Roe v. Wade

"Had Justice Blackmun applied the same criteria to the woman’s assertion of right under the Fourteenth Amendment that he applied to the claim of fetal personhood, Roe would have come out differently. Were constitutional text, precedent, and nineteenth century legislative practices (as well as anomalies forces into contemporary legislative practice) the measure of the claim, an attorney who claimed that the Constitution required abortion-on-demand would face Rule 11 sanctions. If the method of the day was to be originalism, then the unborn were sure winners. Blackmun applied no such criteria to the woman’s claim. H marshaled some cases-Skinner, Pierce, Griswold, Eisenstadt-but admitted that the abortion situation was “inherently different” due to the presence of the fetus-from all of them. Blackmun noted the distress caused by an unwanted pregnancy, but only after asserting that “this right of privacy * * * is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” The “distress” of abortion to the unborn was far greater, so much so that if recognized as a “person” with a right to life, the woman’s distress, by Justice Blackmun’s own account, would justify no abortion at all. Perhaps the only plausible interpretation of this part of Roe is that the woman’s distress caused, at least in part, the adverse treatment of the unborn. This is a tragically mistaken way to analyze the situation."

"This is the time to notice the weaknesses of Blackmun’s arguments, even without doubting the general validity of his (near) originalism. For example, what the constitution usually means by “person” is not dispositive of what it mean in each particular usage. Corporations are “persons” for some purposes but not for others. Context-especially the particular action, status, or adverse treatment which is the subject matter of a clause-is central to understanding what each clause means by “person.” “Person” can be and should be defined retail- not wholesale. It is obvious that much of the rhetorical force of Justice Blackmun’s listing of the various usages of “person” stems from the inapplicability of them to the unborn. His citations to the constitutional text proved way too much; almost all of his references not only applied “postnatally”, as he said, but way “postnatally”. His references to the qualification for elected office, extradition eligibility, emoluments, etc., apply only to adults."

"Justice Blackmun’s coherence arguments are severely undercut by his naïve assumption that “personhood” means no abortions at all. He noted some features of the law of homicide which would be anomalies if the unborn were truly persons. It is certainly the case that abortion has been distinguished as a particular form of homicide, punishable approximately as manslaughter, with the important caveat that women procuring abortions were rarely prosecuted at all. Abortion has not been a class of applications of murder prohibitions. What does all this show? Not nearly what the Roe Court thought it showed. Justice Blackmun examined the case for “fetal personhood” under the Fourteenth Amendment’s Due Process Clause. It says. “[N]or shall any state deprive any person of life, liberty, or property, without due process of law; !* * *.” He seems to have thought that a successful argument for fetal personhood would constitutionally prohibit all abortions. He said that if fetal personhood could be established, the case for abortion liberty “of course, collapses, for the fetus’s right to life is then guaranteed specifically by the Amendment.”"

"Has the arbitrariness of Roe v. Wade been overcome since 1973? No. Here the discussion must focus on the 1992 decision of the Court in “Planned Parenthood v. Casey”, which reaffirmed “the central holding” of Roe. In Casey we hear the Court (the “joint opinion” of Justices Kennedy, Souter, O’Connor) note the disagreement among us about the “profound moral and spiritual implications” of abortion. “[B]ut that cannot control our decision. Our obligation is to define the liberty of all, not mandate our own moral code.”"

"Were the matter not so deadly serious the Justices’ attempts to supply the principles rationale Roe lacked would be subject of sport. The Justices said that “liberty” includes the “right to define one’s own concept of existence, of meaning, or the universe.” Really? Does the law which prohibits killing have no point of view? Besides, how does this “mystery passage” tell us who counts as a person with such an expansive right? Elsewhere in Casey the Justices said that the right o bear children depends upon the right to abort. All of us, regardless of our views about abortion, exercise the same right, and thus all of us can and should support abortion rights. Except, of course, those who draw a principled distinction between killing and nurturing life. Much has been written of these feeble attempts to mask judicial arbitrariness, and I have written some of it. But, I submit, the real “rationale” of Casey is, simply, Roe itself and the passage of time. Casey: An “entre generation has come of age free * * * to make reproductive decisions,” including the decision to abort.” Roe was based on a constitutional analysis –[sic] which we cannot now repudiate.” Roe v. Wade was indeed “raw judicial power”. And so it should surprise no one that the reaffirmation in Casey, has not silenced its critics. Tomorrow’s march here in D.C. will evidence the Court’s failure to persuade. And the march will again be testimony to the decency and law abidingness of our people. They will wonder tomorrow about the Casey retreated into the status quo. Some of the people marching tomorrow will remember Brown v. Board of Education, the decision handed down in 1954. Some of them will know that John W. Davi, who represented the segregationist states, made more than one argument, but his most forceful one was this. Davis cited the Court to its own holding nearly sixty years before, in Plessy v. Ferguson, and to six succeeding cases which, David said, affirmed Plessy. “Separate but equal”, Davis said in so many words, may not be all that the law should be, but it was the Court’s word, and the fact was that an entire culture-the South and parts of the North-had grown up around segregation. Plessy should not now be repudiated. The difference between Davis’ argument and the argument of the Casey Court is approximately one generation. The moral truth prevailed in 1954. We should hope and pray that we do not wait another generation until the truth about the unborn is finally heard, and heeded, in our highest Court."

"Although Harry claimed to be unsure of his wife’s position on abortion, Dottie told one of his law clerks (a young male attorney who favored laissez-faire abortion) that she was doing everything she could to further the cause. “You and I are working on the same thing,” she told the law clerk. “Me at home and you at work.” To write his opinions, Harry retired to the Justices’ second-floor library, where he spent most of his waking hours in silent solitude, laboriously working at a long mahogany desk. Months passed, As the winter snows melted into spring and D.C.’s cherry blossoms burst into bloom. Harry remained squirreled away in the library. When at last in mid-May Harry showed a draft of his Roe opinion for the first time to one of his politically leftist law clerks, the clerk claimed to be “astonished” the draft was so crudely written and poorly organized. When he circulated the draft on May18, 1972, to the other justices, Harry’s more liberal colleagues on the bench-Justices William Douglas, William Brennan, and Thurgood Marshall-were disappointed, whereas conservative Justice Byron White strongly dissented. Why were Douglas and Marshall so disappointed? Catholic feminist Mary Meehan suggests one possible reason. Meehan reports, “Justices Douglas and Marshall had been lacking in sexual restraint-to put it mildly-well before the ‘60s, and the problems of both were aggravated at times by heavy drinking. Perhaps they realized that legal abortion could be extremely helpful to men-enabling them to escape paternity suits, years of child support, social embarrassment, and the wrath of betrayed wives. But none of this, of course, would be mentioned in the Court’s opinions.” Meehan reports that in 1961 Justice Douglas had also written to Population Bomb pamphleteer Hugh Moore, saying, “I have seen some of the literature… all of which I thought was excellent.” In any case, when harry failed to produce a competent pro-abortion draft of his opinions, he got flak from his colleagues. Having vowed to do his best “to arrive at something which would command a court,” Harry withdrew the draft, asking that all copies be returned to him. He planned to do more work on his opinions over the summer. In late July 1972, Harry flew to Rochester to immerse himself in research at the Mayo Clinic medical library. Meanwhile, his politically liberal, $15,000-a-year law clerk George Frampton Jr., age twenty-eight, volunteered to stay in Washington until early August to help research and draft the opinions. The two talked by phone almost daily."

"An early draft Henry wrote on the history of abortion in his small, cramped longhand reveals he was still struggling. Writing is difficult, and Harry wasn’t much of a writer. On the subject of abortion, Harry was finding it hard to think clearly. Young George, on the other hand, was an excellent writer. He’s graduated from Harvard Law School in 1969 (where he was managing editor of the Harvard Law Review), and he had at his fingertips an extraordinarily handy resource-a high persuasive book entitled “Abortion: The first authoritative and documented report on the laws and practices governing abortion in the U.S. and around the world, and how-for the sake of women everywhere-they can and must be reformed..” Yes, indeed. It was Larry Lader’s masterpiece of propaganda, the same book that had so greatly impressed Betty Friedan. Lader’s masterpiece of propaganda supplied much of the historic background Blackmun’s opinion had previously lacked. But more important Lader’s book provided a coherent form or template that tied together the many disconnected fragments of thought that had previously kept Blackmun’s abortion opinions from working. In all-new sections on the history of abortion written by George and dated August 10, 1972, Lader’s book suddenly appears in the footnotes for the first time."

"In a lengthy five-page, single-spaced letter, typed on legal-size paper, which he sent to Harry along with the draft, George made an unusual suggestion. He suggested that Harry consider circulating this new draft before it was cite-checked by a clerk. Cite-checking it detailed fact-checking to ensure that a judicial decision is sound. Why would a junior law clerk suggest circulating a draft that hadn’t been cite-checked? George was eager for Harry to circulate his draft before oral arguments were reheard in October-for three reasons: He wrote that circulating the revised draft before oral argument would “nail down [Blackmun’s] keeping the assignment,” “should influence questions and thinking at oral argument,” and “might well influence voting.” Though George stated he would not recommend delayed cite-checking “as standard operating procedure,” he thought that in this particular case the benefits strongly outweighed the disadvantages."

"We don’t know when or even if the history section in Blackmun’s abortion opinions was ever cite-checked. But we do know that if it happened, the fact-checking was faulty. For when Blackmun accepted Larry Lader, a mere magazine writer, as a reliable authority on history, philosophy, and theology, he became as a blind man following a blind guide. Despite his best efforts, Harry failed to see he had embraced a well-crafted verbal mirage, mistaking it for the truth. Let us be very clear about what happened here. The picture that emerges from Blackmun’s papers, available for public inspection at the U.S. Library of Congress, is that of a justice who, in the words of Pulitzer Prize-winning, pro-abortion historian David J. Garrow, “ceded far too much of his judicial authority to his clerks.” It is plain from an inspection of Blackmun’s papers that his clerks made “historically significant and perhaps decisive contributions to Roe and Doe”-a degree of involvement Garrow calls “indefensible.”"

"Lader set himself up as an authority on centuries of abortion legal history and also on two millennia of Catholic teachings about abortion-and Blackmun and his clerk fell for the ruse. In the final version of the Roe v. Wade decision, Lader’s masterpiece of propaganda is cited at least seven times, and Cyril Chestnut Means’ scholarly papers are cited another seven times. Cyril Means, you’ll recall from Chapter 4, was the NARAL attorney who falsified abortion legal history, fabricating his own version almost entirely out of whole cloth. Lader, of course, was just a clever wordsmith-certainly no expert on history. And yet as the late Notre Dame theologian father James Burtchaell observed, it is “clear in the record that Justice Blackmun was indebted for the innards of his argument to two of the major strategists of the abortion movement”-Means and Lader."

"In any case, Harry was deceived by Lader’s propaganda, six other black-robed men on the bench went along with the ruse and the tragic result was the U.S. Supreme Court’s most controversial decision since the Dred Scott v. Sandford decision denied personhood to black Americans in 1857."

"”The immediate academic response to Roe v. Wade,” observed New York Times pro-abortion reporter Linda Greenhouse, “ranged from tepid to withering.” The first critiques came from the left."

"Americans in general and lawmakers in particular have not considered fully the legal implications of a serious reformulation or wholesale destruction of Roe. If the day does come when such a decision is handed down, Americans, whether they commiserate or celebrate, will have to wake up the next morning and decided what to do. And one need look no further than our state legislatures, which in response to ‘’Webster’’ have enacted legislation strikingly similar to pre-Roe law, to realize the impact of such a Supreme Court ruling."

"The Supreme Court’s 1973 decisions in “Roe v. Wade” and “Doe v. Bolton” created a constitutional regime for abortion, fencing off, as a matter of constitutional law, much of the ground on which state abortion laws had tread for over one hundred years. These decisions affected state abortion legislation in two ways. First, while not prohibiting all criminal sanctions for abortion, they removed abortion, for all practical purposes, from the realm of criminal conduct. Second, while the Court ended the era of criminal abortion, it also left the door open for the states to promulgate regulations concerning abortion, ushering in a new era. “Roe’s” landmark holding declared that the fundamental constitutional right to privacy includes the right to have an abortion and that any state legislation limiting that right must be justified by a compelling state interest. In particular, the “Roe” Court found that Texas’s abortion statute, typical of the nineteenth-century criminal-abortion laws, violated that fundamental right. In “Doe”, the Court declared that Georgia’s statute, a typical 1960s “reformed” law patterned after the Model Penal Code, also violated the newly established constitutional right. As a result, the Court had rendered virtually every abortion statute passed since Connecticut started the enterprise in 1821 unconstitutional. For practical purposes, criminal abortion was dead. While states retained considerable regulatory leeway, abortion no longer could be branded a crime, at least for the first and probably also the second trimester of pregnancy. “Roe” also recognized, however, that states retained a compelling interest in the health of the mother after the first trimester. The Court further acknowledged a compelling state interest in fetal life as of the third trimester. States, then, were free to pass laws reasonably related to the furtherance of those interests. While states theoretically could have responded to the Court’s instructions by enacting new criminal laws barring “unhealthy’ abortions in the second trimester and all abortions after viability, for the most part they did not do so. The longstanding criminal-abortion statutes had been deemed unconstitutional because they flatly violated a fundamental right. The entire enterprise of criminalizing conduct related to abortion thus was called into question by the Supreme Court’s rulings To criminalize at certain stages of pregnancy the very conduct declared constitutionally protected at other stages of pregnancy would have challenged too directly the new understanding of abortion advanced by the Court. Instead, states wishing to limit the exercise of abortion rights launched a new enterprise, one which “Roe” explicitly invited: they restricted access to abortion by strictly regulating it rather than by branding it criminal."

"The Court, in the years following Roe, policed the constitutional abortion right by declaring which of these new state regulations exceeded the leeway granted in Roe and which did not Some regulations carried criminal penalties, but no state attempted to ban abortion altogether at any stage of pregnancy. Instead, states used regulations to construct obstacle courses that women had to navigate before they could exercise their constitutionally protected abortion right. The Court, however, declared that certain regulations impermissibly infringed on the constitutional right. It held that a state could not require spousal consent to abortion or prohibit a particular method of abortion in the first trimester. It refused to allow states to require hospitalization for all second-trimester abortions or to require that a woman listen to a “parade of horribles” about abortion before she obtained one. And the Court refused to allow states to require doctors to exercise a prescribed degree of care to save the fetus in postviability abortions and to require that two doctors be present during postviability abortions."

"Nonetheless, the Court did approve a variety of regulations governing the practice of abortion. It held that the states were free to define “viability” and to require recordkeeping and of abortions. The Court permitted Congress and the states to discriminate against abortion in the dispensation of medical funding to the poor by denying funding for abortions. The Court permitted states to require parental consent for abortions sought by minors so long as the minor had access to an alternative judicial consent procedure. Finally, the Court permitted states to require the presence of two doctors at third-trimester abortions except in emergency situations and to require the submission of a pathology report for all abortions. These cases all involved state attempts to burden, rather than to bar, the exercise of the constitutional abortion right. In every one of these cases, at least a plurality of the Court declared continue allegiance to the right established in “Roe”. One case, however, “Colautti v. Franklin”’, did squarely confront a criminal-abortion law. Pennsylvania’s Abortion Control Act included a provision that subjected a doctor to criminal liability for failing to use a statutorily prescribed abortion technique when the fetus was “viable” or when there was “sufficient reason to believe the fetus may be viable.” The Court found two constitutional faults in this statute, both particular to the criminal law. First, the vagueness of the viability definition was found to condition “criminal liability on confusing and ambiguous criteria. It therefore present serious problems of notice, discriminatory application, and chilling effect on the exercise of constitutional rights.” Second, the statute subjected the doctor to “criminal liability without regard to fault,” thereby compounding the vagueness of the viability definition. The Colautti Court laced its opinion with references to the “Roe” abortion right and “Roe’s” deference to the role of the physician. But the Curt disposed of the case on criminal-law grounds. “Colautti” indicated that criminal sanctions did not fit comfortably, if at all, into the Court’s regime of permissible state regulation of abortion."

"Given the Court’s recent abortion decisions, adherence to “Roe” as the keystone of abortion jurisprudence appears impossible. For the Court to draw some as yet undefined and more circumscribed boundary around a surviving constitutional abortion right, thereby leaving the states free to regulate expansively on abortion, seems improbable at a time when some of the Justices increasingly disavow the construction of complicated, quasilegislative constitutional schemes such as the one established in “Roe” itself. The return of criminal abortion is a distinct probability. More pointedly, the states themselves have begun to act as if its return is inevitable."

"Following the Roe decision, several states enacted legislation imposing restrictions on a woman's right to an abortion, many of which were subsequently found to be unconstitutional under Roe. Among these unconstitutional restrictions were mandatory pre-abortion counseling, spousal and parental notification and consent requirements, and abortion clinic licensing limitations. In the 1989 decision of Webster v. Reproductive Health Services, however, a new majority of the Court signaled their willingness to uphold abortion restrictions. Three Justices expressed a desire to significantly modify and narrow Roe. One Justice called for an outright overruling of Roe. During the aftermath of the Webster decision, several states passed new legislation to protect the life of the unborn fetus and limit the right to an abortion."

"In Casey, the Supreme Court issued an elaborately splintered decision in which the joint opinion, written by Justice O'Connor and joined by Justices Kennedy and Souter, announced the judgment and opinion of the Court. The Casey joint opinion effected three principal changes to Supreme Court abortion jurisprudence: it reaffirmed "the essential holding of Roe v. Wade,"' struck down the Roe trimester framework, and replaced it with a new undue burden standard."

"In reaffirming the essential holding of Roe, the joint opinion specifically upheld what Justice O'Connor described as its "three parts": one, the right of a woman to choose and obtain an abortion before viability without undue interference from the state; two, the state power to restrict abortions after fetal viability, as long as exceptions to protect a woman's life or health are provided; and three, the state interests in protecting the health of the woman and the life of the fetus.2 By discussing the essential holding of Roe as a combination of rights and interests, the joint opinion effectively laid the groundwork for moving abortion jurisprudence away from a discussion of fundamental rights and strict scrutiny, and instead toward a balancing of interests typical of rational basis review."

"The National Right to Life Committee is a non-sectarian, interdisciplinary organization that is committed to informing and educating the general public on questions related to the sanctity of human life. Protecting the right to life of the unborn child is of central concern for NRLC. The Committee believes that proposals for total repeal or relaxation of present abortion laws represent a regressive approach to serious human problems. NRLC is in favor of a legal system that protects the life of the unborn child, while recognizing the dignity of the child’s mother, the rights of its father, and the responsibility of society to provide support and assistance to both the mother and child...."

"It is respectfully submitted that the unborn is a "person" within the meaning of the 5th and 14th Amendments. Consequently, the unborn's life can be taken only with due process of law, and its life is entitled, like all other persons’ lives, to equal protection under the law."

"[O]ne must recognize that the performance of legally induced abortion upon healthy women is not the practice of medicine at all, but rather another example of the violence of our times; the use of one more technological skill to destroy human life...."

"The obstetrician has two patients: mother and child. It is deplorable to think that discussions of mortality can so easily exclude the child. The court should recognize that the mortality to the child is nearly 100%. Only an occasional child has the strength to survive. Let us not forget that abortion kills children of varying ages and stages in development. The unheard voices of these little ones are our concern, and we deplore this violent trend which is turning the healing art of medicine into a source of efficient swift and sure destruction of human life. A trend which will yield a "body count" unlike any we have seen in our nation’s history. We deplore the condition of a society which calls physicians to exercise their art as a tool of death for those yet unborn...."

"The medical hazards of legally induced abortion are all too often compared to the safety of a tonsillectomy or the “proverbial tooth extraction.” (See Texas Appellant’s brief.) Data presented from Eastern European mortality statistics have often been used to produce such claims as "it is X-times safer to have an abortion than to carry the child to term." These claims have been widely published in newspapers and lay periodicals; when made by the non-professional, they are forgivable; when made by "medical experts," one can only assume that these "experts" have allowed a desire for "social change" to fog their ability to distinguish first-rate from second- rate medical care. The world’s medical literature does not support such claims. The medical hazards of legal abortion should be presented to the Court in their total perspective through an analysis of this literature. It is imperative to note that when one focuses only on the legal abortion mortality rates from selected countries around the world, one can only see the risks of legal abortion through tunnel vision. The total medical picture cannot be understood without a look at the early and late physical and psychological complications. Indeed, these are the complications which affect the greater number of people and result in what a World Health Organization scientific group said was "a great amount of human suffering.""

"An expansion of the right to privacy to include the right of a woman to have an abortion without considering the interests of the unborn person decides this question against the unborn. The necessary consequence of that expansion would be a direct and unavoidable conflict between the unborn person’s right to life and the woman’s extended right of privacy. Assuming such a conflict, it is the position of the amici that the more fundamental and established of the conflicting rights must prevail where they clash. The right to life is most certainly the most fundamental and established of the rights involved in the cases facing the Court today."

"Today, this country’s population has moved far beyond its needed growth, and current government policy is to encourage population control. Anti-abortion laws have outlived their purpose if regarded in historical perspective. Rights of the individual pregnant woman can no longer be ignored. The Thirteenth Amendment’s promise of freedom has long provided to male citizens the sovereign control of their own bodies."

"....A state cannot seriously contend today that restrictions on abortion are justified by an overriding state interest in increasing population. See Ehrlich, The Population Bomb, 1968. On the contrary, it is accepted government policy to limit family size and to encourage family planning. Such state interest is expressed in Population and the American Future, The Report of the President’s Commission on Population Growth and the Future (March, 1972) p. 192: Recognizing that our population cannot grow indefinitely, and appreciating the advantage of moving now toward the stabilization of population, the Commission recommends that the nation welcome and plan for a stabilized population."

"Abortion laws alone compel the contribution of one individual’s organs, blood, breath and life support system for another individual, either fully or partially formed.... If the pregnant woman, as potential donor, and the fetus, as potential donee, come before the law as equal “persons,” one may not command involuntary servitude of the other; and so the potential donor retains her sovereignty over her body and her right to refuse. Therefore, it follows that the fetus, a potential person, can have no greater right over a potential donor. Unless the state has some other compelling interest in forcing the donation of the pregnant woman’s body to the service of the fetus, the state must stand aside in the abortion conflict; it cannot legitimately intervene in preventing the pregnant woman from withholding her life force from the fetus...."

"Let us assume, for the time being, that the pregnant woman and the fetus she carries within her body have come before the law as equal “persons.” The woman desires an abortion. May the state legitimately intervene to prevent the abortion? At the present stage of medical knowledge and ability to control human incubation, the fetus cannot survive and develop into a separate self-sustaining person without contribution of the bodily force of the single female individual who carries that particular fetus within her body. Yet the laws prohibiting and regulating abortion, unlike all other laws in respect of persons, compel this pregnant woman to breathe, process food and donate blood for the sustenance of another human entity, either fully or partially developed. In no other instance does the law compel one individual to donate his/her bodily force to another individual. In no other instance does the law give another human—even a fully developed human—a right to life beyond that which the person himself can sustain."

"The women who bear children and the medical experts who assist them testify that pregnancy and childbearing are indeed labor. The fact that many women enter into such labor voluntarily and joyfully does not alter the fact that other women, under other circumstances, find childbearing too arduous, become pregnant through no choice of their own, and are then forced to complete the pregnancy to term by compulsion of state laws prohibiting voluntary abortion. It is the purpose of the Thirteenth Amendment to prohibit a relationship in which one person or entity limits the freedom of another person. In the absence of a compelling state interest or due conviction for a crime, the state’s forcing the pregnant woman through unwanted pregnancy to full term is a denial of her Thirteenth Amendment right to be free from “a condition of enforced compulsory service of one to another.” This is the very essence of involuntary servitude in which the personal service of one person is “disposed of or coerced for another’s benefit.”"

"A wife has no legal power to refuse to participate in the intimacies of married life. If she refuses her husband’s forced attentions, there is no law to intervene in her behalf. She cannot charge her husband with rape. Indeed, if a married woman attempts to practice abstinence, the laws of most states treat her behavior as a denial of the marital right of the husband.... Under present law, a married woman has two choices: she can attempt to refuse to fulfill the sexual obligations of the marriage and thus risk termination of her marriage; or she can participate in normal marital relations and risk unwanted pregnancy and childbirth. With a choice of either alternative, she risks the consequence of a legally imposed penalty. The woman is left with no non-punishable course of action."

"The average married woman expects to bear two to three children, yet coitus takes place between a couple married during the period of the woman’s reproductive years (age 18 to 43) an average of 2,535 times. The frequency of coitus stated in the Kinsey Report is average behavior between married couples. If the woman wishes to remain free of pregnancy once her desired family size is reached, her only sure method of remaining so free of pregnancy is complete abstinence from sexual intercourse. If she embarks on such a course, will the law uphold her decision?"

"Contraceptives are never foolproof. Any act of intercourse between a fertile man and woman constitutes some risk of conception, no matter what contraceptives are used.... If 100,000 women who do not wish to become pregnant take the pill, three will probably die within the year and 1,000 will become pregnant. Under the present state of contraceptive failure, a woman does not have the option of remaining free of pregnancy by making careful use of contraceptives. She is at some risk in using the most effective methods of contraception available."

"During pregnancy estrogen levels exhibit severe increase, this phenomenon accounting for the symptoms of nausea and vomiting occurring in one-half or more of all pregnant women. If this condition is prolonged, hospitalization is required. Evacuation of the contents of the uterus results in immediate and dramatic relief of symptoms. In severe cases blood protein may be destroyed. Bodies of women who have died from this condition exhibit the symptoms of starvation, acidosis, dehydration and multiple vitamin deficiencies. The excess progesterone produced by the placenta causes fluid retention, increase in blood pressure, weight gain, irritability, lassitude, severe emotional tension, nervousness, inability to concentrate, and inability to sleep. At least 40 per cent of pregnant women have symptomatic edema, distorting the hands, face, ankles and feet. A woman’s lungs respire 45 per cent more air than normal in an attempt to obtain the needed oxygen, but oxygen absorbed is less than normal despite the extra effort of the crowded lungs. Because the conceptus utilizes almost twice as much calcium as the pregnant woman can assimilate from administered and dietary calcium, extra calcium must be drawn from a woman’s calcium stores, mostly from her long bones. Thus, the pregnant woman is likely to suffer leg cramps. In young women, permanent bone deformation results. Total loss of a woman’s iron stores during pregnancy and delivery is measured at 680 mg. Thus anemia of pregnancy is high and almost all pregnant women, especially those having repeated pregnancies, require supplementary iron. Efforts to correct this condition may fail because many pregnant women cannot tolerate iron supplements. With such extensive effects, can pregnancy be considered as merely a “natural” state of being?"

"During pregnancy, enlargement of the uterus within the abdominal cavity displaces and compresses the other abdominal contents including the heart, lungs and gastrointestinal tract. The resulting pressure has a direct effect on circulation of the blood and increase in venous pressure, sometimes leading to irreversible varicose veins and hemorrhoids and, with predictable frequency, to disabling thrombophlebitis. The gastrointestinal tract experiences functional interference causing constipation and displacement of the urinary tract, thus urinary tract infections occur in six to seven per cent of all pregnant women and such infections, in turn, lead to kidney infections. During the second and third months, bladder irritability is quite constant. Tearing and overstretching of the muscles of the pelvic floor occurs frequently during delivery, causing extensive and irreparable damage to the pelvic organs and their supporting connections. Surgery is often required to return these organs to position. Bladder control may be permanently lost. The weight of the contents of the uterus causes sacroiliac strain accompanied by pain and backache, with the effects of the pressure being felt as far as the outermost extremities of the woman’s body. The weight causes such pressure on the cervical spine as to result in numbness, tingling and proprioceptive acuity reduction in the hands."

"Pregnancy is not a mere inconvenience. “The physical and functional alterations of pregnancy involve all the body systems,” displacing body parts, depleting the body of its necessary elements and changing its chemical balance. The pregnant woman’s body is in a state of constant service, providing warmth, nutrients, oxygen and waste disposal for the support of the conceptus. These activities are always to the detriment of the woman’s body. They are performed for the benefit of the conceptus alone unless an interest of the pregnant woman is also served thereby, that is, unless the pregnant woman defines the pregnancy as wanted."

"From the outset, the Amendment has been interpreted by this Court to apply to all persons without regard to race or class, and to guarantee universal freedom in the United States.... It is the purpose of this brief to show that anti-abortion laws, which force an unwillingly pregnant woman to continue pregnancy to term, are a form of involuntary servitude without the justification of serving any current national or public need."

"Each of the organizations and individuals urges upon the Court the position that laws restricting or regulating abortion as a special procedure violate the Thirteenth Amendment by imposing involuntary servitude without due conviction for a crime and without the justification of serving any current national or public need...."

"Discrimination in employment on account of age is now forbidden by federal law which enunciates a strong public policy. And while age may be a reasonable criterion for determining the right to vote or to drive a car, it can hardly be contended that it is a reasonable basis for determining whether one has a right to continue living. The child in the womb should have the same right as his older brother or sister not to be killed where it is unnecessary to save the life of his mother. Nor should the fact that he temporarily reposes in his mother’s womb rather than in an incubator or a crib operate to deprive the child of the right to continue living...."

"The right to live is more basic even than the right to procreate. And there is “no redemption” for the aborted child in the womb. The abortion is to his “irreparable injury” and by it he “is forever deprived of a basic liberty.” Any law which interferes with the right to live must therefore be carefully scrutinized. It is appropriate to apply here the principles which govern the application of the Equal Protection Clause to another basic right—the right to be free from racial discrimination.... There is no sufficient necessity which justifies a law which permits the killing of the child in the womb where it is not necessary to save the life of his mother. We are not concerned in this appeal with the question of whether a state law can constitutionally allow abortion where it is necessary to save the life of the mother. Rather the issue is whether the constitution permits the child in the womb to be killed where it is not necessary to save the life of his mother. To permit the child in the womb to be killed in such a case improperly discriminates against him on account of his age and situation. For the law does not allow a born child or an adult to be killed at the discretion of another or in any other situation where his killing is not necessary to save the life of another."

"IF THE LAW WERE TO ALLOW THE CHILD IN THE WOMB TO BE KILLED WHERE IT IS NOT NECESSARY TO SAVE THE LIFE OF HIS MOTHER, IT WOULD MAKE HIM THE VICTIM OF AN UNREASONABLE CLASSIFICATION AND AN INVIDIOUS DISCRIMINATION IN VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT."

"Suffice it to say that the child in the womb satisfies the three criteria for personhood he is human, he lives and he has his being—enunciated in Levy v. Louisiana. He is clearly alive and in being. As the living offspring of human parents, he can be nothing else but human. As a living human being he is therefore a person within the meaning of the Equal Protection Clause. Even if one somehow does not concede that the child in the womb is a living human being, one ought at least to give him the benefit of the doubt. Our law does not permit the execution, or imprisonment under sentence, of a criminal unless his guilt of the crime charged is proven beyond a reasonable doubt. The innocent child in the womb is entitled to have us resolve in his favor any doubts we may feel as to his living humanity and his personhood."

"The character of the child in the womb as a person is clearly recognized in the law of torts.... It is significant that a majority of courts, keeping pace with advancing scientific knowledge, now hold that even a stillborn child may maintain a wrongful death action where his death was caused by a prenatal injury. A similar trend can be seen in the law of property.... The law of property has long recognized the rights of the child in the womb for purposes which affect the property rights of that child.... For purposes of equity, too, the law has recognized the existence of the child in the womb. An unborn child, for example, can compel his father to provide him support. He can compel his mother to undergo a blood transfusion for his benefit, even where such transfusion is forbidden by the mother’s religious beliefs..."

"In Levy v. Louisiana (1968), the Court said: “We start from the premise that illegitimate children are not ‘nonpersons.’ They are humans, live, and have their being. They are clearly ‘persons’ within the meaning of the Equal Protection Clause of the Fourteenth Amendment.” The child in the womb meets these criteria of personhood under the Equal Protection Clause. He is human, he lives and he has his being. That is, he is a living human being. As the highest court of New Jersey summarized the state of scientific knowledge, “Medical authorities have long recognized that a child is in existence from the moment of conception.” Smith v. Brennan (N.J. 1960)."

"The abortion laws invade the fundamental individual liberty reserved by the Constitution to conduct one’s personal life without unwarranted governmental interference, and the laws’ infringement of that liberty is not warranted by any overriding valid state interest."

"In Griswold v. Connecticut, the Court held that the right of privacy, whether drawn from the penumbras of the First, Third, Fourth, Fifth, Ninth and Fourteenth Amendments, or protected by the Due Process Clause of the Fourteenth Amendment, protects the free exercise of one’s views (whether of religious or secular origin) on birth control. State laws such as the abortion laws at issue cannot be justified on the ground that they comport with one group’s “moral” condemnation of the exercise of the guaranteed freedom by others."

"The real basis of the claim of state interest in the foetus is a doctrinaire “moral” concern for the “potential of independent human existence.” The theoretical moral concern is effected only by permitting a greater moral outrage: the deep human suffering of adults and children alike, that results from compelling one to continue an unwanted pregnancy, to give birth to an unwanted child, and to assume the burdens of unwanted parenthood. To many minds the “moral” concern for the foetus is misplaced. Reflective judges, scholars and commentators have perceived and deplored the fact that religious beliefs underlie the retention of abortion laws.... No argument is needed to show that the police power cannot be employed in the service of sectarian moral views without violating the Establishment Clause of the First Amendment...."

"The brief of the Amici stresses that the States may not unreasonably interfere with the constitutional right of an individual to determine the course of his or her own life and that the Georgia and Texas abortion laws constitute such an interference. The Amici present related issues that Appellants have not discussed in their Jurisdictional Statements—namely that there is no constitutional right of birth and that the States may not justify the abortion laws’ interference with the personal liberty of all persons on the ground of moral precepts not shared by all. The Georgia and Texas abortion laws unjustifiably restrict the reserved constitutional liberty of all persons to conduct their private lives without unwarranted governmental interference. The religious view that the product of every conception is sacred may not validly be urged by the States as a justification for limiting the exercise of constitutional liberties, for that would be an establishment of religion."

"The Amici do not advocate abortion. They do advocate the right of an individual to be free from State interference in the conduct of his or her private life. That freedom includes the determination whether or not to have a child."