1970s In The United States

"Thus the test Lochner and its progeny purported to apply is that which would theoretically control the same questions today: whether a plausible argument can be made that the legislative action furthers some permissible governmental goal. The trouble, of course, is they misapplied it. Roe, on the other hand, is quite explicit that the right to an abortion is a “fundamental” one, requiring not merely a “rational” defense for its inhibition but rather a “compelling” one. A second difference between Lochner et al. and Roe has to do with the nature of the legislative judgments being second-guessed. In the main, the “refutations” tendered by the Lochner series were of two sorts. The first took the form of declarations that the goals in terms of which the legislatures’ actions were defended were impermissible. Thus, for example, the equalization of unequal bargaining power and the strengthening of the labor movement are simply ends the legislature had no business pursuing, and consequently its actions cannot thereby be justified. The second form of “refutation” took the form not of denying the legitimacy of the goal relied on but rather of denying the plausibility of the legislature’s empirical judgment that its action would promote that goal."

"The Roe opinion’s “refutation” of the legislative judgment that anti abortion statutes can be justified in terms of the protection of the fetus takes neither of these forms. The Court grants that protecting the fetus is an “important and legitimate” governmental goal and of course it does not deny that restricting abortion promotes it. What it does, instead, is simply announce that that goal is not important enough to sustain the restriction. There is little doubt that judgments of this sort were involved in Lochner et al., but what the Court said in those cases was not that the legislature had incorrectly balanced two legitimate but competing goals, but rather that the goal it had favored was impermissible or the legislation involved did not really promote it. Perhaps this is merely a rhetorical difference, but it could prove to be important. Lochner et al. were thoroughly disreputable decisions, but at least they did us the favor of sowing the seeds of their own destruction. To say that the equalization of bargaining power or the fostering of the labor movement is a goal outside the ambit of a “police power” broad enough to forbid all contracts the state legislature can reasonably regard “as inconsistent with the public interests or as hurtful to the public order or as detrimental to the common good” is to say something that is, in a word, wrong. And it is just as obviously wrong to declare, for example, that restrictions on long working hours cannot reasonably be said to promote health and safety. Roe’s “refutation” of the legislative judgment, on the other, is not obviously wrong, for the substitution of one nonrational judgment for another concerning the relative importance of a mother’s opportunity to live the life she has planned and a fetus’s opportunity to live at all, can be labeled neither wrong nor right. The problem with Roe is not so much that it bungles the question it sets itself, but rather that it sets itself a question the Constitution has not made the Court’s business. It looks different from Lochner—it has the shape if not the substance of a judgment that is very much the Court’s business, one vindicating an interest the Constitution marks as special—and it is for that reason perhaps more dangerous. Of course in a sense it is more candid than Lochner. But the employment of a higher standard of judicial re view, no matter how candid the recognition that it is indeed higher, loses some of its admirability when it is accompanied by neither a coherent account of why such a standard is appropriate nor any indication of why it has not been satisfied.*Roe is a case in point. Certainly, many will view it as social progress. (Surely that is the Court’s view, and indeed the legislatures had been moving perceptibly, albeit too slowly for many of us, toward relaxing their anti-abortion legislation.) And it is difficult to see how it will weaken the Court’s position. Fears of official disobedience are obviously groundless when it is a criminal statute that has been invalidated. To the public the Roe decision must look very much like the New York Legislature’s recent liberalization of its abortion law. Even in the unlikely event someone should catch the public’s ear long enough to charge that the wrong institution did the repealing, they have heard that “legalism” before without taking to the streets. Nor are the political branches, and this of course is what really counts, likely to take up the cry very strenuously: The sighs of relief as this particular albatross was cut from the legislative and executive necks seemed to me audible. Perhaps I heard wrong—I live in the North east, indeed not so very far from Hyannis Port. It is even possible that a constitutional amendment will emerge, though that too has happened before without serious impairment of the Position of the Institution. But I doubt one will: Roe v. Wade seems like a durable decision. It is, nevertheless, a very bad decision. Not because it will perceptibly weaken the Court—it won’t; and not because it conflicts with either my idea of progress or what the evidence suggests is society’s—it doesn’t. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be."

"Identification and definition of the values with which the Constitution is concerned will often fall short of indicating with anything resembling clarity the deference to be given those values when they conflict with others society finds important. (Though even here the process is sometimes more helpful than the commentators would allow.) Nor is it often likely to generate, fullblown, the “neutral” principle that will avoid embarrassment in future cases. But though the identification of a constitutional connection is only the beginning of analysis, it is a necessary beginning. The point that often gets lost in the commentary, and obviously got lost in Roe, is that before the Court can get to the “balancing” stage, before it can worry about the next case and the case after that (or even about its institutional position) it is under an obligation to trace its premises to the charter from which it derives its authority. A neutral and durable principle may be a thing of beauty and a joy forever. But if it lacks connection with any value the Constitution marks as special. it is not a constitutional principle and the Court has no business imposing it. I hope that will seem obvious to the point of banality. Yet those of us to whom it does seem obvious have seldom troubled to say so. And because we have not, we must share in the blame for this decision."

"SUPREME COURT JUSTICE Harry Blackmun has long been seen as the primary architect of the landmark 1973 abortion decision in Roe v. Wade--with particular encouragement coming from his two most liberal colleagues, William Brennan and Thurgood Marshall. But a close reading of the papers of the late Justice Lewis Powell, Jr.--only recently made available to anyone other than his official biographer--provides a striking revelation about the profound influence that the centrist Southern justice had on the historic case. The Powell Papers make clear that clerk Larry Hammond, drawing from a contemporaneous lower federal court abortion opinion written by Judge Jon O. Newman, helped provide Powell with the analytical insight that persuaded a seven-justice majority to broaden Roe's new protection of abortion rights from the first trimester all the way to the threshold of fetal viability."

"Powell jotted his own initial reaction to Blackmun's drafts in the margin: "I doubt the validity of the Texas statute as unduly restrictive of individual rights (privacy) but I am not persuaded it is vague." He added, "Why not consolidate Texas + Ga. cases + rely on Ga. type analysis--if we are to invalidate these laws?" On White's draft, Powell again noted, "I agree that Texas statute is not unconst. vague. But I'm not clear as to where this draft leaves the Texas statute. Does J. White think Tex. statute is valid?""

"Hammond summarized for Powell the constitutional privacy analyses that different justices had offered in the landmark 1965 birth control case, Griswold v. Connecticut, and concluded that "it would not be difficult for this Ct. to find a fundamental right of a woman to control the decision whether to go through the experience of pregnancy and assume the responsibilities that occur thereafter." Hammond suggested that "you might reason as Judge Newman does that the state interest becomes more dominant when the fetus is capable of independent existence (or becomes `viable')." Alluding to Texas's and Connecticut's claims that fetuses become constitutional "persons" at the "moment of conception," Hammond noted how "the crux of Judge Newman's analysis is that the state may not bar abortional freedom altogether on the basis of a proposition that is subject to such a great public debate and affects individuals so personally." Hammond concluded by observing that "I do believe that a well-reasoned opinion can be written reaching this result without placing the Ct. in the position of deciding as a super legislature whether it will permit abortions at any specific point in time.""

"Powell's notes indicate that while White believed that a "woman must have some const. right to protection," he nonetheless was "unwilling to second-guess state leg. as to its interest. Pure convenience of woman can't override state interest," and the Court "can't allow abortion on demand." Powell's notes fail to indicate, as both Brennan's and Douglas's do, that it was Powell's own comments that led Blackmun to say that he would jettison his void-for-vagueness approach to Roe and make the Texas case, rather than the Georgia one, the "lead" decision."

"Powell's file discloses that a previously unrevealed private response from Rehnquist was one of the first that Blackmun received. Rehnquist acknowledged that "although I am still in significant disagreement with parts of them, I have to take my hat off to you for marshaling as well as I think could be done the arguments on your side. I think I will probably still file a dissent, although more limited than I had contemplated after the conference discussion.""

"Blackmun's November drafts, unlike the final Roe and Doe opinions the Court handed down on January 22, 1973, held that states must leave the abortion decision to a woman and her doctor only during the first trimester of pregnancy. Subsequent to those first three months, states could restrict legal abortions to carefully specified therapeutic categories. Thus Rehnquist asked Blackmun, "Ought not your Texas opinion to invalidate the Texas abortion statute only as applied to a litigant who seeks abortion within the first `trimester,' rather than, as I understand you to do, invalidating it in toto?" Rehnquist also similarly wondered, whether in Doe, "Would you permit any more latitude to Georgia in her procedural requirements after the first trimester" as opposed to during it? Rehnquist's subdued feelings about Roe, which contrast starkly with his far more intense expressions in subsequent abortion cases, do not come as a complete surprise. But his letter to Blackmun, like Blackmun's newly available private response, adds significant richness to Roe's history. In reply, Blackmun told Rehnquist that he would have "conceptual difficulty" in voiding the Texas statute only as it pertained to the first trimester, and reiterated how he still believed the law was unconstitutionally vague, even though his opinion now bypassed that issue entirely. In response to Rehnquist's second question, Blackmun expressed accord: "I agree that after the first trimester a state is entitled to more latitude procedurally as well as substantively." But it fell to Lewis Powell to first broach to Blackmun the biggest question that his November drafts raised, namely whether the Court's forthcoming constitutional ruling should indeed be limited primarily to abortions during just the first trimester of pregnancy. Larry Hammond had highlighted the issue in a six-page memo to Powell on November 27. Hammond was pleased that Blackmun "has embraced the straightforward constitutional view taken by Judge Newman in the Connecticut case," but was unhappy with how Blackmun had identified the end of the first trimester as legally decisive. "Since the statutory prohibition [in Texas] was total, it is unnecessary to the result that we draw the line. If a line ultimately must be drawn, it seems that `viability' provides a better point. This is where Judge Newman would have drawn the line.""

"Doesn't it seem that this language overstates the doctor's role and undercuts the woman's personal interest in the decision?" asked Hammond, following with the recommendation that Powell should advocate the Court instead say that the responsibility would rest "with the physician and his patient."

"Within a day of receiving Hammond's memo, Powell wrote a private letter to Blackmun. "I am enthusiastic about your abortion opinions. They reflect impressive scholarship and analysis." But Powell quickly got to his real question, which was "whether you view your choice of `the first trimester' as essential to your decision." Powell noted how Blackmun himself had volunteered that this choice was "arbitrary" in the cover memo that had accompanied his new drafts, and voiced his own--or his and Hammond's--proposal: "I have wondered whether drawing the line at `viability'--if we conclude to designate a particular point of time--would not be more defensible in logic and biologically than perhaps any other single time." Quoting Judge Newman's language about the constitutional importance of fetal viability, Powell told Blackmun that "I rather agree with the view that the interest of the state is clearly identifiable, in a manner which would be generally understood, when the fetus becomes viable. At any point in time prior thereto, it is more difficult to justify a cutoff date." Powell observed that the Court did not have to say anything, and that Newman's opinion "pointed the way generally toward `viability' without making this an explicit ruling," but Powell's letter was the first intra-Court communication to put the option of extending constitutional protection for abortion choice all the way to fetal viability explicitly on the table."

"Harry Blackmun replied to Powell five days later in a previously unquoted private letter that ironically reveals how highly reluctant Roe's author was to extend the ruling to the point that the Court's actual decision indeed reached: I have no particular commitment to the point marking the end of the first trimester as contrasted with some other point, such as quickening or viability. I selected the earliest of the three because medical statistics and the statistical writings seemed to focus on it and to draw their contrasts between the first three months and the remainder of the pregnancy. In addition, I thought it might be easier for some of the justices than a designated later point. I could go along with viability if it could command a court. By that time the state's interest has grown large indeed. I suspect that my preference, however, is to stay with the end of the first trimester for the following reasons: (1) It is more likely to command a court. (2) A state is still free to make its decisions on the liberal side and fix a later point in the abortion statutes it enacts. (3) I may be wrong, but I have the impression that many physicians are concerned about facilities and, for example, the need of hospitalization, after the first trimester. I would like to leave the states free to draw their own medical conclusions with respect to the period after three months and until viability. The states' judgments of the health needs of the mother, I feel, ought, on balance, to be honored. I would be willing to state, either in the opinion or in a footnote, what is essentially the obvious--namely, that a state is free to leave the decision to the attending physician and to regulate at a later date than the end of the first trimester."

"Larry Hammond expressed elation at Blackmun's memo, telling Powell in a cover note that Blackmun "expresses what I feel is the most important practical consideration. For many poor, or frightened, or uneducated, or unsophisticated girls, the decision to seek help may not occur during the first 12 weeks. The girl might be simply hoping against hope that she is not pregnant but is just missing periods. Or she might know perfectly well that she is pregnant but be unwilling to make the decision--unwilling to tell her parents or her boyfriend." Powell drew a crisp bracket around these sentences when he read Hammond's note, and scrawled a bold, dark "yes" in the margin."

"In response to Blackmun's explicit request for reactions, both Thurgood Marshall and William Brennan quickly endorsed the shift to viability first suggested by Powell. After reviewing Hammond's note, Powell too prepared a letter to Blackmun, saying that "once we take the major step of affirming a woman's constitutional right, it seems to me that viability is a more logical and defensible time for identifying the point at which the state's overriding right to protect potential life becomes evident." Powell noted how "the women who most need the benefit of liberalized abortion laws are likely to be young, inexperienced, unsure, frightened and perhaps unmarried," and observed that "if there is a constitutional right to an abortion, there is much to be said for making it effective where and when it may well be needed most." Powell closed by again mentioning that he was "favorably impressed" with how Jon Newman had "identified viability as the critical time from the viewpoint of the state." Powell left his letter to Blackmun unsent, perhaps in the belief that Marshall's and Brennan's expressions of support had already made the point, or perhaps because he reiterated his views face-to-face. In any event, on December 15 Harry Blackmun notified all of his colleagues that he would be revising his Roe and Doe opinions in the manner recommended, and six days later, new all-but-final drafts were distributed as well. History has correctly recorded Harry Blackmun as the hardworking author of Roe v. Wade, but until now neither the crucial influence of Lewis Powell--nor that of Larry Hammond and Jon Newman has--been fully appreciated."

"Blackmun's clerks played substantial roles in producing his opinions as early as 1971, when the landmark abortion cases Roe v. Wade and Doe v. Bolton first came before the court."

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

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

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

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

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

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

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

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

"The High Court has analyzed classification by gender under an equal protection/sex discrimination rubric; it has treated reproductive autonomy under a substantive due process/personal autonomy headline not expressly linked to discrimination against women. The Court's gender classification decisions overturning state and federal legislation, in the main, have not provoked large controversy; the Court's initial 1973 abortion decision, Roe v. Wade, on the other hand, became and remains a storm center. Roe v. Wade sparked public opposition and academic criticism, in part, I believe, because the Court ventured too far in the change it ordered and presented an incomplete justification for its action. I will attempt to explain these twin perspectives on Roe later in this Essay."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"[I]n thinking about how to resolve Roe, Brennan was then in the process of constructing a systematic framework for the ”fundamental freedoms” that he deemed within the meaning of “liberty.” He viewed the first of three groups of such freedoms as including “freedom from bodily restraint or inspection, freedom to do with one’s body as one likes, and freedom to care for one’s health and person.” For these, he cited Terry v. Ohio, Meyer v. Nebraska, and Jacobson v. Massachusetts, among others. The second group included “freedom of choice in the basic decisions of life, such as marriage, divorce, procreation, contraception, and the education and upbringing of children.” Here he relied on Living v. Virginia, Boddie v. Connecticut, Skinner v. Oklahoma, Eisenstadt v. Baird, Griswold v. Connecticut, and others. The third group included “autonomous control over the development and expression of one’s intellect and personality.” The precedent for this last group was thinner. Brennan cited only Stanley v. Georgia (protecting the possession of obscene materials in the home) and Justice Brandeis’s reference in Olmstead v. United States to a “right to be let alone.” Brennan thought that the decision to have an abortion “obviously fits directly within each of the categories of fundamental freedoms,” and therefore “should be held to involve a basic individual right.” Brennan described this framework in a memo he wrote to Justice Douglas about Roe on December 30, 1971."

"In a long missive to Douglas proposing the fundamental-freedoms framework described above, Brennan also told Douglas that he hoped that Roe would rely on the Ninth Amendment, “as in your proposed Papachristou opinion.” Neither Blackmun’s majority nor Douglas’s concurrence in Roe ultimately drew much on the Ninth Amendment. By 1973, even those like Douglas who had long opposed renewing substantive due process had fallen into line. Douglas’s concurrence in Roe and Doe did, however, largely adopt the categories of fundamental rights Brennan had identified in his memo. Douglas’s most significant divergence from Brennan’s framework unsurprisingly involved Papachristou. Douglas mad ea more explicit connection between Roe/Doe and Papachristou than Brennan had. He added to Brennan’s “freedom to care for one’s health and person,” and “freedom from bodily restraint or compulsion,” his own ‘freedom to walk, stroll, or loaf.” Quoting Papachristou, he called “walking, strolling, and wandering” “historically part of the amenities of life as we have known them.” Douglas described these rights as fundamental and subject to strict scrutiny. Although the final draft of his Papachristou opinion had not made these rights fundamental, the earlier drafts remained alive in his reimagining and reworking of the opinion. Douglas’s opinion in Roe/Doe reads as if his draft opinion in Papachristou had actually been published."

"As Brennan predicted, he and Douglas were not alone in seeing connections between Roe and Papachristou. The constitutional understanding that roe represented would be potentially deeper, more expansive, and more secure with related fundamental rights protected in Papachristou. That security appealed to some Justices and repelled others. Skeptics of this newfound judicial penchant for creating rights saw the connections as threatening rather than auspicious. In particular, Justice Potter Stewart thought Douglas’s opinion off the mark in its constitutional interpretation. Stewart had dissented in Griswold, galled by the Justices' apparent fishing expedition to find some justification for its decision. By 1971, however, Stewart seems to have resigned himself to the growing consensus to base privacy rights to reproduction, contraception, and abortion on a new form of substantive due process. He joined the opinions in Eisenstadt and Roe."

"With Douglas, Brennan, and Stewart provoking us to view Papachristou and Roe together-whether for good or ill-implications beyond those for fundamental-rights doctrine come into focus. In particular, placing the two cases in conversation provides additional fodder for Stuntz’s analysis of the relative absence of constitutional criminal law. Because we usually consider Griswold, Loving, Eisenstadt, Roe, and their ilk as substantive due process or fundamental rights (or even equal protection) cases, we fail to see them as criminal law cases. But they were. They were all cases in which the Court was placing substantive limits on the extent to which the criminal law could be used as a mechanism of morals regulation."

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

"Casey involved a challenge to Roe v. Wade, 410 U. S. 113 (1973). The opinion contains this summary: “It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.” 505 U. S., at 846 (opinion of the Court)."