Roe v. Wade
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 pregnant woman's liberty to choose to have an abortion without excessive government restriction.
On June 24, 2022, the Supreme Court overruled Roe in Dobbs v. Jackson Women's Health Organization on the grounds that the substantive right to abortion was not "deeply rooted in this Nation's history or tradition", nor considered a right when the Due Process Clause was ratified in 1868, and was unknown in U.S. law until Roe. This view was disputed by some legal historians and criticized by the dissenting opinion, which argued that many other rights—contraception, interracial marriage, and same-sex marriage—did not exist when the Due Process Clause was ratified in 1868, and thus were unconstitutional by the Dobbs majority's logic.
- 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 nonmootness. 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,"
"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.
- [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”
- 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]
- 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.
- 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”
- Potential future human life.
- Justice Stewart, p.170
- [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
- [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
- 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)
- It is true that in “Griswold” the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
- p. 453.
- [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.
- 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).
- 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
- 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).
- 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.
- 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 Roe v. WadeEdit
- 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.
- "The Right to Choose at 25: Looking Back and Ahead". www.aclu.org. Retrieved October 5, 2015.
- 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)
- [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)
- 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 nonphysician 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
- 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.
- 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.
- 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.’”
- [https://www.ncregister.com/blog/fact-checking-the-abortion-claims-in-dobbs-v-jackson-women-s-health-oral-arguments Fact-Checking the Abortion Claims in ‘Dobbs v. Jackson Women’s Health’ Oral Arguments by Lauretta Brown, National Catholic Register, December 3, 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.
- 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.
- 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
- 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, [page needed]
- 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 int eh 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.
- 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
- 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
- "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
- 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.
- 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)
- 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 Aboriton 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
- “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.
- 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.
- 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.
- [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
- 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)
- Cruel and harmful.
- To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way.
We at the Court are blessed to have a workforce – permanent employees and law clerks alike – intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.
I have directed the Marshal of the Court to launch an investigation into the source of the leak.
- Roberts, John (May 3, 2022). "Press Releases - pr_05-03-22 - Supreme Court of the United States". Supreme Court of the United States. Retrieved May 3, 2022.
- Importantly, public opinion also mirrors the conceptual framework used in the 1973 landmark Roe v. Wade abortion decision. Under that historic ruling, the interests of the mother are paramount in the first trimester, but the state has an interest in protecting the fetus after viability. In the words of the decision: "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 necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."
The wording of Roe v. Wade aligns almost perfectly with where Americans stand on late-term abortions -- keep them legal to save the life of the mother and in cases of rape and incest, but not for other reasons. Where Americans seem to depart from the decision is in supporting certain restrictions on first-term abortions, particularly those performed because of Down syndrome or solely at the woman's discretion.
Roe v. Wade took the power of outlawing abortion out of states' hands, making it legal throughout the country. But its invitation to regulate abortion in ways focused on the health of the mother, as well as to protect the "potentiality of human life" after viability, has enabled states to pass numerous laws limiting how and when abortion can be legally performed. Many of these restrictions are likely consistent with Americans' sensitivities to abortion, but that alignment could change.
- Lydia Saad, "Trimesters Still Key to U.S. Abortion Views". Gallup, (June 13, 2018).
- The title of Worst Joke in Legal History belongs to one of history's highest-profile cases. Defending Texas's abortion restrictions before the Supreme Court, attorney Mr. Jay Floyd decided to open oral argument with a sexist joke. Arguing against two female attorneys, Floyd begins: “It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.” The joke is demeaning and (as Floyd himself admits) unoriginal, but it also lacks the saving grace of at least being funny. A recording of the oral argument, which can be listened to here, demonstrates just how badly the joke bombed with the Supreme Court. Painful silence endures for just over three seconds. Not captured on the recording are the physical reactions of the justices. According to the later recollection of one of the “beautiful ladies” arguing against Floyd, Chief Justice Warren Burger was so furious that he almost rushed down “right off the bench at him. He glared him down.”
Dr. Ryan Malphurs, a scholar of Supreme Court humor (yes, there is such a thing), describes how “Floyd struggled to gain momentum through the rest of his argument.” A flustered Floyd responds to Justice Thurgood Marshall’s questioning with the stunning admission that these are “unanswerable questions,” a response that earns derisive laughter. (Thurgood Marshall replies, “I appreciate it.”) Floyd apologizes for his “artless statement,” which garners even more laughter. The man who had attempted to begin with a joke ends as the object of comedy. When the Supreme Court requested re-argument on Roe v. Wade eleven months later, Floyd was gone.
Floyd’s disastrous “beautiful ladies get the last word” is the greatest failed joke in U.S. legal history, and some claim it is the worst joke of all time, in any setting. It occurred on the highest possible stage, in a high-profile case, while also (here’s the spoiled icing on the collapsed cake) managing to be a sexist joke during a landmark women’s rights case.
But did the failed Roe v. Wade joke actually affect the Court’s eventual 7-2 ruling? This seems highly unlikely. The only justice who conceivably could have been affected by Floyd’s argument was Chief Justice Burger. Burger was a conservative who later voted to restrict abortions – and yet he voted with the Roe v. Wade majority. So was Burger swayed to vote for abortion rights based on Floyd’s calamitous oral argument? Probably not – most scholars have explained Burger’s vote in Roe as a simple strategic move. (So long as he voted with the majority, Burger, as Chief Justice, could control who wrote the majority opinion in Roe, and thus partially control what that opinion said.)
- Sant, Geoffrey. "8 horrible courtroom jokes and their ensuing legal calamities", Salon.com, (July 27, 2013)
- Protecting access to the full range of reproductive health care, including abortion, is a critical business issue. Efforts to further restrict or criminalize that access would have far-reaching consequences for the American workforce, the U.S. economy and our nation’s pursuit of gender and racial equity.
- Levi Strauss & Co Levi’s Argues for Abortion Rights; Crowds Gather: Protest Update (May 3, 2022, 2:47 PM PDTUpdated on May 3, 2022, 6:20 PM PDT)
- The argument of this chapter is that there is a fundamental difference between what the U.S. Supreme Court did in its 1973 Roe v. Wade decision and what the Supreme Court of Canada subsequently did in its 1988 ruling in Morgentaler v. The Queen. In the United States the high court created a constitutional right to an abortion, thus barring any governmental regulation unless it could withstand the highest judicial standard of strict scrutiny (and few could), whereas in Canada the high court declared the existing statute unworkable and, furthermore, invited Parliament to rework that legislation. To say that today both countries have legalized abortion as an elective procedure is to miss the point. In the United states elective abortions during the first trimester have been constitutionalized as a right; in Canada elective abortions are legal only because Parliament thus far has refused to act. If Congress wanted to overturn Roe v. Wade, it would have to garner two-thirds votes in the House and Senate and then obtain the approval of three-fourths of the states for a constitutional amendment. Parliament, to reverse the effect of Morgentaler v. The Queen (1988), would need only to enact new legislation (which presumably also would be challenged in court). In other words, the legal status quo in Canada is the result of legisilative default-the failure of Parliament to act in the affirmative.
- Raymond Tatalovich, “The Politics of Abortion in the United States and Canada: A Comparative Study”, New York: Routledge, 1997, p.52
- What led the Supreme Court in 1973 to legalize abortion during the first trimester of a pregnancy was the privacy doctrine articulated in Griswold v. Connecticut (1965) and its extension via the equal-protection clause in Eisenstadt v. Baird (1972). Griswold v. Connecticut (1965) was a birth control case in which contraceptive use was declared to be a privacy right inferred from various provisions of the Bill of Rights and the language of the Ninth Amendment, which reads: “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Neither privacy nor abortion is mentioned anywhere in the constitution or the Bill of Rights, so Justice Douglas in Griswold v. Connecticut (1965) resorted to finding “penumbras” and “emanations” from the First, Third, Fourth, Fifth, and Ninth Amendments. As he declared:
[Prior] cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations form those guarantees that help give them life and substance. . . . various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
- Raymond Tatalovich, “The Politics of Abortion in the United States and Canada: A Comparative Study”, New York: Routledge, 1997, p.52-53
- And in Roe v. Wade and Doe v. Bolton, when the Court had its most dramatic opportunity to express its supposed aversion to substantive due process, it carried that doctrine to lengths few observers had expected, imposing limits on permissible abortion legislation so severe that no abortion law in the United States remained valid.
- Laurence Tribe, “ABORTION-PART 3 HEARING BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS OF THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE NINETY-THIRD CONGRESS SECOND SESSION ON S.J. Res. 119 PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES FOR THE PROTECTION OF UNBORN CHILDREN AND OTHER PERSONS AND S.J. Res. 130 PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATE GUARANTEEING THE RIGHT TO LIFE TO THE UNBORN, THE ILL, THE AGED, OR THE INCAPACITATED Part 3”, United States. Congress. Senate. Committee on the Judiciary. Subcommittee on Constitutional Amendments, (1975)
- In discussing early American law pertaining to abortion, the Supreme Court stated that “most of [the] initial statutes dealt severely with abortion after quickening but were lenient with it before quickening.” The Court also emphasized the fact that the Connecticut Legislature did not amend its 1821 antiabortion statute to proscribe pre-quickening abortions until 1860. These statements are quite misleading. At the end of 1868, twenty-seven of the thirty states with antiabortion statutes prohibited attempts to induce abortion “before” quickening.
- James S. Witherspoon, Reexamining Roe: Nineteenth-Century Abortion Statutes and the Fourteenth Amendment", St. Mary's Law Journal, Volume 29, 1985, Part III. Nineteenth-Century Criminal Abortion Statutes, Section B. The Prohibition of Pre-Quickening Attempts and the Elimination of the Quickening Distinction, pp.34-35
- In short, the Supreme Court’s analysis in Roe v. Wade of the development, purposes, and the understandings underlying the nineteenth century antiabortion statutes, was fundamentally erroneous. That analysis can provide no support whatsoever for the Court’s conclusions that the unborn children are not “persons” within the meaning of the fourteenth amendment, and that states do not otherwise have a “compelling interest” in protecting their lives by prohibiting abortion. A correct analysis of these statutes weighs entirely and heavily against these conclusions, to the extent that these conclusions depend on the purposes and understandings of the legislatures which proposed, ratified, and legislated in purported compliance with the fourteenth amendment. If the Supreme Court is to be faithful to the purposes and understandings of those who enacted and have implemented the fourteenth amendment, it must reevaluate and overrule its decision in “Roe”.
- James S. Witherspoon, "Reexamining Roe: Nineteenth-Century Abortion Statutes and the Fourteenth Amendment", St. Mary's Law Journal, Volume 29, 1985, Part III. Nineteenth-Century Criminal Abortion Statutes, Section B. The Prohibition of Pre-Quickening Attempts and the Elimination of the Quickening Distinction, pp.70-71
- In the view of influential feminist legal scholars, Roe v. Wade weakened the ability of both movements to campaign effectively for the rights of the poor and women of color for whom Jackson spoke. Scholars and advocates such as Catherine MacKinnon, Rhonda Copelon, and Martha Minow have suggested that Roe’s privacy framework paved the way for laws and judicial decisions denying access to public facilities or funding for abortions, constraining “the emerging jurisprudence of privacy within a framework that produced inequalities.” Viewed in this way, Roe is supposed to have “undercut . . . arguments . . . for the rights of caretakers” and served “to siphon off deeper challenges to our scientistic, capitalist society.”
- Mary Ziegler, “After Roe: The Lost History of the Abortion Debate”, Cambridge, Massachusetts: Harvard University Press, 2015, pp.95-96
“Jane Roe Gone Rogue: Norma McCorvey's Transformation as a Symbol of the U.S. Abortion Debate” (May 2018)Edit
“Jane Roe Gone Rogue: Norma McCorvey's Transformation as a Symbol of the U.S. Abortion Debate” by Christianna K. Barnard, MA thesis, Sarah Lawrence College, May 2018
- McCorvey’s ideological conversion is all the more fascinating as it was not an isolated incident. Roe v. Wade was tried in the Supreme Court alongside another case, Doe v. Bolton, the product of lawyer Margie Pitts Hames’s crusade against what she referred to as Georgia’s “cumbersome, costly, and time consuming” abortion restrictions.1 Like Roe v. Wade, Hames and the legal team behind Doe v. Bolton protected their pregnant plaintiff by assigning her a pseudonym: “Mary Doe.” “Mary Doe,” whose real name was Sandra Cano (then Sandra Bensing, later also referred to as Sandra Bensing-Cano), was, like McCorvey, a white woman living in poverty. Estranged from her abusive husband, she had already given birth to two children whom she lost custody of when they were toddlers. Neither Cano nor McCorvey ever testified or appeared in court, but their affidavits were central documents in their respective cases. In 1989, eight years before McCorvey’s conversion, Cano became an activist with Operation Rescue. Additionally, she claimed that she never wanted an abortion, but rather, had been duped by Hames and forced to sign the affidavit without understanding its significance.
While both women became icons of the pro-life movement, there is another key divide between them. As Roe became synonymous with legalized abortion, McCorvey’s story would become a matter of public fascination for decades, while Cano’s life would be nearly forgotten. Both contributed to public discourse on abortion, but where McCorvey’s appearances and actions have left behind a rich archive, Cano has left mere breadcrumbs. Regardless, both have largely gone ignored by feminist scholars and historians, turned into footnotes in a history that could not have happened without them.
- McCorvey’s conversion invited sensationalization. Operation Rescue asked a local TV news crew to broadcast the event, and the story was picked up by media outlets across the country. A few days later, McCorvey was interviewed by Ted Koppel on Nightline in an extended segment on what her conversion meant for the abortion debate. During the interview, she asserted that, despite her conversion, she still supported abortions in the first trimester. Following her conversion and later adoption of a pro-life stance, many within the mainstream pro-choice movement found it best to simply dismiss her, including her former lawyer Sarah Weddington, who claimed that “all Jane Roe ever did was sign a one-page legal affidavit.”
- This flattening of the complexities of McCorvey’s conversion and role in Roe was hardly an unusual situation for the former plaintiff. Throughout Norma McCorvey’s life as a public figure, she was considered unreliable, leading many acquaintances and journalists to depict her as a caricature of herself. In 1992, while she was working as a pro-choice activist with the Jane Roe Foundation, a colleague referred to her as “the ultimate victim.” Marsha King, another intended Roe plaintiff who was found to lack the legal ground to sue the state of Texas when the case was brought to the Supreme Court, called her “a lost little soul.” Her longtime partner Connie Gonzales, whom McCorvey eventually abandoned after Gonzales suffered a stroke, described her as “a phony.”
- Considering the symbolic role that both McCorvey and the Roe case have played in the abortion debate, the scant historical writing on McCorvey in histories of Roe and the subsequent escalation of the abortion debate is surprising. While her central role has not been forgotten, it has not been the subject of intensive historical inquiry in the four decades since Roe was decided. McCorvey (as Jane Roe) makes an early appearance in James C. Mohr’s Abortion in America: The Origins and Evolution of National Policy, 1800-1900 (1978). This legal history tracks the evolution of abortion as a tacitly accepted practice at the turn of the nineteenth century to a staunchly forbidden one in the early 1900s. Mohr uses the recent Roe decision as the centerpiece of the afterword in the text, examining the ways in which the decision undid much of the legal reasoning which he charts in the text which precedes this section. Mohr mentions Jane Roe fleetingly, a decision which is justified by his assertion that “the basic outlines of the Roe case are well-known.” The information he does provide—that the plaintiff was an unwed mother in Texas who sued the Dallas District Attorney in 1970—is accurate but reflective of the minimal information known about McCorvey in the public sphere at this time.
- David J. Garrow’s landmark text, Liberty and Sexuality: the Right to Privacy and the Making of Roe v. Wade (1994) expands upon the work that Mohr began at the end of his text. In this lengthy volume, Garrow constructs a legal history of Roe v. Wade, pinpointing its roots within the broader context of reproductive rights-related legislation and the rise of the “right to privacy.” He traces the issue of legalized abortion from the 1930s through 1990s, meticulously outlining the legal decisions, players, and events that paved the way for the Roe decision and its aftermath.
The care that Garrow demonstrates for Roe’s legal forbearers, however, is not always extended to the case’s plaintiff. Norma McCorvey’s role is included in the historical narrative; however, she is treated with a sense of disinterest at best and disdain at worst. In his first mention of McCorvey, a summary of her 1969 meeting with Linda Coffee’s friend Henry McCluskey, Garrow immediately highlights her youth and physical appearance, calling her a “tiny twenty- two year old.” Later, he notes Coffee’s surprise at “how small— and how visibly pregnant” McCorvey looked during their initial meeting. His depiction of McCorvey erases much of the emotional turmoil she experienced in her earlier pregnancies. He makes only a fleeting mention of the McCorvey’s mother’s custody of her first child, Melissa, and claims that she “happily” gave up her second child for adoption.
Garrow was not oblivious to the strained relationship between McCorvey and her lawyers, as he remarks that Sarah Weddington later grew “highly dismissive” of McCorvey’s involvement in the case. Nevertheless, he uses the voices of those around McCorvey, such as Marsha King, another of the case’s plaintiffs, to diminish her in turn. In his last mention of McCorvey in the text, he quotes King, who remarks that “it made me sad to think of her.” This infantilizing attitude towards McCorvey remains constant in subsequent editions of the text, including the third edition (2015), in which Garrow dedicates a mere paragraph to McCorvey’s conversion, calling it “a publicity boost” for the pro-life movement and attributing McCorvey’s motivations to a vendetta against Sarah Weddington and a desire for attention and affection.
- Shortly after McCorvey’s first conversion, James C. Mohr reentered the conversation to grapple with the impact of both McCorvey’s memoir, I am Roe, and Garrow’s Liberty and Sexuality on the historical discourse on Roe. In his 1996 literature review in the Journal of Women’s History entitled “Sexuality, Reproduction, Contraception, and Abortion: A Review of Recent Literature” he speaks positively of McCorvey’s contributions in I am Roe, calling her recollections in the book “wonderful.” He is clearly less impressed by Garrow’s Liberty and Sexuality, noting that the text is “excessively personalistic, sometimes gossipy.” Mohr states that Garrow’s text, which is governed by the idea that the legalization of abortion was determined by “elite progressive legalists” operating “primarily behind the scenes and in courtrooms,” is “a dangerous model.” Such a telling, Mohr argues, reduces massive social shifts to the acts of a few, brave, “lionized” individuals.
Mohr builds upon this argument in his comparison of McCorvey and Garrow’s texts. He notes that, in McCorvey’s telling, the lawyers are depicted as “manipulative,” unlike the “daring champions of virtue” that Garrow celebrates. Mohr is not oblivious of McCorvey and Meisler’s tendency to counteract the elitism in academic writings on Roe by playing up “the literary affectation of love and stability among... supposed deviants,” particularly in McCorvey’s recounting of her time in juvenile carceral facilities. Nevertheless, Mohr emphasizes the importance of McCorvey’s contribution to the historical record, “especially in view of McCorvey's post-publication shift toward the right-to-life cause.” This statement stands out as Mohr amplifies his support for McCorvey’s voice and perspective not despite, but in light of, her conversion and change in ideology.
- Two works published in 2015, Joanna Schoen’s Abortion after Roe (2015) and Mary Ziegler’s After Roe: The Lost History of the Abortion Debate introduce new directions in scholarship on Roe’s effects on abortion law and practice. Both texts, however, contribute to the erasure of McCorvey from the history of legalized abortion through either misinformation or by omitting her entirely. Schoen’s Abortion after Roe is a feminist medical history that examines the effects of Roe v. Wade on abortion providers and women seeking abortion from the 1970s through the early 2000s. Schoen draws on extensive interviews with abortion providers, whom she sought out through the National Abortion Federation (a professional organization for abortion clinic employees). She is attentive to the backlash to Roe throughout, which is evident through her incisive analysis of pro-life rhetoric.
- While many of these texts mention McCorvey fleetingly, no expansive historical text—or for that matter, more than a handful of paragraphs in a historical monograph— has been written thus far on the subject of McCorvey’s life before, during, or after the Roe decision. Relegated to the margins of an issue in which she performed perhaps a symbolic, but nonetheless a crucial role, McCorvey has been denied the sort of scholarly analysis which could complicate the caricature into which she was reduced throughout her life.
- In their personal recounting of Roe v. Wade, Sarah Weddington, Linda Coffee, and Norma McCorvey pinpointed the advent of the case at different points in time. For Weddington, Roe began “at a yard sale, amid paltry castoffs”—a benefit for the abortion referral service she provided legal aid for in Austin. Coffee’s earliest involvement was trickier to pin down, as she officially joined the case at Weddington’s request, but warmed to the idea of fighting Texas’s anti-abortion law while researching an earlier case. McCorvey’s version of the story was reflective of her unique role in the case. As noted before, it began with the discovery of her third pregnancy while working at a carnival. Journalists and scholars who have sought to reconstruct Roe’s earliest moments have had to find a middle ground between these three women’s testimonies, crafting a backstory primarily from memory and oral history.
Most writers have reached a consensus, using the first meeting between Coffee, Weddington and McCorvey at Colombo’s Pizza at the end of 1969 or early 1970 (sources diverge on this particular point) as the de facto start of the case. Finding a middle ground between the women’s testimonies, however, has not automatically translated into a fair presentation of the women themselves. For example, journalist Marian Faux’s version of the story in her 1988 book Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision That Made Abortion Legal is rife with contradictions. While Faux attempted to construct a great woman narrative of the case, she simultaneously defeated her own goal by filling in the gaps in the visual record with subtly misogynistic language.
- Ch.1, p.12
- As each woman arrives, the reader is granted a detailed description of her physical appearance. Faux excuses away the shabby appearances of the first two arrivals, informing the reader that “none of the three women coming to this dinner meeting had much money.” Linda Coffee, we learn immediately, cares more for her work than her looks. The “diffident” lawyer attempts to convey professionalism through her attire, but more often tends towards a “disheveled appearance.” The pregnant Norma McCorvey, by contrast to Coffee, gives away her working-class background and naiveté through her choice of denim pants and a casual top.
- Having both arrived early, the odd pair make a feeble attempt at chit-chatting with one another, an effort that is complicated by Coffee’s shyness and McCorvey’s lack of “social graces.” The appearance of Sarah Weddington, a “tall, heavy-set woman,” who, despite her large frame, “moved with unusual grace,” saves the two from continued awkwardness. Over pizza and beer, the three women discuss a topic that one can only assume was hardly the usual subject of conversation at the “unpretentious” Colombo’s: challenging Texas’s restrictive anti-abortion law.
In the ebb and flow of conversation, both the lawyers’ quest to abolish this law and McCorvey’s own pregnancy are discussed. As McCorvey tells the lawyers about the latter, her story takes a horrific turn. She recalls a harrowing tale of being raped by a man while she was working at a traveling carnival, and consequently becoming pregnant. While the lawyers had concerns about the validity of McCorvey’s tale, as she struggled to consistently relay the details of the alleged assault, they agreed after the meeting to overlook their qualms about her reliability. McCorvey had something the two women desperately needed: a pregnancy which she had no desire to keep.
- Although it is tinged with sexist language, Marian Faux’s rendition of Roe v. Wade’s origin story is a compelling one. There is a wholesome Americanness to the shared financial hardship of the three women, and an inspirational tenor to this story of three women who will go on to fight Texas’s anti-abortion law despite the restrictions placed upon them by their gendered social mores of their community, not to mention to the sensational appeal of capturing the “untold story” of this controversial case. It is no wonder the Colombo’s story has been told by historians, journalists, and its key players alike. In addition to taking in all three women’s roles, it can easily suit a number of ideologically incompatible narratives. Faux’s telling, however, obscures many of the underlying conflicts that would later escalate into an unbridgeable divide between McCorvey and Weddington (as well as between herself and the leadership of the pro-choice movement as a whole) in the four decades following Roe.
By likening the socioeconomic standing of McCorvey with that of Coffee and Weddington, Faux ignores the fact that McCorvey’s class status was undeniably lower than that of her lawyers, a reality that would continue to reassert itself through a number of unexpected outcomes during and after Roe was tried. McCorvey’s poverty was not a fluke: it was a prerequisite for her to become the plaintiff in Roe. While her class and whiteness was crucial in Weddington and Coffee’s decision to have her become the Roe plaintiff, these identities, as well as other aspects of McCorvey’s past and personality, caused tension within the pro-choice movement as the abortion issue became increasingly politicized by pro-life activists following the 1973 Supreme Court ruling.
- At this point, Weddington had never tried a contested case in court, and the preparatory work alone was a daunting enough prospect for a young lawyer. Impressed by both Linda Coffee’s work as a law student and her subsequent experience with federal cases while she was clerking for Judge Sarah Hughes, Weddington knew that Coffee would be an ideal partner in this endeavor. Buoyed by the excitement of aiding McCluskey in the partially-successful Buchanan, Coffee was eager to lend her expertise. As the two women strategized, they faced a troubling dilemma: they did not have a plaintiff. In order to ensure the continued secrecy of the abortion referral service, Coffee cautioned against using the service’s volunteers as plaintiffs. Thankfully, the two found a married couple, Marsha and David King, who were eager to sign on as plaintiffs early in the process.
Marsha, a Dallas-area feminist with a PhD in English approached the lawyers after hearing Coffee give a lecture on the intended lawsuit. Due to a neurological condition, she could not safely carry a pregnancy to term, nor could she use hormonal birth control pills. As the Supreme Court had recently ruled in Griswold v. Connecticut that married couples had a constitutional right to privacy, the Kings presented one viable angle through which to challenge Texas’s abortion law. Nevertheless, the lawyers knew that in order to most effectively counter the constitutionality of the statute, they would need a pregnant woman who was willing to take on the task of being a plaintiff. While the Austin abortion referral service offered a number of promising leads, none of these women elected to join the lawsuit as they had the financial means through which to acquire a safe, but illegal, abortion.
Meanwhile in Dallas, Norma McCorvey was not so lucky. For her, the meeting at Colombo’s was not one step in a long process of legal strategizing, it was a desperate attempt to finally obtain a procedure that would free her from the physical and emotional turmoil of giving birth to a third child that she could not raise herself. Because of this major discrepancy, it is here that, in their respective memoirs, A Questions of Choice (1992) and I am Roe (1994) Weddington and McCorvey’s stories begin to diverge. Notably, both texts were published in the early-1990s, over two decades after the initial federal district court Roe trial. Nevertheless, the two women’s ideological approaches to their involvement in the case are as blatant as the chasm between the worlds they inhabited.
- In McCorvey’s version of her meeting with both Coffee and Weddington at Colombo’s, she recalls a number of details that contradict or add additional dimensions to Faux’s heroic account, primarily with regard to her sexuality and class identity. Her recollection of the two lawyer’s outfits amplifies the class difference between herself and the two women. Coffee and Weddington both wore “two-piece business suits” while McCorvey wore jeans, a “button-down shirt tied at the waist,” and “a bandanna [sic] tied around my left leg, above the knee” to indicate that she “didn’t have a girlfriend.” McCorvey’s casual use of a variation on the hanky code, a system for signifying sexual availability that flourished in the gay community during the 1970s, was only one of the ways in which she expressed her non-normative sexuality to the lawyers. When asked about her own life, she opened up to them about her lesbian relationships and past marriage to the abusive Woody McCorvey. In McCorvey’s telling, she only claimed that she had been raped upon sensing the lawyer’s discomfort with her sexual history. Desperate to regain their good faith, she used this story as an attempt to save face and depict herself as the sort of woman who was deserving of an abortion.
- In Sarah Weddington’s version, the beginning of the conversation between the three women is the same—a discussion of the intended lawsuit— but this point is one of the few areas in which her and McCorvey’s story overlap. Throughout the text, she refers to McCorvey as “Jane Roe,” and only relays that information which had already been made public by McCorvey at the time of the book’s publication (in keeping with lawyer-client confidentiality). It is clear that the autobiography was published shortly after McCorvey publicly retracted her claim of being raped, as Weddington dedicated a paragraph to explaining in detail that McCorvey’s rape claim was never used by the lawyers in their case, reiterating again a few pages later that, in the affidavit McCorvey signed, “there was no mention of how she got pregnant.” While McCorvey was openly identified as a lesbian at this time, Weddington makes no note of her sexuality. The rape claim here is depicted as more of tactical move on McCorvey’s part, as she ponders aloud to her lawyers whether or not being raped would increase the chances of her receiving a legal abortion.
Overall, Weddington’s version of the story is crisp and generally unemotional. Though she claimed that McCorvey’s “hard-luck stories touched a sympathetic cord,” her understanding of McCorvey's involvement in the case is framed around the low-level of commitment that would be expected of her. Weddington stated that being the plaintiff required “a minimal amount of time.... she never had to answer written or oral questions for the opposition lawyers. She did not attend any of the court hearings. Second, no money. Linda and I were donating our time, and we were covering the expenses.” Weddington does not seem to fathom the very real burden that McCorvey would have to bear if she became their plaintiff: a child.
McCorvey tried her best to avoid this aspect of being the Roe plaintiff. According to her memoir, she asked the lawyers point blank whether or not they knew of a place where she could receive an abortion during their meeting at Colombo’s. Weddington claimed that she did not know, a statement that smarted years later when Weddington revealed that she had had an illegal abortion before even conceiving of the Roe case (not to mention her close relationship with the Austin abortion referral project). While Faux went to great lengths to assure the reader that McCorvey was fully informed of the unlikelihood that she would receive an abortion due to taking on the role of plaintiff in the case, neither Weddington nor McCorvey’s memoirs corroborated this assertion. In Garrow’s account of the case in Liberty and Sexuality, which like Faux’s was based on extensive interviews with Coffee and Weddington, he notes that the two lawyers were “privately thankful” that McCorvey had no choice other than to complete her pregnancy.
- In an insightful study of the two memoirs, legal scholar Kevin McMunigal argues that Weddington did not adequately inform McCorvey that her chances of receiving an abortion as the Roe plaintiff were slim, thereby allowing the vulnerable McCorvey to believe that being the plaintiff in the case was her most likely ticket to a legal abortion. Doing so, McMunigal states, was a questionable ethical decision on Weddington’s part, as she treated McCorvey as a stand-in for pregnant women as a whole, not as a client with needs and interests of her own. Ultimately, McMunigal maintains that McCorvey should have been treated with comparable ethical standards as patients seeking out medical care or participating in medical research, namely, being provided with comprehensible information about the various strategies open to her from which she would then be able to choose.
- From McCorvey’s perspective, becoming the case’s plaintiff seemed like the best possible choice. After a few weeks of wondering what Coffee and Weddington would decide, the lawyers called McCorvey in to Coffee’s office to ask her to officially become “Jane Roe.” Following this meeting, McCorvey had little contact with the lawyers. Occasionally, she would peak with Henry McCluskey, who “got an earful” when he would try to discuss the possibility of helping McCorvey with adoption arrangements. She waited, fluctuating between boundless optimism and sinking depression. As she recalled in I am Roe: “When I was up, I was way up—I was the smartest thing on two legs... I'd gotten myself a pair of wonderful smart young lawyers, and I was going to win my case and be the first girl in Texas to get a legal abortion. But that great feeling didn't last long.” To assuage the anxiety she felt at the progression of her pregnancy, she escaped to Oaklawn, a Dallas hippie enclave, for weeks at a time. Here, no one pressed her for details of her pregnancy. In her words, “If I smoked enough dope and drank enough wine, it was possible to not think about being pregnant, which was good.” Escapism and addiction proved to be a viable refuge as the possibility of legal remedy came to seem more fantastical by the day.
From the perspective of McCorvey’s lawyers, she had disappeared. In A Question of Choice, Sarah Weddington attributes the challenge of finding her to her “financial difficulties,” which led her to move frequently. By McCorvey’s own admission, she had been in Oaklawn living “in a crash pad with a bunch of friendly people” while the lawyers prepared Roe for its initial trial. The two women disagree on how McCorvey resurfaced—McCorvey claimed she called McCluskey, whereas Weddington remembered that “Mary Doe” (Marsha King) tracked her down. Regardless, she reconnected with the lawyers in time to sign the Roe affidavit before the case went to trial on May 22, 1970.
- In Faux’s opinion, the Roe affidavit stands as “one of the few definitive biographical statements about Norma McCorvey” as McCorvey was prone to telling reporters “different versions of her life.” The document is sparse in detail, written in clear but eloquent language. It conveys the facts of McCorvey’s situation, for example, that she was “an unmarried woman” and that “the inability to obtain an abortion... caused [her] to suffer emotional trauma.” Notably, the affidavit was primarily the work of Linda Coffee. As such, it raises inevitable questions about Faux’s use of the word “definitive,” particularly in light of the colorful, multifaceted versions of herself that McCorvey would later choose to reveal to the public eye. Who was considered an expert on McCorvey, and by extension, Roe v. Wade, would later become as integral a theme in McCorvey’s life as the case itself.
- As McCorvey was visibly pregnant at the time of the first trial, she and her lawyers agreed that it would be best if she were not to appear in court at all. McCorvey recalled that she waited “as Linda and Sarah made history in [her] name.” According to I am Roe, when the judges announced their decision on June 17, 1970, McCorvey was initially elated to learn that she had won the case. This joy immediately gave way to anguish as Linda Coffee delivered the horrible news: the state had issued an injunction, proclaiming its intent to continue upholding Texas’s anti-abortion statute. Regardless, McCorvey was already well into her third trimester of pregnancy, and therefore, both medically and legally unable to get an abortion.
Joshua Prager’s 2013 account in Vanity Fair rebuts this claim, stating that McCorvey gave birth before finding out the first Roe decision. Whatever the facts of the situation are, it is clear that the lawyers were unconcerned by the fact that McCorvey had to give birth despite her role as their plaintiff. This moment merits a single sentence in Weddington’s memoir: “But it was too late for Jane Roe; she gave birth early in the summer and placed the baby for adoption through Henry McCluskey.”
In McCorvey’s version, this news sets off a chain-reaction of events that would fundamentally alter the course of her life. There is a heavy-handedness to how McCorvey manages the initial shock of learning that she would have to give birth once again, as she realizes that “this moment was not really for me. It was about me, and maybe all the women who'd come before me, but it was really for all the women who were coming after me.” Published in 1994 and targeted towards a liberal-leaning audience, it is unsurprising that this caveat appears in the text. Nevertheless, it is followed by an unadulterated outpouring of emotion, as McCorvey later explodes: “I was nothing to Sarah and Linda, nothing more than just a name on a piece of paper. And without them, without their damn legal abortion, my soul was trapped and my body was in jail. I was hopeless. Worthless.” Whether this memory is recalled accurately or misremembered, this sense of betrayal would echo throughout McCorvey’s subsequent activism for the rest of her life.
"Subverted: How I Helped the Sexual Revolution Hijack the Women's Movement" (2015)Edit
Browder, Sue Ellen (2015). "Subverted: How I Helped the Sexual Revolution Hijack the Women's Movement". ‘’Ignatius Press’’. ISBN 978-1586177966. Retrieved August 24, 2018. george frampton jr.
- Although Harry claimed to be unsure of his wife’s position on abortion, Dottie told one of his law clerks (a young male attorney who favored laissez-faire abortion) that she was doing everything she could to further the cause. “You and I are working on the same thing,” she told the law clerk. “Me at home and you at work.”
To write his opinions, Harry retired to the Justices’ second-floor library, where he spent most of his waking hours in silent solitude, laboriously working at a long mahogany desk. Months passed, As the winter snows melted into spring and D.C.’s cherry blossoms burst into bloom. Harry remained squirreled away in the library.
When at last in mid-May Harry showed a draft of his Roe opinion for the first time to one of his politically leftist law clerks, the clerk claimed to be “astonished” the draft was so crudely written and poorly organized. When he circulated the draft on May18, 1972, to the other justices, Harry’s more liberal colleagues on the bench-Justices William Douglas, William Brennan, and Thurgood Marshall-were disappointed, whereas conservative Justice Byron White strongly dissented.
Why were Douglas and Marshall so disappointed? Catholic feminist Mary Meehan suggests one possible reason. Meehan reports, “Justices Douglas and Marshall had been lacking in sexual restraint-to put it mildly-well before the ‘60s, and the problems of both were aggravated at times by heavy drinking. Perhaps they realized that legal abortion could be extremely helpful to men-enabling them to escape paternity suits, years of child support, social embarrassment, and the wrath of betrayed wives. But none of this, of course, would be mentioned in the Court’s opinions.” Meehan reports that in 1961 Justice Douglas had also written to Population Bomb pamphleteer Hugh Moore, saying, “I have seen some of the literature… all of which I thought was excellent.”
In any case, when harry failed to produce a competent pro-abortion draft of his opinions, he got flak from his colleagues.
Having vowed to do his best “to arrive at something which would command a court,” Harry withdrew the draft, asking that all copies be returned to him. He planned to do more work on his opinions over the summer.
In late July 1972, Harry flew to Rochester to immerse himself in research at the Mayo Clinic medical library. Meanwhile, his politically liberal, $15,000-a-year law clerk George Frampton Jr., age twenty-eight, volunteered to stay in Washington until early August to help research and draft the opinions. The two talked by phone almost daily.
- An early draft Henry wrote on the history of abortion in his small, cramped longhand reveals he was still struggling. Writing is difficult, and Harry wasn’t much of a writer. On the subject of abortion, Harry was finding it hard to think clearly.
Youn George, on the other hand, was an excellent writer. He’s graduated from Harvard Law School in 1969 (where he was managing editor of the Harvard Law Review), and he had at his fingertips an extraordinarily handy resource-a high persuasive book entitled “Abortion: The first authoritative and documented report on the laws and practices governing abortion in the U.S. and around the world, and how-for the sake of women everywhere-they can and must be reformed..”Yes, indeed. It was Larry Lader’s masterpiece of propaganda, the same book that had so greatly impressed Betty Friedan.
Lader’s masterpiece of propaganda supplied much of the historic background Blackmun’s opinion had previously lacked. But more important Lader’s book provided a coherent form or template that tied together the man y disconnected fragments of thought that had previously kept Blackmun’s abortion opinions from working. In all-new sections on the history of abortion written by George and dated August 10, 1972, Lader’s book suddenly appears I the footnotes for the first time.
- In a lengthy five-page, single-spaced letter, typed on legal-size paper, which he sent to Harry along with the draft, George made an unusual suggestion. He suggested that Harry consider circulating this new draft before it was cite-checked by a clerk. Cite-checking it detailed fact-checking to ensure that a judicial decision is sound. Why would a junior law clerk suggest circulating a draft that hadn’t been cite-checked?
George was eager for Harry to circulate his draft before oral arguments were reheard in October-for three reasons: He wrote that circulating the revised draft before oral argument would “nail down [Blackmun’s] keeping the assignment,” “should influence questions and thinking at oral argument,” and “might well influence voting.” Though George stated he would not recommend delayed cite-checking “as standard operating procedure,” he thought that in this particular case the benefits strongly outweighed the disadvantages.
- We don’t know when or even if the history section in Blackmun’s abortion opinions was eer cite-checked But we do know that if it happened, the fact-checking was fault. For when Blackmun accepted Larry Lader, a mere magazine writer, as a reliable authority on history, philosophy, and theology, he became as a blind man following a blind guide. Despite his best efforts, Harry failed to see he had embraced a well-crafted verbal mirage, mistaking it for the truth.
Let us be very clear about what happened here. The picture that emerges from Blackmun’s papers, available for public inspection at the U.S. Library of Congress, is that of a justice who, in the words of Pulitzer Prize-winning, pro-abortion historian David J. Garrow, “ceded far too much of his judicial authority to his clerks.” It is plain from an inspection of Blackmun’s papers that his clerks made “historically significant and perhaps decisive contributions to Roe and Doe”-a degree of involvement Garrow calls “indefensible.”
- Lader set himself up as an authority on centuries of abortion legal history and also on two millennia of Catholic teachings about abortion-and Blackmun and his clerk fell for the ruse In the final version of the Roe v. Wade decision, Lader’s masterpiece of propaganda is cited at least seven times, and Cyril Chestnut Means’ scholarly papers are cited another seven times.
Cyril Means, you’ll recall from Chapter 4, was the NARAL attorney who falsified abortion legal history, fabricating his own version almost entirely out of whole cloth.
Lader, of course, was just a clever wordsmith-certainly no expert on history.
And yet as the late Notre Dame theologian father James Burtchaell observed, it is “clear in the record that Justice Blackmun was indebted for the innars of his argument to two of the major strategists of the abortion movement”-Means and Lader.
- In any case, Harry was deceived by Lader’s propaganda, six other black-robed men on the bench went along with the ruse and the tragic result was the U.S. Supreme Court’s most controversial decision since the Dred Scott v. Sandford decision denied personhood to black Americans in 1857.
- ”The immediate academic response to Roe v. Wade,” observed New York Times pro-abortion reporter Linda Greenhouse, “ranged from tepid to withering.” The first critiques came from the left.
"Criminal Abortion Revisited" (1991)Edit
- Americans in general and lawmakers in particular have not considered fully the legal implications of a serious reformulation or wholesale destruction of ‘’Roe’’. If the day does come when such a decision is handed down, Americans, whether they commiserate or celebrate, will have to wake up the next morning and decided what to do. And one need look no further than our state legislatures, which in response to ‘’Webster’’ have enacted legislation strikingly similar to pre-‘’Roe’’law, to realize the impact of such a Supreme Court ruling.
- The Supreme Court’s 1973 decisions in “Roe v. Wade” and “Doe v. Bolton” created a constitutional regime for abortion, fencing off, as a matter of constitutional law, much of the ground on which state abortion laws had tread for over one hundred years. These decisions affected state abortion legislation in two ways. First, while not prohibiting all criminal sanctions for abortion, they removed abortion, for all practical purposes, from the realm of criminal conduct. Second, while the Court ended the era of criminal abortion, it also left the door open for the states to promulgate regulations concerning abortion, ushering in a new era.
“Roe’s” landmark holding declared that the fundamental constitutional right to privacy includes the right to have an abortion and that any state legislation limiting that right must be justified by a compelling state interest. In particular, the “Roe” Court found that Texas’s abortion statute, typical of the nineteenth-century criminal-abortion laws, violated that fundamental right. In “Doe”, the Court declared that Georgia’s statute, a typical 1960s “reformed” law patterned after the Model Penal Code, also violated the newly established constitutional right. As a result, the Court had rendered virtually every abortion statute passed since Connecticut started the enterprise in 1821 unconstitutional. For practical purposes, criminal abortion was dead. While states retained considerable regulatory leeway, abortion no longer could be branded a crime, at least for the first and probably also the second trimester of pregnancy.
“Roe” also recognized, however, that states retained a compelling interest in the health of the mother after the first trimester. The Court further acknowledged a compelling state interest in fetal life as of the third trimester. States, then, were free to pass laws reasonably related to the furtherance of those interests. While states theoretically could have responded to the Court’s instructions by enacting new criminal laws barring “unhealthy’ abortions in the second trimester and all abortions after viability, for the most part they did not do so. The longstanding criminal-abortion statutes had been deemed unconstitutional because they flatly violated a fundamental right. The entire enterprise of criminalizing conduct related to abortion thus was called into question by the Supreme Court’s rulings To criminalize at certain stages of pregnancy the very conduct declared constitutionally protected at other stages of pregnancy would have challenged too directly the new understanding of abortion advanced by the Court. Instead, states wishing to limit the exercise of abortion rights launched a new enterprise, one which “Roe” explicitly invited: they restricted access to abortion by strictly regulating it rather than by branding it criminal.
- The Court, in the years following “Roe”, policed the constitutional abortion right by declaring which of these new state regulations exceeded the leeway granted in “Roe” and which did not Some regulations carried criminal penalties, but no state attempted to ban abortion altogether at any stage of pregnancy. Instead, states used regulations to construct obstacle courses that women had to navigate before they could exercise their constitutionally protected abortion right.
The Court, however, declared that certain regulations impermissibly infringed on the constitutional right. It held that a state could not require spousal consent to abortion or prohibit a particular method of abortion in the first trimester. It refused to allow states to require hospitalization for all second-trimester abortions or to require that a woman listen to a “parade of horribles” about abortion before she obtained one. And the Court refused to allow states to require doctors to exercise a prescribed degree of care to save the fetus in postviability abortions and to require that two doctors be present during postviability abortions.
- Nonetheless, the Court did approve a variety of regulations governing the practice of abortion. It held that the states were free to define “viability” and to require recordkeeping and of abortions. The Court permitted Congress and the states to discriminate against abortion in the dispensation of medical funding to the poor by denying funding for abortions. The Court permitted states to require parental consent for abortions sought by minors so long as the minor had access to an alternative judicial consent procedure. Finally, the Court permitted states to require the presence of two doctors at third-trimester abortions except in emergency situations and to require the submission of a pathology report for all abortions.
These cases all involved state attempts to burden, rather than to bar, the exercise of the constitutional abortion right. In every one of these cases, at least a plurality of the Court declared continue allegiance to the right established in “Roe”. One case, however, “Colautti v. Frankklin”’, did squarely confront a criminal-abortion law. Pennsylvania’s Abortion Control Act included a provision that subjected a doctor to criminal liability for failing to use a statutorily prescribed abortion technique when the fetus was “viable” or when there was “sufficient reason to believe the fetus may be viable.” The Court found two constitutional faults in this statute, both particular to the criminal law. First, the vagueness of the viability definition was found to condition “criminal liability on confusing and ambiguous criteria. It therefore present serious problems of notice, discriminatory application, and chilling effect on the exercise of constitutional rights.” Second, the statute subjected the doctor to “criminal liability without regard to fault,” thereby compounding the vagueness of the viability definition. The “Colautti “ Court laced its opinion with references to the “Roe” abortion right and “Roe’s” deference to the role of the physician. But the Curt disposed of the case on criminal-law grounds. “Colautti” indicated that criminal sanctions did not fit comfortably, if at all, into the Court’s regime of permissible state regulation of abortion.
- Given the Court’s recent abortion decisions, adherence to “Roe” as the keystone of abortion jurisprudence appears impossible. For the Court to draw some as yet undefined and more circumscribed boundary around a surviving constitutional abortion right, thereby leaving the states free to regulate expansively on abortion, seems improbable at a time when some of the Justices increasingly disavow the construction of complicated, quasilegislative constitutional schemes such as the one established in “Roe” itself. The return of criminal abortion is a distinct probability. More pointedly, the states themselves have begun to act as if its return is inevitable.
"Symposium on Anita Bernstein’s The Common Law Inside the Female Body"Edit
"Symposium on Anita Bernstein’s The Common Law Inside the Female Body" by David S. Cohen, Northwestern University Law Review, Volume 114
- One of the competing narratives about Roe v. Wade is that the Supreme Court invented the constitutional right to abortion out of whole cloth. Nothing in the Constitution or American history or law, so the narrative goes, supports this right. Rather, seven unelected lawyers who are unaccountable to the American public inscribed it into the United States Reporter simply because they thought it was the right thing to do.
Not so, says Professor Anita Bernstein in her intriguing new book, The Common Law Inside the Female Body. As Bernstein argues, the common law, a source of law usually associated with the interests of conservative, propertied, old white men, is actually a powerful source of liberty for women. In particular, the common law’s central command—that people are free to say “Do Not Want” with respect to their bodies, property, and money—applies to women. Bernstein’s application of this central command in two different legal contexts arising “inside the female body” means that the common law protects a right for women to say no to penetration and unwanted pregnancy. It is this latter right that directly challenges the notion that the Supreme Court invented the right to abortion in Roe.
- The common law right identified by Bernstein would find that all of these bans violate the woman’s right to terminate. Bernstein’s analysis does not depend, as many abortion rights arguments do, on the fetus being anything less than a full human being with personhood rights. Under her analysis, even if the fetus is a fully legal person, the pregnant woman has a right to say Do Not Want, just as a land owner can use deadly force to remove another person from her property. Bernstein recognizes that this is where the “common law diverges most sharply from Roe,” since Roe and its progeny tolerate abortion bans at viability (roughly twenty-four weeks of pregnancy) because of the value of protecting the state’s interest in potential life. The common law, on the other hand, permits abortion “at any stage of pregnancy.” For women who face the prospects of choosing an abortion after twenty weeks, Bernstein’s position would prohibit states from stopping them from exercising their liberty to say no. Although, as Bernstein recognizes, this position would depart dramatically from the doctrine of Roe, there are several states in the country that do in fact allow people to terminate their pregnancies after viability, implicitly recognizing the value of letting women decide—at any stage of pregnancy—what they Do Not Want in their bodies.
“Abortion and protection of the human fetus : legal problems in a cross-cultural perspective” (1987)Edit
Cole, George; Frankowski, Stanislaw. “Abortion and protection of the human fetus : legal problems in a cross-cultural perspective”, (1987): Via Google Books. Retrieved (April 8, 2008).
- There are very few problems in the United States today more controversial than abortion. The debate on this subject has been going on for decades, but has grown with particular intensity since 1973 when the Supreme Court declared in ‘’Roe v. Wade’’ that a woman’s fundamental right to privacy includes her right, under certain circumstances, to decide whether or not to terminate her pregnancy. Even prior to the Supreme Court ruling the public opinion was divided.
- These are the facts; their interpretations and evaluations differ. On the liberal end of the political spectrum are those who claim that the Supreme Court was right; a woman must be allowed to control her body and to make autonomous decisions regarding the most intimate spheres of her life. However, most persons holding this position seem to agree that abortion practices are, in general, not desirable as a matter of sound social policy. Nevertheless, they say, the current legal arrangements should be retained as long as the risk of unwanted pregnancy still exists.
- For those opposing abortions, large-scale abortion practices mean, naturally, nothing but genocide. Changing the current abortion laws, in particular the "Roe v Wade” decision, is a matter of utmost importance and urgency. No one should remain neutral in the face of the slaughter of the innocent and helpless.
- While deciding "Roe v. Wade", the Supreme Court favored one particular interpretation of the historical development of American abortion laws which can not be supported by solid evidence and which will long remain a subject of controversy.
- The decision was revolutionary indeed for at least four reasons which can be only mentioned here.
First, the decision invalidated virtually overnight the abortion laws of every state, including those that followed the model Penal Code, undoubtedly a product of liberal thought. For all practical purposes, abortion on demand, previously a crime almost everywhere, suddenly became a matter of constitutional right.
Second, the decision nationalized the issue of abortion, traditionally considered a matter of family law and, as such, belonging almost exclusively to the competence of individual states.
Third, ‘’Roe v. Wade’’ meant that the judicial branch of the government took the powers from the legislature to decide matters relating to abortion.
Fourth, the majority of the justices discovered for the first time that the Constitution did contain another fundamental right nowhere mentioned, never before explicitly referred to and, arguably, having no roots in the text or history of the document. Did the court violate the established canons of judicial interpretation by ignoring completely the “original intention” of the Framers, or was the majority right in giving a new meaning to the Constitution in keeping it in tune with the changing times?
- No doubt, the central conceptual foundation of the decision, namely, the right to privacy, was solidly grounded in constitutional adjudication prior to “Roe”. For a long time the twentieth century Court had been protecting personal rights of a non-economic nature by applying the expansive reading of “liberty” as used by the 14th Amendment. The majority did not fail to mention this line of cases based-explicitly or implicitly-on the privacy rationale.
"Meyer v. Nebraska” (1923) is one of the early examples of this trend. Here the Court reversed the conviction of a teacher for teaching German and thus violating a state law prohibiting the teaching of a foreign language to young children, declaring that the “liberty” protected by the 14th Amendment included “freedom from bodily restraint as well as the right to contract, to engage in any of the common occupations of life,…and, generally, to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” The Court found the Nebraska law “materially” interfered “with the power of parents to control the education of their own [children]” (p.401). Two years later, in “Pierce v. Society of Sisters” (1925), the Court invalidated an Oregon law, requiring all children to attend public schools, because it interfered with the liberty to raise and educate children as their parents and guardians wished. Next came “Skinner v. Oklahoma” (1942), which invalidated the Habitual Criminal Sterilization Act, providing for compulsory sterilization after a third conviction for a felony “involving moral turpitude” but excluding such felonies as embezzlement.” “we are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race,” said Justice Douglas (p. 541). “Skinner” was, indeed, an extraordinary decision because the Court acknowledged the existence of a “basic liberty” not tied to a specific constitutional guarantee (Gunther, p. 503).
- Justice Douglas delivered the opinion, basing his decision on the idea that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance… Various guarantees create zones of privacy…” But then Justice Douglas turned to another subject when he asked: “[w]ould we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship” and concluded by saying: “[W]e deal with a right of privacy older than the Bill of Rights-older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred” (p. 485-486). Two justices, Black and Stewart, dissented. They could find no general right of privacy in the constitution or in any other case to invalidate the state law.
The precise scope of Griswold, in particular, the nature of the “right to privacy,” was not entirely clear Was the Connecticut law invalid because it invited intrusions into the home? The emphasis on the immunity of “the sacred precincts of the marital bedroom was, no doubt, indicative.
- Justice Brennan’s remark, although clearly dictum, proved extremely important. Some analysts speculate that “Eisenstadt’s’’ innovative rationale was invented with “Roe v. Wade” in view and claim that the case was, in reality, “Roe’s” only true precedent (Noonan, 1979, p.21). As a matter of fact, “Eisenstadt” dealt only with contraception-the decision whether to “beget” a child. But Justice Brennan, writing for the majority, added the reference to the decision whether to “bear” a child. Was it really done with “Roe v. Wade” in mind? In any event, this language did help establish a constitutional basis for a woman’s right to abortion. A pro-family orientation which culminated in “Griswold” was abruptly abandoned. Now, it was the individual’s privacy in matters of procreation, protected. (A little over a decade later, in 1977, Justice Brennan clarified, once again, “Griswold’s “true meaning.” He stated that “Griswold” not only held that a state could not prohibit a married couple’s use of contraceptives but that the state could not intrude on individual decisions relating to childbearing (Carey v. Population Services”, involving State restrictions on the distribution of contraceptives to minors). The metamorphosis of “Griswold” was complete: from protection of marital privacy to protection of individual autonomy in matters involving procreation.)
- Was the “Roe” majority correct in relying on the above cases? Some constitutional scholars claim that all of those cases taken together delineate a sphere of interests which the court now grouped and denominated as “privacy.” That privacy is implicit in the liberty protected by the 14th Amendment. The individual has the right to make the fundamental decisions that shape family life: whom to marry, whether and when to have children, and with what values to rear those children. [T]he family unit does not simply c0-exist with our constitutional system; it is an integral part of it.” (Heymann, Barzelay , pp.772-772).
In reply, it has been noted that “roe v. Wade” may not be seen as a vindication of the family: in fact, it is profoundly hostile to it. “The family unit which they say is an integral part of our constitutional system was rejected by the Abortion Cases…”(Noonan, 1979, p.21). Jane Roe, the challenger of the Texas statute, was single and to decide her case on the basis of marital privacy was not apposite. As emphasized by Noonan, “Roe v. Wade” is “a massive departure from the long line of cases… correctly [portrayed] as a vindication of the family” (Noonan, 1979, pp. 21-22)
Second, as pointed out by the same scholar, all the precedents “treated family rights as having a natural basis superior to the law of the state… All of these cases rested on the supposition that the family rights bring protected were those of persons, and that these persons could not be unmade at will by the state”
(Noonan, 1984, pp. 672-673). The “Roe” decision was thus schizoid: “[A]t the same time that it invoked such precedents (…) the Court, when treating of the unborn, felt free to impose its own notions of reality” by denying the humanness and the personhood of the fetus (Ibidem, p. 673).
- [U]nder Roe, even a viable fetus is not entitled to constitutional protection in its own right: it must depend on what the state may consider a compelling interest. If the state decides not to protect the “potentiality of life,,”a viable fetus would not enjoy any protection in the abortion context. The only conflicting interests, as seen by the majority, are those of the woman and of the State. The rights of the fetus (and, possibly, of the father) have been completely ignored.
- The list of weaknesses of the ruling in “Roe” may be continued almost endlessly: (a Which specific constitutional provision was violated by the Texas abortion statute? Did the Court not act as a super legislature, imposing its own standards that cannot be derived from the Constitution? Did the Court invade the realm of political process to which the power to amend the Constitution was given? Did it violate the constitutional structure it was obliged to protect?
b) Why was the state’s interest not sufficiently strong to sustain the Texas statute until the moment when the fetus becomes viable? If, as the majority seems to suggest, life is a process, may not the State protect it prior to viability?;
c) Is the answer to the question of “when life begins” really irrelevant to the determination whether the fetus is a person within the meaning of the 14th Amendment? Is it possible to distinguish between certain life proesses (present, no doubt, at any stage of pregnancy from fertilization on) and “life? Can the presence of “life” be established without recognizing that it must reside in a “person?” Is the statement that the viable fetus, that is, capable of “meaningful life,” is still not a person within the meaning of the Fourteenth Amendment defensible as a matter of law, logic, and public policy?;
d) Does the United States Supreme Court have the power to ‘restrict the protection of fundamental liberties to those classes the Court deems worthy?”(Destro, p.126). Was Justice Blackmun exceeding his power when he described the fetus as less than a person “in the whole sense?” Does that mean that it may be treated as less than human? (Noonan, 1979, p. 17) May the Court disregard(under the guise of avoiding deciding the issue “when life begins”) the unquestionable humanity of human beings and then deprive them of their personhood?;
e) How important for the “Roe” majority were social policy implications? Were purely financial considerations relevant? The “Roe” decision is silent on this point, but Justice Blackmun, dissenting in “Beal v. Doe” (1977), one of the abortion funding cases stated clearly: To be sure, welfare funds are limited and welfare must be spread perhaps as best meets the community’s concept of its needs. But the cost of a nontherapeutic abortion is far lessthan the cost of maternity care and delivery, and holds no comparison whatsoever with the welfare costs that will burden the state for the new indigents and their support in the long, long years ahead (at p. 463).
And Justice Marshall, another member of the “Roe” majority, made the point in “Beal v. Doe” that the effect of precluding abortions would be to “regulate millions of people to lives of poverty and despair” (p.462). Is it acceptable, as a matter of humanistic social policy, to view abortions as a relatively cheap method of improving the quality of life of those allowed to be norn? Is life in poverty and despair not worth living?
- f) The majority has anchored the ruling in the woman’s right to privacy, encompassing her decision whether or not to terminate the pregnancy. At the same time, however, under both “Roe v. Wade’’, and ‘’Doe v. Bolton’’, a major role in the process o decision-making is to be played by the woman’s physician. “[f]or 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.” (“Roe v. Wade”, p, 163). Similarly, in “Doe v. Bolton”, the court held that the physician’s medical judgment may be exercised in the light of all factors… All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment” (p. 198). If so, is the woman really free to decide whether to terminate her pregnancy? Was the Court correct in abdicating the whole responsibility to physicians?;
g) Was the Court right in assuming that a physician would (should?) act as a “medical counselor” or was the Court simply naive about how the medical profession would implement the “Roe v. wade” scheme? Both opponents and proponents of abortion agree that today most abortions are performed in special abortion clinics, that a doctor sees each patient just before the procedure, and counseling by a doctor takes place very rarely (Appleton, p.201; Wardle, p.24); h) The “Roe” trimester approach was based on the state of medical knowledge and practice in existence in the beginning of the 1970s. At least two dramatic changes have taken place since then which seriously undermine the basic premise of the decision.
First, in the early 1970s, infants generally were not considered viable before twenty-eight weeks of gestational age and under 1000 grams of fetal weight. Today, due mainly to advances in neonatal care, infants become viable much earlier, occasionally at 23 weeks. Survival rates for infants weighing even less than 750 grams are increasing and some experts are of the opinion that it is arguable whether any lower limit of viability is medically appropriate (Rhoden, p. 1465). As viability occurs much earlier now, abortions may be prohibited at earlier and earlier stages of pregnancy. By this ironic twist of events “Roe v. Wade: may one day become a “right0to-life” decision (Rhoden, p. 1454). But, in the late 1980s, second0trimester abortions are safer than they were in the early 1970s. If the same trend continues, at soe time in the future maternal health interest will become compelling much later than the Court decreed in “Roe v. Wade”. In other words: abortions become safer and the line drawn by the Roe majority at the end of the first trimester must be thus moved further toward the birth. But in view of the advances in prenatal care, the viability marker, fixed in 1973 at the end of the second trimester, must be moved back toward the conception. It is probable that in the future the lines will pass each other “creating an overlap and (constitutionally) a hopeless contradiction within Roe) (Wolfe, p.308)
- i)Left-wing critics of “Roe” claim, in turn, there exists an inevitable tension between the constitutionally recognized woman’s right to “reproductive freedom” and the role assigned by the Court to physicians who are to act as primary decision-makers even on non-medical issues (Appleton, p.226). These critics of the 1973 decision view abortion restrictions as constitutionally impermissible gender-based discrimination: legislation that singles out abortion for differential treatment is discriminatory because only women become pregnant and have abortions (Law). Another writer suggests that under the proper analysis abortion laws should be seen as unconstitutionally singling our pregnant women as unwilling “good Samaritans” who are obliged to endure life and health-threatening burdens (Reagan, p.1569).
- Justice Powell acknowledged that arguments continue to be made [that] we erred in interpreting the Constitution.” But the majority refused to retreat from “Roe v.. Wade”: “Nonetheless, the doctrine of “stare decisis”, while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law. We respect it today, and reaffirm “Roe v. wade” (p.420). It is very difficult to resist the temptation to notice that the reliance by the majority on the doctrine of “stare decisis” was perverse. It should not be forgotten that in reaching the “Roe” decision the Supreme Court applied the concept of privacy in a novel context and discarded a long series of precedential decisions establishing the constitutionally protected area of privacy only in the field of familial relationships.
Interestingly enough, the “Akron” majority, having declared the allegiance to the “stare decisis” principle, significantly modified the “trimester approach” mandated by “Roe”. As may be recalled, there the Court held that during the entire second trimester of pregnancy, laws regulating abortion procedure for maternal health reasons were constitutionally permissible. Ten years later, in “Akron”, an ordinance requiring all secon trimester abortions to be performed ina hospital was declared unconstitutional because early second trimester abortions may now safely be performed in clinics. This means that the rigid “trimester approach” was not deemed viable by the same majority which had imposed it in “Roe”.
- Justice O’Connor emphasized that “the Roe framework [is] clearly on a collision course with itself. As the medical risks of various abortion procedures decrease, the point at which the state may regulate for reasons of maternal health is moved further toward actual child-birth. As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception” (p. 2505).
- Justice White was no less straightforward in his dissent. The majority was insecure “over its handiwork in “Roe v. Wade” and well aware than in “Roe it essentially created something our of nothing” (at 4636). In his view, a woman’s ability to choose an abortion was “a species of ‘liberty’that is subject to the general protections of the Due Process Clause.” For White, however, this “liberty” was not so “fundamental” that “restrictions upon it call into play anything more than the most minimal judicial scrutiny” (at 4630). “[T]he time has come to recognize that “Roe v. Wade”…’ departs from a proper understanding’ of the Constitution and to overrule it” - he emphasized (at 4629). It is pertinent to note that justice Rehnquist did not file a separate dissent but joined both White’s and O’Connor’s dissenting opinions.
"The Consequences of Roe v. Wade and Doe v. Bolton" (June 23, 2005)Edit
O'Connor, Karen. Testimony before U.S. Senate Judiciary Committee, "The Consequences of Roe v. Wade and Doe v. Bolton", via archive.org (June 23, 2005). Retrieved January 30, 2007
- In 1973, against a background of increasing litigation surrounding contraception and abortion, the Supreme Court granted certiorari in the companion cases of Roe v. Wade and Doe v. Bolton. Jane Roe, who we know today as Norma McCorvey, challenged a Texas abortion law that prohibited abortions in all cases except to save a woman’s life. Unlike Roe, the statute at issue in Doe v. Bolton was based on the Model Penal Code of the ALI. Doe’s lawyers, acting on her behalf as well as several doctors, nurses, clergy, and social workers, alleged that the Georgia law was an unconstitutional undue restriction of personal and marital privacy.
In a landmark 7 to 2 decision, the Supreme Court held that the “right of privacy . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.” The Court also recognized that the decision of whether to have a child is unique to every woman and her life circumstances, and therefore must be a personal, individual decision. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
In invalidating the Texas and Georgia abortion laws, the Court effectively invalidated the abortion laws of all but four states. However, even in recognizing the fundamental right to obtain an abortion, the Court also held that this right was not absolute. To this end, the Court took a trimester approach toward to regulation of abortion, holding: 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. 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. 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.
The right to privacy so central in Roe was well-recognized prior to that case, and has been repeatedly affirmed since Roe. As the Roe Court itself stated, “In a line of decisions . . . going back perhaps as far as , the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.” Indeed, prior to Roe, the Court explicitly recognized the fundamental nature of a woman’s right to control her reproduction. The Court has also recognized the intensely personal nature of the decision of whether to have children. In Eisenstadt v. Baird, affirming an unmarried individual’s fundamental right to obtain contraception, the Court stated “if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."
A woman’s right to control her own body, articulated in Griswold, Eisenstadt, Roe, and Doe remains just as fundamental today. The Supreme Court has repeatedly emphasized its continued viability: “Roe is clearly in no jeopardy, since subsequent constitutional developments have neither disturbed, nor do they threaten to diminish, the scope of recognized protection accorded to the liberty relating to intimate relationships, the family, and decisions about whether or not to beget or bear a child.” Moreover, the Court recently reaffirmed the fundamental right codified in Roe, and recognized how central reproductive freedom is to the lives of women. In Lawrence v. Texas, discussing the dimensions of the privacy right, the Court stated, “Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person.”
- Roe’s implications for women were profound and wide-reaching. The most immediate result, of course, was to rescue women from the back alleys, and provide access to safe, legal abortion for women who chose it. Today, abortion is one of the safest and most commonly performed medical procedures. In stark contrast to the soaring death rates from illegal abortions prior to Roe, the current death rate from legal abortion at all stages of gestation is 0.6 per 100,000 procedures. Indeed, a woman's risk of death during pregnancy and childbirth is ten times greater than the risk of death from legal abortion. Moreover, Roe marked a new beginning in women’s ability to control their own fertility and to choose whether or not to have children. Roe recognized that a woman deciding whether to continue a pregnancy, and only that woman, must make the personal choice that is in keeping with her own religious, philosophical, and moral beliefs. This freedom of choice led to the increased freedom in other areas; as the Supreme Court noted in 1992, "the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives."31 Without this freedom, generations of women would be relegated back to constant fear of pregnancy and its consequences. Fewer women would be able to complete their educations, decide when they wished to have children, and how to order their lives to best accommodate work and family. However, these basic, fundamental rights of women have been under attack since the ink was dry on Roe and Doe.
- As the Supreme Court so aptly stated in Planned Parenthood v. Casey, While [Roe v. Wade] 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 . . ..
Despite the fact that history demonstrates that the unavailability of legal, safe abortion does not prevent abortion but only leads women to seek unsafe abortions, it is abundantly clear that Roe’s protections are indeed in jeopardy.
- What then, would happen if Roe were overturned? Contrary to assertions that bans on abortion--including first trimester abortions--would occur in only a few states and take considerable time to enact, it is probable that many states would revive and enact immediate abortion bans. Moreover, in the absence of Roe, states would be given free reign to erode Roe; one only need look at the number of state restrictions placed on abortion provision in 2004, discussed supra, to know this is an all too real possibility.
The move toward criminalizing abortion could be immediate: four states (Alabama, Delaware, Massachusetts, and Wisconsin) have abortion bans in place that have never been declared unconstitutional or blocked by courts. Roe’s reversal could “trigger” these laws; that is, state officials could immediately begin enforcing these bans the day Roe is overruled.Another 13 states have abortion bans on the books that have been blocked by courts as unconstitutional. . If Roe was overturned, officials in such states could immediately file suits asking courts to set aside the orders that prevented enforcement of the laws. 43 And, in the remaining states, legislators would be free to introduce and enact new severe restrictions or bans on abortion.
Ultimately, abortion would likely remain legal in small number of states, but even in such states women’s access would likely be severely restricted. This would create a daunting, patchwork system of abortion statutes: a woman’s right to obtain an abortion would be entirely dependent on the state in which she lived or her ability to travel to another state--assuming the states that keep abortion legal would permit non-residents to obtain abortions in that state. For those women who are able to navigate this patchwork system, the need to travel and the increased demand for a dwindling number of abortion providers could lead to dangerous delays in the provision of abortion care.
Even more frightening, however, is the plight that women who do not live in provider states, and are unable to travel to those states, would face. In essence, overruling Roe would force a return to the two-tier system of abortion access that was in place before 1973: women with the financial ability to travel to other states may still be able to exercise their rights, whereas low-income women (disproportionately women of color and young women) would not. We would see a return to the days of back-alley and self-induced abortions; a return to the day where women -- our daughters, our sisters, our mothers, and our wives -- sacrificed their health and lives because they felt they were left with no other option. Re-criminalizing abortion, or so severely restricting it so as to make it practically unavailable, will not end the practice of abortion; it will end the practice of safe abortion.
- In addition to the grave -- and unacceptable -- health risks women would face if forced to return to the back alleys, overruling Roe would also signal a rollback of the autonomy and equality women have achieved since Roe. Roe was not only a decision that legalized a medical procedure and protected women’s health; it was -- and is -- a decision that gave a woman the option to make the reproductive choices that were right for her health, her family, and her life. Roe protects a woman’s bodily integrity, but, just as importantly, protects a woman’s right to be responsible for the choices she makes and the options she chooses. A woman’s ability to decide when and if she will have children will ultimately make her a better mother, if she chooses to become one, and helps ensure that children are brought into families that are willing and able to both financially and emotionally care for them. A woman’s ability to control her own reproduction ensures that she can make the medical decisions central to her physical and emotional well-being. And this autonomy allows women to make the choices we perhaps now take for granted: whether and when to marry, whether and when to have children, and whether to pursue educational opportunities or a professional career. As the Supreme Court stated in upholding Roe’s central protection for a woman’s right to choose abortion, the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society. Finally, because the constitutional protections enunciated in Roe underpin so many other rights, Roe’s demise could open the door to encroachments on other fundamental rights grounded in privacy. For example, access to birth control is dependent on the privacy right articulated in Griswold and echoed in Roe. Contraception availability is crucial toward reducing unintended pregnancies, reducing the number of abortions, and improving women's health. In addition, improved access to contraception will allow more women to control the timing of their pregnancies. This, in turn, helps reduce infant mortality, low birth weight, and maternal health complications during pregnancy. Thus, undermining the privacy right will serve to endanger women’s health and lives even beyond the abortion decision.
- I am a mother and a sister. In addition, I have had the privilege to teach thousands of students -- young men and women -- over the more than 25 years I have been teaching. Each of these individuals has come of age in a era where his or her private decisions to have sex or remain celibate, to use birth control or not, as well as to resort to a safe and legal abortion if needed or to carry a pregnancy to term, were available options. This right has, for women in particular, given them a power over their destinies that women who came before me did not enjoy. The United States, I have always taught, is a land where rights once hard won, are not to be taken for granted, but to be held precious. No right can be more important nor more fundamental than a woman’s right to control her bodily integrity free from governmental interference. As the Court itself has concluded, to do so could be disastrous.
“Won by Love: Norma McCorvey, Jane Roe of Roe v. Wade, Speaks Out for the Unborn as She Shares Her New Conviction For Life” by Norma McCorvey and Gary Thomas, Nashville, Tennessee: Thomas Nelson, 1997, Chapter 5, The Shadow Plaintiff pages 36–37
- People are usually surprised to learn that the Roe v. Wade decision was many hours old before I even heard about it. I came home from work-the first day I had been able to work in years, due to depression-and picked up the evening paper. Connie was taking a shower while I read the newspaper. Some newsbreak in the Watergate scandal had captured most of the ink, but in the lower right-hand corner of the Dallas Times Herald I noticed a news item announcing a Supreme Court decision about abortion.
“Could this be me?” I thought. The words announcing the Court’s decision gripped me. It “was” me! I had won!
And yet it seemed so strange. I had already delivered my baby and placed her for adoption, so it really wasn’t relevant to me-I couldn’t abort a child who had already been born. In the article, I was referred to only through my pseudonym, Jane Roe, so even though they were talking about me, it felt like they were talking about someone else.
But I had won. There was some satisfaction in that, anyway.
Of course, you might well be wondering how I could have been so far removed. Why wasn’t I at the Supreme Court when the case was argued on my behalf, for instance?
- As soon as Sarah Weddington had my name on the affidavit, I had served my purpose. She called me back all right-four months after my child was born.
“Sarah,” I said. “I had a baby “four months ago”. Where were you then? I didn’t hear from Sarah again. She had said everything was going to be okay and that she would be there, but she wasn’t.
This lack of relationship was not exactly a disappointment to me. Though Sarah had passed herself off as my friend, in reality she used me. When I sat down with her and discussed the possibility of getting an abortion, Sarah knew where I could get one, because she had gotten one herself three years before. When I asked her if the court’s decision would come in time for me to get an abortion, she gave an evasive answer. And she did so with the full understanding that it would come way too late to help me.
If Sarah Weddington was so interested in abortion, why didn’t she tell me where she got hers? Because I was of no use to her unless I was pregnant. She needed a pregnant woman who would sign the affidavit. If she told me how and where to get an abortion (or introduced me to people who knew, since, as a lawyer, she might have to cover herself, she wouldn’t have a plaintiff. And without a plaintiff, somebody else might get their case before the Supreme Court first. That’s why Sarah actually tried to talk me out of getting an illegal abortion in Mexico, as she had done.
- Debbie Nathan, a proabortion writer, wrote in the Texas Observer (September 25, 1995): “By not effectively informing [Norma] of [where she could get an abortion], the feminists who put together Roe v. Wade turned McCorvey into Choice’s sacrificial lamb-a necessary one, perhaps, but a sacrifice even so.”
I never signed up to become a sacrificial lamb for anyone; I was just a young woman who needed help and who turned to the wrong people. After I gave up my child for adoption, I spent year searching the faces of children I passed on the streets and in supermarkets.
“Is that her?” I’d ask myself. “Could that be my child?”
- A number of years later, I read in the newspaper about an abortion clinic being bombed. “Why would anyone want to do that? I thought.
I read the entire article and was surprised when one of the bombers referred to “baby killing” going on inside the clinic. I had never been inside a clinic and could not imagine what the man was talking about, but that night, I had a dream in which I saw little babies lying around with daggers in their hearts. It was a horrific vision and I kept Connie up for hours, trying to figure out what it meant.
The next morning, I realized I needed to make some sort of sense out of this abortion business. Was Jane Roe, after all. What, really, had I done?
- Well, how do they kill a baby inside a mother’s stomach, anyway? I couldn’t get the thought out of my mind. I realize it sounds very naïve, especially for a woman who had already conceived and delivered three children. Though I had seen and experienced more than my fair share of the world, there were some things about which I still didn’t have a clue-and this was one of them. Ironically enough, Jane Roe may have known less about abortion than almost anyone else.
- Chapter 5, The Shadow Plaintiff pages 39
- The first time I met Flip face-to-face was during a book signing for my book I am Roe It was a hot June night in Dallas, and my appearance had been announced via flyers, posters, newspaper notices, and the radio, so it was not hard for the antis to be informed and prepared.
Rescue was out in full force. Ironically, it was Ronda Mackey-the woman whose daughter eventually got me to church-who distributed a list of tough questions that people could ask me during the open question-and-answer time. After I became a Christian, I finally saw a copy of one of these sheets:
Questions to Ask Norma McCorvey
(Don’t let people see you looking at this paper)
1. What happened to the baby that you were trying to abort?
2. Have you had an abortion since Roe v. Wade? Have you used you “right to choose”? Why or why not?
3. Ninety-five percent of women who had an abortion said if they had any other choice, they would have taken it (survey done by Nurturing Network). You were in a difficult situation when you were pregnant during Roe What would you have needed in order to give life to your child, or not want an abortion?
4. The Alan Guttmacher Institute determined that over 90 percent of the women who had an abortion suffered complications (physical and/or emotional). What are you doing to help or counsel women after the abortion-especially those who are hurt from it?
There were many questions like this, but the last one may have been the most intriguing:
9. It seems the abortion industry has just been using you from the beginning. They used your sad situation to get abortion legalized, then they didn’t even call you when the case was won in the Supreme Court. They didn’t have anything to do with you until the Webster decision, when it seemed like Roe would be overturned. Have you ever intellectually questioned how the abortion industry operates, or the arguments they use? Have they-the feminists and abortion providers-listened to you and changed anything?
I think you can see why Ronda eventually ended up being so successful in reaching out to me!
- Chapter 8, “Miss McCorvey, You’re Responsible for the Deaths of Thirty-Five Million Children!”
“Affidavit of Norma McCorvey” (June 11, 2003)Edit
“Affidavit of Norma McCorvey”, U.S. District Court for the Northern District of Texas, Dallas Division, Norma McCorvey, formerly known as Jane Roe, Plaintiff, vs. Henry Wade, Through His Official Successor in Office, William "Bill" Hill, Dallas County District Attorney, Defendant., Civil Action No. 3--3690-B and No. 3-3691-C, June 11, 2003
- Thirty-three years ago, I came before the United States District Court Northern District of Texas Dallas Division as the Plaintiff “Jane Roe”, the young woman whose case legalized abortion in the United States, “Roe v. Wade” At that time, I was an uninformed young woman. Today I am a fifty-five-year old woman who knows the tragedy that arose from my unsuspecting acquiescence in allowing my life to be used to legalize abortion.
- paragraph 2 on pages 1-2 of 13, affidavit page 000002-000003
- In 1970, I told this Court in the form of an affidavit that I desired to obtain an abortion never really understanding the ramifications.
- paragraph 3 on page 2 of 13, affidavit page 000003
- My personal experience with this three-decade abortion-experiment has compelled me to come forward, not only or myself and the women I represented then, but for those women whom I now represent. It is my participation in this case that began the tragedy, and it is with great hope that I now seek to end the tragedy I began.
- paragraph 3 on page 2 of 13, affidavit page 000003
- Previously, the courts, without looking into my true circumstances or taking the time to decide the real impact abortion would have upon women, used me, my life, and my circumstances to justify abortion. Those judges who made the earlier decisions never had the advantage of the real facts to base their decision because the entire basis for Roe v. Wade was built upon false assumptions. Consequently, the decision as rendered in a vacuum totally devoid of findings of facts and solely based upon what abortion advocates wanted women. Because the courts allowed my case to proceed without my testimony, without ever explaining to me the reality of abortion, without being cross-examined on my erroneous perception of abortion, a tragic mistake was made - a mistake that this Court has the opportunity to remedy.
- paragraph 4 on page 2-3 of 13, affidavit page 000003-000004
- The years following the Roe v. Wade decision have been very difficult, in a number of respects, but my life was never easy.
- paragraph 5 on page 3 of 13, affidavit page 000004
- [W]hen I became pregnant with the “Roe” baby, I was really in a predicament. My mother expressed her disapproval and told me how irresponsible I had been. She made it clear that she was not going to take care of another baby.
- paragraph 5 on page 3 of 13, affidavit page 000004
- Although I knew I was pregnant, I waited for a while before I went to the doctor. While I was waiting to be examined, I questioned the some of ladies in the waiting room about whether they knew where a woman could go to have an abortion. A lady told me where an illegal clinic was located and told me that it would cost $250.00. Following our discussion, I told the doctor that I wanted to have an abortion, but he refused stating that abortion was illegal. He didn’t believe in abortion and gave me the phone number of an adoption attorney.
- paragraph 6 on page 3 of 13, affidavit page 000004
- When I had saved about two hundred dollars, I took a cross-town bus to the illegal clinic, which turned out to be a dentist’s office that had been closed down the previous week. For some reason, I felt relieved yet angry at the same time. All my emotions were peaking; first, I was angry, then I was happy, and then I’d cry. From the abortion clinics, I took the bus to my dad’s apartment and decided to speak with the adoption attorney. The attorney set up the meeting and referred me to Sarah Weddington, the attorney who represented me in Roe v. Wade.
- paragraph 7 on page 3-4 of 13, affidavit page 000004-000005
- Following the adoption attorney’s introduction, Weddington invited me out to dinner. Although Weddington and I were about the same age, our lives were quite different. She was a young attorney, and I was homeless and lived in a park. Unconcerned about politics, I sold flowers and an underground newspaper that described the types and availability of illegal narcotics. At the time, I simply sought to survive. During our initial meeting, I met with Sarah Weddington and her friend, Linda Coffee. Both Weddington and Coffee had recently finished law school, and they wanted to bring a class action suit against the State of Texas to legalize abortion.
- paragraph 8 on page 4 of 13, affidavit page 000005
- During our meeting, they questioned me, “Norma, don’t you think that abortion should be legal?” Unsure, I responded that I did not know. In fact, I did not know what the term abortion” really meant. Back in 1970, no one discussed abortion. It was taboo, and so too was the subject of abortion. The only thing I knew about the word was in the context of war movies. I had heard the word “abort” when John Wayne was flying his plane and ordered the others to “Abort the mission.” I knew “abort” meant that they were “going back”. “Abortion”, to me, meant “going back” to the condition of not being pregnant. I ever looked the word up in the dictionary until after I had already signed the affidavit. I was very naive. For their part my lawyers lied to me about the nature of abortion. Weddington convinced me, “It’s just a piece of tissue. You just missed your period.” I didn’t know during the “Roe v. Wade case that the life of a human being was terminated.
- paragraph 9 on pages 4–5 of 13, affidavit pages 000005–000006
- That evening, the two female lawyer and I discussed the case over a few pitchers of beer and pizza at a small restaurant in Dallas. Weddington, Coffee, and I were drinking beer and trying to come up with a pseudonym for me. I had heard that whenever women were having illegal abortions, they wouldn’t carry any identification with them. An unidentifiable woman was often referred to as Jane Doe. So we were trying to come up with something that would rhyme with “Doe”. After three of our pitchers of beer, we started with the letter “a” and eventually reached “r” and agreed on “Roe”. Then I asked, “What about Jane for the first name?” Janie used to be my imaginary friend as a child. I told them about her and how she always wanted to do good things for people, and it was decided – I became Jane Roe, by the stroke of a pen.
- paragraph 10 on page 5 of 13, affidavit page 000006
- These young lawyers told me that they had spoken with two or three other women about being in the case, but they didn’t fit their criteria. Although I did know what “critieria” meant, I asked them if I had what it took to be in their suit. They replied, “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.
- paragraph 11 on page 5 of 13, affidavit page 000006
- After our meeting, I went to my father’s apartment and began to drink alcohol heavily. I was depressed with my plight in life. I tried to drown my troubles in alcohol. Shortly thereafter I even attempted suicide by slitting my wrists. When my father questioned me about what was troubling me, I responded that I was pregnant again. When he asked me what I was going to do, Iresponded that I was thinking about having an abortion. He inquired, “What is that?” I said, “I don’t know. I haven’t looked it up yet.”
- paragraph 12 on page 6 of 13, affidavit page 000007
- Later, Weddington and Coffee presented the affidavit for my signature at Coffee’s office. I told them that I trusted them and that I did not need to read the affidavit before I signed it. I never read the affidavit before signing it and do not, to this very day, now what is written in the affidavit. Both Weddington and Coffee were aware that I did not read the affidavit before I signed it. At no time did they tell me that I had to read it before they accepted my signature. I told them that I trusted them. We called ourselves “the three musketeers.” I know now that is one place I went wrong. I should have sat down and I should have read the affidavit. I may not have understood everything in the affidavit and I would have probably signed it anyways. I trusted the lawyers.
- paragraph 13 on page 6 of 13, affidavit page 000007
- My lawyers never discussed what an abortion is, other than to make the misrepresentation that “it’s only tissue”. I never understood that the child was already in existence. I never understood that the child was a complete separate human being. I was under the false impression that abortion somehow reversed the process and prevented the child from coming into existence. In the two to three years during the case no one, including my lawyers told me that an abortion is actually terminating the life of an actual human being. The courts ever took any testimony about this, and I heard nothing which shed light on what abortion really was.
- paragraph 14 on page 6-7 of 13, affidavit page 000007-000008
- In 1972, Sarah Weddington argued in the courts, presumptuously on my behalf, that women should be allowed to obtain a legal abortion. The courts did not ask whether I knew what I was asking for. The abortion decision that destroyed every state law protecting the rights of women and their unborn babies was based on a fundamental misrepresentation. I had never read the affidavit, and I did not know what an abortion was. Weddington and the other supporters of abortion used me and my circumstance to urge the courts to legalize abortion without any meaningful trial which addressed the humanity of the baby, and what abortion would do to women. 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.
- paragraph 15 on page 7 of 13, affidavit page 000008
- As the class action plaintiff in the most controversial U.S. Supreme Court case of the twentieth century, I only met with the attorneys twice. Once over pizza and beer, when I was told that my baby was only “tissue” and another time at Coffee’s office to sign the affidavit. I had no other personal contacts. I was never invited into court. I never testified. I was never present before any court on any level, and I wasnever at any hearing on my case. The entire case was an abstraction. The facts about abortion were never heard. Totally excluded from every aspect and every issue of the case, I found out about the decision from the newspaper just like the rest of the country.
- paragraph 16 on page 7-8 of 13, affidavit page 000008-000009
- In a way, my exclusion, and the exclusion of real meaningful findings of fact in Roe v. Wade, is symbolic of the way in which the women of the nation and their experiences with abortion have been ignored in a national debate by the abortion industry. The view that is presented is the view of what the abortion industry thinks is good for women. The reality of women’s experiences is never presented.
- paragraph 17 on page 8 of 13, affidavit page 000009
- I never had an abortion gave the baby up for adoption. It was only later in life that I was confronted with the reality of abortion. Being unskilled and uneducated, with alcohol and drug problems, finding and holding a job was always a problem for me. But with my notoriety from Roe v. Wade, abortion facilities, usually paying a dollar an hour more than minimum wage, were always willing to add “Jane Roe” to their ranks.
- paragraph 18 on page 8 of 13, affidavit page 000009
“Revisiting Roe v. Wade: Substance and Process in the Abortion Debate” (Spring 1993)Edit
“Revisiting Roe v. Wade: Substance and Process in the Abortion Debate” by Margaret G. Farrell and Benjamin N. Cardozo, Indiana Law Journal, Volume 68, Issue 2, spring 1993
- The abortion debate in this country has been framed as a conflict between abstract interests in life and liberty-fetal life, when it is protected by the state, and the liberty of women to terminate their pregnancies. In 1973, the abortion conflict was settled legally by the U.S. Supreme Court in “Roe v. Wade”, when the Court balanced the two conflicting interests and announced a prescription for future accommodation. However, the Roe decision neither settled the national dispute about abortion nor provided instruction on the proper role of courts in the social drama played out around the life and death issues that advancing medical technology puts in high relief. Instead, the decision seemed only to fuel the acrimony between pro-life and pro-choice advocates and to raise serious questions about the function of the Supreme Court in our constitutional democracy.
- [B]y trying to resolve the social issues raised by abortion technology through litigation, we have transformed the real-life, contextual, relational, complex facts about abortion into a two-sided contest between generalized maternal rights to privacy and theoretical state interests in potential human life, a process that teaches us little about the moral and social problems we seek to resolve.
- As some of the Justices recently observed, the abortion debate is an “intensely divisive controversy” between “contending sides of a national” dispute. Thus, the Court’s decision in Roe v. Wade, which might be viewed as a compromise recognizing both a woman’s privacy interest in terminating her pregnancy in its early months and the state’s compelling interest in protecting potential fetal life in its later months, is usually regarded only as a victory for abortion rights. Responsibility for that perception has been laid upon the Court itself. Legal scholars criticized Justice Blackmun’s opinion in Roe for being unnecessarily divisive and inflammatory, and for alienating those with a world view that does not permit abortion. The presentation of the issues in irreconcilable, polarized terms and the Court’s resolution of them in those terms, both in Roe and in Casey, have provoked extremist reactions by some member of the public, who use threats of violence to traumatize pregnancy women entering abortion clinics and who vandalize, bomb and burn the clinics themselves. The debate continues to rage around the nomination of Justices to the Supreme Court and the provision of abortion information in federally funded clinics. Unless the abortion controversy can be diffused, we run the risk that it will polarize our thinking on related issued, widening the national divisions it reflects.
- An examination of the use in Roe of traditional procedural doctrines regarding professional solicitation, standing, mootness, remedies, intervention, amicus curiae participation, and class representation illustrate how unsuited these doctrines are to the job presented by litigants seeking judicial wisdom about the utilization of new medical technology, like abortion.
- Twenty-six-year-old Norma McCorvey, much better known as “Jane Doe,” the plaintiff in Roe v. Wade, discovered in 1969 that she was alone in a small Texas town pregnant, penniless, and forsaken. When she could not find a doctor who would perform an illegal abortion for a fee she could afford, she was put in touch with attorneys Sarah Weddington and Linda Coffee, who, although McCorvey did not know it, were ideologically motivated lawyers looking for a plaintiff to test the constitutionality of Texas’s anti-abortion laws.
One of the threshold issues presented by Norma McCorbey’s situation is whether a court should have entertained a lawsuit brought in an effort to use the judiciary as an instrument of social change. Out of a concern that lawyers may stir up unnecessary litigation and engage in overreaching, misrepresentation, and invasions of privacy, lawyers have been ethically restrained from making contact with potential plaintiffs no matter how meritorious the client’s unsuspected claim for damages might be. However, out of deference to the First Amendment rights of lawyers who have a desire to further civil rights and similar political objectives, states may not discipline lawyers who take the initiative and actively solicit clients, like McCorvey, so that they can invoke a right to judicial resolution of the political questions on their minds. These suits present disputes different in kind form traditional lawsuits involving private claims put forward by lawyers who act as spokesmen for their individual clients.
Furthermore, ideologically committed organizations often pay the attorneys’ fees and expenses of such litigation and in doing so, control the substantive and the procedural strategies of the litigation. The point is that by creating a public interest exception to rules limiting solicitation, courts themselves have invited, or at least accepted, the task of resolving complex social and politically important issues like abortion. But they do so without providing adequate procedures for carrying out the task.
- By the time she interviewed the lawyers who eventually represented her, Norma McCorvey was about three months pregnant; by the time they filed her complaint, she was seven months pregnant; by the time the lower court heard the case, she had given birth; by the time the U.S. Supreme Court decided the case, her baby was three years old and living with adoptive parents. Norma McCorvey already had responsibilities to a child being raised by her mother, had only a tenth-grade education, had little or no money for medical expenses, was without the means to support another child, and had no relationship with the man with whom she had conceived (indeed, for a time she had lied about being gang raped). How did the facts of Norma McCorvey’s pregnancy all get reduced to the abstract conflict between a woman’s right of privacy and the unborn’s right to life. The litigation distorted the issues into a polarized dispute because the trial court simplistically treated McCorvey’s request for broad injunctive relief as it would have treated one for compensatory relief.
- The adversarial process, as it is usually applied, bifurcates messy issues like abortion into competing camps. Having evolved largely as a mechanism for providing individual complaints compensatory relief for past injury, the litigation process necessarily presupposes the existence of a party who claims injury and seeks damages for a loss for which another party should be held responsible. The procedures used in law and equity were designed to assure the participation of suitable litigants, to permit the presentation of reliable facts relevant to the alleged injury and its causes, and to limit the court’s attention to disputes it had the power to resolve. Norma McCorvey, however, was not seeking damages for losses she suffered as a result of the application of Texas’s unconstitutional abortion laws, nor was she even seeking an injunction permitting her to lawfully abort the fetus she carried. Instead, she sought a declaratory judgment that the Texas law, duly enacted by a legally constituted legislature, was unconstitutional on its face, not just as it applied to her. And she sought an injunction prohibiting enforcement of the Texas statute for as long as the Constitution resigns. As unalike as the objective of common law suits and this kind of constitutional litigation may be, the same adversarial procedures are used in both to select appropriate parties, distill factual evidence, and shape the issues for decision. The result is that the untidy issues actually faced by those who are affected by the utilization of abortion techniques are stripped of their contextual character, convolution, and relativism, and are presented as simple, abstract, absolute values in conflict.
- [T]he three-judge district court in Roe v. Wade permitted only persons with certain interests in abortion-pregnant women and the state-to debate the constitutionality of the Teas statute. The court was willing to let Norma McCorvey bring a cause of action to strike down the Texas criminal law despite the fact that she could not be prosecuted under it. However, the Supreme Court found that, despite the fact that doctors could be (and were) criminally prosecuted under the statute, a doctor did not have standing to intervene in the civil Roe litigation. Ironically, in Griswold v. Connecticut and Roe v. Wade, persons who could not have been prosecuted under the challenged statutes were allowed to proceed as parties to the litigation, while persons who could have been prosecuted were not permitted to participate and to represent their own interests.
- [T]he interests of married couples in using abortion to avoid parenthood were not represented in Roe because the trial court found that they too lacked standing. Though the availability of abortion technology implicated different interests and relationships of married, as opposed to single, women and their spouses, the trial court found the interests of John and Mary Doe too speculative to present a justifiable controversy. As a matter o fact, the Does had conceived a child prior to the suit an obtained an abortion. How different, then, was their situation from that of Norma McCorvey at the time of the district court hearing, after she had given birth, when the court found that her claim was not moot because she might become pregnant again and wish an abortion? Did the fact that the Does had been able to obtain an abortion by traveling out of the country, while McCorvey could not afford to do so, deprive them of standing they would otherwise have had, even as members of the lass represented by Roe? We are not informed by the trial court’s cursory treatment of standing issues.
“Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision that Made Abortion Legal” (2001)Edit
“Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision that Made Abortion Legal” by Marian Faux, New York City: Cooper Square Press, 2001
- The story of Roe v. Wade has never been told before, and despite the Supreme Court decision, the abortion issue has never been resolved. Every year antiabortion forces fight a more aggressive battle to undo the abortion decision. They have begun to make inroads in some states and have repeatedly brought before the Supreme Court case designed to chip away at the abortion right. Only in the past few years have the pro-choice reformers awakened to the need to continue their struggle.
- Abortion is, I think, one of the most trying issues of our time. A great deal of pain and rage exists on both sides of the debate. After all, abortion concerns nothing less than the value we place on human life. Those who oppose abortion believe that the value must be held collectively, that one standard must apply to everyone and to all circumstances, while those who support the abortion right believe that the choice can only be made individually.
Adding to the conflict is the face that what people believe, at least where abortion is concerned, they tend to believe fervently. This, if nothing else, makes abortion an uresolvable issue, one about which people cannot be rational.
- In 1954, when the Supreme Court ruled in Brown v. the Board of Education that American schools were to be desegregated, a majority of Americans disagreed with the decision A year later, though, polls showed that most people had come around to supporting Brown, at least in theory, and most of the controversy surrounding the case had died down.
The same could hardly be said for Roe v. Wade, although ironically, when the Court decided Roe in 1973, a majority o Americans agreed with the decision. Despite this consensus that abortion should be legalized, an immediate furor arose over the decision; nearly thirty years later, this conflict remains unresolved. Roe v. Wade is one of the most disputatious Supremee Court decisions ever handed down. No issue has festered in the American consciousness the way abortion has. Roe v. Wade is a story that never ends, and this introduction is intended to update the reader on what has happened to the abortion right since the decision because this is also part of the Roe v. Wade story.
- The decision generated an enormous amount of political activism among supporters and opponents of legal abortion, partly because no one expected that the opinion would be so sweeping. Roe v. Wade made abortion legal literally overnight everywhere in the United States. Studdened antiabortion activists immediately set about organizing a campaign to overturn the decision. Meanwhile, pro-choice activists, who had believed that the decision wuldd end any controversy over abortion, were equally shocked when this did not happen. Countless battles have been fought over Roe v. Wade, and the war still rages.
That the war has been fought largely in the politicalarena can be attributed to the fact that the decision, in addition to legalizing abortion, changed the terms of the debate, also overnight. Before the decision, discussion about abortion centered on its morality, an obbiously safe and comfortable battleground for antiabortionists, whose opposition was largely religious. After Roe v. Wade, with abortion legal, it was nolonger possible to arguethat a woman who underwent an abortion was immoral. The decision had converted abortion from a moral struggle into a legal one.
- More than any other event, Roe v. Wade served to politicize the religious conservatives who led the fight against legalized abortion in the 1980s. They had other issues on their agenda, but abortion soon ehaded the list Furthermore , having lost the moral high ground,they had no choice but to fight legalabortion in Congress, in the state elgislatures, and in the courts. The war was waged in the court of public opinion as well, because oncethe battleground became political it would be impossible to make abortion illegal again without the support of a majority of Americans.
After multiple rebuffs by the Supreme Court, antiabortion activists realized that Roe v. Wade would not be overturned as easily as they had imagined. In the period immediately after the announcement of the decision, every time anti-choice activists went into court,the abortion right seemed to emerge further solidified or expanded. As a result, they refocused their attention on legislative activity. If they could not get Roe v.Wade reversed, they could at least chip away at it. Antiabortion actiists did this by introducing bills that required spousal and parental consent, by insisting that federal monies not be used for abortions, and by attempting to regulate the act of abortion itself.
Attempts to enforce spousal approval were destined to fail in an era when women’s rights were expanding. Roe v. Wade lodged the abortion right firmly with the woman, and several subsequent Supreme Court decisions failed to lend support to any kind of spousal conent law. Antiabortion activists hd more success with parental consent lws. Unlike spousal consent laws, which angered women and flew directly in the faceof Roe v. Wade, parentalconsnet laws antagonized fewer people. These laws garnered a lot of public support, although this was partially because of the way that the antiabortion movement packaged the issue. Antiabortion activists insist that without parental consent laws, the federal government will make decisions that traditionally belong to the family.
- A few months earlier, during August 1969, Norma had been traveling throughout the South with a carnival. Her job selling tickets to an animal sideshow was not exciting, but she loved the life. It was the people who attracted her to the carnival. These people were theater. They were even better than theater, these exotic vagabonds who got paid for roaming the country and performing their various acts and tricks for delighted audiences. Norma liked this life more than anything she had ever done. For once she did not feel like an outsider, as she so often had with her family. The carnival felt like the home she had been searching for and had never found. Unlike her parents, her co-workers simply accepted her for what she was and asked few questions. She had even made a couple of special friends, two women with whom she shared a motel room.
Norma told Linda and Sarah how she was selling tickets one sultry summer night, the last night of the carnival’s gig in a small town outside Augusta, Georgia, when some minor trouble broke out. She and several of her co-workers were harassed by a group of rough-looking, tough-talking young men. Since it was the kind of disruption that often rippled through a traveling show, it was no cause for alarm. Because this was the carnival’s last night in town, the atmosphere was more festive than usual, and the women treated the men with good humor, even bantering with them a little bit.
After the show closed that night, several hours’ work remained to be done, taking down the big tents and paking them away so the show could leave the next morning. As a result, Norma and her roommates decided to walk back to their motel rather than wait for their usual ride. It was during the walk back to the hotel with her friends, Norma recalled, that real trouble broke out. On the way back to her room, she told Weddington and Coffee, she was raped.
- Norma could remember few details of what had happened to her. She thught she had lain by the side of the road for several hours. The rest of the evening passed in a haze. When Weddington gently probed for more, Norma’s story became confused and vague. She thought the rapist might have been one of the men who had disrupted the circus earlierin the evening.
What had happened to the women who were with her? Sarah asked. Norma said she did not know, she only knew that when she managed ro rouse herself, she was alone. She stumbled back to her motel room, only to find it empty. Her roommates had vanished, taking her belonging with them. She did not report her rape to anyone, nor did she talk to or even see anyone in the hours immediately following the rape. She crawled into bed. <br When she awakened in the motel room the next day, Norma was still alone. The circus had left town without her and, in the course of doing so, had left her with no money, no way even to pay for the motel for another night. A defeated Norma decided she would return to Dallas, where her famly and friends lived She knew no one in Augusta, Gergia, whom she could ask for help. Norma telephone an old friend in Dallas to ask her to send enough money for the bus trip home. To her chagrin, the friend wired only the exact amount of the bus fare Norma sold the taxi driver the radio from her motel room to pay for her ffare to the bus station. The trip back seemed endless, Norma said, particularly since she had no money to buy food and thought she had changed buses several times.
- Norma told the two women about her search for an abortionist. She knew that she did not want to have this child. She did not know the father. She had no way to support a child-no home and little income. She was not even managing to rear her daughter, who was living with her mother and stepfather in Arkansas. Her life was a mess, and she had no idea when or how she would pull it together.
She asked the physician who had told her she was pregnant about an abortion.
- Ch.1 p.9
- Norma was not one of the lucky ones. Her physician curtly informed her that abortion was illegal in Texas and suggested that she travel to where the laws were more liberal. In 1967 abortion was legal in Colorado and California, two nearby states, as well as in Georgia, but even the new, so-called liberal laws had restrictions, such as residency and time requirements, that would have made obtaining a legal abortion difficult for norma. Texas women frequently went to Mexico to obtain illegal abortions in the numerous clinics operated for that purpose, but Norma had heard abut those-especially the cheap ones-and did not want any aprt of them. Besides, se barey had carfare home from the doctor’s office, let alone the money to travel anywhere to get an abortion. It seemed her only alternatie was an illegal abortion in Texas. She hopes she could find someone skilled to do the surgery. <br Noma spent the next few weeks ina futile search for an abortionist. Sh talked to a few women she knew, hoping one of them would give her the name of someone who could help. She learned that a competent abortion, even an illegal one, cost a lot of money. The kind that could be bought for $50 or $100 was not, in Norma’s opinion, worth risking.
Gradually, over several weeks, she began to consider the only other option she could think of, which was adoption. She returned to her physician for help. He gave her the name of a young lawyer, Henry McCloskey, who sometimes arranged private adoptions. Norma alled McCloskey, and he agreed to meet with her.
McClosket turned out to be a kind man who took time to listen to Norma and get to know her. She told him that she really wanted an abortion, but since she could not afford one she had no choice but to have her hild and put it up for adoption.
Without telling er why, McCloskey asked orma to meet another lawyer. He promised Norma she could return to him if the other lawyer was not helpful. That was how Norma met Linda Coffee and why she was sitting ina restaurant recounting her story for Coffee and Weddington.
- Now it was time for Coffee and Weddington to tell McCorvey what she could do for them. They told her they were looking for a woman to be a plaintiff in an abortion suit. They asked Norma if she were aware that many people wanted to change the abortion laws. Norma was not alone in her attempts to obtain a legal abortion, nor was she alone in her failure to get one. Many women who eeded abortions found themselves unable to obtain one and were forced into illegal ones. Because abortion was illegal, no one knew for sure how many women terminated their pregnancies, but ony study found tat the women surveyed ended between one-fifth and one-fourth of all their pregnancies.
nly eight to te thousand legal abortions were done each year in the United States, while experts guessed that between a million and a million and a half abortions were done annually. Women who got illegal abortions took a much greater risk than those who were able to obtain legal ones. Some women got to competent illegal abortionists, Weddington said, but many more suffered at the hands of uncaring, unscrupulous, illegal practitioners.
While she was looking for someone to perform an abortion. McCorvey told the two women, she had heard many horror stories about what happened if a woman went to te wrong kind of abortionist. That was why she had not been able to go through with the surgery. No licensed doctor would agree to perform the operation, and although one abortionist had offered to do it for $500, he did not have a medical license, and she was afraid to lethim touch her.
Weddington asked Norma how she had felt when she could not get an abortion. Norma replied that she was angry at being forced to have a child whom she did not want and culd not care for. Sarah said that she and Coffee were angry too, and that they wanted to help women in her plight. That was why they needed her help.
- Weddington and Coffee’s motivation in taking on the Texas abortion laws was, I discovered omewhat to my surprise, primarily ideological. On one of my visits to Texas, I asked th two women why they ahd decided to work on abortion reform, as opposed to any number of other women’s issues. Neither woman had undergone an abortion nor had any firsthand experience with one. Like so many other women their age, they had known or heard of women who had undergone illegal abortions, but abortion had not touched either woman in a close, personal way. But like many women, although their interest was impersonal and somewhat abstract, they were angry. As they told Norma, they wanted to help women, and since they had legal skills-something few women could claim at that time-tey thought they could use them to do something about the present restrictive laws. Each woman told me separately, in remarkably similar words, how attuned she was to the rapid changes occurring in women’s lives. The idea of abortion liberalization was in the air from the mid-1960s on, and the two women thought they culd do something, at least about the Texas law.
- Norma knew nothing about the legal system. She had no idea what a plaintiff was and consequently was not sure what she was being asked to do. Coffee and Weddington told her they were planning to challenge the abortion law of the state of Texas. They could not do this, they explained, simply by going into court and asking a judge to overturn the law. Instead, they had to bring a suit-in this instance, obviously, a suit involving a pregnant woman-into court. The pregnant woman, not Coffee or Weddington, would actually sue the state of Texas. Beecause she was the person filing the formal complaint, she was considered the plaintiff. After the suit was filed, there would be a trial or a hearing, perhaps severalhearings. Norma might have to be present; she might even have to testify. Sarah and Linda assured her, however, that they would do most of the talking in the courtroom.
A judge would then weight the facts of the suit and use them to decie whether or not to permit the plaintiff to have an abortion. If a Texas judge ruled that one owman could undergo an abortion, then all the women in Texas in similar circumstances would be entitled to one. Coffee and Weddington wanted to build a broad-enough case to that any Texas women who wanted an abortion would be able to get one as a result of the ruling they hoped to obtain. They oped their case would result in a clear-cut rejection of the Texas abortion law.
It would not be easy to build such a case, and the risks were high, they knew. Once they went into court, a judge could decide in their favor, ruling that the Texas abortion law was illegal. He could decide to strike only ertain aprts but not all of the law, or, worst of all from their point of view, a judge could decide that no part of the law was illegal and in effect let the law stand as it was. In that event women would not be allowed to ave abortions, and it would be difficult for anyone else to challenge the Texas abortion law after a recent ruling supporting its legality.
- [I]f it would help, they would want their plaintiff present in the courtroom durig the proceedings, an event that would almost certainly destroy any anonymity she had. Her presence might evenbe require dby the court. Alternately, they might try to play down her role, in hopes that she would be seen as a sort of Everywoman, a symbol of the need to reform the abortion laws. Either way, their plaintiff would have to be under their control. Would McCorvey, they asked themselves, submit to their guidance in matters like these?
Yet such considerations were just theoretical possibilities that might or might not occur in the course of the lawsuit. The most pressing practical issue,Coffee would recall in our conversations, was whether they couldactually help Norma get the abortion she wanted. Just possibly they culd arrange for her to obtain a court-sanctioned one, but chances were far greater that they would not be able to do so. The wheels of ustice did not turn rapidly. By the time the elgal system was through chewing on the wisdom of whether to allow her to have an abortion, Norma would most likely have had her baby.
Norma had looked pregnant to Linda Coffee since their first emeting. It seemed to Coffee that she was pushing, if not into, her second trimester. This meant that if Norma were to undergo an abortion, she should do so right away-probably within the next two or three weeks. The only way the two lawyers could see to act quickly enough was to file a request for a restraining order.
- Ch.2, p.15
- Although this was something they had yet to research, Weddington and Coffee thought they could take their case intoa federal court, that this was the proper forum fr challenging a state law. It offered the possibility of a more encompassingdecision, one that could set a precedent for decisinos outside Texas. But it also made their case more difficult. The federalcourts, ever wary of states’ rights issues, were being ultracautious, largely because eof some recent ruling involving criminal cases in which they were perceived, at least by some, as having overstepped their power to ruleon state laws. In fact, there was every reason to believe that a federal judge would be even more reluctant than a local or a state judge to issue a restraining order that would overturn a state criminal law.
Apart from all these considerations, even if they did find judge willing to issue a TRO, they would still have to find a physician willing to do the abortion. That they suspected would be an impossible task as long as the law was still in limbo and the physician might risk later prosecution.
The first and most difficult decision the two lawyers made, then, was not to seek a TRO for Norma, even though that was her only chance for getting court permission in time to have a legal abortion. Since she wanted an abortion badly, this might mean she was not the best plaintiff for them after all. They needed to impress upon her exactly what this meant-namely, that she would most likely have to go ahead and have the baby if she became their plaintiff.
- After hearting so much about McCorvey’s background, Weddington and Coffee became concerned that she might not be sucha good plaintiff after all. Her life thus far-a high school dropout, married at sixteen, a daughter she did not have custody of, walking out on a visit with her daughter to joina c arnival, her present hand-to-mouth existence-was a major problem. Another problem was the rape. In our talks, both Weddington and Coffee recalled that it was a delicate issue. Sensitive as the two women were to any woman’s claim that she had been raped- a claim that was too often ignored or, worse,challenged-they were also lawyers, trained to size up a potentialwitness’s credibility. And whatever had happened to Norma McCorvey, they did not feel that she would bea ccredible plaintiff ina rape case, let alone in an abortion case involving a rape.
Coffee in aprticular was struck by McCorbey’s lack of emotion when she described the rape at their first meeting. Some rape victims are stoic, even with the people who try to counsel or otherwise help them, byt McCorvey’s remarkably unemotional recounting of how she had been raped made her lawyer uneasy. McCorvey was vague about the circumstances of the rape, and her story became more unclear and the details more bizarre with each retelling. She told Coffee and Weddginton she had not gone to the police or filed nay kind of official report. Initially, she said she had been raped by one man; she later changed her story and claimed she had been gang-raped, sometimes by several men and her female companions, sometimes by a white, black, and Hispanic man, a highly unlikely combination to have been walking together down a Georgia country road late at night in 1969.
- Weddington and Coffee wondered whether McCorvey had, I fact, been raped, but regardless of the circumstances, they were concerned that the rape not become an issue in their case. Rape victims did not fare well in court. Their lives were often subjected to excessive scrutiny. In act, much more attention was typically focusedon the character of the women who were raped than on the men who raped the, and women who pressed rape charges frequently had to prove that they hadnot in some way “invited” the rape. Beyond that, there was the problem of blame-and punishment. However much rape (and, for that matter, abortion) laws appeared to be neutral, they were not. They were based at least in part on society’s standards and expectations regarding sexual mores. Therefore, a woman who was perceived as having “invited” a rape was seen as having gotten what she deserved, and similarly, a woman who “needed” an abortion had better be prepared to prove that she deserved one.
- The second time the three women met, the lawyers explained to McCorvey that in all likelihood she would have to go ahead and have her baby if she became their plaintiff. They told her there was almost no chance that a court would decide her case in time for her to get an abortion, and that possibly the law would not be overturned at all.
Coffee and Weddington offered to help Norma get an abortion if she wanted one. They felt honor-bound to do so. There was a slight chance that they could still use her as a plaintiff even if she got one. Offee thought they could perhaps build a case around the argument that their client ahd een forced intoa d angerous, possibly septic and illegal act, and that it wa s violation of her (and by implication, other women’s) civil rights to put her in this position. Both women knew, however, that they were ar more likely not to use Norma as hteir plaintiff if she got an abortion They would probably go looking again for a rpegnant woman who would be willing to be their plaintiff.
Norma turned down their offer and agreed to go ahead and have the child. Although Weddington would recall that her motives for doing so ahd been largely altruistic, her decision was also undoubtedly motivated, at least in part, by the simple fact that four months into her pregnancy she was not likely to get an abortion anyway. After three months, abortion was done by a mini-Caesarean section and was considered major surgery. Rarely could a “legal” hospital abortion be arranged at that stage, and illegal abortionists never risked this kind of surgery. In another fifteen years, the technology would be developed to make late abortions safe, but in 1969 it did not yet exist.
The next thing Coffee and Weddington brought up with Norma was how long the case might take-moonths or even years, if it were appealed. Although the legal maneuvering woulds be complicated and difficult for any layperson to understand, they promised they would do their best to keep her informed throughout the case.
- Finally, the three women discussed the publicity that would quite likely esue from the case. Abortion was rapidly becoming a hot topic with the media, and hardly a week went by without another newspaper series, editorial, or nationwide poll pointing out the mounting pressure for reform. Although the subject had been tabo only two or three ears ago, women’s magazines now wrote regularly about abortion-usually touting reform. Weddington and Coffee suspected that a torrent of publicity would begin once the rpess got wind of their suit. With it, they feared, might also come some harassment of their client or, at minimum, te loss off her privacy.
The latter would be more overwhelmingy intrusive than she might imagine, they warned. They coul try to protect her from it but might not be able to do so. If the court insisted that she appear or testify, they would not be able to keep the press from identifying her and delving into her background. The press would be eager to interview her. She would, they warned, become the “human interest” in an otherwise relatively dry legal case.
Norma’s fears about publicityhad more to do with her family than anything else. Her father was a Jehovah’s Witness, and her mother was nominally a Roman Catholic; while neither parent was particularly religious, she worried that they might have strong antiabortion opinions. They had never expressed any feelings one way or the other about abortion, but then she had not told them she was trying to get one.
- Ultimately Norma decided to go ahead with the lawsuit but indicated she wanted as little publicity as possible. She specifically did not want her parents or her daughter to know of her role in the case. Nor would she tell her friends. When Coffee and Weddington suggested the use of a pseudonym, she readily agreed. It would at least offer her some protection. They quickly settled on Jane Roe.
Coffee and Weddington would prove tobe quite successful at protecting their client’s privacy. Over the years,reporters would occasionally try to discover Jane Roe’s identity, usually on important anniversaries of the case. Her lawyers grew so used to her refusals to grant interviews that they no longer called her with requests. For ten years, until Noma herself broke the silence, no one, not even other lawyers who would work on the case knew who Jane Roe was. <br When McCorvey broke her silence in the early 1980s, she talked only to a handful of reporters and writer before engaging the services of an entertainment lawyer in Dallas. After that, she would only agree to be interviewed if she were paid.
- Coffee and Weddington had only one last concern to bring up with McCorey before settling on her as their plaintiff, and that was whether she would be able to go the whole way with them. After having come so far, they could not bear the thought of putting in months of work on the case only to have their plaintiff get cold feet and ask them to drop the suit. They talked to Norma about this, too, untilboth women were convinced she would stay with them.
From their first meeting withNorma, Coffee and Weddington had been impressed with her enthusiasm and spunk, as well as her desire to help other women who were in the same situation. Through all their discussions, Norma never wavered from her willingness to proceed. In our conversations, Weddington would reall that Norma seemed to have osme sense of the historic proportions of the cse. <br The three women agreed that it was settled: Norma McCorvey wouldbecome their plaintiff.A Challenge to the texas abortion law,which had stood inviolate for over one hundred years, was under way.
- One possible means of change, a painstakingly slow one, was the state legislature. But that would require the cooperation of Texas state legislators, most of whom wanted nothing to do with “libbers’” causes or even, for that matter, causes of women who were not “libbers.” Besides, Weddington and Coffee had no political clout with the Texas state legislature-and, in fact, they knew few Texas women who did.
A court challenge was the other possibility, one that seemed more viable. The courts, especially the federal benches and the Supreme Court under Chief Justice Earl Warren, were the scene of most battles over civil rights legislation in the reform-oriented 1960s, in large part because they had proved to be the branch of government most receptive to social change. Of course, a court challenge could drag on, too, as witnessed by the years of courtroom squabbling that had followed the Supreme Court decision ordering the desegregation of public schools. The city of Dallas had been embroiled in a suit to work out an acceptable desegregation plan for almost a decade.
Coffee had experience with the judicial system, and that would be helpful. Another advantage to a court challenge was the element of surprise it would provide. Law enforcement officials would not be expecting a court challenge, so the state might not offer much opposition. All things considered, both women thought the courts were probably the way to go, in Texas at least. They decided they would each begin looking for a potential test case to take into court.
- In all their hours of planning and speculating, the one thing the two young, inexperienced lawyers never discussed or even considered was their boldness in planning to challenge a state law. This was because the idea of taking on a state government or even the federal government, for that matter, was not as unusual or difficult a task in the late 1960s as it has since become. In those heady days of civil rights activity, countless lawyers, many of them fresh out of law school and imbued with a sense of idealism, were hoping and praying to make their mark somewhere. At issue was not so much whether they would challenge a law, but which law they would challenge. Coffee and Weddington later admitted they were simply too young and inexperienced to understand fully what they were taking on. In one of her rare expansive moods, Coffee told me, “When you’re young, you have high aspirations, and you just do what needs to be done.”
- The first order of business was to find s suitable plaintiff. Thinking that their best resources were the numerous feminist organizations that they had joined, each woman stepped up her activities, Weddington in Austin, where she was still living at that time, and Coffee in Dallas. Both women made themselves available as speakers on the subject of abortion. They gave speeches intended to educate women on the need for abortion reform, but always, as they made the rounds of various women’s groups, the more traditional volunteer groups as well as the feminist ones, each was looking for a certain kind off woman, someone with the potential to become an abortion-case plaintiff.
It was also not unusual for a lawyer who was looking for a plaintiff in a test case to put out feelers among his or her colleagues to be on the lookout for someone suitable, and Coffee had done that in Dallas.
- For a while, Weddington has hopeful that a plaintiff could be found among the women in the problem-pregnancy counseling group-if not among the organizers, then among the women they counseled. She met several times with the abortion-counseling group to discuss the possibility of developing a test case. She talked about what was needed to overturn the laws, how such a case would proceed, and of the demands that might be made of anyone who volunteered to become a plaintiff. Gradually, though, her hopes faded, at least for finding a plaintiff among the referral group. One problem was that most of the women who sought counseling new they wanted an abortion. The sooner a woman underwent an abortion, the healthier it was for her, and few were willing-or could justifiably be asked-to risk the delay that even brief legal proceedings might entail.
The other possibility was to use a member of the referral group who happened to be pregnant, even a woman who did not want an abortion but was willing to claim that she did in order to press an abortion suit against the state. It certainly was not Weddington’s first choice to use a kind of trumped-up defendant, but if no one else turned up, she realized that it might be her only option. That might be more humane in the long run, anyway, since she knew that any suit she filed would most likely not be decided in time for a plaintiff to undergo an abortion.
Still another thought was to file a class-action suit using the Austin referral group. The members were eager to help in any way they could, so much so that when Weddington once asked if any one in the group happened to be pregnant, several voices chorused, “No, but that can be arranged.” The problem with using the group was that at least one plaintiff had to be representative of the class. In this case, that meant pregnant and desiring an abortion.
- Coffee, too, had begun to do more public speaking in Dallas in an attempt to find a plaintiff. One night, at a meeting of a feminist-oriented group, Coffee was approached by a couple who began to talk to her about her work in abortion reform. Eventually the couple got around to suggesting that they might be willing to become plaintiffs in an abortion support. The woman told Coffee that since 1968 she had suffered from a neural-chemical condition that caused backaches and depression severe enough that her physician had suggested she not become pregnant for the time begin. She had to stop using the Pill, then the most reliable form of birth control, because it blurred her vision. Four months after the onset of her physical problems, she had become pregnant. Apart from her illness, she and her husband did not feel they were ready for a child, so they decided on an abortion. Through an abortion-counseling service, the woman had made arrangements to obtain an abortion at a clinic outside the United States.
Despite using contraception the couple were worried that the woman might become pregnant again. They could not afford another abortion if it meant travelling outside the country. In an interview they would later give to Barbara Richarson, a reporter for the Dallas Times Herald, they shed more light on their willingness to become plaintiffs. Both felt a “moral imperative” to help legalize abortion. The husband added: “Our personal, moral, and ethical codes were outraged by the law.”
On the one hand, coffee thought the couple would make excellent plaintiffs. They were impressive: young, married two years, both professionals with advanced degrees churchgoing Methodists, active and involved in community life, and most important, they had an excellent reason for using abortion as a method of backup birth control.
On the other hand, there were problems with using them, not least of which would be the need to explain to the court why the woman’s own physician had not done an abortion when she became pregnant. Coffee suspected that although the woman’s physical condition was serious, it was not really so threatening that she could not bear a child.
The biggest drawback to using the couple as plaintiffs was that their case was weak, legally speaking. Like most other states, Texas permitted abortion to save the mother’s life, and the present law could easily be interpreted as sufficient to cover their situation. Coffee believed the case would be thrown out of court on the grounds that it involved no controversy. Such an evasive action would have particular appeal, Coffee feared, to a judge who was not eager to become involved in something as controversial as abortion.
Despite several major disadvantages to using the couple, Coffee decided to go ahead and try to build a case around them anyway, largely because in several months of looking for a plaintiff, she had not found anyone else. Meanwhile, she would continue her search. The young couple were eager to prtect their anonymity, so they agreed with Coffee to be known only as John and Mary Doe.
- The Texas abortion law consisted of six separate articles:
Article 1191. Abortion
If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or any means whatever externally or internally applies, and thereby procure any abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. BY “abortion” is meant that the life of the fetus or embryo shall be destroyed in the woman’s womb or that premature birth thereof be caused.
Article 1192. Furnishing the means
Any person who furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice.
Article 1193. Attempt at abortion
If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce abortion, provided it be shown that such means were calculated to produce that result, and shall be fined not less than one hundred nor more than one thousand dollars.
Article 1194. Murder in producing abortion
If the death of the mother is occasioned by an abortion so produced or by an attempt to affect the same, it is murder.
Article 1195. Destroying the unborn child
Whoever shall during parturition of the mother destroy the vitality or life in a child ina state of being born and before actual birth, which child would otherwise have been born alive, shall be confined in the penitentiary for life or for not less than five years.
Article 1196. By medical advice
Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.
Weddington and Coffee decided they would challenge the constitutionality of Articles 1191 through 1194 and 1196. Article 1195, which referred to the destruction of the fetus during the process of birth, could be read as a straightforward malpractice law, so they felt no challenge was necessary.
- The two women were grateful that the Texas abortion statute, enacted in 1859, was what erformers referred to as an “old-style” law, compared with the “new-style” reform laws that had been written in the late 1960s. The Texas law was unusually restrictive and permitted abortion only to save te mother’s life, not even in cases of incest or rape. In contrast, the new reform legislation typically added therapeutic exceptions-to preserve the mother’s physical or mental health, to prevent serious fetal deformity, and to terminate pregnancies resulting from rape or incest. In theory these new laws were supposed to make abortion more widely available. In practice they made it less accessible since complicated administrative procedures, such as residency, age, and consent requirements, hindered the abortion process, especially for women who did not know how to cut through red tape.
The constitutionality of some of the so-called reform laws was already being challenged in courts, at considerable time and expense. With an old law, a court challenge could be straightforward and uncomplicated, or so the two women hoped. They would not have to spend a lot of time and money amassing statistical evidence that the laws were being administered in a discriminatory fashion, nor would they have to pay expert witnesses to attest to the fact that consent or age requirements denied women access to abortion. Instead, they could base their challenge on a single, straightforward issue, the idea that the Texas abortion law was unconstitutional.
- Coffee and Weddington could not have undertaken the case had they been required to spend much money on it. Their only source of funds was personal, and neither woman earned much money. Since both were now working at full-time jobs, Coffee at her law firm and Weddington as Ft. Worth’s first woman assistant city attorney, all research would have to be done in their spare time. The subject of fees never came up with their clients. The Does were employed but did not earn very much and lived in a tiny one-bedroom apartment, and Norma McCorvey had no home and was barely making ends meet working a part-time as a waitress or bartender. Had the case been undertaken by a major law firm, even on a pro bono basis, considerably more money and manpower would have been devoted to its preparation. A law firm would assign several associates or junior partners to do the initial research; the women had no one but themselves. Fortunately their expenses were minor, consisting only of some nominal court fees.
- Legal research is not unlike looking for a needle in a haystack, and although it has been made easier in recent years by desktop computers and Lexis, a legal database that produces almost instantaneous results, it still tends to be tedious work. One begins with a theory-in Coffee and Weddingtons case the idea that the current Texas abortion law was unconstitutional-and then looks for material, either in the form of important law journal articles, precedent-setting cases, or in their case, since material was sparse, prior cases of any kind, to support the theory. Coffee and Weddington spent hours combing bibliographies and indexes for clues to cases or journal articles that might be relevant.
The use of the courts to attack the constitutionality of a law was a recent development. As a legal tool, it came into widespread use during the 1950s and 1960s, an era of expansionism in civil rights. Lawyers who chose to challenge laws were often required to mine new territory within the Constitution, to seek connections where none had previously existed. It was exciting and even exhilarating work, but it also required creativity and thoughtfulness and sometimes more than a little daring. Above all, of course, the results had to be persuasive.
Both women believed, as did most lawyers working on abortion, that any constitutional challenge to the abortion laws would be based on the Fourteenth Amendment, which guaranteed equal protection under the law. Beyond this, Coffee and Weddington had little idea whether there were other grounds for overturning the laws. They began by looking for other abortion cases, ones that might support their theories or provide new ones.
- Coffee and Weddington found surprisingly little to go on. Few suits had been brought involving abortion, and even fewer were important enough to set precedents. No abortion case had yet come before the Supreme Court, and only a few state courts had dealt with the issue. They found only one recorded case in Texas. Watson v. the State f Texas, decided in 1880, involved a young woman named Mattie Shook, who became pregnant by a man known only as Watson while living with him, his wife, and his children. Because he was a physician, Watson told Shook he could give her a medicine that would cause her to miscarry. Despite taking ergot, the drug he prescribed, even more frequently than he had ordered, she failed to miscarry. A note describing Mattie’s condition was sent to the doctor’s wife, reputedly from Mattie’s fiancé but actually from Mattie herself, and this led to the court case. Mattie Shook Testified against the physician.
A lower court found the man guilty of “designedly” administering an abortifacient, an illegal act under the Texas antiabortion law, but a Texas appellate court reversed the lower court on technical grounds. The court’s reluctance to punish the abortionist twenty years after abortion had been outlawed in Texas was interesting and ever persuasive but the case was of little help to Weddington and Coffee, based as it was on a technicality rather than on any constitutional grounds.
- In Texas, where abortion was already viewed as a states’ rights issue, the Ninth Amendment was interpreted as reserving to the states all powers not specifically granted to the federal government. Coffee and Weddington were sure that even if they could prove that the present law was unconstitutional, the state of Texas would still be able to make a strong claim that the writing of a new law was up to the state legislature. And the state’s lawyers might even argue that the court had no business striking the law, that this, too, was the province of the legislature. (Opponents would always maintain that abortions should be regulated by the states; they viewed any kind of federal court ruling on the issue as anathema.) Using the Ninth Amendment to strike the abortion laws would, as far as the state was concerned, be like waving a red flag in front of a bull. Despite this, both women saw that the Ninth Amendment offered a substantial ground for recognizing the right to privacy and decided they had to use it.
- The constitutional amendment that offered the most support for overturning the abortion laws, at least in the eyes of many legal experts, was the Fourteenth. Generally, it guaranteed every person equal protection under the law. Specifically, the due process clause of the Fourteenth Amendment required that laws be written clearly enough or the average person to understand. A law that was vaguely written for example, was unconstitutional because it caused confusion about who was protected by it and the circumstances under which protection was extended-the very thing physicians objected to about the abortion laws.
- Coffee was afraid, however, that any ruling based on the Fourteenth would leave control of abortion in the physicians’ hands rather than in the hands of women, where she believed it belonged. If they got a ruling based on the Fourteenth Amendment, she feared there would be nothing to stop the Texas legislature from writing a new, crystal-clear law, possibly with the assistance of physicians, that still left the abortion decision in the hands of doctors-and under-mined the right of women to decide for themselves.
Coffee, who wanted at least to make a stab as establishing a woman’s constitutional right to abortion, had no trouble persuading Weddington to share her view. Both women had come to believe that a woman had a right to control her own body, which included the decision to terminate a pregnancy, but they were less sure that the general populace or even a liberal court would share that conviction. So rather than risk everything, they opted to follow a more conservative course of action and include the Fourteenth Amendment with all its potential risks to women.
They developed a strategy in which they would stress those amendment that addressed a woman’s right to abortion in their oral arguments but would also be prepared to fall back on the Fourteenth Amendment if necessary. In part, they chose this strategy because it would enable them to use two major decisions that were handed down as they were preparing their own cases. These involved abortion laws that had been declared unconstitutional on grounds of vagueness, but in each lawsuit the courts had also had something interesting to say about women’s rights to abortion.
- As they got deeper into the abortion issue, Coffee and Weddington would each come to believe that the woman’s right was unequivocal and should not be infringed upon by anyone, but they also knew tis was too radical a view to present in court-or anywhere else publicly, for that matter.
Only one other issue remained to be discussed-the discrimination women suffered because of the restrictive abortion laws. Weddington felt strongly that she wanted to stress this. Imbued with a deep sense of social justice, she was acutely aware of how unmarried, pregnant women were treated in our society, the fact that they were forced to drop out of high school or to attend alternate schools, that they could not participate in school activities. Many colleges and universities would not admit unmarried, pregnant women. Employers discriminated against them in their hiring practices, and of course, many of these same prejudices applied to married, pregnant women. Wedddington felt strongly that unless women could control when they bore children, they could not full control their own lives, and she wanted to emphasize this as she prepared Norma McCorvey’s case. Coffee readily agreed that these were important issues.
- Although Weddington was not naturally given to dealing with abstractions, the two women soon decided that she would research the merits of the case while Coffee tacked the procedural legal issues such as standing and mootness, with which she was more familiar. If Coffee minded or even realized that Weddington was taking over the more glamorous aspect of preparing the case, she never acknowledged it even to herself.
- The first reaction came, not surprisingly, from the conservative Dalas Times Herald, which ran an editorial on Friday, March 6. Noting that the abortion laws were “badly in need of intelligent over-haul,” the paper still found itself opposed to the suits: “We have no sympathy with the attempt of a married people and of a single woman to get the existing abortion law declared unconstitutional by a Dallas federal court.” Specifically, the paper took issue with the fact that the plaintiffs were “disguising their identities with fictional names. . . . “ The newspaper’ s real objections to the cases, however, seemed to be that so serious a social problem was being tossed into the hands of a few judges.
- Even though it was not actively enforcing the Texas abortion law, the D.A.’s office could not be described as receptive to a challenge to it. In the 1960s most states’ law enforcement agencies, including the Dallas District Attorney’s office, looked upon the numerous civil rights challenges that began coming their way as frivolous. They resented the time they took up.
Nonetheless, given the times, Wade’s office had been expecting some kind of attack on the laws that discriminated against women. They thought perhaps women would strike out against protectionist labor laws. No one thought the abortion law would be challenged, and it came as a shock when it was. There had been no sense among the conservative, mostly male lawyers in the D.A.’s office that any major discontent had been building among women regarding abortion. Besides, they tended to view the state’s abortion law not as discriminatory against women so much as a statement about the moral standards society wanted to uphold. As a result, just as Weddington and Coffee had hoped, Wade’s office was totally unprepared for their attack on the state’s abortion laws. And from the minute Roe v. Wade and Does v. Wade were filed, Wade and his staff recognized that these were serious challenged and, therefore, potentially significant cases.
- The attorney general’s office quickly learned that Coffee and Weddington were reputable, capable lawyers, and that Coffee had clerked for Judge Sarah Hughes on the Fifth Circuit. The pleadings were carefully thought out and well written. However, this is not to say that anyone in the district attorney’s office thought for a minute that the abortion laws stood a chance of being overturned. They did not, and they were sure they would prevail in any courtroom. Still, it was clear this was no frivolous lawsuit.
None of this helped anyone’s mood in the D.A.’s office when Wade was served the papers. Wade’s lawyers, who usually went to trial for murder, armed robbery, or rape, did not want to waste their time on a challenge to a nearly defunct, century-old state law. It was typical of Wade, however, not to slight the case, not least because a federal lawsuit against him had recently slipped through the department’s hands. Wade had learned of it only when a judge called him and asked if he knew he was being sued for $50,000 and that no one in his office had responded to the complaint. After that, Wade assigned one of his brightest assistant D.A.’s to work full-time on federal lawsuits brought against county officials.
- May 23, the day of the oral arguments in the Fifth Circuit Court, was merely overcast, but it could have been pouring rain and Coffee’s and Weddington’s spirits would not have been dampened. Both women were surprisingly self-confident considering their youth and inexperience. This would be Weddington’s first courtroom appearance, and Roe v. Wade was certainly the biggest case Coffee had ever handled.
The two women met early on the morning of the hearing to review their arguments. Coffee would lay the groundwork with a discussion of the technical, procedural issues involves, but both women were eager to drive home the idea that a woman’s right to abortion was constitutionally protected. This was the crux of their case.
They would be sharing their arguments with Fred Bruner and Roy Merrill, counsel for Dr. Hallford. Although the lawyers had talked with one another several times over the past few months, they would be meeting that morning in person for the first time. Since their primary responsibility was to their client. Bruner and Merrill planned to argue that the laws were vague and overbroad, the typical defense when a doctor was accused of illegal abortion. These were constitutional issues, too, but a ruling that the Texas law was vague or two broad did nothing to establish a woman’s constitutional right to abortion.
- Ch.8, p.124
- From Coffee and Weddington’s point of view, the panel looked as if it had been hand-picked for them, and indeed, many people were willing to believe that Fifth Circuit Chief Judge John Brown had weighted the panel in favor of the abortion-reform forces. It is highly unlikely that he did any such thing. First of all, the Fifth Circuit at the time was judicially active and liberal; second, there were guidelines about the choice of judges for a three-judge court. Since Coffee had filed two separate cases, which were assigned to two different judges, the judges in whose courts the cases fell were automatically appointed to the panel when the case were consolidated; that accounted for the presence of Taylor and Hughes on the panel and left Brown with only one justice to appoint with a free hand. That had to be a circuit judge, and Goldberg was an obvious choice since he lived in Dallas. Nevertheless, the makeup of the panel provided the two young lawyers with an enormous psychological boost.
- In summary, Bruner addressed an issue that had concerned the justices throughout the arguments-namely, whether declaring the Texas law unconstitutional would permit anyone—even scurrilous, unskilled abortionists-to perform abortions. Unlike most states, Texas had no law restricting abortion only to license physicians, and the court had shown concern that overturning the law might mean anyone could perform abortions under any circumstances. Bruner declared “I think the very fact that . . . this abortion law [is] on the books in Texas had driven women to [illegal abortion] in the state today, and that if the abortion law of the state of Texas were declared unconstitutional, it would give women the right, the constitutional, it would give women the right, the constitutional right, to go to the doctor or to a qualified person who had the right surgical instruments and have this matter doe at their wishes. . . . “
- The Texas attorney general’s staff was beleaguered with civil rights suits in the late 1960s. At time they averaged fifty-two cases per lawyer. The numerous civil rights cases were considered a thorn in their side because they took up so much time and manpower for what were deemed inconsequential reasons. One prisoner, for example, had managed to file seventeen separate lawsuits involving possible violations of his civil rights. And if prisoners were a problem, students were even worse. Across the nation they had torn up campuses and towns, and even in staid Austin mobs of students from the University of Texas had swarmed over the Capitol grounds. Lawyers from the attorney general’s office had stood at the windows of their seventh-story office and watched what they could only view as out-and-out (and in their view, inexcusable) anarchy.
By the time Roe v. Wade was filed, though, the attorney general’s men were optimistic that the pendulum of public opinion was swinging back to a law-and-order stance. People were tired of having their courts tied up with frivolous civil rights challenges from long-haired kids, draft protestors, and other dissidents. No one understood what women had to be so unhappy about. As the sixties drew to a relatively quiet lose the attorney general’s office had gotten its second wind; they would be more than happy to take on anyone who wanted to challenge the state’s abortion laws. They were sure the case would be an easy victory for them.
The state could have decided not to respond to the challenge. It would have been a simple matter to let a law that was relatively unenforced anyway become officially defunct. When a woman had sued to establish her right to march with the Texas A & M band, the attorney general had declined to defend the law that kept her out of the band. But no one, at least no one in the attorney general’s office, thought legalizing abortion was as simple an issue as letting a woman march with the boys if that was what she wanted to do. Abortion involved life-and-death issues-specifically, the life of an innocent fetus that could not defend itself. No one was surprised when word came down from Attorney General Crawford Martin himself that the state would defend its abortion law.
- Flowers left his people alone once he ha assigned a case, asking only to be updated on an informal basis; but Roe v. Wade intrigued him, and it seemed to have personally interested the chief, too. Attorney General martin had told Flowers he thought not defending the abortion law would be like not defending the murder law. Besides, he was tired of people suing public servants like Henry Wade, who were only trying to do their jobs.
Flowers, too, had given the case considerable thought. He felt Roe v. Wade was an open-and-shut case, one the state could win easily As far as he was concerned, from the moment of conception the chromosome structure was in place, the gene structure was in place, and life had begun. Any defense of the Texas abortion law would be based on the fact that the womb was food and shelter, just like a baby in its home. To destroy an infant in the womb was murder, the same as when a three-month-old infant were killed in its cradle.
One thing, Flowers knew, would prevent the state from using this defense: this view was religious or philosophical rather than legal. The law did not view abortion in this way. Flowers knew the state could not go into court and claim that abortion was murder for the simple reason that legally it was not. Neither Texas law nor, for that matter, the laws of any other state held that abortion was murder. It was always a lesser crime, usually manslaughter.
Flowers believed that a great number of those who opposed the legalization of abortion shared his view If his assessment was correct, then there were many people out there who not only did not want abortion legalized, but would support a move to restrict it further. He thought the time was ripe to assert a claim on behalf of the fetus. If the state built its defense around the idea that abortion was murder in the moral sense, at least, Flowers believed people, including the judges who would hear the case, would understand and accept his argument regardless of how the Texas law was written. Once everyone agreed that abortion was a grave moral wrong, surely the Texas abortion law would stand
Thus, flowers was optimistic that the state would not only defend its abortion law successfully, but that it might even be tightened further as a result. If he could get a ruling that the law was designed to protect fetal life, Texas would have the toughest abortion law in the country.
- Floyd was nervous when his turn came to argue. He had stood up earlier ut of turn, because he had mistakenly thought it was his time to speak. Now he would have to begin his arguments with an apology, to be sure the justices understood that he had meant no harm by speaking out of order. Despite his nervousness, he was confident he could make short work of the case. Neither he nor anyone in the attorney general’s office could imagine that the court would seriously consider declaring the abortion law unconstitutional. Besides, there were serious jurisdictional problems with the case, such as whether Jane Roe r any woman had a right to sue for legalized abortion. After all, the law was not directed at them: no woman in Texas was ever party to an abortion suit, so she could not claim to have been injured by the law.
Floyd began by pointing out that it was the state’s position that the court had no reason even to hear this case since, as far as he could see, none of the plaintiffs had any standing to sue. He believed-the state was arguing-that the case was moot. None of the court papers had made any reference to how far along Roe was in her pregnancy, but since the suit had been filed in March and it was not the middle of May, assuming that the defendant had been at least a couple of months and possibly several months pregnant when the case was initiated, it now stood to reason that she was either no longer pregnant or was too far along in her pregnancy to undergo an abortion even if the court agreed she could have one. Her case presented no real controversy; there was nothing to litigate; in other words, the case was moot. As for the Does, their case had never presented any real controversy since, as far as he knew, Mary Doe was not pregnant, nor had she been when the case was filed. The original motion filed by her attorneys had made this clear. She and her husband therefore had no standing to sue.
This was the argument Coffee and Weddington had feared. It was the reason they had amended Roe v. Wade to a class-action suit. As plaintiffs in a class-action suit, Jane Roe and Mary Doe were suing not merely for themselves, but on behalf of all other women who might find themselves similarly situated-pregnant and in need of an abortion. Nevertheless, they waited nervously to hear how the justices would respond to Floyd.
Fortunately, his argument seemed to carry little weight with the court. Judge Goldberg reminded Floyd that some of the children involved in school desegregation cases had graduated from college by the time their cases were litigate. Did this mean that they were not entitled to attend desegregated schools?
- John Tolle was left with a touchy task: in fifteen minutes he had to pick up the pieces of his co-counsel’s shattered defense and build a solid case for the state. He had put considerable time and effort into the preparation of this case, and like Floyd, he believed that the state had a right to protect fetal life. Unlike Floyd, he had limited his examination of abortion to the purely legal issues. That he now planned to do the same thing with his oral argument would prove to be his greatest strength. Tolle’s argument would be the most intellectually enticing, if not ultimately the most persuasive, that would be heard in the courtroom that day.
He wasted no time disputing the plaintiff’s right to sue, nor did he attempt to refute Weddington and Coffee’s arguments directly; rather, he tried to make the court see them in a different light. He began with the difficult issue of states’ rights. Noting that he did not disagree with Weddington’s statement that no one knows when life begins, he went on to say that even in the absence of answers to this difficult question, the state still had “a right to protect life . . . in whatever stage it may be in . . . and if there is no absolute fact as to when life occurs, then it becomes, I think, a legislative problem as to when they’re going to set an arbitrary time.”
Finally the state had scored a point. The idea that abortion was most legitimately a concern of the state and not the federal government had to have been on the minds of the judges that day.
- Indeed, despite Tolle’s claim that the matter of abortion properly belonged in a state legislature, the three judges still thought they had a “federal: question to deal with-namely, whether or not the present Texas law denied women a basic constitutional right. Goldberg pointed out that protecting life at any stage of development seemed not to have been the intention of the framers of the Texas abortion law. Seeing room for a possible compromise, he asked Tolle, as he had Coffee and Weddington, whether striking the phrase “to save the life of the mother” might not make this law viable. Tolle replied, as they had, that he did not think this would be true to the original intention of the law. But where the two women had argued that the law could not be saved because it was so unconstitutional, Tolle said he felt the law was constitutional the way it was written, thereby eliminating any need to remove anything from it.
Tolle pressed harder, saying, “I believe that we’re talking about rights. I think that the most persuasive right that the plaintiffs urge, as was held in the Babbitz case, and all the cases refer to it quite heavily, is the right of privacy, for want of a better term, and there you get to the point where the state had to regulate conflicting rights-whether the state has to regulate conflicting rights-whether the state had got an interest in the life of the unborn child sufficient to regulate the woman’s right to privacy. This is a very difficult question, and I think that it is properly a legislative question.
“I don’t think the state has to have a law at all regulating abortion. I believe the field is such that it can regulate it constitutionally. I personally think, and I think the state’s position will be and is, that the right of the child to life is superior to that woman’s right to privacy.”
Tolle’s argument was as good a defense as would be offered of the state’s compelling interest in regulating abortion: the state had to balance two rights, that of the fetus to survive and that of the woman to privacy. In doing so, it could certainly find that the woman’s right to something called privacy-a wrd Tolle diminished simply by the way he said it-was inferior to that of the fetus to life.
- In hinting that the woman’s right to privacy had to do with convenience or selfish whims, Tolle took up a strange of thinking that antiabortionists would soon develop more fully-namely, that not only women’s minds but also their bodies were hostile to fetuses. Nathanson would describe the fetus as “an uneasy tenant” in the mother’s womb, a place that offered an “immunological sanctuary” from, among other things, the mother, “whose white blood cells mount an attack” to reject the fetus.
Like the earlier analogy of the fetus to a baby, this was an image that transposed (largely male, antiabortionist) wishful thinking into reality and,, in this case, in doing so, attempted to deny the dynamic interaction between the woman’s entire being (not just her uterus) and the fetus that was crucial to the latter’s development. Modern science has dispensed with the concept that a fetus is merely an appendage of a woman, but it does not view it as a separate agent either. Furthermore, even though a fetus becomes capable of survival outside a woman’s body several weeks before birth, as feminist historian Rosalind Petchesky has noted, its premature existence is neither easy nor normal. The undeniable fact is that the fetus is meant to finish developing inside a woman’s uterus until the moment of birth. Complex and complicated reasons exist for it to do so, all operating to the fetus’s benefit.
- The proceedings were almost over but first the intellectually indefatable Justice Goldberg had one more question for the plaintiff’s attorneys. What, he asked, would happen if only district Attorney Henry Wade were enjoined to stop prosecuting illegal abortionists? Would every other district attorney in the state also be prevented from enforcing the law, or would they be free to go ahead with prosecutions? Only Henry Wade had been mentioned in the court documents; none of the other district attorneys throughout the state had been cited.
Stunned at the implications of what she was hearing, Weddington asked Justice Goldberg to repeat the question. Then she answered: “It was my understanding that since the attorney general’s office had chosen to come in, and since they are now a party-defendant to the suit-“
Justice Goldberg interrupted: “Are they a party=defendant?”
“Well, I thought by-“
Judge Hughes jumped into the fray. “I don’t believe they have intervened.” Turning to Floyd, she asked, “Has the state intervened?”
Floyd jumped to his feet and practically shouted, “No!”
John Tolle also leapt up and said, “If the court please, I believe we can cite another example. In the Buchanan case, the court’s injunction ran against Henry Wade only, and I don’t think it binds anyone else.”
Goldberg turned back to Weddington and asked: “Do you have any response to that?”
She replied, “We goofed.”
It was another bad note on which to end the arguments.
- It was the use of the Ninth Amendment, according to many legal scholars, that was the most interesting aspect of the Dallas decision. Although it was sometimes included in the list of possible constitutional grounds, no one seriously believed it had much potential for establishing an abortion right. In this article on the constitutional grounds for abortion, for example, Roy Lucas had relegated the Ninth Amendment to a footnote, saying: “Several theoretically feasible but unnecessary constitutional theories are omitted from this discussion. First, whether a physician or an organization would claim a First Amendment right to inform patients as to the whereabouts of competent abortionists. Second, whether the Ninth Amendment, of its own thrust, permits of a fundamental right to abortion.”
Most persons thought the womans right to abortion would be found in the Fourteenth Amendment-specifically, in the due process clause of the Fourteenth Amendment, which stated that the rights guaranteed to all individuals in the constitution could not be violated or withdrawn except by due process or law. But there were reasons not to rely ont the Fourteenth Amendment; it was in many people’s eyes a tarnished amendment, especially when applied to a case like Roe v.Wade.
- The Fourteenth Amendment, added to the Constitution after the Civil War, was designed specifically to protect the rights of black ex-slaves. By the late 1800s the Fourteenth Amendment, or at least the due process clause, was being subjected to uses its shapers had not foreseen.
At the close of the nineteenth century the United States was in the midst of an enormous and unprecedented economic boom in which huge fortunes were made overnight, often on the backs of exploited workers. The plight of the workers became a cause for social concern, and a drive was begun to improve their situation. At the urging of social reformers, state legislatures began to pass protective labor laws. Inevitably, since so much was at stake for the employers, these news laws were challenge din the federal courts, where the employers soon discovered they had a sympathetic ear. The federal courts and the Supreme Court regularly struck down legislation that was designed to protect workers; in most cases they used the Fourteenth Amendment as their grounds. IN the wake of several decisions in which the Supreme Court supported the right of big business to get even bigger, the Court lost popular support and was subject to widespread criticism. Even the Constitution became a target as people charged that it worked for the rich robber barons, but not the poor wage earner.
- The only setback-a major one- for the plaintiffs was the judges’ refusal to issue an injunction to back up the declatory relief. Coffee had considered an injunction, which would order the state to stop enforcing its abortion law, vital to winning the case. Only with such an order would women truly have the protection they would need to obtain abortions in Texas. The curt indicated, however, that it would considered an injunction tantamount to excessive interference in the affairs of a state, particularly since Dr. Hallford, the intervenor, was involved in a criminal prosecution. While the court acknowledged that there were occasions when a federal court was obligated to intervene to settle a constitutional issue, they did not feel this was one of them.
The court noted that while Texas had taken no action to revise its abortion law, the fact remained that the state could hardly be accused of acting in bad faith. It was barely enforcing the law, and the plaintiffs had not been harassed-two actions that might have warranted action by the court.
Coffee had argued that the fact that First Amendment rights were infringed upon was enough to create a need for an injunction, but the court had not bought her argument that the abortion right had anything to do with the First Amendment. Citing Porter v. Kimzey, a Supreme Court ruling that stated “the door is not open to all who would test the validity of state statutes . . . by the simple expedient of alleging that prosecution somehow involves First Amendment rights,” the court even chided her a bit for suggesting that it did.
- Pleased as Coffee and Weddington were with the overall opinion, they were unhappy over not having gotten injunctive relief. Coffee, in particular, never came to terms with the court’s refusal to grant it. Even though she realized injunctive relief was “a very sensitive point” and that the judicially active Fifth Circuit had greater reason than most federal courts to tread lightly where states’ rights were involved, she still felt it was unrealistic for a federal court to expect a state like Texas to comply with a ruling that involved only a declatory judgment. For her, the question was not so much whether the federal government should respect Texas, as whether Texas would respect the federal government. Her ominous feelings were soon confirmed.
- Within hours after the decision was announced, District Attorney Henry Wade called a press conference at which he rather jubilantly announced: “Apparently, we’re still free to try them, so we’ll do just that.” He was referring to the fact that the Fifth Circuit Court had refused Coffee and Weddington’s request for an injunction ordering him to stop enforcing the abortion law. In effect, Wade was issuing an open invitation to the Dallas Country police to crack down on illegal abortion. Furthermore, the example set by his office would be followed by district attorneys across the state of Texas.
The next day, Texas Attorney General Crawford Martin held a press conference in Austin to announce that the state would appeal the Dallas decision. In a way, Martin’s reaction was more understandable than Wade’s. The attorney general ‘s office at least had built its case around its moral opposition to abortion; Wade’s reaction appeared to have more to do with protecting his image as a tough law enforcer than anything else since, like law enforcement officials across the country, he had been less than diligent for years about enforcing the abortion law. About a year earlier, though the situation had changed when a federal judge had overturned the Washington, D.C., abortion law, and the nation’s capital had become an abortion capital overnight, providing abortions not only to women who lived in the district, but also to women from all over the country. District Attorney Wade had no intention of letting that happen on his turf.
- Ch.10, p.165
- Shortly after they filed their appeal in the Fifth Circuit, they learned that they did indeed have a right to appeal directly to the Supreme Court. Although people often speak of “appealing” a case to the Supreme Court, actually only a few special classes of cases come to the Supreme Court via appeal. Most come via a writ of certiorari. (Apart from their different names, though, requests for certiorari and appeals go through essentially the same process to reach the Court.) At that time, cases in which a three-judge court had been asked for and had not granted an injunction were entitled to direct appeal. Coffee and Weddington had never given any thought to laying out their case in such a way as to enhance their chances of taking it to the Supreme Court, but it now seemed that what they had initially viewed as a setback-the court’s refusal to grant injunctive relief-would prove to be a decided advantage.
- After the Dallas decision, the women reformers enjoyed a sense of renewed vigor as they refocused their reform efforts. The decision was a big step forward, and although it gave reform the boost needed to gain widespread support, it soon became obvious that the ruling was not going to be enforced. The Dallas Committee decided they must continue the fight to repeal the Texas abortion laws and, if necessary, to push a liberal abortion bill through the Texas state legislature.
On Whitehill’s agenda, in particular, was an introduction to Sarah Weddington, whom she thought might be of value to them in achieving their goals. Weddington’s performance at the Dallas trial had made a deep impression on her and the other Dallas reformers. Here was a young woman, barely out of law school and in her first professional courtroom appearance ever, who handled herself beautifully in front of three fairly formidable federal judges. If she had been frightened, it had not shown. She had displayed an impressive amount of self-assurance throughout the arguments. The group was also impressed with what it could only describe as her ladylike demeanor. Ellen Kalina would recall that her main impression of Weddington had been of someone who was a “real southern belle.”
Such things mattered to the Dallas reformers. They were especially concerned now that feminists, after several years of focusing on other important issues, were beginning to work more actively in the pro-choice movement.
- Ch.12, p.192
Forsythe, Clarke (2013). “Abuse of Discretion: The Inside Story of Roe v. Wade”. Encounter Books.
- After the two abortion cases-Roe v. Wade and Doe v. Bolton-were first argued in December 1971, Burger had assigned the opinions to Blackmun to write, for reasons that Blackmun never entirely understood. He has spent the previous thirteen months working on multiple drafts of the opinions, pressured by Justices Douglas, Brennan, and stewart to change and expand the scope of the decisions.
Chief Justice Burger, too, was concerned about the abortion decisions, but for different reasons. He was due to sweat in Richard Nixon for a second term as president on Saturday, January 20. Contrary to the president’s antiabortion position, the Court was about to strike down the abortion laws of all fifty states based on a broad “right of privacy” that was nowhere in the words of the Constitution nor the Bill of Rights. Despite his reputation as a :strict constructionist” that got him named Chief Justice, Burger was going to sign onto Blackmun’s opinion, along with a third Justice whom Nixon had named to the Court, Lewis Powell. Concerned that the decisions, joined by three Nixon-appointed Justices, would embarrass him or the president, Burger kept telling Blackmun that Burger was writing an additional, concurring opinion, which he was able to delay until after the inauguration.
Having more than once shared with his colleagues his fears that the Court would be criticized for the decisions, Justice Blackmun crafted a statement that Tuesday explaining the decisions that he proposed to release to the press. But when Blackmun distributed the draft among his fellow Justices, Justice William Brennan, known as a liberal champion of the Court, warned him that the Justices didn’t issue “press releases” that might be confused with the written opinions they issued. So Blackmun simply read his statement from the bench on Monday, January 22.
- Roe v. Wade is considered the “most controversial” decision of the modern Court era. Even sympathetic legal academics have described Roe as an “engine of controversy.” A decade after the decision, one law professor referred to Roe as “a unique decision” in the Supreme Court’shistory: “No other case. . . caused such a loud and sustained public outcry.” Others have admitted that it is “unquestionable that Roe has become . . . the preeminent symbol of judicial overreaching.” It “handed abortion rights advocates a vastly more far-reaching victory then they ever could have attained through the legislative and political process.” Roe “generate[d] long-term controversy [and] upheaval.”
- The outcome in Roe surprised even abortion activists. Lawrence Lader, one of the key abortion-rights leaders of the 1960s, wrote that the abortion decisions were “far broader in scope than anyone expected” and even more conclusive than any of us dared to hope.” Legal historian Lawrence Friedman wrote that “Roe v. Wade belongs to a very select club of Supreme Court decisions-those that sent shock waves through the country, affecting every aspect of political life.” The morning they were released, Time magazine, based on a leak from one of Justice Powell’s clerks pronounced the outcome, “Abortion on Demand.”
- Roe had two essential rulings based on interpretations of the Fourteenth Amendment to the U.S. Constitution, which declares, in part, that no state shall deprive any “person” of “liberty”. First, the Justices interpreted “liberty” to include a “right to privacy” and held that abortion is part of the right to privacy the “right of privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Second, the Court held that the “unborn” are not included with other “persons” protected by the Constitution-”the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.
Not only did the Justices nullify the abortion laws of all fifty states, but-in a break from the traditional function of judges-they also prescribed what would be permissible by drafting their own national abortion standard.
- Where Roe prevented any prohibition on abortion before viability, the Doe “health” exception eliminated prohibitions after viability as well. While some realized immediately that the states could no longer prohibit abortion in the first trimester, the full implication of the Supreme Court’s decisions only became clear over time as the lower federal courts decided hundreds of cases in the following decades.
- Roe eliminated the laws in thirty states that prohibited abortion except to save the life of the mother; Doe eliminated the rest, including the new abortion laws adopted by approximately thirteen states between 1967 and 1971, which had canceled or replaced traditional abortion prohibitions. As Harvard law professor and comparative law expert Mary Ann Glendon has emphasized, “It was Doe that set the United States on a far more extreme course than that taken in most other liberal democracies, where the regulation of abortion had largely been left to be worked out through the ordinary democratic processes of bargaining, education, persuasion and voting.
The sweeping scope of Roe and Doe isolate the United States as one of approximately nine countries that allow abortion after fourteen weeks and one of only four nations (with Canada, China, and North Korea) that allows abortion for any reason after fetal viability.
- The Justices nationalized an issue that, until Roe, had been a state issue. By nationalizing abortion, they nationalized the politics of abortion. Within days, constitutional amendments were introduced in Congress to overturn the decisions, and a vigorous congressional debate over proposed amendments continued for ten years. Hearings were held in 1974-1975 and again in 1981-1983. Between 1973 and 2003, approximately 330 constitutional amendments on abortion were introduced in Congress. But the one and only vote in the U.S. Senate on a constitutional amendment failed on Jun 28, 1983, by a vote of 49-50, lacking the two-thirds needed.
- The Justices also abruptly changed American medicine. Abortion was declared to be a constitutional right-the only medical procedure to ever have that status-which shielded abortion and abortion providers from the regulation to which medical procedures and doctors have been traditionally subjected.
- The Justices centralized what had previously been decentralized. Since colonial times, abortion had been a local public health issue and crime, determined by state legislatures, state governors, state courts, local prosecutors, and state public health officials. Federal governmental involvement in abortion had been rare, strictly limited to the powers of Congress expressly stated in the federal Constitution, such as prohibiting abortion ads from being sent through the mail.
- Until the 1960s, all but a few of the fifty states prohibited abortion except when necessary to save the life of the mother. These abortion laws were enforced and updated and strengthened during the nineteenth century as medical understanding progressed. As of January 1973, however, thirty states permitted no other exception than to save the life of the mother, and most states actively enforced their abortion laws. Prosecutions against abortionists were pending in many states on the day Roe was issued.
- In the immediate aftermath of the abortion decisions, state officials from Connecticut, Louisiana, Missouri, and Rhode Island sought to reject, or limit, or clarify the abortion decisions, and asked the Justices to reconsider. Rhode Island, in particular, immediately sought to reenact abortion prohibitions, but its law was quickly shut down by the courts.
- Of course, the most obvious effect of the abortion decisions was the increase in abortions. Although the biggest percentage increase of abortions in America actually occurred before Roe, after thirteen states had legalized abortion in certain circumstances between 1967 and 1970, the nationwide legalization in January 1973 significantly increased the number of abortions performed in America. In 1972, the year before Roe, about 550,000 legal abortions were recorded. After Roe, abortions increased, reaching an annual high of 1.6 million in 1992, before declining to 1.2 million in 2006.
- [I]n the Roe and Doe decisions the Justices sided with a minority of the public who supported abortion for any reason, at any time of pregnancy. Already a minority position at the time of the decisions, by 2009 that minority had shrunk to just 7 percent of Americans.
- Potter [Stewart] pressed for Roe v. Wade and Doe v. Bolton to be heard and did so in the misapprehension that they involved nothing more than an application of Younger v. Harris. How wrong we were.
- Harry Blackmun, letter to Rehnquist, as quoted on p.17
- Should we spell out-although it would then necessarily be largely dictum-just what aspets are controllable by the State and to what extent?
- Harry Blackmun, Memorandum to the Conference (May 1972), p.17
- Roe and Doe began, in the Supreme Court, as a serious procedural mistake that left the Justices without any factual record to consider the complex historical, legal, medical, and constitutional issues surrounding abortion. At least some justices decided to hear the case under the “misapprehension” that they were dealing merely with procedural issues. Justice Blackmun related this mistake to at least two people, and it is confirmed by the briefs in the abortion cases, the Justices’ papers, and the oral arguments. Blackmun told the story to Chief Justice William Rehnquist in July 1987, as the Supreme Court confirmation hearings for judge Robert Bork were hearing up in the U.S. Senate. In a July 16 letter to Blackmun, Rehnquist shared his concerns that the Court would be short-handed without a full bench of nine Justices in the fall, if Bork wasn’t confirmed or the hearings were prolonged.
Blackmun wrote back on July 20 to allay Rehnquist’s concerns with his story of how Roe was selected in 1971 by a subcommittee of Justices that Chief Justice Burger assembled to avoid “controversial cases” while the Court was shorthanded with two vacancies after the sudden retirements of Justices Hugo Black and John Harlan in September 1971.
- I remember that the old Chief [Warren Burger] appointed a screening committee, chaired by Potter [Stewart], to select those cases that could (it was assumed) be adequately heard by a Court of seven. I was on that little committee. We did not do a good job. Potter pressed for Roe v. Wade and Doe v. Bolton to be heard and did so in the misapprehension that they involved nothing more than an application of Younger v. Harris. How wrong we were.
- The chief justice was concerned that the remaining seven members of the Court would have to decide controversial cases on the docket, such as “Roe v. Wade” . . . without a full court. . . . The committee, chaired by Potter Stewart and which included Harry Blackmun, later said. “We did a poor job. I think the committee should have deferred them [the abortion cases] until we had a full Court.”
- Blackmun, James Simon, May 1991 interview The Center Holds; as quoted on p. 18
- Hold’s, calling the decision to hear the abortion cases “a serious mistake”:
The chief justice was concerned that the remaining seven members of the Court would have to decide controversial cases on the docket, suchas Roe v. Wade . . . without a full court. . . . The committee, chaired by Potter Stewart and which included Harry Blackmun, let Roe v. Wade and Doe v. Bolton go forward. “It was a serious mistake,” Blackmun later said. “We did a poor job. I think the committee should have deferred them pthe abortion cases[ until we had a full Court.”
- With Younger v. Harris, Justice Blackmun was referring to a controversial case decided on February 23, 1971, sixty days before the Justices voted on April 22 to hear Roe and Doe. For two years, while Justices Hugo Black and John Harlan were still on th Court, the Justices had been immersed in Younger v. Harris, which involved the politically delicate issue of federal court intervention in state court criminal proceedings. Argued three times before it was finally decided, Younger put limits on the power of federal courts to interfere with pending criminal prosecutions in state courts.
Younger intersected with the abortion ases filed in federal courts against state laws from 1969 to 1972 because a doctor who was prosecuted for abortion in state court might file a case in federal court to block the state prosecution-the kind of scenario with which Younger was concerned. Thus, Younger overshadowed the abortion cases filed in federal court as a number of points between 1970 and 1972.
- p. 19
- The procedural complexities were not something to be lightly dismissed. Indeed, they were asking some of the biggest questions about Roe: Should the Justices decide this issue? Should they decide it without any factual record? Or without review first by a federal appellate court? Could Jane Roe or Mary Doe clearly and accurately represent the facts of the abortion controversy? Could they represent the “class” of women seeking abortion? Should the Supreme Court sweep away an important area of criminal law and public health?
Roe started with all these procedural questions, until several Justices found a way to get around them. Justice Brennan suggested a way, after the first oral argument, in a December 30, 1971, memo to Justice Douglas:
[T]here would seem to be a number of threshold issues that are of varying difficulty. Some, I think, must be expressly addressed, while others perhaps require no discussion or should be simply finessed. None, in my opinion, forecloses decision on the crucial questions here-the existence and nature of a right to an abortion.
- The procedural complexities meant that the lawyers and the Justices spent so much time on procedure during the first round of arguments in December 1971 that precious little time was left for the substantive, constitutional questions.
In the first argument in roe on December 13, 1971, Justice Stewart posed the second question of the morning to Sarah Weddington, emphasizing that “a good many threshold questions . . . of jurisdiction” needed to be addressed. According to Woodward and Armstrong’s account, the jurisdictional issues didn’t take a backseat to the question of a right to abortion until after the first oral argument, when the Justices met in conference* to vote on Thursday, December 16, 1971. Mitchum v. Foster, a case with a “similar question of jurisdiction,” was argued on the same Monday as the abortion ases, and the Justices discussed Mitchum before Roe and Doe that Thursday. The discussion of Mitchum among the seven justices present at that conference (Justices Powell and Rehnquist did not join the Court until January 1972) ended with a vote of Stewart, Douglas, Brennan, and Marshall for “taking jurisdiction” in Mitchum. Woodward and Armstrong recorded what was apparently Douglas’s conclusion that day:
Since the jurisdiction question here was the same as in the abortion cases, the Court had effectively decided the abortion jurisdiction issue as well. The Court did have jurisdiction. Suddenly, unexpectedly, the Court fund itself faced with the underlying constitutional issue in the abortion cases. Did women have a right to obtain abortions?
If the Court had jurisdiction, and such federal challenges to state laws could be filed in federal court, the Justices should have limited the decisions in Roe and Doe to the jurisdictional issue, and looked for new abortion cases with a factual and medical record.
Though this oversight seems minor, it was a blunder that skewed the Justices’ consideration of abortion for the next thirteen months. By crushing aside these procedural questions, and deciding the abortion issue with no factual record, the Justices stumbled into an enduring controversy.
- The desire of a 4-3 bloc of Justices-Douglas, Brennan, Marshall, and Stewart-to sweep aside the proceduralissues to create a right to abortion in December 1971 is better understood by three cases that preceded Roe v. Wade: Griswold v. Connecticut, Eisenstadt v. Vaird, and United States v. Vuitch.
Before considering abortion the Justices had facedthe issue of contraception They eliminated state restrictions on contraceptives in two major cases in 1965 and 1972, an action that provoked little public opposition in the midst of the sexual revolution. The ease with which they were able to eliminate those laws likely gave some of the Justices a sense that the abortion laws were simply another set of laws that could be eliminated as an “invasion of privacy.” They saw contraception and abortion laws as one and the same intrusion on “privacy”. The Justices first seriously addressed the issue of contraception in 1961 in a case called Poe v. Ullman, but in a very limited way. The Connecticut statute in Poe was unique, the only one of its kind in the country to “criminally prohibit” the “marital use” of contraception.
Although a majority of the Justices dismissed the Poe case-Justice Brennan complained about “this skimpy record”-two influential dissents by Justices William O. Douglas (a “liberal”) and John Harlan (a “conservative”) kept the issue alive. Both dissents emphasized marital privacy as the reason for striking the Connecticut law. Harlan made clear in Poe that “[t]he right to privacy most manifestly is not an absolute. Thus, I would not suggest that adultery, homosexuality, fornication and incest are immune from criminal enquiry, however privately practiced. So much has been explicitly recognized in acknowledging the State’s rightful concern for its people’s moral welfare.
The same Connecticut statute came back to the Court in 1965 in a similar test case, then called “Griswold v. Connecticut”. The Justices struck down the Connecticut criminal prohibition on “the marital use of contraception” and announced, for the first time, a general constitutional right of privacy. “Griswold” quickly became the Supreme Court precedent that spurred the litigation campaign against state abortions statutes, led in large part by attorney Roy Lucas, who authored one of the first major law review articles attacking state abortion laws on constitutional grounds in 1968.
- Justice William Brennan also pushed marital privacy as the basis for the decision. In fact, Griswold turned into a martial privacy opinion because of Brennan. Though Douglas wrote the majority opinion, Brennan played a significant role behind the scenes, as his biographers, Seth Sterna and Stephen Wermiel, make clear: “There was no better example of the silent hand of Brennan shaping an opinion during this period than the case of Griswold v. Connecticut. . . . “ As soon as Brennan got Douglas’s first draft, he sent along a three-page letter on April 24, 1965, drafted by his clerk, suggesting a major shift from basing the decision on “the right of association . . . in the First Amendment context” to “the privacy of married couples.” Douglas “largely adopted Brennan’s approach.”
- The contrasts between marital privacy in Griswold and abortion in Roe and Doe are striking. Griswold emphasized marriage-a right and a relationship protected by the law for centuries. American law never recognized a “right” to abortion before some states legalized abortion between 1967 and 1970. And marriage was never considered in American law or tradition to include a right to abortion, any more than marriage included a “right” to infanticide or adultery. Griswold was about the marital bedroom; abortions aren’t done in bedrooms. The Connecticut statute prohibiting marital use was one-f-a-kind; no other state prohibited the “marital use” of contraception. But in 1972, after virtually all fifty states had seen legislative and public debate, thirty states retained their prohibitions on abortion except to save the life of the mother, and the other twenty retained abortion laws that did not allow abortion as broadly as the “right? Eventually created in Roe. Many states had rejected “reform” laws, and nearly all had rejected “repeal” laws.
- The attorney for Griswold, Yale Law School Professor Thomas Emerson told the Justices at oral argument on March 29-30, 1965, that the right to privacy would not include abortion, because abortions were not done in the bedroom. In response to a question by Justice Black, Emerson told the Justices-repeatedly-that “the right to privacy” would not touch the state prohibitions on abortion:
Justice Black: Would your argument concerning these things you’ve been talking about relating to privacy, invalidate all laws that punish people for bringing about abortions?
Mr. Emereson: No, I think it would not cover the abortion laws or the sterilization laws, Your Honor. Those-that conduct does not occur in the privacy of the home.
Justice Brennan: Well, apart from that, Mr. Emerson, I take it abortion involves killing a life in being [or “killing the life of a being”], doesn’t it? Isn’t that a rather different problem from conception? <br< Mr. Emerson: Oh, yes, of course.
Nevertheless, Emerson was soon forecasting that the Griswold decision “could” be used against abortion laws. By the end of 1965, Emerson had even given a paper at a Michigan Law School symposium that described how “Griswold” could be used against abortion laws.
- If Griswold was expressly based on marriage, how could it be cited as a precedent for abortion? One attempt to build a bridge from Griswold to abortion that proved very influential was a law review article advocating legalized abortion published in the fall of 1969 by retired Supreem Court Justice Tom Clark. Clark had been attorney general in the Truman Administration and then served on the Court from 1949 to 1967. He had joined Douglas’s opinion in 1965 to strike down the Connecticut contraception law in Griswold before retiring in 1967.
Clark’s article was cited by numerous lawyers and lower court judges. It was quoted to the Justices by Professor Norman Dorsen in Januart 1971 during his oral argument against the District of Columbia’s abortion law in United State s v. Vuietch. It was quoted by Justice Douglas in his dissent in Vuitch, and by Justice Brennan in his December 30, 1971, letter to Duglas outlining Brennan’s view that the right of privacy included abortion. And Justice Douglas cited the article in his concurring opinion in Doe v. Bolton.
- Clark’s article was brief and published in the second volume of Loyola of Los Angeles Law Review, an obscure journal. He claimed that “the demand for abortions has increased astronomically” without citing any statistics. He spent paragraphs on religious debates about “ensoulment,” a topic irrelevant to American abortion law since colonial times. He cited the New York Times for many sociological assertions. And Clark gave no thought whatsoever to the possible risks to women from abortion. There was very little “law” in the article-just a few Supreme Court precedents and several citations to the Griswold case. Clark admitted that the Supreme Court “has not, however, dealt directly with the problem under discussion [abortion], nor do the decided cases cast much light on its solution.” Clark didn’t discuss the extensive enforcement experience with American abortion statutes, or the case law across fifty states applying abortion statutes, and he only touched on the developing law of prenatal injury and wrongful death involving the unborn child.
- Clark confused the common law of abortion (which never placed emphasis on viability with tort law developments in the twentieth century (when some judges adopted viability as a marker.) His claim that “[n]o prosecutor has ever returned a murder indictment charging the taking of the life of a fetus” showed his utter misunderstanding of the criminal law and its practical application: injuries inflicted on a child “in utero” could be prosecuted as homicide as long as the child died outside rather than inside the womb. As a legal matter, that necessarily meant that the child injured inside the womb was the same child who died outside the womb-the same entity inside as outside. In fact, in March 1969 (just a few months before Clark’s article was published), a prosecutor in the Keeler case indicted a California man for brutally beating his ex-wife and killing her unborn child “in utero”. Such cases had been prosecuted in other states, and statutes that treated abortion as homicide existed in several states.
- First, he argued that “there is no proof of life [with a fetus] in the sense that the law contemplates proof of fact.” That would have surprised the English and American courts that applied two common-law evidentiary rules: the quickening rule (as first evidence of life) and the born-alive rule (for proof that a criminal act had caused the death). It also would have surprised the prosecutor in the Keeler case, who proved beyond a reasonable doubt that the perpetrator killed the child while unborn.
Second, Clark asked: “Does it therefore follow that voluntary destruction of the fetus is also [prevented[ from interference by the State? Perhaps-unless life is present. . . . “ The entire motivation of the movement to eliminate the quickening rule across the states in the mid-nineteenth century-led by the medical profession-was the biological evidence tat the life of each child began at conception, not quickening, and the state statutes were explicitly amended to adopt conception.
Third, Clark’s most famous sentence-quoted by Justice Brennnan to Douglas in December 1971 and by Justice Blackmun in Roe-begged the evidentiary question that the nineteenth-century state legislatures expressly decided: “To say that life is present at conception is to give recognition to the potential, rather than the actual. . . . But the law deals in reality, not obscurity-the known rather than the unknown.” What Clark considered an abstraction in 1969 had been adopted as the law by the people of numerous states a century before and reiterated in numerous court decisions and statutes by 1969.
- Clark concluded: “It is for the legislature to determine the proper balance. . . . “
Clark’s conclusion was conveniently ignored, however, by the lawyers and judges who used it to argue that Griswold should be extended to judicially create a right to abortion.
- The only reason hat Clark’s confused article was noteworthy, apparently, is because he happened to sit on the Supreme Court at the time of Griswold. As Roy Lucas put it in a letter to Sarah Weddington after the first oral arguments in December 1971, admonishing her to reference Clark’s article more often, “the Court is more likely to read that than any brief from mortals.”
- If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
There are three problems with this. First, Eisenstadt was a case based on the Equal Protection Clause of the Fourteenth Amendment, not a privacy case, so Brennan’s reference to privacy was gratuitous dicta,” in the words of Edward Lazarus, a former law clerk to Justice Blackmun.
The second is the logical fallacy in the bare assertion “if the right of privacy means anything, it is. . . . “ This is a classic ipse dicit (“It is true because I say so.”). It is simply an assertion of judicial will. Start with the abre assertion, and the sentence can be finished with anything, or at least anything that can be politically sustained.
- As Lazarus has written, “Brennan knew well the tactic of ‘burying bones’-secreting language in one opinion to be dug up and put to use in another down the road.” Lazarus continues:
Eisenstadt provided the ideal opportunity to build a the rhetorical bridge between the right to use contraception and the abortion issue pending in Roe. And taking full advantage, Brennan slipped into Eisenstadt the tendentious statement explicitly linking privacy to the decision whether to have an abortion. As one clerk from that term recalled, “We all saw that sentence, and we smiled about it. Everyone understood what that sentence was doing.” It was papering over holes in the doctrine.
- Brennan’s biographers, Stern and Wermiel, put it even more bluntly:
In the years to come, many of Brennan’s colleagues learned to watch for the seemingly innocuous casual statement or footnote-seeds that would be exploited to their logical extreme in a later case.
As another Brennan biographer has written “Brennan found a way not only to connect the case to the abortion debate but to use it as another strong leg on which a future opinion legalizing abortions could stand.”
- Justice Brennan’s intent was immediately fulfilled. The New York Times used the “bear or beget” phrase to headline an editorial on the Court’s decision, and Eisenstadt’s gratuitous language that privacy includes the “decision whether to bear or beget a child” was used in an abortion case twenty-six days later. On April 18, 1972, a federal court I Connecticut struck down the Connecticut abortion law, citing the “bear or beget” passage from Eisenstadt.
Sarah Weddington quoted Brennan’s “bear or beget” passage to the Justices in the second Roe argument in October 1972, and Blackmun later quoted the passage in his Roe opinion as a “precedent” for what the Court did in Roe.
- The justices designed the precedent to suit the progeny. Justice William Brennan’s draft of Eisenstadt, which was circulated months [sic] after oral arguments in Roe, “was obviously crafted to apply in the abortion context,” Greenhouse writes, noting that Brennan madethe unnecessary assertion in Eisenstadt that the right to privacy entailed a right to choose whether to “bear” a child. Days after the ccourt handed down Eisenstadt, Blackmun worked a reference to it into a draft of Doe, and later into Roe. Meanwhile, a federal court in Connecticut took the cue, declaring that Eisenstadt established a right to abortion. Justice Lew Powell advised Blackmun to follow the Connecticut court’s reasoning, and Blackmun ultimately did so, completing the daisy chain.
- William Saletan, Linda Greenouse Blackmun biography review, Slate, p.35
- The Court did not create a right to abortion in Vuitch, but upheld the D.C. law. Vuitch’s lasting significance was that the Justices endorsed a broad, indeed unlimited, interpretation of “health of the mother” as a reason for abortion, which they subsequently adopted in Doe v. Bolton.
- If Black and Harlan had remained on the Court throughout the deliberations in the abortion cases, there are strong reasons to believe they would have voted against creating a constitutional right to abortion, and left the abortion issue to the democratic process in the states.
Black not only dissented in Griswold, but he also expressly rejected a right to abortion during the Justices’ discussion fo the Vuitch case in early 1971. According to Professor Jeffrey Rosen, “Black, who scorned Douglas’s whole idea of penumbras and emanations, had made clear that he opposed a constitutional right to abortion during discussions [in Vuitch].”
- As for Harlan, he noted during the Justices’ discussion of Griswold in April 1965 that “he would feel differently if the Connecticut law were not a ‘[marital] use’ statute and did not apply to married couples.” Harlan’s opinion in Griswold pointed to limits on judicial discretion from “respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms.”
Harlan’s biographer Tinsley Yarbrough, contends that Harlan never expressly revealed his views on the constitutionality of abortion laws during the deliberations over Vuitch, and that “given his flexible approach to due process, he might well have accepted at least limited restrictions on governmental authority in that highly sensitive field.
- A former Harlan clerk, Charles Fried, a distinguished professor of law at Harvard, concluded that it is “likely-but not certain-that ustice Harlan would have dissented in Roe.” Fried went further: “The argumentation of Harlan’s dissent in [Poe v. Ullman. . . as well as his refusal to condemn laws proscribing adultery, fornication, and homosexuality leave little doubt that he would have held with the dissenters in Roe.”
- There is apparently no evidence that the abortion issue had any influence on Nixon’s selection of Burger, Blackmun, Powell, or Rehnquist.
By 1970, in anticipation of possible vacancies, Roy Lucas-one of the chief architects of the federal court challenges against the state abortion laws an co-counsel with Sarah Weddington in the Supreme Court in Roe-feared that he had to get an abortion case up to the Court quickly, before any Nixon appointees could swing the Supreme Court more conservatively. Historian David Garrow confirms that many believed that, with Black and Harlan gone, the Court could go 4-3 in favor of abortion (Marshall, Brennan, Stewart, Douglas), but that Powell and Rehnquist might join Burger, Blackmun and White to go 5-4 against abortion rights if the cases were argued after Powell and Rehnquist joined the Court. Antiabortion attorneys advising the attorney for Texas also believed this was a possible scenario and urged Texas to seek an extension until the two Nixon nominees could join the Court This concern was shared by Brennan’s clerks, who recorded a summary of the term in June 1972.
- On December 16, 1971, the seven Justices met as a group (“in Conference”) to vote in the cases. Bernard Schwartz, a historian of the Warren and Burger Courts, has said that Douglas and Brennan “led the proabortion bloc at the conference.” At least Burger, Douglas, and Brennan kept a tally, but the ote tally was unclear to Burger. Blackmun, for example, told the other Justies, referring to the Georgia statute, “Medically, this statute is perfectly workable,” that it was “a fine statute” that “strikes a balance that is fair.” If Chief Justice Burger voted with the majority, he would assign the opinion. If Burger voted with the minority, the senior Justice in the majority-which, given the vote, would have been William Douglas=would assign the opinion, as he had in Eisenstadt.
- Douglas and Brennan conversed at length on December 29, 1971, and on the following day Brennan memorialized their conversation in an eleven-page letter to Douglas in which Brennan laid out his views on the right of privacy and his conviction that they could use the cases to decisively set forth “the existence and nature of a right to an abortion.” Brennan’s biographers, Stern and Wermiel, highlight Brennan’s strategy:
Even more so thanin other cases, Brennan worked quietly behind the scenes in Roe v. Wade, reluctant to push Blackmun too hard and perhaps a bit reluctant to come out front and center on the issue of abortion. In fact, he worked so quietly that for some time it remained difficult to determine exactly how influential a role he played.
- Stern and Wermiel recorded the dismay of some Justices with Blackmun’s drafts:
Brennan did not share with Blackmun his thoughts about how best to approach the abortion cases, at least not directly. Going out of his way to avoid alienating the justice, he held back his criticism when Blackmnun circulated what he considered two disappointing drafts in May 1972.
- Brennan sent Blackmun a strong memo on May 18 pressing him to decide “the ore constitutional question” and “dispose of both cases on the ground supported by the majority” with no reargument:
My recollection of the voting on this and the Georgia case was that a majority of us felt that the Constitution required the invalidation of abortion statutes save to the extent they required that an abortion be performed by a licensed physician within some time limit after conception. I think essentially this was the view shared by Bill [Douglas], Potter, Thurgood and me. My notes also indicate that you might support this view at least in the Texas case.
- Justice White distributed a brief dissent on Monday, May 29, that effectively demolished Justice Blackmun’s May 18 draft opinion that the Texas statute was “unconstitutionally vague.” White wrote:
If a standard which refers to the “health” of the mother, a referent which necessarily entails the resolution of perplexing questions about the interrelationship of physical, emotional, and mental well-being, is not impermissibly vague [as the Court’s Vuitch decision held], a statutory standard which focuses only on “saving the life” of the mother would appear to be a fortiori acceptable. The Court’s observation that “whether a particular operation is necessary for a patient’s physical or mental health is a judgment that physicians are obviously called upon to make routinely whenever surgery is considered,” [Vuitch] 402 U.S., at 72 (footnote omitted), is particularly [sic] applicable to medical decisions as to when the life of a mother is endangered, since the relevant factors in the latter situation are less numerous and are primarily physiological.
White’s dissent raised key questions that were not covered in the record, and were not explored in the December 1971 arguments-or in the October 1972 rearguments, for that matter.
- According to law professor Bernard Schwartz, White’s dissent “effectively demonstrated the weakness of the Blackmun vagueness approach in striking down the Texas law.” David Garrow called it an “incisive and influential three page dissent. . . . White’s trenchant observation was a decisive if nonetheless eventually ironic contribution to the Court’s consideration of Roe and Doe.”
- I will be God-damned! At lunch today, Potter [Stewart] expressed his outrage at the high handed way things are going, particularly the assumption that a single Justice if CJ [Chief Justice] can order things his own way, and that he can hold up for nine anything he chooses, even if the rest of us are ready to bring down 4-3’s for example. He also told me he . . . resents CJ’s confidence that he has Powell and Rehnquist in his pocket. Potter wants to make an issue of these things-perhaps fur will fly this afternoon.
- Brennan to Douglas as quoted on p. 46
- Douglas refused to withdraw his dissent until Blackmun personally assured him that his position of declaring the abortion statutes unconstitutional was firm, and that he had no intention of reversing that position after reargument. Blackmun gave Douglas that assurance. . . . [A]s it turned out, Justice Douglas was the biggest winner of all. His prolonged tantrum had produced a firm commitment from Justice Blackmun to hold to his original position of voting to strike down the Texas and Georgia statutes.
- Blackmun as interviewed by James Simon May 1991; as quoted on p. 47
- When the Court issued an order for reargument on June 26, Douglas was listed as the only dissenter to the decision to reargue but published no dissent. Sometime before the Fourth of July holiday, however, Douglas’s draft dissent got into the hands of the Washington Post and the New York Times. On July 4, 1972, the Post published a front-page story on the abortion cases, entitled “move by Burger May Shift Court’s Stand on Abortion,” quoting extensively from Douglas’s draft dissent. The New York Times followed with a similar story the following day.
- Blackmun had been “resident counsel” of the Mayo Clinic during the 1950s. The day after he was assigned the Roe opinion, he wrote Thomas Keys, the Mayo Clinic librarian, and requested research on the history of abortion. Blackmun spent about two weeks there in July, reportedly doing research on the history of abortion and the Hippocratic oath.
- Back in Washington, Blackmun’s law clerk had substantially revised the draft abortion opinion. He forecast this in an August 4 memo before he finished his clerkship. And then he explained the changes to Blackmun in a memo of August 11, 1972:
I have written in, essentially, a limitation of the right depending on the time during pregnancy when the abortion is proposed to be performed. I have chosen the point of viability for this “turning point” (when state interests become compelling) for several reasons: (a) it seems to be the line of most significance to the medical professional, for various purposes; (b) it has considerable analytic basis in terms of the state interest as I have articulated it. The alternative, quickening, no longer seems to have much analytic or medical significance, only historical significance; (c) a number of state laws which have a “time-cut off” after which abortion must be more strongly justified by life or health interests use 24 weeks, which is about the “earliest time of viability.”
- Roe and Doe were reargued, back to back, on Wednesday, October 11, 1972, and the nine Justices met subsequently in conference to vote. Blackmun held to his original position and Powell, for the first time, voiced his support. Until the second argument, Blackmun had considered Doe to be more important than Roe, but when the Justices met to vote, Justice Powell urged that Roe be the lead case, and Blackmun agreed.
- Justice Blackmun distributed a second draft opinion on November 21, 1972, which still emphasized the end o the first trimester as the “decisive” limit to the right to an abortion:
You will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary.
- Blackmun adopted the expansion to viability, and in a memo to the Justices of December 15 indicated that he would be revising the draft opinions to shift the decisive point from the end of the first trimester to viability. On December 21, Blackmun circulated his revised third draft in Roe, the first to include th trimester framework and the first to identify the right as extending to viability.
At this point, the abortion cases were effectively decided.
- Professor Joseph Dellapenna, the foremost historian of abortion law in the Western world, has argued that, by 1960, such changes shaped the demand for abortion before the cultural upheaval of the 1960s. These included the impact of the Industrial Revolution on family life and work patterns, the entrance of more women into the workforce, greater sexual experimentation, and the desire to limit pregnanct, along with technology that made abortion-in terms of immediate risks-more effective and safer for the woman.
- The record that came up to this Court contains the amended petition of Jane Roe, an unsigned alias affidavit, and that is all.
- Jay Floyd, attorney for Texas as quoted on p.89
- And that again is one of the great problems with this case. We know o no facts, there are no facts in this case, no established facts.
- Dorothy Beasley, attorney for Georgi; as quoted on p.89
- In the lower court hearings of Roe and Do, however, the parties did not present evidence-there were no trials- and the judges did not look at evidence. The federal court hearings in Roe an Do were conducted without examination of medical or other evidence and without hearing witnesses subjected to cross-examination. Instead, both district courts in Texas and Georgia simply decided that “the facts don’t matter” (in the words of Georgia’s attorney, Dorothy Beasley”), and merely held two-hour long oral arguments, in which much of the time was taken up with procedural and jurisdictional questions.
Nor was there any intermediate review by an appeals court in Roe and Doe.
- There were numerous abortion cases in the courts in 1970, and more followed in 1971 and 1972; the Justices could have selected other cases with a factual record. At the time the Justices chose Roe and Doe, at least seven other abortion cases were pending at the Supreme Court. Remarkably, the Justices chose not one but two abortion cases without any factual record. Why?
- A few years after Roe, a former law clerk for Judge Edward Lumbard (who wrote the first decision in 1972 striking down the Connecticut abortion law) pointed out that the lower court decisions were not thorough and that the Supreme Court was hasty in hearing Roe and Doe before the issues were fully explored in the lower courts.
- Three years after Roe, Justice Thurgood Marshall wrote the opinion for a unanimous Court noting the impropriety of deciding constitutional questions “in the absence of ‘an adequate and full-bodies record.’” In another case four years after Roe, Justice Blackmun wrote, “The problem is a complex one, about which widely differing views can be held, and, as such, it would be somewhat precipitate to take judicial notice of one view over another on the basis of a record as barren as this.”
- Some of the same Justices who heard and decided Roe and Doe had emphasized the importance of a factual record in prior “privacy” cases. In Poe v. Ullman in 1961, Justice Brennan supported dismissal of the case, in part, because of the “skimpy record.” During the Supreme Court oral argument in January 1971 in the Vuitch case, involving the District of Columbia abortion law, Samuel Huntington, the attorney for the United States, pointed out that the record contained “no development whatever of any of the facts bearing on the charges contained in the indictment,” and Chief Justice Burger noted that the Court might benefit from “a record of testimony as to what is the present state of medical knowledge.” And in his opinion in the Vuitch case decided the day before the Justices voted to hear Roe, Justice White emphasized that “this case comes to us unilluminated by facts or record.” If this was true in Vuitch-which was a comparatively limited inquiry into whether the District of Columbia’s abortion law was “unconstitutionally vague”-it was even truer in Roe and Doe, which aimed to sweep away the abortion laws of all fifty states.
It is not as if the Justices were not warned that there was no factual record. In the first Doe argument, Georgia’s attorney, Dorothy Beasley, made the lack-of-factual-record point no less than five times. Beasley pointed out that there was no record to show how abortions were being done under the new 1968 statute in Georgia. Georgia and thirteen other states had enacted these laws between 1967 and 1970, and the Court did not have any facts about how they operated. How could the Supreme Court decide to legalize abortion on a broader basis, through the first and second trimester, when they did not have even a basic understanding, developed through a trial, of how these “reform” statues had operated in the few months or years since they had been enacted?
These problems suggest that the Court should have reached no decision, or sent the case back for trial, or taken other cases with a trial record, or at least reached a narrow decision. Instead, the Justices issues one of the broadest decisions possible.
- In addition to the lack of a factual record, the oral arguments were burdened by jurisdictional and procedural issues that consumed a considerable amount of time, leaving little time to focus on the substantive medical, historical, and constitutional questions.
The first twenty minutes of Weddington’s first argument in Roe in December 1971 was spent on procedure and jurisdiction, an much of the last ten minutes as well. The Court asked questions such as who brought the suit, whether they could sue, whether these was any real controversy between Jane Roe and the public officials named as defendants, whether the Court should even hear the appeal, whether the parties should have gone to the federal appeals court first, whether the case was moot, whether an injunction was appropriate.
A substantial part of the discussion by Jay Floyd, the attorney for Texas in the first Roe argument, was also spent on procedure and jurisdiction. In the first Doe argument, Margie Pitts Hames addressed some questions on jurisdiction and procedure, and her final question was on jurisdiction Dorothy Beasley also addressed such questions.
Again, the amount of time spent on these procedural and jurisdictional questions lends considerable credence to Justice Blackmun’s story that Justice Stewart urged the subcommittee of Justices to hear Roe and Doe under the “misapprehension” that they involved “nothing more than an application of Younger v. Harris.”
Indeed, the subcommittee could have been easily misled by the first papers filed in the Supreme Court by Roy Lucas and Sarah Weddington on October 6, 1970, asking the Justices to hear the case. The papers (called a “Jurisdictional Statement) consisted of thirty-three pages and presented only two “Questions” for the Justices to address, relating to the propriety of an injunction by the federal court and whether the married couple in the case (not Jan Roe) had “standing” to sue-on other words, procedural issues.
- These procedural issues raised many red flags that the Justices ignored. Shouldn’t the lower courts have conducted a trial, with witnesses, and evidence, and cross-examination? Did either Jane Roe or Mary Doe accurately represent women who wanted abortions? Some of these “technical” issues dealt with two requirements of any viable constitutional case: “standing” (who can bring a suit to challenge a law?) and “case and controversy” (is there any real conflict between the parties that can clarify the constitutional issues?). These two requirements-“standing” and “case and controversy”-are important for sound judicial decisions because they enable judges to see the practical consequences of legislation. Georgia’s attorney Beasley brought both of these requirements directly to the Justice’s attention, but the Justices brushed them aside. The aim of Justices Brennan and Douglas-as evidenced by their phone and written exchanges on December 29 and 30, 1971-was to find the best way to get around them.
- Little time was left for the substantive questions in both cases. For example, the question of where the right to “abortion” could be found in the Constitution became virtually a joke at the first argument. Weddington was willing to say it could be found almost anywhere-the “due process clause, equal protection clause, the Ninth Amendment, and a variety of others. . . . “ The statement was so weak that Justice Stewart equipped “and anything else that might obtain,” provoking laughter from the audience. To which Weddington responded, “yeah, right,” and laughed. Another red flag, but again, no Justice challenged Weddington’s weak assertions.
- So much of the first Doe argument in December 1971 was spent on procedural issues that Hames, the attorney for the Georgia plaintiffs, made no statement in her first argument about the constitutional basis of her case or of a right to abortion. And no Justice questioned this. There were virtually no questions on the source of any constitutional right to abortion and almost no questions on the historical basis for such a right. Hames left this fundamental issue to her one-minute rebuttal of Beasley, admitting that “we have not designated a constitutional basis for our case.” So Hames gave a one-sentence answer “I would like to say that it is-we contend that the procedural requirement infringe Due Process and Equal Protection, and that the right of privacy, an enunciated in Griswold, of course, is our basic reliance.” That was the extent of the constitutional discussion at the first oral argument in Doe.
The procedural problems should have cautioned the Justices that the Texas and Georgia cases prevented the evaluation of fundamental questions and were unstable and inadequate bases on which to make a decision. According to varius reports, “Burger had complained that part of his problem with the abortion cases resulted from the poor quality of the oral argument. On reargument, he suggested, the Court could appoint ‘friends of the court’ (amici curiae) forboth sides, outside counsel who could make better presentations.” Blackmun, too, acknowledged that the cases were poorly argued the first time. White probably shared this view. Instead, the bloc of four Justices-Douglas, Brennan, Marshall, and Stewart-heavily pressured Blackmun in May and June 1972 against a second argument.
- Despite the fact that abortion was legal in some other countries and in a few states, there were no reliable peer-reviewed medical data, and certainly no long-term studies, about it. Nevertheless, Weddington and Hames argued for the elimination of all state abortion laws, relying on unsubstantiated statistics.
For example in the second argument in Doe, Hames admitted that “there aren’t any statistics that are very reliable on this,” but then went on to say that “writers in the area estimate several thousand per year in the United States and several thousand deaths have occurred from illegal abortions.” Likewise, Hames claimed in the first Doe argument that “illegal abortion and the complications therefrom is the largest single cause of maternal mortality in the United States. Therefore, abortion statutes have resulted in one of our nation’s largest health problems.” This was a large claim for which there was no basis in the record, though this claim was made in several amicus curiae (“friend of the court”) briefs. No Justice questioned Hames on this or any of her other undocumented sociological claims.
- ”Total maternal deaths” per year-from all causes-had dropped from 7,267 in 1942 to 780 in 1972. Of the 780 maternal deaths in 1972, 140 (or 18 percent) were attributed to “abortion deaths.” But this included spontaneous miscarriages, too. The NCHS data were obviously not in the record and were not submitted in any “friend-of-the-court” brief.
Weddington’s arguments were filled with sociological claims that had no foundation in the record, including the legal disabilities that pregnant women incurred in Texas, legal problems in Texas for unwed mothers, how many women had abortions, the numbers of illegal abortions, the risks of illegal abortion, the risks of delay in getting a legal abortion, the impact ofNew York’s law that legalized abortion in July 1970, and the impact of laws in other states that had legalized abortion since 1967.
- [W]hether or not there was any record, Weddington’s arguments made a definite impact. After seventeen minutes of the first argument in Roe, with only a few minor questions to Weddington, Justice Stewart broke in to ask a question and prefaced it by saying, “so far on the merits, you’ve told us about the important impact of this law, and you made a very eloquent policy argument against” the Texas law. This may have been the most important moment in the first round of arguments, perhaps in both rounds.
- Historical claims also played a key role in the abortion decisions. History was critical for least two reasons: to show the purpose of the abortion laws and to see whether any right to abortion existed and could be said to be “deeply rooted” in American law and history.
In Griswold, Justice Douglas had written for the Court:
In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the “traditions and (collective) conscience of our people” to determine whether a principle is “so rooted (there) . . . as to be ranked as fundamental.” The inquiry is whether a right involved “is of such a character that it cannot be denied without violating those ‘fundamental principles of liberty and justice which lie at the case of all our civil and political institutions.’”
That standard naturally led to the question of whether abortion qualified. But the Justices failed to apply that test in “Roe” and did not look closely at the relevant history.
- Justice Blackmun ended up relying for most of his legal history on the novel historical theories of Cyril Means, the general counsel of the National Association for the Repeal of Abortion Laws (NARAL). Weddington and Hames expressly urged the Court, at least three times, to read Means’s articles. Weddington subsequently reported that the Justices had copies of Means’s articles on the bench during the argument. Beasley specifically denied the accuracy of Means’s historical theories, but no Justice questioned them, and they became an essential pillar of Justice Blackmun’s opinion in Roe.
Mean’s historical claims-which are explored in greater depth in chapter 6-were completely unprecedented. They were disputed at the time, and legal and historical scholarship has since definitively refuted them, but they had a decisive impact on the Justice’s questions, deliberations, and final opinions in the abortion cases.
- In the first Roe argument, Weddington claimed (citing Means) that “at the time the Constitution was adopted there was no common law prohibition against abortions; that they were available to the women of this country.” This was inaccurate on both counts: the English common law’s prohibition of abortion after quickening was adopted by the American colonies, and abortion was not available as a practical matter because it was either ineffective or deadly or both.
Means’s other claim was that the purpose of abortion laws was only to protect the health of the mother, not the child. If abortion laws were adopted only for the health of the mother, however, there is no adequate explanation for why abortion laws were “criminal” laws. Why was abortion, in contrast to all other surgery, uniquely abortion statutes as criminal?
“Revelations on the Road to Roe” (May 2000)Edit
“Revelations on the Road to Roe” by David Garrow, American Lawyer, Volume 22, May 2000
- SUPREME COURT JUSTICE Harry Blackmun has long been seen as the primary architect of the landmark 1973 abortion decision in Roe v. Wade--with particular encouragement coming from his two most liberal colleagues, William Brennan and Thurgood Marshall. But a close reading of the papers of the late Justice Lewis Powell, Jr.--only recently made available to anyone other than his official biographer--provides a striking revelation about the profound influence that the centrist Southern justice had on the historic case. The Powell Papers make clear that clerk Larry Hammond, drawing from a contemporaneous lower federal court abortion opinion written by Judge Jon O. Newman, helped provide Powell with the analytical insight that persuaded a seven-justice majority to broaden Roe's new protection of abortion rights from the first trimester all the way to the threshold of fetal viability.
- Powell jotted his own initial reaction to Blackmun's drafts in the margin: "I doubt the validity of the Texas statute as unduly restrictive of individual rights (privacy) but I am not persuaded it is vague." He added, "Why not consolidate Texas + Ga. cases + rely on Ga. type analysis--if we are to invalidate these laws?" On White's draft, Powell again noted, "I agree that Texas statute is not unconst. vague. But I'm not clear as to where this draft leaves the Texas statute. Does J. White think Tex. statute is valid?"
- Hammond summarized for Powell the constitutional privacy analyses that different justices had offered in the landmark 1965 birth control case, Griswold v. Connecticut, and concluded that "it would not be difficult for this Ct. to find a fundamental right of a woman to control the decision whether to go through the experience of pregnancy and assume the responsibilities that occur thereafter." Hammond suggested that "you might reason as Judge Newman does that the state interest becomes more dominant when the fetus is capable of independent existence (or becomes `viable')." Alluding to Texas's and Connecticut's claims that fetuses become constitutional "persons" at the "moment of conception," Hammond noted how "the crux of Judge Newman's analysis is that the state may not bar abortional freedom altogether on the basis of a proposition that is subject to such a great public debate and affects individuals so personally." Hammond concluded by observing that "I do believe that a well-reasoned opinion can be written reaching this result without placing the Ct. in the position of deciding as a super legislature whether it will permit abortions at any specific point in time."
- Powell's notes indicate that while White believed that a "woman must have some const. right to protection," he nonetheless was "unwilling to second-guess state leg. as to its interest. Pure convenience of woman can't override state interest," and the Court "can't allow abortion on demand." Powell's notes fail to indicate, as both Brennan's and Douglas's do, that it was Powell's own comments that led Blackmun to say that he would jettison his void-for-vagueness approach to Roe and make the Texas case, rather than the Georgia one, the "lead" decision.
- Powell's file discloses that a previously unrevealed private response from Rehnquist was one of the first that Blackmun received. Rehnquist acknowledged that "although I am still in significant disagreement with parts of them, I have to take my hat off to you for marshaling as well as I think could be done the arguments on your side. I think I will probably still file a dissent, although more limited than I had contemplated after the conference discussion."
- Blackmun's November drafts, unlike the final Roe and Doe opinions the Court handed down on January 22, 1973, held that states must leave the abortion decision to a woman and her doctor only during the first trimester of pregnancy. Subsequent to those first three months, states could restrict legal abortions to carefully specified therapeutic categories. Thus Rehnquist asked Blackmun, "Ought not your Texas opinion to invalidate the Texas abortion statute only as applied to a litigant who seeks abortion within the first `trimester,' rather than, as I understand you to do, invalidating it in toto?" Rehnquist also similarly wondered, whether in Doe, "Would you permit any more latitude to Georgia in her procedural requirements after the first trimester" as opposed to during it?
Rehnquist's subdued feelings about Roe, which contrast starkly with his far more intense expressions in subsequent abortion cases, do not come as a complete surprise. But his letter to Blackmun, like Blackmun's newly available private response, adds significant richness to Roe's history. In reply, Blackmun told Rehnquist that he would have "conceptual difficulty" in voiding the Texas statute only as it pertained to the first trimester, and reiterated how he still believed the law was unconstitutionally vague, even though his opinion now bypassed that issue entirely. In response to Rehnquist's second question, Blackmun expressed accord: "I agree that after the first trimester a state is entitled to more latitude procedurally as well as substantively."
But it fell to Lewis Powell to first broach to Blackmun the biggest question that his November drafts raised, namely whether the Court's forthcoming constitutional ruling should indeed be limited primarily to abortions during just the first trimester of pregnancy. Larry Hammond had highlighted the issue in a six-page memo to Powell on November 27. Hammond was pleased that Blackmun "has embraced the straightforward constitutional view taken by Judge Newman in the Connecticut case," but was unhappy with how Blackmun had identified the end of the first trimester as legally decisive. "Since the statutory prohibition [in Texas] was total, it is unnecessary to the result that we draw the line. If a line ultimately must be drawn, it seems that `viability' provides a better point. This is where Judge Newman would have drawn the line."
- "Doesn't it seem that this language overstates the doctor's role and undercuts the woman's personal interest in the decision?" asked Hammond, following with the recommendation that Powell should advocate the Court instead say that the responsibility would rest "with the physician and his patient."
- Within a day of receiving Hammond's memo, Powell wrote a private letter to Blackmun. "I am enthusiastic about your abortion opinions. They reflect impressive scholarship and analysis." But Powell quickly got to his real question, which was "whether you view your choice of `the first trimester' as essential to your decision." Powell noted how Blackmun himself had volunteered that this choice was "arbitrary" in the cover memo that had accompanied his new drafts, and voiced his own--or his and Hammond's--proposal: "I have wondered whether drawing the line at `viability'--if we conclude to designate a particular point of time--would not be more defensible in logic and biologically than perhaps any other single time."
Quoting Judge Newman's language about the constitutional importance of fetal viability, Powell told Blackmun that "I rather agree with the view that the interest of the state is clearly identifiable, in a manner which would be generally understood, when the fetus becomes viable. At any point in time prior thereto, it is more difficult to justify a cutoff date." Powell observed that the Court did not have to say anything, and that Newman's opinion "pointed the way generally toward `viability' without making this an explicit ruling," but Powell's letter was the first intra-Court communication to put the option of extending constitutional protection for abortion choice all the way to fetal viability explicitly on the table.
- Harry Blackmun replied to Powell five days later in a previously unquoted private letter that ironically reveals how highly reluctant Roe's author was to extend the ruling to the point that the Court's actual decision indeed reached:
I have no particular commitment to the point marking the end of the first trimester as contrasted with some other point, such as quickening or viability. I selected the earliest of the three because medical statistics and the statistical writings seemed to focus on it and to draw their contrasts between the first three months and the remainder of the pregnancy. In addition, I thought it might be easier for some of the justices than a designated later point.
I could go along with viability if it could command a court. By that time the state's interest has grown large indeed. I suspect that my preference, however, is to stay with the end of the first trimester for the following reasons: (1) It is more likely to command a court. (2) A state is still free to make its decisions on the liberal side and fix a later point in the abortion statutes it enacts. (3) I may be wrong, but I have the impression that many physicians are concerned about facilities and, for example, the need of hospitalization, after the first trimester. I would like to leave the states free to draw their own medical conclusions with respect to the period after three months and until viability. The states' judgments of the health needs of the mother, I feel, ought, on balance, to be honored.
I would be willing to state, either in the opinion or in a footnote, what is essentially the obvious--namely, that a state is free to leave the decision to the attending physician and to regulate at a later date than the end of the first trimester.
- Larry Hammond expressed elation at Blackmun's memo, telling Powell in a cover note that Blackmun "expresses what I feel is the most important practical consideration. For many poor, or frightened, or uneducated, or unsophisticated girls, the decision to seek help may not occur during the first 12 weeks. The girl might be simply hoping against hope that she is not pregnant but is just missing periods. Or she might know perfectly well that she is pregnant but be unwilling to make the decision--unwilling to tell her parents or her boyfriend." Powell drew a crisp bracket around these sentences when he read Hammond's note, and scrawled a bold, dark "yes" in the margin.
- In response to Blackmun's explicit request for reactions, both Thurgood Marshall and William Brennan quickly endorsed the shift to viability first suggested by Powell. After reviewing Hammond's note, Powell too prepared a letter to Blackmun, saying that "once we take the major step of affirming a woman's constitutional right, it seems to me that viability is a more logical and defensible time for identifying the point at which the state's overriding right to protect potential life becomes evident." Powell noted how "the women who most need the benefit of liberalized abortion laws are likely to be young, inexperienced, unsure, frightened and perhaps unmarried," and observed that "if there is a constitutional right to an abortion, there is much to be said for making it effective where and when it may well be needed most." Powell closed by again mentioning that he was "favorably impressed" with how Jon Newman had "identified viability as the critical time from the viewpoint of the state."
Powell left his letter to Blackmun unsent, perhaps in the belief that Marshall's and Brennan's expressions of support had already made the point, or perhaps because he reiterated his views face-to-face. In any event, on December 15 Harry Blackmun notified all of his colleagues that he would be revising his Roe and Doe opinions in the manner recommended, and six days later, new all-but-final drafts were distributed as well.
History has correctly recorded Harry Blackmun as the hardworking author of Roe v. Wade, but until now neither the crucial influence of Lewis Powell--nor that of Larry Hammond and Jon Newman has--been fully appreciated.
"Exclusive: Supreme Court has voted to overturn abortion rights, draft opinion shows" (May 2, 2022)Edit
Gerstein, Josh; Ward, Alexander (May 2, 2022; updated 05/03/2022). "Exclusive: Supreme Court has voted to overturn abortion rights, draft opinion shows". Politico. Retrieved May 3, 2022.
- The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.
The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision — Planned Parenthood v. Casey — that largely maintained the right.
- The draft opinion offers an extraordinary window into the justices’ deliberations in one of the most consequential cases before the court in the last five decades. Some court-watchers predicted that the conservative majority would slice away at abortion rights without flatly overturning a 49-year-old precedent. The draft shows that the court is looking to reject Roe’s logic and legal protections.
- On Tuesday, after this article was published, Roberts confirmed the authenticity of the draft opinion and said he was ordering an investigation into the disclosure.
“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way,” Roberts pledged in a written statement. “This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.”
Roberts also stressed that the draft opinion “does not represent a decision by the Court or the final position of any member on the issues in the case.” The court spokesperson had declined comment pre-publication.
“Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between Them Reveal About the History of Fundamental Rights”Edit
“Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between Them Reveal About the History of Fundamental Rights” by Risa L. Goluboff, Stanford Law Review, Volume 62, Issue 5
- Ever since Anthony Amsterdam published his path breaking note on the void-for-vagueness doctrine in 1960, legal scholars have speculated about the Supreme Court’s use of the doctrine. On the surface, under void-for-vagueness, judges condemn as violations of the Due Process Clause of the Fifth of Fourteenth Amendment those laws they deem unduly vague or ambiguous. As Amsterdam described it, such vagueness in constitutionally problematic for two reasons. First, vagueness fails to give fair notice to the public as to what constitutes illegal conduct. Second, vagueness fails to guide the discretion of executive officers and judges it accordingly encouraged arbitrary and potentially discriminatory arrests and criminal convictions. Vagueness thus poses problems for the principle of legality and the rule of law itself.
- Brennan’s memo shows that he saw connections between Douglas’s fundamental rights-based “Papacristou” opinion and Blackmun’s forthcoming Roe opinion, which was to be based on the same constitutional theory. He was worried that other, more conservative Justices would see the same connections and that they would hesitate to sign onto Roe for fear of broadening substantive due process to include everything in Douglas’s opinion as well.
That Brennan was preoccupied with Roe in the winter of 1971 is hardly surprising. Think of the historical context. Behind the Court was Griswold v. Connecticut-that wide-ranging survey of constitutional provisions that the Justices hopes might justify judicial protection of fundamental rights. Griswold is the constitutional law professor’s dream The Court struck down Connecticut’s law prohibiting the use of contraceptives by married couples with numerous Justices in multiple opinions transparently struggling to find protection or rights nowhere listed in the Constitution. Famously, Douglas constructed a majority opinion in which the “penumbras” of the Bill o Rights created a right to privacy that thwarted the Connecticut law.
The Court was clearly still wrangling with such issues six years later, when it faced both Eisenstadt v. Baird and Roe v. Wade in 1971. In Eisenstadt, Brennan authored a somewhat strained plurality opinion holding that equal protection required that individuals have the same rights to contraceptives as married couples. He thereby avoided expanding any of the substantive theories Griswold had propounded.
- In Roe, Blackmun’s initial impulse was also avoidance. Although the conference had voted to invalidate the abortion statute on privacy grounds, Blackmun’s early draft opinion relied not on any substantive right, but on-wait for it-void-for-vagueness doctrine. Unlike feminists’ claims that abortion laws violated women’s fundamental rights, doctors’ claims against abortion laws often sounded in void-for-vagueness. Under laws prohibiting all abortion but those necessary for the “life” or “health” of the mother, doctors argued that they chanced a felony every time they guessed that a particular abortion came within such exceptions. Blackmun, the former resident counsel for the Mayo Clinic, was sympathetic to these professional concerns. Moreover, he hoped that void-for-vagueness would help him to avoid the more controversial issue of when life began that he feared a fundamental rights approach would ultimately require.
Brennan and Douglas found that approach unsatisfying. In response to Blackmun’s draft, they urged Blackmun to reach “the core issue” of privacy rather than rely on vagueness. These interchanges between Justices in Roe offer further support for the conclusion Amsterdam had offered a decade before-that vagueness was at least in part an avoidance mechanism, denying and shielding the Justice’s substantive commitments. Afraid to embrace fully the implications of Griswold and wade too deeply into the abortion issue, Blackmun thought he could escape the problem by using void-for-vagueness.
- What might seem more surprising than Brennan’s general preoccupation with Roe in the winter of 1971 was that he connected Roe to Papchristou. Thought about as privacy, sexual freedom, or reproduction cases, Roe, Eisenstadt, and Griswold has little in common with Papachristou. True, the Jacksonville police were using the city’s vagrancy ordinance to regulate the sexuality of the interracial double-daters. But sexuality was not the central issue in Papachristou. Moreover, the acts that led to the vagrancy arrests, more so even than abortions, could hardly be considered “private” For the most part, in fact, not only did vagrancy laws regulate people in public spaces, they usually regulated men in public spaces. The abortion cases, by contrast, largely involved the choices of women in private.
Going up a level of generality, however, the various opinions and memos in the archives make clear the questions preoccupying much of the Court were the same in the two sets of cases: what were fundamental rights, and where in the Constitution, if anywhere, the Justices might find protection for them. In particular, an individual’s right to choose his or her own “lifestyle” was at least as affected by choices about reproduction as by choices about where to live, how to dissent, and whether to shave one’s facial hair. Within that context, it is less surprising that Brennan would connect Papachristou with Roe.
- [I]n thinking about how to resolve Roe, Brennan was then in the process of constructing a systematic framework for the ”fundamental freedoms” that he deemed within the meaning of “liberty.” He viewed the first of three groups of such freedoms as including “freedom from bodily restraint or inspection, freedom to do with one’s body as one likes, and freedom to care for one’s health and person.” For these, he cited Terry v. Ohio, Meyer v. Nebraska, and Jacobson v. Massachusetts, among others. The second group included “freedom of choice in the basic decisions of life, such as marriage, divorce, procreation, contraception, and the education and upbringing of children.” Here he relied on Living v. Virginia, Boddie v. Connecticut, Skinner v. Oklahoma, Eisenstadt v. Baird, Griswold v. Connecticut, and others. The third group included “autonomous control over the development and expression of one’s intellect and personality.” The precedent for this last group was thinner. Brennan cited only Stanley v. Georgia (protecting the possession of obscene materials in the home) and Justice Brandeis’s reference in Olmstead v. United States to a “right to be let alone.” Brennan thought that the decision to have an abortion “obviously fits directly within each of the categories of fundamental freedoms,” and therefore “should be held to involve a basic individual right.”
Brennan described this framework in a memo he wrote to Justice Douglas about Roe on December 30, 1971.
- In a long missive to Douglas proposing the fundamental-freedoms framework described above, Brennan also told Douglas that he hoped that Roe would rely on the Ninth Amendment, “as in your proposed Papachristou opinion.”
Neither Blackmun’s majority nor Douglas’s concurrence in Roe ultimately drew much on the Ninth Amendment. By 1973, even those like Douglas who had long opposed renewing substantive due process had fallen into line. Douglas’s concurrence in Roe and Doe did, however, largely adopt the categories of fundamental rights Brennan had identified in his memo. Douglas’s most significant divergence from Brennan’s framework unsurprisingly involved Papachristou. Douglas mad ea more explicit connection between Roe/Doe and Papachristou than Brennan had. He added to Brennan’s “freedom to care for one’s health and person,” and “freedom from bodily restraint or compulsion,” his own ‘freedom to walk, stroll, or loaf.” Quoting Papachristou, he called “walking, strolling, and wandering” “historically part of the amenities of life as we have known them.” Douglas described these rights as fundamental and subject to strict scrutiny. Although the final draft of his Papachristou opinion had not made these rights fundamental, the earlier drafts remained alive in his reimagining and reworking of the opinion. Douglas’s opinion in Roe/Doe reads as if his draft opinion in Papachristou had actually been published.
- As Brennan predicted, he and Douglas were not alone in seeing connections between Roe and Papachristou. The constitutional understanding that roe represented would be potentially deeper, more expansive, and more secure with related fundamental rights protected in Papachristou. That security appealed to some Justices and repelled others. Skeptics of this newfound judicial penchant for creating rights saw the connections as threatening rather than auspicious. In particular, Justice Potter Stewart thought Douglas’s opinion off the mark in its constitutional interpretation. Stewart had dissented in Griswold, galled by the Justices' apparent fishing expedition to find some justification for its decision. By 1971, however, Stewart seems to have resigned himself to the growing consensus to base privacy rights to reproduction, contraception, and abortion on a new form of substantive due process. He joined the opinions in Eisenstadt and Roe.
- With Douglas, Brennan, and Stewart provoking us to view Papachristou and Roe together-whether for good or ill-implications beyond those for fundamental-rights doctrine come into focus. In particular, placing the two cases in conversation provides additional fodder for Stuntz’s analysis of the relative absence of constitutional criminal law. Because we usually consider Griswold, Loving, Eisenstady, Roe, and their ilk as substantive due process or fundamental rights (or even equal protection) cases, we fail to see them as criminal law cases. But they were. They were all cases in which the Court was placing substantive limits on the extent to which the criminal law could be used as a mechanism of morals regulation.
- Justice Douglas had initially relied on fundamental rights to strike down the vagrancy ordinance in Papachristou. Justice Blackmun had initially used vagueness to avoid relying on fundamental rights to strike down the law in Roe. But ultimately, the two cases switched places. Roe fessed up to its substantive right of privacy, while Papachristou’s reliance on vagueness masked the connections between Papachristou and the burgeoning fundamental rights-particularly privacy and sexual autonomy rights-that the Court was wrestling with in Roe.
One wonders how constitutional law would have looked if the early drafts of roe and Papachritou had been published, if the reasoning of the two cases had not switched places. Would we have elaborated a substantive due process in which people had greater rights in public than in private? Would low-level criminal regulation of mobility have actually disappeared while legislatures reenacted abortion regulations sooner and witheven greater teeth? Even further, one wonders how constitutional law would have looked if both Papachritous and Roe had publicly committed to a new substantive due process of public and private, of lifestyle protection writ large, of the broader and more varied understandings of liberty represented in Brennan’s memo to Douglas.
=== The "Right" to an Abortion, the Scope of Fourteenth Amendment Personhood, and the Supreme Court's Birth Requirement (1979) === "The "Right" to an Abortion, the Scope of Fourteenth Amendment Personhood, and the Supreme Court's Birth Requirement" by John D. Gorby, Southern Illinois University Law Review, Volume 4, 1979
- In spite of Mr. Justice Powell's suggestion in Maher that "[o]ur conclusion signals no retreat from Roe or the cases applying it, "one wonders if those words of reassurance are to be taken with the same degree of seriousness as the assurance of Mr. Justice Blackmun in Roe v. Wade that the Supreme Court was not reviving substantive due process.'
- [T]he dominant democratic theme of Maher v. Roe, Poelker v. Doe' and Beal v. Doe, the bitterness expressed by the dissenters (all previous members of the Roe majority), the compulsion of the author of Roe to dissent,' and the continuing efforts to change Roe with a constitutional amendment cause one to wonder if the majority in Colauti would not have preferred to have followed the spirit of the dissenting opinions in Roe and left the entire abortion problem in the hands of the state legislatures. This approach, at least on the surface, would be consistent with recent suggestions that the judiciary return to the fourteenth amendment its intended "procedural" as op- posed to "substantive" significance, defer to the "spirit of our democracy" in matters not controlled by the fourteenth amendment as originally intended, and not "govern" under the guise of interpreting the Constitution.
- A legislative solution to the abortion problem is necessarily based upon the premise that the Constitution is neutral about abortion and does not impose a solution, one way or another.
In this article, the existence of such a premise is denied. More specifically, this author concludes (1) that the Constitution is not neutral about abortion and does indeed impose a solution on the abortion question; (2) that, as Justice Blackmun conceded in Roe, if the fetus is a person under the fourteenth amendment, "the [plaintiffs] case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [fourteenth] [a]mendment;' and (3) that the concept of "person" in the fifth and fourteenth amendments includes unborn human life. It thus follows that the solution to the abortion problem set forth in Roe as well as that suggested by Justices White and Rehnquist in dissent' are constitutionally unsound, both solutions permitting the violation of the fetus's constitutionally protected right to life without due process of law. More positively, there is substantial historical support for the notion that the due process clause was designed to guarantee access of all persons to the courts for the protection of fundamental rights, that those fundamental rights refer to "life, liberty and property," and that the unborn human being, as an individual living human being, is a person under the Constitution and is entitled to access to the courts to protect his fundamental right to life.
- Since Roe v. Wade is the only case in which the Supreme Court has considered the scope of constitutional "personhood" in the context of pre-birth stages of human development and is the only Supreme Court pronouncement on the subject, a criticism of ‘’Roe’’ will serve as a departure point for this discussion as to whether or not the fetus falls within the scope of the constitutional personhood concept.
- That the Supreme Court accepted the scope of constitutional personhood as the primary issue in ‘’Roe’’ is reflected in its statement that “[t]he appellee [Texas] and certain amici argue that the fetus is a 'per-son' within the language and meaning of the Fourteenth Amendment. . . . If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [Fourteenth] Amendment.
- p.5; 410 U.S. at 156
- Since the Court in Roe recognized the right to life issue as crucial and was fully aware of the rank of this right in the hierarchy of fundamental legal values, one would certainly expect the Court to have carefully and thoroughly studied and analyzed the scope of constitutional personhood as well as the nature of the unborn to determine on the most rational basis possible whether the unborn falls within that scope. As the next section shows, the Court did no such thing.
- Since the parties to the Roe and Doe cases were, on the one side, physicians and women challenging the constitutionality of the respective state anti-abortion statutes and, on the other side, the attorneys general defending their states' statutes, the fetus was not directly represented in the December 13, 1971, hearings. Because only seven justices heard the oral arguments, Justices Black and Harlan having left the Court one month earlier, no decisions were handed down and the cases were set for rehearing in October, 1972. In the meantime, the attorneys for the fetus, whose guardian was an actual party only in the Illinois case and had filed an amicus brief' one year earlier in both the Texas and Georgia cases, filed in the Supreme Court a motion for oral argument, which was denied in the summer of 1972. Shortly thereafter, they moved to consolidate for oral arguments at the rehearing the Illinois case (Doe v. Scott)' with the Texas (Roe) and Georgia (Doe) cases. This motion was also denied. As a result, the fetus, not having been represented in the crucial hearings before the justices, never enjoyed his "day in court."
The Supreme Court had every opportunity to hear arguments presented by the representative of the fetus that it was a "constitutional person." However, the Court chose not to take advantage of this occasion.
- One should not lightly conclude from the Supreme Court's holding in Roe that the concept of "person" has no prenatal significance, that the unborn was not, after all, entitled to a "day in court." Such a conclusion assumes the outcome. Furthermore, it would be sound only if one is willing to assume that the adversary process is not essential to sound judicial decision-making-an assumption hardly compatible with the common law tradition. To a great degree, judicial decisions are made legitimately only if there is an opportunity for vigorous advocacy, an opportunity not allowed the fetus in the cases thus far in which his right to personhood or, expressed differently, its right to even have rights, has been adjudicated.
- Although the Supreme Court in Roe expressed concern about its ability to "resolve the difficult question of when life begins," the initial constitutional dilemma the Court faced was not the factual question of when life begins but rather the legal question of the scope and meaning of the concept of "person" in the fourteenth amendment, ie., whether the concept means living humans, individual humans, born humans, rational humans, wanted humans, humans capable of "meaningful life," any combination thereof or something else. In other words, what does the term "person" as used in the fourteenth amendment mean? What values was it designed to protect? If, for example, it means all individual, living human beings, which is this writer's position, the factual issue whether the fetus is an individual, living human being is presented for decision. If "life" in the biological sense is irrelevant to membership in the class of constitutional persons or if birth is an essential criterion to membership in this constitutional class, the Court in Roe was correct, for then it need not "speculate as to the answer [of when life begins]." On the other hand, if the real problem facing the Court was a "proof problem," ie., how to prove that a fetus has "life," simple judicial restraint should require the Court not to exclude the fetus from constitutional protection as a matter of law by creating a birth requirement as it did in Roe but rather to leave the ultimate question of constitutional personhood in the fetus unanswered, remand the case and ask for more "proof" on the factual question.
- As stated by the Supreme Court and conceded by all parties, no prior case had been found in which the United States Supreme Court had addressed itself to the question of whether the term "person" as used in the fourteenth amendment has prenatal application. Thus, for all practical purposes, the question was being presented for the first time. In absence of precedent, the only legal materials with which the Court had to work were the constitutional provisions themselves.
- Further support for the idea that nineteenth century America was concerned with preserving the life of the fetus is ironically found in Botsford v. Union Pacific Railroad, the very case which the Supreme Court cited in Roe as its landmark right to privacy case. Although the Botsford Court acknowledged a common law right to privacy which precluded a court without statutory authority from ordering a medical examination of a female plaintiff in a personal injury case, it pointed out that one of two exceptions to this common law right of privacy was the writ de ventre inspiciendo. With this writ, the state was empowered to examine whether a woman convicted of a capital crime and sentenced to be executed was quick with child, thus overcoming her right to privacy. If she was, execution would be stayed until after the birth of the child. Here, the common law not only acknowledged a right to life in the fetus but also recognized precedence of this right over the common law right of privacy.
In light of the above it seems hard to suggest-as did the majority in Roe-that the concerns of the nineteenth century were exclusively about the pregnant woman and not the unborn, and difficult to argue-as did the majority in Roe-that the purpose of nineteenth century abortion legislation was in protecting "the woman's health rather than in preserving the embryo and fetus." Indeed, the preservation of the fetus appears to have been a major purpose. Moreover, even those courts which have indicated that preservation of maternal health was a purpose for enacting the anti-abortion statute did so against a background in which abortion of at least a quickened fetus was considered a common law crime.
If Justice Blackmun meant that an unquickened fetus may not have enjoyed protection under the common law, he should have said that. The correlation, however, would be that the quickened fetus did enjoy criminal law protection, a fact which argues against the Court's conclusion that constitutional personhood has no prenatal application.
- In oral argument before the Roe court as well as in the Roe majority opinion, the Supreme Court seemed impressed by the historical fact that no case had been found in which the pregnant woman was prosecuted for allowing an abortion to be performed on herself and by the fact that the punishment for conviction under the abortion statutes was much milder than the punishment for homicide. The Court found this to suggest that the fetus was not considered a person, as was the victim in a homicide. Such a conclusion is simply not warranted since there are other valid explanations. For example, if a 12-year-old intentionally kills a born individual in Illinois, no crime has been committed since the child is not legally responsible. No one could suggest that the victim of the act was not a person because the killer was not or could not be prosecuted. If a 15-year-old intentionally kills another, but is proceeded against under the Juvenile Court Act, one could hardly argue that the victim is not a person. The explanation for this legal phenomenon is that there are special circumstances surrounding the commitment of an act, circumstances which the lawmaker may properly and reasonably consider in formulating means to protect state interests and values-in the examples given, the age and assumed immaturity of the actor; in the abortion situation, the assumed stresses on the woman burdened by an unwanted pregnancy. These factors may justify and explain different treatment of the woman or even the physician in the abortion context, just as they justify or explain different treatment of the child of tender years or even of one who kills another under severe provocation.
Although in modem jurisprudence constitutional history alone has not been allowed to dispose of every question of constitutional interpretation, this brief historical background casts doubt on the soundness of two of the Supreme Court's critical conclusions in Roe v. Wade: (1) that abortion was not considered a crime by most of those who sup- ported the fourteenth amendment in 1868;' and (2) that the purpose of the anti-abortion laws was solely to protect the woman's health and not the life of the fetus. In addition, it casts doubt on the Court's holding that the concept of "person" does not embrace the unborn. The effect of this doubt surely is to augment the obligations of the Supreme Court to account for a requirement of birth as a condition precedent for membership in the class of constitutional persons.
- In brief, there is considerable evidence which suggests that the unborn is and should be considered a constitutional person, thus entitled to fourteenth amendment protections. If this be true, both the Roe holding as well as a legislative solution permitting abortions for reasons other than a threat to the life of the mother would have the effect of violating the unborn's right to due process of law. It would thus follow that both the judicial solution set forth in Roe and the legislative solution are constitutionally unsound.
- A holding that the fetus is a constitutional person would have the effect of overruling Roe v. Wade and its progeny. The legal consequences would not, however, be as far-reaching as Roe itself, which had the effect of declaring century-old criminal abortion statutes invalid, cutting deeply into assumed rights of husbands and parents, and creating the possibility of required, at least via legislation, public financing of abortion. On the other hand, the consequence of the Roe decision to the aborted fetus is severe and final. This result, of course, is of no great concern to the rule of law, unless the unborn does meet the criteria of constitutional personhood and the Court either because of poor reasoning or because of some unstated reason arbitrarily denied the unborn the constitutional protections due it or unless the fourteenth amendment is inadequate as a legal device to protect the fundamental rights of all members of the human family, the avowed purpose of the drafters of the fourteenth amendment. In either case, there is reason for concern, for the legal order has failed.
“Woman's Right to an Abortion: Roe v. Wade” (2016)Edit
“Woman's Right to an Abortion: Roe v. Wade” by D. J. Herda, Berkeley Heights, New Jersey: Enslow Publishing, 2016
- In more than four decades since its landmark 1973 Roe v. Wade ecision legalizing abortion, the Supreme Court has weighed I on the abortion issue on numerous occasions. Sometimes it has upheld the availability of abortion granted by Roel more often than not, it has leaned toward restricting that availability.
Regardless, the Court has repeatedly upheld Roe’s central premise: that the US Constitution guarantees a right of privacy, and that right of privacy inludes a woman’s right to have an abortion during the first thirteen weeks of pregnanct (and even afterthat it necessary in order to sageguard the woman’s life, health, or well-being).
But along the way, the anti-abortion (pro-life) movement has convinced legislators in Congress to enact a host of laws aimed at reducing Roe’s effects. Somee of these laws require parental notification (in the case of underage females), spousal consent (in the case of married females), or a waiting periodbefore the abortion procedure may be legally performed. Other laws require that women having second-trimester abortions do so in a hospital, rather than in a non-hospital clinic. They also require that physicians use abortion methods that are least harmful to the fetus; that is, they must use methods that will most likely result in the survival of the fetus after removing it from the mother’s womb. More recent laws and regulations also prevent public funds from tax revenues from being spent on abortion procedures.
The legislative flood of new laws over the years has led to a string of Supreme Court challenges and ruling that have served not only to limit the scope of Roe, but also to establish Roe as a legal precedent. In so doing, Roe has become the “norm” against which all abortion law challenges are measured.
- In 2004, in an ironic and surprising reversal, Norma McCorvey (Jane Roe, the plaintiff in 1973’s groundbreaking Roe v. Wade) filed a motion with the US District Court in Dallas to have the Roe case overturned. In doing so, she asked the court to consider new evidence that abortion hurts women. Included in her filings were affidavitsfrom more than a thousand women who said they had regretted having had their abortions. For McCorvey, the journey from abortion advocate to abortion foe had been long and winding.
In 1970, Norma McCorvey was described as a pregnant woman who “wished to terminate her pregnancy by an abortion ‘performed by a competent, licensed physician, under sage, clinical conditions’; …. Was unable to get a ‘legal’ abortion in Texas,” and the case focused on the idea that “the Texas statutes were unconcstitutionally vague and that they abridged her right of personal privacy …”
But the true story, as Norma McCorvey later explained it, was nowhere near what had been portrayed in court. A woman who was relatively ignorant of the facts of her own case, McCorbey claimed that her attorneys used her for their own predetermined ends. They “were looking for somebody, anybody, to use to further their own agenda. I was their most willing dupe.”
After becoming pregnant with her second child, she sought to end her pregnanct. She was not aware of all the implications of abortion ro even what the term emant. ‘Abortion to me,” she said, “meant ‘going back’ to the condition of not being pregnant.” She did not realize that the process would end a human life. She said that her attorney, Sarah Weddington, rather than orreting her misconceptions, merely confused the ussue: “For their part, my lawyers lied to me about the nature of abortion. Weddington convinced me, ‘It’s just a piece of tissue. You just missed your period.” Another problem was that Norma claimed that her pregnanct was the result of a gang-rape in order to present a more sympathetic picture. That, as she has since confessed, was untrue.
McCorvey has long admitted that her actual involvement in the case was minimal. She had signed the initial affidavit without ever reading it, and “was never invited into court. I never testified. I was never present before any court on any level, and I was never at any hearing on my case … I found out about the decision from the newspaper just like the rest of the country.”
- Even though she had spearheaded the pro-choice movement and its goal of opening up the right to legalized abortion to women, Norma McCorvey never experienced the abortion procedure. Instead, she delivered her baby and gave it up for adoption.
- After hearing the evidence presented by McCorvey to overturn Roe, a three-judge panel of the Fifth US Circuit Court of Appeals in New Orleans dismissed Norma McCorvey’s motion on November 14, 2004. McCorvey had claimed that she had new information that woud affect the 1973 case. The lower court disagreed, and the Supreeme Court denied review of the case.
“Roe v. Wade: Abortion and a Woman's Right to Privacy” (2012)Edit
“Roe v. Wade: Abortion and a Woman's Right to Privacy” by Melissa Higgins, North Mankato, MN: Abdo Publishing, 2012
- On a February afternoon in 1970, 22-year-old Norma McCorbey, a petite woman wearing jeans, sandals, anda shirt tied as her waist, walked into Columbo’s an Italian restaurant in Dallas, Texas. She scanned the red-and-white checked tables, looking ffor the two women she had arranged to meet. It did not take long to spot them.
As McCorvey later recalled in her 1993 autobiography, I Am Roe: My Life, Roe v. Wade, and Freedom of Choice, the women wore expensive-looking suits that were out of place in the casual restaurant. Linda Coffee was tall, thin, dark, and delicate. Sarah Weddington was shorter, blonde, and slightly plump. They were both a little older than MccCorbey, more educated, and more sophisticated.
- McCorvey had a ninth-grade education. She had been married and divorced. She drank heavily and did drugs. And, though she was a lesbian, McCorvey was pregnant-the reason for meeting with Cofffee and Weddington. Feeling intimidated, McCorbey considered walking away. But she stayed, hoping the pair could-and would-provide what she wanted.
McCorbey shook Weddington’s hand and thanked her for coming. McCorvey had little in common ith the attorneys-making small talk was uncomfortable. She was eager to get to the point. After ordering pizza and beer, she asked about what she assumed they had come to help her with. McCorbey wanted to know if either rof the lawyers new where she could get an abortion.
When they told her they did not, McCorvey felt angry. Again, she considered leaving. But Weddington, at least, seemed sympathetic to McCorvey’s situation, and McCorvey decided to stay. Weddington asked why she wanted an abortion so badly. McCorvey answered that it was hard to find work when she was pregnant. Her mother was raising her first child, whom she hardly ever saw. She was in no shape to be a mother.
Weddington recommended McCorvey not get an abortion. Eectie abortions were illegal in Texas, as they were in most other states. Illegal abortions were lso dangerous. Every year, women bled to deaths the result of abortions, trying to perform them themselves or suffering at the hands of doctor in illegal abortion clinics. Weddington explained that she, coffee, and a group of other like-minded people were working to overturn the Texas law banning abortion. But they needed alawsuit to accomplish this and woman to put hername on the lawsuit-a pregnant woman just like McCorvey.
McCorvey was interested, but she had difficulty keeping track as Weddigton described the legal steps the lawsuit would take: district, appeals, state, and federal courts. But she was impressed with Weddington’s passion. The two lawyers wanted to hear all about McCorvey. She decided to trust the women and told them her story.
- When McCorvey was seeking an abortion, she claimed her pregnancy resulted from rape. She thought the lie would help her situation. The first itme she made the claim was to an adoption lawyer she met before McCluskey. He would not help her obtain an abortion. After assuming the child was mixed race, he would not help with an adoption either. McCorvey told Weddington and Coffee the same lie. McCorbey wrote in “I Am Roe”, “The horrible lie-this was the second time I’d used it-pulled at the insides of my stomach.” Again, lying did not help. Accordin to McCorbey, Weddington responded, “Well Norma, it’s awful that you were raped. But actually, the Texas abortion law doesn’t make any exception for rape. So it doesn’t matter in terms of our lawsuit.”
- After listening to McCorvey’s story, Coffee and Weddington asked if she would be interested in being the plaintiff in their case. Weddington explained what that meant. McCorvey’s involvement would hopefully be minimal. She would probably not have to attend court hearings or answer oral questions. And she would not need to pay anything because Coffee and Weddington would donate their time and money to the case. Also, McCorbey could use a pseudonym to remain anononymous, unless she chose to disclose her identity. McCorvey agreed to be their plaintiff.
After the meeting at the restaurant, Coffee and Weddington considered whether McCorvey was really theirbest choice for a plaintiff.. This would be an important case. If the two youn lawyers succeeded in overturning Texas’s law, they believed their work would benefit all Texas women. And perhaps they could benefit woen in the other 42 states with restrictive provisions for abortion.
Some abortion alws had been changed in recent years to allow for the procedure. In some states, new laws legalized abortion or could be interpreted so broadly that abortion was essentially legal. In time, Coffee and Weddington hoped allstates might legalize abortion or at least broaden the criteria under which it could be performed. They wanted women to have abortion as an option and for that option to be safe and legal. But in 1970 Texas, as in most other states, abortion statutes were still in effect, leaving very few women eligible for legal abortions. Coffee and Weddington were impatient, unsure when abortion eform egislation would pass in their conservative state. They saw the courts as a faster alternative for change.
- The lawyers thought their ideal plaintiff needed to meet certain criteria. She would have to hold up under the intense legal and public scrutiny that would certainly result from sucha court case-scruinty that would likely increase for a woman with the kind of history McCorvey had.
Another consideration was McCorvey’s desperate desire for an abortion. She was far enough along in her pregnancy that she would have given birth by the time the case concluded. Coffee and Weddington could try to get McCorvey a legal abortion, but it would be a complicated process. It wouldalso be a lengthy one.
- After discussing the pros and cons off McCorvey as their plaintiff, Coffee and Weddignton realized the ideal plaintiff simply did not exist. If she were willing to be the plaintiff in the case, the two young lawyers would represent MccCorvey in a fight to change Texas’s abortion legislation.
The three women met again. McCorvey signed the legal paperwork, setting into motion a case that wouldbecome one of the most controversial and divisive Supreme Court decisions in modern US history.
- Although she wasn’t finding an answer to the abortion referral group’s problem, Weddington felt encouraged by the Griswold case and by the court cases and legislation cropping up across the country challenging or changing state abortion laws. One day in 1969, two of Weddingtoin’s friends asked if she would file a lawsuit challenging the constitutionality of the Texas abortion statute in federal court and add their case to others being filed on the feeral level. Their hope was that one of these cases would be heard by the Supreme Court.
Weddington has graduated from the University of Texxas Law School only in 1967 and had never handled a contested cae. Still, her friends respected the research she had already done and believed the case should have a female lawyer since it was a women’s issue. Plus, Weddington was the only attorney they knew who might be willing to do the work for free. Although afraid of failing and uncertain she was really the right person for the job, Weddington agreed.
- Weddington began gathering a group of people to assist her with the case, including Coffee, her law school classmate. Coffee was living in Dallasat the time and working as an attorney in a bankrupycy firm. She had clerked for a federal judge, and Weddington was eager for Coffee’s federal court expertise.
In December 1969, Coffee readily agreed to help, and the two attorneys began meeting to discuss strategy. They needed one or more plaintiffs, “who could how a personal, direct, significant impact of the Texas anti-abortion statues,” Weddingto remembered. It would become an ongoing worry as they drafted the complaint and lined up their legal points.
- The lawyers’ first selection as plaintiff was a woman who was not pregnant, but, due to a neurochemical disorder, was advised by her doctor to avoid getting pregnant and not to takebirth control pills. If the contraception method the woman and her husband used failed and she became pregnant, her health would be at risk without an abortion. An abortion under these conditions was illegal in Texas. The couple wanted to be plaintiffs because they believed the Texxas law compromised their right to normal marital intimacy. They would become “John Doe” and “Mary Doe.”
Weddington and Coffee needed an additional plaintiff,a pregnant woman who wanted an abortion. A friend of Coffee’s, attorney Henry McCuskey, called her with a referral, a young, pregnant woman living in Dallas who was looking for an abortion. Coffee talked to the woman and arranged for Weddington to meet them at an Italian restaurant in Dallas. The pregnant woman’s name was Norma McCorvey. She would become “Jane Roe.” Their plaintiffs selected, Weddington and Coffee now had to construct and file their case.
- Chapter 5, Constructing and Filing Roe v. Wade, pp.52-53
- Weddington and Coffee decided to file two separate lawsuits to challenge Texas’s abortion statutes. They did that because the issues in each case were slightly different: one of their plaintiffs was pregnant and the other was not. Filing two cases would also incrase their chances of at least one case landing in the court of Judge Sarah Hughes. As Coffee’s former boss, Hughes would probably be sympathetic to their cause. Once one case was assigned, Coffee and Weddington planned to request the oter case be joined with it so they could present a single case with combined facts.
The women also requested tha ta federalthree-judge cort hear their case, since a state court couldnot determine their constitutional rights. The lawyers strategized that because a three-judge court included one member of the circuit court and two judges from district court, its decision would carry more weight than that of a single-judge federal court. In addition, three-judge courts were required to proceed with cases as quickly as possible, which meant Coffee and Weddington-and their pregnant plaintiff-would get a speedy hearing.
- Unlike many legal docuents, the filing documents Coffee drafted in February 1970 were not lengthy: only three legal-sized pages. In the petition, the lawyers asked the court to do two things. First they wanted the court to affirm that the Texas abortion statutes were unconcstituional. Second, they wanted the court to order a stop to enforcement of those statutes. Weddington recalled.
In essence, we wantedthe court to say the Texas anti-abortion laws violated the US Constitution and to tell local law enforcement officials to quit prosecuting doctors under those statutes.
- In the documents for Jane Roe’s case, Coffee also included a seven-point statement of facts. Facts one through five were specific to McCorvey’ssituation. They stated that Roe was an unmarried pregnant woman who, due to economic hardship and the social stigma of having an illegitimate child,wanted to end her pregnant with an abortion performed by a licensed physician in safe circumstances. Because her life was not threatened by her pregnancy, she could not secure a legal abortion under Texas law and did not have the funds to travel to a location outside of the state where she could obtain a safe abortion.
facts six and seven were more general:
6. An abortion performed by a competent, licensed physician under hospital or clinic conditions is a safe and simple procedure whish presents less danger to the pregnant woman than ordinary childbirth.
7. An abortion performed outside of the clinical setting by unqualified personnel is extremely dangerous and often results in death, maiming, sterility, r serious infection.
- On the evening of March 2, 1970, Coffee and Weddington made a few final changes to the documents. The following day, March3, Coffee walked to the federal courthouse in Dallas, paying $30 of her own money to file the two cases. Roe’s case was docketed as ccase number 3-3690-B. By naming as their defendant the highest-ranking official responsible for law enforcement in Dallas Country, Texas-District Attorney Henry Wade-the case took on the title Roe v. Wade.
- On March 19, two Dallas attorneys-Fred Brunter and Roy L. Merrill Jr.-asked to have a third plaintiff added to the Roe case. The attorney’s client, James Hallford, was a doctor who had performed baortions for years and had been indicted under the Texas abortion law for performing an illegal abortion. Bruner and Merril argued that the stat e statute was so vague and difficult to interpret that Hallford could not determine when a woman’s life was in danger. Weddington and Coffee were glad to add the physician’s case to theirs, believing it made Roe stronger. The request was granted.
Coffee and Weddington had always imagined their case affecting more than McCorvey, their Jane Roe, including the many women facing unwanted pregnancies. The two young lawyers considered the case a good candidate for a class action.
“Abortion Before & After Roe” (September 2013)Edit
“Abortion Before & After Roe” by Ted Joyce, Ruoding Tan, and Yuxiu Zhang,Journal of Health Economics. Volume 32, Number 5, September, 2013, pages 804–815
- Abortion on demand was legal in a few states in 1970. Not until the 1973 Supreme Court decision in Roe v. Wade was legalized abortion available nationally.
- The story that emerges from these data is that the availability of legalized abortion services had a significant effect on fertility, but marginal changes in the distance to a legal provider had less of an effect. In other words, Roe v. Wade was arguably less important for unintended childbearing than was access to services in California, the District of Columbia and especially New York in the years before Roe.
- The conclusion that Roe had a relatively modest impact on birth rates is somewhat at odds with previous work (Gruber, Levine and Staiger 1999; Levine et al. 1999; Levine 2004). These authors argued that national legalization in 1973 led to an equally large decrease in birth rates in the non-repeal states as had occurred in the repeal states in the previous three years. Gruber, Levine and Staiger (1999) refer to this as the “bounce back” effect of Roe. However, they lack a comparison group after 1973. Consequently, they cannot distinguish the “bounce back” effect from a relatively larger decrease in birth rates in the repeal states relative to the non-repeal states in the pre-Roe years followed by no meaningful effect of Roe in the subsequent years.19 Although the latter seems surprising given the dramatic change in distance to the nearest abortion provider between 1972 and 1973 (Figure 7), trends in birth rates are consistent with this interpretation.
- The likelihood that Roe is overturned in the near future is remote. Nevertheless, states have imposed new requirements of abortion providers that, if enforced, will increase the distance women have to travel to access services.
"Testimony Before Subcommittee on the Constitution, Judiciary Committee, U.S. House of Representatives" (August 21, 2008)Edit
Kmiec, Douglas. "Testimony Before Subcommittee on the Constitution, Judiciary Committee, U.S. House of Representatives" (April 22, 1996), page 97, Archived August 21, 2008
- With reference to internal Supreme Court memoranda relating to the drafting of Roe v. Wade made public by Thurgood Marshall, but to my knowledge, not previously analyzed, it will be illustrated how, by Justice Blackmun's own admission, the holding in Roe is more "arbitrary" preference than constitutional interpretation.
- Despite the Supreme Court's putative "reaffirmation" of part of Roe in Planned Parenthood v. Casey, these opinions remain highly contentious because the constitutional premises upon which they rest are so wholly erroneous as to be non-existent in law. The writer Santyana enjoins us to learn from history.
- None of the Justices claim there is a specific textual guarantee of abortion to be found anywhere in the constitutional document. Nor does the abortion claim find legitimacy within the background principles of common law out of which the American Constitution emerged. As Bracton records, and the draft opinions within the internal Marshall papers indicate the Justices knew, abortion has little common law support, and was clearly thought by some to be homicide. [II Bracton, On the Laws and Customs of England 341 (Thorne ed. 1968), a citation to which can be found in Justice Blackmun's 4th circulated draft in December 1972]. Because of the more rudimentary nature of science in the 18th and 19th centuries, the common law drew a distinction between abortions before and after quickening [16 to 18 weeks], but under English codification in 1803 both were criminal only in different degrees. When medical science advanced, the quickening distinction receded, and penalties for all abortions increased. In 1868, when the 14th Amendment was adopted, statutory prohibitions or restrictions on abortion were commonplace. Twenty-eight states of the then 37 and 8 territories banned or limited abortion. [J. Mohr, Abortion in America at 200 (1978)].
The Court's drafts also reveal that the decision was not being guided by ancient precepts of medical ethics. In this respect, the Hippocratic Oath dating back three to four hundred years before Christ, had doctors pledging that they "will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner . . . not give to a woman a pessary to produce abortion." [The 4th circulated draft of Justice Blackmun's opinion in Roe cites the Hippocratic Oath, but cavalierly dismisses it on the basis of academic writing that found it to be held as true only within Pythagorean Greek culture. Why the Pythagoreans should be so ill-treated, or deemed uninfluential, is not explained. Indeed the Oath, which coincides with prevalent Christian belief since the end of antiquity, became the "nucleus" of medical ethics.]
- While many of us associate the abortion right with Roe's author, Justice Harry Blackmun, mid-December 1971 correspondence actually identifies William O. Douglas to be the strongest advocate for abortion as an extension of his earlier opinion in Griswold v. Connecticut, 381 U.S. 479 (1965) invalidating a Connecticut law limiting the use of artificial contraception. (Letter from William O. Douglas to Chief Justice Warren Burger, dated December 18, 1971. Following oral argument, the Justices discuss cases and take a straw vote. The senior justice in the majority [or the Chief Justice if he is in the majority] then usually assigns the opinion writing. Chief Justice Burger reports that the discussion following the first [Roe] argument was so confused, that there were "literally not enough columns to mark up an accurate reflection of the voting." [Letter from Warren Burger to William O. Douglas, dated December 20, 1971].
Out of expedience, perhaps, Burger assigned the draft writing to Blackmun, his fellow Minnesotan. This infuriated Douglas, since Blackmun was perceived by Douglas as then favoring state abortion restriction. (Blackmun had been appointed to the Court by President Nixon about a year earlier]. By mid-January 1972, Blackmun had looked at the cases and found the issue so unclear that he urged the Chief. Justice to ask for re-argument in both Roe and Doe. (Letter from Harry Blackmun to Warren Burger, dated January 18, 1972].
- Douglas steadfastly resisted reargument. Matters dragged on nonetheless and by mid-May, 1972, Justice Blackmun tried to rid the Court of the issue on procedural grounds -- namely, that the Texas statute was too vague to be enforced. He wrote: "I think that [vagueness] would be all that is necessary for disposition of the case, and that we need not get into the more complex Ninth Amendment issue." [Memorandum to Conference from Harry Blackmun, dated May 18, 1972]. This did not suit Justice Douglas, who argued that there were at least 4 votes [enough for a majority on an understaffed Court] that "an abortion [may] be performed by a licensed physician within a limited time after conception." (Letter from William O. Douglas to Harry Blackmun, dated May 19, 1972]. Douglas must have talked with Justice Brennan, because at about the same time Brennan by letter gives his support for the abortion proposition in almost identical language; namely, that "an abortion be performed by a licensed physician within some limited time after conception." [Letter from William Brennan to Harry Blackmun, dated May 18, 19721.
Several things are striking about this internal correspondence beyond, of course, Justice Blackmun's change of posture from assigned draftsman to abortion advocate and the overall bewilderment of the Court after the case was first argued. First, there was considerable internal pressure to get a decision, perhaps before new members of the Court might change the outcome. [Nixon appointees' Lewis Powell and William Rehnquist replaced Black and Harlan; as it later turned out, Powell and Rehnquist split over the issue]. Douglas, in particular, seemed especially agitated to push the opinions out, writing "I feel very strongly that [Roe and Doe] should not be reargued. . . I hope the 5 can agree to get the cases down this Term, so that we can spend our energies next Term on other matters." [Letter from William O. Douglas to Harry Blackmun, dated May 31, 1972]. Second, the internal correspondence is almost completely devoid of what one could call constitutional argument. Instead of a careful examination of the common law or argumentation premised upon the textual provisions of the Constitutional document, there is merely vote counting and assertion. Third, taking Justices Douglas and Brennan at their word, the initial 4-person majority envisioned only a very narrowly-worded abortion privilege -- one that would be confined to a limited time after conception. The last point is particularly striking in light of President Clinton's insupportable claim and recent veto that the abortion license formulated by the Court extends even to the most graphically hideous procedure and to the moment of birth.
- By late May, Justice Blackmun had fully joined the Douglas-Brennan circle [which also included Potter Stewart and Thurgood Marshall] in favor of creating an abortion right. [Memorandum to the Conference, dated May 31, 1972]. Justice Blackmun's memoranda reflect highly legislative considerations almost exclusively. For example, he proposes to invalidate most of the Georgia statute, except maybe those requiring an abortion to occur in a licensed and accredited hospital. [Memorandum to the Conference from Harry Blackmun, dated May 25, 1972]. Demonstrating that none of these specific invalidations were rooted in constitutional text or history, however, Justice Blackmun holds open the possibility, like a good legislative lobbyist, that may be "some of you may wish to take that step, too [that is, allowing abortions outside hospitals]." [Id., the Court did take that step.] The particulars of the Court's legislative considerations still tangled, Justice Blackmun, at month's end, urges that Roe and Doe be reargued. [Memorandum to Conference from Harry Blackmun, dated May 31, 1972].
- The cases were reargued, but only over Justice Douglas' extraordinary and harshly written protest. [An internal Letter from William O. Douglas to Warren Burger, dated June 1, 1972, threatens "[i]f the vote of the Conference is to reargue, then I will file a statement telling what is happening to us and the tragedy it entails." Justice Douglas filed a published written dissent to setting the cases over for reargument]. Perhaps, the key to understanding why the Court, notwithstanding Douglas' protestations, pursued reargument lies with the gentlemanly prodding of new Justice Powell. As mentioned, Powell had recently joined the Court, and he asked politely for reargument, pointing out that "Harry Blackmun, the author of the (draft] opinions, thinks the cases should be carried over and reargued next fall. His position, based on months of study, suggests enough doubt on an issue of large national importance to justify the few months delay." [Memorandum to the Conference from Lewis Powell, dated June 1, 1972].
- Except for the exchange of personal opinion or medical speculation, there is no evidence of constitutional study or consideration. Only Chief Justice Burger attempted to anchor the discussion in the Constitution, expressing the patent federalism objection that "the states have,..., as much concern in this area as in any within their province; federal power has only that which can be traced to a specific provision of the Constitution." [Memorandum to the Conference from Warren Burger, dated May 31, 1972]. There is little other argument or discussion in the internal correspondence touching upon the substance of constitutional law.
- In November, Harry Blackmun writes the final drafts of opinions that today we know rather infamously as Roe v. Wade, 410 U.S. 113 (1973) and Doe v. Bolton, 410 U.S. 179 (1973). Again, no real discussion of law occurs in the internal deliberations; instead, there is the startling admission from Justice Blackmun in the presentation of his near final draft that "you will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary." [Memorandum to Conference from Harry Blackmun, dated November 21, 1972, emphasis added].
So, there you have it. A confession by the principal author of the most infamous decision in this century, and perhaps after Dred Scott, ever, revealing that arbitrary choice -- not discernment of the law of the land -- accounts for the result in Roe. Law, legal history, constitutional allocations of power, all ignored. The abortion right derives not from background principles of common law; not in the first principles of our constitutional republic; not as a result of careful parsing of constitutional text.
- Between late November and the end of the year, Blackmun observes how he's thinking about moving what he called previously the "critical" line from the end of the first trimester to viability. He admits that he chose the end of the first trimester largely for marketing reasons, writing: "I selected the earlier point because I felt that it would be more easily accepted (by us as well as others) . . ." [Memorandum to the Conference from Harry Blackmun, dated December 11, 1972]. He is hesitant, however, if moving the line would cost him votes on the merits. ["I would be willing to recast the opinions at the later date (viability instead of the end of the first trimester), but I do not wish to do so if it would alienate any Justice who has expressed to me, either by writing or orally, that he is in general agreement, on the merits, with the circulated memorandum." [Id.]
- Justice Blackmun writes: "many pregnant women, particularly younger girls, who may refuse to face the fact of pregnancy and who, for one reason or another, do not get around to medical consultation until the end of the first trimester is upon them or, indeed, has passed. [Memorandum to the Conference from Harry Blackmun, dated December 11, 1972].
- A few of the justices were squeamish. Justice Potter Stewart wondered "about the desirability of the dicta being quite so inflexibly 'legislative,' suggesting that he might extend to the States more latitude to make policy judgments." [Letter from Potter Stewart to Harry Blackmun, dated December 14, 1972]. The flexibility was not to be, though Justice Blackmun in a small concession urged that the "cases . . . come down no later than the week of January 15 to tie in with the convening of most state legislatures." [Memorandum to Conference from Harry Blackmun, dated December 15, 1972]. A professional courtesy perhaps to fellow legislators.
Of course, a Court that engages in practices well beyond its Article III function to decide "cases or controversies" under the principles and usages of established law, needs its own press office to put, as political figures say today, the proper "spin" on matters. Writing that he anticipated the headlines that will be produced over the country when the abortion decisions are announced," Justice Blackmun prepared an 8-page press release personally. [Memorandum to the Conference, with press attachment, from Harry Blackmun, dated January 16, 1973].
- It was, after all, Justice Blackmun, himself, in Casey, who echoed the sentiment of the plurality that "a decision to overrule Roe 'would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to a rule of law." 112 S.Ct. at 2845. In truly Orwellian terms, Justice Blackmun then scowled at the four dissenting justices, with the comment: "What has happened today should serve as a model for future Justices and a warning to all who have tried to turn this Court into yet another political branch. Id.
This is a skeptical age and for those more generally inclined to be distrustful of public figures and events than myself the history recounted here may not impart the same level of surprise, as it disappointingly conveys to me. In light of these revelations, however, I now better understand Chief Justice Rehnquist's strong criticism of Justice Blackmun for "mak[ing] . . . decisions (in the abortion context] with a view toward speculative public perceptions," Casey, 112 S.Ct. at 2866 (Rehnquist, C.J., dissenting. Possibly, the Chief Justice merely was recalling from internal memoranda that Roe was constructed largely upon personal preferences and an accompanying press release. This may also explain why Justice Scalia, who was not on the Court when Roe was decided, could plaintively wonder in dissent in Casey why the Court skirted the fundamental question of "how wrong was the decision on its face?" 112 S. Ct. at 2875.
- The Court's decision in Roe effectively blocked the state legislative process. In the years between Roe and Casey, few state laws survived the Court's imposed value preference allowing the application of lethal force to be applied against the unborn. In Casey, the Court slightly loosened its grip, and brief waiting periods, informed decisionmaking, minor reporting requirements, and parental consent with judicial by-pass, were tolerated by the Court.
It seemed, for one transient moment, that Justice Scalia may have been a bit too pessimistic when he wrote that "Roe's mandate for abortion-on-demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level." 112 S.Ct. at 2882.
"American Constitutional Law: Essays, Cases, and Comparative Notes" (2004)Edit
Kommers, Donald P.; Finn, John E.; Jacobsohn, Gary J. (2004). "American Constitutional Law: Essays, Cases, and Comparative Notes". Rowman & Littlefield. ISBN 978-0-7425-2687-7.
- As one of the most restrictive abortion laws in the nation, the Texas law, passed in 1858, prohibited abortion unless it was necessary to save the life of the mother. Roe, unmarried and pregnant, challenged the law. She claimed it violated her constitutional right to privacy and the equal protection clause of the Fourteenth Amendment.
- 1. The Court’s decision in Roe touched off a national controversy over the politics of abortion that shows no signs of abating. Similarly, Roe sparked a continuing debate among scholars about the legitimacy of privacy as a constitutional right and the role of the Court in the political process. Nearly a quarter century after the decision, perhaps we should reconsider why the decision is so controversial. What, precisely, does Roe stand for?
In the issue in Roe about whether we, males and females alike, have the right to control our bodies? Is the issue whether women should be autonomous with regard to decisions they make about matters of reproduction? Or is the issue about the question of when life begins? About whether a fetus is a “person” in a constitutional sense? About patriarchy and gender discrimination?
- Alternatively, the issues in Roe might have more to do with the question of who bears responsibility for addressing such momentous matters. Should questions about reproductive autonomy be left solely with individuals, or does the community (or the state) have a legitimate interest in such decisions? Is a woman’s relationship with the fetus a matter over which a community ought to have some say, perhaps because such issues raise questions about the conditions of membership in the community?
As is obvious from the various opinions in Roe and our questions here, much of the controversy surrounding the case revolves around the role of the Supreme Court in the abortion controversy. The dissents by Justices White and Rehnquist castigate the majority for its “usurpation” of the legislative process and the powers of the people acting through their state governments. Clearly such criticisms, shared by many students of the Constitution, rest upon a particular understanding of the relationship between the democratic process and judicial protection of individual liberties. Do the opinions in Roe address this tension satisfactorily.
- Roe also nicely illustrates how individual liberties are tied to issues of constitutional structure and architecture. Justice White, for example, complained that “The upshot of the majority’s decision] is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. . . . “ Implicit in Justice White’s criticism is concern for the constitutional value of federalism. Roe essentially deprives the states of the ability to take part in a continuing public dialogue over the issues raised by abortion. Remember that prior to Roe, many states had already relaxed their tough anti-abortion laws. Would this trend have continued absent Roe?
"Roe v. Wade at 40: Most Oppose Overturning Abortion Decision" (January 16, 2013)Edit
Joseph Liu, "Roe v. Wade at 40: Most Oppose Overturning Abortion Decision". Pewresearch.org, (January 16, 2013).
- As the 40th anniversary of the Supreme Court’s Roe v. Wade decision approaches, the public remains opposed to completely overturning the historic ruling on abortion. More than six-in-ten (63%) say they would not like to see the court completely overturn the Roe v. Wade decision, which established a woman’s constitutional right to abortion at least in the first three months of pregnancy. Only about three-in-ten (29%) would like to see the ruling overturned. These opinions are little changed from surveys conducted 10 and 20 years ago.
Decades after the Supreme Court rendered its decision, on Jan. 22, 1973, most Americans (62%) know that Roe v. Wade dealt with abortion rather than school desegregation or some other issue. But the rest either guess incorrectly (17%) or do not know what the case was about (20%). And there are substantial age differences in awareness: Among those ages 50 to 64, 74% know that Roe v. Wade dealt with abortion, the highest percentage of any age group. Among those younger than 30, just 44% know this.
- There continue to be substantial religious and partisan differences over whether to overturn Roe v. Wade, and over the broader question of whether abortion should be legal or illegal in all or most cases.
White evangelical Protestants are the only major religious group in which a majority (54%) favors completely overturning the Roe v. Wade decision. Large percentages of white mainline Protestants (76%), black Protestants (65%) and white Catholics (63%) say the ruling should not be overturned. Fully 82% of the religiously unaffiliated oppose overturning Roe v. Wade.
Half of Americans who attend religious services at least weekly favor completely overturning the Roe v. Wade decision, compared with just 17% of those who attend less often.
Republicans are evenly divided over whether the ruling should be overturned: 46% say it should, while 48% say it should not. By wide margins, Democrats (74% to 20%) and independents (64% to 28%) oppose overturning Roe v. Wade.
There is no gender gap in opinions about Roe v. Wade: Nearly identical percentages of women (64%) and men (63%) oppose reversing the decision.
- There also are educational differences in awareness of which issue Roe v. Wade addressed. Fully 91% of those with post-graduate education know it dealt with abortion, as do 79% of college graduates, 63% of those with only some college experience and 47% of those with no more than a high school education.
Identical percentages of women and men (62% each) are aware that Roe dealt with abortion. Nearly seven-in-ten Republicans (68%) answered this question correctly, compared with 63% of independents and 57% of Democrats.
- Those who would like to see Roe v. Wade overturned are particularly inclined to view abortion as a critical issue facing the country. Nearly four-in-ten (38%) of those who support overturning the abortion ruling say abortion is a critical issue, compared with just 9% of those who oppose overturning Roe v. Wade. Among those who favor retaining Roe, 68% say abortion is not that important compared with other issues.
- Those who favor overturning Roe v. Wade overwhelmingly say it is morally wrong to have an abortion; fully 85% express this view. Opinions about the morality of abortion are more divided among those who oppose overturning Roe. Nearly four-in-ten (38%) say abortion is not a moral issue, while 29% say having an abortion is morally wrong; just 17% of those who favor retaining Roe view abortion as morally acceptable.
Overall, nearly one-in-five Americans (18%) say they personally believe that abortion is morally unacceptable, yet also oppose the Supreme Court overturning its Roe v. Wade ruling.
"Why hundreds of scientists are weighing in on a high-stakes US abortion case" (October 26, 2021)Edit
Maxmen, Amy (October 26, 2021). "Why hundreds of scientists are weighing in on a high-stakes US abortion case". Nature. 599 (7884): 187–189. Bibcode:2021Natur.599..187M. doi:10.1038/d41586-021-02834-7. PMID 34703018. S2CID 240000294.
- Since Roe, many states have diminished abortion access by, collectively, issuing more than 1,000 restrictions on the procedure, the majority in midwestern and southern states (see ‘Abortion regulations’).
- The amicus briefs authored by hundreds of scientists ahead of the Mississippi case address a particular line of argument made by state attorney-general Lynn Fitch and her colleagues in their court filing — namely, that abortion is unnecessary and possibly harmful to women. “Roe and Casey block the States and the people from fully protecting unborn life, women’s health, and their professions,” Fitch and her colleagues write.
- Even if the justices don’t overturn Roe, they could effectively end the precedent by erasing its viability standard, which permits abortion up until a fetus can survive outside of the womb. If the court shifts this standard on the basis of arguments about when a fetus becomes a person, the research filed to the justices might not matter. Because this question is not something that science clearly defines, Toti says, courts generally haven’t debated it. But that could change.
- [S]ome researchers are forecasting what the future might look like in the United States if Roe is overturned or significantly curtailed by the Supreme Court. In one unpublished analysis, Myers modelled what will happen if abortions are banned in 12 states with pre-emptive ‘trigger bans’ — which will automatically block abortion if Roe is overturned — and in 10 other states with several types of abortion restrictions in place. She estimates that, on average, a woman in these states who seeks an abortion will need to travel 280 miles (450 kilometres) to reach a clinic (see ‘If Roe is overturned’), and each year the distance will present an insurmountable obstacle for around 100,000 of them, who don’t have the means to travel far.
Laurie Sobel, a researcher at KFF, a non-partisan health-policy research organization based in San Francisco, California, is working on a similar assessment. KFF refrains from taking political positions, but Sobel says the evidence for the potential repercussions of this court decision is clear. “This could have a devastating impact on women that would be real and very severe in many states.”
“Key Abortion Plaintiff Now Denies She Was Raped” (September 9, 1987)Edit
“Key Abortion Plaintiff Now Denies She Was Raped” by Kenneth B. Noble, New York Times, (September 9, 1987)
- The woman whose challenge to a state law virtually prohibiting abortion led to the Supreme Court's landmark Roe v. Wade decision now says she lied when she declared upon bringing suit that it was rape that had caused her pregnancy.
- Ms. McCorvey told Mr. Rowan that she had fabricated her account of being raped by three men and a woman in 1969 because she had hoped to circumvent a 100-year-old Texas law that banned abortions except when the woman's life was in danger. 'What I Thought Was Love'
Ms. McCorvey said that she had actually become pregnant through what I thought was love and that she decided to challenge the state law when her doctor told her that she could not legally have an abortion in Texas. In 1970, her lawyers filed a Federal suit against Henry Wade, the Dallas County District Attorney. The suit, protecting her anonymity by identifying her as Jane Roe, was eventually upheld by the Supreme Court, which, in legalizing abortion on Jan. 22, 1973, cited the 14th Amendment's privacy protections.
The transcript of the interview does not make clear why Ms. McCorvey thought that an account of rape would necessarily help win exemption from, or overturn, a law that allowed abortion only to protect a woman's life. Ms. McCorvey, now a 39-year-old apartment house manager in Dallas, has an unlisted telephone number there and could not be reached for comment tonight.
However, Mr. Rowan, reached at his Washington home, said, She told me that she thought she would win so much public support by claiming that she was gang raped that she might get an exception from the Texas law.
- Ms. McCorvey was 21 years old when she became pregnant. At the time, she was working as a waitress and, she told Mr. Rowan, was too poor to travel to California, the closest state where abortion was legal, or to afford local illegal abortionists.
I was very depressed, she said. How dare them tell me that I couldn't abort a baby that I did not want!
Unable to have an abortion in Texas or travel to another state, she said, she grew bitter, very bitter, and in her anger fabricated the rape story.
- 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.
In recent years, however, she has become active in abortion rights and feminist groups. Last month, for example, she appeared at a rally, sponsored by the National Organization for Women, denouncing President Reagan's Supreme Court nomination of Judge Robert H. Bork.
"Roe v Wade and the New Jane Crow: Reproductive Rights in the Age of Mass Incarceration" (January 2013)Edit
Paltrow, Lynn M. (January 2013). "Roe v Wade and the New Jane Crow: Reproductive Rights in the Age of Mass Incarceration". American Journal of Public Health. 103 (1): 17–21. doi:10.2105/AJPH.2012.301104. PMC 3518325. PMID 23153159.
- All pregnant women, not just those who seek to end a pregnancy, have benefited from Roe v Wade. Today’s system of mass incarceration makes it likely that if Roe is overturned women who have abortions will go to jail.
Efforts to establish separate legal “personhood” for fertilized eggs, embryos, and fetuses, however, are already being used as the basis for the arrests and detentions of and forced interventions on pregnant women, including those who seek to go to term.
Examination of these punitive actions makes clear that attacks on Roe threaten all pregnant women not only with the loss of their reproductive rights and physical liberty but also with the loss of their status as full constitutional persons.
- IN HER BOOK THE NEW JIM Crow, Michelle Alexander argues that the system of mass incarceration in the United States, fueled by the war on drugs, operates in a seemingly color-blind, race-neutral way to create a new Jim Crow system that forces African Americans, especially African American men, into a permanent underclass.1 I believe that attacks on Roe v Wade2 and efforts to treat fertilized eggs, embryos, and fetuses as separate legal persons will establish a system of law in which women who have abortions will go to jail. Furthermore, all pregnant women are at risk of being assigned to a second-class status that will not only deprive them of their reproductive rights and physical liberty through arrests, but also effectively strip them of their status as full constitutional persons.
Here I address major changes in US law enforcement since Roe v Wade was decided in 1973 that make it likely that if Roe is overturned women who have abortions will be arrested and sentenced to incarceration. I discuss how efforts to undermine Roe and to establish separate legal personhood for fertilized eggs, embryos, and fetuses are already providing the basis for the arrests and detentions of and forced interventions on pregnant women. I conclude that these efforts, if unchecked, not only will result in massive deprivations of pregnant women’s liberty, but also will create a basis for ensuring a permanent underclass for pregnant women or, for lack of a better term, a new Jane Crow.
- This new era of mass incarceration—which is largely accepted by the public, defended by an army of lobbyists, and justified by a war on drugs deeply rooted in America’s history of slavery and racism1, makes it far more likely today than in 1973 that if Roe is overturned women will themselves be arrested and jailed. It is also likely that women having or considering having abortions will be subject to far more government surveillance than in the past.
Federal and state law enforcement agencies are twice as big as they were in 1973, and their investigative powers—including wiretapping—have been dramatically expanded. Moreover, since 1973 drug testing has become a multibillion-dollar industry. As a result of US Supreme Court decisions and local policies, even middle school students who want to join the afterschool scrapbooking club are being required in some schools to submit to urine drug testing. Once a urine sample is in the possession of state authorities, it may just as easily be used to test for pregnancy.
In the post-Roe world, however, it is not only women who seek to end pregnancies who must fear the possibility of surveillance and arrest. Approximately one million women in the United States each year terminate their pregnancies, close to another million suffer miscarriages and stillbirths, and more than four million women continue their pregnancies to term. Each and every one of these women benefits from the US Supreme Court’s decision in Roe v Wade, which not only protects a woman’s right to terminate her pregnancy but also, as later US Supreme Court cases explained, has been “sensibly relied upon to counter” attempts to interfere with a woman’s decision to become pregnant or to carry her pregnancy to term. As a result, all pregnant women, not just those seeking to end a pregnancy, risk losing their reproductive rights and their liberty.
“Jane Roe's Baby Tells Her Story” (September 9, 2021)Edit
“Jane Roe's Baby Tells Her Story” by Joshua Prager, The Atlantic, (September 9, 2021)
- Nearly half a century ago, Roe v. Wade secured a woman’s legal right to obtain an abortion. The ruling has been contested with ever-increasing intensity, dividing and reshaping American politics. And yet for all its prominence, the person most profoundly connected to it has remained unknown: the child whose conception occasioned the lawsuit.
Roe’s pseudonymous plaintiff, Jane Roe, was a Dallas waitress named Norma McCorvey. Wishing to terminate her pregnancy, she filed suit in March 1970 against Dallas County District Attorney Henry Wade, challenging the Texas laws that prohibited abortion. Norma won her case. But she never had the abortion. On January 22, 1973, when the Supreme Court finally handed down its decision, she had long since given birth—and relinquished her child for adoption.
The Court’s decision alluded only obliquely to the existence of Norma’s baby: In his majority opinion, Justice Harry Blackmun noted that a “pregnancy will come to term before the usual appellate process is complete.” The pro-life community saw the unknown child as the living incarnation of its argument against abortion. It came to refer to the child as “the Roe baby.”
- Norma was ambivalent about abortion. She no more absolutely opposed Roe than she had ever absolutely supported it; she believed that abortion ought to be legal for precisely three months after conception, a position she stated publicly after both the Roe decision and her religious awakening. She was ambivalent about adoption, too. Playgrounds were a source of distress: Empty, they reminded Norma of Roe; full, they reminded her of the children she had let go.
- I had assumed, having never given the matter much thought, that the plaintiff who had won the legal right to have an abortion had in fact had one. But as Justice Blackmun noted, the length of the legal process had made that impossible. When I read, in early 2010, that Norma had not had an abortion, I began to wonder whether the child, who would then be an adult of almost 40, was aware of his or her background. Roe might be a heavy load to carry. I wondered too if he or she might wish to speak about it.
- In April 1989, Norma McCorvey attended an abortion-rights march in Washington, D.C. She had revealed her identity as Jane Roe days after the Roe decision, in 1973, but almost a decade elapsed before she began to commit herself to the pro-choice movement. Her name was not yet widely known when, shortly before the march, three bullets pierced her home and car. Norma blamed the shooting on Roe, but it likely had to do with a drug deal. (A woman had recently accused Norma of shortchanging her in a marijuana sale.) Norma landed in the papers. The feminist lawyer Gloria Allred approached her at the Washington march and took her to Los Angeles for a run of talks, fundraisers, and interviews.
- The answers Shelley had sought all her life were suddenly at hand. She listened as Hanft began to tell what she knew of her birth mother: that she lived in Texas, that she was in touch with the eldest of her three daughters, and that her name was Norma McCorvey. The name was not familiar to Shelley or Ruth. Although Ruth read the tabloids, she had missed a story about Norma that had run in Star magazine only a few weeks earlier under the headline “Mom in Abortion Case Still Longs for Child She Tried to Get Rid Of.” Hanft began to circle around the subject of Roe, talking about unwanted pregnancies and abortion. Ruth interjected, “We don’t believe in abortion.” Hanft turned to Shelley. “Unfortunately,” she said, “your birth mother is Jane Roe.”
That name Shelley recognized. She had recently happened upon Holly Hunter playing Jane Roe in a TV movie. The bit of the movie she watched had left her with the thought that Jane Roe was indecent. “The only thing I knew about being pro-life or pro-choice or even Roe v. Wade,” Shelley recalled, “was that this person had made it okay for people to go out and be promiscuous.”
- On June 20, 1989, in bold type, just below a photo of Elvis, the Enquirer presented the story on its cover: “Roe vs. Wade Abortion Shocker—After 19 Years Enquirer Finds Jane Roe’s Baby.” The “explosive story” unspooled on page 17, offering details about the child—her approximate date of birth, her birth weight, and the name of the adoption lawyer. The story quoted Hanft. The child was not identified but was said to be pro-life and living in Washington State. “I want her to know,” the Enquirer quoted Norma as saying, “I’ll never force myself upon her. I can wait until she’s ready to contact me—even if it takes years. And when she’s ready, I’m ready to take her in my arms and give her my love and be her friend.” But an unnamed Shelley made clear that such a day might never come. “I’m glad to know that my birth mother is alive,” she was quoted in the story as saying, “and that she loves me—but I’m really not ready to see her. And I don’t know when I’ll ever be ready—if ever.” She added: “In some ways, I can’t forgive her … I know now that she tried to have me aborted.”
The National Right to Life Committee seized upon the story. “This nineteen-year-old woman’s life was saved by that Texas law,” a spokesman said. If Roe was overturned, he went on, countless others would be saved too.
Perhaps because the Roe baby went unnamed, the Enquirer story got little traction, picked up only by a few Gannett papers and The Washington Times. But it left a deep mark on Shelley. Having begun work as a secretary at a law firm, she worried about the day when another someone would come calling and tell the world—against her will—who she was.
- Eight months had passed since the Enquirer story when, on a Sunday night in February 1990, there was a knock at the door of the home Shelley shared with her mother. She opened it to find a young woman who introduced herself as Audrey Lavin. She was a producer for the tabloid TV show A Current Affair. Lavin told Shelley that she would do nothing without her consent. Shelley felt herself flush, and turned Lavin away. The next day, flowers arrived with a note. Lavin wrote that Shelley was “of American history”—both a “part of a great decision for women” and “the truest example of what the ‘right to life’ can mean.” Her desire to tell Shelley’s story represented, she wrote, “an obligation to our gender.” She signed off with an invitation to call her at Seattle’s Stouffer Madison Hotel.
Ruth contacted their lawyer. “It was like, ‘Oh God!’” Shelley said. “ ‘I am never going to be able to get away from this!’” The lawyer sent another strong letter. A Current Affair went away.
- Shelley had long considered abortion wrong, but her connection to Roe had led her to reexamine the issue. It now seemed to her that abortion law ought to be free of the influences of religion and politics. Religious certitude left her uncomfortable. And, she reflected, “I guess I don’t understand why it’s a government concern.” It had upset her that the Enquirer had described her as pro-life, a term that connoted, in her mind, “a bunch of religious fanatics going around and doing protests.” But neither did she embrace the term pro-choice: Norma was pro-choice, and it seemed to Shelley that to have an abortion would render her no different than Norma. Shelley determined that she would have the baby. Abortion, she said, was “not part of who I was.”
Shelley and Doug moved up their wedding date. They were married in March 1991, standing before a justice of the peace in a chapel in Seattle. Later that year, Shelley gave birth to a boy. Doug asked her to give up her career and stay at home. That was fine by her. The more people Shelley knew, the more she worried that one of them might learn of her connection to Roe. Every time she got close to someone, Shelley found herself thinking, Yeah, we’re really great friends, but you don’t have a clue who I am.
- Shelley was not able to lock her birth mother away. In the decade since Norma had been thrust upon her, Shelley recalled, Norma and Roe had been “always there.” Unknowing friends on both sides of the abortion issue would invite Shelley to rallies. Every time, she declined.
Norma had come to call Roe “my law.” And, in time, Shelley too became almost possessive of Roe; it was her conception, after all, that had given rise to it. Having previously changed the channel if there was ever a mention of Roe on TV, she began, instead, in the first years of the new millennium, to listen. She began to Google Norma too. “I don’t like not knowing what she’s doing,” Shelley explained.
Shelley then began to look online for her pseudonymous self, to learn what was being written about “the Roe baby.” The pro-life community saw that unknown baby as a symbol. Shelley wanted no part of this. “My association with Roe,” she said, “started and ended because I was conceived.”
- From Shelley’s perspective, it was clear that if she, the Roe baby, could be said to represent anything, it was not the sanctity of life but the difficulty of being born unwanted.
“The Untold Dallas Origins of Roe v. Wade” (January 11, 2022)Edit
Joshua Prager, “The Untold Dallas Origins of Roe v. Wade”, by D Magazine, (January 11, 2022)
- September 1969 had arrived when Coffee came upon mention, in the SMU library, of People v. Belous, a case that only days before had exonerated a California doctor for referring a woman to an illegal abortion provider. Coffee’s mind raced. Here was a ruling that rendered a state abortion law void on grounds that it was constitutionally vague, that it violated the due process clause of the Fourteenth Amendment. Surely the abortion law in Texas was vulnerable, too. “I just thought, My goodness!” recalls Coffee. “The same logic would apply!”
The thought had not occurred to Coffee before. But suddenly it consumed her, the idea, as she later explained, that “process” aside, laws that deprive a person of “some important fundamental liberty”—such as privacy—are in and of themselves impermissible.
Coffee was a feminist, a member of Women for Change and the National Organization for Women and the Women’s Equity Action League. Long mindful that birth control was unreliable at best, and that the illegality of abortion, says Coffee, “seemed to be something that held women back from achieving their full potential,” she now saw that the Texas law enforcing that illegality was weak—a legal relic out of step with the fact, she says, that “if a woman self-aborted, she was guilty of no crime, not even a misdemeanor.”
In a few days, the abortion rights lawyer Roy Lucas would file in New York the first suit against a state abortion law. Coffee told McCluskey over lunch at the Adolphus that she wished to do the same. There was, she said, just one problem: “I couldn’t figure out how I could find a pregnant woman who was willing to come forward.”
Four months later, in January 1970, McCluskey phoned Coffee with word of a woman who’d come to his office wanting an abortion.
- It was still January when Norma McCorvey and McCluskey met Coffee downtown in her office at Palmer, Palmer & Burke, where, for $450 a month, Coffee waded through petitions for bankruptcy.
Coffee was intense, incapable of small talk, pale and unkempt besides. All at once, Norma was ill at ease beside her. She looked, said Norma, “like she got out of bed and forgot to comb her hair.”
Looking back at Norma, Coffee saw a small woman with a big belly. Says Coffee: “She looked really pregnant.”
Exactly how far along Norma was could not be known. In 1970, gestational age could only be estimated, and estimates could be off by up to four weeks. “We weren’t using ultrasound at that time,” explains Frank Bradley, the Dallas obstetrician who delivered Norma’s second child. Instead, he says, doctors used pelvic exams and menstrual history to “try to figure it out best they could.”
It was more than likely that Norma had reached at least her twentieth week. And she had thus reached the legal limit at which any doctor in the United States—even where abortion was legal—could perform an elective abortion. In January 1970, abortion was legal only in Oregon, where residents were permitted to abort through the first 150 days, and in California, where nonresidents, too, could abort through 20 weeks. Abortion was also not illegal in the District of Columbia. (A federal district court had recently declared the anti-abortion law in D.C. -unconstitutional, and the appellee in that case performed abortions until at least the 20th week.)
Coffee thus knew that it was almost certainly too late for Norma to get an abortion. “It was my opinion,” the lawyer soon recalled, “that, very likely, the suit would not solve her immediate problem.” It was not too late, however, for Norma to file suit. Indeed, it would be of no legal consequence if the suit Norma filed came to term after she did. “There were fairly established principles that that doesn’t moot the case,” says Coffee. (Among them was the category of cases deemed “capable of repetition yet evading review”—which meant, in essence, that the issue was a recurring one, but in each instance would pass before the courts had time to fully address it.)
Coffee told Norma what she knew. “I remember saying,” she recalls, “that I thought she was probably too far along to have an abortion under the protection of the federal court.” But Norma had nowhere else to turn. Coffee was her last hope.
Coffee told Norma that if she filed suit, she might have to testify. Norma agreed—never mind, says Coffee, that she “likely had no idea what that would entail.” Coffee sensed that Norma had little idea what filing suit even meant. “I could tell she didn’t have a lot of education,” says Coffee. “Maybe she was being a little too cooperative. … Most people would ask more questions if they were thinking about filing a lawsuit over something of that magnitude.” Norma only asked if filing suit would cost her money. It would not; Coffee would do the case pro bono. Norma agreed to file and left.
- Coffee marveled. McCluskey had come through. She had a plaintiff. And that plaintiff was perfect. As Coffee later told a reporter: “It had to be a pregnant woman wanting to get an abortion. She couldn’t have the funds to travel to California … for a legal abortion. And we had to have someone who could take the publicity. We weren’t able to guarantee her anonymity.”
Still, Coffee would try to keep Norma anonymous. Alone in her office, she fashioned for her would-be plaintiff a pseudonym, combining Jane, which was suitably common, she says, with Roe, which was standard legal vernacular and already the surname of two plaintiffs (alongside two Hoes, two Poes, and a Doe) in a 1959 lawsuit on contraception. “In my mind,” says Coffee, “I considered her being Jane Roe as soon as I got an actual woman being ready to file.”
- Weddington seemed an odd person to ask. That she was smart was undeniable; she’d skipped two grades, graduated college magna cum laude besides. “I have received very few B’s in my whole life,” she later recalled. But at 24 years old, Weddington was hardly countercultural. She was the daughter of a Methodist minister, had headed her high school chapter of the Future Homemakers of America, and had been assistant house mother for her Delta Gamma sorority. She was middle-class and married.
Weddington, though, fervently believed in the need for abortion reform. Unbeknownst to the group, she had found herself pregnant the year before she was to marry and had traveled to a clinic south of the border in a town called Piedras Negras to have an abortion.
Prim in her ponytail and pantsuits, Weddington had kept her abortion secret. But when approached by the group of UT alumnae, she agreed to investigate their question at no cost. And in late November, she let the women know that she had found no clear answer; the law was ambiguous. The group then wondered if the Texas abortion law could be challenged in federal court. Weddington thought so. Asked if she might file suit, Weddington balked.
- Weddington was confident. Her parents had raised her and her younger siblings to believe, she later recalled, that they “could do whatever they wanted,” and so she had—from soloing in the church choir to serving as secretary of her college student body. But her body of legal work was sparse—a few divorces and wills, an adoption. She suggested that the group hire a lawyer in a firm, she recalled, “with research and secretarial backup.”
The women, however, wanted Weddington. So back to the library she went, comforted by the thought, she later wrote, that any suit she filed would simply back the growing number of suits that already contested abortion laws in other states.
Still, the drafting of documents was daunting. Weddington again wondered if the case might be better handled by a lawyer with knowledge of federal courts and procedure. A former classmate turned clerk leapt to mind. On December 3, she phoned Linda Coffee.
Coffee was delighted. She’d arrived at this same juncture and simply needed a plaintiff. Weddington suggested that Coffee file suit on behalf of the alumnae group in Austin. Coffee agreed and typed Weddington a letter the next day. “Would you consider being co-counsel in the event that a suit is actually filed?” she wrote. “I have always found that it is a great deal more fun to work with someone on a lawsuit of this nature.” Weddington phoned to accept.
Coffee worried, however, that because the Austin group was not a pregnant woman, it might not have standing in the eyes of the court. Besides, only a case filed in Dallas could land on the sympathetic desk of Coffee’s mentor, Judge Hughes. The search for a plaintiff thus continued, extending into late January, when an exultant Coffee phoned Weddington to tell of the pregnant woman who’d just left her office.
- Days later, Norma was all belly and blue jeans when she met the two lawyers for pizza in a restaurant popular with SMU students. Seeing Coffee again made Norma anxious. But Norma was taken with Weddington, strawberry-blonde and curvy and just two years older than she. “She was wholesome and robust and had things happening!” said Norma. “I fell in love with Sarah. She had all this hair.” Over a tablecloth of red and white gingham, talk turned to the inalienable rights of women. The lawyers asked, recalled Norma, if it was not a good thing that women could smoke in public, could vote. Norma agreed that it was, and then that women ought to have the right to an abortion, too.
Still, it was not conviction that had led Norma to Columbo’s Pizza Parlor this winter afternoon; it was happenstance, the fact that her doctor happened to know McCluskey who happened to know Coffee. And Norma again made clear that she did not want to further a cause; she wanted an abortion. Weddington repeated what Coffee had said, about her probably being too far along. “I’m not saying I misunderstood,” said Norma. “But I thought we were all real clear on what I really wanted.”
Had Coffee and Weddington really wanted to help their potential client get an abortion, they might have at least tried. As Victoria Foe, a biology student who worked with Weddington on the referral network in Austin, recalled: “In desperate situations, women up to 20 weeks were not turned away.” And the lawyers might have taken Norma to a doctor for an X-ray so as to better gauge how far along she actually was. If there was time to end her pregnancy, they might have asked a judge to issue a temporary restraining order to prevent state officials from enforcing the law against their client. Or they might have sent Norma to a clinic in their network—be it in Piedras Negras, just over the Mexican border (where both Weddington and Foe had had abortions), or in California, where every Friday a group of Texas women flew. “American [Airlines] was the plane,” Weddington recalled decades later. “About 10 women every Friday went to California and then they were back late on Sunday.”
But the lawyers did none of those things. It didn’t matter that only months before, Weddington had helped to write the American Bar Association’s code of ethical standards, which instructed that every lawyer must work “solely for the benefit of his client.” Weddington and Coffee had interests of their own. They wished to file a lawsuit. And, as the law professor Kevin McMunigal later noted, they now set aside Norma’s desire for an abortion “in favor of the collective interests of the abortion rights cause.”
- Wade was happy to go unrecognized. (Working for the FBI after law school, he’d posed in Ecuador as a journalist.) And that a Texas DA would keep his liberalism quiet made sense. Crime and convictions kept him employed. Says his son Kim: “I don’t think his liberal tendencies would have helped him get elected.”
Those tendencies extended to abortion. Unknown to everyone, Henry Menasco Wade was pro-choice.
Wade would never say so publicly. But almost 20 years after a lawsuit had pitted him in perpetuity against Roe, he would confide in his son—as they drove east in a Chevy pickup toward the family farm in Sachse—that he had disagreed with the abortion statutes it had been his charge to defend. Says Kim: “he was not anti-abortion.”
Wade had generally looked past the statutes; his few prosecutions regarding abortion had sought less to protect the unborn than the women carrying them, the DA targeting only the most reckless of practitioners. But no longer could he do so. For Coffee, the young and brilliant lawyer who’d once sought to work for him, had named him the defendant in Roe.
That was actually a mistake. Coffee had sought to enjoin all the district attorneys in Texas from enforcing the abortion statute, not merely Wade. She ought to have named the Texas attorney general, Crawford Martin, as defendant. But the court did not instruct Coffee and Weddington to amend their complaint, and Wade’s office readied to work together with the office of the Texas AG.
- Roe v. Wade and Doe v. Wade were now part of the U.S. legal system. But when Coffee let Norma know, the plaintiff was unmoved. She was due to give birth in three months and had come, by March, to grasp that her suit would not end her pregnancy. It was, however, poised to end many others, after Coffee and Weddington amended Roe to make it a class action suit on behalf of their plaintiff and, they wrote, “all other women similarly situated.”
The lawyers laid out their plaintiff’s predicament, filing an affidavit in late May. Little more than two pages, and ostensibly written by Norma, it contained a few small errors. (Fewer than five years, for example, not six, had passed since Norma’s divorce.) Its central claims, however, were true. Jane Roe had chosen to remain anonymous to avoid the “notoriety occasioned by the lawsuit.” She considered “the decision of whether to bear a child a highly personal one.” She had not traveled to where abortion was legal because she was poor. And the abortion providers she could afford were both illegal and, potentially, dangerous.
Still, one assertion at the heart of the affidavit was not true. It was neither the economic strain of pregnancy nor the stigma of birthing an “illegitimate” child that had led Jane Roe to want an abortion. She simply did not want another child.
"Americans Narrowing Support for Abortion" (June 18, 2000)Edit
Rubin, Allisa J. (June 18, 2000). "Americans Narrowing Support for Abortion" Los Angeles Times. Retrieved January 11, 2007.
- Despite the increasing level of discomfort with the high court’s ruling--43% of current survey respondents express support for Roe, compared with 56% in 1991--the poll shows continued opposition to a constitutional ban on abortion.
- In recent years, Roe has been invoked by abortion opponents as a barrier to imposing limits on abortion, said Harvard’s Blendon. As a result, increasing numbers of Americans may view Roe as an obstacle to adopting restrictions for which there is broad support.
- Typically when abortion rights are threatened, support for legal abortion rises, according to polling experts.
In the last decade, for example, previous polls show support for Roe peaking at 56% around 1991, when the decision was under attack across the country. Most states had pushed measures through their legislatures that either put strict limits on abortion or even banned it altogether.
- In a 1996 poll, 46% of respondents endorsed Roe vs. Wade. By 1999, support had slipped slightly to 43%, the same level as in the current poll.
"Roe Ruling: More Than Its Author Intended" (October 11, 2021)Edit
Savage, David G. (September 14, 2005). "Roe Ruling: More Than Its Author Intended". Los Angeles Times. Retrieved October 11, 2021.
- In mid-1971, the Supreme Court agreed for the first time to hear a constitutional challenge to the long-standing state laws limiting abortion. Its decision to do so reverberates today.
At that time, Texas and 30 other states had laws, dating from the 19th century, that made an abortion a crime unless it was performed to save the mother’s life.
Georgia, like California, had revised its laws in the late 1960s to permit abortion in specific circumstances: if the mother’s health was endangered, if the pregnancy was caused by rape or if the fetus had a severe defect.
The newest member of the Supreme Court, Justice Harry A. Blackmun, saw much to like in the revised abortion laws. A lawyer who greatly admired doctors, he had been general counsel for the Mayo Clinic in his home state of Minnesota before becoming a federal appellate judge.
He believed that doctors needed to have leeway to do medically necessary abortions. In the court’s first private conference on the issue, he described Georgia’s law as “a fine statute [that] strikes a balance that is fair.”
Yet, a year later, Blackmun wrote an opinion for the court that struck down all of the nation’s abortion laws. Equally important, his opinion made virtually all abortions legal as a matter of a constitutional right.
That opinion, in the case of Roe vs. Wade, remains the court’s most disputed decision of recent decades. By abruptly voiding all laws against abortion, it galvanized a powerful antiabortion movement that has transformed American politics.
It also dominates public debate over the court and its future. The Senate confirmation hearing for Judge John G. Roberts Jr., like those of all recent nominees, is focusing on one question: Will he vote to uphold or to reverse Roe vs. Wade?
- Last year, on the fifth anniversary of Blackmun’s death, the Library of Congress opened his papers to the public. His thick files on the abortion cases tell the little-known story of how Roe vs. Wade came to be. It is the story of a rookie justice, unsure of himself and his abilities, who set out to write a narrow ruling that would reform abortion laws, not repeal them.
It is also the story of a sometimes rudderless court led by Chief Justice Warren Burger. On the day the ruling was announced, Burger said, “Plainly, the court today rejects any claim that the Constitution requires abortion on demand.”
Blackmun proposed to issue a news release to accompany the decision, issued Jan. 22, 1973. “I fear what the headlines may be,” he wrote in a memo. His statement, never issued, emphasized that the court was not giving women “an absolute right to abortion,” nor was it saying that the “Constitution compels abortion on demand.”
- Blackmun had said that abortion “must be left to the medical judgment of the pregnant woman’s attending physician.” So long as doctors were willing to perform abortions -- and clinics soon opened solely to do so -- the court’s ruling said they could not be restricted from doing so, at least through the first six months of pregnancy.
But the most important sentence appears not in the Texas case of Roe vs. Wade, but in the Georgia case of Doe vs. Bolton, decided the same day. In deciding whether an abortion is necessary, Blackmun wrote, doctors may consider “all factors -- physical, emotional, psychological, familial and the woman’s age -- relevant to the well-being of the patient.”
- Legal scholars have long pointed to the shaky constitutional basis for a right to abortion. Blackmun referred to the 14th Amendment, which says that a state may not “deprive any person of life, liberty or property, without due process of law.”
In earlier opinions, the court had said that liberty included the concept of personal privacy. “This right to privacy ... is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” Blackmun declared.
Earlier this year, 11 legal scholars, led by Yale’s Jack Balkin, tried to write a better opinion. Their book of essays, “What Roe v. Wade Should Have Said,” proposed several alternatives, such as saying sexual equality for women required a right to abortion.
- Today, as in the early 1970s, the American public appears to have decidedly mixed views on abortion. In a Gallup poll in May, for instance, only 23% of those surveyed said abortion should be “legal under any circumstances,” the rule set by Roe vs. Wade.
Only 22% said abortion should be “illegal in all circumstances,” the rule that could take effect in many states if the Supreme Court were to overturn Roe vs. Wade.
The largest group -- 53% -- said abortion should be “legal only under certain circumstances.”
But Roe vs. Wade foreclosed this middle course -- for the states as well as for the court. It does not give states the room to adopt what might be a popular compromise: permitting abortions during the first three months of a pregnancy, but not afterward. Nor does it permit states to authorize only “medically necessary” abortions, a reform idea of the late 1960s.
- “He was thinking of this in the medical framework of Rochester, Minn. He imagined abortions would be performed by a family physician or in a hospital,” said historian David J. Garrow, the author of a scholarly history of the abortion-rights movement.
The justices did not foresee the full impact of the ruling or the backlash it would set off, said Georgetown University law professor Mark V. Tushnet, who was a clerk for Justice Thurgood Marshall when Roe was decided. They focused on striking down the Texas-type laws that outlawed all abortions, he said.
“All they wanted was to get those laws off the books,” Tushnet said. “They were not thinking long-term with an overall vision.”
- At the court’s private conference, the seven justices agreed that the Texas law was extreme and unconstitutional, according to the notes of several justices. Even Byron R. White, a critic of abortion, said doctors must be permitted to act when there were “health problems.”
Blackmun voiced disdain for feminists who said women deserved control over their bodies. “There is no absolute right to do with one’s body what you like,” he said. But he agreed that the Texas law was extreme and said it did “not go far enough to protect doctors.”
The Georgia law was much better, the justices said, except for a requirement that three doctors approve an abortion.
Days later, the liberal justices were irked to receive a memo from Burger saying he had chosen Blackmun to write both opinions. With little guidance from colleagues, Blackmun and his clerks began research.
- Blackmun’s final opinion left no room for prohibitions on abortion. That was not apparent in the spring of 1972, however.
In mid-May, Blackmun wrote “a first and tentative draft” for Roe vs. Wade that stopped well short of declaring a constitutional right to abortion. Instead, it said the Texas law did not give doctors enough guidance.
Criminal laws must be clear, the court had emphasized, so people don’t unwittingly commit a crime. Blackmun said Texas physicians could not be sure whether they were committing a crime by performing an abortion on a patient whose troubled pregnancy might risk her life.
“I come out on the theory that the Texas statute ... is unconstitutionally vague,” he said in a memo to his colleagues on May 18, 1972. “I think that this [finding] would be all that is necessary for the disposition of the case, and that we need not get into the more complex” issues.
In retrospect, this proved to be a crucial time in the court’s handling of the abortion issue. Blackmun had proposed issuing a short opinion that would have struck down the Texas law and the 30 others like it. However, it would have also left the states ample room to revise their laws.
- Justices William O. Douglas and William J. Brennan, mindful that Nixon’s new appointees would join the deliberations if the cases were reargued in the fall, wanted quick action and a stronger opinion.
Burger, however, wanted to go slowly. He knew the Brennan-led majority was about to announce the striking down of the death penalty on a 5-4 vote. Burger and Blackmun had dissented, as had the new Nixon appointees, Powell and Rehnquist. Burger expected the votes on abortion to line up the same way.
If the abortion cases were carried over until the fall, Powell and Rehnquist would cast their votes, and the chief justice -- with Blackmun and White also on board -- could envision a new 5-4 majority that would uphold most of the state abortion laws.
“This is as sensitive and difficult an issue as any in this court in my time,” Burger wrote. “Hence, I vote to reargue early in the next term.”
- Had Blackmun’s draft opinion been adopted, it would have left states free to prohibit abortions for nonmedical reasons. However, Blackmun reluctantly joined Burger in seeking a delay, and the majority voted to put off a decision on the abortion cases until the fall.
Blackmun spent the summer working in the Mayo Clinic’s library in Minnesota. He researched the history of abortion in Persian, Greek and Roman times. He also studied abortion laws adopted in 19th century America and concluded that the bans were driven not by moral imperatives but by the reality that, before antibiotics, abortion -- like other medical procedures -- was dangerous.
When Blackmun returned to Washington, he had a long draft. It was a thorough work of medical history, but short on constitutional law. It also was hazy on just when abortion would be permitted or prohibited.
- In October, the nine justices sat through the arguments again. When they met to discuss the cases, there was a surprise. Powell, the soft-spoken Virginian who was new to the court, firmly supported a woman’s right to abortion. He urged Blackmun to say it directly rather than attack the laws as vague.
For Powell, the issue was personal: When he was a lawyer in Richmond, Va., a young man came to him in despair. His pregnant girlfriend had tried to abort her fetus with his help, and she had bled to death. Powell went to the authorities to explain what happened. Thereafter, he was determined to see abortion made safe and legal.
Suddenly, there were six solid votes to strike down the Texas and Georgia laws, and Blackmun had the backing to write a broader opinion in favor of a right to abortion. The liberals, who had worried about the delay, found they had a stronger hand, and Burger found himself with no room to maneuver.
- On Nov. 21, two weeks after Nixon’s reelection, Blackmun sent around revised drafts of the majority opinions. The Roe opinion said that for the first three months of a pregnancy, states must “leave the abortion decision to the best medical judgment of the pregnant woman’s attending physician.”
In a memo to his colleagues, however, he voiced uncertainty.
“This has proved for me to be both difficult and elusive.... You will observe that I have concluded that the end of the first trimester is critical,” he wrote, referring to a cutoff date for permitting abortions. “This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary.” The first trimester is the first three months of a pregnancy.
Brennan, Marshall and Powell wrote back to say that allowing abortions until “viability” -- when a fetus has developed enough to live outside the womb -- at six months made more sense.
Douglas disagreed. “I favor the first trimester, rather than viability,” he said. He was outvoted, however, and Blackmun said he would revise the opinion over the Christmas holidays. In his final draft, states were told they could not restrict abortions through the second trimester.
- Blackmun’s opinion ends by saying: “The decision vindicates the right of the physician to administer medical treatment according to his professional judgment.... The abortion decision in all its aspects is inherently, and primarily, a medical decision.... If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.”
As some scholars later said, his opinion treated the pregnant woman as a bit player in a doctor’s drama.
White and Rehnquist filed dissents, but Burger delayed casting his vote. His colleagues suspected that he did not want the opinion released before Nixon’s second inauguration, set for Jan. 20.
As that day approached, Burger filed a short concurrence and predicted the ruling would not have “sweeping consequences.”
Blackmun’s proposed press release also downplayed the potential effects of the ruling, stressing that it would not mean “abortion on demand.” His court colleagues convinced him that it would be inappropriate to issue a statement that commented on a ruling.
- So, on Jan. 22, 1973, Roe vs. Wade and Doe vs. Bolton were handed down as 7-2 rulings in favor of a new right to abortion. That afternoon, former President Lyndon B. Johnson died, pushing aside the abortion decisions as the biggest news story of the day.
- Jan. 22, 1973: In Roe vs. Wade, the court for the first time ensures nationwide access to abortion. In Doe vs. Bolton, decided the same day, the court strikes down restrictions on performing abortions only in hospitals. The decision gives rise to a new kind of medical facility, the abortion clinic.
"Judges as Medical Decision Makers: Is the Cure Worse than the Disease" (1984)Edit
"Judges as Medical Decision Makers: Is the Cure Worse than the Disease" by Alan A. Stone, Cleveland State Law Review, Volume 33, Issue 4, 1984
- Any discussion of the role of the judiciary in medical decision making in the twentieth century must begin with the abortion decisions: Roe v. Wade and Doe v. Bolton. One aspect of those decisions is relevant to my particular thesis. I quote a crucial sentence from Justice Blackmun’s decision in Wade: “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.” Although we have come to know the abortion decision as freedom of choice versus right to life, we find Justice Blackmun writing not that the state must yield to the woman’s choice but to the physician’s “medical judgment.” A assure you this is not just a sentence taken out of context. Earlier in his opinion, Blackmun had written that the attending physician before extra-uterine viability is free to “determine . . . that, in his medical judgment, the patient’s pregnancy should be terminated.” The language of the decision throughout misleadingly suggests that some crucial sort of medical judgment is involved not only in how the abortion is performed but whether the pregnancy “should be terminated.”
- pp.579–580 (pages 2–3 of the pdf)
- Justice Burger in his brief comment to the abortion decisions chose to emphasize this very same crucial and misleading point.
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 careful deliberated medical judgment related to life and health. Plainly, the Court today rejects any claims that the Constitution requires abortions on demand.
What was the reality that Justice White in dissent had discounted? Implied by Blackmun and explicit in the words of Burger were the crucial and false notions that the reality of medical standards and medical judgment would keep the woman’s right to an abortion from becoming abortion on demand, abortion as a routine form of birth control. Professor Noonan, a bitter critic of the abortion decision, refers to this aspect of the decision as the “doctor as heroic figure.”
Some have attributed Blackmun and Burger’s “heroic doctor” misleading language to political or personal motives or even to sugar-coated hypocrisy. There are even professional cynics steeped in constitutional law and court watching who suggest Machiavellian duplicity of Burger’s part. Burger, they say, is waiting for another Reagan appointee so that with a majority he will then write: I never approved abortion on demand and since that is what it became I now join with those who reject Wade and Bolton.
- p.580 (page 3 of the pdf)
- As a psychiatrist, I am in the unusual position on insisting that we take the Justice’s words as their face value. Of course, the Chief Justice turned out to be completely wrong: the consequences predicted by the dissent were as accurate as any judicial prediction can be. As Justice White correctly interpreted the decision, “any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.” As Justice White predicted, abortion has become a routine alternative method of birth control. If we take Justice Blackmun’s and Burger’s words about medical judgment at face value, we can only assume that they were quite misled about the medical profession, its medical standards, and the medical judgments that were and would be applied to abortion. It was Blackmun and Burger who were out of touch with reality if they honestly believed that they wrote.
My point is not that the abortion decisions were wrong or right as a matter of law or morality. My point is that to the extent these opinions involved factual inferences about medical standards and medical practice-inferences which suggested a context for the decision, inferences which suggested more limited consequences of the decision, inferences which suggested the realities of medical practice-to that extent the decision was quite misleading.
I claim that such misleading statements about medical realities are not uncommon when judges make medical decisions. I also claim that the result of such misleading statements by judges is costly. The credibility of the courts is undermined in the eyes of the medical profession, and the credibility of the medical profession is undermined in the eyes of the public. The result is greater public distrust of both law and medicine. A loss of faith in both professions is the result of the vicious circle of counterproductive moves set in motion by these flawed decisions.
- pp.580-581 (page 3-4 of the pdf)
- In Wade, Blackmun ad used the phrase “attending physician” to describe the doctor who would make the abortion decision. This conjures up an earlier time when patients actually had a personal physician who attended them at bedside both at home and in the hospital, but is certainly an inapt phrase for describing doctors who perform abortion procedures in clinics.
Typically the pregnant woman is greeter by a nurse, a social worker, or an abortion counselor. The “medical decision” is made with them. She meets the doctor typically only after she is "prepped and in the stirrups." The physician is more appropriately characterized as a technician in an assembly line than an attending physician. There are certainly exceptions to this practice, but the picture I describe will certainly be familiar to the vast majority of the participants in this example of "deliberated medical judgments related to life and health." Doctors, of course, still use the phrase "attending physician" but with a different meaning. As Victor Fuchs has written of contemporary medical practice, my heart can get a doctor, my liver can get a doctor, my head can get a doctor, but I cannot get a doctor.' The nostalgic image of the doctor-patient relationship is important in Bolton because there the Supreme Court had a great deal to say about the importance of the privacy of the doctor-patient relation- ship. The Court made this privacy seem as sacred to law as the privacy of the marriage bed. We shall see how much respect subsequent courts have had for the privacy of the doctor-patient relationship as cases were decided in the name of privacy.
- pp.581-582 (page 4-5 of the pdf)
“A Question of Choice” (1993)Edit
“A Question of Choice”, by Sarah Weddington, New York: Penguin Books, 1993
- Linda and I met frequently in person and talked by phone in preparation for the lawsuit. As we drafted the complaint and lined up our legal points, our constant worry was about the right plantiffs. After Linda did some research, we decided neither the Austin volunteers nor the referral project would be certain to have standing, so we started looking for individuals who could demonstrate a more direct impact.
Our first agreed-upon plantiff was a woman we knew in Dallas who had heard Linda give a speech about the contemplated lawsuit. A brilliant women’s activist with a Ph.D. in English, she felt strongly that the Texas anti-abortion statutes kept women from making decisions that were rightfully theirs. She had no children and was not pregnant, but she had a neurochemical disorder Although pregnancy would not present a serious risk to her life, her doctor had told her it would be best if she avoided pregnancy until her condition materially improved. He also told her not to take the most effective means of contraception, the birth control pill. She and her husband offered to be plantiffs on the basis that their normal marital intimacies were endangered because, although they were conscientiously practicing an alternative method of contraception, there was a significant risk of contraceptive failure and they knew that if she were to become pregnant, consideration for her health would suggest an abortion. In Texas, that would be illegal and therefore also dangerous to her health. Yet they did not wish to be a celibate married couple.
We also needed to find a pregnant Texas woman who wanted an abortion and would be willing to be a plantiff. At one of the meetings with the Austin women, I was explaining the need for a pregnant plantiff and asked, “”Are any of you pregnant?” “No’”, they said, “but if you need someone who is, just give us some time.” In fact, it turned out to be a bigger problem than we anticipated. Several women who came to the referral project for information indicated they would be happy to help, but they were all at an early stage of pregnancy and had the money to get a prompt abortion-certainly the safest route for them. We did not know how long it would take us to get the case filed or how long after that it would take for a court to act. It was best for them to go ahead and have an abortion. Our search would have to continue.
- As an outgrowth of my work on the case, I had become involved in a variety of activities, including making frequent speeches about the plans for the suit. The more people who knew about our pans, the more likely it was that a suitable plantiff would appear.
Then a woman went to Dallas lawyer Henry McClusket, a friend of Linda’s who knew of the proposed lawsuit. The woman said she was pregnant, did not want to be, and wanted an abortion. He told her there was nothing he could do abut the abortion, but he knew two young women who might be of help, and referred her to Linda.
Linda talked to the woman, and then called and asked me to come to Dallas to meet her. I flew there a few days later and met Linda t a place the woman had suggested, a pizza parlor. It was fairly large, and very clean, but without much decoration-plastic-topped tables and black-and-white-checkered linoleum on the floor. Linda filled me in on her impressions of the woman, who was in her early twenties. Then the person who would later become Jane Roe arrived.
- [W]e did not want the Texas law changed only to allow abortion in cases of rape. We wanted a decision that abortion was covered by the right of privacy. After all, the women coming to the referral project were there as a result of a wide variety of circumstances. Our principles were not based on how conception occurred.
Jane Roe asked that being a plantiff would involve. First, we told her, a minimal amount of time. In fact, she signed a one-page affidavit stating her situation. She never had to answer written or oral questions from the opposing lawyers. She did not attend any of the court hearings. Second no money. Lind and I were donating our time, and we were covering the expenses.
Third, she could be anonymous. No one would know who she was unless she chose to tell them. Using pseudonyms or false names in legal cases was a long-standing tradition, and especially common in abortion cases, to protect the privacy of plaintiffs who did not want the “whole world” to know they had had or had wanted an abortion. On the other hand, doctors, social workers, and nonpregnant plaintiffs in abortion cases generally filed using their real names.
When Jane Roe agreed to be a plaintiff, I was grateful for her help. I found her street-smart and likeable. Her hard-luck stories touched a sympathetic chord.
Linda and I decided to file two lawsuits. A pregnant plaintiff had standing, but since our wife plaintiff wasn’t pregnant, we were afraid the court would say she and her husband were not sufficiently at risk to have standing. There was another reason for filing two lawsuits: Since we would file the cases in Dallas, where Linda, Jane Roe, and the married couple resided, and where the federal court had a rotating docket, each case would be filed in a different judge’s court. We hoped to increase our chances of having one of the cases filed in Judge Jughe’s court; Linda thought she would be sympathetic. Our strategy then would be to ask that the other case be consolidated with it, so that we could try one case with the combined facts instead of two.
- As we finished drawing up the necessary legal papers in 1970, Jane Roe’s pregnancy was progressing. Linda spent the end of February on rough drafts of the documents to file. Our petitions were straightforward and only three legal-size pages in length. We asked the court to do two things: first, to declare or state that the Texas laws against abortion were unconstitutional on their face, that is, as one could see by merely reading them; and second, to enjoin, or stop, the enforcement of those statutes. In essence we wanted the court to say the Texas anti-abortion laws violated the U.S. Constitution and to tell local law enforcement officials to quit prosecuting doctors under those statutes.
We still had to name our plaintiffs. We picked names that rhymed. I liked “Jane Roe.” To me the name represented all women, not just one. We decided on “John and Mary Doe” for the couple. The names seemed generic.
- We asked that a three-judge court be appointed to hear our case, our justification being that our plaintiffs were alleging the statutes abridged their constitutional rights, and were seeking an injunction against enforcement of the statutes. We also pointed out that there was not a state forum or court in which their federal constitutional rights could be determined.
- In law there are “magic words.” If one of them applies to what you are challenging, you have a good chance of getting it overturned. Linda and I used all the magic words that might possibly apply: The statutes were “vague” and uncertain on their face; they were “unconstitutionally broad” on their face in that they infringed upon plaintiff’s “right to safe and adequate medical advice” about the decision of whether to carry a pregnancy to term, upon the “fundamental” right of all women to choose whether to bear children, and upon plaintiff’s “right to privacy” in the physician-patient relationship; on their face they infringed upon plaintiff’s “right to life” in violation of the due-process clause of the Fourteenth Amendment; on their ace they violated the “First Amendment” prohibition against laws respecting an establishment of religion; and on their face they denied plaintiffs the “equal protection of the laws.”
- Two and a half months later, Linda and I were seated at a long wooden table facing the much higher bench where the three judges would sit. We were on the fourth floor of the Dallas Federal Courthouse, an imposing building that had previously been a post office, in a courtroom that was more utilitarian than elegant. We were waiting for the judges to file in and hear Roe. We were unabashedly excited, and as prepared as would ever be.
We have had some very good luck and had accomplished a great deal thus far. One of our two cases landed in Hughes’s court; the other in that of Federal District Judge William M. Taylor of Dallas. Federal Circuit Judge Irving L. Goldberg had been appointed to join Hughes and Taylor on a three-judge panel to hear our cases. After a pretrial conference in Hughes’s office in April, our cases were consolidated; we now said just Roe when actually referring to both Roe and Doe. Taylor had a reputation for fairness and open-mindedness. Goldberg was reputed to be brilliant, but domineering in court proceedings. We did not look forward to his trial questions, which we knew would be tough and incisive, but we calculated that he was our best chance of a second vote in our favor.
- Of Course, we had done our homework. Once trial was set for May 22, 1970, we rushed to prepare and file two affidavits, notarized, signed statements used to prove important facts instead of having a witness testify in court. One contained facts about Jane Roe; the other was filed by Dr. Paul Trickett, the direction of the University of Texas Student Health Center, and presented medical aspects of the abortion issue. The original Texas statutes had been passed to protect a woman’s health in an era when doctors did not know how to prevent infection, and we wanted to show that now, at the time of trial, abortion was a safe procedure and medical problems resulted precisely because abortion was illegal.
- Sitting with Linda and me in the courtroom were Fred Bruner and Roy L. Merrill, Jr. two Dallas lawyers who had joined our case on behalf of their client, James Hubert Hallford, a physician under indictment for allegedly performing illegal abortions. OnMarch 19 they had filed an application for intervention asking that Hallford be included as a third plaintiff. Hallford had been a licensed physician since 1958; among the women who had come to him seeking abortions were rape and incest victims, women suffering from cancer, and women who had contracted German measles, a virus that can cause gross fetal abnormalities, while pregnant. We welcome Hallford’s participation because his problems added weight to our arguments that the statute was vague and could be interpreted in many ways. We were skeptical that he would be recognized to have standing, however; very seldom do federal courts allow people with criminal charges pending against them in state court to escape from the litigation already in progress to a federal court.
At another table in the courtroom were representatives of DA Henry Wade and of the Texas attorney general, Crawford Martin. Judge Hughes had notified Martin of the suit because he was the elected official responsible for defending state laws. Linda and were up against the combined forces of the AG’s experienced legal force of some 130 attorneys and the DA’ s legal staff.
- Yet another rumor was that Blackmun, the justice with the best background in medical-legal issues, who had been appointed by Chief Justice Burger to write the opinion, had asked for more time. The rumor added that Douglas was dissenting to the reargument probably because Burger had designated Blakmun to write the opinion. By Court custom, if the chief justice is on the majority side during the postargument conference, then he designates the justice who will write the opinion. If the chief justice is “not” on the majority side, as was rumored in this case, then the justice with seniority on the majority side makes that designation. The rumor was that Douglas, the senior justice on the majority side during the postargument conference, was upset by Burger’s action to step in and appoint Blackmun, which contravened tradition (Later, in their book “The Brethren”, Bob Woodward and Scott Armstrong confirmed that rumor.) Speculation was that Burger felt he would have the most influence with Blackmun and that an opinion Blackmun would write would be more conservative. There was also media speculation that we had in fact won the case five to two, but Burger was in dissent and used his position to force the Court into setting it up for reargument. If that was true, it meant we would win if we simply held those five votes, regardless of how the new justices voted.
Unbeknowst to us, as “The Douglas Letters", edited by Melvin Urofsky, revealed in 1987, Douglas had written Blackmun on May 10, 1972:
In No. 70-18-Roe v. Wade, my notes confirm what Bill Brennan wrote yesterday in his memo to you-that abortion statutes were invalid save as they required that an abortion be performed by a licensed physician within a limited time after conception.
That was the clear view of a majority of the seven who heard the argument. My notes also indicate the Chief [Burger] had the opposed view, which made it puzzling as to why he made the assignment at all except that he indicated he might affirm on vagueness. My notes indicate that Byron [White] was not firmly settled and that you might join the majority of four.
So I think we should meet what Bill Brennan calls the “core issue.”
I believe I gave you, some time back, my draft opinion in the Georgia case. I see no reason for reargument on what case.
It always seemed to me to be an easier case than Texas,
- On May 31, according to the same book, Douglas wrote Blackmmun again:
I have your memorandum submitted to the Conference with suggestion that these cases be reargued
I feel quite strongly that they should not be reargued. My reasons are as follows.
In the first place, these cases which were argued last October have been as thoroughly worked over and considered as any cases ever before the Court in my time.
I know you have done yeoman service and I have written two difficult cases, and you have opinions now for a majority, which is 5.
There are always minor differences in style, one writing differently [from[ another. But those two opinions of yours in Texas and Georgia are creditable jobs of craftsmanship and will, I think, stand the test of time.
While we could sit around and make pages of suggestions, I really don’t think that it is important. The important thing is to get them down.
- [M]ost of the quotations I read that day reflected my thoughts accurately. The Houston Post quoted me as “feeling glad for the women of Texas, who now will have access to abortion services.” It also noted my statement that “I would much prefer [that] we did not have the abortion problem, that instead pregnancies be prevented,” and my vow “to lead the legislative battle to liberalize the flow of contraceptive information to minors.”
One of the few stories that captured my real feelings on the day we won, however, didn’t appear until a few weeks later, in the Milwaukee Journal: “Sarah Weddington looked uncomfortable as the women pressed close to her, offering their thanks. ‘If I hadn’t done it, someone else would have,’ she explained to them.” Indeed, I saw Roe as part of a much larger effort by many attorneys. I was the one who, through a series of quirks, stood before the Court to represent all of us. Had a different string of events occurred, another case might have been the one to make history.
Ron an I also read observations from those who were distressed by the Court’s decision; obviously, not everyone was as pleased as we were about the news. Around the country the antis too had been burning up the telephone wires-but they were talking about how they could overturn the decision, or avoid or blunt its impact. I have always wondered if some of the anti-abortion folk thought the fact that United States and Texas flags flew at half-mast on that January 22, as they did because of President Johnson’s death, was doubly appropriate because of the depths of their disagreement with the decision.
- “A Question of Choice” by Sarah Weddington, New York: Penguin Books, 1993, page 154
- The copy of the Roe opinion sent by the Court arrived a few days after the decision. It was a thrill to hold the document Blackmun wrote for the Court. I skimmed it first for the main points:
A direct appeal was proper because of the specific denial of injunctive relief regarding a statute declared unconstitutional by a three-judge federal court.
Roe had standing to sue; the Does and Dr. Hallford did not. (Geesh, I thought, we went backward on that part. At least the lower court had recognized Hallford’s standing. But it didn’t matter the outcome freed Hallford anyway.)
The natural termination of Roe’s pregnancy did not cancel her status as an appropriate plaintiff. Under strict mootness principles, hers would be a situation “capable of repetition, yet evading review.”
The Texas statute violated the due-process clause of the Fourteenth Amendment, which protects from state action the right to privacy, including a woman’s qualified right to terminate pregnancy.
the state, however, had a legitimate interest in protecting both the pregnant woman’s health and the potentiality of human life.
- I settled back with my feet up to read the majority opinion in detail and savor its words. First the Court noted the sensitive nature of the subject: 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.
- Neither Linda nor I questioned her further about how she had gotten pregnant. I was not going to allege something in the complaint that I could not back up with proof. Also, we did not want the Texas law changed only to allow abortion in cases of rape. We wanted a decision that abortion was covered by the right of privacy. After all, the women coming to the referral project were there as a result of a wide variety of circumstances. Our principles were notbased on how conception occurred.
"Roe v. Wade Case (US)" (August 2016)Edit
"Roe v. Wade Case (US)", by Merle H. Weiner, Oxford Constitutional Law, August 2016
- 2. The case has interested many comparatists. Considerable attention has been paid to parallel German and US developments with their different emphases (see eg Gorby and Jonas; Kommers; Glendon; Miedel; Werner; Levy and Somek; Lange; Siegel). Others have used the case to reflect upon developments in countries as diverse as Spain, South Africa, Russia, and Taiwan (see eg Stith; Davis; Johnson; Hung).
- 3. The case has influenced jurists outside the United States. Judges have cited the decision in judgments that liberalize abortion law. For example, this has happened in Canada (see R v Morgentaler (Dickson, CJ at 46; Beetz, J at 113; Wilson, J at 169–171, 181) (holding that Section 251 of the Criminal Code, which restricted access to nontherapeutic abortion, infringed a woman’s right to personal security under § 7 of the Canadian Charter of Rights and Freedoms), in South Africa (see Christian Lawyers Association of South Africa and Others v Minister of Health and Others (upholding legislation permitting abortion during the first twelve weeks of pregnancy; → right to life provision in the constitution did not apply to the fetus); Christian Lawyers Association v National Minister of Health and Others (upholding legislation allowing those under the age of 18 to get an abortion without consent of their parents or guardians)), and in Colombia (see Decision C-355/06 (striking as unconstitutional a statute that barred abortion in all instances)). Jurists who have dissented from decisions that restrict abortion have also cited Roe v Wade, such as in Germany (see Schwangerschaftsabbruch I (dissenting opinion of Rupp-von Brünneck, J and Simon, J)). At times, adjudicators have cited the case when they have decided issues outside the abortion context. Examples exist in England (see Rance v Mid-Downs Health Authority and Another (citing Roe v Wade’s summary of English common law in evaluation of plaintiff’s wrongful birth tort claim)) and India (see Gobind v State of M.P (citing Roe v Wade’s privacy language when deciding a constitutional challenge to surveillance law); Naz Foundation v Govt of NCT of Delhi (citing Roe v Wade’s privacy language when invalidating as unconstitutional a criminal law prohibiting homosexual conduct in private), rev’d Suresh Kumar Koushal v Naz Foundation).
- 6. Most states criminalized abortion at the time of Roe v Wade. Although abortion performed before ‘quickening’ had been legal at the nation’s founding (‘quickening’ refers to the time when the mother can first feel fetal movement), the American Medical Association, starting in the 1850s, promoted the criminalization of abortion, except to save the mother’s life (Greenhouse and Siegel 2035). Texas, the state whose law was challenged in Roe v Wade, made abortion criminal in 1854, and a majority of US states had similar laws at the time the Supreme Court decided Roe v Wade (Roe v Wade 118 n.2; Doe v Bolton 181–82). Consequently, prior to the decision, illegal abortions were common in the United States, with estimates of 1,000,000 a year or ‘one to every four births’ (Calderone 950). The danger of the procedure differed by class. Many doctors ‘secretly performed abortions for women whom they knew and who could pay’, while other women were relegated to ‘unsafe circumstances’ (Garrow (1999) 834).
- 7. Roe v Wade reached the Supreme Court as part of a growing movement in the US to liberalize abortion law. Liberalization was promoted on the political front with arguments centred on public health, overpopulation, sexual freedom, and feminism (Greenhouse and Siegel 2036–2046). Colorado, North Carolina, and California had, for example, adopted ‘liberalization statutes’ in 1967 (Garrow (1999) 834). The movement to liberalize abortion law was similarly occurring overseas, in places such as Sweden, France, Denmark and the United Kingdom, and activists drew upon each other’s advances (Ernst et al 755, 759).
- 8. Both in the US and abroad, constitutional courts had an important role in defining the permissible limits of legislative attempts to regulate abortion. In the US, a ‘nationwide movement of young lawyers’ sought to use the courts to secure a woman’s constitutional right to an abortion (Garrow (1999) 836–37). Because abortion was regulated at the state level in the United States, Roe v Wade and its companion, Doe v Bolton, ‘were only two of approximately fifteen to twenty roughly simultaneous cases’ percolating through the courts at the time. When the Supreme Court heard Roe v Wade and Doe v Bolton, approximately a dozen such cases were on its docket (ibid 836–37). Abroad, cases in Austria, France and Italy reached the constitutional courts of those nations in 1974, 1975, and 1975, respectively (Ernst et al 759–60; Siegel 357).
- 19. The decision established a woman’s constitutional right to an abortion. The Court framed the discussion by acknowledging the sensitive, deeply held, and diverse views on the topic of abortion. However, it suggested, not without criticism by some scholars (Myers 1029 and n. 29), that the law historically was more permissive regarding abortion, especially for abortion performed during the early stages of pregnancy (Roe v Wade 140–41). The Court canvassed Greek and Roman law, English and US statutes, and the medical and legal establishments’ positions on abortion. This analysis supported the Court’s trimester framework set forth later in the opinion (ibid 165). The references to English statutory and case law, in particular, ‘bolstered its own case that the US Constitution created a right to an abortion, even though the Court never explained why foreign law ought to control the meaning of the Fourteenth Amendment’ (Calabresi and Zimdahl 872).
- 37. According to polls, most Americans held views that aligned with Roe v Wade at the time it was decided: ‘64 percent of American believed that abortion should be a personal decision to be made by a woman and her physician’ (Faux 304). Nonetheless, opponents of the decision tried to reverse Roe v Wade with congressional legislation (Emerson 129–30), with a constitutional amendment (Faux 318), and with litigation before the → Inter-American Court of Human Rights (IACtHR) (Baby Boy Case 18(h), 30–31). All of these efforts failed.
38. More limited efforts to cabin the effects of Roe v Wade proved successful, however. In 1976, Congress passed the Hyde Amendment, which barred federal Medicaid funds for abortion and thereby made abortion inaccessible for many poor women, at least in those states without state funds for such purposes. A narrowly divided Supreme Court upheld the law in Harris v McRae. Opponents of abortion also advanced other laws that impeded access to abortion to varying degrees (Thornburgh v American College of Obstetricians and Gynaecologists 759), noting that such laws will ‘often shut down clinics’ (Biskupic). Roe v Wade itself signalled that some of these efforts might be permissible by acknowledging the state’s interest in maternal health (Roe v Wade 165), although Doe v Bolton suggested real limits. These efforts caused courts to be ‘drawn further and further into an array of subsidiary technical questions regarding abortion’ (Wilkinson 276). As of 2009, the Supreme Court had decided ‘more than twenty-five cases involving abortion’ (ibid).
- 43. Grounding the right to abortion in the Fourteenth Amendment and in the concept of substantive due process (Roe v Wade 153, 164) was, and still is, one of the most controversial aspects of Roe v Wade. Justice Stewart concurred in Roe v Wade mainly to pay homage to substantive due process and the Court’s willingness to invoke it so explicitly after having seemingly put the doctrine to rest in Ferguson v Skrupa. Justice Stewart noted that Griswold v Connecticut should itself be understood as a substantive due process case, although the case did not rest expressly on that basis.
44. Justice Rehnquist, one of two dissenters in Roe v Wade, took issue with the new right. He thought the right to an abortion was a form of ‘liberty’ protected by the Fourteenth Amendment, but the Fourteenth Amendment imposed a procedural requirement, not a substantive one. The right, therefore, was only protected against its deprivation without due process of law (Roe v Wade 173). He disagreed that abortion was part of a right to privacy because neither the abortion procedure was private, as abortion involved a doctor, nor was abortion connected to the ‘privacy’ associated with the Fourth Amendment’s protection against unreasonable searches and seizures (ibid 172). Moreover, although Justice Rehnquist conceded that due process protected some substantive rights, he thought abortion was not among those because approximately 36 state and territorial legislatures limited abortion at the time the Fourteenth Amendment was adopted (ibid 174–75). He preferred a rational basis test that would permit more deference to the legislature, especially for some restrictions on first-trimester abortions. He thought the ‘compelling state interest’ test was inappropriate: it was borrowed from Equal Protection cases and would leave ‘this area of the law more confused’ (ibid 173), and it would trample upon the legislature’s judgment (ibid 174). He called the Court’s tripartite framework ‘judicial legislation’ not reflective of the founders’ intent (ibid 174).
45. Justice White also dissented. He focused on the claims of women who had no threat to their life or health from carrying a fetus to term, like the plaintiffs before the Court, and noted that they wanted to end the pregnancy potentially for ‘convenience, sham or caprice’ (ibid 221). He thought the resolution of the competing interests ‘should be left with the people and to the political processes’ because ‘nothing in the language or history of the Constitution’ required otherwise (ibid 221–22).
- 46. Individual justices continued to critique Roe v Wade in later cases. For example, in Planned Parenthood of Southeastern Pennsylvania v Casey, Justice Scalia said that the Constitution does not limit states’ ability to regulate abortion ‘because of two simple facts:
(1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed’ (Planned Parenthood of Southeastern Pennsylvania v Casey 980 (Scalia, J, dissenting, joined by Rehnquist, CJ, White, J, and Thomas, J)). In his dissent in Whole Woman’s Health v Hellerstedt, Justice Thomas, while not blaming Roe itself for the Court’s ‘illegitimate made-up tests’ (ibid 12, 14), blamed the Court’s ‘special treatment of certain personal liberties’, including those created though substantive due process, for the wrong outcome in many abortion decisions. This special treatment included the right to privacy that lead to Roe v Wade itself (ibid 15).
- 47. Scholars are divided about whether the Court should have created a constitutional right to abortion. John Hart Ely criticized the Court for not explaining why privacy is involved, and argued the right ‘lacks even colorable support in the constitutional text, history, or any other appropriate source of constitutional doctrine’ (Ely 931–32, 943). Others have echoed this sentiment, calling the Court’s analysis ‘startlingly shoddy’, (Myers at 1027) and ‘outcome-based jurisprudence’ (Lamparello and Swann 2–3). Ronald Dworkin, in contrast, found critics’ distinction between ‘unenumerated rights’ and ‘enumerated rights’ preposterous (Dworkin 390). He applauded the Court’s ability to derive the right to procreative autonomy from a ‘holistic interpretation of the Bill of Rights’ (Dworkin 418–26). Yet others have suggested that the Equal Protection Clause would have been a preferable or an additional justification for the holding (see eg Ginsburg), and that rationale has crept into some subsequent cases. For example, the joint opinion in Planned Parenthood of Southeastern Pennsylvania v Casey mentioned that ‘[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives’ (Planned Parenthood of Southeastern Pennsylvania v Casey 856). Justice Ginsburg has also mentioned that rationale in later cases (see eg Gonzales v Carhart 172 (Ginsburg, J, dissenting)).
- 48. The implications of the Court’s methodology have pleased some, but not others. For critics of Roe v Wade, the decision undermined democracy by putting the abortion issue in the hands of an unelected Court, with the result that ‘centrist’ compromises on abortion have been lost (Brooks A23). Critics also claim that the decision has harmed → federalism because decisions about abortion were removed from the state level (Wilkinson 305–11). The decision has also been blamed for undermining the Court’s legitimacy because, critics say, the Court has been ‘motivated by outcomes and ideology, not process and reason’, and this perception, in turn, has politicized the process for nominating Supreme Court justices (Lamparello and Swann 6–7).
- 49. Those who like Roe v Wade claim that substantive due process allows the Court to meet present day challenges. It reflects ‘living constitutionalism’, and is consistent with the drafters’ intent. After all, as Chief Justice Rehnquist has said, somewhat ironically given his position in Roe v Wade, ‘Where the framers of the Constitution...used general language, they have given latitude to those who would later interpret the instrument to make that language applicable to cases that the framers might not have foreseen’ (Rehnquist 403). Substantive due process has permitted, among other outcomes, constitutional protection for same-sex relationships. In Lawrence v Texas, for example, the Court, citing Roe v Wade and other cases, held that the criminalization of same-sex intimate conduct violated the Due Process Clause of the Fourteenth Amendment. In Obergefell v Hodges, the Court held that the Due Process and the Equal Protection Clauses entitled same-sex couples to marry.
- 51. Today the ‘pro-choice’ position in the United States is associated with the Democratic Party and the ‘pro-life’ position with the Republican Party (Greenhouse and Siegel 2068). However, the year before Roe was decided, more Republicans (68 percent) than Democrats (59 percent) thought that abortion should be a decision between a woman and her physician (Greenhouse and Siegel 2031). In addition, Republican presidents nominated five of the seven justices in the Roe v Wade majority (Justices Blackmun, Burger, Powell, Brennan, Stewart). The opinion also seemed to be influenced by the abortion decisions of Judge Jon O Newman, then a judge for the District of Connecticut, who was also nominated by a Republican president (Hurwitz 236–39, 242–45). Some scholars explain that Roe v Wade embodied ‘conservative views’ because it was a ‘family planning case’, embodying the views ‘[t]hat social stability is threatened by excessive population growth; and that family stability is threatened by unwanted pregnancies, with their accompanying fragile marriages, single-parent families, irresponsible youthful parents, and abandoned or neglected children’ (Grey 88).
52. After Roe v Wade, a gradual party realignment occurred. By the end of the 1980s, Republicans were more ‘pro-life’ than Democrats (Greenhouse and Siegel 2069). However, it is ‘simply and utterly wrong’ to attribute the anti-abortion movement and the resulting political division to Roe v Wade (Garrow (1999) 841). Prior to Roe v Wade, ‘political party realignment’ had already started because the Catholic Church was involved in opposing legislative efforts at abortion liberalization, and Republicans were already trying to attract Catholic voters (Greenhouse and Siegel 2032–33, 2047–67). The extent to which Roe v Wade accelerated the political polarization on the issue abortion in the United States, and by how much, is an open question.
53. Roe v Wade has had a significant impact in the United States on abortion rights, women’s self-determination, the constitutional notion of privacy, and the Supreme Court’s role in adapting the Constitution to changing conditions. Roe v Wade drew on other nations’ experiences and has become, in turn, a reference point for others outside of the United States as they grapple with many of the same issues. The case provides an important source of analysis for comparatists.
"Defenders of the Unborn: The Pro-life Movement Before Roe V. Wade" (December 4, 2015)Edit
“Defenders of the Unborn: The Pro-life Movement Before Roe V. Wade” by Daniel K. Williams, New York: Oxford University Press, (December 4, 2015)
- By the time that Michael Taylor sent out his communiqué, pro-life lawyers had been preparing legal arguments in Roe and its companion case Doe v. Bolton for more than a year. When the Supreme Court heard initial oral arguments in 1971, pro-life advocates submitted several amici curiae briefs outlining their standard constitutional arguments on fetal rights, and they thought that they had a good chance o persuading the Court to give them a favorable verdict. As Fr. Paul Marx remarked in a private letter in May 1971, “It would be difficult to imagine that the United States Supreme Court would declare it a personal civil right of every woman to abort.”
In both cases, the attorneys for the plaintiffs sought a sweeping declaration that a woman’s constitutional right to privacy gave her a right to an abortion, and that all anti-abortion laws, as well as the ALI-style therapeutic abortion statutes, were unconstitutional. In the spring of 1970, when the cases were filed, this was still a bold claim, though it was rapidly winning public support. The Texas and Georgia district courts that initially heard these cases ruled in favor of the plaintiffs, which bolstered their confidence when the cases reached the Supreme Court in the fall of 1971.
- Lawyers for the states of both Georgia and Texas argued that abortion restrictions were appropriate because the state ad a legitimate interest in protecting “fetal life.” This was the argument that the pro-life movement had been making for years, but the attorneys-particularly the attorney for the state of Texas-struggled to articulate it during oral arguments and failed to present a coherent defense of restrictive abortion laws. The lawyer representing the state of Texas could not explain why women in his state were not prosecuted for self-abortion if the primary purpose of the restrictive abortion statute was to protect fetal life, nor could he explain why his state’s law contained to exception for rape The defense lawyer for the state of Georgia, a young assistant attorney general named Dorothy Beasley, delivered a stronger performance, beginning with her opening statement that the central issue in the case was “the value which is to be placed on fetal life.” But she struggled to explain why, if preservation of fetal life was so important, her state allowed abortion in cases of rape, fetal deformities, and instances when pregnancy endangered a woman’s health, while prohibiting abortion more generally.
Indeed, the attorneys seemed more interested in addressing other legal arguments-such as whether the plaintiffs had standing to sue-than in addressing the fundamental issues of fetal life. At one point, the Texas state attorney even drifted into a bit of personal philosophizing that indicated he was as unsure about the beginning of human personhood as most Americans outside of the pro-life movement were- a concession that surely did not help his case “there are unanswerable questions in this field,” he said, when asked if he was prepared to argue that the fetus deserved legal protection even at “one hour” after “impregnation.” ”When does the soul come into the unborn-if a person believes in a soul?” he asked, “I don’t know.”
- Pro-life lawyers had complained before about the poor quality of state attorney’s attempts to defend restrictive abortion statutes. This time, they decided that they would take matters into their own hands. In 1971, they sent the Court their own amici curiae briefs to make the arguments that the state attorneys were unprepared to deliver.
Charles Rice, a Notre Dame law professor who had been producing pro-life materials for years, filed a brief on behalf of the new pro-life organization Americans United for Life (AUL) reiterating the pro-life movements longstanding Fourteenth Amendment argument. Rice cited several decades’ worth of tort cases in which lower courts had awarded damages to plaintiffs who had lost an unborn child in an accident. In some of those cases, judges had explicitly recognized the personhood of the fetus.
A group of lawyers led by Dennis Horan, also affilitated with AUL, filed another brief consisting of several pages of fetal photographs and other medical evidence to persuade the Court that medical science supported the pro-life movement’s claim that fetuses were human persons with constitutional rights. More than 200 pro-life doctors, including most of the leading medical professionals in the movement-Mildred Jefferson, Fred Mecklenburg, Joseph Stanton, and others-signed their names to the brief.
- Ellen McCormack’s Long Island-based organization, Women for the Unborn, which now had 2,000 members, submitted a brief arguing that “permissive abortion constitutes an infringement on the rights and interests of women as well as of unborn children,” because abortion did not solve women’s problems or make them happier. The laws against abortion deterred women from making a choice that would likely ruin their lives, and women would suffer if that safeguard were taken away. “Most women seeking to take the life of their unborn baby, like most people seeking to take their own life, desire to be stopped by someone,” Women for the Unborn claimed. This argument posited a view of gender that might have appealed to the Supreme Court of the early twentieth century, but it seemed distinctly out of step with the opinions of a Court that had just affirmed the equality of men and women under the law in cases such as Reed v. Reed (1971). Perhaps for that reason, the justices did not refer to its arguments.
Juan Ryan and other attorneys in the NRLC hoped their brief would have a greater effect. In sixty-one pages, they attempted to dismantle every abortion rights argument that they thought would appeal to the justices. They offered detailed arguments against the claims that legalized abortion would help the poor or that anti-abortion laws discriminated against women or inappropriately interfered with the work of doctors. They sought to demonstrate that the abortion statues at issue in Roe and Doe were not “unconstitutionally vague.” Most importantly, they offered a detailed list of cases in which lower courts had affirmed the value of fetal life, a view, they said, that was rooted not only in traditional constitutional interpretation but also in the English common law tradition the NRLC lawyers argued that if the fetus had inalienable rights under the Constitution, the “right to privacy” that the justices had asserted in Griswold could not be used to deprive the fetus of those rights, which meant that the right to privacy did not apply to abortion. The original purpose of the late nineteenth-century anti-abortion Texas statute that was at issue in Roe was to protect the life of the fetus, the lawyers argued. That purpose was just as valid in the 1970s as it had been in the 1880s, and the Supreme Court would therefore be wrong t strike down the law.
- The Court initially seemed to indicate that it had only limited interest in listening to arguments from either side. Chief Justice Warren Burger arranged for the Court to begin hearing oral arguments in the cases before the two newest justices Lewis Powell and William Rehnquist, had been sworn in, which would have made them ineligible to vote in the decisions-a move that seemed highly unusual if the chief justice had wanted a historic, path-breaking decision. Furthermore, he allowed only the perfunctory one hour for oral arguments in each case; whenever the Court issued a major ruling, observers noted, it usually allocated far more time than that. Thus, the American Medical News concluded that there was “little likelihood” that the Court would overturn the Georgia and Texas abortion statutes. The lawyers for the plaintiffs in the two cases glumly admitted as much. The Court would probably dismiss the plaintiff’s’ claims in Roe on procedural grounds, Sarah Weddington told NARAL president Lee Gidding in August 1971, and abortion rights advocates would be denied the landmark decision that they sought.
The Supreme Court surprised observers by refraining from issuing a ruling, and instead decided to rehear the cases in the fall of 1972, after all of the Court’s new justices had been seated. By that time, the pro-life movement was stronger, both numerically and politically, than it had been a year earlier. Yet in the courts, the abortion rights movement had won some important victories. A majority of the lower courts that had tested the constitutionality of restrictive abortion statues hd ruled in favor of abortion rights, invalidating restrictive abortion rights statues. The “right to privacy,” which lay at the heart of the Roe and Doe plaintiff’s claims, had received an important reiteration earlier in the year when the Supreme Court ruled, in the birth control case Eisenstadt v. Baird (1972), that unmarried people were entitled to the same privacy as married people. Griswold had located the right to reproductive privacy in the institution of marriage, but Eisenstadt placed that right where the pro-choice movement wanted it: with the individual. “If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child,” the Court declared. Weddington quoted this line when she argued her case again before the Supreme Court, because it seemed to support everything that she had been arguing. If a woman had the constitutional right to make reproductive decisions without the interference of the state, surely the state could not legitimately prohibit her from having an abortion.
- Pro-lifers continued to argue that there was one compelling question that Eisenstadt had not addressed, one that made all the difference in the world. That question was the personhood of the fetus. If the Fifth and Fourteenth Amendments encompassed fetal life, a woman’s right to reproductive privacy could not extent to actions that would terminate the life of a fetus. During the second round of oral arguments in October 1972, Justice Byron White pressed Weddington on this essential question. “Is it critical to your case that the fetus not be a person under the due process clause?" he asked. “Would you lose your case if the fetus was a person?” The lawyers for the states of Texas and Georgia had wanted to discuss other issues, not for pro-life activists, the personhood of the fetus was the only relevant question. White was persuaded by this line of reasoning, and he wanted to see how Weddington would respond to it.
Weddington tried to dodge the question, so White pressed her on it again. This time, she hedged, conceding only that if the fetus was a person, there would have to be a “balancing of interests” between the fetus and the mother, not a negation of the right to an abortion altogether. But she quickly returned to her main argument: the question was irrelevant, because the fetus was clearly not a person under the terms of the Fourteenth Amendment or any other section of the Constitution, including the due process clause of the Fifth Amendment. At most, a fetus had only “statutory rights”-that is, rights conveyed upon it by the legislative statutes of individual states. Women, by contrast, had a full “constitutional” right to an abortion grounded in the right to privacy, specified by Griswold as one of the Ninth Amendment’s implied rights. “It seems to me that you do not balance constitutional rights of one person against mere statutory rights of another, she told the Court.
- Harry Blackmun questioned Weddington again on the issue of fetal personhood, as did Potter Stewart. They wanted her to concede that if the fetus was a person with constitutional rights, a woman could not have a constitutional right to unrestricted abortion. “If it were established that an unborn fetus is a person, with the protection of the Fourteenth Amendment, you would have an almost impossible case here, would you not?” Stewart asked, This time, Weddington reluctantly acknowledged the force of the argument. “I would have a very difficult case,” she conceded.
This was what pro-lifers wanted to hear. It finally seemed, in the second round of oral arguments, that at least some of the justices saw the logic of the pro-lifers’ position. So did the attorney for the defense. In the re-argument, his arguments focused almost entirely on medical testimony about the fetus, combined with the case history detailing how lower court judges had recognized the value of fetal life. Once again he stumbled badly when cross-examined by the justices. But at least he focused his argument on the critical issue of fetal personhood.
- The justices’ questions indicated that Roe would turn on two central issues. The first was whether a woman’s constitutional right to privacy gave her the right to an abortion under the “penumbra” of the Ninth Amendment. The second was whether fetal life was constitutionally protected under the terms of either the Fifth of Fourteenth Amendment. The case was thus a contest between two competing constitutional rights. If one of the rights were granted, it would nullify the other.
Justice Harry Blackmun recognized this, which was why the majority opinion that he wrote in Roe not only presented an argument explaining why the constitutional right to privacy gave women a right to an abortion, but also included a systematic refutation of each of the arguments in favor of fetal rights. Theologians and philosophers disagreed n when human life began, Blackmun argued, so pro-lifers’ use of medical testimony to argue for the personhood of the fetus was not persuasive. Although courts had often awarded damage claims for injuries “in utero”, these precedents were insufficient to confirm pro-lifers’ claim that fetuses had legal rights, because the law had always treated birth as the point at which human life began. Furthermore, the Fourteenth Amendment applied only to persons “born in the United States,” a qualification that clearly did not apply to the unborn.
- By arguing that the fetus did not have any constitutional rights, Blackmun undercut the central argument of the pro-life movement, but he was not yet ready to concede that fetal life had no value or that the state had no right to protect it under any circumstances. At some point during pregnancy, he believed, the state might have a “compelling interest” in protecting fetal life. He was not sure, though, where that point was. He personally favored drawing the line at the end of the first trimester, a line that he admitted was “arbitrary.” Thurgood Marshall and Lewis Powell advocated drawing the line at viability, arguing that if only first-trimester abortions were permitted, some women who needed an abortion might not be able to obtain one, since the first twelve weeks of pregnancy offered a very narrow time frame for performing abortions. After spending several days discussing the issue with his colleagues, Blackmun produced an awkward compromise in the opinion that he wrote for the Court. Women had an unrestricted right to an abortion during the first trimester, he declared. During the second trimester, up to the point of viability, the state could implement restrictions on abortion, but only for the purposes of protecting a woman’s health not for the purpose of preserving fetal life. After viability, states had the option, though not the requirement, to ban abortion entirely, as long as they made exceptions for cases in which abortion was needed to protect a woman’s life or health.
- On January 22, 1973, the court ruled seven to two, in favor of the plaintiffs, Blackmun thought that his ruling offered concessions to all sides, and he tried to present it as a compromise that should not alarm anyone. “It should be stressed that the Court does not today hold that the Constitution compels abortion on demand.” He said. “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.”
Regardless of Blackmun’s attempt to strie a measured tone, the decision that he wrote was sweeping in its outcome; it required the legislatures of forty-six of the nation’s fifty states to rewrite their abortion laws and make them as liberal as New York’s, and it delivered a firm victory to the abortion rights cause that pro-lifers refused to accept. For the previous year and a half, while Roe was being litigated, pro-life lawyers had made a concerted effort to convince the Supreme Court to accept their interpretation of the Constitution. Some of them had hoped that the Court would give them the definitive constitutional victory that they had been seeing. What they received instead was a systematic dismissal of their arguments. Blackmun had “contravene[d] the law of God,” ignored the scientific evidence in favor of fetal life, and misinterpreted the Constitution, they said. “It is hard to think of any decision in the 200 years of our history which has had more disastrous implications for our stability as a civilized society,” Cardinal John Krol declared as soon as the decision was announced.
- Blackmun had little notion of the firestorm he had just ignited. Within days, his mailbox was flooded with missives from angry pro-lifers. Some compared him to Herod and Hitler, while others pleased with him to reconsider the case. Many predicted the imminent legalization of euthanasia, a development that pro-lifers had long warned about. Blackmun was taken aback by the uproar. “The mail has been voluminous and much of it critical and some of it abusive,” he complained to a friend on January 31, a week after delivering the majority opinion in Roe. “I suspect, however, that the furor will die down before too long. At least I hope so.
NARAL president Lee Gidding similarly dismissed the pro-lifers’ apocalyptic laments as the words of “fanatics.” Before you know it this will be past history and abortion will be just another medical procedure,” she confidently predicted. “People will forget about this whole thing.”
Gidding and Blackmun could not have been more wrong.
“The Brethren: Inside the Supreme Court” (1979)Edit
“The Brethren: Inside the Supreme Court” by Bob Woodward and Scott Armstrong, New York: Simon and Schuster
- Blackmun was both pleased and frightened by the assignment. It was a no-win proposition. No matter what he wrote, the opinion would be controversial. Abortion was too emotional, the split in society too great. Either way, he could be hated and vilified.
But from Blackmun’s point of view, the chief had had little choice but to select him. Burger could not afford to take on such a controversial case himself, particularly from the minority. Douglas was the Court’s mischievous liberal, the rebel, and couldn’t be the author. Any abortion opinion Douglas wrote would be widely questioned outside the Court, and his extreme views might split rather than unify the existing majority. Lastly, Blackmun had noticed adeterioration in the quality of Douglas’s opinions; they had become increasingly superficial.
Brennan was certainly as firm a vote for striking down the state abortion law as there was on the Court. But Brennan was the Court’s only Catholic. As such, Blackmun reasoned, he could not be expected to be willing to take the heat from Catholic anti-abortion groups. Marshall could not be the author for similar reasons: an opinion by the Court’s only Black member could be unfairly perceived as specifically designed for Black people. That left only Stewart. Blackmun believed that Stewart would certainly relish the assignment, but he clearly had trouble going very far.
Blackmun was convinced that he alone had the medical background and sufficient patience to sift through the voluminous record for the scientific data on which to base a decision. He was deeply disturbed by Douglas’s assumption that the chief had some malicious intent in assigning the abortion cases to him. Hee was “not” a Minnesota Twin.
- Brennan was aware that he was unlikely to get agreement on such a sweeping extension. He circulated his opinion with a carefully worded paragraph at the end. “If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
That case dealt only with contraception-the decision to “beget a child. He included the reference to the decision to “bear” a child with the abortion cases in mind. Brennan hoped the language would help establish a constitutional basis, under the right to privacy, for a woman’s right to abortion.
Since the last paragraph was not the basis for the decision, Stewart could join in without, renouncing his dissent in the 1965 case. Brenna got Stewart’s vote.
But Blackmun was holding back. The chief was lobbying Blackmun not to join Brennan’s draft. Brennan’s clerks urged their boss to lobby Blackmun.
Brennan refused. Blackmun reminded him, he said, of former justice Charles E. Whittaker, who had been paralyzed by indecisiveness. Whittaker’s indecision had ended in a nervous break-down and his resignation. Former justice Felix Frankfurter had misunderstood Whittaker’s indecision and had spent hours lobbying him. Instead on influencing him, Frankfurter had drawn Whittaker’s resentment. No, Brennan said, he would not lobby Blackmun.
Blackmun finally decided not to join Brennan’s opinion, but simply to concur in the result. That worried Brennan. Without adopting some logic similar to that provided in the contraception case, Blackmun would have difficulty establishing a right to abortion on grounds of privacy.
- In one case, Sarah Weddington, a poised but inexperienced advocate before the Court, argued on behalf of the women hoping to overturn an 1856 Texas law restricting abortions. Unaware the Court was focusing on jurisdiction questions, she immediately began discussing the woman’s constitutional right to an abortion.
Stewart pointed out that there were several threshold questions to be dealt with first, including the jurisdiction issue.
Stewart’s questions drew Douglas’s attention. As always during oral argument, he was a flurry of activity. Douglas listened with one ear, wrote, listened a moment, requested a book from the library, listened again, asked an occasional question, signed his correspondence for the day, listened again, made sarcastic comments to the Chief on his left or Stewart on his right. Now, for a change, Douglas stopped dead. He jotted a quick note to his clerks. “I need considerable research” on the jurisdiction question, he wrote. “Would one of you take it on.?”
Weddington replied to Stewart that she saw no jurisdiction problem. Under earlier Court decisions, federal courts could intervene in state courts when constitutional issues had been raised. The Court had a number of bases for striking down Texas’s abortion law. “We had originally brought the suit alleging both the due process clause, equal protection clause, and the Ninth Amendment, and a variety of others,” Weddington began. “Since-“
“And anything else that might have been appropriate?” White interjected sarcastically. “Yes, yeah,” Weddington said, dissolving into laughter for a moment. But White had pinned Weddington where he wanted her. She had made a broad constitutional claim, the kind a majority of the Court normally opposed.
“Well, do you or don’t you say that the constitutional right you insist on reaches up until the time of birth, or what?” White asked
“… The Constitution, as I see it,g ives protection to people after birth,” she offered.
Douglas then turned the questioning back to the issue they were supposed to be considering, the federal jurisdiction question, and Weddington’s time soon lapsed.
When Assistant Attorney General of Texas, Jay Floyd, began presenting the state’s case, Marshall returned to the issue of abortion. When, he inquired, does an unborn fetus come to have full constitutional rights?
“At any time, Mr. Justice; we make no distinction …” Floyd replied. “There is life from the moment of impregnation.”
“And do you have any scientific data to support that?” Marshall asked.
Well, we begin, Mr. Justice, in our brief with the development of the human embryo, carrying it through to the development f the fetus, from about seven to nine days after conception” Floyd answered.
“Well, what about six days?” Marshall asked, eliciting a mild chuckle from the audience.
- [A]lthough no right to privacy was explicitly stated in the Constitution, it was implied form a number of the Amendments. They had ruled that Connecticut could not prohibit married couples from using birth-control devices. Abortion advocates wanted that constitutional right to privacy extended to abortion.
Stewart thought that the abortion advocates’ argument was too drastic. He had dissented from the 1965 decision, and he was reluctant to renounce his position. It was simply unnecessary for the Court to create another new constitutionally based right.
In a case the previous year (U.S. v. Vuitch), when the Court had upheld restrictions on abortion in the District of Columbia, Douglas had argued in dissent that a physician’s judgment on abortion was a professional judgment that should not be second-guessed. Maybe this was the approach.
Stewart thought he could expand Douglas’s argument to show that some anti-abortion statutes inhibited a doctor’s ability to exercise his best judgment Since a state-licensed doctor was a professional, the la should not interfere with his judgment on behalf of his patient. On that theory, Stewart could vote to knock out the Georgia law-which required that abortions be approved by two doctors and a hospital committee-without creating an explicit constitutional right to abortion. But he did not want to be the one to raise this issue in conference.
Douglas had presented this rationale the year before. Since he was the Justice most likely to point out any inconsistency by Stewart with his past positions, one of Stewart’s clerks went to Douglas’s chambers. Stewart was considering voting against the Georgia abortion law, he told one of Douglas’s clerks. If Douglas were to resurrect his reasoning, it might help.
- Douglas had long wanted the Court to face the abortion issue head on. . . . Douglas realized, however, that a majority of his colleagues were not likely to give such a sweeping reading to the Constitution on this increasingly volatile issue. He knew also that the two cases now before the Court [Roe v. Wade and Doe v. Bolton] did not signal any sudden willingness on the part of the Court to grapple with the brad question of abortions. They had been taken only to determine whether to expand a series of recent rulings limiting the intervention of federal courts in state court proceedings. Could women and doctors who felt that state court proceedings. Could women and doctors who felt that state prosecutions for abortions violated their constitutional rights, go into federal courts to stop the state? And could they go directly into federal courts even before going through all possible appeals in the state court system? Douglas knew the Chief wanted to say no to both these jurisdiction questions. He knew the Chief hoped to use these two cases to reduce the number of federal court cases brought by activist attorneys. The two abortion cases were not to be argued primarily about abortion rights, but about jurisdiction. Douglas was doubly discouraged, believing that his side was also going to lose on the Jurisdiction issue.
|Find more information on Roe v. Wade by searching Wikiquote's sister projects|
|Encyclopedia articles from Wikipedia|
|Dictionary definitions from Wiktionary|
|Textbooks from Wikibooks|
|Source texts from Wikisource|
|Images and media from Commons|
|News stories from Wikinews|
|Learning resources from Wikiversity|