1973

"The Court's decision in Roe effectively blocked the state legislative process. In the years between Roe and Casey, few state laws survived the Court's imposed value preference allowing the application of lethal force to be applied against the unborn. In Casey, the Court slightly loosened its grip, and brief waiting periods, informed decisionmaking, minor reporting requirements, and parental consent with judicial by-pass, were tolerated by the Court. It seemed, for one transient moment, that Justice Scalia may have been a bit too pessimistic when he wrote that "Roe's mandate for abortion-on-demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level." 112 S.Ct. at 2882."

"As one of the most restrictive abortion laws in the nation, the Texas law, passed in 1858, prohibited abortion unless it was necessary to save the life of the mother. Roe, unmarried and pregnant, challenged the law. She claimed it violated her constitutional right to privacy and the equal protection clause of the Fourteenth Amendment."

"Alternatively, the issues in Roe might have more to do with the question of who bears responsibility for addressing such momentous matters. Should questions about reproductive autonomy be left solely with individuals, or does the community (or the state) have a legitimate interest in such decisions? Is a woman’s relationship with the fetus a matter over which a community ought to have some say, perhaps because such issues raise questions about the conditions of membership in the community? As is obvious from the various opinions in Roe and our questions here, much of the controversy surrounding the case revolves around the role of the Supreme Court in the abortion controversy. The dissents by Justices White and Rehnquist castigate the majority for its “usurpation” of the legislative process and the powers of the people acting through their state governments. Clearly such criticisms, shared by many students of the Constitution, rest upon a particular understanding of the relationship between the democratic process and judicial protection of individual liberties. Do the opinions in Roe address this tension satisfactorily."

"Roe also nicely illustrates how individual liberties are tied to issues of constitutional structure and architecture. Justice White, for example, complained that “The upshot of the majority’s decision] is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. . . . “ Implicit in Justice White’s criticism is concern for the constitutional value of federalism. Roe essentially deprives the states of the ability to take part in a continuing public dialogue over the issues raised by abortion. Remember that prior to Roe, many states had already relaxed their tough anti-abortion laws. Would this trend have continued absent Roe?"

"Even if the Hyde Amendment is revoked, Ziegler and Bridges say that the provision has had a major influence on the anti-abortion movement. Bridges says that the amendment also provided “guidance” to states that wanted a straightforward way to curb abortion funding. “It’s been very impactful as a model of how funds can and should be spent on abortion care,” he said. Ziegler said that the amendment showed the anti-abortion movement early on that there were other ways to limit access to abortion without mounting a direct attack on Roe v. Wade. “For years, the anti-abortion movement’s strategy has been to kind of chip away at Roe and limit access, instead of the more direct attacks that we’ve seen lately. And the Hyde Amendment was the first successful attempt to do that, and it created a road map that really lasted for decades,” says Ziegler."

"WASHINGTON — When the Supreme Court heard arguments in December over the fate of the constitutional right to abortion, it was already clear that other rights, notably including same-sex marriage, could be at risk if the court overruled Roe v. Wade. The logic of that legal earthquake, Justice Sonia Sotomayor predicted, would produce a jurisprudential tsunami that could sweep away other precedents, too. The justices’ questions on the broader consequences of a decision eliminating the right to abortion were probing but abstract and conditional. The disclosure last Monday of a draft opinion that would overturn Roe, the 1973 decision that established a constitutional right to abortion, has made those questions urgent and concrete."

"At the argument, Justice Sotomayor sparred with Scott Stewart, Mississippi’s solicitor general, who was defending a state law banning most abortions after 15 weeks of pregnancy. “I’m not trying to argue that we should overturn those cases,” she said of the other decisions. “I just think you’re dissimilating when you say that any ruling here wouldn’t have an effect on those.” Mr. Stewart tried to distinguish the three other rulings from Roe, saying they were clearer, had given rise to more public reliance and did not “involve the purposeful termination of a human life.” Justice Sotomayor was unimpressed, saying all of the cases were grounded in the same kind of constitutional reasoning. “I’m not sure how your answer makes any sense,” she said."

"“Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception and marriage,” Justice Alito wrote, “but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’”"

"Surprisingly, little research has looked directly at the impact of Roe v Wade on births. The work that has been done has focused on the experience of those states that legalized abortion prior to Roe. However, the experience of these states may result in a misleading impression of the impact of Roe for several reasons. First, since abortion as already effectively legalized in a handful of states, the effect of Roe may have been less pronounced than the effect of initial legalization because many women were already traveling across state lines to receive abortions. Second, women in states where abortion as not legalized until the 1973 court decision may have been less likely to make use of abortion services, even if they were available, than women ins states that chose to legalize abortion earlier Third, many of the evaluations of legalization simply y compared birth rates before and after legalization, thereby conflating the effect of abortion legalization with ongoing declines in fertility around that time that may have been attributable to changes in the availability of contraception, shifts in social attitudes, improved labor market opportunities for women, and the like."

"Our findings indicate that states that legalized abortion prior to the 1973 Roe v Wade Supreme Court ruling experienced a 4% decline in fertility rates relative to other states. Following the Roe decision, fertility rates in these other states fell by a similar magnitude relative to fertility rates in states that had legalized abortion earlier. The relative reductions in births to teens, women more than 35 years of age, non-White women, and unmarried women were considerably larger. In addition, we found that travel between states to obtain an abortion was significant. Estimates obtained from comparisons between early repeal states and distant states (where travel to obtain an abortion as least likely) indicate that abortion legalization reduced births by 11%. These findings imply that a nationwide prohibition of abortion would have a considerably larger impact on births than would a repeal of Roe v Wade in which abortion remained legal in a handful of states."

"Figure 1 displays the difference in fertility rates between repeal states and states with no law change. The pattern shows that differences were roughly constant through 1970. A sharp drop of about 6% observed in 1971 remained through 1973, indicating that fertility rates fell in repeal states relative to states with no law change during this period. Through 1974/75, the difference narrowed, and beginning in 1976 there were few differences between the states. The relative decline in fertility rates in repeal states occurred in exactly the years in which abortion was legal only in repeal states. The partial rebound in 1974/75 may indicate that abortion access in states affected by Roe v Wade increased less quickly following this decision relative to the rapid introduction of abortion services in repeal states in 1970. (A corresponding figure for reform states vs states with no legal changes showed no obvious difference in fertility rates over time and for purposes of brevity is not displayed here.)"

"The results reported in Table 1 indicate that abortion legalization had an effect on fertility rates among all women. Overall, births in repeal states fell by 4% relative to states with no law change between 1971 and 1973. No statistically significant difference in births between the 2 sets of states was observed in 1974;75 or from 1976 to 1980. In addition, these results provide no evidence that modest abortion reforms reduced birth rates, since the estimated differences between fertility rates in reform states and states with no law change were small in magnitude and imply that, if anything, modest reforms were associated with increased birth rates. Table 1 also reports estimates from similar models for fertility among women in different population subgroups. Results indicate that abortion legalization reduced the relative fertility rates of teens and women 35 years of age and older by 12% and 8% respectively, but only by 2% for women between 20 and 34 years of age. Estimates show that births to non-White women in repeal states (vs states with no law change) fell by 12% just following repeal, more than 3 times the effect on White women’s fertility. Nonmarital births fell by almost twice the rate of marital births (5.5% -significant at the 10% level] vs 3.1%) in repeal states between 1971 and 1973 relative to states with no law change. All of these differences disappeared in the years following Roe v Wade."

"What do these results reveal about the potential effects on birth rates if Roe v Wade were ever to be overturned? The answer depends on the uniformity of the ban on abortions across states. If Roe were supplanted by a constitutional amendment outlawing abortion nationwide, we might expect an 11% rise in fertility rates based on the experience of the early 1970s. Applying this estimate to the current level of births (roughly 4 million per year), we estimate that a complete recriminalizaiton of abortion would result in perhaps as many as 44 000 additional births per year. On the other hand, the effect might be considerably smaller if a future Supreme Court decision returned to states the authority to determine the legality of abortion. The increase in births would then depend on the number of states in which abortion remained legal and their geographic distribution (currently, 13 state have laws on the books to recriminalize abortion if Roe v Wade is overturned). If the 5 repeal states were to maintain the legality of abortion, then our findings indicate that birth rates might still increase by perhaps 4.5% in the remaining states that recriminalize abortion. This would result in an increase in births on the order of 135 000 per year (4.5% of the roughly 3 million births in those states that recriminalize.) If more states were to keep abortion legal, the effect on births probably would be smaller since interstate travel to obtain abortions would increase. While our results provide a useful frame of reference, they have important limitations. Changes since 1973 in contraceptive technology, employment opportunities for women, social attitudes, and other factors have altered the environment in which fertility decisions are made. Moreover, a complete evaluation of the impact of overturning Roe v Wade would require consideration of other social, health, and demographic effects. Nevertheless, our results suggest that if Roe v Wade were overturned today, one of the effects would be a substantial rise in American fertility."

"As the 40th anniversary of the Supreme Court’s Roe v. Wade decision approaches, the public remains opposed to completely overturning the historic ruling on abortion. More than six-in-ten (63%) say they would not like to see the court completely overturn the Roe v. Wade decision, which established a woman’s constitutional right to abortion at least in the first three months of pregnancy. Only about three-in-ten (29%) would like to see the ruling overturned. These opinions are little changed from surveys conducted 10 and 20 years ago. Decades after the Supreme Court rendered its decision, on Jan. 22, 1973, most Americans (62%) know that Roe v. Wade dealt with abortion rather than school desegregation or some other issue. But the rest either guess incorrectly (17%) or do not know what the case was about (20%). And there are substantial age differences in awareness: Among those ages 50 to 64, 74% know that Roe v. Wade dealt with abortion, the highest percentage of any age group. Among those younger than 30, just 44% know this."

"There also are educational differences in awareness of which issue Roe v. Wade addressed. Fully 91% of those with post-graduate education know it dealt with abortion, as do 79% of college graduates, 63% of those with only some college experience and 47% of those with no more than a high school education. Identical percentages of women and men (62% each) are aware that Roe dealt with abortion. Nearly seven-in-ten Republicans (68%) answered this question correctly, compared with 63% of independents and 57% of Democrats."

"Those who would like to see Roe v. Wade overturned are particularly inclined to view abortion as a critical issue facing the country. Nearly four-in-ten (38%) of those who support overturning the abortion ruling say abortion is a critical issue, compared with just 9% of those who oppose overturning Roe v. Wade. Among those who favor retaining Roe, 68% say abortion is not that important compared with other issues."

"What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent - at least, it does not if those sources are fairly described and reasonably faithfully followed. Before Roe, the right to contraception established in Griswold v. Connecticut and Eisenstadt v. Baird was a concept that was already barely hanging onto the high ledge of defensible constitutional thinking. In Roe, the Court added a 500 lb. lead weight. And the Court's been looking up at the ledge ever since. Instead, as conservatives now scurry to do with Bush v. Gore, the friends of Roe seek to find other constitutional bases to defend its outcome. Might Roe be a stealth equal protection case - really relating not to the right of privacy, but instead to women's equality? Perhaps, but to say so amounts to a concession that the decision itself, as written, is unsustainable."

"In any event, when Democratic senators oppose a judicial appointment because of the nominee's opposition to Roe, they not only endorse but make a litmus test out of one of the most intellectually suspect constitutional decisions of the modern era. They practically require that a judicial nominee sign on to logic that is, at best, questionable, and at worst, disingenuous and results-oriented. In doing so, they select not for faithful, but for unfaithful, constitutional interpreters to people the federal judiciary. This is a strategy with baleful long-term consequences. The standard critique of liberal judges trumpets their willingness to substitute personal preference for legal analysis - and Roe is universally featured as Exhibit A."

"Since Roe, many states have diminished abortion access by, collectively, issuing more than 1,000 restrictions on the procedure, the majority in midwestern and southern states (see ‘Abortion regulations’)."

"The amicus briefs authored by hundreds of scientists ahead of the Mississippi case address a particular line of argument made by state attorney-general Lynn Fitch and her colleagues in their court filing — namely, that abortion is unnecessary and possibly harmful to women. “Roe and Casey block the States and the people from fully protecting unborn life, women’s health, and their professions,” Fitch and her colleagues write."

"Norma McCorvey filed a Rule 60(b) motion for relief from judgment in which she sought to have the district court revisit the Supreme Court's decision in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). McCorvey, her identity then protected as "Jane Roe," was the named appellant in Roe. The district court denied McCorvey's motion after concluding that it was not filed within a reasonable time after final judgment was entered. We review the district court's denial of relief under Rule 60(b) for abuse of discretion. See Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d 465, 470 (5th Cir. 1998); Flowers v. S. Reg'l Physician Servs., Inc., 286 F.3d 798, 800 (5th Cir. 2002). The district court's denial of an evidentiary hearing is also subject to abuse of discretion review. See Wichita Falls Office Assocs. v. Banc One Corp., 978 F.2d 915, 918 (5th Cir. 1992). On appeal, McCorvey: (1) asserts that the district court improperly refused to convene a three-judge court; (2) challenges the district court's ruling on her Rule 60(b) motion; and (3) contends that she was entitled to an evidentiary hearing on her Rule 60(b) motion. We address each issue in turn."

"Roe v. Wade proceeded before a three-judge district court empaneled pursuant to 28 U.S.C. § 2281. See 28 U.S.C. § 2281 (1970); 28 U.S.C. § 2284 (1970) (controlling the composition and procedure of three-judge district courts). Before its repeal,2 § 2281 required a three-judge district court to hear and determine cases involving injunctions against the enforcement of state statutes based on allegations of unconstitutionality. See Corpus v. Estelle, 551 F.2d 68, 70 (5th Cir. 1977). McCorvey asserts that the single district court judge, who ruled on her Rule 60(b) motion, acted without authority. We disagree. Although the original action was tried by a three-judge district court, the Rule 60(b) motion filed by McCorvey in 2003 was not properly a matter for a three-judge court. In United States v. Louisiana, 9 F.3d 1159, 1171 (5th Cir. 1993), this court ruled, in another action determined under § 2281 by a three-judge court, that a single district court judge, acting alone after the repeal of § 2281, could properly entertain and decide subsequent modified remedial orders. The instant context is no different: A single district court judge can decide threshold questions relating to McCorvey's Rule 60(b) motion even though the underlying judgment was originally tried by a three-judge court under the former § 2281. See, e.g., Bond v. White, 508 F.2d 1397, 1400-01 (5th Cir. 1975). McCorvey argues that the district court abused its discretion in rejecting her Rule 60(b) motion for relief from judgment as untimely. A question necessarily antecedent to McCorvey's substantive claim, however, is whether she has presented a justiciable case or controversy pursuant to Article III of the Constitution. We are under an independent obligation to examine this jurisdictional question."

"Under Texas law, statutes may be repealed expressly or by implication. See Gordon v. Lake, 163 Tex. 392, 356 S.W.2d 138, 139 (1962). The Texas statutes that criminalized abortion (former Penal Code Articles 1191, 1192, 1193, 1194 and 1196) and were at issue in Roe have, at least, been repealed by implication. Currently, Texas regulates abortion in a number of ways. For example, a comprehensive set of civil regulations governs the availability of abortions for minors. See Tex. Fam.Code §§ 33.002-011 (2000). Texas also regulates the practices and procedures of abortion clinics through its Public Health and Safety Code. See Tex. Health & Safety Code §§ 245.001-022; see also Women's Med. Center of Northwest Houston v. Bell, 248 F.3d 411, 414-16 (5th Cir. 2001) (discussing various portions of the Texas Abortion Facility License and Reporting Act). Furthermore, Texas regulates the availability of state-funded abortions. See 25 Tex. Admin. Code § 29.1121 (2002); see also Bell v. Low Income Women of Tex., 95 S.W.3d 253, 256 (Tex.2002). These regulatory provisions cannot be harmonized with provisions that purport to criminalize abortion. There is no way to enforce both sets of laws; the current regulations are intended to form a comprehensive scheme — not an addendum to the criminal statutes struck down in Roe. As the court stated in Weeks, a strikingly similar case, "it is clearly inconsistent to provide in one statute that abortions are permissible if set guidelines are followed and in another provide that abortions are criminally prohibited." 733 F. Supp. at 1038. Thus, because the statutes declared unconstitutional in Roe have been repealed, McCorvey's 60(b) motion is moot.4 Finally, the district court did not abuse its discretion in denying McCorvey's request for an evidentiary hearing. See Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 171 (5th Cir. 1994) (denial of evidentiary hearing affirmed where court had written evidence sufficient to make its decision). An evidentiary hearing would have served no useful purpose in aid of the court's analysis of the threshold questions presented, which, as we explained, precluded the relief McCorvey sought. I agree that Ms. McCorvey's Rule 60(b) case is now moot. A judicial decision in her favor cannot turn back Texas's legislative clock to reinstate the laws, no longer effective, that formerly criminalized abortion. It is ironic that the doctrine of mootness bars further litigation of this case. Mootness confines the judicial branch to its appropriate constitutional role of deciding actual, live cases or controversies. Yet this case was born in an exception to mootness1 and brought forth, instead of a confined decision, an "exercise of raw judicial power." Roe v. Bolton, 410 U.S. 179, 222, 93 S. Ct. 762, 763, 35 L. Ed. 2d 147 (1973) (White, J., dissenting). Even more ironic is that although mootness dictates that Ms. McCorvey has no "live" legal controversy, the serious and substantial evidence she offered could have generated an important debate over factual premises that underlay Roe."

"McCorvey presented evidence that goes to the heart of the balance Roe struck between the choice of a mother and the life of her unborn child. First, there are about a thousand affidavits of women who have had abortions and claim to have suffered long-term emotional damage and impaired relationships from their decision.2 Studies by scientists, offered by McCorvey, suggest that women may be affected emotionally and physically for years afterward and may be more prone to engage in high-risk, self-destructive conduct as a result of having had abortions.3 Second, Roe's assumption that the decision to abort a baby will be made in close consultation with a woman's private physician is called into question by affidavits from workers at abortion clinics, where most abortions are now performed. According to the affidavits, women are often herded through their procedures with little or no medical or emotional counseling.4 Third, McCorvey contends that the sociological landscape surrounding unwed motherhood has changed dramatically since Roe was decided. No longer does the unwed mother face social ostracism, and government programs offer medical care, social services, and even, through "Baby Moses" laws in over three-quarters of the states, the option of leaving a newborn directly in the care of the state until it can be adopted.5 Finally, neonatal and medical science, summarized by McCorvey, now graphically portrays, as science was unable to do 31 years ago, how a baby develops sensitivity to external stimuli and to pain much earlier than was then believed.6 In sum, if courts were to delve into the facts underlying Roe's balancing scheme with present-day knowledge, they might conclude that the woman's "choice" is far more risky and less beneficial, and the child's sentience far more advanced, than the Roe Court knew. This is not to say whether McCorvey would prevail on the merits of persuading the Supreme Court to reconsider the facts that motivated its decision in Roe.7 But the problem inherent in the Court's decision to constitutionalize abortion policy is that, unless it creates another exception to the mootness doctrine, the Court will never be able to examine its factual assumptions on a record made in court. Legislatures will not pass laws that challenge the trimester ruling adopted in Roe (and retooled as the "undue burden" test in Casey; see Casey, 505 U.S. at 872-78, 112 S. Ct. at 2817-21). No "live" controversy will arise concerning this framework. Consequently, I cannot conceive of any judicial forum in which McCorvey's evidence could be aired. At the same time, because the Court's rulings have rendered basic abortion policy beyond the power of our legislative bodies, the arms of representative government may not meaningfully debate McCorvey's evidence. The perverse result of the Court's having determined through constitutional adjudication this fundamental social policy, which affects over a million women and unborn babies each year, is that the facts no longer matter. This is a peculiar outcome for a Court so committed to "life" that it struggles with the particular facts of dozens of death penalty cases each year."

"Webster v. Reproductive Health Services (1989) sparked renewed interest in the abortion debate by raising serious doubts about the future of Roe v. Wade. The case centered on a number of provisions in a 1986 Missouri abortion law, including a preamble that declared that life began at conception, a ban on abortions at public hospitals, and a test to determine fetal viability. The preamble to the Missouri law stated that human life “begins at conception” and that the state had an interest in an unborn child’s “life, health, and well-being.” The state justified this provision by arguing it simply extended the protections of tort, property, and criminal law to the fetus and that it had no effect on abortion policy because it specified that it must be interpreted in a manner consistent with past Supreme Court decisions. Chief Justice William H. Rehnquist’s plurality opinion for himself and Justices Byron White and Anthony Kennedy declined to resolve this issue, ruling that the Court did not have to decide on the constitutionality of the preamble because it did not regulate abortion; rather, it was merely expressing the state’s legitimate preference for childbirth over abortion."

"The most significant part of the law was the fetal testing section because it appeared to implicate the trimester framework established in Roe v. Wade. This section required that if physicians believed a woman was at least 20 weeks pregnant, before performing an abortion on her, they must first do a series of tests to determine whether the fetus was viable. The lower court ruled that because these tests were costly and potentially dangerous to the woman and the fetus, the provision was unconstitutional. Chief Justice Rehnquist and the other two members of the plurality upheld the law, interpreting it to require physicians to perform the tests only when they believed they would help to determine viability, not in all cases. He acknowledged that the Missouri law was inconsistent with Roe v. Wade by allowing viability tests during the second trimester. But instead of overruling the 1973 decision, the Rehnquist plurality attempted to resolve the conflict between Roe v. Wade and the Missouri law by abandoning the rigid trimester framework. It approved the fetal test provision as a permissible method for the state to further its interest in protecting fetal life, which, in their view, was not simply limited to the third trimester. Conceding that it would allow government regulation of abortion that would have been forbidden under Roe v. Wade, Rehnquist seemed to invite legislatures to pass laws challenging that ruling and indicated that he believed the trimester framework adopted in Roe v. Wade should be modified in future cases."

"We are here today upon the occasion of the 25th anniversary of the United States Supreme Court decision in Roe v. Wade, a decision which ruled unconstitutional a body of State-level laws that proscribed, at least on paper, the performance of most abortions. Most of the laws struck down by Roe had been passed in the last third of the 19th century under social, political, and medical conditions very different from those the Nation has faced in the last quarter of this century, and passage of those laws was pressed by very different forces than those now engaged in the abortion debate."

"[I]n 1973 Roe v. Wade shattered the issue of abortion into sharp fragments. We are still dealing with the medical, social, and political fallout of the Supreme Court’s willingness to go far beyond the traditional boundaries of medical ethics and practice. The tenets of Hippocratic medicine have served us well for more than 2000 years, but our 25-year experiment with unrestricted abortion has caused the practice of medicine to become increasingly inconsistent, and the tension between valuable ethical traditions and currently legal medical practice is untenable."

"The standard criticism of Roe v. Wade is that the Supreme Court indulged in "Lochnering": the improper second-guessing of a legislative balance. Rarely does the Supreme Court invite critical outrage as it did in Roe by offering so little explanation for a decision that requires so much. The stark inadequacy of the Court's attempt to justify its conclusions - that abortion implicates women's "privacy," that only the most important state interests may supersede that right, and that they may do so only after certain stages of pregnancy- suggests to some scholars that the Court, finding no justification at all in the Constitution, unabashedly usurped the legislative function. Professor Ely, the first to cry "Lochner," could only adduce from the opinion that the Court "manufactured a constitutional right out of whole cloth and used it to superimpose its own view of wise social policy on those of the legislatures." Even some who approve Roe's form of judicial review concede that the opinion itself is inscrutable."

"[M]ore was at stake in the Supreme Court's handling of Roe than the wrath of critics: By taking an abortion case when it did, the Court forestalled the development of one of its •traditional aids for deciding difficult questions - a thoughtful lower-court case law."

"The politically unsettled and judicially confused law of abortion in 1971 and 1972, when the Court twice heard arguments and deliberated Roe, should have warned it not to decide the case. By doing so; the Court thrust itself into a political debate and stunted the development of a thoughtful lower-court case law. If the Court did perceive the warnings but continued toward a decision anyway, perhaps trusting that its own considerable wits would devise an answer the lower courts had not, the result suggest--that the judicial system's axioms deserve more respect than they received."

"In 1973, political forces were still vigorously debating abortion. Most states had prohibited abortions, except to save a woman's life, since the nineteenth century, but a movement was afoot to relax that restriction. In the five years immediately preceding Roe, thirteen states had revised their statutes to resemble the Model Penal Code's provisions, which allowed abortions not only if the pregnancy threatened the woman's life, but also if it would gravely impair her physical or mental health, if it resulted from rape or incest, or if the child would be born with grave physical or mental defects.11 Four states had removed all restrictions on the permissible reasons for seeking an abortion before a pregnancy passed specified lengths. Furthermore, as the Supreme Court noted in Roe, both the American Medical Association and the American Bar Association had only recently changed their official views on abortion (and not without opposition). The abortion debate was not merely one of how far to relax restrictions, however. At least one of the states whose restrictive statutes were judicially invalidated had in 1972 reaffirmed its determination to prohibit abortions unless necessary to save the woman's life. And since several of the pre-Roe constitutional challenges were raised by defendants in state abortion prosecutions, it is clear that at least those states had not allowed their abortion statutes to lapse into desuetude. In short, the political process in many states had yet to decide on abortion. But Roe's sweeping rejection of Texas's statute voided almost every other state's as well."

"Roe v. Wade seemed to settle the abortion question, holding that a pregnant woman has a right to privacy (pursuant to the 14th Amendment of the US Constitution), which includes the right to terminate a pregnancy. The Court did not recognize an absolute right to abortion, instead acknowledging that that State has an interest in the protection of potential life, an interest that increases in strength as the pregnancy progresses. In Roe v. Wade, the Court created a ‘trimester framework’ to mirror the growing importance of the State interest in protecting fetal life (and the reduced safety of the abortion procedure itself) as pregnancy advances. The Roe. v Wade framework permitted abortion without restriction in the first trimester of pregnancy; in the second trimester, the State was permitted to regulate some aspects of abortion (in essence, where the procedure can be performed, and by whom). Finally, in the third trimester of pregnancy, States were free to prohibit abortion except where necessary to preserve the life or health of the pregnant woman. Fetal viability (the stage at which a fetus is theoretically capable of sustained life outside of the pregnant woman’s body) was the point at which the State’s interest in protecting potential life became ‘compelling’. Since 1973, the abortion right has remained profoundly contentious, with opponents of abortion continuing to attempt to circumscribe (or even abrogate) the right articulated in Roe v. Wade. The challenges to Roe v Wade have come primarily in the form of state legislation that limits women’s ability to exercise the right to terminate pregnancy. The continued attempts to legislate such limits have meant that the issue of abortion rights has returned to the US Supreme Court on a number of occasions. These legislative efforts have had variable results; although the Court has not resiled from the basic holding in Roe v Wade, the continued attacks on that decision (and the partial successes its opponents can claim) make it clear that abortion rights in the US cannot be taken for granted."

"In Planned Parenthood of Southeastern Pennsylvania v Casey, an important post-Roe v Wade case, the constitutionality of several provisions of a Pennsylvania lw was disputed. The impunged provisions included a requirement that a woman’s spouse be notified of her plan to terminate her pregnancy, a mandatory 240hour wait between a first consultation respecting abortion and the procedure itself, mandatory informed consent provisions and a parental consent requirement where a minor sought abortion services. In its decision in Casey, the Court abandoned the trimester framework set out in Roe v Wade, holding that the state has a legitimate interest in fetal life from the beginning of pregnancy and that this interest becomes compelling at viability. The Casey decision means that there is no longer an unqualified right to terminate a pregnancy in the first trimester and that the state may regulate the provision of abortion services throughout pregnancy, provided that the regulation does not amount to an ‘undue burden’ on women’s right to choose abortion. The question for the court in making this determination is whether the law in question ‘has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus’. In the end, the Casey Court upheld all of the disputed provisions save the spousal notification requirement."

"Ms. McCorvey told Mr. Rowan that she had fabricated her account of being raped by three men and a woman in 1969 because she had hoped to circumvent a 100-year-old Texas law that banned abortions except when the woman's life was in danger. 'What I Thought Was Love' Ms. McCorvey said that she had actually become pregnant through what I thought was love and that she decided to challenge the state law when her doctor told her that she could not legally have an abortion in Texas. In 1970, her lawyers filed a Federal suit against Henry Wade, the Dallas County District Attorney. The suit, protecting her anonymity by identifying her as Jane Roe, was eventually upheld by the Supreme Court, which, in legalizing abortion on Jan. 22, 1973, cited the 14th Amendment's privacy protections. The transcript of the interview does not make clear why Ms. McCorvey thought that an account of rape would necessarily help win exemption from, or overturn, a law that allowed abortion only to protect a woman's life. Ms. McCorvey, now a 39-year-old apartment house manager in Dallas, has an unlisted telephone number there and could not be reached for comment tonight. However, Mr. Rowan, reached at his Washington home, said, She told me that she thought she would win so much public support by claiming that she was gang raped that she might get an exception from the Texas law."

"Ms. McCorvey was 21 years old when she became pregnant. At the time, she was working as a waitress and, she told Mr. Rowan, was too poor to travel to California, the closest state where abortion was legal, or to afford local illegal abortionists. I was very depressed, she said. How dare them tell me that I couldn't abort a baby that I did not want! Unable to have an abortion in Texas or travel to another state, she said, she grew bitter, very bitter, and in her anger fabricated the rape story."

"In one passage the Court spoke of the unborn before viability as "a theory of life," as though there were competing views as to whether life in fact existed before viability. The implication could also be found that there was no reality there in the womb but merely theories about what was there. The Court seemed to be uncertain itself and to take the position that if it were unsure, nobody else could be sure. In another passage the Court spoke of life in the womb up to birth as "potential life." This description was accurate if it meant there was existing life with a great deal of development yet to come, as one might say a 5-year-old is "potential life" meaning that he or she is only potentially what he or she will be at twenty-five. The Court's description was inaccurate if the Court meant to suggest that what was in the womb was pure potentiality, a zero that could not be protected by law. To judge from the weight the Court gave the being in the womb-found to be protectable in any degree only in the last two months of pregnancy-the Court itself must have viewed the unborn as pure potentiality or a mere theory before viability. The Court's opinion appeared to rest on the assumption that the biological reality could be subordinated or ignored by the sovereign speaking through the Court."

"The progeny of Roe have confirmed the Kelsenite reading of Roe that there is no reality that the sovereign must recognize unless the sovereign, acting through the agency of the Court, decides to recognize it. This view would be psychologically incomprehensible if we did not have the history of the creation of the institution of slavery by judges and lawyers. With that history we can see that intelligent and humane lawyers have been able to apply a similar approach to a whole class of beings that they could see-that they were able to create a mask of legal concepts preventing humanity from being visible. A mask is a little easier to impose when the humanity concealed, being in the womb, is not even visible to the naked eye."

"IN HER BOOK THE NEW JIM Crow, Michelle Alexander argues that the system of mass incarceration in the United States, fueled by the war on drugs, operates in a seemingly color-blind, race-neutral way to create a new Jim Crow system that forces African Americans, especially African American men, into a permanent underclass.1 I believe that attacks on Roe v Wade2 and efforts to treat fertilized eggs, embryos, and fetuses as separate legal persons will establish a system of law in which women who have abortions will go to jail. Furthermore, all pregnant women are at risk of being assigned to a second-class status that will not only deprive them of their reproductive rights and physical liberty through arrests, but also effectively strip them of their status as full constitutional persons. Here I address major changes in US law enforcement since Roe v Wade was decided in 1973 that make it likely that if Roe is overturned women who have abortions will be arrested and sentenced to incarceration. I discuss how efforts to undermine Roe and to establish separate legal personhood for fertilized eggs, embryos, and fetuses are already providing the basis for the arrests and detentions of and forced interventions on pregnant women. I conclude that these efforts, if unchecked, not only will result in massive deprivations of pregnant women’s liberty, but also will create a basis for ensuring a permanent underclass for pregnant women or, for lack of a better term, a new Jane Crow."

"This new era of mass incarceration—which is largely accepted by the public, defended by an army of lobbyists, and justified by a war on drugs deeply rooted in America’s history of slavery and racism1, makes it far more likely today than in 1973 that if Roe is overturned women will themselves be arrested and jailed. It is also likely that women having or considering having abortions will be subject to far more government surveillance than in the past. Federal and state law enforcement agencies are twice as big as they were in 1973, and their investigative powers—including wiretapping—have been dramatically expanded. Moreover, since 1973 drug testing has become a multibillion-dollar industry. As a result of US Supreme Court decisions and local policies, even middle school students who want to join the afterschool scrapbooking club are being required in some schools to submit to urine drug testing. Once a urine sample is in the possession of state authorities, it may just as easily be used to test for pregnancy. In the post-Roe world, however, it is not only women who seek to end pregnancies who must fear the possibility of surveillance and arrest. Approximately one million women in the United States each year terminate their pregnancies, close to another million suffer miscarriages and stillbirths, and more than four million women continue their pregnancies to term. Each and every one of these women benefits from the US Supreme Court’s decision in Roe v Wade, which not only protects a woman’s right to terminate her pregnancy but also, as later US Supreme Court cases explained, has been “sensibly relied upon to counter” attempts to interfere with a woman’s decision to become pregnant or to carry her pregnancy to term. As a result, all pregnant women, not just those seeking to end a pregnancy, risk losing their reproductive rights and their liberty."

"While the case did not involve the abortion issue, in Matter of Baby M., a New Jersey state court struck down an abortion clause in a surrogacy contract prohibiting abortion except as allowed by the male promisor on the ground that its enforcement would violate the surrogate mother’s constitutionally protected right, under Roe v. Wade, to decide whether to have an abortion. It was clearly the court’s view that the abortion provision could not be enforced by an action for injunctive relief to prohibit an otherwise lawful abortion."

"Roe v. Wade established as a matter of constitutional law that during the first trimester of a pregnancy, the fetus is not owed a duty of care. Without a duty, there can be no breach and thus no injury giving rise to damages. As plaintiffs continue to push courts that have either refused to recognize this tort or have not had the issue presented to it, defense counsel should raise the unconstitutionality of these claims. For counsel in the three states that have recognized this tort, we urge defense counsel to aggressively argue the unconstitutionality of the tort when it is asserted."

"The Supreme Court has thus created one of the most permissive abortion regimes in the world; the United States, for example, is one of only seven nations allowing elective abortions after 20 weeks of pregnancy. More importantly, this regime is far more permissive than under either the common law or statutes during centuries of English or American law. Many support this extreme policy, many others oppose it, but the issue for the Supreme Court is whether the Constitution of the United States requires it."

"Justice Harry Blackmun devoted more than half of his majority opinion in Roe v. Wade to an account of “the history of abortion, for such insight as that history may afford us.” This narrative preceded any legal analysis and, rather than any interpretation of the Constitution, is Roe’s real foundation. While it has acquired the status of “orthodox abortion history,” however, this narrative has been crumbling since it was created. As Roe was heading for the Supreme Court, Cyril Means, General Counsel of the National Association for the Repeal of Abortion Laws, was constructing a “radically revisionist history” of abortion in America. His goal was to paint a long-term picture of abortion as a common procedure that the law treated lightly, if at all, in order to support the argument that abortion should be recognized as a constitutional right. To that end, Means made two primary claims that the Supreme Court would later embrace: American women enjoyed a “liberty of abortion” under the common law “at every stage of gestation,” and the 19th-century statutes that replaced the common law were enacted “to protect the health of mothers, not to protect the lives of unborn children.” This narrative “simply left the unborn child out of the moral and legal equation.” The legal team challenging the Texas abortion statute in Roe placed Means’ narrative at the center of their argument despite their own concern, reflected in an internal memorandum, that his conclusions “sometimes strain credibility.” This was a profound understatement, as a vast amount of scholarship and commentary, including by abortion rights supporters, has exposed the Means–Blackmun narrative as selective at best—and fiction at worst."

"The Means–Blackmun narrative’s claim that protection of unborn children played no part in the enactment of increasingly restrictive 19th-century abortion laws blatantly defies a clear historical record. At its May 1859 meeting, for example, the American Medical Association (AMA) heard a report that rejected the “mistaken and exploded medical dogma” that the unborn child has no “independent and actual existence...as a living being.” The AMA unanimously adopted a resolution that condemned the “unwarrantable destruction of human life” and “the slaughter of countless children” and sought “the zealous co-operation of the various state Medical Societies” in pressing for laws prohibiting abortion, “at every period of gestation,” except when necessary to save the mother’s life."

"The Supreme Court itself made public opinion about abortion relevant by basing Roe’s holding on the “history of abortion,” including “man’s attitudes toward the abortion procedure over the centuries.” In addition, one of the factors the Supreme Court considers when deciding whether to overrule a precedent is whether it has been “universally accepted, acted on, and acquiesced in by...the general public.” In this context, the issue is whether the general public supports the legality of the abortions that would have remained illegal without Roe v. Wade. These abortions are performed for reasons defined by how women wish to live their lives and correspond to the factors covered by the Court’s definition of “health,” such as “physical, emotional, psychological, familial, and the woman’s age.” The abortions made legal by Roe v. Wade are also sought to avoid the “detriment” that the Court said prohibiting abortion would impose, including “the distress, for all concerned, associated with the unwanted child...[and] the additional difficulties and continuing stigma of unwed motherhood.”"

"By the time the Court decided Roe v. Wade, the Supreme Court’s privacy jurisprudence was already in disarray. Griswold said that the right to privacy is found in the penumbra of the Bill of Rights, Eisenstadt extended Griswold but on equal protection grounds, and the district court in Roe said that the right to abortion is found in the Ninth Amendment. In Roe, the Supreme Court added multiple jurisprudential wrinkles by holding that the right to privacy is instead “founded in the Fourteenth Amendment’s concept of personal liberty.” The Court thus appeared to transplant the requirement of a “compelling state interest” for infringing on a “fundamental” right from the equal protection to the due process context, but failing to apply this standard at all. Dissenting inRoe, Justice William Rehnquist wrote that the Court “will accomplish the seemingly impossible feat of leaving this area of the law more confused than [the Court] found it.” Justice Clarence Thomas has explained that federal judges “interpret and apply written law to the facts of particular cases.” The Supreme Court, however, eschewed this basic approach in Roe v. Wade, putting off any examination of the constitutional issue at the heart of the case until Section VIII, nearly 40 pages into a 54-page majority opinion. Blackmun acknowledged both that “[t]he Constitution does not explicitly mention any right of privacy” and that the presence of the unborn child makes abortion “inherently different” from other unenumerated rights that the Court had deemed to be fundamental. Because the right to abortion had no connection to the Constitution’s text—and barely any connection to precedent—Blackmun justified creating the right to abortion by offering a list of “detriment[s]” that “denying this choice” would impose."

"Rather than defending what the Supreme Court actually said in Roe, some scholars resort to “rewriting” it or suggesting “what Roe v. Wade should have said.” Just 14 years after Roe was decided, the critical literature had so proliferated that three scholars organized it into 12 different categories. Scholars and commentators across the ideological spectrum have shown how little, if anything, Roe has to commend it. Professor John Hart Ely, who candidly favored Roe’s result, called it a “very bad decision...because it is...not constitutional law and gives almost no sense of an obligation to try to be.”"

"Professor Mark Tushnet writes that “[m]ost academic commentators probably believe that, as a matter of sound public policy, access to abortions should be relatively unrestricted. But none has been able to provide conclusive arguments that the Supreme Court correctly found that policy in the Constitution.”"

"The right not to kill easily surpasses the historical foundations offered by the Court in Roe and Lawrence. Roe and Lawrence concerned practices that were illegal for most of the nation’s history, and were not expressly protected in law until the recent past. Yet both were deemed sufficient for substantive due process protection. In contrast, the right not to kill has enjoyed broad legal protection, across a variety of different contexts and times. Simply put, if Roe and Lawrence pass the historical foundations test, the right not to kill does so with flying colors."