Sarah had passed herself off as my friend, in reality she used me. When I sat down with her and discussed the possibility of getting an abortion, Sarah knew where I could get one, because she had gotten one herself three years before. When I asked her if the court’s decision would come in time for me to get an abortion, she gave an evasive answer. And she did so with the full understanding that it would come way too late to help me. If Sarah Weddington was so interested in abortion, why didn’t she tell me where she got hers? Because I was of no use to her unless I was pregnant. She needed a pregnant woman who would sign the affidavit. If she told me how and where to get an abortion (or introduced me to people who knew, since, as a lawyer, she might have to cover herself, she wouldn’t have a plaintiff. And without a plaintiff, somebody else might get their case before the Supreme Court first. That’s why Sarah actually tried to talk me out of getting an illegal abortion in Mexico, as she had done."

"Was the “Roe” majority correct in relying on the above cases? Some constitutional scholars claim that all of those cases taken together delineate a sphere of interests which the court now grouped and denominated as “privacy.” That privacy is implicit in the liberty protected by the 14th Amendment. The individual has the right to make the fundamental decisions that shape family life: whom to marry, whether and when to have children, and with what values to rear those children. [T]he family unit does not simply c0-exist with our constitutional system; it is an integral part of it.” (Heymann, Barzelay , pp.772-772). In reply, it has been noted that “roe v. Wade” may not be seen as a vindication of the family: in fact, it is profoundly hostile to it. “The family unit which they say is an integral part of our constitutional system was rejected by the Abortion Cases…”(Noonan, 1979, p.21). Jane Roe, the challenger of the Texas statute, was single and to decide her case on the basis of marital privacy was not apposite. As emphasized by Noonan, “Roe v. Wade” is “a massive departure from the long line of cases… correctly [portrayed] as a vindication of the family” (Noonan, 1979, pp. 21-22) Second, as pointed out by the same scholar, all the precedents “treated family rights as having a natural basis superior to the law of the state… All of these cases rested on the supposition that the family rights bring protected were those of persons, and that these persons could not be unmade at will by the state” (Noonan, 1984, pp. 672-673). The “Roe” decision was thus schizoid: “[A]t the same time that it invoked such precedents (…) the Court, when treating of the unborn, felt free to impose its own notions of reality” by denying the humanness and the personhood of the fetus (Ibidem, p. 673)."

"Senator ASHCROFT. Now, Ms. McCorvey, you indicated that there were a lot of misrepresentations when you sought to have an abortion back in the 1970’s, and you indicated that you weren’t valuable to those who wanted to use you if you had an abortion. You needed to continue to be pregnant? Ms. MCCORVEY. Yes, I had to stay pregnant."

"To implement its holding, Casey rejected both Roe’s rigid trimester framework and the interpretation of Roe that considered all previability regulations of abortion unwarranted. 505 U. S., at 875–876, 878 (plurality opinion). On this point Casey overruled the holdings in two cases because they undervalued the State’s interest in potential life. See id., at 881–883 (joint opinion) (overruling Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747 (1986) and Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (1983)). We assume the following principles for the purposes of this opinion. Before viability, a State “may not prohibit any woman from making the ultimate decision to terminate her pregnancy.” 505 U. S., at 879 (plurality opinion). It also may not impose upon this right an undue burden, which exists if a regulation’s “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Id., at 878. On the other hand, “[r]egulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose.” Id., at 877. Casey, in short, struck a balance. The balance was central to its holding. We now apply its standard to the cases at bar."

"[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."

"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."

"pp.299-300"

"After listening to McCorvey’s story, Coffee and Weddington asked if she would be interested in being the plaintiff in their case. Weddington explained what that meant. McCorvey’s involvement would hopefully be minimal. She would probably not have to attend court hearings or answer oral questions. And she would not need to pay anything because Coffee and Weddington would donate their time and money to the case. Also, McCorvey could use a pseudonym to remain anonymous, unless she chose to disclose her identity. McCorvey agreed to be their plaintiff. After the meeting at the restaurant, Coffee and Weddington considered whether McCorvey was really their best choice for a plaintiff.. This would be an important case. If the two young lawyers succeeded in overturning Texas’s law, they believed their work would benefit all Texas women. And perhaps they could benefit women in the other 42 states with restrictive provisions for abortion. Some abortion laws had been changed in recent years to allow for the procedure. In some states, new laws legalized abortion or could be interpreted so broadly that abortion was essentially legal. In time, Coffee and Weddington hoped all states might legalize abortion or at least broaden the criteria under which it could be performed. They wanted women to have abortion as an option and for that option to be safe and legal. But in 1970 Texas, as in most other states, abortion statutes were still in effect, leaving very few women eligible for legal abortions. Coffee and Weddington were impatient, unsure when abortion reform legislation would pass in their conservative state. They saw the courts as a faster alternative for change."

"Ever since Anthony Amsterdam published his path breaking note on the void-for-vagueness doctrine in 1960, legal scholars have speculated about the Supreme Court’s use of the doctrine. On the surface, under void-for-vagueness, judges condemn as violations of the Due Process Clause of the Fifth of Fourteenth Amendment those laws they deem unduly vague or ambiguous. As Amsterdam described it, such vagueness in constitutionally problematic for two reasons. First, vagueness fails to give fair notice to the public as to what constitutes illegal conduct. Second, vagueness fails to guide the discretion of executive officers and judges it accordingly encouraged arbitrary and potentially discriminatory arrests and criminal convictions. Vagueness thus poses problems for the principle of legality and the rule of law itself."

"In Roe v. Wade, the court should have steered away from a sweeping legalization of abortion, Ginsberg argued. Instead, a ruling should have taken the narrower approach of deeming unconstitutional the Texas law that spawned the case, which only allowed abortions deemed life saving for a woman, she said. Doing so, Ginsberg said, would have spurred a gradual, state-by-state loosening of abortion restrictions and contributed to the democratic process. Instead, the court "covered the waterfront" with a decision that — by including the need to consult with a physician — is not really about a woman's right to choose, Ginsburg argued. "It's about a doctor's freedom to practice his profession as he thinks best," Ginsburg said. "It wasn't woman-centered. It was physician-centered." Roe v. Wade "seemed to stop momentum on the side of change," Ginsburg told the crowd, saying that abortion-related cases now focus on "restrictions to access, not expanding the rights of women.""

"Brennan’s memo shows that he saw connections between Douglas’s fundamental rights-based “Papacristou” opinion and Blackmun’s forthcoming Roe opinion, which was to be based on the same constitutional theory. He was worried that other, more conservative Justices would see the same connections and that they would hesitate to sign onto Roe for fear of broadening substantive due process to include everything in Douglas’s opinion as well. That Brennan was preoccupied with Roe in the winter of 1971 is hardly surprising. Think of the historical context. Behind the Court was Griswold v. Connecticut-that wide-ranging survey of constitutional provisions that the Justices hopes might justify judicial protection of fundamental rights. Griswold is the constitutional law professor’s dream The Court struck down Connecticut’s law prohibiting the use of contraceptives by married couples with numerous Justices in multiple opinions transparently struggling to find protection or rights nowhere listed in the Constitution. Famously, Douglas constructed a majority opinion in which the “penumbras” of the Bill o Rights created a right to privacy that thwarted the Connecticut law. The Court was clearly still wrangling with such issues six years later, when it faced both Eisenstadt v. Baird and Roe v. Wade in 1971. In Eisenstadt, Brennan authored a somewhat strained plurality opinion holding that equal protection required that individuals have the same rights to contraceptives as married couples. He thereby avoided expanding any of the substantive theories Griswold had propounded."

"Forty years after the U.S. Supreme Court's landmark Roe v. Wade case legalized abortion, Justice Ruth Bader Ginsburg said the case is not her "ideal picture" for resolving the controversial issue of abortion. Instead, the landmark decision gave abortion-rights opponents a rallying point that is still used today, Ginsburg — the second female justice ever appointed to the court — told a packed crowd Saturday at the University of Chicago Law School auditorium. "The court had given the opponents a target to aim at relentlessly," she said."

"Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the Court. The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict. The public funding of abortion decisions appear incongruous following so soon after the intrepid 1973 rulings. The Court did not adequately explain why the "fundamental" choice principle and trimester approach embraced in Roe did not bar the sovereign, at least at the previability stage of pregnancy, from taking sides. Overall, the Court's Roe position is weakened, I believe, by the opinion's concentration on a medically approved autonomy idea, to the exclusion of a constitutionally based sex-equality perspective. I understand the view that for political reasons the reproductive autonomy controversy should be isolated from the general debate on equal rights, responsibilities, and opportunities for women and men. I expect, however, that organized and determined opposing efforts to inform and persuade the public on the abortion issue will continue through the 1980s. In that process there will be opportunities for elaborating in public forums the equal-regard conception of women's claims to reproductive choice uncoerced and unsteered by government."

"Ginsburg, 80, said another case, Struck v. Secretary of Defense, would have been her choice as the first reproductive freedom case heard by the nation's high court. In that case, U.S. Air Force Cpt. Susan Struck became pregnant in 1970 while serving in Vietnam. Ginsburg, who at the time represented Struck as a lawyer with the American Civil Liberties Union, said the woman had two choices: leave the military or have a legal abortion on base. Struck told her commanding officer that she arranged to have the child adopted upon birth, but she was still forced to leave Vietnam and was sent back to the U.S., Ginsburg said. Ginsburg prepared the case for the Supreme Court in 1971, but it was never heard after the Air Force changed its policy on pregnancies and allowed Struck to have the child and remain in the service. "The idea was: 'Government, stay out of this,' " Ginsburg said. "I wish that would have been the first case. The court would have better understood this is a question of a woman's choice.""

"In Roe, Blackmun’s initial impulse was also avoidance. Although the conference had voted to invalidate the abortion statute on privacy grounds, Blackmun’s early draft opinion relied not on any substantive right, but on-wait for it-void-for-vagueness doctrine. Unlike feminists’ claims that abortion laws violated women’s fundamental rights, doctors’ claims against abortion laws often sounded in void-for-vagueness. Under laws prohibiting all abortion but those necessary for the “life” or “health” of the mother, doctors argued that they chanced a felony every time they guessed that a particular abortion came within such exceptions. Blackmun, the former resident counsel for the Mayo Clinic, was sympathetic to these professional concerns. Moreover, he hoped that void-for-vagueness would help him to avoid the more controversial issue of when life began that he feared a fundamental rights approach would ultimately require. Brennan and Douglas found that approach unsatisfying. In response to Blackmun’s draft, they urged Blackmun to reach “the core issue” of privacy rather than rely on vagueness. These interchanges between Justices in Roe offer further support for the conclusion Amsterdam had offered a decade before-that vagueness was at least in part an avoidance mechanism, denying and shielding the Justice’s substantive commitments. Afraid to embrace fully the implications of Griswold and wade too deeply into the abortion issue, Blackmun thought he could escape the problem by using void-for-vagueness."

"I commented at the outset that I believe the Court presented an incomplete justification for its action. Academic criticism of Roe, charging the Court with reading its own values into the due process clause, might have been less pointed had the Court placed the woman alone, rather than the woman tied to her physician, at the center of its attention. Professor Karst's commentary is indicative of the perspective not developed in the High Court's opinion; he solidly linked abortion prohibitions with discrimination against women. The issue in Roe, he wrote, deeply couched and concerned "women's position in society in relation to men." It is not a sufficient answer to charge it all to women's anatomy-a natural, not man-made, phenomenon. Society, not anatomy, "places a greater stigma on unmarried women who become pregnant than on the men who father their children." Society expects, but nature does not command, that "women take the major responsibility. . . for child care" 60 and that they will stay with their children, bearing nurture and support burdens alone, when fathers deny paternity or otherwise refuse to provide care or financial support for unwanted offspring."

"Professor Paul Freund explained where he thought the Court went astray in Roe, and I agree with his statement. The Court properly invalidated the Texas proscription, he indicated, because "[a] law that absolutely made criminal all kinds and forms of abortion could not stand up; it is not a reasonable accommodation of interests."'53 If Roe had left off at that point and not adopted what Professor Freund called a "medical approach," 54 physicians might have been less pleased with the decision, but the legislative trend might have continued in the direction in which it was headed in the early 1970s. "[S]ome of the bitter debate on the issue might have been averted," Professor Freund believed; "[t]he animus against the Court might at least have been diverted to the legislative halls." a5 5 Overall, he thought that the Roe distinctions turning on trimesters and viability of the fetus illustrated a troublesome tendency of the modem Supreme Court under Chief Justices Burger and Warren "to specify by a kind of legislative code the one alternative pattern that will satisfy the Constitution.""

"On several occasions since Roe the Court has confronted legislative responses to the decision. With the notable exception of the public funding cases, the Court typically has applied Roe to overturn or limit efforts to impede access to abortion. I will not survey in the brief compass of this Essay the Court's series of opinions addressing: regulation of the abortion decision making process; specifications regarding personnel, facilities, and medical procedures; and parental notification and consent requirements in the case of minors. Instead, I will simply highlight the Court's statement last year reaffirming Roe's "basic principle that a woman has a fundamental right to make the highly personal choice whether or not to terminate her pregnancy." In City of Akron v. Akron Center for Reproductive Health, Inc.,65 the Court acknowledged arguments it continues to hear that Roe "erred in interpreting the Constitution." Nonetheless, the Court declared it would adhere to Roe because "stare decisis, while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law.""

"Justice O'Connor, ten years after Roe, described the trimester approach as "on a collision course with itself." Advances in medical technology would continue to move forward the point at which regulation could be justified as protective of a woman's health, and to move backward the point of viability, when the state could proscribe abortions unnecessary to preserve the patient's life or health. The approach, she thought, impelled legislatures to remain aucourant with changing medical practices and called upon courts to examine legislative judgments, not as jurists applying "neutral principles," but as "science review boards.""

"Roe announced a trimester approach Professor Archibald Cox has described as "read[ing] like a set of hospital rules and regulations. During the first trimester, "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician"; in the next, roughly three-month stage, the state may, if it chooses, require other measures protective of the woman's health. 4 5 During the final months, "the stage subsequent to viability," the state also may concern itself with an emerging interest, the "potentiality of human life"; at that stage, the state "may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.""

"I earlier observed that, in my judgment, Roe ventured too far in the change it ordered. The sweep and detail of the opinion stimulated the mobilization of a right-to-life movement and an attendant reaction in Congress and state legislatures. In place of the trend "toward liberalization of abortion statutes" noted in Roe, legislatures adopted measures aimed at minimizing the impact of the 1973 rulings, including notification and consent requirements, prescriptions for the protection of fetal life, and bans on public expenditures for poor women's abortions."

"I turn, finally, to the plight of the woman who lacks resources to finance privately implementation of her personal choice to terminate her pregnancy. The hostile reaction to Roe has trained largely on her. Some observers speculated that the seven-two judgment in Roe was motivated at least in part by pragmatic considerations-population control concerns, the specter of coat hanger abortions, and concerns about unwanted children born to impoverished women. I recalled earlier the view that the demand for open access to abortions had as its real purpose suppressing minorities. In a set of 1977 decisions, however, the Court upheld state denial of medical expense reimbursement or hospital facilities for abortions sought by indigent women. Moreover, in a 1980 decision, Harris v. McRae,70 the Court found no constitutional infirmity in the Hyde Amendment, which excluded even medically necessary abortions from Medicaid coverage. After these decisions, the Court was accused of sensitivity only to the Justices' own social milieu--"of creating a middle-class right to abortion." The argument for constitutionally mandated public assistance to effectuate the poor woman's choice ran along these lines. Accepting that our Constitution's Bill of Rights places restraints, not affirmative obligations, on government, counsel for the impoverished women stressed that childbirth was publicly subsidized. As long as the government paid for childbirth, the argument proceeded, public funding could not be denied for abortion, often a safer and always a far less expensive course, short and long run. By paying for childbirth but not abortion, the complainants maintained, government increased spending and intruded upon or steered a choice Roe had ranked as a woman's "fundamental" right. The Court responded that, like other individual rights secured by the Constitution, the right to abortion is indeed a negative right. Government could not intervene by blocking a woman's utilization of her own resources to effectuate her decision. It could not "'impose its will by force of law.'" But Roe did not demand government neutrality, the Court reasoned; it left room for substantive government control to this extent: Action "deemed in the public interest ' -in this instance, protection of the potential life of the fetus could be promoted by encouraging childbirth in preference to abortion."

"What might seem more surprising than Brennan’s general preoccupation with Roe in the winter of 1971 was that he connected Roe to Papchristou. Thought about as privacy, sexual freedom, or reproduction cases, Roe, Eisenstadt, and Griswold has little in common with Papachristou. True, the Jacksonville police were using the city’s vagrancy ordinance to regulate the sexuality of the interracial double-daters. But sexuality was not the central issue in Papachristou. Moreover, the acts that led to the vagrancy arrests, more so even than abortions, could hardly be considered “private” For the most part, in fact, not only did vagrancy laws regulate people in public spaces, they usually regulated men in public spaces. The abortion cases, by contrast, largely involved the choices of women in private. Going up a level of generality, however, the various opinions and memos in the archives make clear the questions preoccupying much of the Court were the same in the two sets of cases: what were fundamental rights, and where in the Constitution, if anywhere, the Justices might find protection for them. In particular, an individual’s right to choose his or her own “lifestyle” was at least as affected by choices about reproduction as by choices about where to live, how to dissent, and whether to shave one’s facial hair. Within that context, it is less surprising that Brennan would connect Papachristou with Roe."

"Roe v. Wade, in contrast to decisions involving explicit male/female classification, has occasioned searing criticism of the Court, over a decade of demonstrations, a stream of vituperative mail addressed to Justice Blackmun (the author of the opinion), annual proposals for overruling Roe by constitutional amendment, and a variety of measures in Congress and state legislatures to contain or curtail the decision. In 1973, when Roe issued, abortion law was in a state of change across the nation. There was a distinct trend in the states, noted by the Court, "toward liberalization of abortion statutes." Several states had adopted the American Law Institute's Model Penal Code approach setting out grounds on which abortion could be justified at any stage of pregnancy; most significantly, the Code included as a permissible ground preservation of the woman's physical or mental health. 35 Four states-New York, Washington, Alaska, and Hawaii-permitted physicians to perform first-trimester abortions with virtually no restrictions. This movement in legislative arenas bore some resemblance to the law revision activity that eventually swept through the states establishing no-fault divorce as the national pattern."

"In 1971, just before the Supreme Court's turning-point gender-classification decision in Reed v. Reed, and over a year before Roe v. Wade, I visited a neighboring institution to participate in a conference on women and the law. I spoke then of the utility of litigation attacking official line-drawing by sex. My comments focused on the chance in the 1970s that courts, through constitutional adjudication, would aid in evening out the rights, responsibilities, and opportunities of women and men. I did not mention the abortion cases then on the dockets of several lower courts-I was not at that time or any other time thereafter personally engaged in reproductive-autonomy litigation. Nonetheless, the most heated questions I received concerned abortion. The questions were pressed by black men. The suggestion, not thinly veiled, was that legislative reform and litigation regarding abortion might have less to do with individual autonomy or discrimination against women than with restricting population growth among oppressed minorities. The strong word "genocide" was uttered more than once. It is a notable irony that, as constitutional law in this domain has unfolded, women who are not poor have achieved access to abortion with relative ease; for poor women, however, a group in which minorities are disproportionately represented, access to abortion is not markedly different from what it was in pre-Roe days."

"The Texas law at issue in Roe made it a crime to "procure an abortion" except "by medical advice for the purpose of saving the life of the mother." 37 It was the most extreme prohibition extant. The Court had in close view two pathmarking opinions on reproductive autonomy: first, a 1965 precedent, Griswold v. Connecticut,3 8 holding inconsistent with personal privacy, somehow sheltered by due process, a state ban on the use of contraceptives even by married couples; second, a 1972 decision, Eisenstadt v. Baird,39 extending Griswold to strike down a state prohibition on sales of contraceptives except to married persons by prescription. The Court had already decided Reed v. Reed, recognizing the arbitrariness in the 1970s of a once traditional gender-based classification, but it did not further pursue that avenue in Roe."

"The 1973 United States Supreme Court decision in Roe v. Wade sparked a legal and political controversy that continues to this day. Judge Ginsburg suggests that the Roe opinion would have been more acceptable if it had not gone beyond a ruling on the extreme statute involved in the case. She agrees with commentary maintaining that the Court should have adverted specifically to sex equality considerations. Such an approach might have muted the criticism of the Roe decision. The breadth and detail of the Roe opinion ironically may have stimulated, rather than discouraged, antiabortion measures, particularly with respect to public funding of abortion."

"On Tuesday, after this article was published, Roberts confirmed the authenticity of the draft opinion and said he was ordering an investigation into the disclosure. “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way,” Roberts pledged in a written statement. “This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.” Roberts also stressed that the draft opinion “does not represent a decision by the Court or the final position of any member on the issues in the case.” The court spokesperson had declined comment pre-publication."

"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."

"[B]efore Roe, women of means could end their pregnancies by traveling to states or foreign nations with less restrictive abortion laws. See Burt, The Burger Court and the Famil, THE BURGER COURT, supranote 25, at 92, 107-08 (for practical purposes, the availability of abortions in some states undermined the more restrictive regimes); Karst, supra note 1, at 59 ("Even before Roe v. Wade, wealthy women. . . could obtain abortions by traveling."); Abortion for Whom, NEW REPUBLIC, Oct. 25, 1969, at 12 ("The rich have always been able to get abortions by going abroad. The poor cannot travel . . ..."). For example, in 1971, the second year New York's liberalized abortion law was in effect, 60% of the women having abortions in New York were nonresidents."

"After the two cases were argued again in October 1972, Blackmun prepared for the conference, assuming that they would remain his responsibility. "I am revising and expanding the proposed opinions that commanded a majority," he jotted to himself. "I have a lot of personal investment," he added, and "It is not a happy assignment—[I] will be excoriated." The task of handling both Roe and Doe had passed to new law clerk Randall Bezanson, who now teaches law at the University of Iowa. In a November 29 memo to Blackmun, Bezanson questioned Frampton's selection of viability as the point at which the right to an abortion should be limited, a choice that Powell had also recommended. "By selecting viability," Bezanson asked Blackmun, "would you not be suggesting that prior to that point no limitations could be placed on abortions (except those permitted in your opinions as they now stand)." Bezanson then offered an analysis that decisively shaped how Roe would balance the woman's right and the state's interests throughout pregnancy: Let's assume that prior to the end of the first trimester no limitations could be placed on abortion, as your opinion now provides. And assume that after viability the state's interest becomes sufficiently compelling to prevent abortions except in limited circumstances—preserving the life of the mother, or her health as narrowly defined in a statute. I am still of the opinion that during the 'interim' period between the end of the first trimester and viability (about 6 months), the state might impose some greater restrictions relating to medical dangers posed by the operation, e.g., the operation would have to be performed in a hospital, as opposed to a clinic close to a hospital, and the like. One of the positive attributes of your approach, as I see it, is that it leaves the state free to place increasing restrictions on abortions over the period of gestation if those restrictions are narrowly tailored to state interests. Justice Powell's suggestion seems to view the relevant state interests too narrowly, and disregards the state's interest in assuring that the medical procedures employed will be safe. Your opinion, as I view it, rests on two state interest[s], which become compelling in varying degrees over time, and not simultaneously: the state's interest in preserving the life of the fetus (here the most logical cutoff, as Justice Powell suggests, is viability), and the state's interests in assuring that the abortion procedure is safe and adequately protects the health of the patient (it is this interest to which I think Justice Powell gives too little weight). The fetus is pretty large at 4 or 5 or 6 months, although it may not be 'viable.' I would imagine, and your opinion suggests to me, that the medical risks which attend abortion of a fetus increase as the size of the fetus increases. Thus the state's interests may increase vis-á-vis this factor before 'viability.' While the first trimester is, as you admit, an arbitrary cutoff, I don't think that it is all that arbitrary, and I would not want to prejudge a state's interests during the 'interim' period between the end of the first trimester and viability at this time. I would stand by your original position, subject to minor change, and leave the question of what legitimate interests a state might have of requiring greater protection through higher medical standards to another case.*The majority opinions in Roe v. Wade and Doe v. Bolton came down on January 22, 1973, and owed a great amount of their substance and language to Frampton and Bezanson.* Yet what stands out most in the work of Blackmun's clerks on Roe and Doe is not the remarkable extent of their contributions, but the unusually assertive and forceful manner in which the clerks voiced their views to Blackmun. Although no one has reviewed every one of Blackmun's case file folders, the behavior of Blackmun's clerks in preparing the Roe and Doe decisions was the first significant example of conduct that formed a clear pattern after the mid-1980s."

"Over the summer, while Blackmun visited the Mayo Clinic's library in Rochester, Minn., to research the medical aspects of abortion, Rich and Frampton did substantial work on the draft opinions before their clerkships ended in early August. In mid-July, Frampton informed Blackmun that "after thinking about the overall structure of the opinions, John and I have concluded that there is a strong argument for leaving the Texas case to go off on vagueness," meaning that in Roe the court would void the Texas statute as too vague, and Doe would become the more constitutionally significant opinion. Frampton wanted the opinions to provide "a comprehensive prescription" for how states should revise their abortion laws, and on August 11, 1972, he sent Blackmun revised drafts of both Doe and Roe, as well as advice on strategy. I want to urge you again to circulate your revised draft before oral argument," Frampton wrote to Blackmun. "[I]t will nail down your keeping the assignment, it should influence questions and thinking at oral argument, and it might well influence voting. It will also put a premium on getting the cases handed down quickly. . . . Frampton also told Blackmun about an analytical distinction that would prove crucial in the final Roe and Doe opinions. "I have written in, essentially, a limitation of the [abortion] right depending on the time during pregnancy when the abortion is proposed to be performed," Frampton explained. "I have chosen the point of [fetal] 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 profession, for various purposes; b) it has considerable analytic basis in terms of the state interest as I have articulated it. . . ." He also highlighted another addition. "I have included a section designed to show in greater detail that neither the law nor any other discipline has really arrived at a consensus about the beginning of life." But Frampton confessed that, as to constitutional privacy analysis, "I would have liked to do more here, but I really didn't have time at the end," and he regretted the deficiency. "Since the opinion does use this right throughout, and since it is a new application of it, I think considerable explanation is required in addition to what the circulated draft contained—which was little more than one sentence plus a string cite in [the] text.""

"The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO. The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision — Planned Parenthood v. Casey — that largely maintained the right."

"BLACKMUN'S AUTHORSHIP OF ROE V. WADE and Doe v. Bolton became the signature event of his 24 years on the court. The pair of cases challenging anti-abortion statutes in Texas and Georgia was decided during Blackmun's third term as a justice. Yet even then, Blackmun allowed his clerks to play influential roles not only in drafting the two opinions but also in honing the constitutional standards that made the two cases famous. Even before Roe and Doe arrived at the court, Blackmun was clearly comfortable with interpreting the Constitution to protect women's access to abortion. Writing to himself just prior to the oral argument in United States v. Vuitch, the court's first abortion case, in January 1971, Blackmun noted that the 1965 case Griswold v. Connecticut, which upheld the right of married couples to use contraceptives, and the 1969 case Stanley v. Georgia, which protected the possession of pornography in the home, "afford potent precedence in the privacy field. I may have to push myself a bit, but I would not be offended by the extension of privacy concepts to the point presented by the present case." At conference, however, the justices decided Vuitch on grounds that allowed them to avoid the constitutional privacy issue. When Blackmun began preparing for Roe's initial oral argument in December 1971, his notes about the case reiterated his comments about Vuitch. "A fundamental personal liberty is involved here—right to receive medical care," he wrote. "Much precedent for this sort of thing—Griswold et al." After argument and the justices' private conference, Burger assigned Blackmun to write the opinions in Roe and Doe."

"A number of years later, I read in the newspaper about an abortion clinic being bombed. “Why would anyone want to do that? I thought. I read the entire article and was surprised when one of the bombers referred to “baby killing” going on inside the clinic. I had never been inside a clinic and could not imagine what the man was talking about, but that night, I had a dream in which I saw little babies lying around with daggers in their hearts. It was a horrific vision and I kept Connie up for hours, trying to figure out what it meant. The next morning, I realized I needed to make some sort of sense out of this abortion business. Was Jane Roe, after all. What, really, had I done?"

"Law clerk John T. Rich, who now practices law in Washington, D.C., prepared a long memo for Blackmun summarizing the issues in Roe. After a first draft of the Roe opinion was completed in mid-May 1972, Rich gave Blackmun a forceful, 13-page list of recommended changes. Doe was the responsibility of Rich's co-clerk, George Frampton, who is now a New York lawyer. By mid-May, Frampton had a draft opinion ready for distribution. While not as assertive as Rich, Frampton nonetheless told Blackmun that the opinion should more clearly state that it was affirming the lower court's decision to void several restrictions on abortion in the Georgia statute. "I feel even more strongly now that you should make explicit what the opinion presupposes by approving the decision of the court below as far as it went." But both drafts were held in abeyance after a majority of the court, at Blackmun's urging, scheduled Roe and Doe for reargument during the following term, when a full bench that included Powell and William Rehnquist—who had joined the court after the initial arguments—could decide the two cases."

"The draft opinion offers an extraordinary window into the justices’ deliberations in one of the most consequential cases before the court in the last five decades. Some court-watchers predicted that the conservative majority would slice away at abortion rights without flatly overturning a 49-year-old precedent. The draft shows that the court is looking to reject Roe’s logic and legal protections."

"The decision in Roe appeared to be a stunning victory for the plaintiffs. The Court declared that a woman, guided by the medical judgment of her physician, had a "fundamental" right to abort a pregnancy, a right the Court anchored to a concept of personal autonomy derived from the due process guarantee. The Court then proceeded to define with precision the state regulation of abortion henceforth permissible. The rulings in Roe, and in a companion case decided the same day, Doe v. Bolton, were stunning in this sense: they called into question the criminal abortion statutes of every state, even those with the least restrictive provisions."