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

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

"During the years before January 22, 1973, the day on which the Supreme Court decided Roe v. Wade and proclaimed that the Constitution protected a woman’s right to decide whether to bring a pregnancy to term, Americans conducted a vigorous debate about abortion’s morality and meaning. It is obvious today that the Supreme Court’s decision did not end this debate. Neither, of course, did the Court start it—although public discussion of Roe v. Wade implies not infrequently that it did."

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

"The Supreme Court’s 1973 decision in Roe v. Wade legalizing abortion nationwide potentially fits the criteria for explaining a large, abrupt, and continuing decrease in crime. The sheer magnitude of the number of abortions performed satisfies the first criterion that any shock underlying the recent drop in crime must be substantial. Seven years after Roe v. Wade, over 1.6 million abortions were being performed annually—almost one abortion for every two live births. Moreover, the legalization of abortion in five states in 1970, and then for the nation as a whole in 1973, were abrupt legal developments that might plausibly have a similarly abrupt influence 15–20 years later when the cohorts born in the wake of liberalized abortion would start reaching their high-crime years. Finally, any influence of a change in abortion would impact crime cumulatively as successive affected cohorts entered into their high-crime late adolescent years, providing a reason why crime has continued to fall year after year."

"A number of anecdotal empirical facts support the existenc and magnitude of the crime-reducing impact of abortion. First, we see a broad consistency with the timing of legalization of abortion and the subsequent drop in crime. For example, the peak ages for violent crime are roughly 18 –24, and crime starts turning down around 1992, roughly the time at which the first cohort born following Roe v. Wade would hit its criminal prime."

"For example, Paulsen [1989, pp. 49, 76 –77] considers legalized abortion to be worse than slavery (since it involves death) and the Holocaust (since the 34 million post-Roe abortions are numerically greater than the six million Jews killed in Europe). Despite these claims, the Supreme Court has ruled that women have a fundamental constitutional right of privacy to abort an early-term fetus and that the state cannot unduly burden this right."

"The available data suggest that the number of abortions increased dramatically following legalization, although there is little direct evidence on the number of illegal abortions performed in the 1960s. As Figure I illustrates, the total number of documented abortions rose sharply in the wake of Roe, from under 750,000 in 1973 (when live births totaled 3.1 million) to over 1.6 million in 1980 (when live births totaled 3.6 million). If illegal abortions were already being performed in equivalent numbers, one would not expect a seven-year lag in reaching a steady state. Moreover, the costs of an abortion—financial and otherwise— dropped considerably after legalization. Kaplan [1988, p. 164] notes that “an illegal abortion before Roe v. Wade cost $400 to $500, while today, thirteen years after the decision, the now legal procedure can be procured for as little as $80.” The costs of finding and traveling to an illegal abortionist and any attendant cost of engaging in illegal and therefore riskier and socially disapproved conduct were also reduced by legalization."

"Perhaps the most convincing evidence that legalization increased abortion comes from Michael [1999], who finds abortion rates to be roughly an order of magnitude higher after legalization using self-reported data on pregnancy outcome histories."

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

"This decline is broadly consistent with survey responses by mothers in 1973 who report that approximately 13 percent of lifetime births were unwanted [Statistical Abstract of the United States 1980, p. 65, table 99]. Note, however, that the decline in births is far less than the number of abortions, suggesting that the number of conceptions increased substantially—an example of insurance leading to moral hazard. The insurance that abortion provides against unwanted pregnancy induces more sexual conduct or diminished protections against pregnancy in a way that substantially increases the number of pregnancies. Another possible explanation for the gap between abortion rates and fertility rate changes is that illegal abortion was already suppressing the birth rate by 15–20 percent and legalization reduced it another 5–10 percent, but this would imply a higher figure for the number of illegal abortions than we think is likely, as discussed above."

"Prior to the legalization of abortion, there was a very strong link between the number of unwanted births and low maternal education over the period from 1965 through 1970 [Commission on Population Growth and the American Future 1972, p. 98]. Levine et al. [1996] found that the drop in births associated with abortion legalization was not uniform across all groups. They estimated that the drop in births was roughly twice as great for teenage and nonwhite mothers as it was for the nonteen, white population.12 In the years immediately following Roe v. Wade, data from the Centers for Disease Control [1994] indicate that almost one-third of abortions were performed on teenagers. Angrist and Evans [1996] found that while abortion reforms had relatively modest effects on the fertility of white women, “black women who were exposed to abortion reforms experienced large reductions in teen fertility and teen out-of-wedlock fertility.”"

"The timing of the break in the national crime rate is consistent with a legalized abortion story. In 1991 the first cohort affected by Roe v. Wade would have been roughly seventeen years old, just beginning to enter the highest crime adolescent years. In the early-legalizing states (in which slightly more than 20 percent of all Americans reside), the first cohort affected by legalized abortion would have been twenty years of age, roughly the peak of the age-crime profile [Blumstein et al. 1986; Cook and Laub 1998]."

"Actual national abortion rates in the years immediately after Roe v. Wade were roughly 300 abortions per 1000 live births, but with considerable variation across states. For example, over the period from 1973–1976, West Virginia had the lowest abortion rate (10 per 1000 live births), while New York (763) and Washington, D.C. (1793) had the highest rates. There is a great deal of variation in crimes per 1000 residents, both across states and within states over time. The same is true for arrest rates."

"Roughly half of the crimes committed in the United States are done by individuals born prior to the legalization of abortion. As these older cohorts age out of criminality and are replaced by younger offenders born after abortion became legal, we would predict that crime rates will continue to fall. When a steady state is reached roughly twenty years from now, the impact of abortion will be roughly twice as great as the impact felt so far. Our results suggest that all else equal, legalized abortion will account for persistent declines of 1 percent a year in crime over the next two decades. To the extent that the Hyde Amendment effectively restricted access to abortion, however, this prediction might be overly optimistic. While falling crime rates are no doubt a positive development, our drawing a link between falling crime and legalized abortion should not be misinterpreted as either an endorsement of abortion or a call for intervention by the state in the fertility decisions of women. Furthermore, equivalent reductions in crime could in principle be obtained through alternatives for abortion, such as more effective birth control, or providing better environments for those children at greatest risk for future crime."

"On March 9, 2006 The National Center For Men will file suit in a United States district court in Michigan on behalf of a man's right to make reproductive choice, to decline fatherhood in the event of an unintended pregnancy. We will call our lawsuit Roe vs. Wade for Men. TM More than three decades ago Roe vs. Wade gave women control of their reproductive lives but nothing in the law changed for men. Women can now have sexual intimacy without sacrificing reproductive choice. Women now have the freedom and security to enjoy lovemaking without the fear of forced procreation. Women now have control of their lives after an unplanned conception. But men are routinely forced to give up control, forced to be financially responsible for choices only women are permitted to make, forced to relinquish reproductive choice as the price of intimacy. We will ask a United States district court judge to apply the principles of reproductive choice, as articulated in Roe vs. Wade, to men. We will ask that men be granted equal protection of the laws which safeguard the right of women to make family planning decisions after sex. We will argue that, at a time of reproductive freedom for women, fatherhood must be more than a matter of DNA: A man must choose to be a father in the same way that a woman chooses to be a mother. We will ask that women be required to share reproductive freedom with men."

"Immediately upon the filing of Roe vs. Wade for Men, The National Center For Men will begin distribution of its Reproductive Rights Affidavit, intended to be filed in court by a man and designed to give men legal rights in matters of procreation. We think it will encourage men and women to make family planning decisions together, as equal partners, by giving a man a voice but without interfering with a woman’s right to choose. It reads, in part: “I will not recognize the moral authority of a court to strip me of my constitutional right to reproductive choice. I will challenge any court order that seeks to impose a parental obligation upon me against my will by asserting my right to equal protection of the law.”"

"Abrams was sympathetic to the idea that a man should not be forced into fatherhood if he was the victim of fraud or deceit. In fact, even when the press has been hostile to men's rights issues in general, it has usually referred to "Roe for Men" with at least a neutral curiosity. As an example, take a look at the February 12, 2008 issue of The Nation, which characterizes our position as giving a man the opportunity to relinquish, through the courts, the rights and responsibilities of parenthood just as a woman has the opportunity to end her potential parenthood through abortion. They got it right."

"The abortion debate in this country has been framed as a conflict between abstract interests in life and liberty-fetal life, when it is protected by the state, and the liberty of women to terminate their pregnancies. In 1973, the abortion conflict was settled legally by the U.S. Supreme Court in “Roe v. Wade”, when the Court balanced the two conflicting interests and announced a prescription for future accommodation. However, the Roe decision neither settled the national dispute about abortion nor provided instruction on the proper role of courts in the social drama played out around the life and death issues that advancing medical technology puts in high relief. Instead, the decision seemed only to fuel the acrimony between pro-life and pro-choice advocates and to raise serious questions about the function of the Supreme Court in our constitutional democracy."

"[B]y trying to resolve the social issues raised by abortion technology through litigation, we have transformed the real-life, contextual, relational, complex facts about abortion into a two-sided contest between generalized maternal rights to privacy and theoretical state interests in potential human life, a process that teaches us little about the moral and social problems we seek to resolve."

"As some of the Justices recently observed, the abortion debate is an “intensely divisive controversy” between “contending sides of a national” dispute. Thus, the Court’s decision in Roe v. Wade, which might be viewed as a compromise recognizing both a woman’s privacy interest in terminating her pregnancy in its early months and the state’s compelling interest in protecting potential fetal life in its later months, is usually regarded only as a victory for abortion rights. Responsibility for that perception has been laid upon the Court itself. Legal scholars criticized Justice Blackmun’s opinion in Roe for being unnecessarily divisive and inflammatory, and for alienating those with a world view that does not permit abortion. The presentation of the issues in irreconcilable, polarized terms and the Court’s resolution of them in those terms, both in Roe and in Casey, have provoked extremist reactions by some member of the public, who use threats of violence to traumatize pregnancy women entering abortion clinics and who vandalize, bomb and burn the clinics themselves. The debate continues to rage around the nomination of Justices to the Supreme Court and the provision of abortion information in federally funded clinics. Unless the abortion controversy can be diffused, we run the risk that it will polarize our thinking on related issued, widening the national divisions it reflects."

"An examination of the use in Roe of traditional procedural doctrines regarding professional solicitation, standing, mootness, remedies, intervention, amicus curiae participation, and class representation illustrate how unsuited these doctrines are to the job presented by litigants seeking judicial wisdom about the utilization of new medical technology, like abortion."

"Twenty-six-year-old Norma McCorvey, much better known as “Jane Doe,” the plaintiff in Roe v. Wade, discovered in 1969 that she was alone in a small Texas town pregnant, penniless, and forsaken. When she could not find a doctor who would perform an illegal abortion for a fee she could afford, she was put in touch with attorneys Sarah Weddington and Linda Coffee, who, although McCorvey did not know it, were ideologically motivated lawyers looking for a plaintiff to test the constitutionality of Texas’s anti-abortion laws. One of the threshold issues presented by Norma McCorbey’s situation is whether a court should have entertained a lawsuit brought in an effort to use the judiciary as an instrument of social change. Out of a concern that lawyers may stir up unnecessary litigation and engage in overreaching, misrepresentation, and invasions of privacy, lawyers have been ethically restrained from making contact with potential plaintiffs no matter how meritorious the client’s unsuspected claim for damages might be. However, out of deference to the First Amendment rights of lawyers who have a desire to further civil rights and similar political objectives, states may not discipline lawyers who take the initiative and actively solicit clients, like McCorvey, so that they can invoke a right to judicial resolution of the political questions on their minds. These suits present disputes different in kind form traditional lawsuits involving private claims put forward by lawyers who act as spokesmen for their individual clients. Furthermore, ideologically committed organizations often pay the attorneys’ fees and expenses of such litigation and in doing so, control the substantive and the procedural strategies of the litigation. The point is that by creating a public interest exception to rules limiting solicitation, courts themselves have invited, or at least accepted, the task of resolving complex social and politically important issues like abortion. But they do so without providing adequate procedures for carrying out the task."

"By the time she interviewed the lawyers who eventually represented her, Norma McCorvey was about three months pregnant; by the time they filed her complaint, she was seven months pregnant; by the time the lower court heard the case, she had given birth; by the time the U.S. Supreme Court decided the case, her baby was three years old and living with adoptive parents. Norma McCorvey already had responsibilities to a child being raised by her mother, had only a tenth-grade education, had little or no money for medical expenses, was without the means to support another child, and had no relationship with the man with whom she had conceived (indeed, for a time she had lied about being gang raped). How did the facts of Norma McCorvey’s pregnancy all get reduced to the abstract conflict between a woman’s right of privacy and the unborn’s right to life. The litigation distorted the issues into a polarized dispute because the trial court simplistically treated McCorvey’s request for broad injunctive relief as it would have treated one for compensatory relief."

"The adversarial process, as it is usually applied, bifurcates messy issues like abortion into competing camps. Having evolved largely as a mechanism for providing individual complaints compensatory relief for past injury, the litigation process necessarily presupposes the existence of a party who claims injury and seeks damages for a loss for which another party should be held responsible. The procedures used in law and equity were designed to assure the participation of suitable litigants, to permit the presentation of reliable facts relevant to the alleged injury and its causes, and to limit the court’s attention to disputes it had the power to resolve. Norma McCorvey, however, was not seeking damages for losses she suffered as a result of the application of Texas’s unconstitutional abortion laws, nor was she even seeking an injunction permitting her to lawfully abort the fetus she carried. Instead, she sought a declaratory judgment that the Texas law, duly enacted by a legally constituted legislature, was unconstitutional on its face, not just as it applied to her. And she sought an injunction prohibiting enforcement of the Texas statute for as long as the Constitution resigns. As unalike as the objective of common law suits and this kind of constitutional litigation may be, the same adversarial procedures are used in both to select appropriate parties, distill factual evidence, and shape the issues for decision. The result is that the untidy issues actually faced by those who are affected by the utilization of abortion techniques are stripped of their contextual character, convolution, and relativism, and are presented as simple, abstract, absolute values in conflict."

"[T]he three-judge district court in Roe v. Wade permitted only persons with certain interests in abortion-pregnant women and the state-to debate the constitutionality of the Teas statute. The court was willing to let Norma McCorvey bring a cause of action to strike down the Texas criminal law despite the fact that she could not be prosecuted under it. However, the Supreme Court found that, despite the fact that doctors could be (and were) criminally prosecuted under the statute, a doctor did not have standing to intervene in the civil Roe litigation. Ironically, in Griswold v. Connecticut and Roe v. Wade, persons who could not have been prosecuted under the challenged statutes were allowed to proceed as parties to the litigation, while persons who could have been prosecuted were not permitted to participate and to represent their own interests."

"[T]he interests of married couples in using abortion to avoid parenthood were not represented in Roe because the trial court found that they too lacked standing. Though the availability of abortion technology implicated different interests and relationships of married, as opposed to single, women and their spouses, the trial court found the interests of John and Mary Doe too speculative to present a justifiable controversy. As a matter o fact, the Does had conceived a child prior to the suit an obtained an abortion. How different, then, was their situation from that of Norma McCorvey at the time of the district court hearing, after she had given birth, when the court found that her claim was not moot because she might become pregnant again and wish an abortion? Did the fact that the Does had been able to obtain an abortion by traveling out of the country, while McCorvey could not afford to do so, deprive them of standing they would otherwise have had, even as members of the lass represented by Roe? We are not informed by the trial court’s cursory treatment of standing issues."

"The story of Roe v. Wade has never been told before, and despite the Supreme Court decision, the abortion issue has never been resolved. Every year antiabortion forces fight a more aggressive battle to undo the abortion decision. They have begun to make inroads in some states and have repeatedly brought before the Supreme Court case designed to chip away at the abortion right. Only in the past few years have the pro-choice reformers awakened to the need to continue their struggle."

"Abortion is, I think, one of the most trying issues of our time. A great deal of pain and rage exists on both sides of the debate. After all, abortion concerns nothing less than the value we place on human life. Those who oppose abortion believe that the value must be held collectively, that one standard must apply to everyone and to all circumstances, while those who support the abortion right believe that the choice can only be made individually. Adding to the conflict is the face that what people believe, at least where abortion is concerned, they tend to believe fervently. This, if nothing else, makes abortion an unresolvable issue, one about which people cannot be rational."

"In 1954, when the Supreme Court ruled in Brown v. the Board of Education that American schools were to be desegregated, a majority of Americans disagreed with the decision A year later, though, polls showed that most people had come around to supporting Brown, at least in theory, and most of the controversy surrounding the case had died down. The same could hardly be said for Roe v. Wade, although ironically, when the Court decided Roe in 1973, a majority of Americans agreed with the decision. Despite this consensus that abortion should be legalized, an immediate furor arose over the decision; nearly thirty years later, this conflict remains unresolved. Roe v. Wade is one of the most disputatious Supreme Court decisions ever handed down. No issue has festered in the American consciousness the way abortion has. Roe v. Wade is a story that never ends, and this introduction is intended to update the reader on what has happened to the abortion right since the decision because this is also part of the Roe v. Wade story."

"The decision generated an enormous amount of political activism among supporters and opponents of legal abortion, partly because no one expected that the opinion would be so sweeping. Roe v. Wade made abortion legal literally overnight everywhere in the United States. Stunned antiabortion activists immediately set about organizing a campaign to overturn the decision. Meanwhile, pro-choice activists, who had believed that the decision would end any controversy over abortion, were equally shocked when this did not happen. Countless battles have been fought over Roe v. Wade, and the war still rages. That the war has been fought largely in the political arena can be attributed to the fact that the decision, in addition to legalizing abortion, changed the terms of the debate, also overnight. Before the decision, discussion about abortion centered on its morality. An obviously safe and comfortable battleground for antiabortionists, whose opposition was largely religious. After Roe v. Wade, with abortion legal, it was no longer possible to argue that a woman who underwent an abortion was immoral. The decision had converted abortion from a moral struggle into a legal one."

"More than any other event, Roe v. Wade served to politicize the religious conservatives who led the fight against legalized abortion in the 1980s. They had other issues on their agenda, but abortion soon headed the list. Furthermore , having lost the moral high ground, they had no choice but to fight legal abortion in Congress, in the state legislatures, and in the courts. The war was waged in the court of public opinion as well, because once the battleground became political it would be impossible to make abortion illegal again without the support of a majority of Americans. After multiple rebuffs by the Supreme Court, antiabortion activists realized that Roe v. Wade would not be overturned as easily as they had imagined. In the period immediately after the announcement of the decision, every time anti-choice activists went into court, the abortion right seemed to emerge further solidified or expanded. As a result, they refocused their attention on legislative activity. If they could not get Roe v. Wade reversed, they could at least chip away at it. Antiabortion activists did this by introducing bills that required spousal and parental consent, by insisting that federal monies not be used for abortions, and by attempting to regulate the act of abortion itself. Attempts to enforce spousal approval were destined to fail in an era when women’s rights were expanding. Roe v. Wade lodged the abortion right firmly with the woman, and several subsequent Supreme Court decisions failed to lend support to any kind of spousal consent law. Antiabortion activists had more success with parental consent laws. Unlike spousal consent laws, which angered women and flew directly in the face of Roe v. Wade, parental consent laws antagonized fewer people. These laws garnered a lot of public support, although this was partially because of the way that the antiabortion movement packaged the issue. Antiabortion activists insist that without parental consent laws, the federal government will make decisions that traditionally belong to the family."

"A few months earlier, during August 1969, Norma had been traveling throughout the South with a carnival. Her job selling tickets to an animal sideshow was not exciting, but she loved the life. It was the people who attracted her to the carnival. These people were theater. They were even better than theater, these exotic vagabonds who got paid for roaming the country and performing their various acts and tricks for delighted audiences. Norma liked this life more than anything she had ever done. For once she did not feel like an outsider, as she so often had with her family. The carnival felt like the home she had been searching for and had never found. Unlike her parents, her co-workers simply accepted her for what she was and asked few questions. She had even made a couple of special friends, two women with whom she shared a motel room. Norma told Linda and Sarah how she was selling tickets one sultry summer night, the last night of the carnival’s gig in a small town outside Augusta, Georgia, when some minor trouble broke out. She and several of her co-workers were harassed by a group of rough-looking, tough-talking young men. Since it was the kind of disruption that often rippled through a traveling show, it was no cause for alarm. Because this was the carnival’s last night in town, the atmosphere was more festive than usual, and the women treated the men with good humor, even bantering with them a little bit. After the show closed that night, several hours’ work remained to be done, taking down the big tents and packing them away so the show could leave the next morning. As a result, Norma and her roommates decided to walk back to their motel rather than wait for their usual ride. It was during the walk back to the hotel with her friends, Norma recalled, that real trouble broke out. On the way back to her room, she told Weddington and Coffee, she was raped."

"Norma could remember few details of what had happened to her. She thought she had lain by the side of the road for several hours. The rest of the evening passed in a haze. When Weddington gently probed for more, Norma’s story became confused and vague. She thought the rapist might have been one of the men who had disrupted the circus earlier in the evening. What had happened to the women who were with her? Sarah asked. Norma said she did not know, she only knew that when she managed to rouse herself, she was alone. She stumbled back to her motel room, only to find it empty. Her roommates had vanished, taking her belonging with them. She did not report her rape to anyone, nor did she talk to or even see anyone in the hours immediately following the rape. She crawled into bed. When she awakened in the motel room the next day, Norma was still alone. The circus had left town without her and, in the course of doing so, had left her with no money, no way even to pay for the motel for another night. A defeated Norma decided she would return to Dallas, where her family and friends lived She knew no one in Augusta, Georgia, whom she could ask for help. Norma telephone an old friend in Dallas to ask her to send enough money for the bus trip home. To her chagrin, the friend wired only the exact amount of the bus fare Norma sold the taxi driver the radio from her motel room to pay for her fare to the bus station. The trip back seemed endless, Norma said, particularly since she had no money to buy food and thought she had changed buses several times."

"As we now turn to the arguments that were formally presented to the Supreme Court in legal briefs, an intriguing question arises: What did the justices perceive of the turmoil over abortion outside their own quiet precincts? Clearly, they knew that they had on their hands “a most sensitive, emotional, and controversial” issue, as Justice Harry A. Blackmun described it when he announced Roe and Doe from the bench (see page 245). Further, as Justice Blackmun observed, the Court knew that “the controversy will continue.” The justices had not been hermetically sealed off in their chambers during the long months in which the cases were pending. They lived in the world as husbands and fathers. They had set the cases for a second argument, a sign that they regarded the cases as something other than routine. It does appear, however, that the justices in the 7-to-2 majority were responding to a consensus among the elites, particularly of the legal and medical professions, that change was appropriate and necessary. They appreciated that the decision would provoke controversy, but decided the case on grounds that they had reason to suppose would find broad public acceptance. Non-legal material in Justice Blackmun’s file included the Gallup Poll from the summer of 1972, reflecting substantial majorities supporting decriminalization, even among Catholics [see page 207.] The file also contained a series of articles from the Atlanta Journal-Constitution, passed on to Justice Blackmun by Justice Potter Stewart. In these articles, prominently displayed in the newspaper during April 1972, an Atlanta physician, Robert A. Hatcher, M.D. asserted that Georgia’s ALI-type reform law had not gone far enough and was not making enough of a difference."

"Both the right and regulatory interest that Roe recognized emerged from more than a decade of searching public conversation about abortion. Reasoning about the meaning of constitutional precedent in the midst of that conversation, the justices concluded that the right to privacy recognized in Griswold covered not only contraception but abortion as well. The Court conducted a lengthy analysis of historical precedent before declaring that the Constitution protected the abortion decision from state interference until the point of fetal viability. But, in explaining its decision, the Court also invoked or adverted to the judgments of growing numbers of lower courts, the decisions of public authorities such as the Rockefeller Commission that endorsed the legalization of abortion, and measures of popular support for liberalizing access. (In addition to the many briefs in Roe, Justice Blackmun had in his files the papers in Abele v. Markle, Connecticut’s abortion case, and other lower court decisions; documents reflecting the views of organizations such as the American Medical Association and the American Bar Association; and the 1972 Gallup poll reports showing steadily rising support for decriminalization.)"

"Now it was time for Coffee and Weddington to tell McCorvey what she could do for them. They told her they were looking for a woman to be a plaintiff in an abortion suit. They asked Norma if she were aware that many people wanted to change the abortion laws. Norma was not alone in her attempts to obtain a legal abortion, nor was she alone in her failure to get one. Many women who needed abortions found themselves unable to obtain one and were forced into illegal ones. Because abortion was illegal, no one knew for sure how many women terminated their pregnancies, but one study found that the women surveyed ended between one-fifth and one-fourth of all their pregnancies. Only eight to ten thousand legal abortions were done each year in the United States, while experts guessed that between a million and a million and a half abortions were done annually. Women who got illegal abortions took a much greater risk than those who were able to obtain legal ones. Some women got to competent illegal abortionists, Weddington said, but many more suffered at the hands of uncaring, unscrupulous, illegal practitioners. While she was looking for someone to perform an abortion. McCorvey told the two women, she had heard many horror stories about what happened if a woman went to the wrong kind of abortionist. That was why she had not been able to go through with the surgery. No licensed doctor would agree to perform the operation, and although one abortionist had offered to do it for $500, he did not have a medical license, and she was afraid to let him touch her. Weddington asked Norma how she had felt when she could not get an abortion. Norma replied that she was angry at being forced to have a child whom she did not want and could not care for. Sarah said that she and Coffee were angry too, and that they wanted to help women in her plight. That was why they needed her help."

"Weddington and Coffee’s motivation in taking on the Texas abortion laws was, I discovered somewhat to my surprise, primarily ideological. On one of my visits to Texas, I asked the two women why they had decided to work on abortion reform, as opposed to any number of other women’s issues. Neither woman had undergone an abortion nor had any firsthand experience with one. Like so many other women their age, they had known or heard of women who had undergone illegal abortions, but abortion had not touched either woman in a close, personal way. But like many women, although their interest was impersonal and somewhat abstract, they were angry. As they told Norma, they wanted to help women, and since they had legal skills-something few women could claim at that time-they thought they could use them to do something about the present restrictive laws. Each woman told me separately, in remarkably similar words, how attuned she was to the rapid changes occurring in women’s lives. The idea of abortion liberalization was in the air from the mid-1960s on, and the two women thought they could do something, at least about the Texas law."

"Norma knew nothing about the legal system. She had no idea what a plaintiff was and consequently was not sure what she was being asked to do. Coffee and Weddington told her they were planning to challenge the abortion law of the state of Texas. They could not do this, they explained, simply by going into court and asking a judge to overturn the law. Instead, they had to bring a suit-in this instance, obviously, a suit involving a pregnant woman-into court. The pregnant woman, not Coffee or Weddington, would actually sue the state of Texas. Because she was the person filing the formal complaint, she was considered the plaintiff. After the suit was filed, there would be a trial or a hearing, perhaps several hearings. Norma might have to be present; she might even have to testify. Sarah and Linda assured her, however, that they would do most of the talking in the courtroom. A judge would then weight the facts of the suit and use them to decide whether or not to permit the plaintiff to have an abortion. If a Texas judge ruled that one woman could undergo an abortion, then all the women in Texas in similar circumstances would be entitled to one. Coffee and Weddington wanted to build a broad-enough case to that any Texas women who wanted an abortion would be able to get one as a result of the ruling they hoped to obtain. They hoped their case would result in a clear-cut rejection of the Texas abortion law. It would not be easy to build such a case, and the risks were high, they knew. Once they went into court, a judge could decide in their favor, ruling that the Texas abortion law was illegal. He could decide to strike only certain parts but not all of the law, or, worst of all from their point of view, a judge could decide that no part of the law was illegal and in effect let the law stand as it was. In that event women would not be allowed to have abortions, and it would be difficult for anyone else to challenge the Texas abortion law after a recent ruling supporting its legality."

"[I]f it would help, they would want their plaintiff present in the courtroom during the proceedings, an event that would almost certainly destroy any anonymity she had. Her presence might even be required by the court. Alternately, they might try to play down her role, in hopes that she would be seen as a sort of Everywoman, a symbol of the need to reform the abortion laws. Either way, their plaintiff would have to be under their control. Would McCorvey, they asked themselves, submit to their guidance in matters like these? Yet such considerations were just theoretical possibilities that might or might not occur in the course of the lawsuit. The most pressing practical issue, Coffee would recall in our conversations, was whether they could actually help Norma get the abortion she wanted. Just possibly they could arrange for her to obtain a court-sanctioned one, but chances were far greater that they would not be able to do so. The wheels of justice did not turn rapidly. By the time the legal system was through chewing on the wisdom of whether to allow her to have an abortion, Norma would most likely have had her baby. Norma had looked pregnant to Linda Coffee since their first meeting. It seemed to Coffee that she was pushing, if not into, her second trimester. This meant that if Norma were to undergo an abortion, she should do so right away-probably within the next two or three weeks. The only way the two lawyers could see to act quickly enough was to file a request for a restraining order."

"Although this was something they had yet to research, Weddington and Coffee thought they could take their case into a federal court, that this was the proper forum for challenging a state law. It offered the possibility of a more encompassing decision, one that could set a precedent for decisions outside Texas. But it also made their case more difficult. The federal courts, ever wary of states’ rights issues, were being ultracautious, largely because of some recent ruling involving criminal cases in which they were perceived, at least by some, as having overstepped their power to rule on state laws. In fact, there was every reason to believe that a federal judge would be even more reluctant than a local or a state judge to issue a restraining order that would overturn a state criminal law. Apart from all these considerations, even if they did find judge willing to issue a TRO, they would still have to find a physician willing to do the abortion. That they suspected would be an impossible task as long as the law was still in limbo and the physician might risk later prosecution. The first and most difficult decision the two lawyers made, then, was not to seek a TRO for Norma, even though that was her only chance for getting court permission in time to have a legal abortion. Since she wanted an abortion badly, this might mean she was not the best plaintiff for them after all. They needed to impress upon her exactly what this meant-namely, that she would most likely have to go ahead and have the baby if she became their plaintiff."

"After hearing so much about McCorvey’s background, Weddington and Coffee became concerned that she might not be such a good plaintiff after all. Her life thus far-a high school dropout, married at sixteen, a daughter she did not have custody of, walking out on a visit with her daughter to join a carnival, her present hand-to-mouth existence-was a major problem. Another problem was the rape. In our talks, both Weddington and Coffee recalled that it was a delicate issue. Sensitive as the two women were to any woman’s claim that she had been raped- a claim that was too often ignored or, worse, challenged-they were also lawyers, trained to size up a potential witness’s credibility. And whatever had happened to Norma McCorvey, they did not feel that she would be a credible plaintiff in a rape case, let alone in an abortion case involving a rape. Coffee in a particular was struck by McCorbey’s lack of emotion when she described the rape at their first meeting. Some rape victims are stoic, even with the people who try to counsel or otherwise help them, but McCorvey’s remarkably unemotional recounting of how she had been raped made her lawyer uneasy. McCorvey was vague about the circumstances of the rape, and her story became more unclear and the details more bizarre with each retelling. She told Coffee and Weddington she had not gone to the police or filed nay kind of official report. Initially, she said she had been raped by one man; she later changed her story and claimed she had been gang-raped, sometimes by several men and her female companions, sometimes by a white, black, and Hispanic man, a highly unlikely combination to have been walking together down a Georgia country road late at night in 1969."

"By examining the conflict in the period before the Court ruled, we can see how the abortion conflict changed in meaning, structure, and intensity as it was joined by a successive array of advocates—not only social movements8 and the Catholic Church but also strategists for the Republican Party seeking to attract traditionally Democratic voters in the 1972 presidential campaign. The evidence that we uncover of abortion’s entanglement in party realignment before the Supreme Court handed down its decision in Roe demonstrates that the competition of political parties for voters supplies an independent institutional basis for conflict over abortion. Where proponents of a Court-centered account of backlash offer reasons that adjudication distinctively causes political conflict, the history that we analyze identifies forms of political conflict that could engulf adjudication."

"In Roe v. Wade, the Court recognized a "guarantee of personal privacy" which "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." 410 U.S., at 152-153, 93 S.Ct., at 727. We are now of the view that, in terming this right fundamental, the Court in Roe read the earlier opinions upon which it based its decision much too broadly. Unlike marriage, procreation and contraception, abortion "involves the purposeful termination of potential life." Harris v. McRae, 448 U.S. 297, 325, 100 S.Ct. 2671, 2692, 65 L.Ed.2d 784 (1980). The abortion decision must therefore "be recognized as sui generis, different in kind from the others that the Court has protected under the rubric of personal or family privacy and autonomy." Thornburgh v. American College of Obstetricians and Gynecologists, supra, 476 U.S., at 792, 106 S.Ct., at 2195 (WHITE, J., dissenting). One cannot ignore the fact that a woman is not isolated in her pregnancy, and that the decision to abort necessarily involves the destruction of a fetus. See Michael H. v. Gerald D., supra, 491 U.S., at 124, n. 4, 109 S.Ct., at 2342, n. 4 (To look "at the act which is assertedly the subject of a liberty interest in isolation from its effect upon other people [is] like inquiring whether there is a liberty interest in firing a gun where the case at hand happens to involve its discharge into another person's body"). Nor do the historical traditions of the American people support the view that the right to terminate one's pregnancy is "fundamental." The common law which we inherited from England made abortion after "quickening" an offense. At the time of the adoption of the Fourteenth Amendment, statutory prohibitions or restrictions on abortion were commonplace; in 1868, at least 28 of the then-37 States and 8 Territories had statutes banning or limiting abortion. J. Mohr, Abortion in America 200 (1978). By the turn of the century virtually every State had a law prohibiting or restricting abortion on its books. By the middle of the present century, a liberalization trend had set in. But 21 of the restrictive abortion laws in effect in 1868 were still in effect in 1973 when Roe was decided, and an overwhelming majority of the States prohibited abortion unless necessary to preserve the life or health of the mother. Roe v. Wade, 410 U.S., at 139-140, 93 S.Ct., at 720; id., at 176-177, n. 2, 93 S.Ct., at 738-739, n. 2 (REHNQUIST, J., dissenting). On this record, it can scarcely be said that any deeply rooted tradition of relatively unrestricted abortion in our history supported the classification of the right to abortion as "fundamental" under the Due Process Clause of the Fourteenth Amendment. We think, therefore, both in view of this history and of our decided cases dealing with substantive liberty under the Due Process Clause, that the Court was mistaken in Roe when it classified a woman's decision to terminate her pregnancy as a "fundamental right" that could be abridged only in a manner which withstood "strict scrutiny." In so concluding, we repeat the observation made in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986):"

"Although Roe allowed state regulation after the point of viability to protect the potential life of the fetus, the Court subsequently rejected attempts to regulate in this manner. In Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979), the Court struck down a statute that governed the determination of viability. Id., at 390-397, 99 S.Ct., at 683-687. In the process, we made clear that the trimester framework incorporated only one definition of viability—ours —as we forbade States from deciding that a certain objective indicator "be it weeks of gestation or fetal weight or any other single factor"—should govern the definition of viability. Id., at 389, 99 S.Ct., at 682. In that same case, we also invalidated a regulation requiring a physician to use the abortion technique offering the best chance for fetal survival when performing postviability abortions. See id., at 397-401, 99 S.Ct., at 686-689; see also Thornburgh v. American College of Obstetricians and Gynecologists, supra, 476 U.S., at 768-769, 106 S.Ct., at 2183 (invalidating a similar regulation). In Thornburgh, the Court struck down Pennsylvania's requirement that a second physician be present at postviability abortions to help preserve the health of the unborn child, on the ground that it did not incorporate a sufficient medical emergency exception. Id., at 769-771, 106 S.Ct., at 2183-2184. Regulations governing the treatment of aborted fetuses have met a similar fate. In Akron, we invalidated a provision requiring physicians performing abortions to "insure that the remains of the unborn child are disposed of in a humane and sanitary manner." 462 U.S., at 451, 103 S.Ct., at 2503 (internal quotation marks omitted). Dissents in these cases expressed the view that the Court was expanding upon Roe in imposing ever greater restrictions on the States. See Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S., at 783, 106 S.Ct., at 2190 (Burger, C. J., dissenting) ("The extent to which the Court has departed from the limitations expressed in Roe is readily apparent"); id., at 814, 106 S.Ct., at 2206 (WHITE, J., dissenting) ("[T]he majority indiscriminately strikes down statutory provisions that in no way contravene the right recognized in Roe"). And, when confronted with State regulations of this type in past years, the Court has become increasingly more divided: the three most recent abortion cases have not commanded a Court opinion. See Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990); Hodgson v. Minnesota, 497 U.S. 417, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990); Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989). The task of the Court of Appeals in the present case was obviously complicated by this confusion and uncertainty. Following Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), it concluded that in light of Webster and Hodgson, the strict scrutiny standard enunciated in Roe was no longer applicable, and that the "undue burden" standard adopted by Justice O'CONNOR was the governing principle. This state of confusion and disagreement warrants reexamination of the "fundamental right" accorded to a woman's decision to abort a fetus in Roe, with its concomitant requirement that any state regulation of abortion survive "strict scrutiny." See Payne v. Tennessee, 501 U.S. ----, ---- - ----, 111 S.Ct. 2597, 2609-2611, 115 L.Ed.2d 720 (1991) (observing that reexamination of constitutional decisions is appropriate when those decisions have generated uncertainty and failed to provide clear guidance, because "correction through legislative action is practically impossible" (internal quotation marks omitted)); Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 546-547, 557, 105 S.Ct. 1005, 1015, 1021, 83 L.Ed.2d 1016 (1985)."

"Ultimately Norma decided to go ahead with the lawsuit but indicated she wanted as little publicity as possible. She specifically did not want her parents or her daughter to know of her role in the case. Nor would she tell her friends. When Coffee and Weddington suggested the use of a pseudonym, she readily agreed. It would at least offer her some protection. They quickly settled on Jane Roe. Coffee and Weddington would prove to be quite successful at protecting their client’s privacy. Over the years, reporters would occasionally try to discover Jane Roe’s identity, usually on important anniversaries of the case. Her lawyers grew so used to her refusals to grant interviews that they no longer called her with requests. For ten years, until Norma herself broke the silence, no one, not even other lawyers who would work on the case knew who Jane Roe was. When McCorvey broke her silence in the early 1980s, she talked only to a handful of reporters and writer before engaging the services of an entertainment lawyer in Dallas. After that, she would only agree to be interviewed if she were paid."

"As stated by the Supreme Court and conceded by all parties, no prior case had been found in which the United States Supreme Court had addressed itself to the question of whether the term "person" as used in the fourteenth amendment has prenatal application. Thus, for all practical purposes, the question was being presented for the first time. In absence of precedent, the only legal materials with which the Court had to work were the constitutional provisions themselves."

"In Roe, the Court observed that certain States recognized the right of the father to participate in the abortion decision in certain circumstances. Because neither Roe nor Doe involved the assertion of any paternal right, the Court expressly stated that the case did not disturb the validity of regulations that protected such a right. Roe v. Wade, 410 U.S., at 165, n. 67, 93 S.Ct., at 732, n. 67. But three years later, in Danforth, the Court extended its abortion jurisprudence and held that a State could not require that a woman obtain the consent of her spouse before proceeding with an abortion. Planned Parenthood of Central Mo. v. Danforth, 428 U.S., at 69-71, 96 S.Ct., at 2841-2842."

"In arguing that this Court should invalidate each of the provisions at issue, petitioners insist that we reaffirm our decision in Roe v. Wade, supra, in which we held unconstitutional a Texas statute making it a crime to procure an abortion except to save the life of the mother. We agree with the Court of Appeals that our decision in Roe is not directly implicated by the Pennsylvania statute, which does not prohibit, but simply regulates, abortion. But, as the Court of Appeals found, the state of our post-Roe decisional law dealing with the regulation of abortion is confusing and uncertain, indicating that a reexamination of that line of cases is in order. Unfortunately for those who must apply this Court's decisions, the reexamination undertaken today leaves the Court no less divided than beforehand. Although they reject the trimester framework that formed the underpinning of Roe, Justices O'CONNOR, KENNEDY, and SOUTER adopt a revised undue burden standard to analyze the challenged regulations. We conclude, however, that such an outcome is an unjustified constitutional compromise, one which leaves the Court in a position to closely scrutinize all types of abortion regulations despite the fact that it lacks the power to do so under the Constitution. In Roe, the Court opined that the State "does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, . . . and that it has still another important and legitimate interest in protecting the potentiality of human life." 410 U.S., at 162, 93 S.Ct., at 731 (emphasis omitted). In the companion case of Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), the Court referred to its conclusion in Roe "that a pregnant woman does not have an absolute constitutional right to an abortion on her demand." 410 U.S., at 189, 93 S.Ct., at 746. But while the language and holdings of these cases appeared to leave States free to regulate abortion procedures in a variety of ways, later decisions based on them have found considerably less latitude for such regulations than might have been expected. For example, after Roe, many States have sought to protect their young citizens by requiring that a minor seeking an abortion involve her parents in the decision. Some States have simply required notification of the parents, while others have required a minor to obtain the consent of her parents. In a number of decisions, however, the Court has substantially limited the States in their ability to impose such requirements. With regard to parental notice requirements, we initially held that a State could require a minor to notify her parents before proceeding with an abortion. H. L. v. Matheson, 450 U.S. 398, 407-410, 101 S.Ct. 1164, 1170-1172, 67 L.Ed.2d 388 (1981). Recently, however, we indicated that a State's ability to impose a notice requirement actually depends on whether it requires notice of one or both parents. We concluded that although the Constitution might allow a State to demand that notice be given to one parent prior to an abortion, it may not require that similar notice be given to two parents, unless the State incorporates a judicial bypass procedure in that two-parent requirement. Hodgson v. Minnesota, supra."

"Although the Supreme Court in Roe expressed concern about its ability to "resolve the difficult question of when life begins," the initial constitutional dilemma the Court faced was not the factual question of when life begins but rather the legal question of the scope and meaning of the concept of "person" in the fourteenth amendment, ie., whether the concept means living humans, individual humans, born humans, rational humans, wanted humans, humans capable of "meaningful life," any combination thereof or something else. In other words, what does the term "person" as used in the fourteenth amendment mean? What values was it designed to protect? If, for example, it means all individual, living human beings, which is this writer's position, the factual issue whether the fetus is an individual, living human being is presented for decision. If "life" in the biological sense is irrelevant to membership in the class of constitutional persons or if birth is an essential criterion to membership in this constitutional class, the Court in Roe was correct, for then it need not "speculate as to the answer [of when life begins]." On the other hand, if the real problem facing the Court was a "proof problem," ie., how to prove that a fetus has "life," simple judicial restraint should require the Court not to exclude the fetus from constitutional protection as a matter of law by creating a birth requirement as it did in Roe but rather to leave the ultimate question of constitutional personhood in the fetus unanswered, remand the case and ask for more "proof" on the factual question."