Roe v. Wade

"NRLC disputes the assertion that a woman enjoys any right of privacy, as yet undefined in American law, which vests in her alone the absolute authority to terminate a pregnancy for any reason whatsoever. No precedents of this Court have gone so far."

"Family planning, including the contraceptive relationship, is a matter between a man and a woman alone. The abortion relationship, on the other hand, is between the parents and the unborn child...."

"If the appellants and their supporting amici are maintaining that a woman has a right to the integrity of her body sufficient to permit her alone to decide, for whatever reason, whether to terminate a pregnancy, the proposition cannot prevail. If a woman has sovereignty over her body of the degree suggested by the appellants, how could the States ban prostitution, outlaw suicide or prohibit the use of harmful drugs?"

"NRLC sees no point in belaboring the scientifically obvious. Life begins at conception and for practical medical purposes can be scientifically verified within 14 days. Within three weeks, at a point much before “quickening” can be felt by the mother, the fetus manifests a working heart, a nerve system, and a brain different from and independent of the mother in whose womb he resides; the unborn fetus is now a living human being. It is universally agreed that life has begun by the time the mother realizes she is pregnant and asks her doctor to perform an abortion."

"In each generation, a handful of Supreme Court decisions crystallize the problems and tensions in American constitutional theory and raise crucial questions about the proper role of the courts in interpreting the Constitution in a democracy. Brown v. Board of Education was such a case for the generation of the 1950s and 1960s. Roe v. Wade has proven to be the key case for the generation of scholars that came afterward. Brown and Roe differ in many respects, but perhaps the most important difference is the degree of public acceptance each has enjoyed. Like Roe v. Wade, Brown v. Board of Education was hotly contested in the first few years after it was decided. For a decade or more, the legitimacy of Brown was bitterly disputed in the South. However, ten years after the decision, Congress ratified the result in Brown in Title VI of the Civil Rights Act of 1964. The success of the Civil Rights Movement altered the racial attitudes of most Americans. In the years that followed, Brown was transformed from a flashpoint of controversy into a hallowed icon that symbolized Americans’ aspirations toward equality and human rights. In subsequent controversies over busing, affirmative action, and the expansion of civil rights to women and gays, people no longer disputed whether Brown v. Board of Education was correct. Rather, different groups of Americans, both liberal and conservative, attempted to seize the mantle of Brown for themselves, arguing that they were the true adherents of Brown and that their opponents were distorting its meaning for political ends. The political debate was framed within the parameters set by Brown, rather than as a debate over the legitimacy of Brown itself. The story of Roe v. wade would be very different. No Civil Rights Act of 1983 ratified the result in Roe ten years after the case was decided. The second wave of American feminism did change American attitudes about gender equality. But Roe v. Wade also energized conservative and religious social movements that were deeply hostile to the decision. These social movements became important features of contemporary politics and helped produce the American party system as we know it today."

"The past thirty years have witnessed a continuous battle over the legitimacy of Roe that has shaped not only the abortion right but also the composition of the federal courts, and American politics generally. Hence, this is also a book about the role of courts in defining and enforcing fundamental rights in a constitutional democracy and how the work of courts necessarily interacts with and is affected by the work of legislatures, political parties, and social movements."

"GENERAL PRELOGAR: Well, there are multiple reliance interests here, as I think Casey correctly recognized. Casey pointed to the individual reliance of women and their partners who had been able to organize their lives and make important life decisions against the backdrop of having control over this incredibly consequential decision whether to have a child. And people make decisions in reliance on having that kind of reproductive control, decisions about where to live, what relationships to enter into, what investments to make in their jobs and careers. And so I think, on a very individual level, there has been profound reliance. And it's certainly the case that not every woman in America has needed to exercise this right or has wanted to, but one in four American women have had an abortion, and for those women, the right secured by Roe and Casey has been critical in ensuring that they can control their bodies and control their lives."

"JUSTICE THOMAS: I understand we're talking about abortion here, but what is confusing is that we -- if we were talking about the Second Amendment, I know exactly what we're talking about. If we're talking about the Fourth Amendment, I know what we're talking about because it's written. It's there. What specifically is the right here that we're talking about?"

"MS. RIKELMAN: Because the view that a previous precedent is wrong, Your Honor, has never been enough for this Court to overrule, and it certainly shouldn't be enough here when there's 50 years of precedent. Instead, the Court has required something else, a special justification. And the state doesn't come forward with any special justification. It makes the same exact arguments the Court already considered and rejected in its stare decisis analysis in Casey."

"JUSTICE THOMAS: Back to my original question. If I were -- I know your interest here is in abortion, I understand that, but, if I were to ask you what constitutional right protects the right to abortion, is it privacy? Is it autonomy? What would it be?"

"MS. RIKELMAN: [I]f I may answer your earlier question about whether viability was squarely at issue in Casey, it clearly was, Your Honor. At pages 869 to 871, the Court squarely discussed viability because the government had made the argument that viability was arbitrary --"

"Justice Alito: But suppose we were considering that question now for the first time. I'm sure you know the arguments about the viability line as well as I do, probably better than I do. What would you say in defense of that line? What would you say to the argument that has been made many times by people who are pro-choice and pro-life that the line really doesn't make any sense, that it is, as Justice Blackmun himself described it, arbitrary? The -- the woman's -- if a woman wants to be free of the burdens of pregnancy, that interest does not disappear the moment the viability line is crossed. Isn't that right?"

"MS. RIKELMAN: Your Honor, it -- certainly, the arguments that the state has presented is what we're responding to there, which is that all of the state's arguments, including their alternatives, which are undue burden without viability, would be the equivalent of overruling Casey and Roe because the viability line is the central holding of those cases. Casey mentioned it no fewer than 19 times. And the Court in June Medical just a year ago affirmed that the viability line is the central holding of both Casey and Roe."

"JUSTICE BARRETT: So are you saying -- I mean, actually, as I read Roe and Casey, they don't talk very much about adoption. It's a passing reference that that means out of the obligations of parenthood. But, as I hear this answer then, are you saying that the right as you conceive of it is grounded primarily in the bearing of the child, in the carrying of a pregnancy, and not so much looking forward into the consequences on professional opportunities and work life and economic burdens?"

"MS. RIKELMAN: I would refer the Court to the brief of the economists in this case, Your Honor, and it compiles data showing studies based actually on causal inference, showing that it's the legalization of abortion and not other changes that have had these benefits for women in society, and, again, those benefits are clear for education, for the ability to pursue a profession, for the ability to have –"

"CHIEF JUSTICE ROBERTS: Are -- are you suggesting that the difference between 15 weeks and viability are going to have the same sort of impacts as you were talking about -- or as we were talking about in Roe?"

"Casey and Roe were correct. For a state to take control of a woman's body and demand that she go through pregnancy and childbirth with all the physical risks and life-altering consequences that brings is a fundamental deprivation of her liberty. Preserving a woman's right to make this decision until viability preserve -- protects her liberty while logically balancing the other interests at stake."

"Julie Rikelman: In Casey, this Court carefully examined and rejected every possible reason for overruling Roe, holding that a woman's right to end a pregnancy before viability was a rule of law and a component of liberty it could not renounce. The question then is not whether Roe should be overturned but whether Casey was egregiously wrong to adhere to Roe's central holding."

"JUSTICE KAGAN: I mean, it strikes me that people -- some people think those decisions made the right balance and some people thought they made the wrong balance, but, in the end, we are in the same exact place as we were then, except that we're not because there's been 50 years of water under the bridge, 50 years of decisions saying that this is part of our law, that this is part of the fabric of women's existence in this country, and that that places us in an entirely different situation than if you had come in 50 years ago and made the same arguments."

"JUSTICE KAGAN: I guess what strikes me when I look at this case is that, you know, not much has changed since Roe and Casey, that people think it's right or wrong based on the things that they have always thought it was right and wrong for."

"JUSTICE SOTOMAYOR: Counsel, there's so much that's not in the Constitution, including the fact that we have the last word. Marbury versus Madison. There is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means. It was totally novel at that time. And yet, what the Court did was reason from the structure of the Constitution that that's what was intended. And, here, in Casey and in Roe, the Court said there is inherent in our structure that there are certain personal decisions that belong to individuals and the states can't intrude on them. We've recognized them in terms of the religion parents will teach their children. We've recognized it in -- in their ability to educate at home if they choose. They just have to educate them. We have recognized that sense of privacy in people's choices about whether to use contraception or not. We've recognized it in their right to choose who they're going to marry. I fear none of those things are written in the Constitution. They have all, like Marbury versus Madison, been discerned from the structure of the Constitution."

"MR. STEWART: I don't think it was squarely at issue, Your Honor. Again, it's -- it's a little hard not to take the Court at its word when it emphasized that viability -- the -- that viability is -- is the central part of Roe -- Roe's holding and saying that it is reaffirming that, so we kind of take that as it -- as it stands. But the Court has not – it did not face a law like this certainly, Mr. Chief Justice."

"CHIEF JUSTICE ROBERTS: In fact, if I remember correctly, and I -- it's an unfortunate source, but it's there -- in his papers, Justice Blackmun said that the viability line was -- actually was dicta. And, presumably, he had some insight on the question."

"MR. STEWART: Casey gave one paragraph to the workability of Roe. It then adopted the undue burden standard, which is perhaps the most unworkable standard in American law. It gave about three paragraphs, if memory serves, to reliance, which doesn't account for the last 30 years and the changes that have occurred since Casey. It did -- it -- it gave a brief factual view to things that have changed since Roe. Those, of course, are not going to take account of the last 30 years of advancements in medicine, science, all of those things."

"MR. STEWART: On all the metrics that Casey was describing or the vast bulk of them, Casey fails. And I'd also emphasize this as well, Justice Breyer, that Casey was not -- was – was not a -- a great example of simply letting precedents stand. It -- it recast Roe's reasoning. It overruled two of the Court's most important abortion decisions. It jettisoned the trimester framework of Roe itself and adopted a new standard unknown to other parts of the law."

"MR. STEWART: I'm -- I'm sorry, Your Honor. What I'd emphasize, Your Honor, is that to the extent that -- that the -- I would not say it was the people that -- that called this Court to end the controversy. The people – you know, many, many people vocally really just wanted to have the matter returned to them so that they could decide it -- decide it locally, deal with it the way they thought best and at least have a fighting chance to have their view prevail, which was not given to them under Roe and then, as a result, under Casey."

"JUSTICE BREYER: I assume you've read Casey pretty thoroughly."

"JUSTICE THOMAS: General Stewart, you focus on the right to abortion, but our jurisprudence seems to -- seem to focus on, in Casey, autonomy; in Roe, privacy. Does it make a difference that we focus on privacy or autonomy or more specifically on abortion?"

"MR. STEWART: Mr. Chief Justice, and may it please the Court: Roe versus Wade and Planned Parenthood versus Casey haunt our country. They have no basis in the Constitution. They have no home in our history or traditions. They've damaged the democratic process. They've poisoned the law. They've choked off compromise. For 50 years, they've kept this Court at the center of a political battle that it can never resolve. And 50 years on, they stand alone. Nowhere else does this Court recognize a right to end a human life."

"In the view of influential feminist legal scholars, Roe v. Wade weakened the ability of both movements to campaign effectively for the rights of the poor and women of color for whom Jackson spoke. Scholars and advocates such as Catherine MacKinnon, Rhonda Copelon, and Martha Minow have suggested that Roe’s privacy framework paved the way for laws and judicial decisions denying access to public facilities or funding for abortions, constraining “the emerging jurisprudence of privacy within a framework that produced inequalities.” Viewed in this way, Roe is supposed to have “undercut . . . arguments . . . for the rights of caretakers” and served “to siphon off deeper challenges to our scientistic, capitalist society.”"

"In their quieter moments, many liberal scholars recognize that the decision is a mess."

"In short, the Supreme Court’s analysis in Roe v. Wade of the development, purposes, and the understandings underlying the nineteenth century antiabortion statutes, was fundamentally erroneous. That analysis can provide no support whatsoever for the Court’s conclusions that the unborn children are not “persons” within the meaning of the fourteenth amendment, and that states do not otherwise have a “compelling interest” in protecting their lives by prohibiting abortion. A correct analysis of these statutes weighs entirely and heavily against these conclusions, to the extent that these conclusions depend on the purposes and understandings of the legislatures which proposed, ratified, and legislated in purported compliance with the fourteenth amendment. If the Supreme Court is to be faithful to the purposes and understandings of those who enacted and have implemented the fourteenth amendment, it must reevaluate and overrule its decision in “Roe”."

"In discussing early American law pertaining to abortion, the Supreme Court stated that “most of [the] initial statutes dealt severely with abortion after quickening but were lenient with it before quickening.” The Court also emphasized the fact that the Connecticut Legislature did not amend its 1821 antiabortion statute to proscribe pre-quickening abortions until 1860. These statements are quite misleading. At the end of 1868, twenty-seven of the thirty states with antiabortion statutes prohibited attempts to induce abortion “before” quickening."

"It thus appears that the mansion of constitutionalized abortion law, constructed overnight in Roe v. Wade, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be.")"

"To the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases."

"While rape was never an issue in the case, public opinion was considered swayed by the media accounts detailing what McCorvey claimed was a gang rape by three men and a woman while she worked for a circus in Georgia. 'I found out I was pregnant through what I thought was love,' McCorvey said in the interview with Carl Rowan. 'When I came back to Texas ... I went to my doctor. ... I told him I wanted an abortion, that I did not want to carry the child because of economic reasons. ... He told me that abortions were illegal in the state of Texas and that I would have to go to another state in order to obtain a legal abortion.' In the interview with the Washington CBS affiliate, McCorvey said, 'How dare them tell me that I couldn't abort a baby that I did not want ... and couldn't have control over my own body.' McCorvey said she had the baby and put it up for adoption, then told the rape story to the lawyers who took her case to the Supreme Court."

"Sarah Weddington, the Austin, Texas, lawyer who represented McCorvey, told United Press International Tuesday, 'The issue of how Jane Roe became pregnant is irrelevant to the case. There was nothing in any of the papers filed with the court or in any of the oral arguments made that related to the cause of the pregnancy. 'Rather, the case was about a young woman who was pregnant, who didn't want to be pregnant, and who had been denied an abortion because of the provisions of the Texas anti-abortion statute. All of these facts are true. No fact was ever presented to the court unless I was certain we could prove it,' she said."

"WASHINGTON -- The woman whose famous abortion case led to the Supreme Court's Roe vs. Wade decision said in an interview released Tuesday she lied when she told lawyers her unwanted pregnancy was the result of a gang rape. Norma McCorvey, the woman called 'Jane Roe' in the famous 1973 decision that said women had a constitutional right to an abortion, told WUSA-TV in an interview to be broadcast Sept. 13 that she fabricated the rape story to get around a Texas law that banned abortions except to save the mother's life."

"Today, we follow the principle announced by the Supreme Court nearly fifty years before the right to an abortion was found in the penumbras of the Constitution and hold that Mississippi may not shift its obligation to respect the established constitutional rights of its citizens to another state. Such a proposal would not only place an undue burden on the exercise of the constitutional right, but would also disregard a state’s obligation under the principle of federalism—applicable to all fifty states—to accept the burden of the non-delegable duty of protecting the established federal constitutional rights of its own citizens."

"Given that the Supreme Court long ago determined that the Constitution protects a woman’s right to choose an abortion, the ultimate issue in this appeal is whether the State of Mississippi can impose a regulation that effectively will close its only abortion clinic. The State of Mississippi, however, argues that Mississippi citizens can obtain an abortion in Tennessee, Louisiana, or Alabama without imposing an undue burden upon Mississippi citizens in the exercise of their constitutional rights."

"And in Roe v. Wade and Doe v. Bolton, when the Court had its most dramatic opportunity to express its supposed aversion to substantive due process, it carried that doctrine to lengths few observers had expected, imposing limits on permissible abortion legislation so severe that no abortion law in the United States remained valid."

"“One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”"

"Roe AND Rodriguez: THE CHALLENGE Last year in these pages, Gerald Gunther proposed a revitalized enforcement of the constitutional requirement that legislative means substantially further legislative ends. For the pragmatic reason that “due process carries a repulsive connotation of value-laden intervention for most of the Justices, of the Burger Court as well as the Warren Court,” Professor Gunther suggested that the inquiry could “best be carried forward under the banner of equal protection than due process . . . .” But in San Antonio Independent School District v. Rodriguez, its major opportunity this Term to scrutinize a means-end relationship."

"UNLIKE Yeats’ “rough beast, its hour come round at last,” substantive due process may yet enjoy an auspicious second coming. For the Supreme Court’s 1972 Term points the way toward a conception of substantive due process that may avoid the fate of that doctrine’s earlier incarnation in American constitutional law. This Foreword will venture a tentative exploration of the “widening gyre” implicit in several of the Court’s recent decisions."

""It's the legal equivalent of a nuclear bomb," NPR's Nina Totenberg, the dean of Supreme Court reporters, noted, adding that it's possible this ruling opens the door for the potential "for undoing other areas of personal autonomy," from contraception to interracial marriage."

"The Supreme Court came close to virtually overturning Roe v. Wade, according to papers of the late Justice Harry Blackmun being released today. NPR's Nina Totenberg was the only broadcast journalist granted advance access to 1,576 boxes of his files and 38 hours of oral history tapes. In the first of a series of reports, Totenberg examines shifts within the court that allowed the Roe ruling to be maintained. The Blackmun papers reveal that the court's first vote was to overrule Roe in all but name, Totenberg reports on Morning Edition. But as the issue came to a head, Chief Justice William Rehnquist and the court's three other anti-Roe justices were blindsided by three centrist justices who worked together in secret to preserve a woman's right to an abortion. The 1992 abortion case was Planned Parenthood v. Casey, in which the first Bush administration was pushing hard for the reversal of Roe, the landmark 1973 ruling authored by Blackmun. Justice Anthony Kennedy initially voted with the anti-Roe conservatives, giving them a majority of five, but he subsequently changed his vote to support, not eviscerate Roe, the Blackmun papers show. The switch came even as Rehnquist, was circulating a so-called majority opinion that would have left Roe a meaningless shell, Totenberg reports."

"Roe v. Wade was sort of conjured up out of very general phrases and was recorded, even by most liberal scholars like Archibald Cox at the time, John Harvey Link—just to name two Harvard scholars—as kind of made-up constitutional law."

"What led the Supreme Court in 1973 to legalize abortion during the first trimester of a pregnancy was the privacy doctrine articulated in Griswold v. Connecticut (1965) and its extension via the equal-protection clause in Eisenstadt v. Baird (1972). Griswold v. Connecticut (1965) was a birth control case in which contraceptive use was declared to be a privacy right inferred from various provisions of the Bill of Rights and the language of the Ninth Amendment, which reads: “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Neither privacy nor abortion is mentioned anywhere in the constitution or the Bill of Rights, so Justice Douglas in Griswold v. Connecticut (1965) resorted to finding “penumbras” and “emanations” from the First, Third, Fourth, Fifth, and Ninth Amendments. As he declared: [Prior] cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations form those guarantees that help give them life and substance. . . . various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”"

"The argument of this chapter is that there is a fundamental difference between what the U.S. Supreme Court did in its 1973 Roe v. Wade decision and what the Supreme Court of Canada subsequently did in its 1988 ruling in Morgentaler v. The Queen. In the United States the high court created a constitutional right to an abortion, thus barring any governmental regulation unless it could withstand the highest judicial standard of strict scrutiny (and few could), whereas in Canada the high court declared the existing statute unworkable and, furthermore, invited Parliament to rework that legislation. To say that today both countries have legalized abortion as an elective procedure is to miss the point. In the United states elective abortions during the first trimester have been constitutionalized as a right; in Canada elective abortions are legal only because Parliament thus far has refused to act. If Congress wanted to overturn Roe v. Wade, it would have to garner two-thirds votes in the House and Senate and then obtain the approval of three-fourths of the states for a constitutional amendment. Parliament, to reverse the effect of Morgentaler v. The Queen (1988), would need only to enact new legislation (which presumably also would be challenged in court). In other words, the legal status quo in Canada is the result of legislative default-the failure of Parliament to act in the affirmative."

"The Washington Post reports on an interesting new analysis by the National Campaign to Prevent Teen Pregnancy. The campaign, noting that U.S. teen birthrates fell 30% between 1991 and 2002, calculates that if those rates had instead remained constant, there would be some 406,000 additional children living below the federally defined poverty line and some 428,000 living in households with single mothers. Since 1991 was exactly 18 years after Roe v. Wade, we got to wondering if the Roe effect might have something to do with all this. The Roe effect would predict that the effect of a reduction in birthrates would be greatest in liberal states, where pregnant teenagers would be more likely to exercise their "right to privacy" and thus less likely to carry their babies to term. The campaign's numbers seem to bear this out."