Roe v. Wade

"A careful examination of the Texas and Georgia statutes involved in this case undermines the states’ claims that these statutes are narrowly tailored to achieve a compelling state interest in preserving potential human life from the moment of conception. Georgia’s abortion statute, like many others, permits an exception for pregnancies due to statutory or forcible rape. 26-1202(a)(2). If Georgia is asserting an overriding interest in the life of human beings from the moment of their conception, it is not clear why fetuses conceived through rape are any less valuable to the state than fetuses conceived through consensual sex by adults. Surely the circumstances of pregnancy do not make these fetuses less human or less valuable as human beings. Compelling interests may be sacrificed to achieve other interests equally compelling, but Georgia has offered no equally compelling reason to permit the intentional destruction of what it understands to be human lives. Rather, the exemption for rape suggests that the state’s interest in the fetus is strongly connected to beliefs about maternal responsibility-that women who are the victims of statutory or forcible rape are not responsible for engaging in sexual intercourse that led to their pregnancy, and for that reason they should have a right to abortion. In the context of its more general prohibition on abortions, Georgia’s exemption for rape seems to be premised on the notion that adult women who engage in se are responsible for the pregnancies that result even if they are due to contraceptive failure, and even if the sex was the result of coercion that falls short of the legal definition of rape in the relevant jurisdiciton. Viewing the states asserted interest from the standpoint of the pregnant woman, they take on a somewhat different cast, which, given our previous discussion of the relationship between abortion regulation and the maintenance of sex inequality, raises considerable qualms, if not outright skepticism. We do not think that Georgia has a compelling interest in forcing women who have sex to become mothers unless they have been raped. At oral argument, counsel for Georgia informed us that the exception for rape is also intended to permit abortions for pregnancies resulting from incest. Tr. Of Oral Rearg. 23. Although there is some evidence that children born of close relatives have a slightly higher chance of birth defects, most are perfectly health. If the state is truly asserting that every fetus is a human life from the moment of conception, it is not clear why fetuses produced through incestuous sexual relations are less worthy of protection than any others. To be sure, in some cases the life of pregnant minors may be endangered by bringing a fetus to term, but not all cases of incest involve minors, and Georgia already has an exemption for situations in which the mother’s life would be endangered. Once again, Georgia’s exemption undercuts its claim that the interest in fetal life is so compelling from the moment of conception that a woman must be forced to bear a child under all circumstances."

"Texas’s statute, by contrast, makes no exception for rape or incest. It permits abortion only to save the life of the mother, and it might be justified on the grounds that the compelling interest in preserving potential human life may yield only to the equally compelling interest in preserving existing human life. Although Texas’s law appears to make fewer exceptions than Georgia’s and therefore seems more devoted to the principle of fetal life, it actually contains a different sort of exemption. It holds doctors liable for performing abortions, but not pregnant women for having them. This exemption cannot be justified as an incentive for women to turn in the doctors who performed abortions on them, for it also applies to women who ingest abortifacients or otherwise perform abortions on themselves. Texas’s statute is thus conspicuously underinclusive given the state’s asserted interests in the protection of fetal life. The most likely reason for the failure to hold women liable is that protection of fetal life was not in fact the statute’s actual purpose. When the statute was originally passed in 1854, its goal was to prevent unscrupulous doctors from injuring women through botched abortions. Medicine was a largely unregulated profession at the time, and quacks abounded, preying on the vulnerabilities and fears of pregnant women. If the original purpose of the statute was the protection of maternal health and safety, Texas cannot justify a total ban on abortions today, for abortions can be performed safely by licensed physicians and are often less dangerous to the woman’s health than carrying the fetus to term."

"Texas’s criminal prohibition bans virtually all abortions performed by a licensed physician at any point in a pregnancy, except when necessary to save the mother’s life. For this reason alone, it is overbroad and therefore unconstitutional. The Georgia statute, by contrast, imposes a number of substantive and procedural restrictions on abortions. The three-judge District Court in the Georgia litigation struck down the three staturorily specified reasons for permitting an abortion, so that p .2226-1202(a) of the statute now provides that it is criminal for a physician to perform an abortion except when it is “based upon his best clinical judgment that an abortion is necessary.” Appellants argue that because of the way that the District Court severed portions of the statute, the law no longer gives fair warning as to what conduct is required and therefore is unconstitutionally vague. We need not decide that question, because the Georgia statute is unconstitutional for other reasons."

"Even if Georgia’s statute were interpreted to allow abortions through-out pregnancy, the statute also imposes three procedural, requirements that restrict access to abortions. First, the Georgia statute demands that all abortions must be performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals. Second, it requires that the procedure be approved by an abortion committee composed of members of the hospital staff. Third, it requires that the performing physician’s judgment be confirmed by independent examinations of the patient by two other licensed physicians. For Georgia’s statute to be constitutional, Georgia must show that its regulations materially further the woman’s interest in health without significantly burdening her right to an abortion. None of these three requirements meet this standard."

"Georgia requires abortions to be performed in hospitals, but it has not demonstrated that licensed physicians cannot perform safe abortions in properly licensed clinics. It has not provided substantial evidence to show that the full resources of licensed hospital are necessary to protect women’s health. Appellants and amici, by contrast, have provided considerable evidence that the state’s interests in maternal health are well served by licensed clinics equipped with staff and service necessary to deal with the complications that rise from abortions, or by clinics that have made arrangements with a nearby hospital to provide those services in case of an emergency. Georgia’s hospital requirement unnecessarily limits access to safe abortions for women who are not located near hospitals that perform abortions; it also limits access for poorer women who cannot afford the cost of a hospital stay. Georgia may not impose unnecessary costs on abortion that are unrelated to a woman’s health. Georgia’s requirement that the hospital also be licensed by the JCAH only compounds the obstacles placed in the path of the pregnant woman. The JCAH is a nongovernmental organization devoted to articulating optimal standards for medical care rather than minimum standards. Georgia does not require that other forms of surgery be performed only at JCAH-accredited hospitals. Indeed, we were informed at reargument that only 54 of Georgia’s 119 counties have a JCAH-accredited hospital. Tr. Of Oral Ar. 19. Perhaps equally important, the JCAH’s standards are directed at medical and surgical practices generally, and pay no specialized attention to issues of abortion. Georgia has not explained how this requirement furthers its interests in maternal health and safety. Georgia also requires that a hospital committee composed of members of the hospital staff approve all abortions in advance. Georgia has not informed us of any other surgical procedures, including life-threatening ones, where it require that a physician’s judgment be approved by a hospital committee. Rather, this rule seems designed to supervise and restrain both women who seek abortions and physicians who regularly perform them. Georgia has offered no basis for believing that women will seek abortions for frivolous reasons. Indeed, it is more likely that the decision to have an abortion is one of the most serious and heart-rending decisions that a woman may make in her lifetime. In addition, Georgia has offered no reasons to believe that physicians who perform abortions are more likely than other surgeons to encourage their patients to engage in unnecessary surgery. For similar reasons, Georgia’s requirement that the performing physician’s judgment be confirmed by independent examinations of the patient by two other licensed physicians also falls afoul of the Constitution. Georgia does not impose this requirement for any other medical procedures or surgeries, even life-threatening surgeries. If attending physicians are duly licensed by the State, they are presumed capable of deciding what their pateints’ needs are. If they fail in the exercise of their medical judgment, they may be sanctioned or censured and their licenses revoked. Physicians are trained and encouraged to consult with other physicians as a matter of course in difficult cases, and Georgia has offered no reason to think that physicians will not follow this practice in cases of abortion. Rather, in this as in other challenged regulations, Georgia appears to be treating abortions as a special kind of medical procedure that should be discouraged through a series of procedural hurdles. It may not burden the exercise of a fundamental right in this fashion. Apellats also challenge Georgia’s requirements under p 1201(b)(1) and (b)(2) that the pregnant woman be a resident of the State and that she swear an oath to that effect. Georgia’s prohibition is not an internal regulation of its own hospitals; it applies alike to public and private facilities throughout the State, all of which are forbidden to perform this particular medical procedure for nonresidents Georgia has made no showing that there is a crisis in the delivery of health care for citizens or a shortage of available clinics and hospitals. Under Article Iv, p 2, states must provide to citizens of other states the same the privileges and immunities as are enjoyed by its own citizens. We do not think that Article Iv p 2 allows a state to prohibit te provision of medical care to noncitizens. See Toomer v. Witsell, 334 U.S. 385 (1948). We therefore hold the residency requirement unconstitutional."

"1. Texas’s abortion statute, codified in Chapter 9 of Title 15 of the Penal Code, Art. 1191-1196, Vernon’s Ann.P.C., provides: <br Article 1191. Abortion If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. By “abortion” is meant that the life of the fetus or embryo shall be destroyed in the woman’s womb or what a premature birth thereof be caused. Art. 1192. Furnishing the means Whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice. Art. 1193 Attempt at abortion If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce abortion, provide it be sown that such means were calculated to produce that result, and shall be fined not less than one hundred nor more than one thousand dollars. Art. 1194. Murder in producing abortion If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same, it is murder. Art. 1195. Destroying unborn child Whoever shall during parturition of the mother destroy the vitality or life in a child in a state of being born and before actual birth, which child would other-wise have been born alive, shall be confined in the penitentiary for life or for not less than five years."

"6. Dr. Hallford, a physician who performs abortions, soguth and was granted leave to intervene in Roe’s class action. He alleged that he had been arrested for violating Texas abortion statutes and that two prosecutions are still pending against him. We have held that state criminal defendants may not challenge pending criminal prosecutions in federal court if they could raise their federal constitutional claims adequately in state proceedings. Younger v. Harris, 401 U.S. 37 (1971). However, Younger may not properly apply if, as Dr. Hallford asserts, under Texas law, he cannot, in the pending state criminal proceedings, seek temporary injunctive relief that would allow him to perform new abortions. We need not decide if this assessment of Texas state law is correct, or whether Younger would apply if it is correct. If Roe is able to obtain a declaration that the Texas statute is unconstitutional, this will resolve the constitutional issues in Dr. Hallford’s criminal prosecution."

"WASHINGTON – A bill to roll back state restrictions on abortions drew the fire of two Tennessee Republicans on Tuesday. “This legislation would jeopardize and nullify hundreds of laws that protect both mothers and their unborn children,” testified Rep. Marsha Blackburn, R-Brentwood. “Abortions not only pose serious physical health risks, but endanger a woman’s mental health as well,” added Rep. Diane Black, R-Gallatin. Their comments came as the Senate Judiciary Committee held a hearing on the Women’s Health Protection Act. The bill, which has 124 cosponsors in the House and 35 in the Senate, is an attempt to strike back at state laws passed in recent years making it more difficult for abortion clinics to stay in business and for women to have access to the procedure. The measure would prohibit states from applying restrictions to abortions not applied to other medical procedures. The committee devoted the hearing to testimony from four women lawmakers who are outspoken on abortion rights: Blackburn and Black in opposition to them and Sen. Tammy Baldwin, D-Wis., and Rep. Judy Chu, D-Calif., in support of them. The two Democrats said the legislation addresses an urgent need to protect a woman’s rights under the 1973 Roe v. Wade Supreme Court ruling that legalized abortions. They said those rights have been ground down by a deluge of 205 new restrictions in various states in just the past three years. “Some politicians are doing this because they think they know better than women and their doctors,” Baldwin said. “The fact is, they don’t. Women are more than capable of making their own personal, medical decisions without consulting their legislator.” Added Chu: “Every woman should have access to affordable and comprehensive health care coverage that protects her right to choose.” Chu said it shouldn’t matter “the state she resides in.”"

"McCorvey’s ideological conversion is all the more fascinating as it was not an isolated incident. Roe v. Wade was tried in the Supreme Court alongside another case, Doe v. Bolton, the product of lawyer Margie Pitts Hames’s crusade against what she referred to as Georgia’s “cumbersome, costly, and time consuming” abortion restrictions.1 Like Roe v. Wade, Hames and the legal team behind Doe v. Bolton protected their pregnant plaintiff by assigning her a pseudonym: “Mary Doe.” “Mary Doe,” whose real name was Sandra Cano (then Sandra Bensing, later also referred to as Sandra Bensing-Cano), was, like McCorvey, a white woman living in poverty. Estranged from her abusive husband, she had already given birth to two children whom she lost custody of when they were toddlers. Neither Cano nor McCorvey ever testified or appeared in court, but their affidavits were central documents in their respective cases. In 1989, eight years before McCorvey’s conversion, Cano became an activist with Operation Rescue. Additionally, she claimed that she never wanted an abortion, but rather, had been duped by Hames and forced to sign the affidavit without understanding its significance. While both women became icons of the pro-life movement, there is another key divide between them. As Roe became synonymous with legalized abortion, McCorvey’s story would become a matter of public fascination for decades, while Cano’s life would be nearly forgotten. Both contributed to public discourse on abortion, but where McCorvey’s appearances and actions have left behind a rich archive, Cano has left mere breadcrumbs. Regardless, both have largely gone ignored by feminist scholars and historians, turned into footnotes in a history that could not have happened without them."

"McCorvey’s conversion invited sensationalization. Operation Rescue asked a local TV news crew to broadcast the event, and the story was picked up by media outlets across the country. A few days later, McCorvey was interviewed by Ted Koppel on Nightline in an extended segment on what her conversion meant for the abortion debate. During the interview, she asserted that, despite her conversion, she still supported abortions in the first trimester. Following her conversion and later adoption of a pro-life stance, many within the mainstream pro-choice movement found it best to simply dismiss her, including her former lawyer Sarah Weddington, who claimed that “all Jane Roe ever did was sign a one-page legal affidavit.”"

"This flattening of the complexities of McCorvey’s conversion and role in Roe was hardly an unusual situation for the former plaintiff. Throughout Norma McCorvey’s life as a public figure, she was considered unreliable, leading many acquaintances and journalists to depict her as a caricature of herself. In 1992, while she was working as a pro-choice activist with the Jane Roe Foundation, a colleague referred to her as “the ultimate victim.” Marsha King, another intended Roe plaintiff who was found to lack the legal ground to sue the state of Texas when the case was brought to the Supreme Court, called her “a lost little soul.” Her longtime partner Connie Gonzales, whom McCorvey eventually abandoned after Gonzales suffered a stroke, described her as “a phony.”"

"Considering the symbolic role that both McCorvey and the Roe case have played in the abortion debate, the scant historical writing on McCorvey in histories of Roe and the subsequent escalation of the abortion debate is surprising. While her central role has not been forgotten, it has not been the subject of intensive historical inquiry in the four decades since Roe was decided. McCorvey (as Jane Roe) makes an early appearance in James C. Mohr’s Abortion in America: The Origins and Evolution of National Policy, 1800-1900 (1978). This legal history tracks the evolution of abortion as a tacitly accepted practice at the turn of the nineteenth century to a staunchly forbidden one in the early 1900s. Mohr uses the recent Roe decision as the centerpiece of the afterword in the text, examining the ways in which the decision undid much of the legal reasoning which he charts in the text which precedes this section. Mohr mentions Jane Roe fleetingly, a decision which is justified by his assertion that “the basic outlines of the Roe case are well-known.” The information he does provide—that the plaintiff was an unwed mother in Texas who sued the Dallas District Attorney in 1970—is accurate but reflective of the minimal information known about McCorvey in the public sphere at this time."

"David J. Garrow’s landmark text, Liberty and Sexuality: the Right to Privacy and the Making of Roe v. Wade (1994) expands upon the work that Mohr began at the end of his text. In this lengthy volume, Garrow constructs a legal history of Roe v. Wade, pinpointing its roots within the broader context of reproductive rights-related legislation and the rise of the “right to privacy.” He traces the issue of legalized abortion from the 1930s through 1990s, meticulously outlining the legal decisions, players, and events that paved the way for the Roe decision and its aftermath. The care that Garrow demonstrates for Roe’s legal forbearers, however, is not always extended to the case’s plaintiff. Norma McCorvey’s role is included in the historical narrative; however, she is treated with a sense of disinterest at best and disdain at worst. In his first mention of McCorvey, a summary of her 1969 meeting with Linda Coffee’s friend Henry McCluskey, Garrow immediately highlights her youth and physical appearance, calling her a “tiny twenty- two year old.” Later, he notes Coffee’s surprise at “how small— and how visibly pregnant” McCorvey looked during their initial meeting. His depiction of McCorvey erases much of the emotional turmoil she experienced in her earlier pregnancies. He makes only a fleeting mention of the McCorvey’s mother’s custody of her first child, Melissa, and claims that she “happily” gave up her second child for adoption. Garrow was not oblivious to the strained relationship between McCorvey and her lawyers, as he remarks that Sarah Weddington later grew “highly dismissive” of McCorvey’s involvement in the case. Nevertheless, he uses the voices of those around McCorvey, such as Marsha King, another of the case’s plaintiffs, to diminish her in turn. In his last mention of McCorvey in the text, he quotes King, who remarks that “it made me sad to think of her.” This infantilizing attitude towards McCorvey remains constant in subsequent editions of the text, including the third edition (2015), in which Garrow dedicates a mere paragraph to McCorvey’s conversion, calling it “a publicity boost” for the pro-life movement and attributing McCorvey’s motivations to a vendetta against Sarah Weddington and a desire for attention and affection."

"Shortly after McCorvey’s first conversion, James C. Mohr reentered the conversation to grapple with the impact of both McCorvey’s memoir, I am Roe, and Garrow’s Liberty and Sexuality on the historical discourse on Roe. In his 1996 literature review in the Journal of Women’s History entitled “Sexuality, Reproduction, Contraception, and Abortion: A Review of Recent Literature” he speaks positively of McCorvey’s contributions in I am Roe, calling her recollections in the book “wonderful.” He is clearly less impressed by Garrow’s Liberty and Sexuality, noting that the text is “excessively personalistic, sometimes gossipy.” Mohr states that Garrow’s text, which is governed by the idea that the legalization of abortion was determined by “elite progressive legalists” operating “primarily behind the scenes and in courtrooms,” is “a dangerous model.” Such a telling, Mohr argues, reduces massive social shifts to the acts of a few, brave, “lionized” individuals. Mohr builds upon this argument in his comparison of McCorvey and Garrow’s texts. He notes that, in McCorvey’s telling, the lawyers are depicted as “manipulative,” unlike the “daring champions of virtue” that Garrow celebrates. Mohr is not oblivious of McCorvey and Meisler’s tendency to counteract the elitism in academic writings on Roe by playing up “the literary affectation of love and stability among... supposed deviants,” particularly in McCorvey’s recounting of her time in juvenile carceral facilities. Nevertheless, Mohr emphasizes the importance of McCorvey’s contribution to the historical record, “especially in view of McCorvey's post-publication shift toward the right-to-life cause.” This statement stands out as Mohr amplifies his support for McCorvey’s voice and perspective not despite, but in light of, her conversion and change in ideology."

"Two works published in 2015, Joanna Schoen’s Abortion after Roe (2015) and Mary Ziegler’s After Roe: The Lost History of the Abortion Debate introduce new directions in scholarship on Roe’s effects on abortion law and practice. Both texts, however, contribute to the erasure of McCorvey from the history of legalized abortion through either misinformation or by omitting her entirely. Schoen’s Abortion after Roe is a feminist medical history that examines the effects of Roe v. Wade on abortion providers and women seeking abortion from the 1970s through the early 2000s. Schoen draws on extensive interviews with abortion providers, whom she sought out through the National Abortion Federation (a professional organization for abortion clinic employees). She is attentive to the backlash to Roe throughout, which is evident through her incisive analysis of pro-life rhetoric."

"While many of these texts mention McCorvey fleetingly, no expansive historical text—or for that matter, more than a handful of paragraphs in a historical monograph— has been written thus far on the subject of McCorvey’s life before, during, or after the Roe decision. Relegated to the margins of an issue in which she performed perhaps a symbolic, but nonetheless a crucial role, McCorvey has been denied the sort of scholarly analysis which could complicate the caricature into which she was reduced throughout her life."

"In their personal recounting of Roe v. Wade, Sarah Weddington, Linda Coffee, and Norma McCorvey pinpointed the advent of the case at different points in time. For Weddington, Roe began “at a yard sale, amid paltry castoffs”—a benefit for the abortion referral service she provided legal aid for in Austin. Coffee’s earliest involvement was trickier to pin down, as she officially joined the case at Weddington’s request, but warmed to the idea of fighting Texas’s anti-abortion law while researching an earlier case. McCorvey’s version of the story was reflective of her unique role in the case. As noted before, it began with the discovery of her third pregnancy while working at a carnival. Journalists and scholars who have sought to reconstruct Roe’s earliest moments have had to find a middle ground between these three women’s testimonies, crafting a backstory primarily from memory and oral history. Most writers have reached a consensus, using the first meeting between Coffee, Weddington and McCorvey at Colombo’s Pizza at the end of 1969 or early 1970 (sources diverge on this particular point) as the de facto start of the case. Finding a middle ground between the women’s testimonies, however, has not automatically translated into a fair presentation of the women themselves. For example, journalist Marian Faux’s version of the story in her 1988 book Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision That Made Abortion Legal is rife with contradictions. While Faux attempted to construct a great woman narrative of the case, she simultaneously defeated her own goal by filling in the gaps in the visual record with subtly misogynistic language."

"As each woman arrives, the reader is granted a detailed description of her physical appearance. Faux excuses away the shabby appearances of the first two arrivals, informing the reader that “none of the three women coming to this dinner meeting had much money.” Linda Coffee, we learn immediately, cares more for her work than her looks. The “diffident” lawyer attempts to convey professionalism through her attire, but more often tends towards a “disheveled appearance.” The pregnant Norma McCorvey, by contrast to Coffee, gives away her working-class background and naiveté through her choice of denim pants and a casual top."

"Having both arrived early, the odd pair make a feeble attempt at chit-chatting with one another, an effort that is complicated by Coffee’s shyness and McCorvey’s lack of “social graces.” The appearance of Sarah Weddington, a “tall, heavy-set woman,” who, despite her large frame, “moved with unusual grace,” saves the two from continued awkwardness. Over pizza and beer, the three women discuss a topic that one can only assume was hardly the usual subject of conversation at the “unpretentious” Colombo’s: challenging Texas’s restrictive anti-abortion law. In the ebb and flow of conversation, both the lawyers’ quest to abolish this law and McCorvey’s own pregnancy are discussed. As McCorvey tells the lawyers about the latter, her story takes a horrific turn. She recalls a harrowing tale of being raped by a man while she was working at a traveling carnival, and consequently becoming pregnant. While the lawyers had concerns about the validity of McCorvey’s tale, as she struggled to consistently relay the details of the alleged assault, they agreed after the meeting to overlook their qualms about her reliability. McCorvey had something the two women desperately needed: a pregnancy which she had no desire to keep."

"Although it is tinged with sexist language, Marian Faux’s rendition of Roe v. Wade’s origin story is a compelling one. There is a wholesome Americanness to the shared financial hardship of the three women, and an inspirational tenor to this story of three women who will go on to fight Texas’s anti-abortion law despite the restrictions placed upon them by their gendered social mores of their community, not to mention to the sensational appeal of capturing the “untold story” of this controversial case. It is no wonder the Colombo’s story has been told by historians, journalists, and its key players alike. In addition to taking in all three women’s roles, it can easily suit a number of ideologically incompatible narratives. Faux’s telling, however, obscures many of the underlying conflicts that would later escalate into an unbridgeable divide between McCorvey and Weddington (as well as between herself and the leadership of the pro-choice movement as a whole) in the four decades following Roe. By likening the socioeconomic standing of McCorvey with that of Coffee and Weddington, Faux ignores the fact that McCorvey’s class status was undeniably lower than that of her lawyers, a reality that would continue to reassert itself through a number of unexpected outcomes during and after Roe was tried. McCorvey’s poverty was not a fluke: it was a prerequisite for her to become the plaintiff in Roe. While her class and whiteness was crucial in Weddington and Coffee’s decision to have her become the Roe plaintiff, these identities, as well as other aspects of McCorvey’s past and personality, caused tension within the pro-choice movement as the abortion issue became increasingly politicized by pro-life activists following the 1973 Supreme Court ruling."

"At this point, Weddington had never tried a contested case in court, and the preparatory work alone was a daunting enough prospect for a young lawyer. Impressed by both Linda Coffee’s work as a law student and her subsequent experience with federal cases while she was clerking for Judge Sarah Hughes, Weddington knew that Coffee would be an ideal partner in this endeavor. Buoyed by the excitement of aiding McCluskey in the partially-successful Buchanan, Coffee was eager to lend her expertise. As the two women strategized, they faced a troubling dilemma: they did not have a plaintiff. In order to ensure the continued secrecy of the abortion referral service, Coffee cautioned against using the service’s volunteers as plaintiffs. Thankfully, the two found a married couple, Marsha and David King, who were eager to sign on as plaintiffs early in the process. Marsha, a Dallas-area feminist with a PhD in English approached the lawyers after hearing Coffee give a lecture on the intended lawsuit. Due to a neurological condition, she could not safely carry a pregnancy to term, nor could she use hormonal birth control pills. As the Supreme Court had recently ruled in Griswold v. Connecticut that married couples had a constitutional right to privacy, the Kings presented one viable angle through which to challenge Texas’s abortion law. Nevertheless, the lawyers knew that in order to most effectively counter the constitutionality of the statute, they would need a pregnant woman who was willing to take on the task of being a plaintiff. While the Austin abortion referral service offered a number of promising leads, none of these women elected to join the lawsuit as they had the financial means through which to acquire a safe, but illegal, abortion. Meanwhile in Dallas, Norma McCorvey was not so lucky. For her, the meeting at Colombo’s was not one step in a long process of legal strategizing, it was a desperate attempt to finally obtain a procedure that would free her from the physical and emotional turmoil of giving birth to a third child that she could not raise herself. Because of this major discrepancy, it is here that, in their respective memoirs, A Questions of Choice (1992) and I am Roe (1994) Weddington and McCorvey’s stories begin to diverge. Notably, both texts were published in the early-1990s, over two decades after the initial federal district court Roe trial. Nevertheless, the two women’s ideological approaches to their involvement in the case are as blatant as the chasm between the worlds they inhabited."

"In McCorvey’s version of her meeting with both Coffee and Weddington at Colombo’s, she recalls a number of details that contradict or add additional dimensions to Faux’s heroic account, primarily with regard to her sexuality and class identity. Her recollection of the two lawyer’s outfits amplifies the class difference between herself and the two women. Coffee and Weddington both wore “two-piece business suits” while McCorvey wore jeans, a “button-down shirt tied at the waist,” and “a bandanna [sic] tied around my left leg, above the knee” to indicate that she “didn’t have a girlfriend.” McCorvey’s casual use of a variation on the hanky code, a system for signifying sexual availability that flourished in the gay community during the 1970s, was only one of the ways in which she expressed her non-normative sexuality to the lawyers. When asked about her own life, she opened up to them about her lesbian relationships and past marriage to the abusive Woody McCorvey. In McCorvey’s telling, she only claimed that she had been raped upon sensing the lawyer’s discomfort with her sexual history. Desperate to regain their good faith, she used this story as an attempt to save face and depict herself as the sort of woman who was deserving of an abortion."

"In Sarah Weddington’s version, the beginning of the conversation between the three women is the same—a discussion of the intended lawsuit— but this point is one of the few areas in which her and McCorvey’s story overlap. Throughout the text, she refers to McCorvey as “Jane Roe,” and only relays that information which had already been made public by McCorvey at the time of the book’s publication (in keeping with lawyer-client confidentiality). It is clear that the autobiography was published shortly after McCorvey publicly retracted her claim of being raped, as Weddington dedicated a paragraph to explaining in detail that McCorvey’s rape claim was never used by the lawyers in their case, reiterating again a few pages later that, in the affidavit McCorvey signed, “there was no mention of how she got pregnant.” While McCorvey was openly identified as a lesbian at this time, Weddington makes no note of her sexuality. The rape claim here is depicted as more of tactical move on McCorvey’s part, as she ponders aloud to her lawyers whether or not being raped would increase the chances of her receiving a legal abortion. Overall, Weddington’s version of the story is crisp and generally unemotional. Though she claimed that McCorvey’s “hard-luck stories touched a sympathetic cord,” her understanding of McCorvey's involvement in the case is framed around the low-level of commitment that would be expected of her. Weddington stated that being the plaintiff required “a minimal amount of time.... she never had to answer written or oral questions for the opposition lawyers. She did not attend any of the court hearings. Second, no money. Linda and I were donating our time, and we were covering the expenses.” Weddington does not seem to fathom the very real burden that McCorvey would have to bear if she became their plaintiff: a child. McCorvey tried her best to avoid this aspect of being the Roe plaintiff. According to her memoir, she asked the lawyers point blank whether or not they knew of a place where she could receive an abortion during their meeting at Colombo’s. Weddington claimed that she did not know, a statement that smarted years later when Weddington revealed that she had had an illegal abortion before even conceiving of the Roe case (not to mention her close relationship with the Austin abortion referral project). While Faux went to great lengths to assure the reader that McCorvey was fully informed of the unlikelihood that she would receive an abortion due to taking on the role of plaintiff in the case, neither Weddington nor McCorvey’s memoirs corroborated this assertion. In Garrow’s account of the case in Liberty and Sexuality, which like Faux’s was based on extensive interviews with Coffee and Weddington, he notes that the two lawyers were “privately thankful” that McCorvey had no choice other than to complete her pregnancy."

"In an insightful study of the two memoirs, legal scholar Kevin McMunigal argues that Weddington did not adequately inform McCorvey that her chances of receiving an abortion as the Roe plaintiff were slim, thereby allowing the vulnerable McCorvey to believe that being the plaintiff in the case was her most likely ticket to a legal abortion. Doing so, McMunigal states, was a questionable ethical decision on Weddington’s part, as she treated McCorvey as a stand-in for pregnant women as a whole, not as a client with needs and interests of her own. Ultimately, McMunigal maintains that McCorvey should have been treated with comparable ethical standards as patients seeking out medical care or participating in medical research, namely, being provided with comprehensible information about the various strategies open to her from which she would then be able to choose."

"From McCorvey’s perspective, becoming the case’s plaintiff seemed like the best possible choice. After a few weeks of wondering what Coffee and Weddington would decide, the lawyers called McCorvey in to Coffee’s office to ask her to officially become “Jane Roe.” Following this meeting, McCorvey had little contact with the lawyers. Occasionally, she would peak with Henry McCluskey, who “got an earful” when he would try to discuss the possibility of helping McCorvey with adoption arrangements. She waited, fluctuating between boundless optimism and sinking depression. As she recalled in I am Roe: “When I was up, I was way up—I was the smartest thing on two legs... I'd gotten myself a pair of wonderful smart young lawyers, and I was going to win my case and be the first girl in Texas to get a legal abortion. But that great feeling didn't last long.” To assuage the anxiety she felt at the progression of her pregnancy, she escaped to Oaklawn, a Dallas hippie enclave, for weeks at a time. Here, no one pressed her for details of her pregnancy. In her words, “If I smoked enough dope and drank enough wine, it was possible to not think about being pregnant, which was good.” Escapism and addiction proved to be a viable refuge as the possibility of legal remedy came to seem more fantastical by the day. From the perspective of McCorvey’s lawyers, she had disappeared. In A Question of Choice, Sarah Weddington attributes the challenge of finding her to her “financial difficulties,” which led her to move frequently. By McCorvey’s own admission, she had been in Oaklawn living “in a crash pad with a bunch of friendly people” while the lawyers prepared Roe for its initial trial. The two women disagree on how McCorvey resurfaced—McCorvey claimed she called McCluskey, whereas Weddington remembered that “Mary Doe” (Marsha King) tracked her down. Regardless, she reconnected with the lawyers in time to sign the Roe affidavit before the case went to trial on May 22, 1970."

"In Faux’s opinion, the Roe affidavit stands as “one of the few definitive biographical statements about Norma McCorvey” as McCorvey was prone to telling reporters “different versions of her life.” The document is sparse in detail, written in clear but eloquent language. It conveys the facts of McCorvey’s situation, for example, that she was “an unmarried woman” and that “the inability to obtain an abortion... caused [her] to suffer emotional trauma.” Notably, the affidavit was primarily the work of Linda Coffee. As such, it raises inevitable questions about Faux’s use of the word “definitive,” particularly in light of the colorful, multifaceted versions of herself that McCorvey would later choose to reveal to the public eye. Who was considered an expert on McCorvey, and by extension, Roe v. Wade, would later become as integral a theme in McCorvey’s life as the case itself."

"As McCorvey was visibly pregnant at the time of the first trial, she and her lawyers agreed that it would be best if she were not to appear in court at all. McCorvey recalled that she waited “as Linda and Sarah made history in [her] name.” According to I am Roe, when the judges announced their decision on June 17, 1970, McCorvey was initially elated to learn that she had won the case. This joy immediately gave way to anguish as Linda Coffee delivered the horrible news: the state had issued an injunction, proclaiming its intent to continue upholding Texas’s anti-abortion statute. Regardless, McCorvey was already well into her third trimester of pregnancy, and therefore, both medically and legally unable to get an abortion. Joshua Prager’s 2013 account in Vanity Fair rebuts this claim, stating that McCorvey gave birth before finding out the first Roe decision. Whatever the facts of the situation are, it is clear that the lawyers were unconcerned by the fact that McCorvey had to give birth despite her role as their plaintiff. This moment merits a single sentence in Weddington’s memoir: “But it was too late for Jane Roe; she gave birth early in the summer and placed the baby for adoption through Henry McCluskey.” In McCorvey’s version, this news sets off a chain-reaction of events that would fundamentally alter the course of her life. There is a heavy-handedness to how McCorvey manages the initial shock of learning that she would have to give birth once again, as she realizes that “this moment was not really for me. It was about me, and maybe all the women who'd come before me, but it was really for all the women who were coming after me.” Published in 1994 and targeted towards a liberal-leaning audience, it is unsurprising that this caveat appears in the text. Nevertheless, it is followed by an unadulterated outpouring of emotion, as McCorvey later explodes: “I was nothing to Sarah and Linda, nothing more than just a name on a piece of paper. And without them, without their damn legal abortion, my soul was trapped and my body was in jail. I was hopeless. Worthless.” Whether this memory is recalled accurately or misremembered, this sense of betrayal would echo throughout McCorvey’s subsequent activism for the rest of her life."

"The Supreme Court announced Monday that it will review a restrictive Mississippi law that provides a clear path to diminish Roe v. Wade’s guarantee of a woman’s right to choose an abortion. Abortion opponents for months have urged the court’s conservatives to seize the chance to reexamine the 1973 precedent. Mississippi is among many Republican-led states that have passed restrictions that conflict with the court’s precedents protecting abortion rights, hoping for a chance to get a case before a Supreme Court that they think is more amenable to their arguments. In accepting the case for next term, the court said it would examine whether “all pre-viability prohibitions on elective abortions are unconstitutional.” That has been a key component of the court’s jurisprudence, and the announcement sounded ominous to abortion rights advocates. “Antiabortion politicians have exploited their power for this exact moment: the opportunity for the newly comprised Supreme Court to take away our right to abortion,” said Alexis McGill Johnson, president of the Planned Parenthood Action Fund."

"“This is a landmark opportunity for the Supreme Court,” Marjorie Dannenfelser, president of the Susan B. Anthony List, which works to elect antiabortion candidates, said in a statement. She noted that “state lawmakers acting on the will of the people have introduced 536 pro-life bills aimed at humanizing our laws and challenging the radical status quo imposed by Roe. It is time for the Supreme Court to catch up to scientific reality and the resulting consensus of the American people as expressed in elections and policy.” Abortion rights advocates said the court’s action should be greeted with “alarm bells.” “The Supreme Court just agreed to review an abortion ban that unquestionably violates nearly 50 years of Supreme Court precedent and is a test case to overturn Roe v. Wade,” said Nancy Northup, president of the Center for Reproductive Rights, one of the groups representing Mississippi’s only abortion clinic, Jackson Women’s Health Organization. “This is not a drill,” added Elizabeth Nash of the Guttmacher Institute, a research organization that favors reproductive rights. “The [Supreme Court’s] decision comes at a time when conservative politicians in over a dozen states are dismantling abortion rights and access with a vengeance and could eclipse even the record of enacted restrictions set in 2011.”"

"Mary Ziegler, a Florida State University law professor and the author of “Abortion and the Law in America: Roe v. Wade to the Present,” said it was “impossible to overstate” the threat to Roe. She added that the court does not have to actually overturn the decision to void its impact, by eliminating fetal viability as the point at which bans are allowed. Without viability, it is not clear whether the court will impose any limit on abortion bans,” Ziegler said."

"States around the country have been passing increasingly restrictive abortion laws that they acknowledge violate Supreme Court precedent anchored by Roe in 1973 and Planned Parenthood v. Casey 19 years later. The goal has been to get one of them to the high court. “The State chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade,” Reeves wrote. The state argued that because the clinic challenging the law offered abortions only up to 16 weeks, the law was not affecting many women. The harm to the state, it said, was “requiring it to permit inhumane abortion procedures which cause a fetus to experience pain — a factor the Supreme Court has never explicitly addressed.” But the 5th Circuit said it was not the place of lower courts to challenge the Supreme Court. “In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability,” Judge Patrick Higginbotham wrote for the appeals court. “States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions.”"

"A 17th Century Judge Cited: Lord Matthew Hale, who wrote that women were contractually obligated to husbands, was cited eight times in Justice Samuel Alito’s draft opinion."

"The feminists had won legal abortion in New York. But the change in the law allowed the judges in Abramowicz to declare the case moot and throw it out. Without the New York case working its way through the courts, Stearns scrambled to start over. During the next two years, alongside other lawyers, she sued on behalf of women to strike down the abortion laws of New Jersey, Connecticut, and Rhode Island and helped others bring similar cases in Massachusetts and Pennsylvania. She kept pressing her claim that women had a right to abortion based on equal protection. She also sued based on a constitutional right to privacy, which the Supreme Court recognized in 1965, in Griswold v. Connecticut, to protect the use of contraception by married couples. But as Stearns worked on the East Coast, two lawyers, Sarah Weddington and Linda Coffee, who didn’t have strong ties to the feminist movement, pursued a challenge to Texas’ near ban of abortion that they filed in March 1970. Their case ended up being first on the Supreme Court’s docket, after Abramowicz was dismissed — and would wind up making history. It was called Roe v. Wade. As Weddington wrote in her memoir decades later: “We never thought we were filing what would become the Supreme Court case.” A New York assemblyman casting an unexpected vote, a court throwing out Abramowicz, the time it took for judges to rule in Stearns’s other cases — they are links in the long chain of reasons the country has arrived at a precarious moment for abortion rights."

"When they filed suit in Roe, Weddington and Coffee based their case on the right to privacy in Griswold. But Stearns still did her best to bring equal protection to the attention of the justices. The court scheduled the argument in Roe for December 1971, and she filed a friend-of-the-court brief (a supplemental submission that courts may or may not take into account). She sent me a copy of the pages. “The express guarantee of equal protection was originally designed to protect Black people,” Stearns wrote. “Since that time, its protection has been greatly extended.” Mbr> Stearns cited Supreme Court precedents that recognized the 14th Amendment rights of Chinese immigrants, Mexican Americans and poor people. Turning to her claims on behalf of women, she described the lack of protections for single mothers and employment policies that required pregnant women to take a leave of absence or quit their jobs. Stearns also pointed out that when Texas banned abortion in 1907, women did not have the right to vote."

"Months after the Supreme Court’s ruling, John Hart Ely, a renowned and liberal Yale law professor, eviscerated Blackmun’s opinion in The Yale Law Journal. Ely said that if he were a legislator, he would vote to legalize abortion. He understood why Griswold was about privacy, because forbidding the use of contraception would require “the most outrageous sort of governmental prying into the privacy of the home.” But Roe was not a case about governmental snooping. Ely recognized that becoming pregnant, in the wrong circumstance, can ruin a person’s life. But the potential life of the fetus also “hangs in the balance,” creating a moral dilemma the court did not “even begin to resolve.” Roe, as Blackmun wrote it, had “nothing to do with privacy in the Bill of Rights sense” and was thus untethered from the Constitution, making the decision “frightening.” Ely’s article “sent Roe into the world disabled,” Greenhouse told me. “It really was very damaging. Not because the American public cared about doctrine — they cared about results — but because it left Roe without friends in high places.”"

"In law as in life, timing is everything. The court issued Blackmun’s opinion in Roe just days after Ruth Bader Ginsburg, then a 39-year-old lawyer, argued before the court for the first time in a landmark sex-discrimination suit. The court ruled in Ginsburg’s favor in that case a few months later and in a series of others in the years that followed. But at the time of Roe, “the court was only on the verge of constructing a jurisprudence of women’s rights,” Greenhouse and Reva Siegel, the Yale law professor, pointed out in an essay in the 2019 book “Reproductive Rights and Justice Stories.” The justices could have taken a leap toward equal protection in Roe. But they weren’t prepared to. It turns out, though, that Stearns and her fellow feminist lawyers got serious consideration from a court about equal protection in their Connecticut case, Abele v. Markle. Before the Supreme Court’s ruling in Roe, a three-judge panel heard their challenge to Connecticut’s near-ban on abortion, with more than 850 women as plaintiffs. Judge Jon O. Newman wrote the opinion for the majority. “I thought about invoking gender discrimination,” Newman, now 90, told me this month. “But I concluded I would not go down that road.” As a lower-court judge, he focused on Supreme Court precedent, which meant Griswold. “I thought, marital privacy is a part of liberty that the Supreme Court has told me exists,” Newman said, explaining why that was the justification he gave for striking down Connecticut’s law in September 1972. It’s hard to claim, with any certainty, that Roe would have proved less divisive if the right to abortion in America had a sounder constitutional basis from the start. Many who support bans and restrictions do so because they think abortion is murder. Maybe they agree that carrying an unplanned pregnancy can impose a huge cost. But unless the person’s life is physically at stake (the rare exception to almost every abortion ban), supporters of restrictions believe it’s right, at some point in a pregnancy, to make a woman carry the fetus to term."

"In important ways, the Supreme Court strengthened Roe decades ago. In June 1992, in the case Planned Parenthood of Southeastern Pennsylvania v. Casey, a new five-justice majority on the Supreme Court affirmed Roe’s central holding and addressed its weaknesses. The authors of Casey included Sandra Day O’Connor, the first female justice. They spoke in clear terms of gender equality, recognizing that the right to choose whether and when to have a child made it easier for women “to participate equally in the economic and social life of the nation.”"

"Casey satisfied Ely, and he wrote a letter to Blackmun supporting the decision. (“Blackmun never responded,” Greenhouse told me. “I think he was still very hurt.”) By then, however, Roe had other prominent critics, including Ruth Bader Ginsburg, who said sex discrimination would have been a stronger rationale for the decision in a 1985 article in The North Carolina Law Review. Nine months after Casey, Ginsburg made waves by giving a lecture at New York University’s law school in which she said that Roe “might have been less of a storm center” if it had taken her incremental approach to building a jurisprudence about gender discrimination. Ginsburg’s words troubled abortion rights leaders, some of whom questioned her nomination to the Supreme Court when Bill Clinton picked her in June 1993."

"Justice Ginsburg almost got a chance to fill in what she saw as Roe’s missing piece. In 2007, she wrote an opinion in Gonzales v. Carhart, a challenge to a type of late-term procedure, that squarely framed the constitutional right to abortion in terms of equal rights for women. But Justice Anthony M. Kennedy joined the court’s four other conservatives to form a majority, leaving Ginsburg with a dissent, which had the force of her ardent feminism but not of law. In 2009, when I interviewed Ginsburg for this magazine, she said her main concern about abortion was the lack of access for poor women (because the court decided, in 1980, that Congress could forbid the use of Medicaid for medically necessary abortions). I asked if repositioning Roe on the basis of women’s equality was on the feminist wish list. “Oh, yes,” she said."

"Justice Samuel A. Alito Jr. dismissed the equality argument for abortion rights in the leaked draft majority opinion, published by Politico this month, which would overturn Roe. “The regulation of a medical procedure that only one sex can undergo,” he wrote, is constitutional unless it is a “mere pretext designed to affect an invidious discrimination.” Alito landed on this phrase by quoting a 1974 decision, Geduldig v. Aiello, which was a low point for feminists at the Supreme Court. In that case, six justices ruled that California could exclude women with pregnancy complications from receiving benefits from a state disability fund that covered other conditions. The state wasn’t discriminating against women — it was merely distinguishing between “pregnant women and nonpregnant persons,” the court said. Congress addressed the inequity by passing the Pregnancy Discrimination Act in 1978, and before Alito’s opinion, the Supreme Court had not relied on the Geduldig decision for 30 years."

"When I called Stearns to ask her about Alito’s opinion, she hadn’t yet brought herself to read it. But she had already gone with friends to a protest over the impending end of Roe. “We were the old ladies in tennis shoes,” she said. Stearns was thinking about the decades of backlash to Roe. Could anything have prevented it? “We made the argument,” she said. “It got lost for some people.” The feminists of the 1970s tried to give future generations freedom and equality, as they saw it. Now that era may end soon, Alito’s draft opinion suggests."

"Author of the abortion decision, Associate Justice Harry A. Blackmun said softly and slowly, as if restudying the phrase. We all pick up tags. I'll carry this one to my grave. When the Supreme Court legalized abortion 10 years ago, it used Justice Blackmun's words, carving his niche in American history. I knew it was a no-win case, but I didn't ask for the assignment, Justice Blackmun, in a rare on-the-record interview, said recently of how he came to write the opinion. I am mildly annoyed at those, law professors included, who personalize it, the Justice said of the landmark ruling in Roe v. Wade. It was a decision of the court, not my decision. There were seven votes."

"Justice Blackmun is convinced, however, that the Supreme Court was on solid legal ground when it ruled that a woman's constitutional right of privacy includes the right to end an unwanted pregnancy. I still think it was a correct decision, he said. We were deciding a constitutional issue, not a moral one."

"Justice Blackmun said he could not estimate how much time he had devoted to the ruling on Roe v. Wade, which was announced Jan. 22, 1973. A lot, he answered when he was asked the question. More than any other case I've ever handled. He said he could only guess why Chief Justice Burger picked him to write the decision, and he asked that his thoughts on that topic not be made public. For the record, he acknowledged that for many his role as author of the abortion decision will overshadow the rest of his work in a Supreme Court tenure dating back to 1970. In a voice betraying neither rancor nor remorse, Justice Blackmun said, So be it."

"Twenty-five years ago tomorrow, Justice Byron White wrote in his Roe v. Wade dissent, “as an exercise of raw judicial power, the Court perhaps has authority to do what it does today.” This seems correct, but also paradoxical. How can raw power possess or acquire the leigimacy authority? Justice White meant, I think, that the Court’s decision, though arbitrary, and thus in the worst sense political, would nevertheless be treated as the law of the land by the American people. Justice White was prophetic. Roe has been criticized more than any Supreme Court decision in history, but it has proved to be resilient and effective. How has the Court managed what seems such a great public relations victory? The main reason is the Court’s success last presenting itself as a uniquely principles tribunal, this pluralistic society’s last resort for settling in a non-arbitrary way our most volatile issues."

"Justice White’s prophecy still troubles. Is Roe a constitutional measurement, as the majority said it was, or is it raw power? With recent public access to Thurgood Marshall’s papers, we can see a little bit of what must have been the basis of Justice White’s charge. My colleague, Douglas Kmiec, as gone through those papers looking at the opinion drafts and interoffice memos in the run-up to January 22, 1973, and Kmiec testified over on the House side some months ago. His conclusion:: There is virtually no evidence of constitutional study or consideration. There is little other argument or discussion in the internal correspondence of the Roe Court touching the substance of constitutional law. So, did the Roe Court choose to recognize abortion rights based upon the predilections, pure and simple of the Justices sitting that term?"

"It is now almost 25 years since a prominent Harvard law professor, John Ely, wrote that, Roe 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. Pro-choice scholars have, I think, tacitly conceded Ely’s criticism, for they have labored hard to supply the justification for Roe that the Roe Court did not. None of these scholarly attempts has, in my view, succeeded, and some of these efforts have been especially troubling. Some scholars, eager to support the legal historical claims relied upon by the Roe Court, has submitted briefs in the Supreme Court, notably the Webster case, which some scholars knew made false claims about the history of abortion law."

"Note well: if Ely’s indictment is well-founded-as momentarily I shall show it is-then Roe was indeed an arbitrary resolution of the abortion matter, no different in kind from the bare minimum that our politics could have supplied. The charge is an especially grave one. For if the charge is proved, then the Roe Court is guilty not only of false advertising, but of resolving this critical matter by standards which the Justices themselves say are unfit for a free people under this Constitution-by mere “predilection”. And if abortion is a question to which no just or principled answer is possible-a proposition I deny but which the Court evidently affirms then the question must be resolved according to someone’s “predilections.” By the Justice’s own account, that is the business of the people, acting through their elected representatives. We have, one might well say, a “principled” means under our constitution for settling inescapably arbitrary” matters-democracy, the ballot box. Can the Roe Court avoid this charge of arbitrariness? It cannot. I wish today to make that case by investigating a so far unnoticed future of the Roe opinion. I consider it dispositive evidence in favor of Justice White’s charge, seconded by Ely, that Roe represents power, pure and simple."

"Recall that the court, speaking through Justice Blackmun, said that there were two novel claims of right presented for decision. Both claims arose under the Due Process clause of the Fourteenth Amendment. They were “novel” in the sense that, again as Justice Blackmun saw it, neither had yet been recognized by the Supreme Court. These were, of course, the claim that unborn children-the “fetus”, per the Court-were “persons” with a right to “life” guaranteed by the Due Process Clause, and the female plaintiff’s claim that the “liberty” protected by that clause included a liberty to abort. The court recognized that both claims mattered much to those making them. But one had priority; the court said that if the unborn’s claim prevailed, the plaintiff’s case dissolved."

"Justice Blackmun in Roe resisted the unborn’s claim, so devastating to the appellant’s case, for several articulated reasons: (1) No case could be cited holding the fetus a person within the meaning of the Fourteenth Amendment; (2) none of the many uses of the term “person” in the Constitution indicated, “with any assurance, that it ha[d any possible pre-natal application; (3) abortion restrictions were “far freer” (Backmun’s phrase) when the Amendment was adopted “than they were today”, suggesting that the unborn were not “persons” in some whole sense he thought presupposed by counsel for the unborn. In this connection, Justice Blackmun took note of some alleged inconsistencies between Texas’ very restrictive law, and how even it fell short of the constitutional requirements which would be implied by a finding of fetal personhood. Specifically, abortion was not “murder” in Texas, but a lesser form of criminally punishable homicide. And, abortions were permitted to save the life of the mother. Blackmun cleaved closely to constitutional text, history contemporaneous with its enactment, and decided cases. He examined the “coherence” on controversial propositions asserted by the parties with settled principles of law. This is a good general approach to constitutional construction; indeed, it is originalism, or something very close to it."