Roe v. Wade

thumb|Sarah Weddington thumb|Linda Coffee thumb|Norma McCorvey thumb|Henry Wade thumb|Justice Harry Blackmun the author of Roe's majority opinion. thumb|Justice Byron White joined in the dissent. thumb|Justice William Rehnquist joined in the dissent. Roe v. Wade, 410 U.S. 113 (1973), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States protects a right to have an abortion. The decision struck down many abortion laws, and caused an ongoing abortion debate in the United States about whether, or to what extent, abortion should be legal, who should decide the legality of abortion, and what the role of moral and religious views in the political sphere should be. The decision also shaped debate concerning which methods the Supreme Court should use in constitutional adjudication. Quotes Brief for Appellants Jane Roe, et al. Signed by Roy Lucas, Sarah Weddington, James R. Weddington, Linda N. Coffee, Fred Bruner, Roy L. Merrill, Jr., and Norman Dorsen; as quoted in “Before Roe v. Wade” by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012 Appellant Jane Roe sued as an unmarried pregnant adult woman on behalf of herself “and all other women who have sought, are seeking, or in the future will seek to obtain a legal, medically safe abortion but whose lives are not critically threatened by the pregnancy.” At the time the action was filed, Jane Roe had been “unable to secure a legal abortion in Dallas County because of the existence of the Texas Abortion Laws.” She had sought this medical procedure “because of the economic hardship which pregnancy entailed and because of the social stigma attached to the bearing of illegitimate children in our society.” Miss Roe admitted that insofar as her own interpretation of Texas law was concerned, her “life [did] not appear to be threatened by the continuation of her pregnancy,” other than in a qualitative sense, and in the “extreme difficulty in securing employment of any kind” because of her pregnant condition. ane Roe suffered emotional trauma when unable to obtain a legal abortion in Texas. She regarded herself as a law-abiding citizen and did not want to participate in a felony offense by obtaining an illegal abortion. Also, she had only a tenth grade education and no well-paying job which might provide sufficient funds to travel to another jurisdiction for a legal abortion in a safe, clinical setting. p.230 The law on abortion cannot be understood without reviewing the pertinent aspects of medical and legal history which gave rise to the law. When this is done, it becomes abundantly clear that public health considerations motivated this type of legislation, and that these factors no longer justify maintaining such stringent restrictions in the criminal code. In the 1820s when the first American abortion statutes were enacted, there was no medical profession as we know it. Physicians and quacks alike advertised their treatments and potions in the same marketplace. Both had little to offer the public. Medical science, an infant branch of learning in the 1800s, did not uncover the need for clean hands in gynecological examinations until the 1840s. Relevant Background and Medical Facts, pp.230-231 [S]urgical dangers warned against any medical procedure. Induced abortion, in particular, involved internal use of surgical instruments, and the inevitable introduction of infection into the womb. Far better, the legislature obviously deemed, that a woman risk childbirth, than death on the operating table. Only when the risks cancelled themselves out did she have an option. Today the comparative risks weigh heavily in favor of permitting induced abortion, not as an emergency matter as in 1851, but as an elective medical procedure. Surgery in those times was almost always fatal. As the next section shows, medicine is a different science today. Induced abortion, in medical practice today, is a relatively minor surgical procedure, insofar as risks to the patient’s physical or mental well-being are concerned.... p.231 On another level as well, abortion is a safe procedure: it is without clinically significant psychiatric sequelae. A number of recent studies confirm that abortion does not produce serious psychological side-effects damaging to the mental wellbeing of the patient. p.231 Today, only abortions performed in non-medical environments present significant risks of morbidity and mortality; with proper medical supervision, abortions are safe and simple procedures. In keeping with modern medical practice, this Court would reinforce the purpose of early abortion legislation if it invalidated the statute. This would permit abortions to be done by licensed physicians in adequate medical facilities and discourage abortions by unskilled practitioners. Moreover, it would preserve the 117-year-old purpose of the law, and the common law. Legal and Medical Standards of Practice Regarding Induced Abortion in Texas and the United States. p.231 Evidence of American standards of medical practice respecting induced abortion is found in the policy statements of professional organizations. Both the American Medical Association and the American College of Obstetricians and Gynecologists have set standards of professional practice in recent years. ACOG policy sanctions therapeutic and elective abortion “to safeguard the patient’s health or improve her family life situation.” ACOG recognizes that “abortion may be performed at the patient’s request....” A very similar position was taken by the American Medical Association. The AMA at one time had followed the A.L.I. model, listing four or five vaguely defined situations for sanctioned abortion. This proved unworkable, and the policy was changed in order not to limit the physicians’ traditional responsibility for evaluating “the merits of each individual case....” pp.231-232 The Provisions in the Texas Penal Code, Articles 1191–1194 and 1196, Which Prohibit the Medical Procedure of Induced Abortion Unless “procured or attempted by medical advice for the purpose of saving the life of the mother,” Abridge Fundamental Personal Rights of Appellants Secured by the First, Fourth, Ninth, and Fourteenth Amendments, and Do Not Advance a Narrowly Drawn, Compelling State Interest. p.232 The Constitution does not specifically enumerate a “right to seek abortion,” or a “right of privacy.” That such a right is not enumerated in the Constitution is no impediment to the existence of the right. Other rights not specifically enumerated have been recognized as fundamental rights entitled to constitutional protection including the right to marry, the right to have offspring, the right to use contraceptives to avoid having offspring, the right to direct the upbringing and education of one’s children, as well as the right to travel. p.232 Appellants contend that fundamental rights entitled to constitutional protection are involved in the instant case, namely the right of individuals to seek and receive health care unhindered by arbitrary state restraint; the right of married couples and of women to privacy and autonomy in the control of reproduction; and the right of physicians to practice medicine according to the highest professional standards. These asserted rights meet constitutional standards arising from several sources and expressed in decisions of this Court. The Texas abortion law infringes these rights, and since the law is not supported by a compelling justification, it is therefore unconstitutional. p.232 The Right to Seek and Receive Medical Care for the Protection of Health and Well-Being Is a Fundamental Personal Liberty Recognized by Decisions of This Court and by International and National Understanding. p.233 Although this Court has not expressly delineated a right to seek health care, the importance of such care has been recognized and the existence of such a right suggested. In United States v. Vuitch (1971), this Court reaffirmed society’s expectation that patients receive “such treatment as is necessary to preserve their health.” In this Court’s invalidation of Connecticut’s proscription against contraception, Justice White noted that statute’s intrusion upon “access to medical assistance...in respect to proper methods of birth control.” Griswold v. Connecticut (1965) (White, J., concurring). p.233 Abortion is an accepted medical procedure for terminating pregnancy. Amici medical organizations recognize the acceptability of abortion, as their policy statements indicate; they draw no distinction between abortion and other medical procedures. The Texas abortion law effectively denies Appellants Roe and Doe access to health care. Jane Roe was forced to bear a pregnancy to term though an abortion would have involved considerably less risk to her health. Physicians who would otherwise be willing to perform an abortion in clinical surroundings are deterred by the fear of prosecution. Since Appellant Roe could not afford to travel elsewhere to secure a safe abortion, to avoid continuation of pregnancy she would have been forced to resort to an unskilled layman and accept all the health hazards attendant to such a procedure. Even had she been able to travel out of state, the time required to make financial and travel arrangements would have entailed greater health risks inherent in later abortions. p.233 The Fundamental Rights to Marital and Personal Privacy Are Acknowledged in Decisions of This Court as Protected by the First, Fourth, Ninth, and Fourteenth Amendments. p.233 This Court has previously upheld the right to use contraceptives to avoid unwanted pregnancy [Griswold v. Connecticut (1965)]. As did the law considered in Griswold, “[t]his law...operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.” The Texas abortion law in forbidding resort to the procedure of medical abortion, has a maximum destructive impact upon the marriage relationship. In addition to rights associated with marital privacy, an overlapping body of precedent extends significant constitutional protection to the citizen’s sovereignty over his or her own physical person. pp.233-234 Pregnancy obviously does have an overwhelming impact on the woman. The most readily observable impact of pregnancy, of course, is that of carrying the pregnancy for nine months. Additionally there are numerous more subtle but no less drastic impacts. Without the right to respond to unwanted pregnancy, a woman is at the mercy of possible contraceptive failure, particularly if she is unable or unwilling to utilize the most effective measures. Failure to use contraceptives effectively, if pregnancy ensues, exacts an exceedingly high price. pp.233-234 When pregnancy begins, a woman is faced with a governmental mandate compelling her to serve as an incubator for months and then as an ostensibly willing mother for up to twenty or more years. She must often forego further education or a career and often must endure economic and social hardships. Under the present law of Texas she is given no other choice. Continued pregnancy is compulsory, unless she can persuade the authorities that she is potentially suicidal or that her life is otherwise endangered. The law impinges severely upon her dignity, her life plan and often her marital relationship. The Texas abortion law constitutes an invasion of her privacy with irreparable consequences. Absent the right to remedy contraceptive failure, other rights of personal and marital privacy are largely diluted. p.234 The decisions of this Court which implicitly recognize rights of marital and personal privacy have been followed by state and federal court decisions expressly holding the decision of abortion to be within the sphere of constitutionally protected privacy. That there is a fundamental constitutional right to abortion was the conclusion of the court below in the instant case.... That view has been shared by a number of other courts which have considered the question and have affirmed that this is a fundamental right.... Without the ability to control their reproductive capacity, women and couples are largely unable to control determinative aspects of their lives and marriages. If the concept of “fundamental rights” means anything, it must surely include the right to determine when and under what circumstances to have children. p.234 The First, Ninth, and Fourteenth Amendments protect the right of every citizen to follow any lawful calling, business, or profession he may choose, subject only to rational regulation by the state as necessary for the protection of legitimate public interests. In reviewing legislation affecting the medical profession, courts have particularly respected the knowledge and skill necessary for medical practice, the broad professional discretion necessary to apply it, and the concomitant state interest in guaranteeing the quality of medical practitioners.... Similarly, courts have been alert to protect medical practice from rash or arbitrary legislative interference.... Most recently, this Court, in United States v. Vuitch (1971), recognized that “doctors are encouraged by society’s expectations...and by their own professional standards to give their patients such treatment as is necessary to preserve their health.” The Vuitch decision went on to construe the term health to encompass “psychological as well as physical health,” and “‘the state of being sound in body or mind.’” Here, the practice of medicine clearly includes the treatment of pregnancy and conditions associated with it. However, the Texas statute prohibits physicians from administering the appropriate remedy to preserve the patient’s health or well-being. Physicians are not required to forego the right to make medically sound judgments and to act upon them with respect to any other human disease or condition. With appropriate consents they may administer electric shock therapy, excise vital organs, perform prefrontal lobotomies and take any other drastic action they believe indicated. They are not indictable for these actions. However, obstetricians and gynecologists who are asked to abort their patients for sound medical reasons risk a prison sentence if they do so. The statute severely infringes their practice and seriously compromises their professional judgments. p.235 The state must demonstrate a legitimate interest to impair doctors’ rights to practice their profession. Historically, the interest asserted by the state is a health interest, and courts have upheld laws designed to ensure the quality of medical practice. Similarly, statutes have been upheld which require doctors’ intervention in sales of medically-related products in order to protect public health. None of the above interests are applicable here, however. The statute in question here does not protect the public from unqualified practitioners. Rather the statute applies to laymen and physicians alike. Indeed, it endangers patients’ health by unduly confining doctors’ exercise of medical judgment.... Further, the statute addresses no other legitimate state interest. pp.235-236 As shown earlier, medical abortion is a safe and simple procedure when performed during the early stages of pregnancy; indeed, it is safer than childbirth. This fact alone vitiates any contention that the statute here serves a public health interest. Numerous state and federal courts have taken notice of this fact and concurred that no health rationale supports a statute like the one here. See e.g. People v. Belous (Cal. 1969). Moreover, no concern for mental health justifies the statute, for it does not permit abortion even if a woman’s mental health is threatened. Such a view is untenable for the additional reason that abortion is a procedure without clinically significant psychiatric sequelae. Additional data reveal that statutes like the one here actually create “a public health problem of pandemic proportions” by denying women the opportunity to seek safe medical treatment. Severe infection, permanent sterility, pelvic disease, and other serious complications accompany the illegal abortions to which women are driven by laws like this one. Any notion that less restrictive abortion laws would produce excessive demands on medical resources and thereby endanger public health also is unfounded. The experience in New York City after one year under an elective abortion law dispels any such fears.... The absence of a public health problem accompanying less restrictive abortion is indicated by comparative mortality rates: for the first eleven months of operation, the mortality for abortion in New York City is approximately equal to that of tonsillectomy in the United States. Against this background of medical fact, there is no support whatever for the suggestion that public health is an interest protected by this statute. p.236 As counsel for appellee admitted during oral argument, “the State only has one interest and that is the protection of the life of the unborn child.” The question then becomes whether this interest is sufficiently compelling to overcome the couple’s or woman’s fundamental right to privacy and autonomy. In this regard it is revealing to examine other aspects of the State’s attitude toward the fetus. Such an inquiry reveals that only in the area of abortion does the State exhibit an interest in the fetus or treat it as having legal personality. pp.236-237 First, the pregnant woman who searches out a person willing to perform an abortion and who consents to, if not pleads for, the procedure is guilty of no crime. Texas courts have repeatedly held that the woman is neither a principal nor an accomplice. Similarly, the women who travel from Texas to states with less restrictive abortion laws in order to secure medical abortions and avoid the alleged state interest in protecting the fetus are guilty of no crime. Moreover, self-abortion has never been treated as a criminal act. The State has failed to seek to deter through criminal sanctions the person whose interests are most likely to be adverse to those of the fetus. This suggests a statutory purpose other than protecting embryonic life. An unborn fetus is not a “human being” and killing a fetus is not murder or any other form of homicide. “Homicide” in Texas is defined as “the destruction of the life of one human being by the act, agency, procurement, or culpable omission of another.” Since the common law definition of “human being” is applicable, a fetus neither born nor in the process of birth is not a “human being” within the meaning of those words as they appear in the homicide statute. In Keeler v. Superior Court (Cal. 1970), a pregnant woman was assaulted by her former husband; a Caesarean section and examination in utero revealed that the fetus, of approximately thirty-five weeks gestation, had died of a severely fractured skull and resultant hemorrhaging. The California Supreme Court held the man could not be guilty of murder; the same result would apply in Texas. A fetus is not considered equal to a “human being,” and its destruction involves a significantly lesser penalty. p.237 The State does not require that a pregnant woman with a history of spontaneous abortion go into seclusion in an attempt to save the pregnancy. No pregnant woman having knowingly engaged in conduct which she reasonably could have foreseen would result in injury to the fetus (such as skiing in late pregnancy) has ever been charged with negligent homicide. No formalities of death are observed regarding a fetus of less than five months gestation. Property rights are contingent upon being born alive. There has never been a tort recovery in Texas as the result of injury to a fetus not born alive. No benefits are given prior to birth in situations, such as workman’s compensation, where benefits are normally allowed for “children.” p.237 It is sometimes argued that scientific discoveries show that human life exists in the fetus. Scientific studies in embryology have greatly expanded our understanding of the process of fertilization and development of the fetus and studies relating to the basic elements of life have shown that life is not only present in the fertilized egg, sperm and ova but that each cell contains elements which could conceivably constitute the beginning of a new human organism. Such studies are significant to science but only confuse the problem of defining human life. pp.237-238 Thus science only leads to a worse quandary for obviously if one goes far enough back along the continuum of human development one encounters the existence of sub-microscopic double-helix molecules which have human life potential. When does something become human? p.238 Once the fact that science can offer no guidance on the question of when human life begins is conceded, arguments concerning preservation of the fetus almost always fall back to the proposition of potential life. p.238 It is obvious that the legislative decision forbidding abortions also destroys potential life—that of the pregnant woman—just as a legislative decision to permit abortions destroys potential life. The question then becomes not one of destroying or preserving potential, but one of who shall make the decision. Obviously some decisions are better left to a representative process since individual decisions on medical facilities, wars, or the release of a convict would tend toward the chaotic. It is our contention that the decision on abortion is exactly the opposite. A representative or majority decision making process has led to chaos. Indeed, in the face of two difficult, unresolvable choices—to destroy life potential in either a fetus or its host—the choice can only be left to one of the entities whose potential is threatened. The above argument is perhaps only another way of stating that when fundamental rights are infringed upon, the State bears the burden of demonstrating a compelling interest for doing so. The question of the life of the fetus versus the woman’s right to choose whether she will be the host for that life is incapable of answer through the legislative fact-finding process. Whether one considers the fetus a human being is a problem of definition rather than fact. Given a decision which cannot be reached on the basis of fact, the State must give way to the individual for it can never bear its burden of demonstrating that facts exist which set up a compelling state interest for denying individual rights. p.238 Brief for Appellee Henry Wade, District Attorney of Dallas County, Texas Signed by Crawford C. Martin, attorney general of Texas; Nola White, Alfred Walker, Robert C. Flowers, and Jay Floyd, lawyers in the Attorney General’s Office; Henry Wade, criminal district attorney, Dallas County; and John B. Tolle, assistant district attorney; as quoted in “Before Roe v. Wade” by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012 VI. The Constitution of the United States Does Not Guarantee a Woman the Right to Abort an Unborn Fetus. One must recognize the interest of a husband and wife in preserving their conjugal relations from state interference, an interest which, in Griswold v. Connecticut (1965), was found to be violated by Connecticut’s statute forbidding the use of contraceptives. This law interfered with the most private aspect of the marital relation, sexual intercourse, making it criminal for a couple to engage in sexual intercourse when using contraceptives. In contrast, the usual statute restricting abortions does not affect the sexual relations of a couple except under some circumstances and only for a limited time. Prevention of abortion does not entail, therefore, state interference with the right of marital intercourse, nor does enforcement of the statute requiring invasions of the conjugal bedroom. Assuming arguendo that there are other marital rights the state must respect, may it then be urged that the right of marital privacy includes the freedom of a married couple to raise and educate a child they do not want, or commit infanticide, incest, engage in pandering and the like. Family privacy, like personal privacy, is highly valued, but not absolute. The news media may publicize the events that occur when a family is victimized by criminals though they seek seclusion. The family may not practice polygamy, may not prohibit schooling for a child, or prohibit the child’s labor, or expose the community or a child to communicable disease. p.239 Proponents of abortion-on-demand assert that anti-abortion laws unlawfully intrude into the privacy of the physician-patient relationship. They assume necessarily that the doctor treating a pregnancy owes an obligation of good medical care to only one patient, the pregnant woman.... As a patient of the obstetrician, the child may recover damages for a prenatal injury suffered as the result of the negligence of his doctor. It is elemental that a doctor cannot be freed from legal restraints in making socio-moral judgments. The state may regulate the medical profession to protect the health and welfare of all its citizens. Appellants’ contentions of intrusion upon physician-patient relationship are not self-sustaining and must be associated with and connected to a violation of some basic right. pp.239-240 Personal privacy is an exalted right but, as in marital privacy, it has never been regarded as absolute. A person may be subjected to a “stop and frisk” though it constitutes an intrusion upon his person, or a person may be required to submit to a vaccination, and a blood sample may forcibly be extracted from the body of an individual arrested for suspicion of driving while intoxicated. A woman has been required to submit to a blood transfusion necessary to preserve her life in order that her small child shall not be left without a mother. The “right of privacy” is a highly cherished right—however one which is nowhere expressly mentioned in the Constitution of the United States or its amendments. p.240 The crux of the moral and legal debate over abortion is, in essence, the right of the woman to determine whether or not she should bear a particular child versus the right of the child to life. The proponents of liberalization of abortion laws speak of the fetus as “a blob of protoplasm” and feel it has no right to life until it has reached a certain stage of development. On the other hand, the opponents of liberalization maintain the fetus is human from the time of conception, and so interruption of pregnancy cannot be justified from the time of fertilization. It most certainly seems logical that from the stage of differentiation, after which neither twinning nor re-combination will occur, the fetus implanted in the uterine wall deserves respect as a human life. If we take the definition of life as being said to be present when an organism shows evidence of individual animate existence, then from the blastocyst stage the fetus qualifies for respect. It is alive because it has the ability to reproduce dying cells. It is human because it can be distinguished from other non-human species, and once implanted in the uterine wall it requires only nutrition and time to develop into one of us. The recent recognition of autonomy of the unborn child has led to the development of new medical specialties concerning the unborn child from the earliest stages of the pregnancy. Modern obstetrics has discarded as unscientific the concept that the child in the womb is but tissue of the mother.... Yet the attack on the Texas statute assumes this discredited scientific concept and argues that abortions should be considered no differently than any medical measure taken to protect maternal health (see appellant’s brief), thus completely ignoring the developing human being in the mother’s womb. p.240 From conception the child is a complex, dynamic, rapidly growing organism. By a natural and continuous process the single fertilized ovum will, over approximately nine months, develop into the trillions of cells of the newborn. The natural end of the sperm and ovum is death unless fertilization occurs. At fertilization a new and unique being is created which, although receiving one-half of its chromosomes from each patient, it really unlike either. p.241 The development of the child, while very rapid, is also very specific. The genetic pattern set down in the first day of life instructs the development of a specific anatomy. The ears are formed by seven weeks and are specific, and may resemble a family pattern. The lines in the hands start to be engraved by eight weeks and remain a distinctive feature of the individual. The primitive skeletal system has completely developed by the end of six weeks. This marks the end of the child’s embryonic (from Greek, to swell or teem within) period. From this point, the child will be called a fetus (Latin, young one or offspring). In the third month, the child becomes very active. By the end of the month he can kick his legs, turn his feet, curl and fan his toes, make a fist, move his thumb, bend his wrist, turn his head, squint, frown, open his mouth, press his lips tightly together. He can swallow and drinks the amniotic fluid that surrounds him. Thumb sucking is first noted at this age. The first respiratory motions move fluid in and out of his lungs with inhaling and exhaling respiratory movements. p.241 Every child shows a distinct individuality in his behavior by the end of the third month. This is because the actual structure of the muscles varies from baby to baby. The alignment of the muscles of the face, for example, follow an inherited pattern. The facial expressions of the baby in his third month are already similar to the facial expressions of his parents. Further refinements are noted in the third month. The fingernails appear. The child’s face becomes much prettier. His eyes, previously far apart, now move closer together. The eyelids close over the eyes. Sexual differentiation is apparent in both internal and external sex organs, and primitive eggs and sperm are formed. The vocal cords are completed. In the absence of air they cannot produce sound; the child cannot cry aloud until birth, although he is capable of crying long before. p.242 In the fifth month, the baby gains two inches in height and ten ounces in weight. By the end of the month he will be about one foot tall and will weigh one pound. Fine baby hair begins to grow on his eyebrows and on his head and a fringe of eyelashes appear. Most of the skeleton hardens. The baby’s muscles become much stronger, and as the child becomes larger his mother finally perceives his many activities. The child’s mother comes to recognize the movement and can feel the baby’s head, arms and legs. She may even perceive a rhythmic jolting movement—fifteen to thirty per minute. This is due to the child. The doctor can now hear the heartbeat with his stethoscope. The baby sleeps and wakes just as it will after birth. When he sleeps he invariably settles into his favorite position called his “lie.” Each baby has a characteristic lie. When he awakens he moves about freely in the buoyant fluid turning from side to side, and frequently head over heel.... The child hears and recognizes his mother’s voice before birth. Movements of the mother, whether locomotive, cardiac or respiratory, are communicated to the child. p.242 In the sixth month, the child develops a strong muscular grip with his hands. He also starts to breathe regularly and can maintain respiratory response for twenty-four hours if born prematurely. He may even have a slim chance of surviving in an incubator. The youngest children known to survive were between twenty to twenty-five weeks old. The concept of viability is not a static one. p.242 This review of the current medical status of the unborn serves us several purposes. Firstly, it shows conclusively the humanity of the fetus by showing that human life is a continuum which commences in the womb. There is no magic in birth. The child is as much a child in those several days before birth as he is those several days after. The maturation process, commenced in the womb, continues through the post-natal period, infancy, adolescence, maturity and old age. Dr. Arnold Gesell points out in his work that no king ever had any other beginning than have had all of us in our mother’s womb. [Arnold Gesell, The Embryology of Behavior (Harper & Bros., 1945.)] Quickening is only a relative concept which depends upon the sensitivity of the mother, the position of the placenta, and the size of the child. p.243 The State of Texas Has a Legitimate Interest in Prohibiting Abortion Except by Medical Advice for the Purpose of “Saving the Life of the Mother” There seems little argument necessary if one can conclude the unborn child is a human being with birth but a convenient landmark in a continuing process—a bridge between two stages of life. The basic postulates from which the Appellees’ arguments proceed are: (1) the pregnant woman has a right of control over her own body as a matter of privacy guaranteed to her by the Constitution of the United States; and (2) this right cannot be interfered with by the state since the state cannot demonstrate any compelling interest to justify its intrusion. The contrary position is the state’s interest in preventing the arbitrary and unjustified destruction of an unborn child—a living human being in the very earliest stages of its development. Whatever personal right of privacy a pregnant woman may have with respect to the disposition and use of her body must be balanced against the personal right of the unborn child to life. Whatever the metaphysical view of it is, or may have been, it is beyond argument that legal concepts as to the nature and rights of the unborn child have drastically changed, based on expanded medical knowledge, over the last 2,500 years. p.243 It is most seriously argued that the “life” protected by the Due Process of Law Clause of the Fifth Amendment includes the life of the unborn child. Further, it would be a denial of equal protection of law not to accord protection of the life of a person who had not yet been born but still in the womb of its mother. If it is a denial of equal protection for a statute to distinguish between a thief and an embezzler under a statute providing for the sterilization of the one and not the other, then it is surely a denial of equal protection for either the state or federal government to distinguish between a person who has been born and one living in the womb of its mother. [Note: in 1942 in Skinner v. Oklahoma, the Court had ruled that it violated equal protection for the state to punish by sterilization a person convicted of three or more “felonies involving moral turpitude” while not similarly punishing a felon convicted of embezzlement.] pp.243-244 If it be true that the compelling state interest in prohibiting or regulating abortion did not exist at one time in the stage of history, under the result of the findings and research of modern medicine, a different legal conclusion can now be reached. The fact that a statute or law may originally have been enacted to serve one purpose does not serve to condemn it when the same statute, with the passage of time, serves a different but equally valid public purpose. p.244 Amicus Curiae Briefs Amicus Curiae Brief in Support of Jane Roe American College of Obstetricians and Gynecologists, American Psychiatric Association, American Medical Women’s Association, New York Academy of Medicine, and a Group of 178 Physicians Filed by Carol Ryan, Esq; as quoted in “Before Roe v. Wade” by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012 The individuals whose names are appended here to as amici curiae are deans and vice presidents of medical schools, heads of departments of obstetrics, gynecology and pediatrics in medical schools, practicing physicians and surgeons who are specialists in those fields, and other physicians and psychiatrists having a particular interest in the subject matter of this brief. The organizations whose names are appended hereto are among the largest, oldest and most respected national organizations in the medical profession. These organizations are devoted to the promotion of the highest possible quality health care and it is toward that end that they join in this brief as amici. They include many leaders in the medical profession and renowned teachers in medical schools. As teachers, they are impelled to seek to protect the right of their students—the future generations of doctors—to give their patients the benefit of knowledge acquired in the medical schools. As practicing physicians, amici are bound by oath to give their patients the benefit of the best medical knowledge. These physicians are concerned that the Texas antiabortion law prevents them from fulfilling their sworn duties and responsibilities in the highest traditions of their profession. They believe that the Texas anti-abortion statute is wrong in principle, fundamentally unsound in the light of present day medical and surgical knowledge, and a serious obstacle to good medical practice. Amici believe that the restrictions imposed by the Texas statute on the performance of medically indicated therapeutic abortions interfere with the physician-patient relationship and with the ability of physicians to practice medicine in accordance with the highest professional standards. Amici are also concerned with the burden the law places on physicians to interpret, at their peril, a statute whose meaning and scope are not clear. Accordingly, amici deem it appropriate to offer arguments with respect to this area of law which is of vital concern to them. p.319 The American Psychiatric Association is a non-profit, tax exempt, scientific and educational medical organization, comprised of those 18,783 qualified Doctors of Medicine who specialize as psychiatrists in the diagnosis, care and treatment of mental diseases and defects of the mind. Abortions are of prime interest to psychiatrists because pregnancy, child bearing, birth and abortions can have material effects upon the mental processes of patients requiring psychiatric diagnosis, evaluation and care. p.319 The Board of Trustees of the APA on December 12–13, 1969, upon recommendation of the Committee on Psychiatry and Law, approved the following: Position Statement on Abortion A decision to perform an abortion should be regarded as strictly a medical decision and a medical responsibility. It should be removed entirely from the jurisdiction of criminal law. Criminal penalties should be reserved for persons who perform abortions without medical license or qualification to do so. A medical decision to perform an abortion is based on the careful and informed judgments of the physician and the patient. Among other factors to be considered in arriving at the decision is the motivation of the patient. Often psychiatric consultation can help clarify motivational problems and thereby contribute to the patient’s welfare. p.320 Under Texas law, abortion is permitted only “for the purpose of saving the life of the mother.” If, following the performance of an abortion, under this law, a physician is brought to trial and the jury disagrees with the physician’s interpretation of the meaning of these quoted words, the physician is liable to imprisonment for from two to five years in the penitentiary. This Court has declared that “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Under this standard the statute must fall, because amici respectfully submit that neither they, nor Dr. Hallford nor any other similarly situated physician receive proper notice from the statute of what acts and consultations in their daily practice of medicine will subject them to criminal liability. p.320 Amici contend that the phrase “for the purpose of saving the life” is so indefinite and vague that physicians must guess at its meaning and do in fact differ as to the meaning of the phrase. The word “save” has a broad range of possible meanings. The Random House Dictionary lists, inter alia, “to rescue from danger or possible harm...to avoid...the waste of...to treat carefully in order to reduce wear, fatigue, etc....” ...Life may mean the vitality, the joy, the spirit of existence, as well as merely not dying. The possible interpretations of the statute range therefore from a test requiring imminence of death to one which would permit abortion if desirable to preserve an enjoyable life, i.e., a test under which the physician could consider the effect of pregnancy upon the quality of the patient’s life and not merely upon the fact of life as not death. The statute forces the physician to decide at his peril whether a strict or liberal interpretation, or one in between, is the one intended by the statute. It forces him at his peril to make a decision which may be gainsaid by a jury of non-peer laymen whose guess will be as good as his as to the meaning of this statute. In sum the statute fails to provide the certainty required of penal laws. pp.320-321 Physicians have a professional obligation to preserve and advance the health of their patients. Assuming arguendo that the statute should be read as requiring a judgment by the physician that without an abortion the patient will die, the statute conflicts with the physician’s obligation because it commands him to ignore all the health interests of his patient with respect to termination of pregnancy unless he can predict that she will die without an abortion. Moreover, the statute does not tell the doctor what factors he may properly consider in making this prediction; nor how certain his prediction must be before he may decide to terminate his patient’s pregnancy; nor how soon she must die if she does not have an abortion. p.321 He must guess whether the statute allows abortion only if his patient would otherwise die before delivery or if it is sufficient that her life would be significantly shortened thereafter. p.321 If a patient threatens suicide, physicians do not know if they may rely upon the threat as a basis for abortion to save life. Psychiatric consultation may not be available because the woman may refuse such treatment. The non-psychiatrist may then be forced to evaluate the probability of suicide. The physician does not know how he may determine safely whether the patient is sincere in her threat. Furthermore, a woman who does not overtly threaten may be as inclined toward suicide as one who makes clear her threat. The non-psychiatrist doctor is not told whether he may consider suicidal tendencies whether they are stated by his patient, or not. If a doctor may properly consider the fact that his patient may take her own life unless she receives an abortion, the question is opened whether he may consider the fact that she may seriously imperil her life by obtaining an illegal abortion. For a doctor to consider his patient’s threat to obtain an illegal abortion by an unlicensed person is a logical step from his considering her threat of suicide, because such illegal abortions are extremely hazardous and are in fact a common cause of maternal deaths. Physicians are unable to agree on the meaning of the statute because its words have no medical meaning. Medical standards have been established for treating patients and for terminating pregnancy as part of that treatment. The statute cuts across those standards and requires physicians to apply an unclear legal test which supersedes and may negate their medical judgment. pp.321-322 Unquestionably there is a constitutionally protected right to practice one’s chosen profession. The practice of medicine clearly includes the treatment of pregnancy and its attendant conditions. The statute interferes with a physician’s practice of medicine by substituting the mandate of a vague legalism for the doctor’s best professional judgment as to the medically indicated treatment for his pregnant patients. Physicians and surgeons in many special branches of medicine routinely make extremely serious decisions regarding their patients’ best medical welfare, often with life or death in the balance. But those physicians treating pregnant women run the risk of criminal charges as the result of their professional decisions. The statute unfairly discriminates against those physicians treating pregnant women and thus denies these physicians equal protection of the laws.... p.322 The statute forbids all abortions except those necessary to save the life of the mother. Construing the statute to intend its narrowest possible meaning, i.e., that abortions are lawful only when they will prevent certain and imminent death, it is clear that the operation of the statute may deny women abortions when the abortion would prevent injury or safeguard or preserve the patient’s mental or physical health. Thus a woman suffering from heart disease, diabetes or cancer whose pregnancy worsens the underlying pathology may be denied a medically indicated therapeutic abortion under the statute because death is not certain. Such a patient is effectively denied a fundamental constitutional right reserved to her under the Ninth Amendment—the right to medical treatment... p.322 A state may not require that a citizen impair his or her health, even if the individual’s right to good health and medical care infringes upon some legitimate state interest. The State of Texas may not in pursuit of its policy infringe upon the constitutionally protected right of its pregnant citizens to the medical treatment they require to maintain their good health. The anti-abortion statute denies women their right to secure the best medical treatment available and, further, positively and seriously impairs their health by forcing them to turn to illegal abortionists, most of whom are not licensed physicians and do not have the most advanced and safest medical techniques available for their use. Statistics are necessarily uncertain, but a frequent estimate is that over one million criminal abortions occur in the United States each year, resulting in an estimated 5,000 maternal deaths annually. That 5,000 American women a year should be denied medically safe procedures and thus be driven to their untimely deaths to avoid bearing unwanted children is unconscionable. Death due to complications following illegal abortion procedures are only part of the problem. Many thousands of other women needlessly suffer serious infections following these procedures in addition to pain, suffering and emotional trauma.... p.322-323 A doctor has a direct, personal, substantial interest for his decision may send him to jail. Not only does the State prevent the physician from making an impartial decision about terminating his patient’s pregnancy, it unfairly influences this decision in a shocking way. The State says that only if the physician wrongly decides that the operation is needed to preserve her life is he criminally liable. If he wrongly decides the operation is not needed to preserve her life, he is subject to no criminal penalties. The State of Texas thus requires that all errors in a doctor’s evaluation of his patient’s need for termination of pregnancy be on the side of her death... A physician practising medicine under the Texas statute cannot keep as his sole concern his patient’s life. A doctor would have to be superhuman if he were able to ignore the fact that his decision can be second-guessed by a jury which may totally disregard medical evidence. Therefore, his patient cannot receive the impartial decision required by due process of law.... p.323 The freedom to be the master of her own body, and thus of her own fate, is as fundamental a right as a woman can possess. The Texas statute, by forcing a woman to carry to full term an embryo—regardless of her wishes, her health, her circumstances, her finances, her family or her future—is the most severe and extreme invasion of her right to privacy. She is forced to function as a baby factory for an unwanted child. In addition to the gross invasion by the state into a pregnant woman’s physical autonomy, the law imposes enormous additional obligations on this woman toward her child once it is born. Furthermore, these obligations, involuntarily assumed, continue for many years throughout the child’s minority. It is unthinkable for a state to compel reproduction against a woman’s wishes. The right of a woman to avoid pregnancy following conception has been recently recognized in State and Federal Courts. p.323 In the late 1960s and early 1970s, lawyers were advancing the claim that discrimination on the basis of wealth violated equal protection, an argument that the Supreme Court rejected in 1973 in a case concerning the financing of public education. The lawyers who signed this brief were Alan F. Charles and Susan Grossman Alexander of the UCLA School of Law. p.324 Amicus Curiae Brief in Support of Jane Roe American Ethical Union, American Friends Service Committee, American Humanist Association, American Jewish Congress, Episcopal Diocese of New York, New York State Council of Churches, Union of American Hebrew Congregations, Unitarian Universalist Association, United Church of Christ, and Board of Christian Social Concerns of the United Methodist Church Filed by Helen L. Buttenwieser and Bonnie P. Winawer; as quoted in “Before Roe v. Wade” by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012 The Amici do not advocate abortion. They do advocate the right of an individual to be free from State interference in the conduct of his or her private life. That freedom includes the determination whether or not to have a child. p.339 The brief of the Amici stresses that the States may not unreasonably interfere with the constitutional right of an individual to determine the course of his or her own life and that the Georgia and Texas abortion laws constitute such an interference. The Amici present related issues that Appellants have not discussed in their Jurisdictional Statements—namely that there is no constitutional right of birth and that the States may not justify the abortion laws’ interference with the personal liberty of all persons on the ground of moral precepts not shared by all. The Georgia and Texas abortion laws unjustifiably restrict the reserved constitutional liberty of all persons to conduct their private lives without unwarranted governmental interference. The religious view that the product of every conception is sacred may not validly be urged by the States as a justification for limiting the exercise of constitutional liberties, for that would be an establishment of religion. p.340 The real basis of the claim of state interest in the foetus is a doctrinaire “moral” concern for the “potential of independent human existence.” The theoretical moral concern is effected only by permitting a greater moral outrage: the deep human suffering of adults and children alike, that results from compelling one to continue an unwanted pregnancy, to give birth to an unwanted child, and to assume the burdens of unwanted parenthood. To many minds the “moral” concern for the foetus is misplaced. Reflective judges, scholars and commentators have perceived and deplored the fact that religious beliefs underlie the retention of abortion laws.... No argument is needed to show that the police power cannot be employed in the service of sectarian moral views without violating the Establishment Clause of the First Amendment.... p.340 In Griswold v. Connecticut, the Court held that the right of privacy, whether drawn from the penumbras of the First, Third, Fourth, Fifth, Ninth and Fourteenth Amendments, or protected by the Due Process Clause of the Fourteenth Amendment, protects the free exercise of one’s views (whether of religious or secular origin) on birth control. State laws such as the abortion laws at issue cannot be justified on the ground that they comport with one group’s “moral” condemnation of the exercise of the guaranteed freedom by others. pp.340 The abortion laws invade the fundamental individual liberty reserved by the Constitution to conduct one’s personal life without unwarranted governmental interference, and the laws’ infringement of that liberty is not warranted by any overriding valid state interest. p.341 Amicus Curiae Brief in Support of Henry Wade Americans United for Life Filed by Charles E. Rice, Esq.; as quoted in “Before Roe v. Wade” by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012 In Levy v. Louisiana (1968), the Court said: “We start from the premise that illegitimate children are not ‘nonpersons.’ They are humans, live, and have their being. They are clearly ‘persons’ within the meaning of the Equal Protection Clause of the Fourteenth Amendment.” The child in the womb meets these criteria of personhood under the Equal Protection Clause. He is human, he lives and he has his being. That is, he is a living human being. As the highest court of New Jersey summarized the state of scientific knowledge, “Medical authorities have long recognized that a child is in existence from the moment of conception.” Smith v. Brennan (N.J. 1960). p.347 The character of the child in the womb as a person is clearly recognized in the law of torts.... It is significant that a majority of courts, keeping pace with advancing scientific knowledge, now hold that even a stillborn child may maintain a wrongful death action where his death was caused by a prenatal injury. A similar trend can be seen in the law of property.... The law of property has long recognized the rights of the child in the womb for purposes which affect the property rights of that child.... For purposes of equity, too, the law has recognized the existence of the child in the womb. An unborn child, for example, can compel his father to provide him support. He can compel his mother to undergo a blood transfusion for his benefit, even where such transfusion is forbidden by the mother’s religious beliefs... p.347 Suffice it to say that the child in the womb satisfies the three criteria for personhood he is human, he lives and he has his being—enunciated in Levy v. Louisiana. He is clearly alive and in being. As the living offspring of human parents, he can be nothing else but human. As a living human being he is therefore a person within the meaning of the Equal Protection Clause. Even if one somehow does not concede that the child in the womb is a living human being, one ought at least to give him the benefit of the doubt. Our law does not permit the execution, or imprisonment under sentence, of a criminal unless his guilt of the crime charged is proven beyond a reasonable doubt. The innocent child in the womb is entitled to have us resolve in his favor any doubts we may feel as to his living humanity and his personhood. p.348 IF THE LAW WERE TO ALLOW THE CHILD IN THE WOMB TO BE KILLED WHERE IT IS NOT NECESSARY TO SAVE THE LIFE OF HIS MOTHER, IT WOULD MAKE HIM THE VICTIM OF AN UNREASONABLE CLASSIFICATION AND AN INVIDIOUS DISCRIMINATION IN VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. p.348 The right to live is more basic even than the right to procreate. And there is “no redemption” for the aborted child in the womb. The abortion is to his “irreparable injury” and by it he “is forever deprived of a basic liberty.” Any law which interferes with the right to live must therefore be carefully scrutinized. It is appropriate to apply here the principles which govern the application of the Equal Protection Clause to another basic right—the right to be free from racial discrimination.... There is no sufficient necessity which justifies a law which permits the killing of the child in the womb where it is not necessary to save the life of his mother. We are not concerned in this appeal with the question of whether a state law can constitutionally allow abortion where it is necessary to save the life of the mother. Rather the issue is whether the constitution permits the child in the womb to be killed where it is not necessary to save the life of his mother. To permit the child in the womb to be killed in such a case improperly discriminates against him on account of his age and situation. For the law does not allow a born child or an adult to be killed at the discretion of another or in any other situation where his killing is not necessary to save the life of another. p.348 Discrimination in employment on account of age is now forbidden by federal law which enunciates a strong public policy. And while age may be a reasonable criterion for determining the right to vote or to drive a car, it can hardly be contended that it is a reasonable basis for determining whether one has a right to continue living. The child in the womb should have the same right as his older brother or sister not to be killed where it is unnecessary to save the life of his mother. Nor should the fact that he temporarily reposes in his mother’s womb rather than in an incubator or a crib operate to deprive the child of the right to continue living.... pp.348-349 Amicus Curiae Brief in Support of Jane Roe California Committee to Legalize Abortion; South Bay Chapter of the National Organization for Women; Zero Population Growth, Inc.; Cheriel Moench Jensen; and Lynette Perkes Filed by Joan K. Bradford, Esq.; as quoted in “Before Roe v. Wade” by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2023 Each of the organizations and individuals urges upon the Court the position that laws restricting or regulating abortion as a special procedure violate the Thirteenth Amendment by imposing involuntary servitude without due conviction for a crime and without the justification of serving any current national or public need.... p.341 From the outset, the Amendment has been interpreted by this Court to apply to all persons without regard to race or class, and to guarantee universal freedom in the United States.... It is the purpose of this brief to show that anti-abortion laws, which force an unwillingly pregnant woman to continue pregnancy to term, are a form of involuntary servitude without the justification of serving any current national or public need. p.342 Pregnancy is not a mere inconvenience. “The physical and functional alterations of pregnancy involve all the body systems,” displacing body parts, depleting the body of its necessary elements and changing its chemical balance. The pregnant woman’s body is in a state of constant service, providing warmth, nutrients, oxygen and waste disposal for the support of the conceptus. These activities are always to the detriment of the woman’s body. They are performed for the benefit of the conceptus alone unless an interest of the pregnant woman is also served thereby, that is, unless the pregnant woman defines the pregnancy as wanted. p.342 During pregnancy, enlargement of the uterus within the abdominal cavity displaces and compresses the other abdominal contents including the heart, lungs and gastrointestinal tract. The resulting pressure has a direct effect on circulation of the blood and increase in venous pressure, sometimes leading to irreversible varicose veins and hemorrhoids and, with predictable frequency, to disabling thrombophlebitis. The gastrointestinal tract experiences functional interference causing constipation and displacement of the urinary tract, thus urinary tract infections occur in six to seven per cent of all pregnant women and such infections, in turn, lead to kidney infections. During the second and third months, bladder irritability is quite constant. Tearing and overstretching of the muscles of the pelvic floor occurs frequently during delivery, causing extensive and irreparable damage to the pelvic organs and their supporting connections. Surgery is often required to return these organs to position. Bladder control may be permanently lost. The weight of the contents of the uterus causes sacroiliac strain accompanied by pain and backache, with the effects of the pressure being felt as far as the outermost extremities of the woman’s body. The weight causes such pressure on the cervical spine as to result in numbness, tingling and proprioceptive acuity reduction in the hands. pp.342-343 During pregnancy estrogen levels exhibit severe increase, this phenomenon accounting for the symptoms of nausea and vomiting occurring in one-half or more of all pregnant women. If this condition is prolonged, hospitalization is required. Evacuation of the contents of the uterus results in immediate and dramatic relief of symptoms. In severe cases blood protein may be destroyed. Bodies of women who have died from this condition exhibit the symptoms of starvation, acidosis, dehydration and multiple vitamin deficiencies. The excess progesterone produced by the placenta causes fluid retention, increase in blood pressure, weight gain, irritability, lassitude, severe emotional tension, nervousness, inability to concentrate, and inability to sleep. At least 40 per cent of pregnant women have symptomatic edema, distorting the hands, face, ankles and feet. A woman’s lungs respire 45 per cent more air than normal in an attempt to obtain the needed oxygen, but oxygen absorbed is less than normal despite the extra effort of the crowded lungs. Because the conceptus utilizes almost twice as much calcium as the pregnant woman can assimilate from administered and dietary calcium, extra calcium must be drawn from a woman’s calcium stores, mostly from her long bones. Thus, the pregnant woman is likely to suffer leg cramps. In young women, permanent bone deformation results. Total loss of a woman’s iron stores during pregnancy and delivery is measured at 680 mg. Thus anemia of pregnancy is high and almost all pregnant women, especially those having repeated pregnancies, require supplementary iron. Efforts to correct this condition may fail because many pregnant women cannot tolerate iron supplements. With such extensive effects, can pregnancy be considered as merely a “natural” state of being? p.343 Contraceptives are never foolproof. Any act of intercourse between a fertile man and woman constitutes some risk of conception, no matter what contraceptives are used.... If 100,000 women who do not wish to become pregnant take the pill, three will probably die within the year and 1,000 will become pregnant. Under the present state of contraceptive failure, a woman does not have the option of remaining free of pregnancy by making careful use of contraceptives. She is at some risk in using the most effective methods of contraception available. p.343-344 The average married woman expects to bear two to three children, yet coitus takes place between a couple married during the period of the woman’s reproductive years (age 18 to 43) an average of 2,535 times. The frequency of coitus stated in the Kinsey Report is average behavior between married couples. If the woman wishes to remain free of pregnancy once her desired family size is reached, her only sure method of remaining so free of pregnancy is complete abstinence from sexual intercourse. If she embarks on such a course, will the law uphold her decision? p.344 A wife has no legal power to refuse to participate in the intimacies of married life. If she refuses her husband’s forced attentions, there is no law to intervene in her behalf. She cannot charge her husband with rape. Indeed, if a married woman attempts to practice abstinence, the laws of most states treat her behavior as a denial of the marital right of the husband.... Under present law, a married woman has two choices: she can attempt to refuse to fulfill the sexual obligations of the marriage and thus risk termination of her marriage; or she can participate in normal marital relations and risk unwanted pregnancy and childbirth. With a choice of either alternative, she risks the consequence of a legally imposed penalty. The woman is left with no non-punishable course of action. p.344 The women who bear children and the medical experts who assist them testify that pregnancy and childbearing are indeed labor. The fact that many women enter into such labor voluntarily and joyfully does not alter the fact that other women, under other circumstances, find childbearing too arduous, become pregnant through no choice of their own, and are then forced to complete the pregnancy to term by compulsion of state laws prohibiting voluntary abortion. It is the purpose of the Thirteenth Amendment to prohibit a relationship in which one person or entity limits the freedom of another person. In the absence of a compelling state interest or due conviction for a crime, the state’s forcing the pregnant woman through unwanted pregnancy to full term is a denial of her Thirteenth Amendment right to be free from “a condition of enforced compulsory service of one to another.” This is the very essence of involuntary servitude in which the personal service of one person is “disposed of or coerced for another’s benefit.” pp.344-345 Let us assume, for the time being, that the pregnant woman and the fetus she carries within her body have come before the law as equal “persons.” The woman desires an abortion. May the state legitimately intervene to prevent the abortion? At the present stage of medical knowledge and ability to control human incubation, the fetus cannot survive and develop into a separate self-sustaining person without contribution of the bodily force of the single female individual who carries that particular fetus within her body. Yet the laws prohibiting and regulating abortion, unlike all other laws in respect of persons, compel this pregnant woman to breathe, process food and donate blood for the sustenance of another human entity, either fully or partially developed. In no other instance does the law compel one individual to donate his/her bodily force to another individual. In no other instance does the law give another human—even a fully developed human—a right to life beyond that which the person himself can sustain. p.345 Abortion laws alone compel the contribution of one individual’s organs, blood, breath and life support system for another individual, either fully or partially formed.... If the pregnant woman, as potential donor, and the fetus, as potential donee, come before the law as equal “persons,” one may not command involuntary servitude of the other; and so the potential donor retains her sovereignty over her body and her right to refuse. Therefore, it follows that the fetus, a potential person, can have no greater right over a potential donor. Unless the state has some other compelling interest in forcing the donation of the pregnant woman’s body to the service of the fetus, the state must stand aside in the abortion conflict; it cannot legitimately intervene in preventing the pregnant woman from withholding her life force from the fetus.... pp.345-346 ....A state cannot seriously contend today that restrictions on abortion are justified by an overriding state interest in increasing population. See Ehrlich, The Population Bomb, 1968. On the contrary, it is accepted government policy to limit family size and to encourage family planning. Such state interest is expressed in Population and the American Future, The Report of the President’s Commission on Population Growth and the Future (March, 1972) p. 192: Recognizing that our population cannot grow indefinitely, and appreciating the advantage of moving now toward the stabilization of population, the Commission recommends that the nation welcome and plan for a stabilized population. p.346 Today, this country’s population has moved far beyond its needed growth, and current government policy is to encourage population control. Anti-abortion laws have outlived their purpose if regarded in historical perspective. Rights of the individual pregnant woman can no longer be ignored. The Thirteenth Amendment’s promise of freedom has long provided to male citizens the sovereign control of their own bodies. p.346 Amicus Curiae Brief in Support of Henry Wade Certain Physicians, Professors and Fellows of the American College of Obstetricians and Gynecologists Filed by Dennis J. Horan; Jerome A. Frazel, Jr; Thomas M. Crisham; Dolores B. Horan; and John D. Gorby; as quoted in “Before Roe v. Wade” by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012 An expansion of the right to privacy to include the right of a woman to have an abortion without considering the interests of the unborn person decides this question against the unborn. The necessary consequence of that expansion would be a direct and unavoidable conflict between the unborn person’s right to life and the woman’s extended right of privacy. Assuming such a conflict, it is the position of the amici that the more fundamental and established of the conflicting rights must prevail where they clash. The right to life is most certainly the most fundamental and established of the rights involved in the cases facing the Court today. p.350 The medical hazards of legally induced abortion are all too often compared to the safety of a tonsillectomy or the “proverbial tooth extraction.” (See Texas Appellant’s brief.) Data presented from Eastern European mortality statistics have often been used to produce such claims as "it is X-times safer to have an abortion than to carry the child to term." These claims have been widely published in newspapers and lay periodicals; when made by the non-professional, they are forgivable; when made by "medical experts," one can only assume that these "experts" have allowed a desire for "social change" to fog their ability to distinguish first-rate from second- rate medical care. The world’s medical literature does not support such claims. The medical hazards of legal abortion should be presented to the Court in their total perspective through an analysis of this literature. It is imperative to note that when one focuses only on the legal abortion mortality rates from selected countries around the world, one can only see the risks of legal abortion through tunnel vision. The total medical picture cannot be understood without a look at the early and late physical and psychological complications. Indeed, these are the complications which affect the greater number of people and result in what a World Health Organization scientific group said was "a great amount of human suffering." p.350 The obstetrician has two patients: mother and child. It is deplorable to think that discussions of mortality can so easily exclude the child. The court should recognize that the mortality to the child is nearly 100%. Only an occasional child has the strength to survive. Let us not forget that abortion kills children of varying ages and stages in development. The unheard voices of these little ones are our concern, and we deplore this violent trend which is turning the healing art of medicine into a source of efficient swift and sure destruction of human life. A trend which will yield a "body count" unlike any we have seen in our nation’s history. We deplore the condition of a society which calls physicians to exercise their art as a tool of death for those yet unborn.... pp.350-351 [O]ne must recognize that the performance of legally induced abortion upon healthy women is not the practice of medicine at all, but rather another example of the violence of our times; the use of one more technological skill to destroy human life.... p.351 It is respectfully submitted that the unborn is a "person" within the meaning of the 5th and 14th Amendments. Consequently, the unborn's life can be taken only with due process of law, and its life is entitled, like all other persons’ lives, to equal protection under the law. p.351 It is respectfully submitted that the unborn is a "person" within the meaning of the 5th and 14th Amendments. Consequently, the unborn's life can be taken only with due process of law, and its life is entitled, like all other persons’ lives, to equal protection under the law. p.352 The National Right to Life Committee is a non-sectarian, interdisciplinary organization that is committed to informing and educating the general public on questions related to the sanctity of human life. Protecting the right to life of the unborn child is of central concern for NRLC. The Committee believes that proposals for total repeal or relaxation of present abortion laws represent a regressive approach to serious human problems. NRLC is in favor of a legal system that protects the life of the unborn child, while recognizing the dignity of the child’s mother, the rights of its father, and the responsibility of society to provide support and assistance to both the mother and child.... p.352 Amicus Curiae Brief in Support of Jane Roe National Legal Program on Health Problems of the Poor, National Welfare Rights Organization, and American Public Health Association Filed by Alan F. Charles and Susan Grossman Alexander; as quoted in "Before Roe v. Wade" by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012 These organizations share the view that restrictive state abortion laws, such as the Texas statute here under review, have a negative effect on the health and wellbeing of American women, and have a particularly severe impact on the nation’s poor and non-white populations. It is the poor and non-white who suffer most from limited access to legal abortion, and it is they who incur greatly disproportionate numbers of deaths and crippling injuries as a result of being forced to seek criminal abortion.... p.324 The State Has No Interest in Increasing Its Population; on the Contrary, Its Interest, if Any, Is in Limiting Population Growth. In view of the increasing public concern over our rapidly multiplying population, any supposed state interest in increasing the number of lives in being can hardly be raised as a justification for the prohibition of abortion. Indeed, the growing emphasis of both federal and state agencies upon preplanning of families and limitation of their size makes manifestly inconsistent treating the termination of pregnancy as a crime, while birth control devices are not merely permitted but are openly promoted and encouraged by the government.... p.324 While amici contend that to receive proper medical care in the form of an abortion approved and performed by a physician is, by itself, a fundamental interest protected by the Constitution, it is not necessary for abortion to be declared a constitutional right to hold that its discriminatory denial violates guarantees of equal protection. The State of Texas has prohibited all abortions except for “the purpose of saving the mother’s life.” On its face, this permits treatment in the case of all women whose lives are similarly endangered, and excludes from treatment all others. p.325 Presumably, therefore those women who qualify for a legal abortion according to the terms of the statute should be able to obtain one, regardless of their race or socio-economic status. There is nothing demonstrable in the differences of skin color or economic condition which suggests that a substantially smaller proportion of the poor or the non-white fall into this category than that of the white and the non-poor, or that the poor and non-white have a substantially different moral attitude on abortion. On the contrary, a recent study of births occurring between 1960 and 1965 led investigators to conclude that one-third of Negro (as contrasted with one-fifth of white) births were unwanted. Unwanted births were in general more than twice as high for families with incomes of less than $3,000 as for those with incomes of over $10,000; this differential was "particularly marked among Negroes." The results indicated, in the view of the investigators, that there is a "coincidence of poverty and unwanted births rather than a propensity of the ‘poor’ to have unwanted children." One explanation for this high level of unwanted births among the poor and the non-white is surely the fact that they do not have equal access to abortions. Data demonstrate that the poor and the non-white do not receive this medical treatment on the same terms as do others. They thus suffer a particularly harsh and adverse effect from the operation of this statute, as they do from that of the other restrictive abortion laws which have existed and currently exist in the United States.... p.325 Because the poor rely primarily upon public hospitals for their medical services, denials or delays at those institutions are tantamount to a denial of prompt medical care solely because these women are without funds. A partial explanation for the marked disparity in these figures appears to lie in the far lower incidence of abortions performed for psychiatric reasons among poor and non-white women. While socioeconomic conditions never per se legally warrant therapeutic abortion, socioeconomic status nevertheless frequently determines whether or not an abortion will be performed, and if performed, whether that self-same abortion will be therapeutic or criminal. pp.325-326 Criminal abortion has been described as the greatest single cause of maternal mortality in the United States; it is one of the greatest cause of disease, infection, and resulting sterilization as well. The poor and the non-white suffer disproportionately from the “back-alley” abortionists, whose services they seek out in lieu of the medically safe hospital abortions generally denied them. California, the only state known to officially compile such figures, notes that approximately 7 percent of that state’s non-white female population subjected themselves to criminal abortion in 1968, as opposed to only 1.5 percent of the state’s white female population. The often tragic results of these abortions are also documented. In their New York study, Drs. Gold, et al. noted that the ratio of criminal abortion deaths per 1,000 live births was 4.0 for white women and 16.2 for non-whites. Likewise, Dr. Hall’s 1960–62 study led him to conclude that approximately half of the puerperal deaths among New York’s Negroes were due to criminal abortions as opposed to only a quarter of the puerperal deaths among white women. p.326 In sharp contrast to the above data has been the experience in New York State since July 1, 1970, when categorical restrictions on abortion were eliminated. On April 5, 1971, New York City health officials reported that the city’s public hospitals, which restricted abortions to city residents, were performing an average of 511 a week, and that the “vast majority” of those women would be unable to afford abortions in private hospitals. It is clear from this evidence that where the law has eliminated restrictions on the obtaining of abortions, the poor and non-white women who were previously unable to exercise the financial and other kinds of leverage required to have a “therapeutic” abortion, are able to obtain medically safe abortions on an equal basis with all other women, and they do obtain them to at least the same extent as their more privileged sisters. One result has been a drop in the maternal mortality rate: New York City hospitals now report treating far fewer victims of “botched” illegal abortions than they did in years past. p.326 The Texas Abortion Law, While Permitting Abortion to Save a Woman’s Life, Irrationally Excludes From Its Protection Women Whose Health May Be Seriously Threatened, Who Bear a Deformed Fetus, Who Have Been Victims of Sexual Assault, Who Are Financially, Socially or Emotionally Incapable of Raising a Child and Whose Family Tranquility and Security Would Be Seriously Disrupted by the Birth of Another Child, Exclusions Which Bear Most Heavily on the Poor and Non-White, and Which Do Not Serve Any Compelling or Reasonable State Interest, Denying to These Women the Equal Protection of the Law. p.327 The Equal Protection Clause of the Fourteenth Amendment requires the states to “exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulations.” The challenged statute operates to deny equal protection to women with compelling reasons for receiving therapeutic abortion, concurred in by their physicians, but whose physicians cannot advance as “medical advice” that the abortion is necessary to “save” their lives. Women so excluded are those who would suffer a serious impairment of physical or mental health from carrying a pregnancy to term, those whose pregnancies are the result of rape or incest, those whose fetuses will, with high medical certainty, be born with gravely disabling physical or mental defects, and those who are financially unable or emotionally incapable of supporting a child, or of adding another child to a family whose limited resources are already strained by their devotion to raising children in being. [T]he fundamental interest involved in the case of each of the excluded classes of women is as deserving of constitutional protection as the “saving” (whatever it may mean) of the mother’s life. Compelling a woman to give birth to a child which is the product of rape or incest, or which will be born deformed, or whose birth will damage the woman’s own health or capacity to be a mother to the child or to her existing family, may be as unbearable to the woman as a vague threat to her life itself. That compulsion also puts her physician in the ethically questionable position of having to decide just how much injury he must allow her to bear, despite his obvious ability to prevent that injury, before he can confidently say to the prosecutor that he ultimately acted to save her life. p.327 Certain assumptions must be made and constitutionally accepted to find that there is a basis of rationality to the exclusion of the above-mentioned classes of women from the statute’s protection. One is that human-life begins with fertilization of egg by sperm. Another is that this “life” is equivalent to the life of the woman, and the life-saving exception to the abortion law is a rational balancing of interests by the state, analogous to the laws of self-defense. It is remarkable that the existence of a one-day-old fetus is to be equaled with the life of a grown woman. The woman is—beyond doubt—a human being, one upon whom other human beings (husband, children, etc.) depend in a variety of ways essential to the sanctity of the family, and whose impaired health may be critically disruptive to that family; or one who may not have consented to sexual intercourse made felonious by the state, yet who is forced to bear the consequences of that same felonious act. This equivalency of interest between a microscopic embryo and the woman who bears it must be assumed in the Texas law, however, since that statute draws no lines, such as viability, as the time to invoke the state’s protection. p.328 Because the Texas abortion law has the clear effect of denying disadvantaged citizens access to safe hospital abortions, without any justification, it violates the Equal Protection Clause of the Fourteenth Amendment. p.328 Amicus Curiae Brief in Support of Henry Wade National Right to Life Committee Filed by Alfred L. Scanlan; Robert M. Byrn; Juan J. Ryan; Joseph V. Gartlan, Jr., and Martin J. Flynn; as quoted in “Before Roe v. Wade” by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012 NRLC sees no point in belaboring the scientifically obvious. Life begins at conception and for practical medical purposes can be scientifically verified within 14 days. Within three weeks, at a point much before “quickening” can be felt by the mother, the fetus manifests a working heart, a nerve system, and a brain different from and independent of the mother in whose womb he resides; the unborn fetus is now a living human being. It is universally agreed that life has begun by the time the mother realizes she is pregnant and asks her doctor to perform an abortion. p.352 This Court has decided that the Constitution protects certain rights of privacy on the part of a woman arising from the marital relationship which cannot be unjustifiably interfered with by the State. NRLC believes that the genesis of such rights, to the extent such rights may exist, must be found among the “penumbral” personal liberties protected by the Due Process Clause of the Fifth Amendment. Yet equally unchallengeable is the proposition that an unborn child’s right not to “be deprived of life,” to quote the words of the Due Process Clause itself, is also a fundamental personal right or liberty protected by that same amendment and entitled to the traditional searching judicial scrutiny and review afforded when basic personal liberties are threatened by state action, whether legislative or judicial in character. Therefore, it is very clear that this case is not one, as the appellants would portray it, which involves merely the balancing of a right of personal liberty (i.e., a married woman’s privacy) against some competing, generalized state interest of lower priority or concern in an enlightened scheme of constitutional values, such as the state’s police power. Here, the Court must choose between a nebulous and undefined legal “right” of privacy on the part of a woman with respect to the use of her body and the State’s right to prevent the destruction of a human life. That election involves the determination as to whether the State’s judgment that human life is to be preferred is a prohibited exercise of legislative power. p.353 If the appellants and their supporting amici are maintaining that a woman has a right to the integrity of her body sufficient to permit her alone to decide, for whatever reason, whether to terminate a pregnancy, the proposition cannot prevail. If a woman has sovereignty over her body of the degree suggested by the appellants, how could the States ban prostitution, outlaw suicide or prohibit the use of harmful drugs? pp.354-355 Family planning, including the contraceptive relationship, is a matter between a man and a woman alone. The abortion relationship, on the other hand, is between the parents and the unborn child.... p.355 NRLC disputes the assertion that a woman enjoys any right of privacy, as yet undefined in American law, which vests in her alone the absolute authority to terminate a pregnancy for any reason whatsoever. No precedents of this Court have gone so far. p.355 If, despite all the medical evidence and legal history on the point, the unborn child is not to be considered a person within contemplation of the law with legally protectable interests, then Griswold possibly might be stretched to serve as a precedent for the result that the appellants urge this Court to reach. On the other hand, if terminating pregnancy is something different from preventing it, if abortion is different from cosmetic surgery, if the fetus is not in the same class as the wart, and if we are dealing with something other than an inhuman organism, then Griswold is totally inapposite. As medical knowledge of prenatal life has expanded, the rights of the unborn child have been enlarged. And even if it could still be argued that the fetus is not fully the equal of the adult, the law, through centuries of judicial decision and legislation, and following the lead supplied by medical science, has raised the equivalency of that life to such a status that the unborn child may not be deprived of it, absent the demonstrated necessity of protecting a reasonably equivalent interest on the part of the mother. Griswold, of course, presented no such conflict and therefore is not controlling in this case.... pp.355-356 In both cases, the doctor-appellants alleged that the particular statute in question “chills and defers plaintiffs from practicing their profession as medical practitioners” and thus offends rights guaranteed by the First and Fourteenth Amendments. The dispositive answer to these contentions is that neither statute proscribes speech or medical advice but prohibits the commission of the criminal acts specified in the statute. p.356 Of course, departing from the facts of the two cases, it might be argued abstractly that (1) a poor woman finds it more difficult than a rich woman to leave Texas or Georgia in order to get an abortion in a jurisdiction where that might be legal, and (2) she cannot afford treatment by a private physician who, some might say, would be more inclined to find a legal reason for the abortion. Hence, the two statutes bear unequally upon the poor. However, the same theoretical argument could be made of many types of conduct proscribed by the criminal laws of Texas and Georgia. There are jurisdictions to which wealthy persons may travel in order to indulge in the doubtful pleasures of gambling at will, using narcotics without restraint, and enjoying a plurality of wives. Could these doubtful “advantages” on the part of the rich be relied on as any basis to set aside the criminal statutes of Texas or Georgia proscribing such activities within those jurisdictions? pp.356-357 Many criminal laws in actual practice do bear with unequal severity upon the poor. It is they who are more likely than the rich to be caught, to be unable to post bail bond, to be prosecuted, to be unskillfully defended, to be convicted and to be punished. However, the remedy for these injustices of society lies in the elimination or mitigation of the conditions and causes of poverty and in the reform of the administration of criminal justice, not by the selective invalidation of otherwise lawfully enacted criminal statutes. p.357 Sweden, a country not unlike ours, and the nation which has had the longest experience with state-regulated abortions in Western Europe, has produced no evidence that criminal abortions, estimated at 20,000 a year when the law was passed in 1938, have been substantially reduced since that time. Other studies confirm the belief that liberalization of abortion laws effect no reduction in the rate of criminal abortions and all that is done is to increase the total number of abortions. p.358 So far as any alleged problem of overpopulation is concerned, abortion, whether on the free demand of a woman or on the intimidating command of the State, appears as a completely ineffective and extremely dangerous way to deal with such a problem, if it exists. For instance, one side effect of the repeal of abortion statutes and the fostering of abortion through state auspices is that no group will be more likely to feel the sting more bitingly than the mothers of illegitimate children. Already, laws making the birth of illegitimate children a crime suggest the squeeze to which the poor mother might be subjected in an age of unrestricted, and state-sponsored, abortion. p.358 Finally, the suggestion that laws against abortion were enacted by men to constrain the behavior of women has nothing to support it except the historical accident that most of the criminal statutes, including abortion laws, were enacted by male legislators in the 19th Century when women were unable to vote. It is not evident how this general condition of political freedom influenced abortion laws more than it influenced other developments in the criminal law. p.359 Amicus Curiae Brief in Support of Jane Roe New Women Lawyers; Women’s Health and Abortion Project, Inc.; and National Abortion Action Coalition Filed by Nancy Stearns as quoted in “Before Roe v. Wade” by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012 Statement of Interest During the past two years the question of the constitutionality of abortion laws—of the right of a woman to control her own body and life—has become one of the most burning issues for women throughout the country. As women have become aware of the myriad levels of unconstitutional discrimination they face daily, they have become most acutely aware of the primary role which restrictions on abortions plays in that discrimination. As a result, women throughout the country have become determined to free themselves of the crippling and unconstitutional restrictions on their lives. As a major part of their efforts, thousands of women have sought and continue to seek the aid of federal and state courts in their challenges to abortion statutes.... p.329 Under the Fourteenth Amendment to the Constitution, no state shall “...deprive any person of life, liberty, or property without due process of law.” The courts have not yet, however, begun to come to grips with the fact that approximately one half of our citizenry is systematically being denied those guarantees of the Fourteenth Amendment. That is exactly the effect of the abortion laws of Texas and Georgia, and nearly every other state in the United States. Amici urge this Court not to shrink from redressing the constitutional wrongs perpetrated on women. For the first time, this Court has the opportunity to give serious and full consideration to the degree to which laws such as those challenged herein, in denying women the control of their reproductive life, violate their most basic constitutional rights.... The decision by a woman of whether and when she will bear children may be the most fundamental decision of her life because of its far-reaching significance, affecting almost every aspect of her life from the earliest days of her pregnancy. p.329 Persons seeking to uphold restrictive abortion laws argue that the State has a compelling interest in protecting human life. Amici could not agree more. But, we argue that the responsibility of the State runs to persons who are living and that the State may not maintain laws which effect the most serious invasions of the constitutional rights of its citizens. p.329 From the very fact, as noted by the California Supreme Court in People v. Belous (Cal. 1969), that “childbirth involves the risk of death,” it should be most obvious that laws which force women to bear every child she happens to conceive raise the most severe constitutional questions under the Fourteenth Amendment. p.330 Nearly ten years ago a medical expert reported that “the risk to life from an abortion, performed by an experienced physician in a hospital on a healthy woman in the first trimester of pregnancy is far smaller than the risk ordinarily associated with pregnancy and childbirth.” A recent study of the death rate from child-birth in the United States revealed that there are still 20 deaths per 100,000 pregnancies among American women. The same study reported that the death rate due to legalized abortions performed in hospitals in Eastern Europe is 3 per 100,000 pregnancies. And so, in the United States today, giving birth is nearly 7 times more dangerous than a therapeutic abortion. Furthermore, if a woman truly believes she should not continue an unwanted pregnancy and give birth to and raise an unwanted child, she will not be deterred by the fact that an abortion in her circumstances would be illegal. She will do this despite the great hazards to her physical and mental health—and the great financial expense involved. She will do this even though she knows that under local law she is performing a criminal act. p.330 The very fact that legal abortion is unavailable for most women forces them into an additional hazard to their health and life. Aware of the failure rate of most contraceptives and afraid of an accidental pregnancy which they will be unable to terminate, millions of women daily expose themselves to the known and as yet unknown dangers of the pill even though they would prefer not to. The fear of accidental pregnancy is so great that even women who have medical histories that indicate that they should not take oral contraceptives feel compelled to do so. Thus while governments profess their overwhelming concern for human life, they force their female citizens into the intolerable dilemma of choosing between what in many instances would be a totally irresponsible act of bearing and casting off, or even “raising” an unwanted child or jeopardizing their life and health, both physical and mental, by obtaining an illegal abortion or attempting to self-abort. What is more, this professed concern for life in fact results in hazards to women’s lives, often forcing them into the hands of unskilled and unscrupulous persons directly in the face of the guarantees of the Fourteenth Amendment. p.330 If the Fourteenth Amendment and its guarantees are to have any real meaning for women, they must not be read to protect only women’s physical survival. The Fourteenth Amendment speaks not merely of life, but of life and liberty. For the framers of our constitution recognized well that it is not life alone which must be protected, but also personal liberty and freedom. Because of that fact, the Constitution has established requirements that neither life nor liberty may be denied a person without the guarantees of due process.... p.331 It should be obvious that from the moment a woman becomes pregnant her status in society changes as a result of both direct and indirect actions of the government and because of social mores. Except in very rare cases (primarily among the wealthy) she is certainly no longer “free in the enjoyment of all [her] faculties;...free to use them in all lawful ways; to live and work where [she] will; to earn [her] livelihood by any lawful calling; to pursue any livelihood or avocation....” Pregnancy, from the moment of conception, severely limits a woman’s liberty. In many cases of both public and private employment women are forced to temporarily or permanently leave their employment when they become pregnant. The employer has no duty to transfer a pregnant woman to a less arduous job during any stage of pregnancy (should the woman or her doctor consider this advisable); nor is there any statutory duty to rehire the woman after she gives birth.... [R]egardless of whether the woman wishes and/or needs to continue working, regardless of whether she is physically capable of working, she may nonetheless be required to stop working solely because of her pregnancy. In many if not most states women who are public employees are compelled to terminate their employment at some arbitrary date during pregnancy regardless of whether they are capable of continuing work. p.331 But restrictions on a woman’s liberty and property only begin with pregnancy. A woman worker with children is considered “unavailable for work” (which means that she cannot qualify for unemployment compensation), if she restricts her hours of availability to late afternoon and night shifts so that she may care for her children during the day.... Under these circumstances, a case can well be made that the anti-abortion law, in compelling a pregnant woman to continue this condition against her wishes, is not merely a denial of liberty, but also an imposition of cruel and unusual punishment on the woman. “Confinement” well describes the situation of the pregnant woman, or mother, who is denied work, or restricted in her work because of an employer’s decision on her ability to work. p.331 A further denial of liberty results from the fact that women are generally forced to arbitrarily end their education because of pregnancy. Until recently, girls who became pregnant were forced to drop out of public school in New York. In New York City, Central Harlem, more than forty percent of the girls who leave school before graduation do so because of pregnancy. This still happens in countless other cities throughout the country as well. Many women are also deprived of higher education because of college rules requiring that pregnant women leave school.... p.332 The incursions on the liberty of an unmarried woman who becomes pregnant are even more severe. She too may be fired from her job and is even more likely to be compelled to discontinue her education. Unable to terminate her pregnancy, she is often forced into marriage against her will and better judgment in an attempt to cope with the new economic and social realities of her life. Such marriages are forced on women despite the fact that the right to marry or not to marry may not be invaded by the state. Of course, frequently, the man who is responsible for the pregnancy refuses to marry her. Then unable to support herself she may be forced to become a welfare recipient, become part of that cycle of poverty, and expose herself to the personal humiliation, loss of personal liberty and inadequate income that entails. To further add to her difficulties, the mere fact of her out-of-wedlock pregnancy or child resulting from that pregnancy may be used as “some evidential or presumptive effect” to a decision to exclude or remove her from public housing. Thus, having been forced to bear a child she did not want, she may be deprived of her right and ability to provide for herself and her child either because of employer policies or because of her inability to leave the child. Surviving on at least marginal income, she who is most obviously in need of public housing is then deprived of decent shelter because of the existence of that very same child. p.332 For a woman perhaps the most critical aspect of liberty is the right to decide when and whether she will have a child—with all the burdens and limitations on her freedom which that entails. But that has been robbed from her by men who make the laws which govern her.... Restrictive laws governing abortion such as those of Texas and Georgia are a manifestation of the fact that men are unable to see women in any role other than that of mother and wife.... p.332 The express guarantee of equal protection was originally designed to protect black people. Since that time, its protection has been greatly extended.... Most recently federal estate courts have begun to apply the guarantees of the equal protection of the laws to prohibit discrimination against women.... Despite the fact that women are entitled to the equal protection of the laws, one major area in which they are daily denied that protection is in the area of abortion. Man and woman have equal responsibility for the act of sexual intercourse. Should the woman accidentally become pregnant, against her will, however, she endures in many instances the entire burden or “punishment.” In obtaining an abortion, the threats and punishments fall on the woman. This happens even where the decision to have an abortion has been a mutual one. Only the woman is subjected to the variety of threats which often accompany the painful search for abortion—the threats of frightened or hostile doctors of giving her name to the police—the threat of subpoena and/or prosecution if the doctor who would help her is arrested. p.333 It is often said that if men could become pregnant or if women sat in the legislatures there would no longer be laws prohibiting abortion. This is not said in jest. It reaches to the heart of the unequal position of women with respect to the burdens of bearing and raising children and the fact that they are robbed of the ability to choose whether they wish to bear those burdens. And the woman carries an unequal and greater share of the burden, not merely for nine months, but for many years, all in violation of the equal protection of the laws, as we shall discuss below. The abortion laws therefore present a rather unusual constitutional situation. At first glance, it would appear that the concept of equal protection of the laws might not even apply to abortion since the laws relate only to women. However, when we look beyond the face of the laws to their effect, we see that the constitutional test of equal protection must be applied. For the effect of the laws is to force women, against their will, into a position in which they will be subjected to a whole range of de facto forms of discrimination based on the status of pregnancy and motherhood. p.333 As we have discussed at length above, a woman who has a child is subject to a whole range of de jure and de facto punishments, disabilities and limitations to her freedom from the earliest stages of pregnancy. In the most obvious sense she alone must bear the pains and hazards of pregnancy and childbirth. She may be suspended or expelled from school and thus robbed of her opportunity for education and self-development. She may be fired or suspended from her employment and thereby denied the right to earn a living and, if single and without independent income, forced into the degrading position of living on welfare.... If a woman is unmarried, unless she succeeds in obtaining an abortion, she has no choice but to bear the child, while the man who shares responsibility for her pregnancy can, and often does, just walk away.... Having been forced to give birth to a child she did not want, a woman may be subject to criminal sanctions for child neglect if she does not care for the child to the satisfaction of the state.... p.334 If such a broad range of disabilities are permitted to attach to the status of pregnancy and motherhood, that status must be one of choice. And it is not sufficient to say that the women “chose” to have sexual intercourse, for she did not choose to become pregnant. As long as she is forced to bear such an extraordinarily disproportionate share of the pains and burdens of childrearing (including, of course, pregnancy and childbirth), then, to deprive her of the ultimate choice as to whether she will in fact bear those burdens violates the most basic aspects of “our American ideal of fairness” guaranteed and enshrined in the Fourteenth Amendment. p.334 There is yet another way in which women are denied the equal protection of the laws. This Court has shown great concern with the “conception of political equality” and particularly with “questions of alleged ‘invidious discriminations against groups or types of individuals in violation of the constitutional guaranty of just and equal laws.’” Because of this concern, in a line of cases the court has sought to guarantee that each citizen is fairly and equally represented in the legislature which make laws governing his or her life. Nevertheless, in the instance of abortion laws one finds the grossest form of lack of representation. This court can surely take judicial notice of the fact that the state legislatures in Texas and Georgia, like state legislatures throughout the country are composed almost exclusively of men.... Therefore we have a situation in which persons are making laws which could never possibly affect them.... p.334 To understand what having an unwanted pregnancy and child means to a woman, it may be best to consider the following analogy: a group of people are walking along the street. Half the group crosses; the remainder are stopped by a red light. Those stopped by the light are told the following: From now on, for about nine months, you are going to have to carry a twenty-five pound pack on your back. now, you will have to endure it, whether you develop ulcers under the load whether your spine becomes deformed, no matter how exhausted you get, you and this are inseparable. Then, after nine months you may drop this load, but from then on you are going to have it tied to your wrist. so that, where ever you go this is going to be with you the rest of your life and if, by some accident, the rope is cut or the chain is cut, that piece of rope is always going to be tied to you to remind you of it. Of course, this analogy is not complete. It does not include the extreme, some- times excruciating pain and risk of death involved with the process of transferring the pack from your back to your wrist, nor does it fully describe the limitations placed on your liberty by having that load chained to your wrist for a substantial portion, if not all of your life. It does, however, begin to give some picture of the pain and burden of pregnancy and motherhood when both are involuntary. p.335 Forcing a woman to bear a child against her will is indeed a form of punishment, a result of society’s ambivalent attitude towards female sexuality. The existence of the sexual “double standard” has created the social response that when a woman becomes pregnant accidentally, she must be “punished” for her transgression, particularly if she is single. This punishment falls solely on the woman: she must face the physical burdens and emotional strains of an unwanted pregnancy, the degrading experience of having an illegal abortion “often in filthy motel rooms at the mercy of quacks who are charging exorbitant fees,” and if unable to get such an abortion, the responsibilities and trauma involved in raising an unwanted child. The man equally responsible for the pregnancy faces no such punishment.... p.335 The Eighth Amendment to the United States Constitution protects all persons against the infliction of “cruel and unusual punishment.” Amici contend that the expanding constitutional concern, as expressed by this Court, with practices which “offend the dignity of man,” are contrary to “the evolving standards of decency that mark the progress of a maturing society” and punishment “disproportionate to the offense committed” as violative of the Eighth Amendment necessitates a finding that laws restricting abortion are unconstitutional.... pp.335-336 Laws which force women to endure unwanted pregnancy and motherhood against their will or to become criminals and take the risks to physical and mental health resulting from an illegal abortion are disproportionate to the act for which they are being punished—an act which, in many instances, is not even illegal. Further, amici contend that abortions, in fact if not in theory, punish women for private, sexual activity for which only women bear the repercussions of pregnancy therefore punishing them for their status as women and potential child-bearers. The pain and suffering associated with an unwanted pregnancy or child, is not solely physical pain. The emotional pain and scarring which accompanies an unwanted pregnancy is an equally important and far more lasting form of pain which must be considered in the context of guarantees of the Eighth Amendment, and the emphasis given to mental anguish as a crucial component of “cruel and unusual punishment.” According to Dr. Natalie Shainess, who has devoted the majority of her 25-year practice as a psychoanalyst and psychiatrist to the area of feminine psychology and particularly with experience of being a mother, a woman who does not want her pregnancy suffers depression through nearly the entire pregnancy and often that depression is extremely severe. Furthermore, according to Dr. Shainess that depression continues even after birth may even go into psychotic states, and may result in permanent emotional damage to the woman. Such potential permanent emotional damage, the risks to physical health and safety which may also result in permanent physical harm, and the burdens of taking care of an unwanted child, constitute a form of long-term imprisonment. Such long term imprisonment “could be so disproportionate to the offense as to fall within the inhibition” of the Eighth Amendment.... p.336 Millions of women are now becoming truly conscious of the manifold forms of oppression and discrimination of their sex in our society. They are beginning to publicly express their outrage at what they have always known—that bearing and raising a child that they do not want is indeed cruel and unusual punishment. Such punishment involves not only an indeterminate sentence and a loss of citizenship rights as an independent person...great physical hardship and emotional damage disproportionate to the crime of participating equally in sexual activity with a man...but is punishment for her status as a woman and a potential child-bearer.... Abortion laws reinforce the legally legitimized indignities that women have already suffered under for too long and bear witness to the inferior position to which women are relegated. The total destruction of a woman’s status in society results from compelling her to take sole responsibility for having the illegal abortion or bear the unwanted child, and suffer the physical hardship and mental anguish whichever she chooses. Only the woman is punished by society for an act in which she has participated equally, only she is punished for her "status" as child-bearer. In light of “evolving standards of decency that mark the progress of a maturing society,” the basis of the Eighth Amendment...the struggle of women for full and meaningful equality in society over the last hundred years indicates that it would indeed be a sign of the immaturity of our social development if these laws were upheld. White persons have had to readjust their thinking and actions to question whether laws which discriminated against blacks were unconstitutional. Men (of whom the legislatures and courts are almost exclusively composed) must now learn that they may not constitutionally impose the cruel penalties of unwanted pregnancy and motherhood on women, where the penalties fall solely on them.... pp.336-337 Amicus Curiae Brief in Support of Jane Roe Planned Parenthood Federation of American, Inc. and American Association of Planned Parenthood Physicians Filed by Harriet F. Pilpel, Nancy F. Wechsler, Ruth Jane Zuckerman, and Michael Kenneth Brown; as quoted in "Before Roe v. Wade" by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012 Planned Parenthood's concern with family planning and family health necessarily includes concern with the availability of abortion and with the compelling problems which result from restrictive abortion laws which make medically safe, legal abortions unavailable to many women. Planned Parenthood has adopted a policy on abortion which states in part: The optimum method of birth control is the consistent employment of effective contraception but in practice this goal is sometimes not achieved. It is, therefore, desirable that provisions respecting abortion not be contained in state Criminal Codes. Planned Parenthood believes that since abortion is a medical procedure, it should be governed by the same rules as apply to other medical procedures in general when performed by properly qualified physicians with reasonable medical safeguards. p.337-338 This commitment to the principle that safe abortions should be available to all who seek them is a necessary corollary of Planned Parenthood’s activities in the area of birth control. While Planned Parenthood does not view abortion as an alternative to contraception, it recognizes that abortion services are essential to protect women where contraception is unavailable, where it has not been used or where it has failed. Planned Parenthood believes that abortions must also be available to women who have been raped and in cases where the fetus may be deformed as a result of the mother’s exposure to rubella, her use of drugs which affect fetal development or as a result of other factors. p.338 Although contraceptive services are legally available in all states to married persons and in almost all states without regard to marital status, in fact contraceptives are not readily available to a substantial portion of the population. This is particularly true of urban and rural poor in many areas of the country. In some of these areas even non-prescription and relatively ineffective contraceptives cannot be obtained. Even if some form of contraception is available there is likelihood of unwanted pregnancy since the most effective and practical contraceptives, such as the birth control pill, the intrauterine device, and the diaphragm can be obtained only on the prescription of a doctor whose services are denied to hundreds of thousands of poor.... p.338 Oral contraceptives (OCs) of the combined type are "almost 100 percent effective" when "taken according to the prescribed regimen." But the oral contraceptives have disadvantages such as side effects during their early use. Moreover, their use is medically contraindicated for certain patients, particularly those with a history of thromboembolic disease.... [E]ven the theoretically most effective or highly effective methods of contraception are not always actually effective for a number of reasons. Except for voluntary sterilization which many people will not use, even the most effective or highly effective methods have shortcomings either in terms of method failures or in terms of side effects or medical contraindications. In addition some of the methods are so difficult to practice regularly and correctly that they have little practical utility. p.339 Amicus Curiae Brief in Support of Henry Wade Women for the Unborn Filed by Eugene J. McMahon, Esq.; as quoted in "Before Roe v. Wade" by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012 (1) The unborn child is a distinct individual. Modern genetics has confirmed scientifically what women have long felt intuitively—the presence of another human life, a life to be reverenced and protected. (2) Many women who seek abortions are acting from an overpowering but temporary fear. Most of these women really desire to have their baby, and they will later be glad that their effort to secure an abortion was unsuccessful. In order to react constructively to the stresses and tensions of pregnancy, women need the support of society—not the address of the nearest abortion clinic. (3) While abortion is an easy solution for many social problems, it is not a true solution for any. Its availability may prevent more constructive solutions from emerging. (4) The social consequences of unlimited abortion are as yet unknown. pp.359-360 [B]oth the moral and the legal arguments for abortion-on-demand have attained popularity only within the last few years. Since the test of time has not been applied, should a final decision be made which would extend abortion-on-demand to the entire country? p.360 The easy solution of abortion discourages more constructive solutions. Even if one overlooks the biological evidence concerning the unborn child, or the psychological testimony that most women seeking to take the life of their unborn baby, like most persons seeking to take their own life, desire to be stopped by someone, is abortion really a satisfactory solution to any social problem? Will the availability of the easier abortion “solution” discourage our society from seeking deeper and more permanent solutions? Such a fear appears to lie behind the opposition to abortion-on-demand within the black community. Despite assurances by abortion advocates, many members of the black community seem to suspect that numerous abortion clinics in ghetto areas could end up as the “white man’s” solution to the problems of poverty and race. When the poor cry out for bread, what response will they receive? The more difficult response—an equitable distribution of society’s resources? Or the easier response—a list of centers where abortions can be performed on those who would not seek them except for their desperate poverty? While these two responses are not mutually exclusive, to what extent will the availability of the second lessen society’s incentive to seek the first? p.360 Until some kind of definite evidence is available concerning the social pattern that is emerging in those states which have removed all restrictions on abortion, should a final decision be made which would extend abortion-on-demand to the entire country? p.361 If these laws are held to be constitutional, their wisdom will continue to be debated in our state and national legislatures. If any doubt exists, would it not be better to allow the discussion to continue? p.361 Oral arguments “Roe v. Wade No. 70-18”, Washington, D.C. (October 11, 1972) Oral Argument of Mrs. Sarah R. Weddington MRS. WEDDINGTON: We are once again before this Court to ask relief against the continued enforcement of the Texas abortion statute. And I ask that you affirm the ruling of the three—judge below which held our statute unconstitutional for two reasons: The first that it was vague, and the second that it interfered with the Ninth Amendment rights of a woman to determine whether or not she would continue or terminate a pregnancy. p.3 QUESTION: Prosecutions of doctors, you’re speaking of? MRS. WEDDINGTON: Prosecutions of doctors, yes, sir. The Problem that we face in Texas is that even though we were granted a declatory judgment, ruling the law unconstitutional, even though we’ve been before this Court once in the past, in Texas women still are not able to receive abortions from licensed doctors, because doctors still fear that they will be prosecuted under the statute. So if the declatory judgment was any relief at all, it was an almost meaningful relief, because the women of Texas still must either travel to other States, if they are that sophisticated and can afford it, or they must resort to some other less – some other very undesirable alternatives. pp.4-5 MRS. WEDDINGTON: In fact, we pointed out in our supplemental brief filed here that there have been something like 1600 Texas women who have gone to New York City alone for abortions in the first nine months of 1971. In addition, I think the Court would recognize there are many other women going to other parts of the country. One of the objections that our opponents have raised, the same in this Court, is moot, because, of course, the woman is no longer pregnant. It’s been almost three years since we institute the original action. And yet we can certainly show that it is a continuing problem to Texas women. There still are unwanted pregnancies. There are still women who, for various reasons, do not wish to continue the pregnancy, whether because of personal health considerations whether because of their family situation, whether because of financial situations, education, working situations, some of the many things we discussed at the last hearing. pp.5-6 MRS. WEDDINGTON: [T]here is a supplemental brief filed by an amicus party, Harriet Pilpel, on behalf of Planned Parenthood of New York, that seeks to point out to the Court, at pages 6 and 7 and subsequent pages, some of the changing medical statistics available regarding the procedure of abortion. For example, that brief points out that the over-all maternal death rate from legal abortion in New York dropped to 3.7 per 100,000 abortions in the last half of 1971. And that, in fact, is less than half the death rate associated with live delivery for women. That, in fact, the maternal mortality rate has decreased by about two-thirds to a record low in new York in 1971. That now, in 1871, New York recorded the lowest infant mortality rate ever in that State. That during the first 18 months of – well, from July 1st, 1970, to December 31st, 1971, out-of-wedlock pregnancies have dropped by 14 percent. We now have other statistics coming from California and other States that show that not only had the over-all birth rate declined, but the welfare birth rate has also declined accordingly. pp.6-7 MRS. WEDDINGTON: As to the women, this is their only forum. They are in a very unique situation, for several reasons: First, because of the very nature of the interest involved. Their primary interest being the interest associated with the question of whether or not they will be forced by the State to continue an unwanted pregnancy. In our original brief we alleged a number of constitutional grounds. The man one that we are relying on before this Court are the Fifth, the Ninth, and the Fourteenth Amendments. There is a great body of precedents. Certainly we cannot say that there is in the Constitution, so stated, the right to an abortion. Neither is there stated the right to travel, or some of the other very basic rights that this Court has held are under the United States Constitution. The Court has in the past, for example, held that it is the right of the parents and of the individual to determine whether or not they will send their child to private school, whether or not their children will be taught foreign languages, whether or not they will have offspring, the Skinner case, whether – the right to determine for themselves whom they will marry, the Loving case, and even in Boddie vs. Connecticut, the choice of saying that marriage itself is so important that the State cannot interfere with termination of a marriage, just because the woman is unable to pay the cost. Griswold, of course, is the primary case, holding that the State could not interfere in the question of whether or not a married couple would use birth control; and since then this Court, of course, has held that the individual has the right to determine whether they are married or single, whether they will use birth control. So there is a great body of cases decided in the past by this Court in the areas of marriage, sex, contraception, propriation, child-rearing, and education of children. Which says that there are certain things are so much a part of the individual concern that they should be left to the determination of the individual. pp.7-8 MRS. WEDDINGTON: Again, this is a very special type of case for the women, because of the very nature of the injury involved. It is an irreparable injury. Once pregnancy has started, certainly this is not the kind of injury that can be later adjudicated, it is not the kind of injury that can later be compensated by some sort of monetary reward. These women who have now gone through pregnancy and the women who continue to be forced through pregnancy and the women who continue to be forced through pregnancy have certainly gone through something that is irreparable, that can never be changed for them. It is certainly great and it is certainly immediate. There is no other forum available to them, as we talked last time, they are not subject in Texas to any kind of criminal prosecution, whether the woman performs self-abortion, whether she goes to a doctor, finds someone who will perform it on her, she is guilt of no crime whatsoever. And yet the State tries to allege that its purpose in this statute was to protect the fetus. If that’s true, the fact that the woman is guilty of no crime is not a reasonable kind of – it does not reasonably follow. The women are not able to have any kind of declatory judgment in Texas, because of our special declaratory judgment statutes in our concurring criminal and civil courts, the two different lines of cases that we have. So the federal court was the only court to which the women had any kind of access, and it was to the federal courts they came, and it’s the federal court, in my judgment, that should determine this case. pp.9-10 MRS. WEDDINGTON: This case does come under the exceptions in that there is great, immediate, irreparable injury, where there is no other forum, it is something that, as far as these women are concerned, can never be adjudicated in a criminal prosecution, much less in a single criminal prosecution. It certainly is an instance of a situation that is capable of repetition yet evading review. The judiciary simply does not move fast enough for the case to be decided within the period of gestation, much less within the period within which an abortion would be medically safe for those women. p.11 MRS. WEDDINGTON: The State has alleged, and its only alleged interest in this statute is the interest in protecting the life of the unborn. However, the State has not been able to point to any authority, or any nature whatsoever, that would demonstrate that this statute was in fact adopted for that purpose. We have some indication that other State statutes were adopted for the purpose of protecting the health of the woman. We have an 1880 case in Texas, shortly after the 1854 statue was adopted, that stated that the women is the victim of the crime, and is the only victim that the court talks about. We have all the contradictions in the statute, and the way so many things that just don’t make sense. If the statute was adopted for that purpose, for example, why is the woman guilt of no crime? If the statute was adopted for that purpose, why is it that the penalty for abortion is determined by whether or not you have the woman’s consent? pp.11-12 MRS. WEDDINGTON: There have been two cases decided since the September 13th argument that expressly hold that a fetus has no constitutional right, one being Byrn vs. New York the other being the Magee-Women’s Hospital case. In both situations persons sought to bring that very question to the court: does a fetus – in the one instance, Byrn was a challenge to the New York Revised Statutes; the other was a situation where a person sought to prevent Magee-Women’s Hospital from allowing further abortions to be done in that hospital. And in both cases it was held that the fetus had no constitutional rights. Several of the briefs before this Court would also argue that this Court, in deciding the Vuitch case, which has allowed abortion to continue in the District of Columbia, certainly the Court would not have made that kind of decision if it felt there were any ingrained rights of the fetus within the Constitution. pp.12-13 QUESTION: I’m just asking you, under the federal Constitution. Is the fetus a person for the protection of due process? MRS. WEDDINGTON: All of the cases, the prior history of this statute, the common law history would indicate that it is not. The State has shown no -- QUESTION: Well, what about – would you lose your case if the fetus was a person. MRS. WEDDINGTON: Then you would have a balancing of interest. pp.13-14 MRS. WEDDINGTON: If the State could show that the fetus was a person under the Fourteenth Amendment, or under some other Amendment, or part of the Constitution then you would have the situation of trying – you would have State compelling interest which, in some instances, can outweigh a fundamental right. This is not the case in this particular situation. pp.14-15 QUESTION: Mrs. Weddington, you’re attacking the statute on two grounds, are you not, vagueness- MRS. WEDDINGTON: That’s correct. QUESTION: -- and the Ninth Amendment. Do you base any weight on one argument as against the other? MRS. WEDDINGTON: Our Texas Court of Criminal Appeals, in Thompson vs. State, -- QUESTION: That’s a recent case? MRS. WEDDINGTON: Yes. In November of last year. QUESTION: Again on vagueness. MRS. WEDDINGTON: Yes. That particular case held that the Texas statute was not vague citing Vuitch. It’s my opinion that that reliance was misplaced. That in Vuitch, this Court had before it the D.C. statute which allowed abortion for the purpose of saving the life or the health, and this Court adapted the interpretation that health meant both mental and physical health And it seemed to me the Court’s language in that case talked a great deal about the fact that the doctor’s judgment goes to saving the health of the woman, that that that’s the kind of judgment he is used to making. In Texas that’s not the judgment he’s forced to make. The judgment in Texas is, is this necessary for the purpose of preserving the life of the woman. And the language of that statute has never been interpreted. That’s not the kind of judgment that a doctor is accustomed or perhaps even able to make. pp.16-17 QUESTION: I think – I may have missed it, but I find no reference to it in this – in your brief or in the voluminous briefs that we’re overwhelmed with here. Do you have any comment about the Hippocratic oath? MRS. WEDDINGTON: I think two things could be said. The first would be that situations and understandings change. In this case, for example, we have before the Court a medical amicus brief that was joined by all the deans of the public medical schools in Texas. It was joined by numerous other professors off medicine. It was joined by the American college of Obstetricians and Gynecologists. QUESTION: Of course there are other briefs on the other side joined by equally outstanding physicians. pp.17-18 QUESTION: Well, do I get from this, then, that your case depends primarily on the proposition that the fetus has no constitutional rights? MRS. WEDDINGTON: It depends on saying that the woman had a fundamental constitutional right and that the State has not proved any compelling interest for regulation in the area. Even if the Court at some point determined the fetus to be entitled to constitutional protection, you would still get back into the weighing of one life against another. QUESTION: That’s what’s involved in this case? Weighing one life against another? MRS. WEDDINGTON: No, Your Honor. I say that would be what would be involved if the facts were different, and the State could prove that there was a person, for the constitutional right. QUESTION: Well, if – if – it were established that an unborn fetus is a person within the protection of the Fourteenth Amendment, you would have almost an impossible case here, would you not? MRS. WEDDINGTON: I would have a very difficult case. QUESTION: I’m sure you would. So if you had the same kind of thing, you’d have to say that this would be the equivalent after the child was born if the mother thought it bothered her health any having the child around, she could have it killed. Isn’t that correct? MRS. WEDDINGTON: That’s correct. pp.20-21 QUESTION: Could Texas constitutionally, in your view, declare that, by statute, that the fetus is a person for all constitutional purposes after the third month of gestation? MRS. WEDDINGTON: I do not believe that the State Legislature can determine the meaning of the federal Constitution. It is up to this Court to make that determination. QUESTION: The States have to deal with statutes, don’t they? MRS. WEDDINGTON: The State could obviously adopt that kind of statute, and then the question would have to be adjudicated as to whether for all purposes that statute is constitutional. We are not alleging that there cannot be some kind of protection. For example, the property rights, which, again, are contingent upon being born alive. It can be retroactive to the period prior to birth. But in this particular situation we are alleging that this statute is unconstitutional. QUESTION: But that has been recognized in the period before birth for purposes of injury claims, and you put that, I take it, in the property category? MRS. WEDDINGTON: In Texas it is only when they are born alive. And the fact that there is a – you know, the wrongful conduct of another is not the same as in this situation. As for property rights, for example, there are even property rights that relate back to prior to conception; children that are not yet conceived, who later inherit. But that did not prevent this Court in Griswold from holding people had the right to birth control. pp.21-22 Oral Argument of Robert C. Flowers Esq. on Behalf of Appelle MR. FLOWERS: The lower court in Dallas held the Texas abortion law unconstitutional primarily on the two grounds that have just been discussed, on the vagueness question and the rights of the mother under the Ninth Amendment. The thrust of the whole argument of the State of Texas is against the rights of the mother under the Ninth Amendment, that it certainly is a balancing effect. There must be or, on the other side of the coin, Texas has no State. pp.22-23 MR. FLOWERS: It is impossible for me to trace, within my allocated time, the development of the fetus from the date of conception to the date of its birth. But it is the position of the State of Texas that upon conception we have a human being, a person within the conception we have a human being, a person within the concept of the Constitution of the United States and that of Texas, also. QUESTION: Now, how should that question be decided, is it a legal question, a constitutional question, a medical question, a philosophical question, or a religious question, or what is it? MR. FLOWERS: Your Honor, we feel that it could be best decided by a Legislature in view of the fact that they can bring before it the medical testimony, the actual people who do the research. But we do have -- QUESTION: So then it’s basically a medical question? MR. FLOWERS: From a constitutional standpoint, no sir. I think it’s fairly and squarely before this Court. We don’t envy the Court for having to make this decision. pp.23-24 QUESTION: Do you know of any case anywhere that’s held that an unborn fetus is a person within the meaning of the Fourteenth Amendment? MR. FLOWERS: No, sir, we can only go back to what the framers of our Constitution had in mind. QUESTION: Well, these weren’t the framers that wrote the Fourteenth Amendment. It came along much later. MR. FLOWERS: No, sir. I understand. But the Fifth Amendment, under the Fifth Amendment: no one shall be deprived of the right to life, liberty, and property without the due process of law. QUESTION: Yes, but then the Fourteenth Amendment defines “person” as somebody who’s born, doesn’t it? MR. FLOWERS: I’m not sure about that, sir. I -- QUESTION: All right. Any person born or naturalized in the United States. MR. FLOWERS: Yes, sir. QUESTION: It doesn’t – that’s not the definition of a “person” but that’s the definition of a “citizen”. MR. FLOWERS: Your Honor it’s our position that the definition of a person is so basic, it’s so fundamental that the framers of the Constitution had not even set out to define. We can only go to what the teachings at the time the Constitution was framed. We have numerous listings in the brief by Mr. Joe Witherspoon, a professor at the University of Texas, that tries to trace back what was in their mind when they had the “person” concept when they drew up the Constitution. He quoted Blackstone here in 1765, and he observed, in his commentaries, that: “Life. This right is inherent by nature in every individual, and exists even before the child is born.” pp.24-25 QUESTION: Mr. Flowers, when you quote Blackstone, is it not true that in Blacstone’s time abortion as not a felony? MR. FLOWERS: That’s true, Your Honor. But my point there was to see the thinking of the framers of the Constitution, from the people they learned from, and the general attitudes of the times. p.25 QUESTION: Is it not true, or is it true that the medical profession itself is not in agreement as to when life begins? MR. FLOWERS: I think that’s true, sir. But from a layman’s standpoint, medically speaking, we would say that at the moment of conception from the chromosomes, every potential that anybody in this room has is present, from the moment of conception. pp.25-26 MR. FLOWERS: On the seventh day, I think that the heart, in some form, starts beating. On the twentieth day, practically all the facilities are there that you and I have, Your Honor. Your Honor. I think that -- QUESTION: Well, if you’re correct that the fetus is a person, then I don’t suppose you’d have – the State would have great trouble permitting an abortion, would it? MR. FLOWERS: Yes, sir. QUESTION: In any circumstance? MR. FLOWERS: It would, yes, sir. QUESTION: To save the life of a mother or her health or anything else? MR. FLOWERS: Well, there would be the balancing of the two lives, and I think that -- QUESTION: Well, what would you choose? Would you choose to kill the innocent one, or what? MR. FLOWERS: Well, in our statute the State did choose that way, Your Honor. QUESTION: Well, -- MR. FLOWERS: The protection of the mother. QUESTION: Well, did the State of Tesas say that if it is for the benefit of the health of the wife to kill the husband? [Laughter.] MR. FLOWERS: I’m sorry, I didn’t understand your question. QUESTION: Could Texas say if it confronts the situation for the benefit of the health of the wife, that the husband has to die; could they kill him? MR. FLOWERS: I wouldn’t think so, sir. pp.26-27 QUESTION: Is there any statute in Texas that prohibits the doctor from performing any operation other than an abortion? MR. FLOWERS I don’t – I don’t think so, sir, and there is another thrust of our argument. If we declare, as the appellees in this case have asked this Court to declare, that an embryo or a fetus is a mass of protoplasm similar to a tumor, then, of course, the State has no compelling interest whatsoever. QUESTION: But there is no – the only operation that a doctor can possibly commit that will bring on a criminal penalty is an abortion? MR. FLOWERS: Yes, sir. QUESTION: Why? MR. FLOWERS: As far as – 'QUESTION: Well, why don’t you limit some other operations? MR. FLOWERS: Because this is the only type of operation that would take another human life. QUESTION: Well, a brain operation could. MR. FLOWERS: Well, there again, that would be – I think that in every feat that a doctor performs that he is constantly making this judgment. QUESTION: Well, if a doctor performs a brain operation and doe it improperly, he could be guilty of manslaughter, couldn’t he? MR. FLOWERS: I would think so, if he was negligent. QUESTION: Well, why couldn’t you charge him with manslaughter if he commits an abortion? MR. FLOWERS: In effect, Your Honor, we did. In the statute 1195, that has been very carefully avoided all throughout these proceeding, it’s not attacked as unconstitutional, for some reason. pp.27-28 MR. FLOWERS: Gentlemen, we feel that the concept of a fetus being within the concept of a person, within the framework of the United States Constitution and the Texas Constitution, is an extremely fundamental thing. QUESTION: Of course, if you’re right about that, you can sit down, you’ve won your case. MR. FLOWERS: You Honor, -- QUESTION: Except insofar as maybe the Texas abortion law presently goes too far in allowing abortions. MR. FLOWERS: Yes, sir. That’s exactly right. We feel that this is the only question, really, that this Court has to answer. pp.29-30 QUESTION: Do you think the case is over for you? You’ve lost your case, then, if the fetus or the embryo is not a person, is that it MR. FLOWERS: Yes, sir, I would say so. QUESTION: You mean the State has no interest of its own that it can assert, and -- MR. FLOWERS: Oh, we have interests, Your Honor, preventing promiscuity, say maybe that’s -- QUESTION: Mr. Flowers, your Legislature apparently, or you’re asserting that your State law wants to protect the life of the fetus. MR FLOWERS: Yes, sir. QUESTION: And under State law there is some right - MR. FLOWERS: Yes, sir. QUESTION: And under State law there is some right – that there are some rights given to the fetus. MR. FLOWERS: Yes, sir. QUESTION: And you are asserting those rights against the right of the mother. MR. FLOWERS: Balancing against the Ninth Amendment rights of the mother within the framework -- QUESTION: But that’s wholly aside from whether the fetus is a person under the federal Constitution. You can still assert those rights, whether the fetus is a person or not. MR. FLOWERS: Yes, sir. p.30-31 MR. FLOWERS: This Court has been diligent in protecting the rights of the minority. And, gentlemen, we say that this is a minority, a silent minority, the true silent minority. Who is speaking for these children? Where is the counsel for these unborn children, whose life is being taken? Where is the safeguard of the right to trial by jury? Are we to place this power in the hands of a mother and a doctor? All of the constitutional rights, if this person has the person concept. What would keep a Legislature under this ground from deciding who else might or might not be a human being, or might not be a person? QUESTION: Well, generally speaking, I think you agree that up until now the test has been whether or not somebody has been born or not, and that’s the word used in the Fourteenth Amendment. MR. FLOWERS: Yes, sir. QUESTION: That’s what would keep the Legislature, I suppose, form classifying people that have been born as not persons. MR. FLOWERS: Your Honor, it seems to me that the physical act of being born – I’m not playing it down, I know it’s -- [Laughter.] -- a very momentous incident. But what changes? Is it a non-human and changing, by the act of birth, into a human? Or would -- QUESTION: Well, that’s been the theory up until now on the lawbooks. [Laughter.] MR. FLOWERS: Well, in other words, it has been the theory that we have, deriving from non-human material, a human being, after conception. p.33-35 MR. FLOWERS: I believe that the Court must take these, the medical research, and apply it to our Constitution the best they can. I said I’m without envy of the burden that the Court has. I think that possibly we have an opportunity to make one of the worst mistakes here that we’ve ever made, from the – I’m sorry. QUESTION: But there’s no medical testimony that backs up your statement that it goes from inception, is there? p.35 QUESTION: [I]s there any medical testimony of any kind that says that a fetus is a person at the time of inception? MR. FLOWERS: Your Honor, I would lie to call the Court’s attention, in answering that question, to what I feel to believe one of the better culminations of the medical research, and that was Senior Judge Campbell’s dissenting opinion in the Doe vs. Scott, which is very similar to the case we have before us. He goes in chronological order of what the medical research has determined, from the chromosome structure at the time of conception, what the potential is, down through each day of life, until it’s born. QUESTION: But I understood you to say that the State of Texas says it extends from the date of inception until the child is born. MR. FLOWERS: The date of conception until the day of – yes sir. pp.35-36 QUESTION: Now, you’re now quoting the judge, I want you to give me a medical, recognizable medical writing of any kind that says that at the time of conception the fetus is a person. MR. FLOWERS: I do not believe that I could give that to you, without researching through the briefs that have been filed in this case, Your Honor. I’m not sure that I could give it to you after research. pp.36-37 QUESTION: -- did Judge Campbell rely on medical authorities in that statement you’re summarizing? MR. FLOWERS: Yes, sir, he did. This case was – the Court held there that really the problem could be answered on an extension of the Griswold case. And here’s what my dissenting judge had to say about that, which he adopt, Your Honor. He said: In citing Griswold, the majority concludes we could not distinguish the interest asserted by the plaintiff in this case from those asserted in Griswold. In other words, in their views there is no distinction that can be made between prohibiting the use of contraceptives and prohibiting the destruction of fetal life, which as explained above, may be construed to be a human life. I find this assertion incredible. Contraceptive prevents the creation of new life; abortion destroys existing life. Contraceptives and abortion are as distinguishable as thoughts and dreams are distinguishable from a reality. p.37 MR. FLOWERS: [I] find no way that I know that any court or any legislature or any doctor anywhere can say that there is the dividing line. Here is not a life, and here is a life, after conception. Perhaps it would be better left to that legislature. There they have the facilities to have some type of medical testimony brought before them, and the opinion of the people who are being governed by it. QUESTION: Well, if you’re right that an unborn fetus is a person, then you can’t leave it to the Legislature to play fast and loose dealing with that person. In other words, if you’re correct in our basic submission that an unborn fetus is a person, than abortion laws such as that which New York has are grossly unconstitutional, isn’t it? pp.38-39 MR. FLOWERS: [W]e feel that the treatment that the courts have given unborn children in dissent in distribution of property rights, tort laws, have all pointed out that they have, in the past have given credence to this concept. QUESTION: Mr. Flowers, doesn’t the fact that so many of the State abortion statutes do provide for exceptional situations in which an abortion may be performed, and presumably these date back a great number of years, following Mr. Justice Stewart’s comment, suggest that the absolute proposition that a fetus from the time of conception is a person just is at least against the weight of historical legal approach to the question? Mr. FLOWERS: Yes, sir, I would think possibly that that would indicate that. However, Your Honor, in this whole field of abortion here, we have, on the one hand, great clamoring for the liberalization of it. Perhaps this is good. Population explosion. We have just so many things that are arriving on the scene in the past few years, that might have some effect on producing this type of legislation, rather than facing the facts squarely. I don’t think anyone has faced the fact, in making a decision, whether this is a life, in a person concept. p.40 QUESTION: Well, my historical impression is that following the Civil War Congress went through the procedure, at any rate, of readmitting the States which had seceded and passing on their constitutional provisions and that sort of thing. Did Texas have an abortion statute at that time? MR. FLOWERS: Yes, sir. It was passed in 1854, Your Honor. QUESTION: Do you know as a matter of historical fact when most of these abortion statutes came on the books? MR. FLOWERS: I think it was, most of them were in the mid-1800’s, Your Honor. QUESTION: In fact, the latter half of the Nineteenth Century?MR. FLOWERS: Yes, sir. QUESTION: Do you know why they all came on at that time? MR. FLOWERS: No, sir, I surely don’t. Question: So that the materials indicate that, during that period, they were enacted to protect the health and lives of pregnant women, because of the danger of operative procedures generally around that time? MR. FLOWERS: I’m sure that was a great factor, Your Honor. QUESTION: Well, isn’t it historically pretty well accepted as a fact that in the early period of the history of this country there was general reliance upon religious disciplines to preclude this kind of activity, abortions, and when that didn’t seem to cover it, then the States began to enact the statutes? MR. FLOWERS: Yes, sir. QUESTION: As had been done in England. MR. FLOWERS: Also in the exploration and the Indian days, if you wish, frontier days, I don’t imagine that too many abortions, intentional abortions were created in this, these United States. People were of such a necessity to develop the United States. pp.41-43 Rebuttal Argument of Mrs. Sarah R. Weddington, On Behalf of the Appellants MRS. WEDDINGTON: I think Mr. Flowers well made the point when he said that no one can say, Here is the dividing line; Here is where life begins – life is here and life is not over here. In a situation where no one can prove where life begins, where no one can show that the Constitution was adopted, that it was meant to protect fetal life, in those situations where it is shown that that kind of decision is so fundamentally a part of individual life of the family, or such fundamental impact on the person. p.43 MRS. WEDDINGTON: At this time there is no indication to show that the Constitution would give any protection prior to birth. That is not before the Court, and that is the question that -- QUESTION: Well, I don’t know whether it is or it isn’t. p.44 QUESTION: Well, then, isn’t the only difference between the Texas statute and the D.C. statute that the Texas statute does not have the health factor? MRS. WEDDINGTON: That’s correct, which makes it much more difficult for the doctor to tell when it is – when he can -- QUESTION: But in Vuitch, unless the Court is prepared to overrule it, not a fact, the Texas statute would be valid if it was construed to include abortions for the protection of health, treating life as broad enough to do that. MRS. WEDDINGTON: Including mental and physical. But then the question is raised as to the right of privacy, which was not before the Court in the Vuitch case, and is before the Court in this particular situation. As to the Hippocratic oath, it seems to me that that oath was adopted at a time when abortion was extremely dangerous to the health of the woman; and, second, that the oath is to protect life, and here the question is: what does life mean in this particular context? It’s the sort of same vagueness, it seems to me, that you’re – well, okay, life there could be slightly different because of the constitutional implications here. It seems to me that -- QUESTION: Well, the Hippocratic oath went directly and specifically to providing procedures. MRS. WEDDINGTON: To providing a -- QUESTION: However life was defined. MRS. WEDDINGTON: That’s correct. pp.46-47 MRS. WEDDINGTON: As to mutilation, there, it seems to me, that the purpose of those statutes was to prevent the citizen from becoming a dependent or ward of the State, and also to insure that its citizens would be available for service in the military. In this particular instance, the rationale works just the opposite. Here a woman, because of her pregnancy, is often not a productive member of society. She cannot work, she cannot hold a job, she’s not eligible for welfare, she cannot get unemployment compensation. And furthermore, in fact, the pregnancy may produce a child who will become a ward of the State. p.47 MRS. WEDDINGTON: In this case, this Court is faced with a situation where there have been fourteen three-judge courts that have ruled on the constitutionality of abortion statues. Nine courts have favored the woman, five have gone against her. Twenty-five judges have favored the woman, seventeen have gone against her. Nine Circuit Judges have favored the woman, five have gone against her. Sixteen District Court judges have favored the woman, ten have gone against her. No one is more keenly aware of the gravity of the issues or the moral implications of this case, that it is a case that must be decided on the Constitution. We do not disagree that there is a progression of fetal development. It is the conclusion to be drawn from that upon which we disagree. pp.47-48 MRS. WEDDINGTON: We are not here to advocate abortion. We do not ask this Court to rule that abortion is good or desirable in any particular situation. We are here to advocate that the decision as to whether or not a particular woman will continue to carry or will terminate a pregnancy is a decision that should be made by that individual, that in fact she has a constitutional right to make that decision for herself, and that the State has shown no interest in interfering with that decision. Our supplemental brief, on page 14, points out that the brief of the opposition can’t quite decide when life does begin. At one point they suggest it’s when there’s implantation. A few pages later they suggest it’s with conception. p.48 QUESTION: But any doctor, I suppose, you would say, may refuse her? MRS. WEDDINGTON: Certainly, Your Honor. He may refuse any kind of medical procedure whatsoever. QUESTION: But the State may not; yes. MRS. WEDDINGTON: Here it’s the question of whether or not the State, by the statute, will force the woman to continue. The woman should be given that freedom, just as the doctor has the freedom to decide what procedures he will carry out and what he will refuse to his patients. QUESTION: To be sure that I get your argument in focus, I take it from recent remarks that you are urging upon us abortion on demand of the woman alone, not in conjunction with her physician? MRS. WEDDINGTON: I am urging that in this particular context this statute is unconstitutional. That in the Baird vs. Eisenstadt case this Court said, “If the right of privacy is to mean anything, it is the right of the individual, whether married or single, to make determinations for themselves.” It seems to me that you cannot say this is a woman of this particular doctor, and this particular woman. It is, it seems to me, -- QUESTION: Well, doesn’t it follow from that, then, that a woman can come into a doctor’s office and say, “I want an abortion”. MRS. WEDDINGTON: And he can say “I’m sorry, I don’t perform them.” QUESTION: And then what does she do? MRS. WEDDINGTON: She goes elsewhere, if she so chooses. If she stays with that – you know, that’s an impossible question. Certainly, I don’t think the State could say the first doctor a woman goes to shall make that determination and she cannot go elsewhere. pp.49-50 “Hand-Down” Henry A. Blackmun (January 22, 1973); as quoted in “Before Roe v. Wade” by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012 The Texas statue is representative of those presently in effect in a majority of our states and that, for the most past, were enacted during the last half of the nineteenth century. The Texas statue prohibits any abortion, or any attempt at an abortion, except where is it procured by medical advice for the purpose of saving the life of the woman. It makes no reference to health, as does the District of Columbia statute considered in United States v. Vuitch decided here in the 1970 Term. The Georgia statute, on the other hand, was enacted only in 1968. It is a modern statute patterned after the American Law Institute’s Model Penal Code. It is representative of recent legislation enacted in approximately one-quarter of our states. It makes an abortion a criminal act with certain exceptions. These exceptions are where the abortion is performed by a licensed physician and, “based upon his best clinical judgment,” the abortion is necessary because the pregnancy if continued would endanger the life or health of the woman, or the fetus would very likely be born with a grave and permanent mental or physical defect, or the pregnancy resulted from forcible or statutory rape. The Georgia statute also imposes certain procedural conditions for the obtaining of the abortion. These are several in number, but among them are (1) Georgia residence, (2) concurrence in the abortion decision by two licensed physicians in addition to the attending [physician], (3) performance of the procedure in a hospital both licensed by the state and accredited by the Joint Commission on Accreditation of Hospitals, and (4) approval by a hospital abortion committee of 3 physicians. So much for the statutes. The Texas federal court held that a woman had a right, protected by the Ninth and Fourteen[th] Amendments, to choose whether to have children and that the Texas statute was therefore void on its face. The Georgia federal court invalidated certain parts of the Georgia statute including the portion specifying the particular circumstances in which an abor-tion may be sought, but upheld most of the remainder of that state’s statute. p.246 The abortion issue, of course, is a most sensitive, emotional and controversial one, perhaps one of the most emotional that has reached the Court for some time. The issue is one of great public interest not confined to lawyers and their lawsuits. Convictions are firmly rooted and firmly held. At the same time, attitudes by no means are uniform. We are aware of this, and we are fully aware that, however the Court decides these cases, the controversy will continue. Our task, however, is to decide the cases on constitutional principles as we perceive those principles to be. In the Texas case we have filed a lengthy opinion that attempts to review the history of attitudes toward abortion, popular, legal, civic, and moral, from ancient times down to the present. We cannot escape noting, too, the change in attitudes—in recent years—of professional bodies such as the American Medical Association, the American Public Health Association, and the American Bar Association, and, indeed, the changing attitudes among the courts of this country, both state and federal. This historical approach has revealed a number of interesting things. One is the fact, already alluded to, that nearly all the strict state abortion statutes were enacted about a hundred years ago. Another is the conclusion that it is very doubtful that abortion was ever firmly established as a common law crime, even with respect to the destruction of a quick fetus. A third is that there is little consensus, even among religious or medical groups, as to when life begins. Some would fix it at the moment of conception. Others would focus on quickening. Still others would regard live birth as the significant point. We have concluded again, as the Court has done before, that there is a right of personal privacy under, and implicit in, the Constitution. It is not spelled out in so many words, but the Court has recognized this right before in varying contexts. We feel that it is founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action. We further conclude that this right of personal privacy includes the abortion decision, but, as we say that, we emphasize that the right is not unqualified and that it must be considered against important state interests in regulation abortion. p.247 There are, we feel, two important interests that a state possesses and that if it so desires, it may seek to protect by legislation. The first is the state’s interest in preserving and protecting the health of the pregnant woman. The second is the state’s interest in protecting the potentiality of human life, irrespective of the moment when life actually begins. These interests are separate and distinct. Each grows in substantiality as the woman approaches term, and at some point during pregnancy each becomes “compelling.” p.247 We conclude: 1. For that portion of the pregnancy stage prior to approximately the end of the first trimester, the woman’s privacy right dominates the interests of the state. It follows that, during this period, the abortion decision must be left to the medical judgment of the woman’s attending physician. 2. From that point on, however, the state, in promoting its interest in health, may, if it chooses, regulate the abortion procedure in ways that are appropriately related to maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility where the procedure is to be performed; and as to the licensing of the facility. 3. From and after viability, which, we judicially notice, is usually the end of approximately the 26th or 27th week, and which is the point at which the fetus has a reasonable chance of independent life if it were then born or removed from the mother, the state’s interest in protecting the potentiality of human life dominates the woman’s right to privacy. It follows that the state may, if it chooses, regulate and even prohibit abortion, except where it is necessary in appropriate medical judgment for the preservation of the life or health of the mother. 4. The state may define the term physician to mean only a licensed physician, and it may proscribe any abortion by a person who is not a physician We feel that this holding is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the attitude of the common law toward abortion, and with the demands of the profound problems of the present day. The states are thus left free to place increasing restrictions on abortion as the period of pregnancy lengthens so long as those restrictions are tailored to the recognized state interests. The decision, we also feel, vindicates the right of the physician and is consistent with the fact that abortion is essentially a medical decision until, of course, those points in pregnancy are reached when the state interests become dominant. Viewed under this analysis, the Texas statute must fall, and we, therefore, affirm, with one procedural exception, the judgment of the federal court of the Northern District of Texas. In the Georgia case we hold that the procedural requirements for J.C.A.H. accreditation for the hospital, for the hospital abortion committee, and for the additional two-doctor concurrence are unduly restrictive of the patient’s rights and of the attending physician’s rights. Similarly, we do not uphold the provision that the patient be a resident of Georgia. The remainder of the Georgia statute does not conflict with federal constitutional standards. pp.248-249 We thus strike a balance between the interests of the pregnant woman and the interests of the state in health and in potential life. Fortunately, these decisions come at a time when a majority of the legislatures of the states are in session. Presumably where these decisions cast doubt as to the constitutional validity of a state’s abortion statute, the legislature of that state may immediately review its statute and amend it to bring it into line with the constitutional requirements we have endeavored to spell out today. If this is done, there is no need whatsoever for any prolonged period of unregulated abortion practice. p.249 In closing, I emphasize what the Court does not do by these decisions. The Court does not today hold that the Constitution compels abortion on demand. It does not today pronounce that a pregnant woman has an absolute right to an abortion. It does, for the first trimester of pregnancy, cast the abortion decision and the responsibility for it upon the attending physician, whose judgment is to be exercised, as always, upon long established medical standards. For the period following the first trimester, the decisions permit the state, if it chooses, to impose reasonable regulations for the protection of maternal health. And, after viability, they give the state full right to proscribe all abortions except those that may be necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Concluding paragraph that Justice Blackmun crossed out on the final draft of the hand-down; p.251 Majority When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer” Harry Blackmun, p. 159 This right of privacy... is broad enough to encompass a woman's decision whether or not to terminate her pregnancy....[T]he word 'person', as used in the 14th Amendment, does not include the unborn. Harry Blackmun, U.S. Supreme Court, author of majority opinion in (1973). This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p. 179, present constitutional challenges to state criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in many States for approximately a century. The Georgia statutes, in contrast, have a modern cast, and are a legislative product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical knowledge and techniques, and of new thinking about an old issue. We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion. In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem. Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. Roe v. Wade, 410 U.S. 113 (1973). The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated. United States v. Munsingwear, Inc., 340 U. S. 36 (1950); Golden v. Zwickler, supra; SEC v. Medical Committee for Human Rights, 404 U. S. 403 (1972). But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of non-mootness. It truly could be "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911). See Moore v. Ogilvie, 394 U. S. 814, 816 (1969); Carroll v. Princess Anne, 393 U. S. 175, 178-179 (1968); United States v. W. T. Grant Co., 345 U. S. 629, 632-633 (1953). We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation, that she presented a justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot. Roe, 410 U.S. at 125 1. Ancient attitudes. These are not capable of precise determination. We are told that, at the time of the Persian Empire, abortifacients were known, and that criminal abortions were severely punished. We are also told, however, that abortion was practiced in Greek times as well as in the Roman Era, and that "it was resorted to without scruple." The Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally opposed to Rome's prevailing free-abortion practices. He found it necessary to think first of the life of the mother, and he resorted to abortion when, upon this standard, he felt the procedure advisable. Greek and Roman law afforded little protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the father's right to his offspring. Ancient religion did not bar abortion. Roe, 410 U.S. at 130. 2. The Hippocratic Oath. What then of the famous Oath that has stood so long as the ethical guide of the medical profession and that bears the name of the great Greek (460(?)-377(?) B. C.), who has been described as the Father of Medicine, the "wisest and the greatest practitioner of his art," and the "most important and most complete medical personality of antiquity," who dominated the medical schools of his time, and who typified the sum of the medical knowledge of the past? The Oath varies somewhat according to the particular translation, but in any translation the content is clear: "I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner, I will not give to a woman a pessary to produce abortion," or "I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy. [Footnote 15]" Roe, 410 U.S. at 130-131. This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic Oath's apparent rigidity. It enables us to understand, in historical context, a long-accepted and revered statement of medical ethics. Roe, 410 U.S. at 131-132. The right of privacy, whether it be founded in the 14th Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” A state may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. p.154 [T]he appellee and certain “amici curiae” argue that the fetus is a person within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case of course, collapses for the fetus’ right to life is then guaranteed specifically by the Amendment. The appellant conceded as much on reargument” 156-157 We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer. Roe v. Wade 410 U.S. at 159 Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer. It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live' birth. This was the belief of the Stoics. [Footnote 56] It appears to be the predominant, though not the unanimous, attitude of the Jewish faith. [Footnote 57] It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family. [Footnote 58] As we have noted, the common law found greater significance in quickening. Physician and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes "viable," that is, potentially able to live outside the mother's womb, albeit with artificial aid. [Footnote 59] Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks. [Footnote 60] The Aristotelian theory of "mediate animation," that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic dogma until the 19th century, despite opposition to this "ensoulment" theory from those in the Church who would recognize the existence of life from the moment of conception. [Footnote 61] The latter is now, of course, the official belief of the Catholic Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a "process" over time, rather than an event, and by new medical techniques such as menstrual extraction, the "morning-after" pill, implantation of embryos, artificial insemination, and even artificial wombs. [Footnote 62] p.159-161 In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth, or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. For example, the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive. That rule has been changed in almost every jurisdiction. In most States, recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few courts have squarely so held. In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries. Such an action, however, would appear to be one to vindicate the parents' interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem. Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense. pp.161-162 In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes "compelling." With respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that, until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like. This means, on the other hand, that, for the period of pregnancy prior to this "compelling" point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State. With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother. Roe, 410 U.S. at 163-164, justia.com To summarize and to repeat: 1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment. (a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. (b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. (c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. 2. The State may define the term "physician," as it has been employed in the preceding paragraphs of this Part XI of this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined. Roe, 410 U.S. at 164-165, justia.com ”is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day” p.165 Concurrence Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. . . . That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy. Potter Stewart, concurring, Roe v. Wade, 410 U.S. 113, 169-170 (1973). Potential future human life. Justice Stewart, p.170 [T]he Court today rejects any claim that the Constitution requires abortion on demand. Justice Berger, p.208 I agree that, under the Fourteenth Amendment to the Constitution, the abortion statues of Georgia and Texas impermissibly limit the performance of abortions necessary to protect the health of pregnant women, using [410 U.S. 179, 208] the term health in its broadest medical context. See United States v. Vuitch, 402, U.S. 62, 71 0 72 (1971). I am somewhat troubled that the Court has taken notice of various scientific and medical data in reaching its conclusion; however, I do not believe that the Court has exceeded the scope of judicial notice accepted in other context. In oral argument, counsel for the State of Texas informed the Court that early abortion procedures were routinely permitted in certain exceptional cases, such as nonconsensual pregnancies resulting from rape and incest. In the face of a rigid and narrow statute, such as that of Texas, no one in these circumstances should be placed in a posture of dependence on a prosecutorial policy or prosecutorial discretion. Of course, States must have broad power, within the limit indicated in the opinions, to regulate the subject of abortions, but where the consequences of state intervention are so severe, uncertainty must be avoided as much as possible. For my part, I would be inclined to allow a State to require the certification of two physicians to support an abortion, but the Court holds otherwise. I do not believe that such a procedure is unduly burdensome, as are the complex steps of the Georgia statute, which require as many as six doctors and the use of a hospital certified by the JCAH. I do not read the Court’s holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand. Roe v. Wade, Mr. Chief Justice Burger, concurring, Landmark Cases, C-SPAN, January 22, 1973 Dissenting [A] majority of the states…have had restrictions on abortions for at least a century. Justice Rehnquist, p.174 Is not so rooted in the traditions and conscience of our people as to be ranked as fundamental. Justice Rehnquist, p.174 Its result the Court necessarily has had to find within the scope of the 14th Amendment a right that was apparently completely unknown to the drafters of the Amendment Justice Rehnquist, p.174 I find nothing in the language or history of the Constitution to support the Court’s judgment. Justice White, p.222 An exercise of raw judicial power. Justice White, p.222 Should be left with the people and to the political processes the people have devised to govern their affairs. Justice White, p.222 [A]n opposition is being created between actuality and potentiality-to the detriment of the fetus’s personhood. Montgomery, p. 283 On the merits, plaintiffs argue as their principal contention that the Texas Abortion Laws must be declared unconstitutional because they deprive single women and married couples of their rights secured by the Ninth Amendment to choose whether to have children. We agree." Roe v. Wade, 314 F. Supp. 1217, 1221 (N.D. Tex. 1970) [M]ortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth. p.725. The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental...’ William H. Rehnquist, U.S. Supreme Court, one of two dissenters against the majority opinion in the landmark abortion case, Roe v. Wade (January 22, 1973). While the Court's opinion quotes from the dissent of Mr. Justice Holmes in Lochner v. New York, 198 U. S. 45, 74 (1905), the result it reaches is more closely attuned to the majority opinion of Mr. Justice Peckham in that case. As in Lochner and similar cases applying substantive due process standards to economic and social welfare legislation, the adoption of the compelling state interest standard will inevitably require this Court to examine the legislative policies and pass on the wisdom of these policies in the very process of deciding whether a particular state interest put forward may or may not be "compelling." The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment. The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental," Snyder v. Massachusetts, 291 U. S. 97, 105 (1934). Even today, when society's views on abortion are changing, the very existence of the debate is evidence that the "right" to an abortion is not so universally accepted as the appellant would have us believe. To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. Conn.Stat., Tit. 22, §§ 14, 16. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857, and "has remained substantially unchanged to the present time." Ante at 119. There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter. Roe, 410 U.S. at 174–77 (Rehnquist, J., dissenting). I find nothing in the language or history of the Constitution to support the Court’s judgment. Justice White, p.222 An exercise of raw judicial power. Justice White, p.222 At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons -- convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. Byron White, U.S. Supreme Court, one of two dissenters in Roe v. Wade, (January 22, 1973). I find nothing in the language or history of the Constitution to support the court's judgment. The court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. Byron White, U.S. Supreme Court, one of two dissenters in Roe v. Wade, (January 22, 1973). About If the right to choose is to survive and flourish on its 50th anniversary, those who came of age after Roe must rise to its defense. Current public opinion research indicates that the generations born in the 1960s and afterward take the right for granted. To the extent possible, we must use the 25th anniversary as an opportunity to teach our daughters and sons the history of the struggle for abortion rights and to enlist them in the movement for reproductive freedom. American Civil Liberties Union, "The Right to Choose at 25: Looking Back and Ahead". www.aclu.org. Retrieved October 5, 2015. A fifth circuit panel unanimously agreed that, regardless of the merits of McCorvey’s Rule 60(b) motion, McCorvey had presented no live case or controversy. Accordingly, her case was moot and her appeal was dismissed. The decision was rendered September 17, 2004 and was easy to miss amid the growing media circus surrounding the presidential election Moreover, it was the result commentators on both sides of the abortion debate expected. Few gave the Rule 60(b) motion much of a chance to succeed. Accordingly, the decision slipped by largely unnoticed. What should not have slipped by was Judge Edith H. Jones’s remarkable concurrence in McCorvey. Despite having dutifully crafted the panel opinion, Judge Jones felt compelled to write a strikingly candid concurrence. The subject matter of her concurrence gives us some clue about her motivations. Excepting Justice White’s dissent in Doe v. Bolton, it is difficult to find a stronger call (at least in the Federal Reporter) for the reassessment of Roe v. Wade and its critical factual premises. Adams, Andrew (2004). "Aborting Roe: Jane Roe Questions the Viability of Roe v. Wade". Tex. Rev. L. & Pol., p.327 We hold that Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. Justice Alito in a majority draft opinion "Supreme Court has voted to overturn abortion rights, draft opinion shows" (05/02/2022 08:32 PM EDT by Josh Gerstein and Alexander Ward) Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. Justice Alito in a majority draft opinion "Supreme Court has voted to overturn abortion rights, draft opinion shows" (05/02/2022 08:32 PM EDT by Josh Gerstein and Alexander Ward) [F]or nearly 200 years, Madison’s masterpiece made no mention of abortion. It was an area, instead, left to the States and to the people. But all that changed 25 years ago tomorrow, when Justice Harry Blackmun and the Court nationalized-indeed, revolutionized-the issue of abortion in Roe v. Wade. The Blackmun decision has sparked a quarter century of private reflection and public debate. It happens that abortion has been made the most divisive moral question of the day. Abortion strikes at the very core of who we are as a people and who we are as a Nation. It challenged us to define life and to measure liberty-difficult things both. And yet it is an issue that will not go away, and so it demands of us civil debate and reasoned discourse. John Ashcroft, “OPENING STATEMENT OF HON. JOHN ASHCROFT, A U.S. SENATOR FROM THE STATE OF MISSOURI”, p.1, (January 21, 1998) [O]n the eve of its 25th anniversary, it seems fair for us to look at Roe with the benefit of experience and expanding medical knowledge and to ask, has it stood the test of time? As a legal matter, the absence of any constitutional text at the foundation for the trimester model established in Roe has resulted in an abortion framework marked by both confusion and instability. It demonstrates the dangers of building legal rules on the quicksand of judicial imagination rather than on the certainty of constitutional text. The trimester model of Roe proved so artificial that the Court struggled with it initially and then ultimately abandoned it. While paying lip service to Roe, the Court formally interred the trimester framework in its 1992 Casey decision. The current constitutional standard permits restrictions on abortion only if they do not place an “undue burden” on the Court’s right to an abortion. Tragically, this is a standard which gives the Court unlimited discretion to authorize the destruction of innocent human life. Thirty-seven million children have been destroyed since Roe v. Wade became the law of the land-37 million children who will never know the warmth of a father’s embrace or the strength of a mother’s love. It is a tragedy unmatched in modern times. Regrettably, the damage that Roe has wrought on the culture and the Constitution has not been confined to the realm of abortion. To buttress Roe as a constitutional law, the courts have created exceptions to the individual rights that are constitutionally protected. So, for example, to protect Roe, the Court has weakened the first amendment speech guarantees that Madison championed and for which patriots died. The Roe decision appears to have fared no better as a matter of modern medical practice than it has as a matter of constitutional law. Roe’s trimester framework was from the very beginning an oversimplification, nothing more than a whole-cloth creation of Justice Blackmun’s legal mind. Developments in medical technology, from the widespread use of ultrasound to the miracle of in utero surgery, have completely undermined the medical assumptions upon which Roe was premised. John Ashcroft, “OPENING STATEMENT OF HON. JOHN ASHCROFT, A U.S. SENATOR FROM THE STATE OF MISSOURI”, p.2, (January 21, 1998) The threat in Wisconsin and in States across the country is clear. Some politicians are doing this because they think they know better than women and their doctors. And the fact is that they do not. Women are more than capable of making their own personal, medical decisions without consulting their legislator. It is not the job of politicians to play doctor and to dictate how professionals practice medicine. Nor is it our job to intrude in the private lives and important health decisions of American families. This is why I was proud to be a cosponsor of the Women's Health Protection Act with my colleagues Senator Blumenthal and Congresswoman Chu to put a stop to these relentless attacks on women's freedom. Let me conclude by briefly describing the bill. The Women's Health Protection Act would prohibit these laws that undermine and infringe on a woman's constitutional rights guaranteed under Roe v. Wade. Specifically, our bill would outlaw any mandate or regulation that does not significantly advance women's health or safety. Our legislation also protects women by invalidating measures that make abortion services more difficult to access and restrictions on the provision of abortion services that are not imposed on any other medical procedures. STATEMENT OF HON. TAMMY BALDWIN, in "Senate Hearing 113-844". U.S. Government Publishing Office. July 15, 2014. Archived from the original on May 8, 2022. Retrieved May 8, 2022. Indeed, there is a cottage industry among liberal law professors devoted to rewriting cases like Roe v. Wade and Brown v. Board of Education that seem to have been inadequately reasoned. Roe is a particularly good example: Liberal and feminist legal scholars have spent decades showing that the result was correct even if Justice Blackmun’s opinion seems to have been taken from the Court’s Cubist period. Balkin, Jack. Bush v. "Gore and the Boundary Between Law and Politics" Archived February 27, 2008, at the Wayback Machine, 110 Yale Law Journal 1443-1444, (2001) The medical and the psychological concern always lies with the mother in the situation of unwanted pregnancy and abortion: “the prevailing social standard after Roe is that the mother’s interest in avoiding the burdens of motherhood outweighs the interest in life or potential life for the fetus” (Botkin, J. R., 1995, pp.33). Mallory Baucom, “Perfection: The Perfection: The Fatality of Down Syndrome”, Gardner-Webb University, December 2018 p.10 [Should the Supreme Court’s draft opinion to overturn Roe v. Wade hold, it would be] really quite a radical decision. If sustained, a whole range of rights are in question. Joe Biden Biden warns Supreme Court potentially overturning Roe v. Wade would be 'really quite a radical decision’ (WHITE HOUSE Published May 3, 2022 1:16pm EDT) Q: One question on abortion rights in Texas, sir. What would be your message to women in Texas? And what can your administration do to protect abortion rights on the federal level? THE PRESIDENT: I’m late for going down. I’m going to talk about these things from Louisiana. But I have been — continue to be a strong supporter of Roe v. Wade. Number one. And the most pernicious thing about the Texas law: It sort of creates a vigilante system where people get rewards to go out to — anyway. And it just seems — I know this sounds ridiculous — almost un-American, what we’re talking about — not to debate about — And I under- — I respect people who think that — who don’t support Roe v. Wade; I respect their views. I respect them — they — those who believe life begins at the moment of conception and all. I respect that. Don’t agree, but I respect that. I’m not going to impose that on people. Joe Biden, “Remarks by President Biden on the August Jobs Report”, whitehouse.gov, (September 3, 2021) "Roe v. Wade cut in a place where the vast majority of religions have reached agreement," he said, noting that during "the first three months or thereabouts, in all major religions" the decision to obtain an abortion is between a woman and her family. Mr. Biden continued: "Next three months is between a woman and her doctor. The last three months have to be negotiated, because you can't — unless you are in a position where your physical health is at stake — you can't do it." Joe Biden as quoted by Melissa Quinn, “Biden says he's "not big on abortion" because of Catholic faith, but Roe "got it right"”, CBS News, (June 28, 2023) "In sum, Roe's requirement of strict scrutiny as implemented through a trimester framework should not be disturbed.". Casey, 505 U.S. at 930–34 (Blackmun, J., concurring in part and dissenting in part) I am certainly not in a good position to dispute that the Court has saved the "central holding" of Roe, since to do that effectively I would have to know what the Court has saved, which in turn would require me to understand (as I do not) what the "undue burden" test means. I must confess, however, that I have always thought, and I think a lot of other people have always thought, that the arbitrary trimester framework, which the Court today discards, was quite as central to Roe as the arbitrary viability test, which the Court today retains. It seems particularly ungrateful to carve the trimester framework out of the core of Roe, since its very rigidity (in sharp contrast to the utter indeterminability of the "undue burden" test) is probably the only reason the Court is able to say, in urging stare decisis, that Roe "has in no sense proven 'unworkable,'" ante, at 855. I suppose the Court is entitled to call a "central holding" whatever it wants to call a "central holding"-which is, come to think of it, perhaps one of the difficulties with this modified version of stare decisis. I thought I might note, however, that the following portions of Roe have not been saved: Under Roe, requiring that a woman seeking an abortion be provided truthful information about abortion before giving informed written consent is unconstitutional, if the information is designed to influence her choice. Thornburgh, 476 U. S., at 759-765; Akron I, 462 U. S., at 442-445. Under the joint opinion's "undue burden" regime (as applied today, at least) such a requirement is constitutional. Ante, at 881-885. Under Roe, requiring that information be provided by a doctor, rather than by non-physician counselors, is unconstitutional. Akron I, supra, at 446-449. Under the "undue burden" regime (as applied today, at least) it is not. Ante, at 884-885. Under Roe, requiring a 24-hour waiting period between the time the woman gives her informed consent and the time of the abortion is unconstitutional. Akron I, supra, at 449451. Under the "undue burden" regime (as applied today, at least) it is not. Ante, at 885-887. Under Roe, requiring detailed reports that include demographic data about each woman who seeks an abortion and various information about each abortion is unconstitutional. Thornburgh, supra, at 765-768. Under the "undue burden" regime (as applied today, at least) it generally is not. Ante, at 900-901. Harry Blackmun, "Planned Parenthood v. Casey", 505 U.S. 833 (1992), 993-994 S.B. 8 explicitly excludes state officials from enforcing the law, which was designed to avoid having those officials named as defendants in challenges to the ban before it was ever used against a provider. The roughly six-week cutoff in the law is 18 weeks less than the standard set by Roe v. Wade, the 1973 Supreme Court ruling that first enshrined a woman’s constitutional right to abortion. The court in that ruling said that states could not ban abortions in the first trimester of pregnancy, a period that was chosen because of the idea that a fetus typically could not survive outside the womb during that time. “Supreme Court allows lawsuit challenging Texas abortion ban to continue but keeps law in effect for now” by Kevin Breuninger and Dan Mangan, CNBC, December 10, 2021 ON A HOTNIGHT in August 1969, Norma McCorvey, a twenty-one-year-old carnival worker nicknamed Pixie, was returning to her motel on a side road outside Augusta, Georgia. On her way back to her room, she was gang-raped by three men and a woman. The carnival and Pixie moved on to Texas. There, several weeks later, Pixie found herself pregnant. A high school dropout, who was divorced and had a five-year-old daughter and little money, Norma McCorvey unsuccessfully sought an abortion. Texas, like most other states at the time, prohibited abortions unless necessary to save a woman’s life. “No legitimate doctor in Texas would touch me,” she has remembered. “I found one doctor who offered to abort me for $500. Only he didn’t have a license, and I was scared to turn my body over to him. So there I was-pregnant, unmarried, unemployed, alone and stuck.” A lawyer friend, Henry McCloskey, Jr., agreed to find someone to adopt the baby. He also introduced her to two recent graduates of the University of Texas Law School, Sarah Weddington and Linda Coffee. David M. O'Brien, “Storm center: the Supreme Court in American politics”, New York City: W. W. Norton, 1986, pages 22–24 Having turned to religion, McCorvey then said being part of the decision to legalise abortion "was the biggest mistake of my life". "Roe v Wade: Woman in US abortion legal test case dies". bbc.co.uk. February 18, 2017. McCorvey first filed the case in 1969 - she was pregnant with her third child and said she had been raped. But the case was rejected and she gave birth. "Roe v Wade: Woman in US abortion legal test case dies". bbc.co.uk. February 18, 2017. McCorvey, having revealed her real name in the 1980s, went on to clarify that she had not been raped as she had earlier claimed. She had said so only to get permission for an abortion and speed up her case. "Roe v Wade: Woman in US abortion legal test case dies". bbc.co.uk. February 18, 2017. Ginsburg cautioned against the idea of thinking that the 1973 Roe v Wade ruling, which declared abortion was a constitutional right, was enough to guarantee women's reproductive freedom. Ginsburg was a lifelong staunch advocate for abortion rights and gender equality, but from her early days she had criticised the Supreme Court's handling of the abortion issue. She believed that the Roe v Wade case had based the right to abortion on the wrong argument, a violation of a woman's privacy rather than on gender equality. This, she thought, left the ruling vulnerable to targeted legal attacks by anti-abortion activists. Ginsburg felt that because the ruling had legalised abortion overnight nationwide, it had failed to resolve the issue. It had the effect of halting the political process that had been moving to liberalise abortion already – with advocates now believing that right was secure – and instead mobilised the anti-abortion movement. BBC, “In History: How Ruth Bader Ginsburg foresaw the threat to abortion access in the US”, (3/18/2024) Some believe that the United States is already experiencing the eugenic effects of abortion. According to one economist, “ Roe v. Wade help[ed] trigger, a generation later, the greatest crime drop in recorded history.” S. Levitt & S. Dubner, Freakonomics 6 (2005); see id., at 136–144 (elaborating on this theory). On this view, “it turns out that not all children are born equal” in terms of criminal propensity. Id., at 6. And legalized abortion meant that the children of “poor, unmarried, and teenage mothers” who were “much more likely than average to become criminals” “weren’t being born.” Ibid. (emphasis deleted). Whether accurate or not, these observations echo the views articulated by the eugenicists and by Sanger decades earlier: “Birth Control of itself . . . will make a better race” and tend “toward the elimination of the unfit.” Racial Betterment 11–12. “18-483 Box v. Planned Parenthood of Indiana and Kentucky, Inc.”, May 28. 2019, Opinion of Thomas, J., concurring, pp.17-18 (21-22) Justice Harry Blackmun did more inadvertent damage to our democracy than any other 20th-century American. When he and his Supreme Court colleagues issued the Roe v. Wade decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to destroy the Senate as we know it. When Blackmun wrote the Roe decision, it took the abortion issue out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises reflecting the views of the centrist majority that’s always existed on this issue. These legislative compromises wouldn’t have pleased everyone, but would have been regarded as legitimate. Instead, Blackmun and his concurring colleagues invented a right to abortion, and imposed a solution more extreme than the policies of just about any other comparable nation. David Brooks, "Roe's Birth and Death", New York Times, (April 21, 2005) The fact is, the entire country is trapped. Harry Blackmun and his colleagues suppressed that democratic abortion debate the nation needs to have. The poisons have been building ever since. You can complain about the incivility of politics, but you can’t stop the escalation of conflict in the middle. You have to kill it at the root. Unless Roe v. Wade is overturned, politics will never get better. David Brooks, "Roe's Birth and Death", New York Times, (April 21, 2005) Alito then asked Rikelman for “the principal source that the court relied on in Roe for its historical analysis,” asking “Who was the author of that of that article?” She told him she could not recall the author. A friend-of-the-court brief in the Dobbs case from Robert George, McCormick professor of jurisprudence at Princeton, and John Finnis, Biolchini Family Professor of Law Emeritus at the University of Notre Dame, questioned the credibility of Roe’s principal source for historical analysis: Cyril Means, who was general counsel for the National Association for the Repeal of Abortion Laws. Their brief points out that even Roe’s legal team expressed their doubts about the validity of Means’ historical claims as they wrote in a 1971 memo that “Means’ ‘conclusions sometimes strain credibility’ and ‘fudge’ the history but ‘preserve the guise of impartial scholarship while advancing the proper ideological goals.’” Lauretta Brown, Fact-Checking the Abortion Claims in ‘Dobbs v. Jackson Women’s Health’ Oral Arguments", National Catholic Register, December 3, 2021 We are concerned about abortion because it deals with the lives of two human beings, mother and child. I know there are people of good will who disagree, but after years of sober and serious reflection on the issue, this is what I think. I think the Supreme Court's decision in Roe versus Wade was wrong and should be overturned. I think America needs a human life amendment. And I think when it comes to abortion there's a better way: the way of adoption, the way of life. Bush, George Herbert Walker. “Remarks to Participants in the March for Life Rally” (January 23, 1989): Roe v. Wade, the 1973 Supreme Court decision legalizing abortion, was wrong because it usurped the power of the legislatures, Bush said. I felt like it was a case where the court took the place of what the legislatures should do in America, he said when asked whether he thought the decision should be overturned. But Bush refused to say how he felt each state should act. Instead, he said that when it comes to legalizing abortion, it should be up to each legislature. George W. Bush as quoted by Kornblut, Anne E. (January 22, 2000). "Bush Tells Addicts He Can Identify". Boston Globe. p. A12. About 7 years after my own abortion, Roe v. Wade was handed down. It was one of the most important days of my life and one of the most important days in the lives of millions of American women then and now and in the lives of their loved ones. It was a day when imaginary bells rang out for me. Let freedom ring, let freedom ring. “Statement of Carol Carter”, (January 21, 1998); The 25th Anniversary of Roe V. Wade: Has it Stood the Test of Time? : Hearing Before the Subcommittee on the Constitution, Federalism, and Property Rights of the Committee on the Judiciary, United States Senate, One Hundred Fifth Congress, Second Session ... January 21, 1998, Volume 4, p.43 I am convinced that every abortion is an unplanned tragedy, brought about by a combination of human errors and this has been one of the most difficult moral and political issues I have had to face. As president, I accepted my obligation to enforce the "Roe v. Wade" Supreme Court ruling, and at the same time attempted in every way possible to minimize the number of abortions. One of my best-remembered and most often quoted remarks came in July 1977, when I defended my lack of support for federal funds to be used for abortions among poor mothers, even though wealthier women could afford to have their pregnancies terminated. Without any careful forethought, I responded to a question on this issue by saying, "Life is often unfair." Jimmy Carter, “Our Endangered Values”, Sep 26, 2006, p. 72. KING: It would not bother you if they overturned Roe v. Wade? CARTER: When I was president, I announced and I still maintain that I can live with Roe v. Wade. I did everything I possibly could as president under that ruling, which I don't think ought to be changed, to minimize the need for abortions. I think every abortion is a result of a horrible series of errors on the part of people involved. And so, I made sure that our young people had adequate instruction on how to avoid pregnancy if they should choose to have sex before marriage and before they wanted a baby, abstinence is the best approach of course, I made sure that women and infant children, the WIC Program, Women and Infant Children gave prospective mothers the assurance that they could have their child and that they would be adequately cared for economically. And I also improved the quality or ease of adoptions by a mother who didn't want to raise her child to get matched up in a convenient way with couples who couldn't have children of their own and could delightfully raise those children. So, I did everything I could to minimize the need for abortions. Carter, James Earl. Larry King Live, CNN, “Interview With Jimmy Carter” (February 1, 2006). Roe v. Wade itself provided abortion rights with an unstable foundation. James F. Childress (1984). “Bioethics Reporter”. University Publications of America. p. 463. Retrieved August 2, 2013. Every woman should have access to affordable and comprehensive health care coverage that protects her right to choose. This should be the case regardless of her income, the type of insurance she has, or the State she resides in so that she can make personal health decisions based on what is best for her and her family. But we are witnessing an alarming moment in time. Attacks on reproductive rights are intensifying. Having lost in our court system with Roe v. Wade, opponents of reproductive freedom are trying to undercut our constitutional right and make it increasingly difficult to access a legal abortion. They are trying to take us back to a time before Roe, when 1.2 million women resorted to illegal abortions each year. Their goal is to take us back to a time when unlicensed doctors, in unsanitary conditions, performed abortions that led to infections, hemorrhages, and at times, death. They are taking us back to a time when many women knew the hazards, but risked all of this because they were desperate--and this was their only option. Statement of Hon. Judy Chu in "Senate Hearing 113-844". U.S. Government Publishing Office. July 15, 2014. Archived from the original on May 8, 2022. Retrieved May 8, 2022. The Texas dispute is the second major abortion case that the court, which has a 6-3 conservative majority, has scheduled for the coming months, with arguments set for Dec. 1 over the legality of a restrictive Mississippi abortion law. The Texas and Mississippi measures are among a series of Republican-backed laws passed at the state level limiting abortion rights - coming at a time when abortion opponents are hoping that the Supreme Court will overturn the landmark 1973 Roe v. Wade that legalized the procedure nationwide. Mississippi has asked the justices to overturn Roe v. Wade, and the Texas attorney general on Thursday signaled that he also would like to see that ruling fall. Chung, Andrew (October 22, 2021). "U.S. Supreme Court to hear challenge to Texas abortion ban". Reuters. Retrieved October 22, 2021. The court’s seven-to-two decision, which basically made abortion legal in the first trimester and subject to state regulation thereafter, was based on the constitutional right of privacy, which the justices ruled “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” The Supreme Court knew it was entering difficult and uncharted territory: “We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires.” In hindsight, the decision held multiple clues about the future of the abortion battle — and by extension, the fortunes of feminism. It affirmed a woman’s constitutional right to an abortion but mandated that the circumstances under which those abortions could take place would remain firmly in the hands of doctors in medical settings. Furthermore, the distinction between first-trimester and late-term abortions opened the door for states to impose other restrictions on the access and timing of abortion provision. "Click - Debating Reproductive Rights - Reproductive Rights and Feminism, History of Abortion Battle, History of Abortion Debate, Roe v. Wade and Feminists". www.cliohistory.org. Retrieved December 2, 2017. [B]etween one and the other, black or white, is a vast area of gray where up or down, yes or no, fades to questions about circumstance: Why, what month, etc.? Whatever the case, the very basis of the Roe v. Wade decision -- the one that grounds abortion rights in the Constitution -- strikes many people now as faintly ridiculous. Whatever abortion may be, it cannot simply be a matter of privacy. That right of privacy, first enunciated in 1965 in Griswold v. Connecticut, once made sense. It overturned a state law forbidding the use of contraceptives by married couples. The average person could easily understand that a right of privacy was at issue here. If the government telling you what you can and cannot do in your own bedroom is not about privacy, then what is? The Connecticut law had to go. If the state legislature wasn't going to take it off the books, then the court had to. Abortion is a different matter. It entails so much more than mere birth control -- issues that have roiled the country ever since the Roe decision was handed down in 1973 -- and so much more than mere privacy. As a layman, it's hard for me to raise profound constitutional objections to the decision. But it is not hard to say it confounds our common-sense understanding of what privacy is. If a Supreme Court ruling is going to affect so many people then it ought to rest on perfectly clear logic and up-to-date science. Roe , with its reliance on trimesters and viability, has a musty feel to it, and its argument about privacy raises more questions than it answers. For instance, if the right to an abortion is a matter of privacy then why, asked Princeton professor Robert P. George in the New York Times, is recreational drug use not? You may think you ought to have the right to get high any way you want, but it's hard to find that right in the Constitution. George asks the same question about prostitution. Legalize it, if you want -- two consenting adults, after all -- but keep Jefferson, Madison and the rest of the boys out of it. Cohen, Richard. "Support Choice, Not Roe", Washington Post, (October 19, 2005): Retrieved January 23, 2007. Conservatives -- and some liberals -- have long argued that the right to an abortion ought to be regulated by states. They have a point. My guess is that the more populous states would legalize it, the smaller ones would not, and most women would be protected. The prospect of some women traveling long distances to secure an abortion does not cheer me -- I'm pro-choice, I repeat -- but it would relieve us all from having to defend a Supreme Court decision whose reasoning has not held up. It seems more fiat than argument. For liberals, the trick is to untether abortion rights from Roe . The former can stand even if the latter falls. The difficulty of doing this is obvious. Roe has become so encrusted with precedent that not even the White House will say how Harriet Miers would vote on it, even though she is rigorously antiabortion and politically conservative. Still, a bad decision is a bad decision. If the best we can say for it is that the end justifies the means, then we have not only lost the argument -- but a bit of our soul as well. Cohen, Richard. "Support Choice, Not Roe", Washington Post, (October 19, 2005): Retrieved January 23, 2007. Decisions about what you can do with your body are now being made by four old dudes and a woman who thinks 'The Handmaid's Tale' is a rom-com. Stephen Colbert Stephen Colbert blasts Supreme Court justices behind potential Roe v. Wade overturn (May 4, 2022) If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office. Obviously, we won’t know each Justice’s decision and reasoning until the Supreme Court officially announces its opinion in this case Susan Collins Senator Collins’ Statement on Leaked Dobbs v. Jackson Women's Health Organization Draft Decision (PUBLISHED: MAY 03, 2022) People who believe that a woman should be able to choose abortion may see today’s outcome as a threat to Roe v. Wade, the Supreme Court decision that legalized abortion under certain circumstances. Opponents hope it will pose just that kind of threat. Roberta Combs, president of the Christian Coalition of America, said: “With today’s Supreme Court decision, it is just a matter of time before the infamous Roe v. Wade decision in 1973 will also be struck down by the court.” Roberta Combs as quoted by Stout, David (April 18, 2007). "Supreme Court Upholds Ban on Abortion Procedure". The New York Times. ISSN 0362-4331. Retrieved January 16, 2020. In the early 1970s individual women’s rights advocates and interest groups began bringing legal challenges to state abortion laws (McGlen et al., 2002). Ultimately, two cases, Roe v. Wade and its companion case Doe v. Bolton, changed the abortion rights landscape. Roe, a challenge to a Texas law that criminalized abortion except when the woman’s life was in danger, was brought by two recent law school graduates, Sarah Weddington and Linda Coffee, on behalf of “Jane Roe” and all other “similarly situated” women. Margie Pitts Hames brought the Doe cse, a challenge to a Georgia abortion law. Weddington, who was only 26 years old at the time she argued Roe, and Hames would both later serve as NARAL presidents (O'Connor, 1996, p. 51). Roe and Doe marked an important coordination of women’s rights groups, with groups such as NOW, the American Association of University Women, and Planned Parenthood filing amicus briefs in support of Roe and Doe (McGlen et al., 2002; O’Connor 1996). Weddington, Coffee, Hceames, and the groups supporting them were successful: In a 7 to 2 decision, the Supreme Court held that the “the right of personal privacy includes the abortion decision” (Roe v. Wade, 1973). Following Roe, litigators from groups such as NARAL and the ACLU jointly filed lawsuits to enforce the decision (Staggenborg, 1991). “Gender and Women's Leadership: A Reference Handbook” by Karen O'Connor, London: SAGE Publications, 2010, p.744 While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume Roe's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe's central holding a doctrinal remnant; Roe portends no developments at odds with other precedent for the analysis of personal liberty; and no changes of fact have rendered viability more or less appropriate as the point at which the balance of interests tips. Within the bounds of normal stare decisis analysis, then, and subject to the considerations on which it customarily turns, the stronger argument is for affirming Roe's central holding, with whatever degree of personal reluctance any of us may have, not for overruling it. Sandra Day O’Connor, Anthony Kennedy and David Souter; "Planned Parenthood v. Casey", 505 U.S. 833 (1992), 860-861 The examination of the conditions justifying the repudiation of Adkins by West Coast Hotel and Plessy by Brown is enough to suggest the terrible price that would have been paid if the Court had not overruled as it did. In the present cases, however, as our analysis to this point makes clear, the terrible price would be paid for overruling. Our analysis would not be complete, however, without explaining why overruling Roe's central holding would not only reach an unjustifiable result under principles of stare decisis, but would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law. To understand why this would be so it is necessary to understand the source of this Court's authority, the conditions necessary for its preservation, and its relationship to the country's understanding of itself as a constitutional Republic. Sandra Day O’Connor, Anthony Kennedy and David Souter; "Planned Parenthood v. Casey", 505 U.S. 833 (1992) 864-865 I suppose it would be nice to say here that when I made that phone call-after which a woman named Linda Coffee called me back to set up a meeting-I realized I was making abortion-rights history. Or changing my life forever. But the honest truth is that nothing like that even occurred to me. I was simply at the end of my rope. At a dead end. I just didn’t know what else to do. Norma McCorvey, I AM ROE, Speaking of Roe- fails to even consider what I would suppose to be the most compelling interest of the State in prohibiting abortion, the interest in maintaining that respect for the paramount sanctity of human life which has always been at the center of western civilization, not merely by guarding life itself, however defined, but by safeguarding the penumbra, whether at the beginning through some overwhelming disability of mind or body, or at death * * * For one concerned with the proper role of the Supreme Court in American Government, and more particularly with the debate over judicial activism, the abortion cases have threefold significance. First, the decisions plainly continue the activist reforming trend of the Western Court. They are reforming in the sense that they sweep away established law supported by the moral themes dominant in American life for more than a century in favor of what the Court takes to be the wiser view of a question under active public debate. Second, the justices read into the generalities of the due process clause of the 14th amendment a new “fundamental right” not remotely suggested by the words. Because they found that right to be “fundamental” the justices felt no duty to deter to the value judgments of the people’s elected representatives, current as well as past. They applied the strict standard of review applicable to repression of political liberties. Cox, Archibald. "The Role of the Supreme Court in American Government", (Oxford U. Press 1976), p.53 My criticism of Roe v. Wade is that the Court failed to establish the legitimacy of the decision by not articulating a precept of sufficient abstractness to lift the ruling above the level of a political judgment based upon the evidence currently available from the medical, physical and social science. Nor can I articulate such a principle unless it be that a state cannot interfere with individual decisions relating to sex, procreation, and family with only a moral or philosophical state justification, a principle which I cannot accept or believe will be accepted by the American people. The failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations whose validity is good enough this week but will be destroyed with new statistics upon the medical risks of child birth and abortion or new advances in providing for the separate existence of a fetus. Neither historian, layman, nor lawyer will be persuaded that all the details prescribed in Roe v. Wade are part of either natural law or the Constitution. Constitutional rights ought not be created under the due process clause unless they can be stated in principles sufficiently absolute to give them roots throughout the community and continuity over significant periods of time and to lift them above the level of the pragmatic political judgments of a particular time and place. Cox, Archibald. "The Role of the Supreme Court in American Government", (Oxford U. Press 1976), pp.113-114 Ironically enough, Buck v. Bell was cited by Justice Thurgood Marshall as the “initial decision,” reaffirmed in Roe v. Wade, that the constitution provided no special protection for procreation. San Antonio School District v. Rodriquez 411 U.S. 1 (1972). Irony is piled upon irony when it is further recognized that Carrie Buck, the principal in Buck v. Bell, was not in fact an “imbecile” and that her child Vivian, whose birth provoked Carries sterilization, turned out to be normal. In short, there were no “three generations of imbeciles.” “In Search of Human Nature: The Decline and Revival of Darwinism in American Social Thought” by Carl N. Degler, New York: Oxford University Press, 1991, Footnote p.48 Putting the right to abortion back on the same constitutional footing the Supreme Court laid down nearly a quarter-century ago, a divided Supreme Court on Monday swept away new forms of state restrictions on the way clinics can function. Together with recent refusals by the Court to allow states to narrow the scope of the abortion right itself, the new ruling in Whole Woman’s Health Clinic v. Hellerstedt thwarted a wave of new laws against women’s choice to end pregnancy. Denniston, Lyle (June 27, 2016). "Whole Woman's Health v. Hellerstedt – Opinion analysis: Abortion rights reemerge strongly". SCOTUSblog. Retrieved June 29, 2016. The Casey decision had partly reaffirmed the basic abortion rights ruling of 1973, Roe v. Wade, but still protected a wide range of choice for a women to seek an abortion up to “viability” — the point at which the fetus would be capable of living if delivered from the woman’s body. Many state legislatures have recently tried to ban abortions before that point, but the Supreme Court has refused to hear defenses of those new laws, and Breyer’s opinion noted that the Court still follows the 1992 standard. Denniston, Lyle (June 27, 2016). "Whole Woman's Health v. Hellerstedt – Opinion analysis: Abortion rights reemerge strongly". SCOTUSblog. Retrieved June 29, 2016. Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy)... . Taking the Stand: My Life in the Law by Alan Dershowitz, New York: Broadway Books, 2013, page 433 A new Harvard CAPS-Harris Poll survey, released exclusively to The Hill, finds that most Americans disagree with the status quo on abortion policy created by Roe v. Wade. But, of course, The Hill is headlining its coverage of the poll by highlighting that a majority of Americans (54 percent) say they oppose overturning Roe. The very same poll found that a majority of Americans supports moving the viability threshold to 15 weeks’ gestation. When told that Roe permits abortion until viability, marked at 24 weeks, 56 percent said they support either overturning the decision or limiting abortions to the first 15 weeks of pregnancy. These outcomes are impossible unless Roe is overturned. What are we to make of such a polling outcome? I wrote an in-depth piece about public opinion and abortion for our recent special issue of the magazine and argued that, while many Americans tend to instinctively say they support Roe, a majority supports restricting abortion in ways that are impossible under Roe, Doe v. Bolton, and Planned Parenthood v. Casey. This becomes glaringly obvious if you study even the smallest amount of opinion polling on abortion. A Fox News poll from September, for example, found that 65 percent of Americans oppose reversing Roe v. Wade, compared with 28 percent who want the decision overturned. Absurdly, the same survey found that Americans were perfectly split on whether abortion should be legal, tied at 49 percent. Plenty of Americans, in other words, both want abortion to be illegal and want to preserve the ruling that makes it impossible to prohibit abortion. This is possible only if some sizable number of Americans simply doesn’t understand what Roe and Casey meant for abortion policy. Alexandra Desanctis, “Poll: Americans Continue to Misunderstand Roe”, National Review, December 7, 2021 Steady support for Roe: Support for the Supreme Court’s abortion precedent in Roe v. Wade is similar, with a November Quinnipiac poll finding that 63% agree with the court’s ruling; and 72% of respondents in a January Marquette Law School poll and 69% of January CNN poll respondents oppose it being overturned. If Roe is overturned: A January CNN poll found a 59% majority want their state to have laws that are “more permissive than restrictive” on abortion if Roe goes away, while only 20% want their state to ban abortion entirely (another 20% want it to be restricted but not banned). How Americans Really Feel About Abortion: The Sometimes Surprising Poll Results As Supreme Court Weighs Overturning Roe V. Wade by Alison Durkee, Forbes, November 30, 2021 Parents less likely to support abortion rights: All In Together’s poll, conducted in September with Lake Research and Emerson College Polling, found 36% of those with children in their house opposed the Texas near-total abortion ban versus 54.9% without kids, and the Post/ABC poll similarly found 58% of parents want the Supreme Court to uphold Roe v. Wade versus 62% of non-parents. Cities support more: Those in the Northeast are the most supportive of abortion rights, with the Post/ABC finding 71% there want Roe v. Wade to be upheld versus 58% in the Midwest, 53% in the South and 66% in the West, and urban residents are more likely to support Roe v. Wade (with 69% support) than those in suburban or rural areas (56% and 57%, respectively). Support rises with income level: The Post/ABC poll found 59% of those earning less than $50,000 per year wanting the court to uphold the law versus 62% of those making between $50,000-$100,000 and 65% of those earning more than $100,000. How Americans Really Feel About Abortion: The Sometimes Surprising Poll Results As Supreme Court Weighs Overturning Roe V. Wade by Alison Durkee, Forbes, November 30, 2021 The Supreme Court acted quickly to dispel the notion that a woman has an affirmative right to an abortion. It reversed the Eighth Circuit’s decision in the St. Louis welfare clinic case; denied that state governments have an obligation to pay for abortions for indigent women, even if they pay for childbirth services; and upheld the federal government’s refusal to provide money to state Medicaid programs to pay for abortions. Rather than a right to an abortion the Court now suggested that Roe protected an interest in decision making and in freedom from unduly burdensome restrictions on decision making. As we have seen, “Roe’s’’ statement that the right of privacy is “broad enough to encompass a woman’s decision whether or not to bear a child” [emphasis added] invited this result. Nonetheless, a right to decide to terminate a pregnancy is not worth much to a woman who is unable to act on her decision. According to the Court the inability to act, however, is not the state’s fault. Failure to make money or facilities available is not an unduly burdensome restriction on decision making because the poor woman seeking an abortion had too little money to begin with The refusal to fund does not impose any new roadblocks in her path to an abortion. While it is true that funding childbirth, but not abortion, may make childbirth the more attractive option, that is all right. The Constitution permits states to adopt policies favoring childbirth over abortion. In fact, the Constitution apparently permits consideration of a wide range of policies (or state interests) besides those mentioned in Roe. The Court considered some of them, and backed off of its position that the abortion right is purely personal, in a series of decisions about minors who seek abortions. In those cases the Supreme Court manifested its continuing confusion over the nature of the constitutional right at stake. Sometimes it referred to the right to choose an abortion sometimes the right to seek an abortion, and, occasionally, the right to an abortion. Given the enormous difference between seeking an abortion and getting one, this is quite confusing. Dworkin, Roger (1996). "Limits: The Role of the Law in Bioethical Decision Making". Indiana University Press. p.33. ISBN 978-0253330758. The apparent confusion and lack of clarity in the abortions-for-minors cases goes beyond efforts to define the relevant right and to establish rules about which preconditions to abortions for minors are acceptable. In Roe v. Wade the Court quite plainly held that the abortion right (whatever it may be) is fundamental. That holding led to the conclusion that state infringements on the right are unconstitutional unless they are necessary to a compelling state interest. In the cases about minors however, the Court moved away from the necessary to a compelling state interest standard. It applied a variety of different standards to restrictions on the abortion right including whether the restriction was reasonably calculated to achieve the state’s end. That is the lowest level of scrutiny the Court applies to invasions of rights and is inconsistent with the idea that the abortion right is fundamental. Additionally, the court deviated from “Roe” by expanding the number of state interests that may be considered in deciding whether a particular intrusion into the abortion right is acceptable. The Court recognized as worthy of consideration the interest in family integrity, the interest in protecting adolescents, the interest in providing essential medical information (even in the first trimester), the interest in protecting potential life (even before viability), and the interest in full-term pregnancies. Obviously, some of these interests exist regardless of the age of the woman seeking an abortion. Obviously, too, the interests in providing information, protecting potential life, and full-term pregnancies permit massive inroads into women’s opportunities to obtain abortions. A 1979 abortion for minors case makes clear the reason for the Court’s backing away from “Roe” and for the Court’s confused and inconsistent approach. Dworkin, Roger (1996). "Limits: The Role of the Law in Bioethical Decision Making". Indiana University Press. p.34. ISBN 978-0253330758. WRITING ROE V. WADE SIGNIFICANTLY AFFECTED BLACKMUN'S SELF-PERCEPTION. As public criticism of the decision continued after 1973, Blackmun became so preoccupied with Roe that a tone of self-pity crept into his personal notes whenever a new abortion case came before the court. In 1976, while Blackmun was contemplating a statute that authorized abortions only when a woman's life was in danger, he jotted, "It seems to me that this is 'playing God' just as much as my detractors accuse me of doing in the critical letters that have come in." He anticipated being "chewed upon at length during these abortion arguments" when the case was heard, and he later expressed dread about a case involving the right to use contraceptives. "Here we are again in a general area in which I have already had too much to say by way of opinions of the Court." Late in 1978 Blackmun again made the same point. "More A[bortion]," he noted. "I grow weary of these. . . . Wish we had not taken the case." Yet Blackmun also seemed oddly detached from the doctrinal issues underlying Roe. In the 1980s, when Roe's privacy analysis became central to constitutional arguments for gay rights, Blackmun's reactions were puzzling. In a New York case, he initially voted with the four most conservative justices to hear arguments, but shifted sides and helped dismiss the case because he wanted to wait for one that directly addressed the "deviant sex issue." In 1986, Bowers v. Hardwick did just that. Michael Hardwick had been arrested under Georgia's antisodomy law for having oral sex in his bedroom with another man. At first the justices seemed ready to strike down the statute by a vote of 5 to 4, with Powell among the majority. But Powell, a consistent supporter of Roe, changed his vote after deciding that the constitutional right to privacy should not cover gay sex. Powell's switch meant that the court would uphold the statute, turning what would have been a majority opinion by Blackmun into a dissent. Clerk Pamela Karlan, now a professor at Stanford Law School, took the lead in preparing the dissent, which argued that "the right of an individual to conduct intimate relationships in the intimacy of his or her own home seems to me to be the heart of the Constitution's protection of privacy." Court Justice's Papers Opened for Research” by Daun Van Ee, Library of Congress Information Bulletin, Volume 63, Number 4, April 2004 The attack on Roe v Wade coming out of the Supreme Court is not just an assault on abortion rights — it’s an assault on all Americans, especially those of us in marginalized communities. None of us are safe from the extreme anti-women and anti-LGBTQ ideology that now dominates this Court, and we must fight back in every way possible. It’s more critical than ever that Congress acts swiftly and strongly by ending the filibuster, codifying Roe into law, and passing the Equality Act in order to protect marriage and the other LGBTQ rights. The time is NOW and our very freedom is at stake. Sarah Kate Ellis, “GLAAD RESPONDS TO LEAKED SUPREME COURT DRAFT OPINION OVERTURNING ROE V WADE”, GLAAD, (May 3, 2022) The Court has over the years labored with good effect to insure that the political process will be as open and fair as the inexact art of government will permit. In this regard, the reapportionment decisions of the Court, to take but one example, have done much to make state governments responsive to the majority of its citizens. Given its decision in the abortion cases one wonder at least for the moment, why they bothered. The Texas statute, the Georgia statute, and a host of possible alternatives are not monuments to the ignorance of man. They are uneasy but reasonable responses to most troublesome questions. They should not be struck down as unconstitutional by the Supreme Court, particularly in an opinion that avoids in the name of privacy the hard questions that must be faced to reach that result. The reaction to the decision has been strong. The foes of abortion may not have sufficient strength to overturn Roe v. Wade by constitutional amendment. But if they fail, it will not be because they are persuaded by anything the Court said. “Substantive Due Process by any other name: The Abortion Cases” by Richard A. Epstein, The Supreme Court Review 1973, University of Chicago Press, 1974, page 185 The central tenet of Roe, the government’s responsibility to preserve individual liberty through explicit protection of the right to privacy, has allowed American women in these past twenty-five years to face complexities of childbearing decisions with a full range of legal and safe options. The Court has continued to preserve this “choice” in its subsequent holdings on this matter in Doe, Casey and Webster. By doing so, the Court has affirmed that America affords its citizens the right to engage in personal decision-making without the interference of government. Moreover, Roe recognizes that American women are capable of making those decisions. Despite this fact, this session of Congress will be presented with many more opportunities to retreat from Roe. This will continue the trend that has resulted in qualifications of the constitutionally protected right to an abortion over the past few years. For some, rather than leave this decision in the hands of the woman within constitutionally protected parameters, substituting the so-called “collective” wisdom of a legislative body, which rarely understands or is even aware of those specific circumstances affecting the woman, is deemed preferable. The consequences of this governmental intrusion into the private decisions of women all across America are most significant for women who lack the resources or political power to overcome them. Women whom society should seek to empower the most face the greatest barrier in regard to reproductive decisions; poor women, women in abusive relationships, or those with few outside sources of information and education. This result is not the legacy of Roe, it is the legacy of those who seek to take away the constitutional rights that Roe protects. While many will use this anniversary to celebrate the potential for retreat from individual freedom, the true legacy of Roe, by elevating public attention to and lifting taboos around the discussion of reproductive health issues more broadly, has led to significant advances in the area of family planning. More remains to be done, however, to ensure that broad access to family planning services are accessible to all American women so that we can reduce the need and call for abortion services. Russell D. Feingold, “PREPARED STATEMENT OF SENATOR RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE STATE OF WISCONSIN”, (January 21, 1998); The 25th Anniversary of Roe V. Wade: Has it Stood the Test of Time? : Hearing Before the Subcommittee on the Constitution, Federalism, and Property Rights of the Committee on the Judiciary, United States Senate, One Hundred Fifth Congress, Second Session ... January 21, 1998, Volume 4, p.4 Pavone said that in his view, McCorvey carried a lot of pain, from the difficulty of her life, and a sense of responsibility for the Roe vs. Wade decision, and its consequences. During her life, McCorvey said the same in public speeches and remarks. J.D.Flynn, ("The 'painful journey' of Jane Roe and the pro-life movement", Catholic News Agency, May 19, 2020 This comment revisits a seminal 2001 paper by Donohue and Levitt (henceforth DL) that linked the startling and unexpected decline in crime during the 1990s to the legalization of abortion some 20 years earlier. DL theorize that abortion reduces crime for two reasons. First, holding the number of pregnancies constant, a higher abortion rate today reduces the number of young people in the future. Because younger people commit more crimes than older people, this “cohort-size” effect should reduce crime if the share of young people in the population declines. Second, because a mother can abort a pregnancy more easily when abortion is legal, a child born after legalization is more likely to be wanted than a child born before legalization. If children who are wanted grow up to commit fewer crimes than unwanted children do, then abortion will bring about an additional “selection” effect that further reduces crime. Christopher L. Foote & Christopher F. Goetz (2008-01-31). "The Impact of Legalized Abortion on Crime: Comment". Federal Reserve Bank of Boston. Retrieved 2021-12-20; revised article published in “Quarterly Journal of Economics”, vol. 123, no. 1 (February 2008): 407-423; originally published as "Testing Economic Hypotheses with State-Level Data: A Comment on Donohue and Levitt (2001)"; and was revised in January 2008. p.1 One of the most controversial issues of our time and one in which we share a keen interest is the question of abortion. I have grave concern over the serious moral questions raised by this issue. Each new life is a miracle of creation. To interfere with that creative process is a most serious act. In my view, the Government has a very special role in this regard. Specifically, the Government has a responsibility to protect life--and indeed to provide legal guarantees for the weak and unprotected. It: is within this context that I have consistently opposed the 1973 decision of the Supreme Court. As President, I am sworn to uphold the laws of the land and I intend to carry out this responsibility. In my personal view, however, this court decision was unwise. I said then and I repeat today--abortion on demand is wrong. Since 1973 I have viewed as the most practical means of rectifying the situation created by the Court's action a Constitutional amendment that would restore to each State the authority to enact abortion statutes which fit the concerns and views of its own citizens. This approach is entirely in keeping with the system of Federalism devised by the founders of our Nation. As Minority Leader of the House of Representatives, I co-sponsored an amendment which would restore this authority to the States, and I have consistently supported that position since that time. Gerald Ford. [https://www.presidency.ucsb.edu/documents/letter-the-archbishop-cincinnati-following-meeting-with-the-executive-committee-the Letter to the Archbishop of Cincinnati Following a Meeting With the Executive Committee of the National Conference of Catholic Bishops, published online by The American Presidency Project. Santa Barbara: University of California Press (September 10, 1976). Thus, in one bold, cataclysmic move the Court undid about a century of legislative action. It swept away every abortion law in the country. Lawrence Friedman, "The Conflict over Constitutional Legitimacy"], "The Abortion Dispute and the American System", edited by Gilbert Steiner, The Brookings Institution, (1983), p.16 In a separate recent poll conducted by Ayres McHenry Associates for the Ethics and Public Policy center, a majority of Americans still say they support Roe v. Wade. However, when voters are informed about all the different abortion restrictions and regulations that Roe prevents states from passing, Americans' support for the Supreme Court decision drops substantially. Gallagher, Maggie. "Pro-Life Voters are Crucial Component of Electability", Realclearpolitics.com, (May 23, 2007). Eve Gartner of the Planned Parenthood Federation of America said the ruling “flies in the face of 30 years of Supreme Court precedent and the best interest of women’s health and safety.” The ruling sends the signal that “politicians, not doctors,” will make health-care decisions for women. Eve Gartner as quoted by Stout, David (April 18, 2007). "Supreme Court Upholds Ban on Abortion Procedure". The New York Times. ISSN 0362-4331. Retrieved January 16, 2020. "Prior to Roe," says Garrow, "whether one could obtain a legal abortion in the face of an unwanted pregnancy was a crap shoot. For 30 years now, it's been a constitutionally guaranteed right." David Garrow as quoted by Mears, William; Franken, Bob (January 22, 2003). "30 years after ruling, ambiguity, anxiety surround abortion debate". CNN'. Roe v. Wade’s creation and Roe v. Wade’s legacy represent one of the two greatest stories-the other is Brown v Board of Education-in twentieth century American legal history. Liberty and Sexuality seeks to tell that story as comprehensively as possible, for it-like Brown-has altered and improved the lives of millions of Americans. Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade by David J. Garrow, "Introduction", 1994 Weddington was born in Abilene and attended McMurray University in her hometown before studying law at the University of Texas at Austin. She filed Roe v Wade in 1970 when she was working for a law professor shortly after graduating from law school. Weddington argued the case in front of the U.S. Supreme Court twice. Kate McGee, ("Sarah Weddington, lawyer in Roe v. Wade case, dies at 76", Texas Tribune, (December 26, 2021) Q: Let me ask you about the fight you waged for the courts to understand that pregnancy discrimination is a form of sex discrimination. JUSTICE GINSBURG: I wrote about it a number of times. I litigated Captain Struck’s case about reproductive choice. [In 1972, Ginsburg represented Capt. Susan Struck, who became pregnant during her service in the Air Force. At the time, the Air Force automatically discharged any woman who became pregnant and told Captain Struck that she should have an abortion if she wanted to keep her job. The government changed the regulation before the Supreme Court could decide the case.] If the court could have seen Susan Struck’s case — this was the U.S. government, a U.S. Air Force post, offering abortions, in 1971, two years before Roe. Q: And suggesting an abortion as the solution to Struck’s problem. JUSTICE GINSBURG: Yes. Not only that, but it was available to her on the base. Q: The case ties together themes of women’s equality and reproductive freedom. The court split those themes apart in Roe v. Wade. Do you see, as part of a future feminist legal wish list, repositioning Roe so that the right to abortion is rooted in the constitutional promise of sex equality? JUSTICE GINSBURG: Oh, yes. I think it will be. Ruth Bader Ginsburg as quoted in “The Place of Women on the Court” by Emily Bazelon, New York Times Magazine, (July 7, 2009) One of the things that happened after Roe v Wade is that women wanted women to be able to control their own destiny. They won, so they retreated. And the other side geared up and we have the situation that we have today. Ruth Bader Ginsburg as interviewed by Razia Iqbal, "Dissenting Opinion - an interview with Ruth Bader Ginsburg", BBC World News, (20 December 2019); as quoted in “In History: How Ruth Bader Ginsburg foresaw the threat to abortion access in the US”, BBC, (3/18/2024) (i) It is estimated that 6,000,000 Jewish people were murdered in German concentration camps during World War II; 3,000,000 people were executed by Joseph Stalin's regime in Soviet gulags; 2,500,000 people were murdered during the Chinese "Great Leap Forward" in 1958; 1,500,000 to 3,000,000 people were murdered by the Khmer Rouge in Cambodia during the 1970s; and approximately 1,000,000 people were murdered during the Rwandan genocide in 1994. All of these are widely acknowledged to have been crimes against humanity. By comparison, more than 50 million babies have been aborted in the United States since the Roe decision in 1973, more than three times the number who were killed in German death camps, Chinese purges, Stalin's gulags, Cambodian killing fields, and the Rwandan genocide combined. Leada Gore, "Alabama abortion law passes: Read the bill", Birmingham News, (May 16, 2019) (j) The cases of Roe v. Wade and its progeny have engendered much civil litigation and legislative attempts to reign in so called abortion rights. Roe v. Wade attempted to define when abortion of an unborn child would be legal. Judges and legal scholars have disagreed and dissented with its finding. Leada Gore, "Alabama abortion law passes: Read the bill", Birmingham News, (May 16, 2019) In the days before the U.S. Supreme Court issued its rulings on two landmark abortion rights cases in early 1973, Justice Harry Blackmun braced for a flood of media response—and possible misinterpretation. "I anticipate the headlines that will be produced over the country when the abortion decisions are announced," he wrote to the court's other justices in a memo dated Jan. 16. "Accordingly, I have typed out what I propose as the announcement from the bench in these two cases. … It will in effect be a transcript of what I shall say, and there should be at least some reason for the press not going all the way off the deep end." The attached statement planned for release six days later with the rulings in Roe v. Wade and Doe v. Bolton made clear that "the Court does not today hold that the Constitution compels abortion on demand. It does not today pronounce that a pregnant woman has an absolute right to abortion. It does, for the first trimester of pregnancy, cast the abortion decision and the responsibility for it upon the attending physician." Adam Gorlick, “Rehnquist papers offer peek inside Supreme Court”, Stanford Report, November 20, 2008 He was one of two dissenting voices in Roe, a ruling he said distorted the Constitution. There is not much in the documents now available in the Hoover archives that amplify his feelings, but there are signs that he thought about the abortion cases outside of their legal boundaries. Along with draft opinions and memos that went back and forth among the justices over some fine points, Rehnquist kept newspaper and magazine clippings about the cases. Carefully tucked into a file labeled "abortion cases" is a flier produced by a pro-life group featuring gruesome images described as aborted fetuses, along with letters from a few people applauding Rehnquist's break with the majority. "May our dear Lord bless you for dissenting from the abortion-on-demand decision rendered by the Supreme Court yesterday," wrote Ellen Myers, of Wichita, Kan. "How horrible that we now have licensed the killing of our most innocent fellow human beings through the highest tribunal in our land?" There's no indication Rehnquist wrote back. Adam Gorlick, “Rehnquist papers offer peek inside Supreme Court”, Stanford Report, November 20, 2008 By making abortion legal nationwide, Roe v. Wade has had a dramatic impact on the health and well-being of American women. Deaths from abortion have plummeted, and are now a rarity. In addition, women have been able to have abortions earlier in pregnancy when the procedure is safest: The proportion of abortions obtained early in the first trimester has risen from 20% in 1970 to 56% in 1998. These public health accomplishments may now be seriously threatened. Supporters of legal abortion face the bleakest political landscape in recent history. Congress is poised to pass legislation criminalizing some abortion procedures (termed "partial-birth" abortion) even when they are performed prior to fetal viability and when they are deemed by the physician to be in the best interest of the woman's health; by doing so, the Partial-Birth Abortion Ban Act takes direct aim at the basic principles underlying Roe. “Lessons from Before Roe: Will Past be Prologue?”, The Guttmacher Policy Review, Vol. 6 Iss. 1, March 1, 2003. Retrieved January 11, 2017. So we are here together because we collectively believe and know America is a promise. America is a promise. It is a promise of freedom and liberty — not for some, but for all. A promise we made in the Declaration of Independence that we are each endowed with the right to liberty and the pursuit of happiness. Be clear. These rights were not bestowed upon us. They belong to us as Americans. And it is that freedom and liberty that enabled generations of Americans to chart their own course and decide their own future with, yes, ambition and aspiration. Therein lies the strength of our nation. And since our founding, we have then been on a march forward to fully realize our promise to complete the unfinished work to secure freedom and liberty for all. Now, these outcomes will not be inevitable. They will not just happen. It takes steadfast determination and dedication. The kind of determination and dedication possessed by some of our greatest patriots: those Americans who fought a Civil War to end the sin of slavery — (applause) — who organized at Seneca Falls to secure a woman’s right to vote — (applause) — who launched the Freedom Rides to advance civil rights — (applause) — and spoke out at the Stonewall Inn to defend human rights. (Applause.) In each of these movements, those leaders expanded rights which then advanced the cause of freedom and liberty. And 50 years ago today, so did those who won a fight in the United States Supreme Court to recognize the fundamental constitutional right of a woman to make decisions about her own body — (applause) — not the government. (Applause.) For nearly 50 years, Americans relied on the rights that Roe protected. Today, however, on what would have been its 50th anniversary, we speak of the Roe decision in the past tense — Kamala Harris, “Remarks by Vice President Harris on the 50th Anniversary of Roe v. Wade”, Whitehouse.gov, (January 22, 2023) SUPPORT FOR the Roe v. Wade decision that made abortions legal during the first three months of pregnancy has hit its lowest level since 1985, a Harris Interactive poll shows.* U.S. adults are now almost equally split on the ruling, with 49% saying they favor it, and 47% opposing, according to the poll. Harris has surveyed Americans on abortion since 1973. See full results of the most-recent poll here. Harris Interactive.[ https://online.wsj.com/public/resources/documents/info-harris0503.html 'U.S. Attitudes Toward Roe v. Wade"]. The Wall Street Journal Online, (May 4, 2006). Retrieved February 3, 2007. We are here talking about the great 13th floor of the human family. Everyone knows it is there, but it is convenient to pretend that it is not there. I am talking about the humanity of the unborn. One of the great misperceptions of many of the media is that we prolife Congressmen and Senators are a willful, small, arrogant little band of people trying to manipulate the entire country into a rather vulgar, out-of-date, anachronistic view of human life and its value, and whether it should be protected by the Constitution. I think it is important to point out that out there in the country there are millions of people who are appalled by the results of Roe v. Wade and who constitute the prolife movement, which is growing every day. “Statement of Hon. Henry Hyde, A U.S. Representative from the State of Illinois”, from the Hearings before the Subcommittee on Separation of Powers of the Committee on the Judiciary, United States Senate, Washington, D.C.: U.S. Government Printing Office, 1982, p.915 Centuries ago we had alchemists, people who sought to change base metal into gold. We today have our alchemists who have successfully turned what was once a crime, the crime of abortion, into the gold of an act of compassion and humanity. Roe v. Wade certainly is the keystone of that result and we are told that it is the ultimate authority, that the Supreme Court, having spoken on the question of personhood and having confessed its incompetency to determine when human life begins because it said it could find no consensus in law theology, and philosophy, then said it is not necessary to determine when human life begins, but then they did pronounce on the basis of that vacuum that the preborn is not a person within the meaning of the 14th amendment. “Statement of Hon. Henry Hyde, A U.S. Representative from the State of Illinois”, from the Hearings before the Subcommittee on Separation of Powers of the Committee on the Judiciary, United States Senate, Washington, D.C.: U.S. Government Printing Office, 1982, p.915 What is the matter with a little congressional activism? When we are faced with a decision that has been criticized from Austin to Boston by legal scholars who themselves may support abortion as a solution to unwanted pregnancies instead of, as I would say, the failure to look for a solution, but who criticize the case as totally unwarranted, are we to be impotent? Are we to say we cannot do anything in the face of 1.5 million abortions a year? If reappointment is important for courts not to be activists, I suggest to you that the carnage involved in the killing of 1.5 million defenseless, voiceless, preborn children is justification for a little congressional activism. “Statement of Hon. Henry Hyde, A U.S. Representative from the State of Illinois”, from the Hearings before the Subcommittee on Separation of Powers of the Committee on the Judiciary, United States Senate, Washington, D.C.: U.S. Government Printing Office, 1982, pp.916-917 No matter one’s personal view on abortion, we can all recognize that, at least for the short term, this bill may similarly be unenforceable. As citizens of this great country, we must always respect the authority of the U.S. Supreme Court even when we disagree with their decisions. Many Americans, myself included, disagreed when Roe v. Wade was handed down in 1973. The sponsors of this bill believe that it is time, once again, for the U.S. Supreme Court to revisit this important matter, and they believe this act may bring about the best opportunity for this to occur. Governor Ivey Issues Statement After Signing the Alabama Human Life Protection Act, May 15, 2019, Office of Alabama Governor The anonymous plaintiff in the groundbreaking 1973 Supreme Court abortion rights case tells her story in the gritty, rough-edged memoir, I Am Roe: My Life, Roe v. Wade, and Freedom of Choice. Norma McCorvey was a 21-year-old drifter with a drug and alcohol problem when she found herself pregnant a third time. Her search for an abortion led to two young lawyers, Sarah Weddington and Linda Coffee, who needed a plaintiff to challenge the Texas law banning abortions. McCorvey’s role from that point was nominal: She learned of the victory in a newspaper article, months after her baby had been born and given up for adoption. There emerges a tragic juxtaposition between McCorvey’s thwarted life and Weddington’s, whose expensive Mexican abortion in 1967 enabled her to finish law school, and whose role in Roe brought fame. It’s a comparison that highlights the disadvantages of poor and disenfranchised women in the abortion rights debate. Rhonda Johnson my-life-roe-v-wade-and-freedom-choice/ “I Am Roe: My Life, Roe v. Wade, and Freedom of Choice”, Entertainment Weekly, (July 22, 1994) Twenty-five years ago this week, the Supreme Court held that the Constitution protects a woman’s decision whether to terminate her pregnancy. Roe v. Wade guaranteed women the right to a safe, legal medical abortion. It has preserved the health and lives of millions of women, maintaining their privacy, their dignity and their future. Roe v. Wade was a landmark victory for women’s rights. Before 1973, an estimated 1.2 million women a year turned in desperation to dangerous and illegal back-alley abortions. 5,000 died every year from the appalling treatment they endured, and large numbers of others suffered serious injury. The lesson of the years before Roe is clear-if a safe, legal abortion is not available, women will turn to unsafe means to terminate pregnancies. Edward M. Kennedy, “PREPARED STATEMENT OF SENATOR EDWARD M. KENNEDY, A U.S. SENATOR FROM THE STATE OF MASSACHUSETTS”, (January 21, 1998) ; , (January 21, 1998); The 25th Anniversary of Roe V. Wade: Has it Stood the Test of Time? : Hearing Before the Subcommittee on the Constitution, Federalism, and Property Rights of the Committee on the Judiciary, United States Senate, One Hundred Fifth Congress, Second Session ... January 21, 1998, Volume 4, pp.4-5. Who is best suited to make this intensely personal and agonizing decision- woman in consultation with her doctor, or politicians? The guarantee contained in Roe enables women to act according to their own beliefs, with limited government interference. A new generation of women have been born since Roe, and they have never lived in a society in which the only option to terminate a pregnancy was a dangerous and illegal back-alley abortion. Let us affirm once again that they never will. We must remain vigilant in our efforts to keep abortion safe and legal, and we must also take steps to make abortion rare. Pro-choice and anti-choice Americans must deal more effectively with the causes of unintended pregnancies, and give their support to efforts in Congress and around the country to ensure greater access to family planning for both women and men. The health and dignity of all women depend upon our commitment to these principles. Edward M. Kennedy, “PREPARED STATEMENT OF SENATOR EDWARD M. KENNEDY, A U.S. SENATOR FROM THE STATE OF MASSACHUSETTS”, p.5, (January 21, 1998) Liberal judicial activism peaked with Roe v. Wade, the 1973 abortion decision… Michael Kinsley, “The Right’s Kind of Activism,” Washington Post, (November 14, 2004). Although I am pro-choice, I was taught in law school, and still believe, that Roe v. Wade is a muddle of bad reasoning and an authentic example of judicial overreaching. I also believe it was a political disaster for liberals. Roe is what first politicized religious conservatives while cutting off a political process that was legalizing abortion state by state anyway. Michael Kinsley, “The Right’s Kind of Activism,” Washington Post, (November 14, 2004). In 1973, the U.S. Supreme Court first held that a right to have an abortion was protected by the U.S. Constitution, in Roe v. Wade. While the legal test articulated in Roe has since been jettisoned by the Court, its “essential holding” has been reaffirmed. That holding has been summarized as having three parts: First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each. “Abortion Overview”, Lawserver.com "The better argument for the result reached in Roe v. Wade is that it's necessary for the equality of women, rather than grounding it in the privacy right," says Edward Lazarus, a former law clerk for Blackmun and the author of "Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court." Edward Lazarus as quoted by Mears, William; Franken, Bob (January 22, 2003). "30 years after ruling, ambiguity, anxiety surround abortion debate". CNN. In Roe v. Wade much of Justice Blackmun’s judgment was devoted to the history of abortion in Anglo-American law. He concluded that a constitutional right to abortion was consistent with that history. In Webster v. Reproductive Health Services, 281 American historians signed an amicus brief which claimed that Roe was consistent with the nation’s history and traditions. This article respectfully questions Justice Blackmun’s conclusion and the historians’ claim. John Keown, “Back to the Future of Abortion Law: Roe's Rejection of America's History and Traditions”, Issues in Law and Medicine, Volume 22, Issue 1, Summer 2006, p.3 Roy Lucas, counsel for Roe, was aware of the unreliability of the historiography put forward by Means. Lucas received a memorandum from a colleague pointing out that Means’s conclusions “sometimes strain credibility.” The memo added: Where the important thing is to win the case no matter how, however, I suppose I agree with Means’s technique: begin with a scholarly attempt at historical research; if it doesn’t work, fudge it as necessary; write a piece so long that others will read only your introduction and conclusion; then keep citing it until courts begin picking it up. This perverts the guise of impartial scholarship while advancing the proper ideological goals. John A. Keown, “Abortion Distortion: A Review of Dispelling the Myths of Abortion History by Joseph W. Dellapenna”, The Journal of Law, Medicine & Ethics, Volume 35, Issue 2, Summer 2007, page 326; quotes cited to Dispelling the Myths of Abortion History by J. W. Dellapenna, Durham: Carolina Academic Press, 2006, page 684 Dellapenna also noted the radical nature of the reasoning in Roe-that a right to abortion is found in a right to privacy, which itself is nowhere mentioned in the Constitution. John A. Keown, “Abortion Distortion: A Review of Dispelling the Myths of Abortion History by Joseph W. Dellapenna”, The Journal of Law, Medicine & Ethics, Volume 35, Issue 2, Summer 2007, page 327 Against all odds (and, I'm afraid, against all logic), the basic holding of Roe v. Wade is secure in the Supreme Court. Kinsley, Michael. "Bad choice", The New Republic, (June 13, 2004) [A] freedom of choice law would guarantee abortion rights the correct way, democratically, rather than by constitutional origami. Kinsley, Michael. "Bad choice", The New Republic, (June 13, 2004) “Roe is the floor, not the ceiling,” Carmona said. “Abortion rights, reproductive justice, is absolutely a part of voting rights and justice for immigrants, and racial justice because they can’t be extracted from themselves. The most impacted communities across all those groups are communities of color.” Caroline Kitchener, Meagan Flynn, Lola Fadulu, Donovan J. Thomas and Paul Schwartzman (October 2, 2021). "Thousands gather at Women's March rallies in D.C., across U.S. to protect Roe v. Wade". The Washington Post. None of this is to say that Justice Blackmun did not delegate too much of the original design for the intellectual content for his opinions to law clerks. Notwithstanding my enormous affection and admiration for the justice, I think he did—and Garrow's discussion of how Roe v. Wade's trimester framework came into being helps illustrate the point. In my view, every justice should be deeply engaged in the original formulation of every significant doctrinal twist and turn of his or her opinions. On at least some occasions, Blackmun was not. And in this regard, a piece like Garrow's, despite its methodological failings, provides a useful counterpoint to the usual claptrap minimizing the role that clerks play in fashioning the law. Edward Lazarus, “Readers Respond: Justice Blackmun”, letter by Edward Lazarus, Legal Affairs: The Magazine at the intersection of law and life, (May/June 2005) As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe’s author like a grandfather. Edward Lazarus, “The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell’s Nomination Only Underlined Them,” FindLaw Legal Commentary, (Oct. 3, 2002) 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. Edward Lazarus, “The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell’s Nomination Only Underlined Them,” FindLaw Legal Commentary, (Oct. 3, 2002) [A]s a matter of constitutional interpretation, even most liberal jurisprudes — if you administer truth serum — will tell you it is basically indefensible. Edward Lazarus, “Liberals, Don’t Make Her an Icon”, Washington Post, (July 10, 2003). There was another factor, meanwhile, that had greatly contributed to the massive crime drop of the 1990s. It had taken shape more than twenty years earlier and concerned a young woman in Dallas named Norma McCorvey. Like the proverbial butterfly that flaps its wings on one continent and eventually causes a hurricane on another, Norma McCorvey dramatically altered the course of events without intending to. All she had wanted was an abortion. She was a poor, uneducated, unskilled, alcoholic, drug-using twenty-one-year-old woman who had already given up two children for adoption and now, in 1970, found herself pregnant again. But in Texas, as in all but a few states at that time, abortion was illegal. McCorvey’s cause came to be adopted by people far more powerful than she. Steven Levitt, Stephen Dubner, Freakanomics, Introduction: The Hidden Side of Everything, (2005) So how did Roe v. Wade help trigger, a generation later, the greatest crime drop in recorded history? As far as crime is concerned, it turns out that not all children are born equal. Not even close. Decades of studies have shown that a child born into an adverse family environment is far more likely than other children to become a criminal. And the millions of women most likely to have an abortion in the wake of Roe v. Wade-poor, unmarried, and teenage mothers for whom illegal abortions had been too expensive or too hard to get-were often models of adversity. They were the very women whose children, if born, would have been much more likely than average to become criminals. But because of Roe v. Wade, these children weren’t being born. This powerful cause would have a drastic, distant effect: years later, just as these unborn children would have entered their criminal primes, the rate of crime began to plummet. It wasn’t gun control or a strong economy or new police strategies that finally blunted the American crime wave. It was, among other factors, the reality that the pool of potential criminals had dramatically shrunk. Now, as the crime-drop experts (the former crime doomsayers) spun their theories to the media, how many times did they cite legalized abortion as a cause? Zero. Steven Levitt, Stephen Dubner, Freakanomics, Introduction: The Hidden Side of Everything, (2005) I should start by saying that this is not a statement about abortion being right or wrong, about whether Roe vs. Wade is a good decision or should be repealed. It's a statement trying to understand the incredible decline in crime that we had in the 1990s. And I don't know how much people are aware of it, but violent crime is down almost 50 percent in the United States. And so I have spent about five years looking at all the usual types of suspects of why crime might have fallen. There still is a lot left over and I puzzled over this for years until one day I stumbled on to a set of statistics about the amount of abortion that takes place in the United States. It turns out after legalization in 1973 to the present, about one in four pregnancies in the United States ends in abortion. How can that not have a big social impact? And since I've been thinking about crime, I thought, `Well, is it possible this could really be linked to crime?' And it turns out there's decades' worth of social scientific research that suggests that if a child comes into the world, he's unwanted, has a difficult home life, that child's at tremendously increased risk for criminal activity. And so the theory is really pretty simple. After legalized abortion, there were fewer unwanted children being born. There are fewer unwanted children. When they grew up to reach their peak crime ages, they just weren't there to do the crime. And so it looks like about a third of this decline in crime that we saw in the '90s I believe can be attributed to the legalization of abortion. Steven Levitt as interviewed by Ed Gordon, “'Freakonomics' Author Steven Levitt”, News & Notes, NPR, (September 13, 2005) Professor Ely's admiration for the Warren Court was not unbounded. The main strand of Warren Court liberalism was small-d democracy, Professor Tushnet said. There was another strand, of personal autonomy, which was 1960's stuff. Ely didn't agree with it. Professor Ely expressed that disagreement most memorably in a caustic critique of the reasoning in Roe v. Wade, the 1973 decision finding a right to abortion in the Constitution. Earl Warren was no longer chief justice by then, but the Roe decision was rooted in a 1965 decision of the court. What is frightening about Roe is that this super-protected right, Professor Ely wrote in the Yale Law Journal in 1973, is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure. Professor Ely had said he supported the availability of abortion as a matter of policy. But he wrote that the Roe decision was untenable as a matter of intellectually honest jurisprudence. It is not constitutional law, he said of the decision, and gives almost no sense of an obligation to try to be. Liptak, Adam. "John Hart Ely, a Constitutional Scholar, Is Dead at 64", The New York Times (October 27, 2003). In 1973 the U.S. Supreme Court made its landmark decision in Roe v. Wade which prohibited states from imposing restrictions on abortion even though the Constitution is silent on such matters. To justify their decision the Court made up a new “right” not found in the Constitution: the right to privacy. The founders of course never intended for such rights to exist s we know privacy is limited in many ways. Alex Locay (2008). “Unveiling the Left”. Xulon Press. p.187 Constitutional attorney and author of Men in Black: How the Supreme Court is Destroying America, Mark R. Levin refers to Justice Blackmuns opinion: “We need not resolve the question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in the position to speculate as to the answer.” Levin goes on to comment, “Blackmun gave deference to medicine, philosophy, and theology (from his own perspective) but not to the Constitution, the people, the states, or the other branches of the federal government. In truth, Blackmun did establish, at least for constitutional purposes, when life begins by recognizing abortion as a constitutionally protected right to privacy. He did precisely what he lectures should not be done.” Alex Locay (2008). “Unveiling the Left”. Xulon Press. p.187 Norma McCorvey was unmarried and unemployed when she became pregnant for the third time at age 22. It was 1969, and it was illegal to have an abortion in Texas, where she lived. McCorvey resorted to seeing an underground abortion doctor but walked out because of the "filth and cockroaches." Soon after, McCorvey became a national symbol for the abortion rights movement. For years she was known simply as Jane Roe, the plaintiff from one of the most famous Supreme Court cases in history: Roe v. Wade. Lozano, Alicia Victoria. "Anti-abortion rights movement paid 'Jane Roe' thousands to switch sides, documentary reveals", NBC News (May 19, 2020). McCorvey's story always included more than a few inconsistencies, according to the film. When she joined the Roe v. Wade litigation, McCorvey claimed that she had been raped and became pregnant as a result. In the 1980s, she rescinded the claim in a televised interview, saying she had never been raped. Lozano, Alicia Victoria. "Anti-abortion rights movement paid 'Jane Roe' thousands to switch sides, documentary reveals", NBC News (May 19, 2020). After McCorvey fell out of favor, she slipped into anonymity until she resurfaced in the 1990s as a devout Christian. She apologized publicly for her role in helping to bring about access to legal abortion. "I thought I was doing something right," she said during a 1996 memorial service for unborn children. "I didn't realize I would be leading innocent children to a senseless and terrible death." Lozano, Alicia Victoria. "Anti-abortion rights movement paid 'Jane Roe' thousands to switch sides, documentary reveals", NBC News (May 19, 2020).I think the general consensus in Louisiana is they want to see Roe v. Wade overturned, Mr. Connick said. Laws in Nearly All States Nearly all states have on their books at least some abortion restrictions that have been regarded as unconstitutional under the Supreme Court's 1973 decision in Roe v. Wade and subsequent rulings. In addition to Louisiana, 20 states plus the District of Columbia and Puerto Rico have never repealed pre-1973 statutes that made most abortions a crime. Had the Supreme Court overturned Roe v. Wade, it is unclear whether these laws would have automatically sprung back to life. The answer depends in part on how each state's legal system regards old laws that have long been unenforced. Rachael Pine, a lawyer with the American Civil Liberties Union's Reproductive Freedom Project in New York, said today that no other state appears to have embarked on Louisiana's course. Ms. Pine's office is monitoring state developments and preparing to offer legal assistance if necessary. Marcus, Frances Frank. "Louisiana Moves Against Abortion", The New York Times, (July 8, 1989). A leading anti-abortion voice in the Legislature, Representative Woody Jenkins, said: In the late 70's we passed an act that said if Roe v. Wade was overturned, all of our previous laws would have continued vitality. What we are doing in a friendly way is instructing D.A.'s to enforce the criminal statutes. Marcus, Frances Frank. "Louisiana Moves Against Abortion", The New York Times, (July 8, 1989). The Roe decision did not prompt "abortion on demand" as many opponents of the procedure predicted it would. Nor have various legislatures or court rulings restricted access as much as some supporters claim. New research from the Alan Guttmacher Institute found the rate of abortions is at its lowest level since Roe, about 1.31 million in the year 2000, down 4 percent from 1996. Mears, William; Franken, Bob (January 22, 2003). "30 years after ruling, ambiguity, anxiety surround abortion debate". CNN. For the justices, Roe reflected earlier cases involving the right to privacy. That "right," wrote Justice Harry Blackmun in the main opinion for the Court is "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Mears, William; Franken, Bob (January 22, 2003). "30 years after ruling, ambiguity, anxiety surround abortion debate". CNN. Since the current court overturned it in 2022, “Roe is the floor, not the ceiling” has become a rallying cry for activists who vowed to rebuild access, especially for marginalized communities, according to Pamela Merritt, executive director of Medical Students for Choice, a group that opposes viability clauses. Christine Fernando and Summer Ballentine quoting Pamela Merritt; “Why ‘viability’ is dividing the abortion rights movement”, Associated Press, (January 17, 2024) Norma McCorvey, Jane Roe of the landmark U.S. Supreme Court Roe v. Wade decision, passed away of a heart ailment at 69 years old, reports The Washington Post. She leaves behind a complicated legacy. While many women's rights advocates originally considered her a compatriot, McCorvey never intended to become a reproductive rights activist. In fact, she eventually declared herself pro-life and sought to overturn the very legislation that turned her into a feminist icon. McCorvey adopted the pseudonym of Jane Roe to protect her anonymity during the 1973 Roe v. Wade Supreme Court case whose ruling would legalize abortion and become a crucial touchstone of female reproductive rights in America. When she first filed the now infamous suit in 1970, however, McCorvey's goal was not sweeping political reform. Rather, the then 22-year-old Texan hoped only to gain the ability to legally and safely end a pregnancy she did not want. Sara Murphy, “Norma McCorvey, "Jane Roe" Of Roe V. Wade, Is Dead At 69”, yahoo!life, (February 18, 2017) “I am dedicated to spending the rest of my life undoing the law that bears my name,” McCorvey told a U.S. Senate subcommittee in 1998. “I would like nothing more than to have this law overturned.” A 2000 court affidavit underscores McCorvey's true feelings on the famous case: "They said yes, ‘You’re white. You’re young, pregnant, and you want an abortion.’ At that time, I didn’t know their full intent. Only that they wanted to make abortion legal and they thought I’d be a good plaintiff. I came for the food, and they led me to believe that they could help me get an abortion. At that time, I was a street person. I lived, worked, and panhandled out on the streets. My totally powerless circumstance made it easy for them to use me. My presence was a necessary evil. My real interests were not their concern." McCorvey petitioned the Supreme Court to overturn Roe v. Wade in 2005. Her request was denied. Sara Murphy, “Norma McCorvey, "Jane Roe" Of Roe V. Wade, Is Dead At 69”, yahoo!life, (February 18, 2017) [ Gay rights, contraceptives, certain fertility treatments and even interracial marriage ] are imperiled because they’re all rooted in that right to privacy. All of this has been implied because they’re understood to be core, basic human rights. You don’t need the state to recognize them because they are vested in you by virtue of being a human. Melissa Murray, "How dismantling Roe v Wade could imperil other ‘core, basic human rights’" (Last modified on Mon 13 Dec 2021 22.44 GMT) If Roe were reversed and all high-risk states banned abortion, 39% of the national population of women aged 15–44 would experience increases in travel distances ranging from less than 1 mile to 791 miles. If these women respond similarly to travel distances as Texas women, county-level abortion rates would fall by amounts ranging from less than 1% to more than 40%. Aggregating across all affected regions, the average resident is expected to experience a 249 mile increase in travel distance, and the abortion rate is predicted to fall by 32.8% (95% confidence interval 25.9–39.6%) in the year following a Roe reversal. Myers, Caitlin; Jones, Rachel; Upadhyay, Ushma (July 31, 2019)."Predicted changes in abortion access and incidence in a post-Roe world". Contraception. 100 (5): 367–373. In the year following a reversal, increases in travel distances are predicted to prevent 93,546–143,561 women from accessing abortion care. Myers, Caitlin; Jones, Rachel; Upadhyay, Ushma (July 31, 2019)."Predicted changes in abortion access and incidence in a post-Roe world". Contraception. 100 (5): 367–373. We can trace the emergence of healthcare refusals legislation to Congress’s passage of the Church Amendment in 1973. That legislation followed on the heels of two significant judicial decisions: the Supreme Court’s 1973 Roe v. Wade decision invalidating criminal prohibitions on abortion; and a 1972 federal district court decision enjoining a Catholic affiliated hospital, which was deemed to engage in state action because of its receipt of federal funding, from prohibiting sterilization at its facilities. The Church Amendment, which passed with near unanimous support, provided that receipt of federal funds would not provide a basis for requiring a physician or nurse “to perform or assist in the performance of any sterilization procedure or abortion if his performance or assistance in the performance of such procedure or abortion would be contrary to his religious beliefs or moral convictions.” It also provided that no “entity” could be compelled to “make its facilities available for the performance of any sterilization procedure or abortion if [such] performance . . . is prohibited by the entity on the basis of religious beliefs or moral convictions.” Douglas Nejaime & Reva Siegel, “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics”, 124 Yale Law Journal 2516 (2015), pp.2535-2537 Today, Catholics and evangelical Protestants assert shared religious beliefs in conflicts over sexual norms. This coalition did not exist at the time of Roe, for example, when evangelical Protestants had different views about abortion and were unwilling to join in political coalition with Catholics in opposing it. But the views of evangelical Protestants about abortion have changed in the intervening years, as has their willingness to assert claims of common faith with Catholics on the question. Theological differences, of course, persist. But since the era of Ronald Reagan’s election, when Republican leaders encouraged evangelical Protestants to enter politics in common cause with Catholics opposed to abortion, a conservative, cross-denominational coalition of Christians has pursued self-consciously traditional and conservative ends. Douglas Nejaime & Reva Siegel, “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics”, 124 Yale Law Journal 2516 (2015), p.2544 [A] sound foundation for final and reasonable resolution. The New York Times, (January 24, 1973) According to a news release issued by WUSA about the interview, Sarah Weddington, one of the two lawyers who took the case to the Supreme Court, said she had never touched the issue of rape and only emphasized the question of whether the Constitution gives to the state or leaves to a woman the questions of what she can or must do with her body. Kate Michelman, executive director of the National Abortion Rights Action League, said in an interview today that Ms. McCorvey's disclosure should not cloud the discussion about the right of a woman to terminate her pregnancy. If she lied, you have to remember that abortions were illegal, Ms. Michelman said, and that women were looked down upon if they were pregnant outside of marriage. It was her life circumstances that created the conditions that mitigated against her being straightforward about the fact that she was pregnant and wanted to terminate that pregnancy. After the celebrated Supreme Court decision, Ms. McCorvey at first lived in relative obscurity in Dallas, fearing that she would become a target of anti-abortion activists. Kenneth B. Noble, “Key Abortion Plaintiff Now Denies She Was Raped”, New York Times, September 9, 1987 This paper investigates the impact of the abortion law changes on family labor supply in the United States in the early 1970s. It attempts to answer the key question: do the law changes affect labor supply of fertile women and their parents who co-reside with them? Following the works of Chiappori, Fortin, and Lacroix (2002) and Oreffice (2007), I propose a collective labor supply model for households in which a fertile daughter resides with her parents. In empirical section, using data from the March Current Population Survey and Panel Study of Income Dynamics, I find a significantly positive influence of the law on fertile women's capacity to work and a negative influence on their mothers in mother-daughter family scenario. It can be explained that the availability of the birth control allows the daughters more time to work for earning and provides their mothers fewer opportunities to financially support their newborn grandchildren. The paper uses the Heckman selection bias correction technique to correct the bias due to missing data on working behaviors of the family members. The novelty of this paper includes the investigation of the effect on working behaviors of people rather than spouses in an extended family. Dung Kieu Nguyen, Fertility and Family Labor Supply: Evidence from the United States, Asia-Pacific Social Science Review, Volume 19, Number 2, 2019, p.206 Today, millions of Americans woke up fearing that their essential freedoms under the Constitution were at risk. If the Supreme Court ultimately decides to overturn the landmark case of Roe v. Wade, then it will not only reverse nearly 50 years of precedent — it will relegate the most intensely personal decision someone can make to the whims of politicians and ideologues. Barack Obama in a statement posted to Twitter "U.S. Roe v. Wade: Trump Says Leak Won't Have Big Effect on Midterms; Obama Rips Draft" (10:02 PM EDT) McCorvey’s 1995 jump from abortion rights advocate to a fierce activist against the very law her own unwanted pregnancy ushered in has long been a complicated story within the U.S. abortion debate. Porterfield, Carlie (May 19, 2020). "'Roe Vs. Wade' Plaintiff Was Paid To Switch Sides In Abortion Fight, Documentary Reveals". Forbes. Archived from the original on May 20, 2020. Retrieved May 20, 2020. In 1969, McCorvey was 22 and on her third pregnancy when she tried to get an abortion, which was illegal in Texas at the time unless it was to save the mother’s life. She was referred to Linda Coffee, a lawyer in Dallas who was looking for a case to challenge the Texas law. Coffee teamed up with former law school classmate Sara Weddington, who was known for testing anti-abortion statutes. In the three years it took for the case to go through the courts, McCorvey gave birth to a baby girl who she set up for adoption. Porterfield, Carlie (May 19, 2020). "'Roe Vs. Wade' Plaintiff Was Paid To Switch Sides In Abortion Fight, Documentary Reveals". Forbes. Archived from the original on May 20, 2020. Retrieved May 20, 2020. Norma had told the press that she was Jane Roe way back in 1973. But not until 1987-when she recanted the lie that she had been raped-did the press take much notice of her. And it was two more years before Norma was famous, lifted from the veil of a pseudonym by five weeks of press in the spring of 1989. Joshua Prager, “The Roe Family: An American Story”, W. W. Norton & Company, September 14, 2021, ch.19, page 116 In Roe v. Wade,' the Supreme Court concluded that the abortion decision of a female is protected by the penumbral right of privacy. The Court noted, however, that this right to abort is not absolute. Rather, the right to terminate one's pregnancy must be weighed against compelling state interests. Two such interests found by the Court in Roe were the protection of the pregnant woman's health and the protection of potential life. The Court in Roe considered the right of an adult female to an abortion. When the issue is the abortion decision of a minor, the courts must also c