1973

"[W]hile Biden later became a staunch defender of Roe, in addition to consistently opposing federal funding of abortions, he did vote in 1981 for a failed constitutional amendment allowing states to overturn Roe. At the time, he called it “the single most difficult vote I’ve cast as a U.S. senator.” When it came up again the following year, Biden voted against the bill."

"In each of the contexts discussed so far—the military, capital punishment, and assisted suicide—there are of course different views as to whether the killings in question are morally permissible. Yet there is essentially no room for debate that each of these contexts involves the killing of other human beings. In short, the debate is over the morality or permissibility of the killing, not whether a killing takes place at all. The context of abortion, of course, is different. In Roe v. Wade, the Supreme Court famously declared itself unable to determine when human life begins: “[T]he judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” Thus, in some ways the abortion debate is about whether abortion is killing at all, with some abortion supporters arguing that abortion does not involve killing, and abortion opponents arguing that it does. This dispute over whether abortion is a killing in the first place adds a difficulty that is not present in the other contexts where the fact of killing is agreed upon, and the only questions concern the permissibility of that killing. Nevertheless, despite this additional level of dispute, the abortion context offers the most systematic and all-encompassing example of government efforts to ensure that unwilling individuals are not forced to engage in what"

"Even before Roe was decided, states that permitted abortion were taking action to protect those physicians or hospitals that objected to participation in abortions. In 1971, New York enacted a criminal law prohibiting discrimination against any person for his or her refusal to participate in abortions. Many other states—including Arkansas, Alaska, Colorado, Delaware, Florida, Georgia, Hawaii, and Maryland—included explicit conscience protections for individuals and institutions in the same statutes that liberalized their abortion laws. That trend of protecting conscientious objectors to abortions continued and dramatically expanded in the aftermath of Roe. Today, virtually every state in the country has some sort of statute protecting individuals and, in many cases, entities who refuse to provide abortions. Most of these statutes arose in the decade following Roe. Some states expressly limit this protection to the practice of abortion, which is treated specially. Other states protect conscience for other procedures as well."

"See Lynn D. Wardle, Protecting the Rights of Conscience of Health Care Providers, 14 J. LEGAL MED. 177, 180–81 (1993) (“Most conscience clause provisions were adopted between 1973 and 1982, when the federal courts were broadly defining a new and very controversial constitutional privacy right to abortion."

"Despite history-friendly Justices’ best efforts, many substantive due process decisions have not adhered strictly to the history and tradition approach. For example, the majority in Lawrence v. Texas overruled history- driven Bowers v. Hardwick without once mentioning Glucksberg’s attempt at an authoritative, history-based framework. 169 Yet even those substantive due process opinions in which history was not explicitly controlling tend to make at least some effort to portray the rights they protect as “deeply rooted in this Nation’s history and tradition.” Roe v. Wade argued at length that abortion was traditionally much less strictly regulated than in the mid-twentieth century, 170 and Lawrence v. Texas sought to undermine Bowers’s historical evidence"

"The Court’s historical analysis in Roe and Lawrence confirms that a practice need not have longstanding legal protection in order to qualify for substantive due process protection. Thus, despite the absence of any laws affirmatively protecting elective abor tion, despite undisputed prohibitions on abortion for most of the century prior to Roe, and despite common law indications that at least some abortions were illegal, the Court in Roe found the historical analysis satisfied because it determined women enjoyed “substantially broader” freedom to abort at earlier times: It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well intothe 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy."

"In Roe and Lawrence, the Court found facts more favorable to the proposed due process rights. In Roe, the Court found some support for an abortion right in the limited evidence of a trend toward legalization—a stronger trend toward legalization than anything the Glucksberg Court could find, but hardly an overwhelming one. The Court noted that “about one-third” of the states had recently changed their abortion laws to make them “less stringent.” The Roe Court also emphasized the official positions of American professional associations. For over 100 years, the American Medical Association maintained the position that abortion should generally be illegal and doctors should not participate in the procedure before finally changing its position in 1970 to support abortion. Similarly, in 1970 the American Public Health Association adopted new “Standards for Abortion Services” calling for abortion referral to be easily available, and the American Bar Association called for abortion to be largely unrestricted in the first twenty weeks of pregnancy. Though the Court did not explicitly rest its holding on these professional associations’ positions, they did support its reasoning, and the Court spent six pages of the majority opinion discussing them."

"[T]he best example of contemporary trends and consensus in favor of a right not to kill comes in the abortion context, where protection of conscience has been almost universal and has all occurred within the last fifty years. In the years prior to Roe, at least fourteen states had already liberalized their abortion laws. These pre-Roe liberalization laws frequently came with the creation of express statutory protection for physicians and other healthcare personnel and institutions that refused to participate in abortions. Likewise, when it decided in 1970 to support great er access to abortion, the American Medical Association also resolved that “[n]either physician, hospital, nor hospital personnel shall be required to perform any act violative of personally-"

"The day after Roe fell, of course, abortion would be neither legal nor illegal throughout the United States. Instead, the states and Congress would be free to ban, protect, or regulate abortion as they saw fit. But in many of the fifty states, and ultimately in Congress, the overturning of Roe would probably ignite one of the most explosive political battles since the civil-rights movement, if not the Civil War."

"[I]f a national referendum were held the day after Roe fell, there’s little doubt that early-term abortions would be protected and that later-term abortions would be restricted. But the U.S. Constitution doesn’t provide for government by referendum. Because of the intricacies of American federalism, and the polarization of American politics exacerbated by Roe itself, the moderate national consensus about abortion might not be reflected in law for years to come, and the political landscape could be transformed beyond recognition."

"If Roe falls in June 2007, abortion will almost certainly become the central issue in the 2008 presidential election. And Republicans are already worrying about the political fallout. “We’d be blown away in the suburbs, and you wouldn’t see another Republican president for twenty years,” a pro-choice Republican congressman recently told Roll Call."

"Once Roe is gone, one argument goes, each state would be free to reflect the wishes of local majorities, and the country would quickly reach a democratic equilibrium. But that assumption, as we’ve seen, may be too optimistic. Since the abortion battle will be fought out in the states and in Congress, rather than settled by a national referendum, it’s possible that pro-life and pro-choice extremists could thwart the moderate compromises that national majorities have long supported."

""As the 30th anniversary of the Roe decision approaches, women's right to safe, legal abortions is in dire peril," The New York Times wrote last month in an editorial called "The War Against Women." When Roe v. Wade turned 30 on January 22, pro-choice activists repeated the conventional wisdom that abortion rights are under siege. "A woman's right to choose is probably in the greatest danger ... since Roe vs. Wade was handed down," Kate Michelman, the head of the newly renamed NARAL Pro-Choice America, told USA Today. "With a slim one-vote margin on the Supreme Court protecting freedom of choice," Michelman insists, Roe is in danger of being overturned with a single Supreme Court appointment. And, with the Senate, House, and White House in the hands of pro-lifers for the first time since Roe was decided, pro-choicers fear that its overturning would be followed by widespread restrictions on early-term abortion rights for the first time since the 1970s. But the alarmism about abortion rights is wrong. Rather than hanging by a five-to-four thread, the core principle of Roe is supported by six justices. And, even in the unlikely event that Roe were overturned, the core right it protects--the right to choose abortion early in pregnancy--isn't likely to be threatened on a broad scale. For the past 30 years, national polls have revealed a consistent and moderate consensus on abortion: Majorities strongly oppose bans on early-term abortions and strongly support restrictions on late-term abortions. If Roe were overturned, the relative political weakness of the extreme pro-life position would be exposed, and the Republican Party would be torn apart at the seams because many Republicans oppose early-term bans and would desert the party in droves. "The last thing in the world the White House would want is that Roe v. Wade is overturned," says a prominent Republican congressional aide. "The reason being is that it would energize the nation's pro-choice constituency, ... and it would cause a huge fissure in the Republican Party, which has been generally harmonious over the issue because of the belief that the pro-life position will never truly be tested." At the same time, if Roe were overturned, the expanded and moderate Democratic majority would be free to distance itself from extremists in the pro-choice movement who persist in fighting restrictions on late-term abortions, which most Americans embrace. In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized Roe on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people."

"Pro-choice activists, eager to suggest that the Court is one step away from the apocalypse, note that when the Court, in a five-four decision in 2000, struck down bans on so-called partial-birth or late-term abortions, Kennedy dissented. They portray his vote as an indication that he has changed his mind on the constitutionality of all abortions, including early-term procedures. "Kennedy jumped ship," Sylvia Law of New York University School of Law recently told Women's Enews. "Roe is always hanging by a thread." But Kennedy did not jump ship, and Roe is not hanging by a thread. In upholding Roe in the 1992 case Planned Parenthood v. Casey, Kennedy made clear that he thought the Constitution prohibited restrictions on early-term abortions and permitted restrictions on late-term ones. It was Kennedy who wrote the most sweeping and expansive sentence in that opinion upholding the core of Roe: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," he wrote. "Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." Two and a half years ago, when the Court struck down bans on late-term abortions in Stenberg v. Carhart, adopting a far more expansive position on abortion protections than the one he originally embraced, Kennedy indicated, understandably, that he felt he had been duped. His dissent, however, didn't mean that he had abandoned his moderate position. In fact, he explicitly said the opposite: "When the Court reaffirmed the essential holding of Roe [in 1992], a central premise was that the States retain a critical and legitimate role in legislating on the subject of abortion, as limited by the woman's right the Court restated and again guaranteed," Kennedy wrote in his dissent in Stenberg. "The Court's decision today ... repudiates this understanding by invalidating a statute advancing critical state interests, even though the law denies no woman the right to choose an abortion and places no undue burden upon the right.""

"[O]verturning Roe would expose the fundamental weakness of the extreme anti-abortion position. In the 30 years since the decision, public opinion about abortion has remained remarkably stable. As Everett Ladd and Karlyn Bowman of the American Enterprise Institute have noted, national polls from 1975 to the present suggest that public opinion on abortion for the past three decades has consistently included extremes on both sides that favor either no restrictions or total bans--each of which command about 30 and 20 percent support, respectively--and a vast majority in the middle that opposes both early-term bans and late-term abortions. Americans have reached a moderate consensus: In a CNN/Gallup/USA Today poll last month, 66 percent said abortion should be legal during the first three months of pregnancy; by the second trimester, when the fetus becomes viable, only 25 percent said abortion should be legal; and, by the third trimester, when so-called partial-birth abortions would be performed, only 10 percent say abortion should be legal. These numbers, too, have remained entirely consistent during the three decades since Roe was decided."

"[I]f Roe were overturned, it's true that some states would try to regulate early-term abortions. The precise number is hard to estimate. After the Supreme Court gave the states greater leeway to restrict abortion in 1989, only two legislatures--Louisiana and Utah--passed laws to ban early-term abortions (except in cases of rape or incest or to save the woman's life), and both were quickly struck down. By examining public records, including the campaign statements of governors and state legislators, NARAL estimates that twelve states "would likely ban abortion in all or most circumstances if Roe is reversed (AL, FL, LA, MN, MS, MO, NE, ND, OH, SD, TX, UT)." Ann Stone of Republicans for Choice offers a much lower estimate, arguing that first-trimester bans have a fighting chance of passing only in Louisiana, Mississippi, Missouri, Ohio, and Utah. Political scientists in several of the states on NARAL's list concur: They believe legislators in their states would be cowed by popular opinion. "Florida is basically a socially progressive state in its broad outlook; it is more pro-choice than pro-life on balance, and I don't believe the political culture in Florida really supports first-trimester bans," says Stephen Craig, a professor of political science at the University of Florida. "I would be surprised if a first-trimester ban made it into law, and I quite frankly would be surprised to see the Florida legislature even try to take such a draconian step." In North Dakota, says Robert Wood, a political science professor at North Dakota State University, "an absolute ban probably wouldn't pass. It's generally a conservative state but with a strong strain of libertarianism." GOP pollsters suggest that even legislators in the most conservative states would feel pressure from popular opinion to allow abortion not only in cases of rape or incest but also when a woman's physical or even psychological health is threatened, a broad category that would allow women and their doctors flexibility. "I think it would be hard to get a total ban through any state legislature, even Utah, because the vast majority of Americans believe that abortions are undesirable but ought to be allowable under certain circumstances," says Republican consultant Whit Ayres. And, in the handful of states that are most likely to restrict abortion except in cases of rape or incest or to save the mother's life, local scholars suggest that popular opinion tends to be more liberal than the pro-life base and that a sweeping ban would provoke a political backlash. "I think there would be a strong reaction against strict controls if the Ohio legislature passed them," says Michael Burton of Ohio University. "It would certainly cause real problems within the Republican Party in Ohio, where the Republican voters are suburban and more liberal than the legislature on most social issues." Bill Richardson of the University of South Dakota predicts a similar dynamic in his state. "I wouldn't be surprised to see a first-term-ban bill introduced" if Roe were overturned, he says. "But I think the population is more moderate." In all these states, pro-choice voters were willing to vote for pro-life candidates because they knew Roe would prevent their positions from being enacted; if Roe were overturned, they would have to think again. Pro-life legislators, as a result, would themselves think long and hard before pulling the trigger to overturn Roe."

"Roe also cited with approval Buck v. Bell. Buck upheld the power of the state to sterilize mental defectives. The Buck Court said very bluntly, “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.” And then Buck cited Jacobson v. Massachusetts, a vaccination case. Before Roe, I think every commentator would have thought that Buck v. Bell was no longer good law. It was like an old, derelict ship, maybe not officially decommissioned but ready to sink. Roe v. Wade resurrected Buck v. Bell. It cited it with approval and relied on it. If a future Court would seek to approve compulsory sterilization, it could cite Roe as authority, as well as citing Buck v. Bell."

"Roe, I think, is not about women’s rights. It is about doctor’s rights. Blackmun says in his opinion-he says not that a woman has the right to abortion. Here is the phrase. For the period of pregnancy prior to this compelling point, he says, “the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that in his medical judgment the patient’s pregnancy should be terminated;” that is, the woman doesn’t have the right to choose abortion. The doctor does, who is assumed to be male. But then in a bow to women’s rights, Blackmun said that the doctor should consult with the patient."

"Despite the increasing level of discomfort with the high court’s ruling--43% of current survey respondents express support for Roe, compared with 56% in 1991--the poll shows continued opposition to a constitutional ban on abortion."

"In recent years, Roe has been invoked by abortion opponents as a barrier to imposing limits on abortion, said Harvard’s Blendon. As a result, increasing numbers of Americans may view Roe as an obstacle to adopting restrictions for which there is broad support."

"Blackmun's files show how thoroughly his thinking about Roe and its companion case, Doe v. Bolton, changed and expanded in the year between initial oral arguments and the court's rulings. His first draft of Roe dismissed the law in question, a Texas abortion ban, as too vague. In pre-argument notes for Doe, he wrote that another abortion ban, one with limited exceptions, was "pretty good and strikes a good balance of the asserted interests.""

"The idea of a broader right to abortion bubbled up from lower courts, propelled by result-oriented arguments that seemed indifferent to how they were supported by the Constitution. The Georgia district court that had decided Doe before the case reached the Supreme Court cited both the "retained by the people" clause and the "penumbras" underlying the right to privacy. "For whichever reason, the concept of personal liberty embodies a right to privacy which apparently is also broad enough to include the decision to abort a pregnancy," the court said. Blackmun's notes convey the same casual attitude. He began with intuition and then looked for a constitutional peg. "Right of the mother to life, health, physical & mental," he wrote in October 1972. "Translated this means 9th and 14th amendment rights." In his notes, he posited an abortion right similar to the right to contraception, then conceded the difference between the two acts, but shrugged, "Whatever the answer, something fundamental is involved. [There's] much precedent for this sort of thing—Griswold, etc." In his final draft of Roe, he concluded that "This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty [or] . . . the Ninth Amendment's reservation of rights to the people, is broad enough to encompass" abortion. Fourteenth, Ninth, etc., this sort of thing, something fundamental, whatever."

"BLACKMUN'S PAPERS VINDICATE EVERY INDICTMENT of Roe: invention, overreach, arbitrariness, textual indifference. But they also implicate his critics. In a 1970 letter, Chief Justice Warren Burger lectured Blackmun about the evils of injecting personal morality into constitutional law. A year later, though, Burger prodded his colleagues to expand Roe or Doe to address the rights of would-be fathers. In December 1972, when Blackmun asked the other justices to comment on his trimester framework, Burger ignored the request and brought up the question of fathers again. Blackmun fended him off with a footnote pointing out that no law or litigant in either case had raised the question. This didn't stop Burger from resuming the lecture: When Blackmun drafted a decision-day announcement that the justices "have endeavored, too, to note the changes in attitudes" toward abortion among medical organizations, Burger wrote in the margin, "We ought not to look for it!" Burger edited the sentence to read, "We cannot escape noting, too . . ." Judicial restraint turns out to be less a principle than a pose."

"In 1973, Blackmun fumed under the suspicion that Burger was delaying Roe to avoid embarrassing President Richard Nixon before his second inauguration. But in 1992, Blackmun used his concurrence in Planned Parenthood v. Casey to warn women that the election might decide Roe's fate. Blackmun's clerks urged him to rush the case through so that it could be decided "before the election," giving "women the opportunity to vote their outrage." Meanwhile, they drafted a statement for him to deliver if the other justices voted not to proceed with such haste. The statement read: "I feel that this Court stands less tall when it defers decision for political reasons.""

"By 1992, Blackmun was so bitter he couldn't see Roe's salvation in the emerging moderate bloc of Justices Kennedy, O'Connor, and David Souter. It was Justice John Paul Stevens who warned Blackmun in 1991 not to alienate the moderates and who ultimately negotiated with them to save Roe in 1992. In the biggest political coup of his career, Blackmun was where the critics of his judicial activism said he always should have been: out of the politics and out of the action."

"In mid-1971, the Supreme Court agreed for the first time to hear a constitutional challenge to the long-standing state laws limiting abortion. Its decision to do so reverberates today. At that time, Texas and 30 other states had laws, dating from the 19th century, that made an abortion a crime unless it was performed to save the mother’s life. Georgia, like California, had revised its laws in the late 1960s to permit abortion in specific circumstances: if the mother’s health was endangered, if the pregnancy was caused by rape or if the fetus had a severe defect. The newest member of the Supreme Court, Justice Harry A. Blackmun, saw much to like in the revised abortion laws. A lawyer who greatly admired doctors, he had been general counsel for the Mayo Clinic in his home state of Minnesota before becoming a federal appellate judge. He believed that doctors needed to have leeway to do medically necessary abortions. In the court’s first private conference on the issue, he described Georgia’s law as “a fine statute [that] strikes a balance that is fair.” Yet, a year later, Blackmun wrote an opinion for the court that struck down all of the nation’s abortion laws. Equally important, his opinion made virtually all abortions legal as a matter of a constitutional right. That opinion, in the case of Roe vs. Wade, remains the court’s most disputed decision of recent decades. By abruptly voiding all laws against abortion, it galvanized a powerful antiabortion movement that has transformed American politics. It also dominates public debate over the court and its future. The Senate confirmation hearing for Judge John G. Roberts Jr., like those of all recent nominees, is focusing on one question: Will he vote to uphold or to reverse Roe vs. Wade?"

"Blackmun had said that abortion “must be left to the medical judgment of the pregnant woman’s attending physician.” So long as doctors were willing to perform abortions -- and clinics soon opened solely to do so -- the court’s ruling said they could not be restricted from doing so, at least through the first six months of pregnancy. But the most important sentence appears not in the Texas case of Roe vs. Wade, but in the Georgia case of Doe vs. Bolton, decided the same day. In deciding whether an abortion is necessary, Blackmun wrote, doctors may consider “all factors -- physical, emotional, psychological, familial and the woman’s age -- relevant to the well-being of the patient.”"

"Legal scholars have long pointed to the shaky constitutional basis for a right to abortion. Blackmun referred to the 14th Amendment, which says that a state may not “deprive any person of life, liberty or property, without due process of law.” In earlier opinions, the court had said that liberty included the concept of personal privacy. “This right to privacy ... is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” Blackmun declared. Earlier this year, 11 legal scholars, led by Yale’s Jack Balkin, tried to write a better opinion. Their book of essays, “What Roe v. Wade Should Have Said,” proposed several alternatives, such as saying sexual equality for women required a right to abortion."

"At the court’s private conference, the seven justices agreed that the Texas law was extreme and unconstitutional, according to the notes of several justices. Even Byron R. White, a critic of abortion, said doctors must be permitted to act when there were “health problems.” Blackmun voiced disdain for feminists who said women deserved control over their bodies. “There is no absolute right to do with one’s body what you like,” he said. But he agreed that the Texas law was extreme and said it did “not go far enough to protect doctors.” The Georgia law was much better, the justices said, except for a requirement that three doctors approve an abortion. Days later, the liberal justices were irked to receive a memo from Burger saying he had chosen Blackmun to write both opinions. With little guidance from colleagues, Blackmun and his clerks began research."

"Blackmun’s final opinion left no room for prohibitions on abortion. That was not apparent in the spring of 1972, however. In mid-May, Blackmun wrote “a first and tentative draft” for Roe vs. Wade that stopped well short of declaring a constitutional right to abortion. Instead, it said the Texas law did not give doctors enough guidance. Criminal laws must be clear, the court had emphasized, so people don’t unwittingly commit a crime. Blackmun said Texas physicians could not be sure whether they were committing a crime by performing an abortion on a patient whose troubled pregnancy might risk her life. “I come out on the theory that the Texas statute ... is unconstitutionally vague,” he said in a memo to his colleagues on May 18, 1972. “I think that this [finding] would be all that is necessary for the disposition of the case, and that we need not get into the more complex” issues. In retrospect, this proved to be a crucial time in the court’s handling of the abortion issue. Blackmun had proposed issuing a short opinion that would have struck down the Texas law and the 30 others like it. However, it would have also left the states ample room to revise their laws."

"Had Blackmun’s draft opinion been adopted, it would have left states free to prohibit abortions for nonmedical reasons. However, Blackmun reluctantly joined Burger in seeking a delay, and the majority voted to put off a decision on the abortion cases until the fall. Blackmun spent the summer working in the Mayo Clinic’s library in Minnesota. He researched the history of abortion in Persian, Greek and Roman times. He also studied abortion laws adopted in 19th century America and concluded that the bans were driven not by moral imperatives but by the reality that, before antibiotics, abortion -- like other medical procedures -- was dangerous. When Blackmun returned to Washington, he had a long draft. It was a thorough work of medical history, but short on constitutional law. It also was hazy on just when abortion would be permitted or prohibited."

"In October, the nine justices sat through the arguments again. When they met to discuss the cases, there was a surprise. Powell, the soft-spoken Virginian who was new to the court, firmly supported a woman’s right to abortion. He urged Blackmun to say it directly rather than attack the laws as vague. For Powell, the issue was personal: When he was a lawyer in Richmond, Va., a young man came to him in despair. His pregnant girlfriend had tried to abort her fetus with his help, and she had bled to death. Powell went to the authorities to explain what happened. Thereafter, he was determined to see abortion made safe and legal. Suddenly, there were six solid votes to strike down the Texas and Georgia laws, and Blackmun had the backing to write a broader opinion in favor of a right to abortion. The liberals, who had worried about the delay, found they had a stronger hand, and Burger found himself with no room to maneuver."

"For better or worse women have been making these individual decisions about abortion for the past 25 years. If recent public opinion polls are to be believed, more women have more doubts about abortion than they did in the past. Perhaps the day will come when very few, if any, women will opt for this alternative. If that day comes, however, it will be because they as individuals decided that abortion is wrong and not the answers to their problems. It will not be because the Government imposed that decision upon them against their will. The ability of individual women to make this judgment for themselves is the real and lasting legacy of Roe v. Wade."

"The Supreme Court’s draft opinion leak has James Esseks worried, and not just about abortion access. Esseks, the director of the LGBTQ & HIV Project at the ACLU, ticks off the civil rights laws he fears could be on the chopping block. “This potential majority of five justices seems perfectly willing to jettison 50 years of precedent and a right that has become deeply ingrained in the fabric of American society based on not a whole lot,” he said. Since it leaked Monday, legal experts across the nation have dug through Justice Samuel Alito’s draft opinion that would overturn Roe v. Wade, the 1973 decision that granted the right to an abortion. Some LGBTQ+ experts say the draft opinion leaves critical civil rights law vulnerable, including cases that granted Americans the right to same-sex relationships (Lawrence v. Texas) and marriage equality (Obergefell v. Hodges). The draft opinion also signals that the court is willing to disturb significant legal precedent — which could have consequences beyond immediately restricting abortion access, said Ezra Ishmael Young, who teaches constitutional law at Cornell Law School. “I think the concern with LGBTQ+ people is if they’re willing to do it in abortion, are there any other issues where they’re willing to do it too?”"

"“Roe is based on this idea of substantive due process,” said Alejandra Caraballo, a clinical instructor at the Cyber Law Clinic at Harvard Law School. “Basically all of the LGBTQ rights cases are built on this idea of equal protection and substantive due process.”"

"The court’s leaked draft opinion to overturn Roe pokes holes in what protections are offered by the 14th Amendment’s due process and equal protection clauses by stating that such rights must be “deeply rooted” in the country’s history. “It opens up a can of worms related to legal arguments regarding the 14th Amendment and its application to the 14th amendment,” said Victoria Kirby York, deputy executive director of the National Black Justice Coalition. “It is the constitutional amendment that reset in many ways a lot of the anti-Black, anti woman messages in the original Constitution.”"

"In 1973, this Court struck down an Act of the Texas Legislature that had been in effect since 1857, thereby rendering unconstitutional abortion statutes in dozens of States. Roe v. Wade, 410 U.S. 113, 119. As some of my colleagues on the Court, past and present, ably demonstrated, that decision was grievously wrong. See, e.g., Doe v. Bolton, 410 U.S. 179, 221—223 (1973) (White, J., dissenting); Roe v. Wade, supra, at 171—178 (Rehnquist, J., dissenting). Abortion is a unique act, in which a woman’s exercise of control over her own body ends, depending on one’s view, human life or potential human life. Nothing in our Federal Constitution deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother. Although a State may permit abortion, nothing in the Constitution dictates that a State must do so. In the years following Roe, this Court applied, and, worse, extended, that decision to strike down numerous state statutes that purportedly threatened a woman’s ability to obtain an abortion. The Court voided parental consent laws, see Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 75 (1976), legislation requiring that second-trimester abortions take place in hospitals, see Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 431 (1983), and even a requirement that both parents of a minor be notified before their child has an abortion, see Hodgson v. Minnesota, 497 U.S. 417, 455 (1990). It was only a slight exaggeration when this Court described, in 1976, a right to abortion “without interference from the State.” Danforth, supra, at 61. The Court’s expansive application of Roe in this period, even more than Roe itself, was fairly described as the “unrestrained imposition of [the Court’s] own, extraconstitutional value preferences” on the American people. Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 794 (1986) (White, J., dissenting). It appeared that this era of Court-mandated abortion on demand had come to an end, first with our decision in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), see id., at 557 (Blackmun, J., concurring in part and dissenting in part) (lamenting that the plurality had “discard[ed]” Roe), and then finally (or so we were told) in our decision in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). Although in Casey the separate opinions of The Chief Justice and Justice Scalia urging the Court to overrule Roe did not command a majority, seven Members of that Court, including six Members sitting today, acknowledged that States have a legitimate role in regulating abortion and recognized the States’ interest in respecting fetal life at all stages of development. See 505 U.S., at 877 (joint opinion of O’Connor, Kennedy, and Souter, JJ.); id., at 944 (Rehnquist, C. J., joined by White, Scalia, Thomas, JJ., concurring in judgment in part and dissenting in part); id., at 979 (Scalia, J., joined by Rehnquist, C. J., and White and Thomas, JJ., concurring in judgment in part and dissenting in part). The joint opinion authored by Justices O’Connor, Kennedy, and Souter concluded that prior case law “went too far” in “undervalu[ing] the State’s interest in potential life” and in “striking down … some abortion regulations which in no real sense deprived women of the ultimate decision.” Id., at 875.1 Roe and subsequent cases, according to the joint opinion, had wrongly “treat[ed] all governmental attempts to influence a woman’s decision on behalf of the potential life within her as unwarranted,” a treatment that was “incompatible with the recognition that there is a substantial state interest in potential life throughout pregnancy.” Id., at 876. Accordingly, the joint opinion held that so long as state regulation of abortion furthers legitimate interests–that is, interests not designed to strike at the right itself–the regulation is invalid only if it imposes an undue burden on a woman’s ability to obtain an abortion, meaning that it places a substantial obstacle in the woman’s path. Id., at 874, 877."

"In the almost 30 years since Roe, this Court has never described the various methods of aborting a second- or third-trimester fetus. From reading the majority’s sanitized description, one would think that this case involves state regulation of a widely accepted routine medical procedure. Nothing could be further from the truth. The most widely used method of abortion during this stage of pregnancy is so gruesome that its use can be traumatic even for the physicians and medical staff who perform it. See App. 656 (testimony of Dr. Boehm); W. Hern, Abortion Practice 134 (1990). And the particular procedure at issue in this case, “partial birth abortion,” so closely borders on infanticide that 30 States have attempted to ban it. I will begin with a discussion of the methods of abortion available to women late in their pregnancies before addressing the statutory and constitutional questions involved."

"[R]oe and Casey say nothing at all about cases in which a physician considers one prohibited method of abortion to be preferable to permissible methods. Today’s majority and Justice O’Connor twist Roe and Casey to apply to the situation in which a woman desires–for whatever reason–an abortion and wishes to obtain the abortion by some particular method. See ante, at 11—12 (majority opinion); ante, at 1—2 (concurring opinion). In other words, the majority and Justice O’Connor fail to distinguish between cases in which health concerns require a woman to obtain an abortion and cases in which health concerns cause a woman who desires an abortion (for whatever reason) to prefer one method over another."

"Although Roe and Casey mandated a health exception for cases in which abortion is “necessary” for a woman’s health, the majority concludes that a procedure is “necessary” if it has any comparative health benefits. Ante, at 18. In other words, according to the majority, so long as a doctor can point to support in the profession for his (or the woman’s) preferred procedure, it is “necessary” and the physician is entitled to perform it. Id. See also ante, at 2 (Ginsburg, J., concurring) (arguing that a State cannot constitutionally “sto[p] a woman from choosing the procedure her doctor ‘reasonably believes’ ” is in her best interest). But such a health exception requirement eviscerates Casey’s undue burden standard and imposes unfettered abortion-on-demand. The exception entirely swallows the rule. In effect, no regulation of abortion procedures is permitted because there will always be some support for a procedure and there will always be some doctors who conclude that the procedure is preferable. If Nebraska reenacts its partial birth abortion ban with a health exception, the State will not be able to prevent physicians like Dr. Carhart from using partial birth abortion as a routine abortion procedure. This Court has now expressed its own conclusion that there is “highly plausible” support for the view that partial birth abortion is safer, which, in the majority’s view, means that the procedure is therefore “necessary.” Ante, at 18. Any doctor who wishes to perform such a procedure under the new statute will be able to do so with impunity. Therefore, Justice O’Connor’s assurance that the constitutional failings of Nebraska’s statute can be easily fixed, ante, at 5, is illusory. The majority’s insistence on a health exception is a fig leaf barely covering its hostility to any abortion regulation by the States–a hostility that Casey purported to reject."

"While I am in an I-told-you-so mood, I must recall my bemusement, in Casey, at the joint opinion’s expressed belief that Roe v. Wade had “call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution,” Casey, 505 U.S., at 867, and that the decision in Casey would ratify that happy truce. It seemed to me, quite to the contrary, that “Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since”; and that, “by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption, rather than of any Pax Roeana, that the Court’s new majority decrees.” Id., at 995—996. Today’s decision, that the Constitution of the United States prevents the prohibition of a horrible mode of abortion, will be greeted by a firestorm of criticism–as well it should. I cannot understand why those who acknowledge that, in the opening words of Justice O’Connor’s concurrence, “[t]he issue of abortion is one of the most contentious and controversial in contemporary American society,” ante, at 1, persist in the belief that this Court, armed with neither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it. If only for the sake of its own preservation, the Court should return this matter to the people–where the Constitution, by its silence on the subject, left it–and let them decide, State by State, whether this practice should be allowed. Casey must be overruled."

"Any discussion of the role of the judiciary in medical decision making in the twentieth century must begin with the abortion decisions: Roe v. Wade and Doe v. Bolton. One aspect of those decisions is relevant to my particular thesis. I quote a crucial sentence from Justice Blackmun’s decision in Wade: “For the stage, prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” Although we have come to know the abortion decision as freedom of choice versus right to life, we find Justice Blackmun writing not that the state must yield to the woman’s choice but to the physician’s “medical judgment.” A assure you this is not just a sentence taken out of context. Earlier in his opinion, Blackmun had written that the attending physician before extra-uterine viability is free to “determine . . . that, in his medical judgment, the patient’s pregnancy should be terminated.” The language of the decision throughout misleadingly suggests that some crucial sort of medical judgment is involved not only in how the abortion is performed but whether the pregnancy “should be terminated.”"

"As a psychiatrist, I am in the unusual position on insisting that we take the Justice’s words as their face value. Of course, the Chief Justice turned out to be completely wrong: the consequences predicted by the dissent were as accurate as any judicial prediction can be. As Justice White correctly interpreted the decision, “any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.” As Justice White predicted, abortion has become a routine alternative method of birth control. If we take Justice Blackmun’s and Burger’s words about medical judgment at face value, we can only assume that they were quite misled about the medical profession, its medical standards, and the medical judgments that were and would be applied to abortion. It was Blackmun and Burger who were out of touch with reality if they honestly believed that they wrote. My point is not that the abortion decisions were wrong or right as a matter of law or morality. My point is that to the extent these opinions involved factual inferences about medical standards and medical practice-inferences which suggested a context for the decision, inferences which suggested more limited consequences of the decision, inferences which suggested the realities of medical practice-to that extent the decision was quite misleading. I claim that such misleading statements about medical realities are not uncommon when judges make medical decisions. I also claim that the result of such misleading statements by judges is costly. The credibility of the courts is undermined in the eyes of the medical profession, and the credibility of the medical profession is undermined in the eyes of the public. The result is greater public distrust of both law and medicine. A loss of faith in both professions is the result of the vicious circle of counterproductive moves set in motion by these flawed decisions."

"In Wade, Blackmun ad used the phrase “attending physician” to describe the doctor who would make the abortion decision. This conjures up an earlier time when patients actually had a personal physician who attended them at bedside both at home and in the hospital, but is certainly an inapt phrase for describing doctors who perform abortion procedures in clinics. Typically the pregnant woman is greeter by a nurse, a social worker, or an abortion counselor. The “medical decision” is made with them. She meets the doctor typically only after she is "prepped and in the stirrups." The physician is more appropriately characterized as a technician in an assembly line than an attending physician. There are certainly exceptions to this practice, but the picture I describe will certainly be familiar to the vast majority of the participants in this example of "deliberated medical judgments related to life and health." Doctors, of course, still use the phrase "attending physician" but with a different meaning. As Victor Fuchs has written of contemporary medical practice, my heart can get a doctor, my liver can get a doctor, my head can get a doctor, but I cannot get a doctor.' The nostalgic image of the doctor-patient relationship is important in Bolton because there the Supreme Court had a great deal to say about the importance of the privacy of the doctor-patient relation- ship. The Court made this privacy seem as sacred to law as the privacy of the marriage bed. We shall see how much respect subsequent courts have had for the privacy of the doctor-patient relationship as cases were decided in the name of privacy."

"The U.S. Supreme Court looms large in the history of abortion in the United States, but state capitols from the 1800s to now have been the crucibles of America's evolving laws on a woman's right to end a pregnancy. The initial trendsetter was Massachusetts, which in the mid-1800s became the first state to outlaw abortion, an accepted practice in colonial times. Last year, South Dakota attempted to change history with a strict new ban on abortion geared to challenge the high court's 1973 Roe v. Wade ruling, which established constitutional protections for women seeking an abortion. While the makeup of the Supreme Court is the focus of much of today's political calculations about the future of abortion in America, the role of states would become pivotal if the landmark decision were overturned. Any substantial weakening of Roe v. Wade would trigger an epic battle between "pro-life" and "pro-choice" forces that would be fought in state capitols - and perhaps also in Congress."

"South Dakota's 2006 assault on Roe v. Wade marked a new twist after 33 years in which most states have concentrated on whittling away at the edges of the landmark ruling."

"After Roe v. Wade, states repeatedly tested its boundaries, passing laws that made it difficult for some women to have an abortion. Many state laws were struck down by federal courts, and some appeals made it to the high court. For example, a Missouri law requiring a married woman to get her husband's consent for an abortion was struck down in 1976. A Minnesota law requiring minors to notify both parents before obtaining an abortion was overturned in 1990, because it failed to provide exceptions when parents refuse to consent or cannot be contacted."

"Despite its conservative ruling in the partial-birth abortion case, a majority of the current Supreme Court remains likely to uphold Roe v. Wade . But if the court's makeup were to change and the abortion ruling were toppled, it would ignite a political firestorm in all 50 state capitols and in Congress. Because states historically have taken the lead on abortion and other social issues as prescribed in the U.S. Constitution, legal analysts expect Congress to remain in the wings as states forge new policies. Political analysts differ on how many states are likely to make abortion illegal if Roe v. Wade were overturned. Whether a state chooses to ban abortion will depend on what party controls the governor's mansion and the legislature, and on the social leanings of its citizens, if and when federal restrictions are lifted. But signs can be gleaned from states' recent records on the issue."

"2. The restrictions in §§ 188.210 and 188.215 of the Missouri statute on the use of public employees and facilities for the performance or assistance of nontherapeutic abortions do not contravene this Court's abortion decisions. The Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government may not deprive the individual. DeShaney v. Winnebago County Dept. of Social Services, 489 U. S. 189, 489 U. S. 196. Thus, in Maher v. Roe, supra; Poelker v. Doe, 432 U. S. 519; and Harris v. McRae, 448 U. S. 297, this Court upheld governmental regulations withholding public funds for nontherapeutic abortions but allowing payments for medical services related to childbirth, recognizing that a government's decision to favor childbirth over abortion through the allocation of public funds does not violate Roe v. Wade."

"Brennan was aware that he was unlikely to get agreement on such a sweeping extension. He circulated his opinion with a carefully worded paragraph at the end. “If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” That case dealt only with contraception-the decision to “beget a child. He included the reference to the decision to “bear” a child with the abortion cases in mind. Brennan hoped the language would help establish a constitutional basis, under the right to privacy, for a woman’s right to abortion. Since the last paragraph was not the basis for the decision, Stewart could join in without, renouncing his dissent in the 1965 case. Brenna got Stewart’s vote. But Blackmun was holding back. The chief was lobbying Blackmun not to join Brennan’s draft. Brennan’s clerks urged their boss to lobby Blackmun. Brennan refused. Blackmun reminded him, he said, of former justice Charles E. Whittaker, who had been paralyzed by indecisiveness. Whittaker’s indecision had ended in a nervous break-down and his resignation. Former justice Felix Frankfurter had misunderstood Whittaker’s indecision and had spent hours lobbying him. Instead on influencing him, Frankfurter had drawn Whittaker’s resentment. No, Brennan said, he would not lobby Blackmun. Blackmun finally decided not to join Brennan’s opinion, but simply to concur in the result. That worried Brennan. Without adopting some logic similar to that provided in the contraception case, Blackmun would have difficulty establishing a right to abortion on grounds of privacy."