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Roe v. Wade

Roe v. Wade, 410 U.S. 113 (1973),[1] was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States conferred the right to choose to have an abortion. The decision struck down many federal and state abortion laws,[2][3] and it caused an ongoing abortion debate in the United States about whether, or to what extent, abortion should be legal, who should decide the legality of abortion, and what the role of moral and religious views in the political sphere should be. The decision also shaped debate concerning which methods the Supreme Court should use in constitutional adjudication.

Roe v. Wade
Argued December 13, 1971
Reargued October 11, 1972
Decided January 22, 1973
Full case nameJane Roe, et al. v. Henry Wade, District Attorney of Dallas County
Citations410 U.S. 113 (more)
93 S. Ct. 705; 35 L. Ed. 2d 147; 1973 U.S. LEXIS 159
ArgumentOral argument
ReargumentReargument
DecisionOpinion
Case history
PriorJudgment for plaintiffs, injunction denied, 314 F. Supp. 1217 (N.D. Tex. 1970); probable jurisdiction noted, 402 U.S. 941 (1971); set for reargument, 408 U.S. 919 (1972)
SubsequentRehearing denied, 410 U.S. 959 (1973)
Holding
The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides a fundamental "right to privacy" that protects a pregnant woman's liberty to abort her fetus. This right is not absolute, and has to be balanced against the government's interest in protecting women's health and protecting prenatal life. Texas's statutes making it a crime to procure an abortion violated this right.
Court membership
Chief Justice
Warren E. Burger
Associate Justices
William O. Douglas · William J. Brennan Jr.
Potter Stewart · Byron White
Thurgood Marshall · Harry Blackmun
Lewis F. Powell Jr. · William Rehnquist
Case opinions
MajorityBlackmun, joined by Burger, Douglas, Brennan, Stewart, Marshall, Powell
ConcurrenceBurger
ConcurrenceDouglas
ConcurrenceStewart
DissentWhite, joined by Rehnquist
DissentRehnquist
Laws applied
U.S. Const. Amend. XIV;
Tex. Code Crim. Proc. arts. 1191–94, 1196
Overruled by
Planned Parenthood v. Casey (1992, in part)
Dobbs v. Jackson Women's Health Organization (2022, in full)

The underlying case was brought by Norma McCorvey—under the legal pseudonym "Jane Roe"—who, in 1969, became pregnant with her third child. McCorvey wanted an abortion but lived in Texas, where abortion was illegal except when necessary to save the mother's life. Her lawyers, Sarah Weddington and Linda Coffee, filed a lawsuit on her behalf in U.S. federal court against her local district attorney, Henry Wade, alleging that Texas's abortion laws were unconstitutional. A special three-judge court of the U.S. District Court for the Northern District of Texas heard the case and ruled in her favor.[4] The parties appealed this ruling to the Supreme Court.

In January 1973, the Supreme Court issued a 7–2 decision in McCorvey's favor holding that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a fundamental "right to privacy", which protects a pregnant woman's right to an abortion. The Court also held that the right to abortion is not absolute and must be balanced against the government's interests in protecting women's health and prenatal life.[5][6] The Court resolved these competing interests by announcing a pregnancy trimester timetable to govern all abortion regulations in the United States. The Court also classified the right to abortion as "fundamental", which required courts to evaluate challenged abortion laws under the "strict scrutiny" standard, the most stringent level of judicial review in the United States.[7]

The Supreme Court's decision in Roe was among the most controversial in U.S. history.[8][9] In addition to the dissent, Roe was criticized by some in the legal community,[9][10][11] including some in support of abortion rights who thought that Roe reached the correct result but went about it the wrong way,[12][13][14] and some called the decision a form of judicial activism.[15] Others argued that Roe did not go far enough, as it was placed within the framework of civil rights rather than the broader human rights.[16] Anti-abortion politicians and activists sought for decades to restrict abortion or overrule the decision;[17] polls into the 21st century showed that a plurality and a majority, especially into the late 2010s to early 2020s, opposed overruling Roe.[18] Despite criticism of the decision, the Supreme Court reaffirmed Roe's "central holding" in its 1992 decision, Planned Parenthood v. Casey.[19] Casey overruled Roe's trimester framework and abandoned its "strict scrutiny" standard in favor of an "undue burden" test.[5][20]

In June 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,[21][22] 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, by the Dobbs majority's logic, were not constitutionally protected.[23] The decision was supported and opposed by the anti-abortion and abortion-rights movements in the United States, respectively, and was generally condemned by international observers and foreign leaders.[24][25][26]

Background

History of abortion laws in the United States

According to historian James C. Mohr, there was an earlier acceptance of abortion, and opposition to abortion, including anti-abortion laws, only came into being in the 19th century.[27][28] It was not always a crime and was generally not illegal until quickening, which occurred between the fourth and sixth month of pregnancy.[29] In 1821, Connecticut passed the first state statute legislating abortion in the United States;[30] it forbade the use of poisons in abortion.[28] After the 1840s, there was an upsurge in abortions. In the 19th century, the medical profession was generally opposed to abortion, which Mohr argues arose due to competition between men with medical degrees and women without one, such as Madame Drunette. The practice of abortion was one of the first medical specialities, and was practiced by unlicensed people; well-off people had abortions and paid well. The press played a key role in rallying support for anti-abortion laws.[28] According to James S. Witherspoon, a former briefing attorney for the Court of Appeals for the Third Supreme Judicial District of Texas, abortion was not legal before quickening in 27 out of all 37 states in 1868;[31] by the end of 1883, 30 of the 37 states, six of the ten U.S. territories, and the Kingdom of Hawai'i, where abortion had once been common,[32][33] had codified laws that restricted abortion before quickening.[31] More than 10 states allowed pre-quickening abortions, before the quickening distinction was eliminated,[31] and every state had anti-abortion laws by 1900.[30] According to Leslie J. Reagan, a professor of history and law at the University of Illinois, pre-quickening abortions were legal under common law, like in early modern England, and widely accepted in practice in the early United States.[29]

In the United States, before specific statutes were made against it, abortion was sometimes considered a common law offense, such as by William Blackstone and James Wilson.[34][35] In all states throughout the 19th and early 20th century, pre-quickening abortions were always considered to be actions without a lawful purpose. This meant that if the mother died, the individual performing the abortion was guilty of murder. This aspect of common law regarded pre-quickening abortions as a type of inchoate offense.[36] Negative liberty rights from common law do not apply in situations caused by consensual or voluntary behavior, which allowed for abortions of fetuses conceived in a consensual manner to be common law offenses.[37] The majority opinion for Roe v. Wade authored in Justice Harry Blackmun's name would later state that the criminalization of abortion did not have "roots in the English common-law tradition",[38] and was thought to return to the more permissive state of pre-1820s abortion laws.[28]

 
Rose Fosco, who before 1968 posed as a woman seeking an abortion during sting operations for the Chicago Police Department. As an undercover officer, she worked to break up illegal abortion rings.[39]

One purpose for banning abortion was to preserve the life of the fetus,[40] another was to protect the life of the mother, another was to create deterrence against future abortions,[41] and another was to avoid injuring the mother's ability to have children. Judges did not always distinguish between which purpose was more important.[42] Rather than arresting the women having the abortions, legal officials were more likely to interrogate them to obtain evidence against the individual doing the abortions.[43] This law enforcement strategy was a response to juries which refused to convict women prosecuted for abortion in the 19th century.[44] In 1973, Justice Blackmun's opinion stated that "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage".[45]

By 1971, elective abortion on demand was effectively available in Alaska, California, Hawaii, New York, Washington, and Washington, D.C.[46] Some women traveled to jurisdictions where it was legal, although not all could afford to.[47] In 1971, Shirley Wheeler was charged with manslaughter after Florida hospital staff reported her illegal abortion to the police. Wheeler was one of a few women who were prosecuted by their states for abortion.[48] She received a sentence of two years probation, and as an option under her probation, chose to move back into her parents' house in North Carolina.[43] The Playboy Foundation donated $3,500 to her defense fund and Playboy denounced her prosecution.[49] The Boston Women's Abortion Coalition raised money and held a rally where attendees listened to speakers from the Women's National Abortion Action Coalition (WONAAC).[50] Her conviction was overturned by the Supreme Court of Florida.[43]

History of the case

Sarah Weddington recruited Linda Coffee to help her with abortion litigation. Their first plaintiffs were a married couple; they joined after the woman heard Coffee give a speech.[51] The intended suit would state abortions were medically necessary for the woman. The woman had a neurochemical disorder and it was considered medically necessary that she not give birth or raise children, yet they did not want to abstain from sex, and contraception might fail.[51] The attorneys were concerned about standing since the woman was not pregnant. Weddington later wrote that they "needed to find a pregnant Texas woman who wanted an abortion and would be willing to be a plaintiff."[52] They also wanted to increase the likelihood that the panel selection would help them win in court. They wanted to present their case to a three-judge panel which included a judge they thought would be sympathetic,[52] which was a possibility only by filing a case in Dallas.[53] If either of the two cases they filed in Dallas were assigned favorably, they intended to ask for the other one to be consolidated with it.[52]

 
 
 
 
Sarah Weddington (upper left) and Linda Coffee (upper right) were the two attorneys who represented the pseudonymous "Jane Roe" (Norma McCorvey, lower left) against Henry Wade (lower right).

At first, Weddington was unsuccessful in finding a suitable pregnant woman.[54][55] In June 1969, 21-year-old Norma McCorvey discovered she was pregnant with her third child.[56][57] Ordinarily, lawyers are not allowed to directly solicit clients without any prior relationship, but McCorvey's situation qualified for an exception in the no solicitation rule which allows lawyers to solicit new clients for public interest cases.[58] According to a sworn statement made in 2003, McCorvey asked if she had what was needed to be part of Weddington and Coffee's lawsuit. She recounted being told, "Yes. You're white. You're young, pregnant, and you want an abortion."[59][60] Both McCorvey's whiteness and her lower social class were crucial factors in the attorneys' choice to have her as their plaintiff.[61]

McCorvey recounted that the lawyers asked if she thought abortion should be legal. McCorvey said she did not know. Weddington told her, "It's just a piece of tissue. You just missed your period." This convinced McCorvey that abortion should be legal.[62] She agreed to let them represent her under the impression that she would be able to eventually get a legal abortion.[63] She smoked an illegal drug and drank wine so she would not have to think about her pregnancy.[64] McCorvey gave birth to a daughter at Dallas Osteopathic Hospital on June 2, 1970; the baby, Shelley Lynn Thornton, was adopted by a couple in Texas.[65]

In 1970, Coffee and Weddington filed Roe v. Wade as a lawsuit in the U.S. District Court for the Northern District of Texas on behalf of McCorvey under the legal pseudonym "Jane Roe",[66] and they also filed Does v. Wade on behalf of the married couple.[66] The defendant for both cases was Dallas County District Attorney, Henry Wade, who represented the State of Texas. Weddington later stated that she "saw Roe as part of a much larger effort by many attorneys" whose collective interests she represented.[67] James H. Hallford was a physician who was in the process of being prosecuted for performing two abortions.[68] The Court allowed him to join the suit as a physician-intervenor on behalf of Jane Roe.[69]

One of the cases was assigned to a panel of judges which included Judge Sarah T. Hughes, who they thought would be sympathetic, and the cases were consolidated.[70] In accordance with the Court's rules, two of the judges hearing the consolidated case were assigned on the basis of their judicial district, and the third judge on the panel was a circuit court judge[71] chosen by the appellate Chief Justice of the United States.[72]

The consolidated lawsuit was heard by a three-judge panel consisting of district court judges Sarah T. Hughes and William McLaughlin Taylor Jr. and appellate judge Irving Loeb Goldberg of the U.S. Court of Appeals for the Fifth Circuit.[73] Hughes knew Coffee, who clerked for her from 1968–1969.[53] Additionally, the backgrounds of two other judges also gave Weddington and Coffee hope they would be successful.[74] On June 17, 1970, the three judges unanimously[73] ruled in McCorvey's favor and declared the Texas law unconstitutional, finding that it violated the right to privacy found in the Ninth Amendment. The court relied on Justice Arthur Goldberg's 1965 concurrence in Griswold v. Connecticut. Yet the Court also declined to grant an injunction against enforcing the law, and ruled against the married couple on the basis that they lacked standing.[75] Since Wade said he would continue to prosecute people for performing abortions, the lack of an injunction meant that McCorvey could not get an abortion.[76]

Hearing the case

Postponement

Roe v. Wade reached the Supreme Court when both sides appealed in 1970. The case continued under the name Roe v. Wade instead of being switched to Wade v. Roe. The justices delayed taking action on Roe and a closely related case, Doe v. Bolton, until they had first decided certain other cases. One case they decided first was Younger v. Harris. The justices felt the appeals raised difficult questions on judicial jurisdiction.

Another case was United States v. Vuitch, in which they considered the constitutionality of a District of Columbia statute which banned abortion except when the mother's life or health was endangered. The Court upheld the statute on the grounds that the word "health" was not unconstitutionally vague and placed the burden of proof concerning dangers to the life or health of the mother on the prosecutor instead of on the person who had performed the abortion.[77]

Justice William O. Douglas wrote a lengthy dissenting opinion to this case. He argued that the right to marital privacy and the limitation of family size from Griswold v. Connecticut also applied here, although he acknowledged that "on the other side is the belief of many that the fetus, once formed, is a member of the human family and that mere personal inconvenience cannot justify the fetus' destruction." He also challenged the majority opinion with a series of hypothetical questions asking whether "health" might also include the stigma of having an illegitimate child, anxiety from the pregnancy being unwanted, the physical work of raising a child, the financial drain from the added expense of another child, and far off health risks that may never actually materialize in a similar fashion to how risks were warded off with prophylactic appendectomy.[78] Douglas' dissent made a similar legal argument to the one used two years later in Roe v. Wade.[79] The following day after their decision was announced, the court voted to hear both Roe and Doe.[80]

According to Blackmun, Stewart felt the cases were a straightforward application of Younger v. Harris, and enough justices agreed to hear the cases in order to review whether they would be suitable for federal as opposed to only state courts.[81] This sort of review was not about the constitutionality of abortion and would not have required evidence, witnesses, or a record of facts.[82] The oral argument was scheduled by the full Court for December 13, 1971. Before the Court could hear the oral argument, Justices Hugo Black and John Marshall Harlan II retired. Chief Justice Warren Burger asked Justice Potter Stewart and Justice Blackmun to determine whether Roe and Doe, among others, should be heard as scheduled. They recommended that the Court continue on as scheduled.[83]

Oral argument

As she began speaking for the oral argument, Sarah Weddington was unaware that the Court had decided to hear the case in order to decide which courts had jurisdiction to hear it rather than as an attempt to overturn abortion laws in a broad ruling. She began by bringing up constitutional reasons why the Court should overturn Texas's abortion law, but Justice Stewart asked questions directed towards the jurisdiction question instead. Weddington replied that she saw no problem with jurisdiction and continued to talk about a constitutional right to abortion.[84] Overall, she spent between 20 and 30 minutes discussing jurisdiction and procedure instead of constitutional issues.[81]

In his opening argument in defense of the abortion restrictions, attorney Jay Floyd made what was later described as the "worst joke in legal history".[85] Appearing against two female lawyers, Floyd began, "Mr. Chief Justice and may it please the Court. It's an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word." His remark was met with cold silence; one observer thought that Chief Justice Burger "was going to come right off the bench at him. He glared him down."[86]

McCorvey did not attend either of the oral arguments along with her two lawyers. After talking McCorvey out of getting an illegal abortion and getting her name signed on an affidavit for the lawsuit, Weddington did not speak again with McCorvey until four months after Roe was decided.[87]

Initial discussions

 
The judicial replacements

After the first argument session, Burger assigned the task of writing the Court's opinions for both Roe and Doe to Blackmun.[88] Douglas suggested to Blackmun that Burger assigned the opinions to him out of malicious intention, but Blackmun disagreed. He knew that Burger could not write it himself because the abortion was too controversial, and his opinions might get rejected by the majority. He also understood why the other justices could not be assigned to write the opinions: Douglas was too liberal for the public to accept his word. Likewise, he might split the Court's vote by writing something radical. In addition, the quality of his opinions had suffered recently. Brennan was the only Catholic on the Court, and he would have to face Catholic political groups which were against abortion. If Marshall wrote the opinions, the ruling would be perceived as being directed towards African Americans, and he would have to face the displeasure of African American political groups. Stewart would have trouble going far enough in legalizing abortion.[89]

At this point, Black and Harlan had been replaced by William Rehnquist and Lewis F. Powell Jr., but the first argument had already occurred before they became Supreme Court justices.[90] Justice Blackmun worked on a preliminary opinion for Roe which argued that Texas's law was unconstitutionally vague.[88] This approach accommodated the claims of some doctors who were concerned that prosecutors might disagree with them over what constituted "life". Blackmun thought this approach would be a good way to avoid controversy which would come with saying there was a fundamental right to abortion. Brennan and Douglas disagreed with Blackmun and wrote to him that instead he needed to focus on privacy.[91] After communicating with the other justices, Blackmun felt that his opinion did not adequately reflect his liberal colleagues' views.[90] In March 1972, the court issued a ruling in Eisenstadt v. Baird, a landmark case which applied the earlier marital privacy right now also to unmarried individuals.[92]

Douglas wrote to Blackmun in May 1972 that he thought there were four judges who were definitely willing to rule in the majority—himself, Brennan, Stewart, and Marshall.[93] Blackmun at one point thought all seven justices wanted to vote in the majority.[94]

In May 1972, Blackmun proposed that the case be reargued. Justice Douglas threatened to write a dissent from the reargument order because he and the other liberal justices were suspicious that Rehnquist and Powell would vote to uphold the Texas abortion statutes. He was coaxed out of the action by his colleagues, and instead his dissent was merely mentioned in the reargument order without further statement or opinion.[95][96]The case was reargued on October 11, 1972. Weddington continued to represent the pseudonymous Jane Roe, and Texas Assistant Attorney General Robert C. Flowers replaced Jay Floyd for Texas.[97]

A June 1972 memo written by Douglas to his colleagues discussing the case was leaked to and published in The Washington Post before the decision was published.[98]

Drafting the opinion

 
George Frampton, law clerk to Justice Harry Blackmun during the 1971–72 term

Blackmun continued to work on his opinions in both cases over the summer recess, even though there was no guarantee that he would be assigned to write them again. Over the recess, he spent a week researching the history of abortion at the Mayo Clinic in Minnesota, where he had worked in the 1950s. He talked daily on the phone with George Frampton, his 28-year old law clerk who stayed behind in Washington, D.C.[99] Frampton researched the history of abortion using a book authored by Lawrence Lader, the founding chairman of what is now called NARAL Pro-Choice America. Blackmun's papers made available since his death contain at least seven citations[100] for Lader's 1966 book, Abortion.[99] Chapter 16 of his book, "A Blueprint for Changing U.S. Abortion Laws" predicted that if abortion were to be legalized, "the possibility of community opposition is slight".[101] Lader also predicted that "If such a theoretical case was carried to a high court, perhaps even the U.S. Supreme Court, and the judges confirmed a broad interpretation of the meaning of a threat to life, undoubtedly a landmark in abortion decisions would be reached."[102]

The historical survey for Roe also referenced two articles by Cyril Means,[103] who served as counsel to NARAL. In the articles, Means misrepresented the common law tradition in ways that were helpful to the Roe side.[104] Roy Lucas, the principal attorney assisting Weddington and Coffee, had previously received a memo from his colleague David M. Tundermann about Means's scholarship. The memo stated that the conclusions in Means's articles "sometimes strain credibility."[104] It also stated:[104]

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 preserves the guise of impartial scholarship while advancing the proper ideological goals.

After the Court held the second argument session, Powell said he would agree with Blackmun's conclusion but pushed for Roe to be the lead of the two abortion cases being considered. Powell also suggested that the Court strike down the Texas law on privacy grounds. Byron White was unwilling to sign on to Blackmun's opinion, and Justice Rehnquist had already decided to dissent.[105]

During the drafting process, the justices discussed the trimester framework at great length. Powell had suggested that the point where the state could intervene be placed at viability, which Thurgood Marshall supported as well.[106] In an internal memo to the other justices before the majority decision was published, Justice Blackmun wrote: "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."[107] In the same memo he suggested that the end of the first trimester seemed more likely to get support from other justices and allowed states the ability to adjust their statutes. He was of the impression that doctors were concerned that recovering abortion patients would take up too many hospital beds, and that abortion patients later than the first trimester were more likely to require hospital beds than those whose fetuses were aborted earlier.[107] Contrary to the justices who preferred viability, Douglas preferred the first-trimester line.[108] Stewart said the lines were "legislative" and wanted more flexibility and consideration paid to state legislatures, though he joined Blackmun's decision.[109] William Brennan proposed abandoning frameworks based on the age of the fetus and instead allowing states to regulate the procedure based on its safety for the mother.[110]

Supreme Court decision

On January 22, 1973, the Supreme Court issued a 7–2 decision in favor of "Jane Roe" (Norma McCorvey) holding that women in the United States had a fundamental right to choose whether to have abortions without excessive government restriction and striking down Texas's abortion ban as unconstitutional. The decision was issued together with a decision in Roe's companion case, Doe v. Bolton, which involved a similar challenge to Georgia's abortion laws.[2]

Larry Hammond, a law clerk for Powell, gave a Time reporter a copy of the decision "on background", expecting that it would be issued by the court before the next issue of Time was published; however, due to a delay in the decision's release, the text of the decision appeared on newsstands a few hours before it was published by the court. Burger demanded a meeting with Time's editors and punishment for the leaker.[98] Powell refused Hammond's resignation, on the grounds that "Hammond had been double-crossed" by the reporter.[111]

Opinion of the Court

 
Justice Harry Blackmun, the author of Roe's majority opinion

Justice Harry Blackmun wrote the majority opinion and was joined by Chief Justice Warren Burger and Justices Potter Stewart, William J. Brennan Jr., William O. Douglas, Thurgood Marshall, and Lewis F. Powell Jr..

Mootness

After reciting the facts of the case, the Court's opinion first addressed procedure and justiciability. This included mootness, a legal doctrine that prevents American federal courts from hearing cases that have ceased to be "live" controversies because of intervening events.[112] Under a normal application of the doctrine, McCorvey's appeal would have been considered moot because she had already given birth to her child and therefore no longer had a pregnancy to abort.[113]

The Court concluded that an established exception to the mootness doctrine allows consideration of cases that are "capable of repetition, yet evading review".[114] Blackmun noted that McCorvey might get pregnant again, and pregnancy would normally conclude more quickly than an appellate process: "If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied."[115]

Abortion and right to privacy

After dealing with mootness and standing, the Court proceeded to the main issue of the case: the constitutionality of Texas's abortion law. The Court first surveyed abortion's status throughout the history of Roman law and the English and early American common law.[6] It also reviewed the developments of medical procedures and technology used in abortions.[6]

After its historical surveys, the Court introduced the concept of a constitutional "right to privacy" that it said had been intimated in earlier decisions such as Meyer v. Nebraska and Pierce v. Society of Sisters, which involved parental control over childrearing, and Griswold v. Connecticut, which involved the use of contraception.[6] Then, "with virtually no further explanation of the privacy value",[7] the Court ruled that regardless of exactly which provisions were involved, the U.S. Constitution's guarantees of liberty covered a right to privacy that protected a pregnant woman's decision whether to abort a pregnancy.[6]

This right of privacy, whether it be founded in the Fourteenth 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 to terminate her pregnancy.

— Roe, 410 U.S. at 153.[116]

The Court reasoned that outlawing abortions would infringe a pregnant woman's right to privacy for several reasons: having unwanted children "may force upon the woman a distressful life and future"; it may bring imminent psychological harm; caring for the child may tax the mother's physical and mental health; and because there may be "distress, for all concerned, associated with the unwanted child".[117] But at the same time, the Court rejected the notion that this right to privacy was absolute.[6] It held instead that women's abortion right must be balanced against other government interests, such as protecting maternal health and protecting the life of the fetus.[6] The Court held that these government interests were sufficiently compelling to permit states to impose some limitations on pregnant women's right to choose to have an abortion.[6]

A State may properly assert important interests in safeguarding health, 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. ... We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.

— Roe, 410 U.S. at 154.

Texas's lawyers had argued that limiting abortion to situations where the mother's life was in danger was justified because life began at the moment of conception, and therefore the state's governmental interest in protecting prenatal life applied to all pregnancies regardless of their stage.[7] The Court said that there was no indication that the Constitution's uses of the word "person" were meant to include fetuses, and it rejected Texas's argument that a fetus should be considered a "person" with a legal and constitutional right to life.[118] The Court observed that there was still great disagreement over when an unborn fetus becomes a living being.[118]

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, in this point in the development of man's knowledge, is not in a position to speculate as to the answer.

— Roe, 410 U.S. at 159.[119]

To balance women's rights to privacy and state governments' interests in protecting mothers' health and prenatal life, the Court created the trimester framework.[120][121] During the first trimester, when it was believed that the procedure was safer than childbirth, the Court ruled that a state government could place no restrictions on women's ability to choose to abort pregnancies other than imposing minimal medical safeguards, such as requiring abortions to be performed by licensed physicians.[7] From the second trimester on, the Court ruled that evidence of increasing risks to the mother's health gave states a compelling interest that allowed them to enact medical regulations on abortion procedures so long as they were reasonable and "narrowly tailored" to protecting mothers' health.[7] From the beginning of the third trimester on—the point at which a fetus became viable under the medical technology available in the early 1970s—the Court ruled that a state's interest in protecting prenatal life became so compelling that it could legally prohibit all abortions except where necessary to protect the mother's life or health.[7]

Having completed its analysis, the Court concluded that Texas's abortion statutes were unconstitutional and struck them down.

A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving 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.

— Roe, 410 U.S. at 164.

Concurrences

Three justices from the majority filed concurring opinions in the case. Justice Potter Stewart wrote a concurring opinion in which he said that even though the Constitution makes no mention of the right to choose to have an abortion without interference, he thought the Court's decision was a permissible interpretation of the doctrine of substantive due process, which says that the Due Process Clause's protection of liberty extends beyond simple procedures and protects certain fundamental rights.[122][7] Justice William O. Douglas's concurring opinion described his view that although the Court was correct to find that the right to choose to have an abortion was a fundamental right, he thought it would have been better to derive it from the Ninth Amendment—which states that the fact that a right is not specifically enumerated in the Constitution shall not be construed to mean that American people do not possess it—rather than through the Fourteenth Amendment's Due Process Clause.[122][7]

Chief Justice Warren Burger wrote a concurrence in which he wrote that he thought it would be permissible to allow a state to require two physicians to certify an abortion before it could be performed.[122] His concurrence also states:[123]

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.

This has been interpreted as Chief Justice Burger thinking that medical standards and judgment would restrict the number of abortions. Instead of the law restricting abortions to limited circumstances as pre-Roe, now doctors would get to do the restricting.[124]

This understanding of Roe appears to be related to several statements in the majority opinion.[125] Justice Blackmun's majority opinion states, "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."[126] It also states, "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."[127] Six days prior to January 22, Justice Blackmun prepared "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."[128] The unissued news release stated:[108][128]

... 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.

These statements appear to indicate that the justices voting in the majority thought that patients had personal physicians. Earlier in American history it was once common for people to have individual doctors, but the nature of doctor-patient relationship had already changed prior to Roe.[129]

Dissents

 
 
Justices Byron White (left) and William Rehnquist (right), the two dissenters from Roe v. Wade

Justices Byron White and William Rehnquist dissented from the Court's decision.[7] White's dissent, which was issued with Roe's companion case, Doe v. Bolton, argued that the Court had no basis for deciding between the competing values of pregnant women and unborn children.

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 women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot 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 woman, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

— Doe, 410 U.S. at 221–22 (White, J., dissenting).[130]

White also argued that the legality of abortion, "for the most part, should be left with the people and the political processes the people have devised to govern their affairs."[131]

Rehnquist's dissent compared the majority's use of substantive due process to the Court's repudiated use of the doctrine in the 1905 case Lochner v. New York.[7] He elaborated on several of White's points and asserted that the Court's historical analysis was flawed.

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. 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.

— Roe, 410 U.S. at 174–76 (Rehnquist, J., dissenting).[132][133][134]

From this historical record, Rehnquist wrote, "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." He concluded "the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."[135]

Reception

When the decision was issued, there was big news that day; LBJ died.[136][137][138] But, nevertheless, there was a strong response shortly afterwards.[139] The Catholic Church condemned the ruling.[137] Prominent organized groups that responded to Roe include National Association for the Repeal of Abortion Laws, which became the National Abortion Rights Action League in late 1973 to reflect the Court's repeal of restrictive laws,[140] and the National Right to Life Committee.[141]

But the most significant response was the annual March for Life rally in Washington, held on or around January 22.

The legal scholar Ronald Dworkin described it as "undoubtedly the best-known case the United States Supreme Court has ever decided."[142]

Death of Lyndon B. Johnson

 
 
 
Lyndon B. Johnson (left) died on the very same day as Roe v. Wade. Chief Justice Warren Burger (middle) and Justice Thurgood Marshall (right), two of the justices in Roe's majority opinion, led the Supreme Court tributes to the former president.

Former president Lyndon B. Johnson died of a heart attack at his Texas ranch on the very same day of the ruling and the news of his passing overshadowed the ruling.[137][138]

NBC-TV's Garrick Utley, anchoring NBC Nightly News that evening, said "We have just received a bulletin from the Associated Press from Texas that reports that former president Lyndon Johnson is dead" and that the ruling was the "other major story" of the day aside from the passing.[143]

CBS led off their evening newscast with the ruling, and the news of the passing broke during the newscast.[144] During the final ten minutes of that broadcast, CBS reported on the death.[144] Morning newspapers on January 23, 1973 had the passing as the banner headlines and relegated the ruling to just a section on their front pages.[137][138] However, it was already January 23 in Europe and Asia; most of Europe got the news after midnight, Asia was just waking up.[145]

The opinions and views of each of the nine Supreme Court justices on the ruling dissolved into a common wave of shock and sorrow.[146] Chief Justice Warren Burger and Justice Thurgood Marshall led the Supreme Court tributes.[146] Burger said that history "will appraise Lyndon B. Johnson as a strong president when strength and courage were desperately needed."[147] Marshall, himself appointed by Johnson, said:

He did not just mouth the words of equality—unlike many others in high office—he put them into action with all his personal vigor and with all the full authority of his office.[148]

In addition, all nine justices attended the state funeral at National City Christian Church on January 25.[149]

Support for Roe and abortion rights

1960s–1970s

In the 1960s, there was an alliance between the population control movement and the abortion-rights movement in the United States.[150] Abortion rights were especially supported by younger women within the population control movement.[151] The cooperation was mostly due to feminists who wanted some of the popularity already enjoyed by the population control movement. In addition, population control advocates thought that legalizing abortion would help solve the coming population crisis that demographers had projected.[150]

In 1973, Hugh Moore's Population Crisis Committee and John D. Rockefeller III's Population Council both publicly supported abortion rights following Roe.[152] Previously, public support for abortion rights within the population control movement instead came from less established organizations such as Zero Population Growth.[153] An exception was Planned Parenthood-World Population, which supported repealing all laws against abortion in 1969.[154] Together, population control and abortion rights advocates voiced the benefits of legalized abortion such as smaller welfare costs, fewer illegitimate births, and slower population growth.[150] At the same time, the use of these arguments put them at odds with civil-rights movement leaders and Black Power activists who were concerned that abortion would be used to eliminate non-whites.[150] H. Rap Brown denounced abortion as "black genocide",[155] and Dick Gregory said that his "answer to genocide, quite simply, is eight Black kids and another one on the way."[156]

Soon after Roe, the population control movement suffered setbacks, which caused the movement to lose political support and instead appear divisive.[157] On June 27, 1973, a lawsuit was filed concerning the Relf sisters, 14-year old Minnie Lee and her 12-year old sister Alice Lee. A worker at a federally-funded family planning clinic lied to their illiterate mother, saying they would get birth control shots. Instead, the Relf sisters were sterilized without their knowledge or consent.[158] During the next fifteen months, 80 additional women came forward about their forced sterilizations, all belonging to minority races. Concerns rose that abortions would also become compulsory.[159] During the 1974 World Population Conference in Bucharest, Romania, most developing nations argued that the developed nations' focus on population growth was an attempt to avoid solving the deeper causes of underdevelopment, such as the unequal structure of international relations.[160] Instead, they wanted more favorable terms under the New International Economic Order. A draft plan with fertility targets was strongly opposed by the developing countries, which surprised the delegations from the United States, Canada, and Great Britain.[160] The final plan omitted fertility targets and instead stated, "A population policy may have a certain success if it constitutes an integral part of socio-economic development."[161]

As members questioned the political benefits of population control rhetoric, the abortion-rights movement distanced itself from the population control movement.[162] In October 1973, Robin Elliott circulated a memo to other Planned Parenthood members concerning opposition to "Planned Parenthood's credibility in its reference to the population problem".[162] Instead, she thought they should use Roe inspired rhetoric about "the reaffirmation of commitment to freedom of choice in parenthood."[162] By 1978, a NARAL handbook denounced population control.[163]

21st century

 
2021 Women's March, where many speakers bemoaned a looming threat to Roe.[164]

Into the 21st century, advocates of Roe describe it as vital to the preservation of women's rights, personal freedom, bodily integrity, and privacy. Advocates have also reasoned that access to safe abortion and reproductive freedom generally are fundamental rights. Supporters of Roe contend that even if abortion rights are also supported by another portion of the constitution, the decision in 1973 accurately founds the right in the Fourteenth Amendment. Others support Roe despite concern that the fundamental right to abortion is found elsewhere in the Constitution but not in the portions referenced in the 1973 decision.[165][166] They also tend to believe that the power balance between men and women is unequal, and that issues like access to birth control and political representation affect women's equality.[167]

Opinion polls in late 2021 indicated that while a majority of Americans oppose overturning Roe,[168] a sizable minority opposed overturning Roe but also desired to make abortion illegal in ways that Roe would not permit. This was attributed to poll respondents misunderstanding Roe v. Wade or misinterpreting the poll question.[169][18] 2018–2019 polls showed that while 60 percent of Americans generally support abortion in the first trimester, this drops to 20 percent for the second trimester, even though Roe protects the right to abortion until the last weeks of the second trimester, and at the same time 69 percent said they would not like to see Roe overturned, compared to 29 percent who said they would like to see Roe overturned.[18] Another poll showed that 43 percent of those who said abortion should be illegal in most or all cases opposed overturning Roe, while 26 percent of those who said abortion should be legal in most or all cases supported overturning Roe.[170] Polls also found that men and women have similar views on abortion,[171] which are linked to how people think about motherhood, sex, and women's social roles; supporters of Roe and abortion rights tend to see women's ability to make decisions about their bodies as fundamental to gender equality.[167]

Most polls in the late 2010s and early 2020s showed overwhelming support,[18] at between 85 and 90 percent, among Americans that abortion should be legal in at least some circumstances, which varies or drops depending on the specifics.[18][172][173] A January 2022 CNN poll found a 59% majority of Americans want their state to have laws that are "more permissive than restrictive" on abortion if Roe is overturned, 20% want their state to ban abortion entirely, and another 20% want it to be restricted but not banned.[173] In two March 2022 polls, between 61 and 64 percent of Americans said abortion should be legal in most or all cases, while between 35 and 37 percent said abortion should be illegal in most or all cases.[170][174] A May 2022 Gallup poll showed that 50% of Americans thought abortions should be legal under certain circumstances, with 35% saying it should be legal under any circumstances, and 15% saying it should be illegal in all circumstances,[175] as well as a record number of Americans who identify as pro-choice.[176]

Before Roe was overturned in Dobbs v. Jackson Women's Health Organization, a majority of Americans thought that Roe was safe and would not be overturned. Since the draft's leaks showed Roe to be overturned in Dobbs, as happened in June 2022, abortion became a concern and a very important issue for Democrats, who previously lagged behind Republicans on this;[177] some Americans, in particular liberals but also a few conservatives, may have become more aware of the popular support for Roe, which they had previously understated.[178] In June 2022, Gallup reported that a 61% majority of Americans say abortion should be legal in all or most cases, while 37% say abortion should be illegal in all or most cases. It also recorded the highest partisan divide since 1995,[175] compared to the mid-1970s and throughout the 1980s when both Democrats and Republicans were closer on the issue.[179] That same month, the Congregation L'Dor Va-Dor filed a lawsuit against a new law in Florida that would outlaw abortion after 15 weeks of pregnancy, including in cases of rape or incest. Unlike other legal challenges to abortion restrictions in the United States that generally rely on the right to privacy established by Roe, the synagogue argued that Florida's abortion law violates religious freedom, as "Jewish law says that life begins at birth, not at conception."[180]

Opposition to Roe

Condemnation by Catholic Bishops

 
 
Terence Cardinal Cooke, archbishop of New York (left), along with his Philadelphia counterpart, John Cardinal Krol, pictured with Ronald Reagan (right), issued statements that the Catholic Church condemned Roe v. Wade.

The Catholic Church condemned the ruling by the Supreme Court.[137] Blackmun wrote on his dairy, "Abortion flak—3 Cardinals—Vatican—Rochester wires!"[137]

John Cardinal Krol, the archbishop of Philadelphia who was also the president of the United States Conference of Catholic Bishops and Terence Cardinal Cooke, the archbishop of New York, both issued statements condemning the ruling.[181] Krol called the ruling "an unspeakable tragedy for this nation" that "sets in motion developments which are terrifying to contemplate."[181] Cooke called the decision a "horrifying action" and added:[181]

How many millions of children prior to their birth will never live to see the light of today because of the shocking action of the majority of the United States Supreme Court today?[181]

Opposition to Roe but support for abortion rights

Some supporters of abortion rights oppose Roe v. Wade on the grounds that it laid a foundation for abortion in civil rights rather than in human rights, which are broader and would require government entities to take active measures to ensure every woman has access to abortion.[16] This particular position is indicated by the use of rhetoric concerning "reproductive justice", which replaces earlier rhetoric centered around "choice", such as the "pro-choice" label.[182] Reproductive justice proponents contend that factors permitting choice are unequal, thus perpetuating oppression and serving to divide women.[183] Reproductive justice advocates instead want abortion to be considered an affirmative right that the government would be obligated to guarantee equal access to, even if the women seeking abortions are nonwhite, poor, or live outside major metropolitan areas.[184] With a broader interpretation of the right to an abortion, it would be possible to require all new obstetricians to be in favor of abortion rights, lest as professionals they employ conscience clauses and refuse to perform abortions.[185] In the 1989 decision of Webster v. Reproductive Health Services, the Supreme Court ruled against an affirmative right to nontherapeutic abortions and noted that states would not be required to pay for them.[186]

Some in academia have equated the denial of abortion rights to compulsory motherhood, and reason that because of this abortion bans violate the Thirteenth Amendment: "When women are compelled to carry and bear children, they are subjected to 'involuntary servitude' in violation of the Thirteenth Amendment. Even if the woman has stipulated to have consented to the risk of pregnancy, that does not permit the state to force her to remain pregnant."[165] In 1993, a district court rejected an attempt to justify abortion rights apart from Roe and instead upon the basis that pregnancy and childrearing constituted involuntary servitude.[187]

Opposition to both Roe and abortion rights

 
 
Nellie Gray (left) started March for Life to overturn Roe v. Wade. On right, the rally in 2020.

Every year, on the anniversary of the decision, opponents of abortion march up Constitution Avenue to the Supreme Court Building in Washington, D.C., in the March for Life.[188] Around 250,000 people attended the march until 2010.[189][190] Estimates put the 2011 and 2012 attendances at 400,000 each,[191] and the 2013 March for Life drew an estimated 650,000 people.[192] The march was started in October 1973 by Nellie Gray and the first march took place on January 22, 1974, to mark the first anniversary of Roe v. Wade.

Opponents of Roe say that the decision lacks a valid constitutional foundation.[193] Like the dissenters in Roe, they maintain that the Constitution is silent on the issue, and that proper solutions to the question would best be found via state legislatures and the legislative process, rather than through an all-encompassing ruling from the Supreme Court.[194] Another argument against the Roe decision, as articulated by former president Ronald Reagan, is that, in the absence of consensus about when meaningful life begins, it is best to avoid the risk of doing harm.[195]

In response to Roe v. Wade, most states enacted or attempted to enact laws limiting or regulating abortion, such as laws requiring parental consent or parental notification for minors to obtain abortions; spousal mutual consent laws; spousal notification laws; laws requiring abortions to be performed in hospitals, not clinics; laws barring state funding for abortions; laws banning intact dilation and extraction, also known as partial-birth abortion; laws requiring waiting periods before abortions; and laws mandating that women read certain types of literature and watch a fetal ultrasound before undergoing an abortion.[196] In 1976, Congress passed the Hyde Amendment, barring the federal government from using Medicaid to fund abortions except in cases of rape, incest, or a threat to the life of the mother. The Supreme Court struck down some state restrictions in a long series of cases stretching from the mid-1970s to the late 1980s, but upheld restrictions on funding, including the Hyde Amendment, in the case of Harris v. McRae (1980).[197] Some opponents of abortion maintain that personhood begins at fertilization or conception, and should therefore be protected by the Constitution;[166] the dissenting justices in Roe instead wrote that decisions about abortion "should be left with the people and to the political processes the people have devised to govern their affairs."[198]

Responses within the legal profession

Liberal and feminist legal scholars have had various reactions to Roe, not always giving the decision unqualified support. One argument is that Justice Blackmun reached the correct result but went about it the wrong way.[12] Another is that the end achieved by Roe does not justify its means of judicial fiat.[14]

 
 
In 1997, Justice Blackmun (grave, left) gave his papers to the Library of Congress under terms concerning when his papers, including notes tracing the development of the Roe opinion, would be released. To accommodate demand on the day of the final release to the general public five years after his death, the library set up a temporary media center with 18 workstations. The two employees in the foreground are from CNN.[199]

David Garrow said that the decision in Roe and also Doe v. Bolton "owed a great amount of their substance and language" to Justice Blackmun's law clerks, George Frampton and Randall Bezanson. He thought the extent of their contributions were remarkable, and that the clerks exhibited an "unusually assertive and forceful manner" in voicing their views to Justice Blackmun. In his research, it was the earliest significant example he found of this behavior pattern, which grew more consistent later on. In Garrow's evaluation, the clerks' contributions were "historically significant and perhaps decisive" in shaping the two decisions.[200]

In response to Garrow, Edward Lazarus said that Justice Blackmun's later clerks like himself did not need as much direction on reproductive rights since they had Justice Blackmun's prior opinions to draw from. Lazarus thought that on at least some occasions when legal formulations were created for opinions to be published in Justice Blackmun's name, the justice himself was not engaged in originating every significant thought pattern that they employed. Lazarus agreed that Garrow's depiction of how the trimester framework came about was an example of one of these occasions.[200] He concluded: "The problem of excessive clerk delegation was less serious in Blackmun's chambers than Garrow suggests but is also more commonplace among the justices. The modern Supreme Court has deep problems in its decisional culture and the overuse of law clerks is an aspect of this."[201]

Justice John Paul Stevens, while agreeing with the decision, suggested that it should have been more narrowly focused on the issue of privacy. According to Stevens, if the decision had avoided the trimester framework and simply stated that the right to privacy included a right to choose abortion, "it might have been much more acceptable" from a legal standpoint.[202] Before joining the Court, Justice Ruth Bader Ginsburg criticized the decision for venturing "too far in the change it ordered".[203] Had the decision been limited in scope to only permit abortion during certain circumstances, "physicians might have been less pleased with the decision, but the legislative trend might have continued in the direction in which it was headed".[204] After becoming a Supreme Court justice, Ginsburg faulted the Court's approach for being "about a doctor's freedom to practice his profession as he thinks best ... It wasn't woman-centered. It was physician-centered."[205] Justice Ginsburg thought that Roe was originally intended to complement Medicaid funding for abortions, but this did not happen.[206] About Harris v. McRae, which upheld restrictions on Medicaid abortion funding, she said:[206]

Yes, the ruling about that surprised me. Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don't want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn't really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

Watergate prosecutor Archibald Cox thought the "failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations whose validity is good enough this week but will be destroyed with new statistics upon the medical risks of child birth and abortion or new advances in providing for the separate existence of a fetus. Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution."[207]

In a highly cited Yale Law Journal article published in the months after the decision,[15] the American legal scholar John Hart Ely criticized Roe as a decision that was disconnected from American constitutional law.[208]

What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure. ... The problem with Roe is not so much that it bungles the question it sets itself, but rather that it sets itself a question the Constitution has not made the Court's business. ... [Roe] is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.[209]

American constitutional law scholar Laurence Tribe said: "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."[210] Centrist-liberal law professors Alan Dershowitz,[211] Cass Sunstein,[212] and Kermit Roosevelt III have also expressed disappointment with Roe v. Wade.[13]

Jeffrey Rosen,[213][214] as well as Michael Kinsley,[215] echo Ginsburg, arguing that a legislative movement would have been the correct way to build a more durable consensus in support of abortion rights. William Saletan wrote, "Blackmun's papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference."[216] Benjamin Wittes argued that Roe "disenfranchised millions of conservatives on an issue about which they care deeply."[217] Edward Lazarus, a former Blackmun clerk who "loved Roe's author like a grandfather", wrote: "As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. ... Justice Blackmun's opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe's announcement, no one has produced a convincing defense of Roe on its own terms."[218]

Richard Epstein thought that the majority opinion relied on a book written by William Lloyd Prosser about tort law when it stated that it "is said" recovery of damages was allowed "only if the fetus was viable, or at least quick, when the injuries were sustained".[219] He compared this to what was in fact written in the book,[220] which was that "when actually faced with the issue for decision, almost all of the jurisdictions have allowed recovery even though the injury occurred during the early weeks of pregnancy, when the child was neither viable nor quick."[221]

Matt Bruenig, lawyer and founder of the People's Policy Project, criticized Roe as being "weaker than normal" and observed that similarly broad interpretations of the Constitution could be used to argue the opposite outcome, saying "right now we have a constitutional right to an abortion—you could also constitutionally ban abortion. If you wanted to, someone could bring a case, file it in a district court, hit the appeal button twice, and then if you get five judges together, the opinion would be the easiest thing in the world to write. You would say, 'the Fourteenth Amendment protects the right to life, liberty, and property without due process and all that shit. So we're looking at that, and we think that abortion takes a life and so we think that in fact states may not permit abortion'. So you could constitutionally ban it and say that no state or federal government is allowed to legalize abortion".[222]

The assertion that the Supreme Court was making a legislative decision is often repeated by opponents of the ruling.[223] The "viability" criterion was still in effect, although the point of viability changed as medical science found ways to help premature babies survive.[224]

Later responses by those involved

Harry Blackmun

Justice Blackmun, who authored the Roe decision, subsequently had mixed feelings about his role in the case. During a 1974 television interview, he stated that Roe "will be regarded as one of the worst mistakes in the court's history or one of its great decisions, a turning point."[225]

In a 1983 interview for a newspaper journalist, he responded that he was "mildly annoyed at those, law professors included, who personalize it" because "it was a decision of the court, not my decision. There were seven votes." As a Methodist, he felt hurt that Methodist pastors wrote condemning letters to him, but as time passed, the letters did not hurt "as much anymore". In defense he responded, "People misunderstand. I am not for abortion. I hope my family never has to face such a decision", noting that "I still think it was a correct decision" because "we were deciding a constitutional issue, not a moral one."[226] He described Roe as "a no-win case" and predicted that, "fifty years from now, depending on the fate of the proposed constitutional amendment, abortion probably will not be as great a legal issue. I think it will continue to be a moral issue, however."[225] He reflected that his role in the decision meant he was most known as the "author of the abortion decision". His response was that "we all pick up tags. I'll carry this one to my grave" and "so be it".[226]

In 1987, Justice Blackmun explained in a letter to Chief Justice Rehnquist:[227]

I remember that the old Chief appointed a screening committee, chaired by Potter, 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.

In 1991, he regretted how the Court decided to hear Roe and Doe in a televised interview: "It was a serious mistake ... We did a poor job. I think the committee should have deferred them until we had a full Court."[228]

In 1992, he stood by the analytical framework he established in Roe during the subsequent Casey case.[229] He often gave speeches and lectures promoting Roe v. Wade and criticizing Roe's critics.[230]

Norma McCorvey

Norma McCorvey would later claim that, during the 1970s although some years after Roe, she had a nightmare concerning "little babies lying around with daggers in their hearts". This was the first of a series of recurring nightmares which kept her awake at night.[231] She became worried and wondered, "What really, had I done?"[232] and "Well, how do they kill a baby inside a mother's stomach anyway?" McCorvey later reflected:[233]

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 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 anyone else.

During the years after Roe, although not immediately, McCorvey joined with and accompanied others in the abortion rights movement. During this time, McCorvey stated that she had publicly lied about being raped and apologized for making the false rape claim.[234][235] Norma McCorvey became part of the movement against abortion from 1995 until shortly before her death in 2017.[236] In 1998, she testified to Congress:

It was my pseudonym, Jane Roe, which had been used to create the "right" to abortion out of legal thin air. But Sarah Weddington and Linda Coffee never told me that what I was signing would allow women to come up to me 15, 20 years later and say, "Thank you for allowing me to have my five or six abortions. Without you, it wouldn't have been possible." Sarah never mentioned women using abortions as a form of birth control. We talked about truly desperate and needy women, not women already wearing maternity clothes.[237]

 
Judge Edith Jones

In 2002, along with Sandra Cano (Mary Doe) from Doe v. Bolton and Bernard Nathanson, a co-founder of NARAL Pro-Choice America, McCorvey appeared in a television advertisement intended to get the Bush administration to nominate members to the Supreme Court who would oppose abortion.[238]

As a party to the original litigation, she sought to reopen the case in U.S. District Court in Texas to have Roe v. Wade overturned. However, the Fifth Circuit decided that her case was moot, in McCorvey v. Hill.[239] In a concurring opinion, Judge Edith Jones agreed that McCorvey was raising legitimate questions about emotional and other harm suffered by women who have had abortions, about increased resources available for the care of unwanted children, and about new scientific understanding of fetal development. However, Jones said she was compelled to agree that the case was moot.[240][241] On February 22, 2005, the Supreme Court refused to grant a writ of certiorari, and McCorvey's appeal ended.[242]

In an interview shortly before her death, McCorvey stated that she had taken an anti-abortion position because she had been paid to do so and that her campaign against abortion had been an act. She also stated that it did not matter to her if women wanted to have an abortion and they should be free to choose.[243][244] Rob Schenck, a Methodist pastor and activist who once had anti-abortion views stated that he and others helped entice McCorvey to claim she changed sides and also stated that what they had done with her was "highly unethical" and he had "profound regret" over the matter.[245]

Frank Pavone, a priest with whom McCorvey talked to after the interview, reflected after her death that "There was no indication whatsoever, at the end of her life" that she had given up her pro-life positions. Pavone stated that following the interview, McCorvey talked positively with him about a message she wanted him to convey at the next March for Life. The message concerned encouraging young people to oppose abortion.[246]

Sarah Weddington

After arguing in Roe v. Wade at the age of 26, Sarah Weddington was elected to the Texas House of Representatives for three terms. Weddington also was general counsel for the U.S. Department of Agriculture, an assistant to President Jimmy Carter,[247] lecturer at the Texas Wesleyan University School of Law, and speaker and adjunct professor at the University of Texas at Austin.[248]

In a 1993 speech for the Institute for Educational Ethics in Oklahoma, Weddington discussed her conduct during Roe and stated, "My conduct may not have been totally ethical. But I did it for what I thought were good reasons."[249]

In 1998, she said that the lack of doctors to abort fetuses could undermine Roe: "When I look back on the decision, I thought these words had been written in granite. But I've learned it was not granite. It was more like sandstone. The immediate problem is, where will the doctors come from?"[250] Weddington died on December 26, 2021.[251]

Subsequent judicial developments

Roe is embedded in a long line of cases concerning personal liberty in the realm of privacy, since Roe was based on individual liberty cases concerning privacy like Meyer v. Nebraska (1923), Griswold v. Connecticut (1965), Loving v. Virginia (1967) and Eisenstadt v. Baird (1972)[252][253][254] and became a foundation for individual liberty cases concerning privacy like Lawrence v. Texas (2003) and Obergefell v. Hodges (2015).[253][255]

 
Two of the cases Justice Marshall discussed in his Rodriguez dissent

Two months after the decision in Roe, the Court issued a ruling about school funding in San Antonio Independent School District v. Rodriguez.[256] The majority opinion cited Roe v. Wade to assert that privacy itself was a fundamental right, while procreation implicitly counted as "among the rights of personal privacy protected under the Constitution."[257] In his dissenting opinion, Justice Thurgood Marshall stated that Roe v. Wade "reaffirmed its initial decision in Buck v. Bell", and noted where Buck was cited in Roe.[258] He found Roe to be a continuation of the Court's practice of granting only a limited stature to the right to procreate,[259] since the Court's decision treated procreation as less important than the right to privacy.[258] He observed that although past decisions showed strong concern against the state discriminating against certain groups concerning procreation and certain other rights, the "Court has never said or indicated that these are interests which independently enjoy full-blown constitutional protection."[260] Instead, in Roe, "the importance of procreation has indeed been explained on the basis of its intimate relationship with the constitutional right of privacy ..."[258] Justice Marshall thought that the method used in Rodriguez for determining which rights were more fundamental was wrong, and proposed a different method which would result in procreation receiving greater legal protection.[261]

The legal interaction between Roe v Wade, the Fourteenth Amendment as understood post-Roe, and changing medical technology and standards caused the development of civil suits for wrongful birth and wrongful life claims.[262] Not all states permit a parent to sue for wrongful birth[263] or a child to sue for wrongful life.[264] The constitutionality of wrongful life claims is controversial within the legal profession, even for states which currently allow them.[265] Pre-Roe, a state court dismissed a lawsuit making both a wrongful birth and life claim, which was unsuccessfully appealed to the Supreme Court of New Jersey.[266]

Prior to Roe, the Chancery Division of the Superior Court of New Jersey found that a pregnant Jehovah's Witness woman could be ordered to submit to lifesaving blood transfusions due to the state's compelling interest "to save her life and the life of her unborn child."[267] The Court appointed a legal guardian to represent the unborn child, and ordered the guardian to consent to blood transfusions and to "seek such other relief as may be necessary to preserve the lives of the mother and the child".[267] After Roe, the Fifth District Appellate Court in Illinois ruled that medical professionals had wrongly transfused blood into a pregnant Jehovah's Witness woman on the basis from Roe that the "state's important and legitimate interest becomes compelling at viability" and her fetus was not yet viable.[268][269]

President Reagan, who supported legislative restrictions on abortion, began making federal judicial appointments in 1981. Reagan denied that there was any litmus test: "I have never given a litmus test to anyone that I have appointed to the bench ... . I feel very strongly about those social issues, but I also place my confidence in the fact that the one thing that I do seek are judges that will interpret the law and not write the law. We've had too many examples in recent years of courts and judges legislating."[270]

In addition to Justices White and Rehnquist, Reagan-appointee Justice Sandra Day O'Connor began dissenting from the Court's abortion cases, arguing in 1983 that the trimester-based analysis devised by the Roe Court was "unworkable."[271] Shortly before his retirement, Chief Justice Warren Burger suggested in 1986 that Roe be "reexamined";[272] the associate justice who filled Burger's place on the Court—Justice Antonin Scalia—vigorously opposed Roe. Concern about overturning Roe played a major role in the defeat of Robert Bork's nomination to the Court in 1987; the man eventually appointed to replace Roe-supporter Justice Lewis Powell was Justice Anthony Kennedy.

 
Oral hearing for the German Constitutional Court's abortion decision, November 18, 1974

The justices voting in the majority on the Federal Constitutional Court in pre-unification West Germany rejected the trimester framework in the German Constitutional Court abortion decision, 1975 on the basis that development during pregnancy is a continuous whole rather than made up of three trimesters. The Court found that the right to life extends also to the unborn and that life begins on the fourteenth day after conception.[273] It also found that the liberties of pregnant mothers were qualified by the existence of another life inside them. The Court found that "A compromise which guarantees the protection of the life of the one about to be born and permits the pregnant woman the freedom of abortion is not possible since the interruption of pregnancy always means the destruction of the unborn life."[274] It ruled that the fetus must be protected, and the first responsibility for this lies with the mother, with a second responsibility in the hands of the legislature.[275] The Court allowed for a balancing of rights between the mother and unborn child, but required that the rights of each be considered within a framework which acknowledged the supreme, fundamental value of human life. Legislation allowing abortion could be constitutional if the rights of the unborn persons were acknowledged in this manner.[276]

Two minority justices in the ruling for the German Constitutional Court abortion decision in 1975 remarked that "the Supreme Court of the United States has even regarded punishment for the interruption of pregnancy, performed by a physician with the consent of the pregnant woman in the first third of pregnancy, as a violation of fundamental rights. This would, according to German constitutional law, go too far indeed."[274]

In 1988, the Supreme Court of Canada used the rulings in both Roe and Doe v. Bolton as grounds to find Canada's federal law limiting abortions to certified hospitals unconstitutional in R. v. Morgentaler.[277]

Planned Parenthood v. Danforth

 
Burger Court in 1976

In Planned Parenthood v. Danforth, 428 U.S. 52 (1976),[278] the plaintiffs challenged a Missouri statute which regulated abortion. In the regulations for abortions on demand, the state required prior written consent from a parent if the patient was a minor or a spouse if the patient was married. For pregnancies at 12 weeks and later, the statute also banned saline abortions,[279] in which chemicals are injected into the amniotic sac to burn the fetus.[280] The portions of the statute involving parental or spousal consent and prohibiting saline abortions were struck down.[279]

Floyd v. Anders

In Floyd v. Anders, 440 F. Supp. 535 (D.S.C. 1977), South Carolina attempted to prosecute a doctor for illegal abortion and murder after he attempted to abort an African American boy at 25 weeks. During the abortion, the boy was born alive and survived for 20 days before dying.[281] His prosecution was blocked by Judge Clement Haynsworth, and shortly afterwards by a unanimous three judge panel for the U.S. District Court for the District of South Carolina. Judge Haynsworth, writing for the panel, stated "Indeed, the Supreme Court declared the fetus in the womb is neither alive nor a person within the meaning of the Fourteenth Amendment."[282] John T. Noonan criticized this from an anti-abortion perspective, stating that "Judge Haynsworth had replaced the Supreme Court's test of potential ability to live with a new test of actual ability to live indefinitely. He also had spelled out what was implied in Roe v. Wade but never actually stated there. For the American legal systems the fetus in the womb was not alive."[283] The standard in Roe for viability outside the womb required a "capability of meaningful life".[284] Without this capability, the state had no compelling "important and legitimate interest in potential life".[284]

Webster v. Reproductive Health Services

In a 5–4 decision in 1989's Webster v. Reproductive Health Services, Chief Justice Rehnquist, writing for the Court, declined to explicitly overrule Roe, because "none of the challenged provisions of the Missouri Act properly before us conflict with the Constitution." In particular, the Court found that the ability to have a nontherapeutic abortion was not an affirmative right of the sort that required the state to pay for it.[186] In this case, the Court upheld several abortion restrictions, and modified the Roe trimester framework.[186]

In concurring opinions, Justice O'Connor refused to reconsider Roe, and Justice Antonin Scalia criticized the Court and Justice O'Connor for not overruling Roe.[186] Justice Blackmun stated in his dissent that Justices White, Kennedy and Rehnquist were "callous" and "deceptive," that they deserved to be charged with "cowardice and illegitimacy," and that their plurality opinion "foments disregard for the law."[186] White had recently opined that the majority reasoning in Roe v. Wade was "warped."[272]

Planned Parenthood v. Casey

 
1991–1993 Rehnquist Court

During initial deliberations for Planned Parenthood v. Casey (1992), an initial majority of five justices (Rehnquist, White, Scalia, Kennedy, and Thomas) were willing to effectively overturn Roe. Justice Kennedy changed his mind after the initial conference,[285] and Justices O'Connor, Kennedy, and Souter joined Justices Blackmun and Stevens to reaffirm the central holding of Roe,[286] but instead of justifying the liberty to abort as being based on privacy as in Roe, it justified the liberty in a broader manner. The opinion asserted an individual's liberty to choose concerning family life and also protection from legal enforcement intended to maintain traditional sex roles, writing,[287] "Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. ..."[288] and against the state insisting "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."[289]

The plurality of justices stated that abortion-related legislation should be reviewed based on the undue burden standard instead of the strict scrutiny standard from Roe.[290]

The plurality also found that a fetus was now viable at 23 or 24 weeks rather than at the 28 week line from 1973.[291] They also felt that fetal viability was "more workable" than the trimester framework.[292] They abandoned the trimester framework due to two basic flaws: "in its formulation it misconceives the nature of the pregnant woman's interest; and in practice it undervalues the State's interest in potential life, as recognized in Roe."[293] Only Justice Blackmun wanted to retain Roe entirely and issue a decision completely in favor of Planned Parenthood.[229] Prior to this, he had considered a Pennsylvania viability-based law to be unconstitutionally vague in his majority opinion for Colautti v. Franklin.[294]

Justice Scalia's dissent asserted that abortion is not a liberty protected by the Constitution for the same reason bigamy was not protected either: because the Constitution does not mention it, and because longstanding traditions have permitted it to be legally proscribed.[295] He also asked:[296]

Precisely why is it that, at the magical second when machines currently in use (though not necessarily available to the particular woman) are able to keep an unborn child alive apart from its mother, the creature is suddenly able (under our Constitution) to be protected by law, whereas before that magical second it was not? That makes no more sense than according infants legal protection only after the point when they can feed themselves.

Stenberg v. Carhart

 
The Rehnquist Court in 1994; the members pictured are the ones who decided Stenberg v. Carhart. Justice Ginsburg replaced Justice White.

During the 1990s, Nebraska enacted a law banning partial-birth abortion. The law allowed another second-trimester abortion procedure known as dilation and evacuation. In 2000, the Supreme Court struck down the law by a 5–4 vote in Stenberg v. Carhart, with Justice Stephen Breyer writing for the majority that sometimes partial-birth abortion "would be the safest procedure".[297] Justice O'Connor wrote a concurrence stating Nebraska was actually banning both abortion methods.[298] Justices Ginsburg and Stevens joined each other's concurrences. Justice Stevens stated that "the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other ... is simply irrational."[299] Justice Ginsburg stated that the "law does not save any fetus from destruction, for it targets only 'a method of performing abortion'."[300]

Justice Thomas's dissent stated, "The 'partial birth' gives the fetus an autonomy which separates it from the right of the woman to choose treatments for her own body."[301] Justice Scalia joined Justice Thomas's dissent and also wrote his own, stating that partial-birth abortion is "so horrible that the most clinical description of it evokes a shudder of revulsion" and that this case proved Casey was "unworkable".[302] Chief Justice Rehnquist joined the two dissents by Justices Scalia and Thomas.[303]

Justice Kennedy, who had co-authored Casey, dissented in Stenberg. He described in graphic detail exactly how a fetus dies while being dismembered during a dilation and evacuation procedure. He reasoned that since Nebraska was not seeking to prohibit it, the state was free to ban partial-birth abortion.[304]

Gonzales v. Carhart

In 2003, Congress passed the Partial-Birth Abortion Ban Act,[305] which led to a lawsuit in the case of Gonzales v. Carhart.[306] The Court previously ruled in Stenberg v. Carhart that a state's ban on partial-birth abortion was unconstitutional because such a ban did not have an exception for the health of the woman.[307] The membership of the Court changed after Stenberg, with Chief Justice John Roberts and Justice Samuel Alito replacing Chief Justice Rehnquist and Justice O'Connor.[308][309] The ban at issue in Gonzales v. Carhart was similar to the one in Stenberg,[307] but had been adjusted to comply with the Court's ruling.[310]

On April 18, 2007, a 5 to 4 decision upheld the constitutionality of the Partial-Birth Abortion Ban Act.[309] Justice Kennedy wrote the majority opinion that Congress was within its power to ban partial-birth abortion. The Court left the door open for as-applied challenges.[311] The opinion did not address whether Casey remained valid. Instead it only assumed Casey was valid "for the purposes of this opinion".[312]

Chief Justice John Roberts and Justices Scalia, Thomas, and Alito joined the majority. Justice Thomas filed a concurring opinion, joined by Justice Scalia, contending that the Court's prior decisions in Roe v. Wade and Planned Parenthood v. Casey should be reversed.[313] They also noted that the Partial-Birth Abortion Ban Act may have exceeded the powers of Congress under the Commerce Clause but that the question was not raised.[314]

Justice Ginsburg, joined by Justices Stevens, Souter, and Breyer, dissented,[308] contending that the ruling ignored precedent and that abortion rights should instead be justified by equality.[309]

Dubay v. Wells

 
Judge David Lawson

Dubay v. Wells was a 2006 paternity case where a man argued he should not have to pay child support for a child he did not want to parent. The case was billed as "Roe v. Wade for men".[315]

On March 9, 2006, Dubay filed a lawsuit before the United States District Court for the Eastern District of Michigan. Michigan's Attorney General, Joel D. McGormley, made a motion to have the case dismissed. On July 17, 2006, District Court Judge David Lawson agreed and dismissed Dubay's lawsuit.[316] He appealed it once, to the United States Court of Appeals for the Sixth Circuit, which also dismissed it, and stated:

Dubay's claim that a man's right to disclaim fatherhood would be analogous to a woman's right to abortion rests upon a false analogy. In the case of a father seeking to opt out of fatherhood and thereby avoid child support obligations, the child is already in existence and the state therefore has an important interest in providing for his or her support.[317]

Whole Woman's Health v. Hellerstedt

 
The Roberts Court in 2010; eight of the nine members pictured are the ones who decided Whole Woman's Health v. Hellerstedt. Justice Scalia (front row, second left) died before the oral argument.

In 2013, the Texas legislature enacted restrictions which required abortion doctors to have admitting privileges at a local hospital and required abortion clinics to have facilities equivalent to others which conducted outpatient surgery.[318] On June 27, 2016, the Supreme Court in a 5–3 decision for Whole Woman's Health v. Hellerstedt struck down these restrictions.[318]

The majority opinion by Justice Breyer struck down these two provisions of Texas law in a facial manner—that is, the very words of the provisions were invalid, no matter how they might be applied in any practical situation. The ruling also stated that the task of judging whether a law puts an undue burden on a woman's right to abortion belongs with the courts and not the legislatures.[319]

Box v. Planned Parenthood

In 2016, Indiana passed House Bill 1337, enacting a law which regulated what is done with fetal remains and banning abortion for sexist, racist, or ableist purposes.[320] In its unsigned 2019 ruling for Box v. Planned Parenthood of Indiana and Kentucky, Inc., the U.S. Supreme Court upheld the regulations about fetal remains, but declined to hear the remainder of the law, which had been blocked by lower courts.[321] Justice Ginsburg dissented from the part of the ruling about fetal remains on the basis that the regulations violated Casey.[322] She also criticized Justice Thomas over his use of the word "mother" in his concurrance.[323]

Justice Sotomayor stated that she wished the Court would not have heard the case at all.[324] Justice Thomas wrote a concurring opinion which expressed concern that the theory presented in Freakonomics echoed the views of the eugenics movement.[325] He warned that "a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement". He predicted, "Although the Court declines to wade into these issues today, we cannot avoid them forever."[326]

Whole Woman's Health v. Jackson

In 2021, the state of Texas devised a legal workaround to Roe that allowed it to successfully outlaw abortion at six weeks of pregnancy despite the continued existence of Roe and Casey. In the Texas Heartbeat Act, the legislature created a novel enforcement mechanism that bars state officials from enforcing the statute and authorizes private individuals to sue anyone who performs or assists an illegal abortion.[327][328] Because the Act is enforced by private citizens rather than government officials, there are no state officials that abortion providers can sue to stop the enforcement of the law, and they cannot obtain judicial relief that will stop private lawsuits from being initiated against them.[329] This has produced an end-run around Roe because the threat of private civil-enforcement lawsuits has forced abortion providers to comply with the Act despite its incompatibility with the Supreme Court's abortion pronouncements.[330][331] Other states have copied this enforcement mechanism to sidestep Roe and immunize their anti-abortion statutes from judicial review.[332][333][334] This maneuver has weakened Roe and undercut the federal judiciary’s ability to protect abortion rights from state legislation.[335]

Dobbs v. Jackson Women's Health Organization

Dobbs v. Jackson Women's Health Organization is a case that was a legal challenge to Mississippi's 2018 Gestational Age Act, which had banned abortions after 15 weeks with exceptions only for medical emergencies or fetal abnormalities. Federal courts had enjoined the state from enforcing the law after the state's only abortion clinic, Jackson Women's Health Organization, filed suit immediately after passage; the federal courts stated that the law violated the previously established 24-week point of viability. Mississippi asked the Supreme Court to hear the case on June 15, 2020, and the Court certified the petition on May 17, 2021, limited to the question, "Whether all pre-viability prohibitions on elective abortions are unconstitutional."[336] The Court chose not to take up two other questions that Mississippi wanted to bring before the Court.[336]

On May 2, 2022, Politico released a leaked first draft of a majority opinion written by Justice Samuel Alito, which had been circulated among the court in February 2022. Alito's draft wrote, "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." The release of a draft opinion for a pending case was unprecedented in recent Supreme Court history. The document was not a final decision, and the justices were still able to change their votes. The document was thought to reflect both the justices' preliminary voting and the outcome of the internal Court procedure for deciding who is assigned to write the majority opinion.[337][338] A press release from the Supreme Court confirmed the leaked document's authenticity, and Chief Justice John Roberts in a statement described its release as a "betrayal of the confidences of the Court".[339] The leaked draft regarding the decision sparked protests.[340][341]

On June 24, 2022, the Supreme Court ruled 6–3 to uphold Mississippi's Gestational Age Act, and 5–4 to overrule Roe and Casey. Similar to the leaked draft opinion, the opinion of the court written by Justice Alito stated that Roe was "egregiously wrong from the start" and its reasoning "exceptionally weak". It also stated that Roe has "enflamed debate and deepened division" and that overruling it would "return the issue of abortion to the people's elected representatives".[342] The majority opinion relied on a constitutional historical view of abortion rights, saying, "The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision."[22] The reasoning was that "abortion couldn't be constitutionally protected. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy."[343] Some historians argued that this view is incomplete,[343] with Leslie J. Reagan saying that Alito "speciously claims" the truth of his assertions.[29] In their dissent, Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor jointly wrote, "The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. Either the mass of the majority's opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other."[23]

Role in politics

Presidential positions

Generally, presidential opinions following Roe have been split along major party lines. The decision was opposed by Presidents Gerald Ford,[344] Ronald Reagan,[345] George W. Bush,[346] and Donald Trump.[347] President George H. W. Bush also opposed Roe, though he had supported abortion rights earlier in his career.[348][349]

President Richard Nixon appointed Justices Burger, Blackmun, and Powell who voted with the majority, and Justice Rehnquist who dissented.[350][1] President Nixon did not publicly comment about Roe v. Wade.[351]

During his early career, President Jimmy Carter supported legalizing abortion in order to save the life of a woman or in the event of birth defects, or in other extreme circumstances.[352][353] As president, he thought abortion was wrong, but stated that he "accepted my obligation to enforce the Roe v. Wade Supreme Court ruling, and at the same time attempted in every way possible to minimize the number of abortions."[354] In 2012 he reflected, "I never have believed that Jesus Christ would approve of abortions and that was one of the problems I had when I was president having to uphold Roe v. Wade ..." He urged the Democratic Party to take a position supporting pregnant mothers to minimize economic and social factors driving women to get abortions. He also wanted the party to take stand in favor of banning abortion except for those whose lives "are in danger or who are pregnant as a result of rape or incest."[355]

Roe was supported by Presidents Bill Clinton[356] and Barack Obama.[357] In 1981, then-Senator Joe Biden voted for a constitutional amendment allowing states to overturn Roe v. Wade, which he voted against the following year.[358] In a 2007 memoir, Biden expressed an opinion that although he was "personally opposed to abortion" he did not have the "right to impose" his personal opposition onto others.[359] In 2021, he described himself to reporters as "a strong supporter of Roe v. Wade", and added, "And I under— I respect people who think that—who don't support Roe v. Wade; I respect their views. I respect them—they—those who believe life begins at the moment of conception and all. I respect that. Don't agree, but I respect that. I'm not going to impose that on people."[360][361]

Federal bills or laws regarding Roe

Federal bills, amendments, or laws regarding Roe include the Women's Health Protection Act, Freedom of Choice Act, Partial-Birth Abortion Ban Act, Born-Alive Infants Protection Act, Unborn Victims of Violence Act, Interstate Abortion Bill, No Taxpayer Funding for Abortion Act, Pain-Capable Unborn Child Protection Act, Partial-Birth Abortion Ban Act of 1995, Sanctity of Human Life Act, Sanctity of Life Act, Hyde Amendment, Freedom of Access to Clinic Entrances Act, and the Baby Doe Law.

Following the passage of the Texas Heartbeat Act and the Supreme Court's acceptance of the Dobbs v. Jackson Women's Health Organization case,[362] and the threat the case poses to Roe in the eyes of Roe supporters,[362] Neal Kumar Katyal, a law professor and former acting solicitor general of the United States, said that instead of abortion regulation by the judicial branch, Congress could "codify the rights two generations have taken as part of American life",[363] and "nullify the threat to reproductive health posed by the Mississippi case."[363][364][365] Thomas Jipping of the Heritage Foundation wrote that the Women's Health Protection Act is unconstitutional because it regulates how state legislatures regulate abortion and abortion services rather than directly regulating abortion at the federal level.[366] Views that the WHPA is unconstitutional or should otherwise be opposed were expressed during Senate Judiciary Committee hearings in 2014.[367]

State laws regarding Roe

At the state level, there have been many laws about abortion. In the decade after Roe, most states passed laws protecting medical workers with a conscientious objection to abortion. Nine states which had legalized abortion or loosened abortion restrictions prior to Roe already had statutory protection for those who did not want to participate in or perform an abortion. As of 2011, forty-seven states and the District of Columbia had laws allowing certain people to decline to perform certain actions or provide information related to abortion or reproductive health.[368] At the federal level, the Church Amendment of 1973 was proposed in order to protect private hospitals objecting to abortion from being deprived of funding. It first passed the Senate, 92–1, then a slightly modified version passed the House, 372–1, and the final bill which contained it passed the Senate 94–0.[369] Justice Blackmun supported this and other regulations protecting individual physicians and entire hospitals operated by religious denominations.[370]

Some states have passed laws to maintain the legality of abortion if Roe v. Wade is overturned. Those states include California, Connecticut, Hawaii, Maine, Maryland, Nevada, and Washington.[371] Other states have enacted so-called trigger laws that would take effect in the event that Roe v. Wade is overturned, with the effect of outlawing abortions on the state level. Those states include Arkansas, Kentucky, Louisiana, Mississippi, North Dakota, and South Dakota.[371] Additionally, many states did not repeal pre-1973 statutes against abortion, and some of those statutes could again be in force if Roe were reversed.[372]

On April 16, 2012, Mississippi House Bill 1390 was signed into law.[373] The law attempted to make abortion unfeasible without having to overturn Roe v. Wade.[374] Judge Daniel Porter Jordan III of the United States District Court for the Southern District of Mississippi granted an injunction against the law on July 13, 2012.[375] On April 15, 2013, he issued another injunction which only applied to a part of the law which required the individual performing the abortions to have hospital admitting privileges.[376] On July 29, 2014, a three-judge panel from the U.S. Court of Appeals for the Fifth Circuit upheld the injunction against part of the law, with Judge Emilio M. Garza dissenting. The ruling especially relied on a case unrelated to Roe which was decided "nearly fifty years before the right to an abortion was found in the penumbras of the Constitution".[377] On February 18, 2015, Mississippi asked the Supreme Court to hear the case, but they declined to hear it on June 28, 2016.[378]

The Human Life Protection Act was signed by Alabama governor Kay Ivey on May 14, 2019 in hopes of challenging Roe v. Wade in the Supreme Court.[379] It includes exceptions for a serious health risk to the mother or a lethal fetal anomaly, but otherwise it will make abortion a felony for the abortion doctor if it goes into effect. Women subjected to an abortion will not be criminally culpable or civilly liable under the law.[380] On October 29, 2019, Judge Myron Thompson for the U.S. District Court for the Northern District of Alabama issued a preliminary injunction against the law.[381]

In May 2021, Texas lawmakers passed Senate Bill 8, creating the Texas Heartbeat Act, banning abortions except in cases of medical emergency as soon as a fetal heartbeat can be detected.[382] This is typically as early as six weeks into pregnancy and often before women know they are pregnant. The law established that any Texas resident who is not a state or local government employee or official can sue abortion clinics and doctors who are known to be "aiding and abetting" abortion procedures after six weeks.[383] A clause forbids anyone who impregnated an abortion patient through rape, sexual assault, or incest to sue concerning the patient.[384] The enactment date was September 1, 2021, and the U.S. Supreme Court, in a 5–4 decision, declined a request to block enforcement of the law that day.[385] On October 22, 2021, the Court again did not block the law's enforcement, and agreed to hear arguments for United States v. Texas on November 1, 2021.[386] They limited the question to a review of standing.[387][388] On December 10, 2021, the Court dismissed the lawsuit on the basis that lower courts should not have accepted it.[389] This decision allows lawsuits against the executive directors of Texas's medical, nursing, and pharmacy licensing boards and also against the executive commissioner of the Texas Health and Human Services Commission, but not certain other lawsuits seeking to overturn the law.[390]

Legacy

Effects of legalization

Roe v. Wade caused a 4.5% decline in births in states that had not previously legalized abortion.[391] According to a 2019 study, if Roe v. Wade is reversed and some states prohibit abortion on demand, the increases in travel distance are estimated to prevent at a low estimate of over 90,000 women and at a high estimate of over 140,000 women from having abortions in the year following the ruling's overturning.[392] If Roe were to be overturned by a constitutional amendment which would apply to all the states, fertility could be expected to increase by 11% because then mothers would not travel to states where abortion is legal.[393] Although the legalization of abortion in the United States increased the labor supply of fertile-aged women in the workforce, it decreased the labor supply of older women. This is thought to be due to the fact they now had fewer opportunities to financially support grandchildren. Older women whose labors became less necessary for the family's financial wellbeing either left or stayed out of the workforce.[394] Since Roe, the risk of death due to legal abortion fell considerably due to increased physician skills, improved medical technology, and earlier termination of pregnancy.[395] Various studies have shown that overturning Roe could have adverse socio-economic conditions, higher maternal mortality,[396] and other negative impacts.[392][397][398]

The Donohue–Levitt hypothesis about the legalized abortion and crime effect proposed that legalized abortion was responsible for reductions in the crime rate. If there is a relationship between abortion and crime, there are several possibilities that could explain how abortion lowers crime. One possibility is that crime is disproportionally committed by young males, and legalizing abortion reduced the number of young males. Another possibility is that children born in the post-legalization era are less likely to commit crimes. If this is the case, it might be explained in two ways. One way is that the sort of women who have abortions are not representative of pregnant women as a whole; rather they are the sort who are most likely to give birth to children who grow up to be criminals. In this way, abortion serves to shape American family structure.[399] Studies linking demographics to crime have found that children born to American teenagers, unmarried mothers, and mothers with lower incomes are more likely to engage in criminal activity as adolescents.[400] Abortion rates are higher for these demographics. A second possible way to explain it is that women use abortion to prevent births until they are most able to provide a stable home environment. Factors involved in stability include the age, education, income, of the mother, her use of drugs and alcohol, the presence of a father, and wanted as opposed to unwanted pregnancies.[399] Another hypothesis is the Roe effect, which tries to explain why the practice of abortion would eventually lead to abortion being restricted or outlawed. The hypothesis is that people in favor of abortion rights would not parent as many children when abortion is legal, and since children tend to have similar views to their parents eventually voters would not support abortion rights.[401]

Opinion polls

Into the 21st century, polls of Americans' opinions about abortion indicated they are about equally divided. Several organizations, among them Gallup,[402][403] Pew Research Center,[404] and Harris Insights & Analytics,[405][406] conduct abortion or Roe v. Wade-related polls. Regarding the Roe decision as a whole, more Americans supported it than supported overturning it.[407] In the 2000s, when pollsters describe various regulations that Roe prevented legislatures from enacting, support for Roe dropped.[407][408]

Into the 2010s, poll results relating to abortion indicated nuance and frequently do not directly match up with respondents' self-identified political affiliations.[409] In 2021, an ABC News/Washington Post poll found that 58% of those with children living at home wanted to see Roe v. Wade upheld, compared to 62% of those without children at home. An All In Together poll found that only 36% with children living in their house opposed the Texas Heartbeat Act, compared to 54.9% without children.[410] After the Supreme Court's decision in June 2022 to overturn Roe v. Wade, a new CBC News/YouGov poll showed 59% disapprove of the decision, and of women polled, 67% disapprove. According to the same poll, 52% of the participants called the court's decision a "step backward" for America, 31% said it is a "step forward", and 17% say it was neither.[411]

See also

References

  1. ^ a b Roe v. Wade, 410 U.S. 113 (1973).
  2. ^ a b Mears, William; Franken, Bob (January 22, 2003). "30 years after ruling, ambiguity, anxiety surround abortion debate". CNN. In all, the Roe and Doe rulings impacted laws in 46 states.
  3. ^ Greenhouse (2005), p. 72.
  4. ^ "Roe v. Wade, 314 F. Supp. 1217 (N.D. Tex. 1970)". Casetext. June 17, 1970. Retrieved June 15, 2022.
  5. ^ a b Nowak & Rotunda (2012), § 18.29(a)(i).
  6. ^ a b c d e f g h Chemerinsky (2019), § 10.3.3.1, p. 887.
  7. ^ a b c d e f g h i j Nowak & Rotunda (2012), § 18.29(b)(i).
  8. ^ Chemerinsky (2019), § 10.3.3.1, p. 886: "Few decisions in Supreme Court history have provoked the intense controversy that has surrounded the abortion rulings."
  9. ^ a b Dworkin, Roger (1996). Limits: The Role of the Law in Bioethical Decision Making. Indiana University Press. pp. 28–36. ISBN 978-0253330758.
  10. ^ Epstein, Richard (January 1, 1973). "Substantive Due Process by Any Other Name: The Abortion Cases". University of Chicago Law Review. 1973: 159.
  11. ^ Ely (1973).
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Additional references

  • Ziegler, Mary (2015). After Roe: The Lost History of the Abortion Debate. Cambridge, Massachusetts: Harvard University Press.
  • Chemerinsky, Erwin (2019). Constitutional Law: Principles and Policies (6th ed.). New York: Wolters Kluwer. ISBN 978-1-4548-9574-9.
  • Ely, John Hart (1973). "The Wages of Crying Wolf: A Comment on Roe v. Wade". Yale Law Journal. 82 (5): 920–49. doi:10.2307/795536. JSTOR 795536. PMID 11663374.
  • Forsythe, Clarke (2013). Abuse of Discretion: The Inside Story of Roe v. Wade. Encounter Books. p. 98. ISBN 978-1594036927.
  • Garrow, David J. (1994). Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. New York: Macmillan. ISBN 978-0-02-542755-6.
wade, other, uses, disambiguation, 1973, landmark, decision, supreme, court, which, court, ruled, that, constitution, united, states, conferred, right, choose, have, abortion, decision, struck, down, many, federal, state, abortion, laws, caused, ongoing, abort. For other uses see Roe v Wade disambiguation Roe v Wade 410 U S 113 1973 1 was a landmark decision of the U S Supreme Court in which the Court ruled that the Constitution of the United States conferred the right to choose to have an abortion The decision struck down many federal and state abortion laws 2 3 and it caused an ongoing abortion debate in the United States about whether or to what extent abortion should be legal who should decide the legality of abortion and what the role of moral and religious views in the political sphere should be The decision also shaped debate concerning which methods the Supreme Court should use in constitutional adjudication Roe v WadeSupreme Court of the United StatesArgued December 13 1971Reargued October 11 1972Decided January 22 1973Full case nameJane Roe et al v Henry Wade District Attorney of Dallas CountyCitations410 U S 113 more 93 S Ct 705 35 L Ed 2d 147 1973 U S LEXIS 159ArgumentOral argumentReargumentReargumentDecisionOpinionCase historyPriorJudgment for plaintiffs injunction denied 314 F Supp 1217 N D Tex 1970 probable jurisdiction noted 402 U S 941 1971 set for reargument 408 U S 919 1972 SubsequentRehearing denied 410 U S 959 1973 HoldingThe Due Process Clause of the Fourteenth Amendment to the U S Constitution provides a fundamental right to privacy that protects a pregnant woman s liberty to abort her fetus This right is not absolute and has to be balanced against the government s interest in protecting women s health and protecting prenatal life Texas s statutes making it a crime to procure an abortion violated this right Court membershipChief Justice Warren E Burger Associate Justices William O Douglas William J Brennan Jr Potter Stewart Byron WhiteThurgood Marshall Harry BlackmunLewis F Powell Jr William RehnquistCase opinionsMajorityBlackmun joined by Burger Douglas Brennan Stewart Marshall PowellConcurrenceBurgerConcurrenceDouglasConcurrenceStewartDissentWhite joined by RehnquistDissentRehnquistLaws appliedU S Const Amend XIV Tex Code Crim Proc arts 1191 94 1196Overruled byPlanned Parenthood v Casey 1992 in part Dobbs v Jackson Women s Health Organization 2022 in full The underlying case was brought by Norma McCorvey under the legal pseudonym Jane Roe who in 1969 became pregnant with her third child McCorvey wanted an abortion but lived in Texas where abortion was illegal except when necessary to save the mother s life Her lawyers Sarah Weddington and Linda Coffee filed a lawsuit on her behalf in U S federal court against her local district attorney Henry Wade alleging that Texas s abortion laws were unconstitutional A special three judge court of the U S District Court for the Northern District of Texas heard the case and ruled in her favor 4 The parties appealed this ruling to the Supreme Court In January 1973 the Supreme Court issued a 7 2 decision in McCorvey s favor holding that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a fundamental right to privacy which protects a pregnant woman s right to an abortion The Court also held that the right to abortion is not absolute and must be balanced against the government s interests in protecting women s health and prenatal life 5 6 The Court resolved these competing interests by announcing a pregnancy trimester timetable to govern all abortion regulations in the United States The Court also classified the right to abortion as fundamental which required courts to evaluate challenged abortion laws under the strict scrutiny standard the most stringent level of judicial review in the United States 7 The Supreme Court s decision in Roe was among the most controversial in U S history 8 9 In addition to the dissent Roe was criticized by some in the legal community 9 10 11 including some in support of abortion rights who thought that Roe reached the correct result but went about it the wrong way 12 13 14 and some called the decision a form of judicial activism 15 Others argued that Roe did not go far enough as it was placed within the framework of civil rights rather than the broader human rights 16 Anti abortion politicians and activists sought for decades to restrict abortion or overrule the decision 17 polls into the 21st century showed that a plurality and a majority especially into the late 2010s to early 2020s opposed overruling Roe 18 Despite criticism of the decision the Supreme Court reaffirmed Roe s central holding in its 1992 decision Planned Parenthood v Casey 19 Casey overruled Roe s trimester framework and abandoned its strict scrutiny standard in favor of an undue burden test 5 20 In June 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 21 22 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 by the Dobbs majority s logic were not constitutionally protected 23 The decision was supported and opposed by the anti abortion and abortion rights movements in the United States respectively and was generally condemned by international observers and foreign leaders 24 25 26 Contents 1 Background 1 1 History of abortion laws in the United States 1 2 History of the case 2 Hearing the case 2 1 Postponement 2 2 Oral argument 2 3 Initial discussions 2 4 Drafting the opinion 3 Supreme Court decision 3 1 Opinion of the Court 3 1 1 Mootness 3 1 2 Abortion and right to privacy 3 1 3 Concurrences 3 1 4 Dissents 4 Reception 4 1 Death of Lyndon B Johnson 4 2 Support for Roe and abortion rights 4 2 1 1960s 1970s 4 2 2 21st century 4 3 Opposition to Roe 4 3 1 Condemnation by Catholic Bishops 4 3 2 Opposition to Roe but support for abortion rights 4 3 3 Opposition to both Roe and abortion rights 4 4 Responses within the legal profession 4 5 Later responses by those involved 4 5 1 Harry Blackmun 4 5 2 Norma McCorvey 4 5 3 Sarah Weddington 5 Subsequent judicial developments 5 1 Planned Parenthood v Danforth 5 2 Floyd v Anders 5 3 Webster v Reproductive Health Services 5 4 Planned Parenthood v Casey 5 5 Stenberg v Carhart 5 6 Gonzales v Carhart 5 7 Dubay v Wells 5 8 Whole Woman s Health v Hellerstedt 5 9 Box v Planned Parenthood 5 10 Whole Woman s Health v Jackson 5 11 Dobbs v Jackson Women s Health Organization 6 Role in politics 6 1 Presidential positions 6 2 Federal bills or laws regarding Roe 6 3 State laws regarding Roe 7 Legacy 7 1 Effects of legalization 7 2 Opinion polls 8 See also 9 References 10 Further reading 11 External linksBackgroundHistory of abortion laws in the United States According to historian James C Mohr there was an earlier acceptance of abortion and opposition to abortion including anti abortion laws only came into being in the 19th century 27 28 It was not always a crime and was generally not illegal until quickening which occurred between the fourth and sixth month of pregnancy 29 In 1821 Connecticut passed the first state statute legislating abortion in the United States 30 it forbade the use of poisons in abortion 28 After the 1840s there was an upsurge in abortions In the 19th century the medical profession was generally opposed to abortion which Mohr argues arose due to competition between men with medical degrees and women without one such as Madame Drunette The practice of abortion was one of the first medical specialities and was practiced by unlicensed people well off people had abortions and paid well The press played a key role in rallying support for anti abortion laws 28 According to James S Witherspoon a former briefing attorney for the Court of Appeals for the Third Supreme Judicial District of Texas abortion was not legal before quickening in 27 out of all 37 states in 1868 31 by the end of 1883 30 of the 37 states six of the ten U S territories and the Kingdom of Hawai i where abortion had once been common 32 33 had codified laws that restricted abortion before quickening 31 More than 10 states allowed pre quickening abortions before the quickening distinction was eliminated 31 and every state had anti abortion laws by 1900 30 According to Leslie J Reagan a professor of history and law at the University of Illinois pre quickening abortions were legal under common law like in early modern England and widely accepted in practice in the early United States 29 In the United States before specific statutes were made against it abortion was sometimes considered a common law offense such as by William Blackstone and James Wilson 34 35 In all states throughout the 19th and early 20th century pre quickening abortions were always considered to be actions without a lawful purpose This meant that if the mother died the individual performing the abortion was guilty of murder This aspect of common law regarded pre quickening abortions as a type of inchoate offense 36 Negative liberty rights from common law do not apply in situations caused by consensual or voluntary behavior which allowed for abortions of fetuses conceived in a consensual manner to be common law offenses 37 The majority opinion for Roe v Wade authored in Justice Harry Blackmun s name would later state that the criminalization of abortion did not have roots in the English common law tradition 38 and was thought to return to the more permissive state of pre 1820s abortion laws 28 Rose Fosco who before 1968 posed as a woman seeking an abortion during sting operations for the Chicago Police Department As an undercover officer she worked to break up illegal abortion rings 39 One purpose for banning abortion was to preserve the life of the fetus 40 another was to protect the life of the mother another was to create deterrence against future abortions 41 and another was to avoid injuring the mother s ability to have children Judges did not always distinguish between which purpose was more important 42 Rather than arresting the women having the abortions legal officials were more likely to interrogate them to obtain evidence against the individual doing the abortions 43 This law enforcement strategy was a response to juries which refused to convict women prosecuted for abortion in the 19th century 44 In 1973 Justice Blackmun s opinion stated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage 45 By 1971 elective abortion on demand was effectively available in Alaska California Hawaii New York Washington and Washington D C 46 Some women traveled to jurisdictions where it was legal although not all could afford to 47 In 1971 Shirley Wheeler was charged with manslaughter after Florida hospital staff reported her illegal abortion to the police Wheeler was one of a few women who were prosecuted by their states for abortion 48 She received a sentence of two years probation and as an option under her probation chose to move back into her parents house in North Carolina 43 The Playboy Foundation donated 3 500 to her defense fund and Playboy denounced her prosecution 49 The Boston Women s Abortion Coalition raised money and held a rally where attendees listened to speakers from the Women s National Abortion Action Coalition WONAAC 50 Her conviction was overturned by the Supreme Court of Florida 43 History of the case Sarah Weddington recruited Linda Coffee to help her with abortion litigation Their first plaintiffs were a married couple they joined after the woman heard Coffee give a speech 51 The intended suit would state abortions were medically necessary for the woman The woman had a neurochemical disorder and it was considered medically necessary that she not give birth or raise children yet they did not want to abstain from sex and contraception might fail 51 The attorneys were concerned about standing since the woman was not pregnant Weddington later wrote that they needed to find a pregnant Texas woman who wanted an abortion and would be willing to be a plaintiff 52 They also wanted to increase the likelihood that the panel selection would help them win in court They wanted to present their case to a three judge panel which included a judge they thought would be sympathetic 52 which was a possibility only by filing a case in Dallas 53 If either of the two cases they filed in Dallas were assigned favorably they intended to ask for the other one to be consolidated with it 52 Sarah Weddington upper left and Linda Coffee upper right were the two attorneys who represented the pseudonymous Jane Roe Norma McCorvey lower left against Henry Wade lower right At first Weddington was unsuccessful in finding a suitable pregnant woman 54 55 In June 1969 21 year old Norma McCorvey discovered she was pregnant with her third child 56 57 Ordinarily lawyers are not allowed to directly solicit clients without any prior relationship but McCorvey s situation qualified for an exception in the no solicitation rule which allows lawyers to solicit new clients for public interest cases 58 According to a sworn statement made in 2003 McCorvey asked if she had what was needed to be part of Weddington and Coffee s lawsuit She recounted being told Yes You re white You re young pregnant and you want an abortion 59 60 Both McCorvey s whiteness and her lower social class were crucial factors in the attorneys choice to have her as their plaintiff 61 McCorvey recounted that the lawyers asked if she thought abortion should be legal McCorvey said she did not know Weddington told her It s just a piece of tissue You just missed your period This convinced McCorvey that abortion should be legal 62 She agreed to let them represent her under the impression that she would be able to eventually get a legal abortion 63 She smoked an illegal drug and drank wine so she would not have to think about her pregnancy 64 McCorvey gave birth to a daughter at Dallas Osteopathic Hospital on June 2 1970 the baby Shelley Lynn Thornton was adopted by a couple in Texas 65 In 1970 Coffee and Weddington filed Roe v Wade as a lawsuit in the U S District Court for the Northern District of Texas on behalf of McCorvey under the legal pseudonym Jane Roe 66 and they also filed Does v Wade on behalf of the married couple 66 The defendant for both cases was Dallas County District Attorney Henry Wade who represented the State of Texas Weddington later stated that she saw Roe as part of a much larger effort by many attorneys whose collective interests she represented 67 James H Hallford was a physician who was in the process of being prosecuted for performing two abortions 68 The Court allowed him to join the suit as a physician intervenor on behalf of Jane Roe 69 One of the cases was assigned to a panel of judges which included Judge Sarah T Hughes who they thought would be sympathetic and the cases were consolidated 70 In accordance with the Court s rules two of the judges hearing the consolidated case were assigned on the basis of their judicial district and the third judge on the panel was a circuit court judge 71 chosen by the appellate Chief Justice of the United States 72 The consolidated lawsuit was heard by a three judge panel consisting of district court judges Sarah T Hughes and William McLaughlin Taylor Jr and appellate judge Irving Loeb Goldberg of the U S Court of Appeals for the Fifth Circuit 73 Hughes knew Coffee who clerked for her from 1968 1969 53 Additionally the backgrounds of two other judges also gave Weddington and Coffee hope they would be successful 74 On June 17 1970 the three judges unanimously 73 ruled in McCorvey s favor and declared the Texas law unconstitutional finding that it violated the right to privacy found in the Ninth Amendment The court relied on Justice Arthur Goldberg s 1965 concurrence in Griswold v Connecticut Yet the Court also declined to grant an injunction against enforcing the law and ruled against the married couple on the basis that they lacked standing 75 Since Wade said he would continue to prosecute people for performing abortions the lack of an injunction meant that McCorvey could not get an abortion 76 Hearing the casePostponement Roe v Wade reached the Supreme Court when both sides appealed in 1970 The case continued under the name Roe v Wade instead of being switched to Wade v Roe The justices delayed taking action on Roe and a closely related case Doe v Bolton until they had first decided certain other cases One case they decided first was Younger v Harris The justices felt the appeals raised difficult questions on judicial jurisdiction Another case was United States v Vuitch in which they considered the constitutionality of a District of Columbia statute which banned abortion except when the mother s life or health was endangered The Court upheld the statute on the grounds that the word health was not unconstitutionally vague and placed the burden of proof concerning dangers to the life or health of the mother on the prosecutor instead of on the person who had performed the abortion 77 Justice William O Douglas wrote a lengthy dissenting opinion to this case He argued that the right to marital privacy and the limitation of family size from Griswold v Connecticut also applied here although he acknowledged that on the other side is the belief of many that the fetus once formed is a member of the human family and that mere personal inconvenience cannot justify the fetus destruction He also challenged the majority opinion with a series of hypothetical questions asking whether health might also include the stigma of having an illegitimate child anxiety from the pregnancy being unwanted the physical work of raising a child the financial drain from the added expense of another child and far off health risks that may never actually materialize in a similar fashion to how risks were warded off with prophylactic appendectomy 78 Douglas dissent made a similar legal argument to the one used two years later in Roe v Wade 79 The following day after their decision was announced the court voted to hear both Roe and Doe 80 According to Blackmun Stewart felt the cases were a straightforward application of Younger v Harris and enough justices agreed to hear the cases in order to review whether they would be suitable for federal as opposed to only state courts 81 This sort of review was not about the constitutionality of abortion and would not have required evidence witnesses or a record of facts 82 The oral argument was scheduled by the full Court for December 13 1971 Before the Court could hear the oral argument Justices Hugo Black and John Marshall Harlan II retired Chief Justice Warren Burger asked Justice Potter Stewart and Justice Blackmun to determine whether Roe and Doe among others should be heard as scheduled They recommended that the Court continue on as scheduled 83 Oral argument As she began speaking for the oral argument Sarah Weddington was unaware that the Court had decided to hear the case in order to decide which courts had jurisdiction to hear it rather than as an attempt to overturn abortion laws in a broad ruling She began by bringing up constitutional reasons why the Court should overturn Texas s abortion law but Justice Stewart asked questions directed towards the jurisdiction question instead Weddington replied that she saw no problem with jurisdiction and continued to talk about a constitutional right to abortion 84 Overall she spent between 20 and 30 minutes discussing jurisdiction and procedure instead of constitutional issues 81 In his opening argument in defense of the abortion restrictions attorney Jay Floyd made what was later described as the worst joke in legal history 85 Appearing against two female lawyers Floyd began Mr Chief Justice and may it please the Court It s an old joke but when a man argues against two beautiful ladies like this they are going to have the last word His remark was met with cold silence one observer thought that Chief Justice Burger was going to come right off the bench at him He glared him down 86 McCorvey did not attend either of the oral arguments along with her two lawyers After talking McCorvey out of getting an illegal abortion and getting her name signed on an affidavit for the lawsuit Weddington did not speak again with McCorvey until four months after Roe was decided 87 Initial discussions The judicial replacements After the first argument session Burger assigned the task of writing the Court s opinions for both Roe and Doe to Blackmun 88 Douglas suggested to Blackmun that Burger assigned the opinions to him out of malicious intention but Blackmun disagreed He knew that Burger could not write it himself because the abortion was too controversial and his opinions might get rejected by the majority He also understood why the other justices could not be assigned to write the opinions Douglas was too liberal for the public to accept his word Likewise he might split the Court s vote by writing something radical In addition the quality of his opinions had suffered recently Brennan was the only Catholic on the Court and he would have to face Catholic political groups which were against abortion If Marshall wrote the opinions the ruling would be perceived as being directed towards African Americans and he would have to face the displeasure of African American political groups Stewart would have trouble going far enough in legalizing abortion 89 At this point Black and Harlan had been replaced by William Rehnquist and Lewis F Powell Jr but the first argument had already occurred before they became Supreme Court justices 90 Justice Blackmun worked on a preliminary opinion for Roe which argued that Texas s law was unconstitutionally vague 88 This approach accommodated the claims of some doctors who were concerned that prosecutors might disagree with them over what constituted life Blackmun thought this approach would be a good way to avoid controversy which would come with saying there was a fundamental right to abortion Brennan and Douglas disagreed with Blackmun and wrote to him that instead he needed to focus on privacy 91 After communicating with the other justices Blackmun felt that his opinion did not adequately reflect his liberal colleagues views 90 In March 1972 the court issued a ruling in Eisenstadt v Baird a landmark case which applied the earlier marital privacy right now also to unmarried individuals 92 Douglas wrote to Blackmun in May 1972 that he thought there were four judges who were definitely willing to rule in the majority himself Brennan Stewart and Marshall 93 Blackmun at one point thought all seven justices wanted to vote in the majority 94 In May 1972 Blackmun proposed that the case be reargued Justice Douglas threatened to write a dissent from the reargument order because he and the other liberal justices were suspicious that Rehnquist and Powell would vote to uphold the Texas abortion statutes He was coaxed out of the action by his colleagues and instead his dissent was merely mentioned in the reargument order without further statement or opinion 95 96 The case was reargued on October 11 1972 Weddington continued to represent the pseudonymous Jane Roe and Texas Assistant Attorney General Robert C Flowers replaced Jay Floyd for Texas 97 A June 1972 memo written by Douglas to his colleagues discussing the case was leaked to and published in The Washington Post before the decision was published 98 Drafting the opinion George Frampton law clerk to Justice Harry Blackmun during the 1971 72 term Blackmun continued to work on his opinions in both cases over the summer recess even though there was no guarantee that he would be assigned to write them again Over the recess he spent a week researching the history of abortion at the Mayo Clinic in Minnesota where he had worked in the 1950s He talked daily on the phone with George Frampton his 28 year old law clerk who stayed behind in Washington D C 99 Frampton researched the history of abortion using a book authored by Lawrence Lader the founding chairman of what is now called NARAL Pro Choice America Blackmun s papers made available since his death contain at least seven citations 100 for Lader s 1966 book Abortion 99 Chapter 16 of his book A Blueprint for Changing U S Abortion Laws predicted that if abortion were to be legalized the possibility of community opposition is slight 101 Lader also predicted that If such a theoretical case was carried to a high court perhaps even the U S Supreme Court and the judges confirmed a broad interpretation of the meaning of a threat to life undoubtedly a landmark in abortion decisions would be reached 102 The historical survey for Roe also referenced two articles by Cyril Means 103 who served as counsel to NARAL In the articles Means misrepresented the common law tradition in ways that were helpful to the Roe side 104 Roy Lucas the principal attorney assisting Weddington and Coffee had previously received a memo from his colleague David M Tundermann about Means s scholarship The memo stated that the conclusions in Means s articles sometimes strain credibility 104 It also stated 104 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 preserves the guise of impartial scholarship while advancing the proper ideological goals After the Court held the second argument session Powell said he would agree with Blackmun s conclusion but pushed for Roe to be the lead of the two abortion cases being considered Powell also suggested that the Court strike down the Texas law on privacy grounds Byron White was unwilling to sign on to Blackmun s opinion and Justice Rehnquist had already decided to dissent 105 During the drafting process the justices discussed the trimester framework at great length Powell had suggested that the point where the state could intervene be placed at viability which Thurgood Marshall supported as well 106 In an internal memo to the other justices before the majority decision was published Justice Blackmun wrote 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 107 In the same memo he suggested that the end of the first trimester seemed more likely to get support from other justices and allowed states the ability to adjust their statutes He was of the impression that doctors were concerned that recovering abortion patients would take up too many hospital beds and that abortion patients later than the first trimester were more likely to require hospital beds than those whose fetuses were aborted earlier 107 Contrary to the justices who preferred viability Douglas preferred the first trimester line 108 Stewart said the lines were legislative and wanted more flexibility and consideration paid to state legislatures though he joined Blackmun s decision 109 William Brennan proposed abandoning frameworks based on the age of the fetus and instead allowing states to regulate the procedure based on its safety for the mother 110 Supreme Court decisionOn January 22 1973 the Supreme Court issued a 7 2 decision in favor of Jane Roe Norma McCorvey holding that women in the United States had a fundamental right to choose whether to have abortions without excessive government restriction and striking down Texas s abortion ban as unconstitutional The decision was issued together with a decision in Roe s companion case Doe v Bolton which involved a similar challenge to Georgia s abortion laws 2 Larry Hammond a law clerk for Powell gave a Time reporter a copy of the decision on background expecting that it would be issued by the court before the next issue of Time was published however due to a delay in the decision s release the text of the decision appeared on newsstands a few hours before it was published by the court Burger demanded a meeting with Time s editors and punishment for the leaker 98 Powell refused Hammond s resignation on the grounds that Hammond had been double crossed by the reporter 111 Opinion of the Court Justice Harry Blackmun the author of Roe s majority opinion Justice Harry Blackmun wrote the majority opinion and was joined by Chief Justice Warren Burger and Justices Potter Stewart William J Brennan Jr William O Douglas Thurgood Marshall and Lewis F Powell Jr Mootness After reciting the facts of the case the Court s opinion first addressed procedure and justiciability This included mootness a legal doctrine that prevents American federal courts from hearing cases that have ceased to be live controversies because of intervening events 112 Under a normal application of the doctrine McCorvey s appeal would have been considered moot because she had already given birth to her child and therefore no longer had a pregnancy to abort 113 The Court concluded that an established exception to the mootness doctrine allows consideration of cases that are capable of repetition yet evading review 114 Blackmun noted that McCorvey might get pregnant again and pregnancy would normally conclude more quickly than an appellate process If that termination makes a case moot pregnancy litigation seldom will survive much beyond the trial stage and appellate review will be effectively denied 115 Abortion and right to privacy After dealing with mootness and standing the Court proceeded to the main issue of the case the constitutionality of Texas s abortion law The Court first surveyed abortion s status throughout the history of Roman law and the English and early American common law 6 It also reviewed the developments of medical procedures and technology used in abortions 6 After its historical surveys the Court introduced the concept of a constitutional right to privacy that it said had been intimated in earlier decisions such as Meyer v Nebraska and Pierce v Society of Sisters which involved parental control over childrearing and Griswold v Connecticut which involved the use of contraception 6 Then with virtually no further explanation of the privacy value 7 the Court ruled that regardless of exactly which provisions were involved the U S Constitution s guarantees of liberty covered a right to privacy that protected a pregnant woman s decision whether to abort a pregnancy 6 This right of privacy whether it be founded in the Fourteenth 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 to terminate her pregnancy Roe 410 U S at 153 116 The Court reasoned that outlawing abortions would infringe a pregnant woman s right to privacy for several reasons having unwanted children may force upon the woman a distressful life and future it may bring imminent psychological harm caring for the child may tax the mother s physical and mental health and because there may be distress for all concerned associated with the unwanted child 117 But at the same time the Court rejected the notion that this right to privacy was absolute 6 It held instead that women s abortion right must be balanced against other government interests such as protecting maternal health and protecting the life of the fetus 6 The Court held that these government interests were sufficiently compelling to permit states to impose some limitations on pregnant women s right to choose to have an abortion 6 A State may properly assert important interests in safeguarding health 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 We therefore conclude that the right of personal privacy includes the abortion decision but that this right is not unqualified and must be considered against important state interests in regulation Roe 410 U S at 154 Texas s lawyers had argued that limiting abortion to situations where the mother s life was in danger was justified because life began at the moment of conception and therefore the state s governmental interest in protecting prenatal life applied to all pregnancies regardless of their stage 7 The Court said that there was no indication that the Constitution s uses of the word person were meant to include fetuses and it rejected Texas s argument that a fetus should be considered a person with a legal and constitutional right to life 118 The Court observed that there was still great disagreement over when an unborn fetus becomes a living being 118 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 in this point in the development of man s knowledge is not in a position to speculate as to the answer Roe 410 U S at 159 119 To balance women s rights to privacy and state governments interests in protecting mothers health and prenatal life the Court created the trimester framework 120 121 During the first trimester when it was believed that the procedure was safer than childbirth the Court ruled that a state government could place no restrictions on women s ability to choose to abort pregnancies other than imposing minimal medical safeguards such as requiring abortions to be performed by licensed physicians 7 From the second trimester on the Court ruled that evidence of increasing risks to the mother s health gave states a compelling interest that allowed them to enact medical regulations on abortion procedures so long as they were reasonable and narrowly tailored to protecting mothers health 7 From the beginning of the third trimester on the point at which a fetus became viable under the medical technology available in the early 1970s the Court ruled that a state s interest in protecting prenatal life became so compelling that it could legally prohibit all abortions except where necessary to protect the mother s life or health 7 Having completed its analysis the Court concluded that Texas s abortion statutes were unconstitutional and struck them down A state criminal abortion statute of the current Texas type that excepts from criminality only a life saving 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 Roe 410 U S at 164 Concurrences Three justices from the majority filed concurring opinions in the case Justice Potter Stewart wrote a concurring opinion in which he said that even though the Constitution makes no mention of the right to choose to have an abortion without interference he thought the Court s decision was a permissible interpretation of the doctrine of substantive due process which says that the Due Process Clause s protection of liberty extends beyond simple procedures and protects certain fundamental rights 122 7 Justice William O Douglas s concurring opinion described his view that although the Court was correct to find that the right to choose to have an abortion was a fundamental right he thought it would have been better to derive it from the Ninth Amendment which states that the fact that a right is not specifically enumerated in the Constitution shall not be construed to mean that American people do not possess it rather than through the Fourteenth Amendment s Due Process Clause 122 7 Chief Justice Warren Burger wrote a concurrence in which he wrote that he thought it would be permissible to allow a state to require two physicians to certify an abortion before it could be performed 122 His concurrence also states 123 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 This has been interpreted as Chief Justice Burger thinking that medical standards and judgment would restrict the number of abortions Instead of the law restricting abortions to limited circumstances as pre Roe now doctors would get to do the restricting 124 This understanding of Roe appears to be related to several statements in the majority opinion 125 Justice Blackmun s majority opinion states 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 126 It also states 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 127 Six days prior to January 22 Justice Blackmun prepared 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 128 The unissued news release stated 108 128 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 These statements appear to indicate that the justices voting in the majority thought that patients had personal physicians Earlier in American history it was once common for people to have individual doctors but the nature of doctor patient relationship had already changed prior to Roe 129 Dissents Justices Byron White left and William Rehnquist right the two dissenters from Roe v Wade Justices Byron White and William Rehnquist dissented from the Court s decision 7 White s dissent which was issued with Roe s companion case Doe v Bolton argued that the Court had no basis for deciding between the competing values of pregnant women and unborn children 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 women and with scarcely any reason or authority for its action invests that right with sufficient substance to override most existing state abortion statutes The upshot 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 woman on the other hand As an exercise of raw judicial power the Court perhaps has authority to do what it does today but in my view its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court Doe 410 U S at 221 22 White J dissenting 130 White also argued that the legality of abortion for the most part should be left with the people and the political processes the people have devised to govern their affairs 131 Rehnquist s dissent compared the majority s use of substantive due process to the Court s repudiated use of the doctrine in the 1905 case Lochner v New York 7 He elaborated on several of White s points and asserted that the Court s historical analysis was flawed 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 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 Roe 410 U S at 174 76 Rehnquist J dissenting 132 133 134 From this historical record Rehnquist wrote 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 He concluded the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter 135 ReceptionWhen the decision was issued there was big news that day LBJ died 136 137 138 But nevertheless there was a strong response shortly afterwards 139 The Catholic Church condemned the ruling 137 Prominent organized groups that responded to Roe include National Association for the Repeal of Abortion Laws which became the National Abortion Rights Action League in late 1973 to reflect the Court s repeal of restrictive laws 140 and the National Right to Life Committee 141 But the most significant response was the annual March for Life rally in Washington held on or around January 22 The legal scholar Ronald Dworkin described it as undoubtedly the best known case the United States Supreme Court has ever decided 142 Death of Lyndon B Johnson Lyndon B Johnson left died on the very same day as Roe v Wade Chief Justice Warren Burger middle and Justice Thurgood Marshall right two of the justices in Roe s majority opinion led the Supreme Court tributes to the former president Former president Lyndon B Johnson died of a heart attack at his Texas ranch on the very same day of the ruling and the news of his passing overshadowed the ruling 137 138 NBC TV s Garrick Utley anchoring NBC Nightly News that evening said We have just received a bulletin from the Associated Press from Texas that reports that former president Lyndon Johnson is dead and that the ruling was the other major story of the day aside from the passing 143 CBS led off their evening newscast with the ruling and the news of the passing broke during the newscast 144 During the final ten minutes of that broadcast CBS reported on the death 144 Morning newspapers on January 23 1973 had the passing as the banner headlines and relegated the ruling to just a section on their front pages 137 138 However it was already January 23 in Europe and Asia most of Europe got the news after midnight Asia was just waking up 145 The opinions and views of each of the nine Supreme Court justices on the ruling dissolved into a common wave of shock and sorrow 146 Chief Justice Warren Burger and Justice Thurgood Marshall led the Supreme Court tributes 146 Burger said that history will appraise Lyndon B Johnson as a strong president when strength and courage were desperately needed 147 Marshall himself appointed by Johnson said He did not just mouth the words of equality unlike many others in high office he put them into action with all his personal vigor and with all the full authority of his office 148 In addition all nine justices attended the state funeral at National City Christian Church on January 25 149 Support for Roe and abortion rights 1960s 1970s In the 1960s there was an alliance between the population control movement and the abortion rights movement in the United States 150 Abortion rights were especially supported by younger women within the population control movement 151 The cooperation was mostly due to feminists who wanted some of the popularity already enjoyed by the population control movement In addition population control advocates thought that legalizing abortion would help solve the coming population crisis that demographers had projected 150 In 1973 Hugh Moore s Population Crisis Committee and John D Rockefeller III s Population Council both publicly supported abortion rights following Roe 152 Previously public support for abortion rights within the population control movement instead came from less established organizations such as Zero Population Growth 153 An exception was Planned Parenthood World Population which supported repealing all laws against abortion in 1969 154 Together population control and abortion rights advocates voiced the benefits of legalized abortion such as smaller welfare costs fewer illegitimate births and slower population growth 150 At the same time the use of these arguments put them at odds with civil rights movement leaders and Black Power activists who were concerned that abortion would be used to eliminate non whites 150 H Rap Brown denounced abortion as black genocide 155 and Dick Gregory said that his answer to genocide quite simply is eight Black kids and another one on the way 156 Soon after Roe the population control movement suffered setbacks which caused the movement to lose political support and instead appear divisive 157 On June 27 1973 a lawsuit was filed concerning the Relf sisters 14 year old Minnie Lee and her 12 year old sister Alice Lee A worker at a federally funded family planning clinic lied to their illiterate mother saying they would get birth control shots Instead the Relf sisters were sterilized without their knowledge or consent 158 During the next fifteen months 80 additional women came forward about their forced sterilizations all belonging to minority races Concerns rose that abortions would also become compulsory 159 During the 1974 World Population Conference in Bucharest Romania most developing nations argued that the developed nations focus on population growth was an attempt to avoid solving the deeper causes of underdevelopment such as the unequal structure of international relations 160 Instead they wanted more favorable terms under the New International Economic Order A draft plan with fertility targets was strongly opposed by the developing countries which surprised the delegations from the United States Canada and Great Britain 160 The final plan omitted fertility targets and instead stated A population policy may have a certain success if it constitutes an integral part of socio economic development 161 As members questioned the political benefits of population control rhetoric the abortion rights movement distanced itself from the population control movement 162 In October 1973 Robin Elliott circulated a memo to other Planned Parenthood members concerning opposition to Planned Parenthood s credibility in its reference to the population problem 162 Instead she thought they should use Roe inspired rhetoric about the reaffirmation of commitment to freedom of choice in parenthood 162 By 1978 a NARAL handbook denounced population control 163 21st century 2021 Women s March where many speakers bemoaned a looming threat to Roe 164 Into the 21st century advocates of Roe describe it as vital to the preservation of women s rights personal freedom bodily integrity and privacy Advocates have also reasoned that access to safe abortion and reproductive freedom generally are fundamental rights Supporters of Roe contend that even if abortion rights are also supported by another portion of the constitution the decision in 1973 accurately founds the right in the Fourteenth Amendment Others support Roe despite concern that the fundamental right to abortion is found elsewhere in the Constitution but not in the portions referenced in the 1973 decision 165 166 They also tend to believe that the power balance between men and women is unequal and that issues like access to birth control and political representation affect women s equality 167 Opinion polls in late 2021 indicated that while a majority of Americans oppose overturning Roe 168 a sizable minority opposed overturning Roe but also desired to make abortion illegal in ways that Roe would not permit This was attributed to poll respondents misunderstanding Roe v Wade or misinterpreting the poll question 169 18 2018 2019 polls showed that while 60 percent of Americans generally support abortion in the first trimester this drops to 20 percent for the second trimester even though Roe protects the right to abortion until the last weeks of the second trimester and at the same time 69 percent said they would not like to see Roe overturned compared to 29 percent who said they would like to see Roe overturned 18 Another poll showed that 43 percent of those who said abortion should be illegal in most or all cases opposed overturning Roe while 26 percent of those who said abortion should be legal in most or all cases supported overturning Roe 170 Polls also found that men and women have similar views on abortion 171 which are linked to how people think about motherhood sex and women s social roles supporters of Roe and abortion rights tend to see women s ability to make decisions about their bodies as fundamental to gender equality 167 Most polls in the late 2010s and early 2020s showed overwhelming support 18 at between 85 and 90 percent among Americans that abortion should be legal in at least some circumstances which varies or drops depending on the specifics 18 172 173 A January 2022 CNN poll found a 59 majority of Americans want their state to have laws that are more permissive than restrictive on abortion if Roe is overturned 20 want their state to ban abortion entirely and another 20 want it to be restricted but not banned 173 In two March 2022 polls between 61 and 64 percent of Americans said abortion should be legal in most or all cases while between 35 and 37 percent said abortion should be illegal in most or all cases 170 174 A May 2022 Gallup poll showed that 50 of Americans thought abortions should be legal under certain circumstances with 35 saying it should be legal under any circumstances and 15 saying it should be illegal in all circumstances 175 as well as a record number of Americans who identify as pro choice 176 Before Roe was overturned in Dobbs v Jackson Women s Health Organization a majority of Americans thought that Roe was safe and would not be overturned Since the draft s leaks showed Roe to be overturned in Dobbs as happened in June 2022 abortion became a concern and a very important issue for Democrats who previously lagged behind Republicans on this 177 some Americans in particular liberals but also a few conservatives may have become more aware of the popular support for Roe which they had previously understated 178 In June 2022 Gallup reported that a 61 majority of Americans say abortion should be legal in all or most cases while 37 say abortion should be illegal in all or most cases It also recorded the highest partisan divide since 1995 175 compared to the mid 1970s and throughout the 1980s when both Democrats and Republicans were closer on the issue 179 That same month the Congregation L Dor Va Dor filed a lawsuit against a new law in Florida that would outlaw abortion after 15 weeks of pregnancy including in cases of rape or incest Unlike other legal challenges to abortion restrictions in the United States that generally rely on the right to privacy established by Roe the synagogue argued that Florida s abortion law violates religious freedom as Jewish law says that life begins at birth not at conception 180 Opposition to Roe Condemnation by Catholic Bishops Terence Cardinal Cooke archbishop of New York left along with his Philadelphia counterpart John Cardinal Krol pictured with Ronald Reagan right issued statements that the Catholic Church condemned Roe v Wade The Catholic Church condemned the ruling by the Supreme Court 137 Blackmun wrote on his dairy Abortion flak 3 Cardinals Vatican Rochester wires 137 John Cardinal Krol the archbishop of Philadelphia who was also the president of the United States Conference of Catholic Bishops and Terence Cardinal Cooke the archbishop of New York both issued statements condemning the ruling 181 Krol called the ruling an unspeakable tragedy for this nation that sets in motion developments which are terrifying to contemplate 181 Cooke called the decision a horrifying action and added 181 How many millions of children prior to their birth will never live to see the light of today because of the shocking action of the majority of the United States Supreme Court today 181 Opposition to Roe but support for abortion rights Some supporters of abortion rights oppose Roe v Wade on the grounds that it laid a foundation for abortion in civil rights rather than in human rights which are broader and would require government entities to take active measures to ensure every woman has access to abortion 16 This particular position is indicated by the use of rhetoric concerning reproductive justice which replaces earlier rhetoric centered around choice such as the pro choice label 182 Reproductive justice proponents contend that factors permitting choice are unequal thus perpetuating oppression and serving to divide women 183 Reproductive justice advocates instead want abortion to be considered an affirmative right that the government would be obligated to guarantee equal access to even if the women seeking abortions are nonwhite poor or live outside major metropolitan areas 184 With a broader interpretation of the right to an abortion it would be possible to require all new obstetricians to be in favor of abortion rights lest as professionals they employ conscience clauses and refuse to perform abortions 185 In the 1989 decision of Webster v Reproductive Health Services the Supreme Court ruled against an affirmative right to nontherapeutic abortions and noted that states would not be required to pay for them 186 Some in academia have equated the denial of abortion rights to compulsory motherhood and reason that because of this abortion bans violate the Thirteenth Amendment When women are compelled to carry and bear children they are subjected to involuntary servitude in violation of the Thirteenth Amendment Even if the woman has stipulated to have consented to the risk of pregnancy that does not permit the state to force her to remain pregnant 165 In 1993 a district court rejected an attempt to justify abortion rights apart from Roe and instead upon the basis that pregnancy and childrearing constituted involuntary servitude 187 Opposition to both Roe and abortion rights Nellie Gray left started March for Life to overturn Roe v Wade On right the rally in 2020 Every year on the anniversary of the decision opponents of abortion march up Constitution Avenue to the Supreme Court Building in Washington D C in the March for Life 188 Around 250 000 people attended the march until 2010 189 190 Estimates put the 2011 and 2012 attendances at 400 000 each 191 and the 2013 March for Life drew an estimated 650 000 people 192 The march was started in October 1973 by Nellie Gray and the first march took place on January 22 1974 to mark the first anniversary of Roe v Wade Opponents of Roe say that the decision lacks a valid constitutional foundation 193 Like the dissenters in Roe they maintain that the Constitution is silent on the issue and that proper solutions to the question would best be found via state legislatures and the legislative process rather than through an all encompassing ruling from the Supreme Court 194 Another argument against the Roe decision as articulated by former president Ronald Reagan is that in the absence of consensus about when meaningful life begins it is best to avoid the risk of doing harm 195 In response to Roe v Wade most states enacted or attempted to enact laws limiting or regulating abortion such as laws requiring parental consent or parental notification for minors to obtain abortions spousal mutual consent laws spousal notification laws laws requiring abortions to be performed in hospitals not clinics laws barring state funding for abortions laws banning intact dilation and extraction also known as partial birth abortion laws requiring waiting periods before abortions and laws mandating that women read certain types of literature and watch a fetal ultrasound before undergoing an abortion 196 In 1976 Congress passed the Hyde Amendment barring the federal government from using Medicaid to fund abortions except in cases of rape incest or a threat to the life of the mother The Supreme Court struck down some state restrictions in a long series of cases stretching from the mid 1970s to the late 1980s but upheld restrictions on funding including the Hyde Amendment in the case of Harris v McRae 1980 197 Some opponents of abortion maintain that personhood begins at fertilization or conception and should therefore be protected by the Constitution 166 the dissenting justices in Roe instead wrote that decisions about abortion should be left with the people and to the political processes the people have devised to govern their affairs 198 Responses within the legal profession Liberal and feminist legal scholars have had various reactions to Roe not always giving the decision unqualified support One argument is that Justice Blackmun reached the correct result but went about it the wrong way 12 Another is that the end achieved by Roe does not justify its means of judicial fiat 14 In 1997 Justice Blackmun grave left gave his papers to the Library of Congress under terms concerning when his papers including notes tracing the development of the Roe opinion would be released To accommodate demand on the day of the final release to the general public five years after his death the library set up a temporary media center with 18 workstations The two employees in the foreground are from CNN 199 David Garrow said that the decision in Roe and also Doe v Bolton owed a great amount of their substance and language to Justice Blackmun s law clerks George Frampton and Randall Bezanson He thought the extent of their contributions were remarkable and that the clerks exhibited an unusually assertive and forceful manner in voicing their views to Justice Blackmun In his research it was the earliest significant example he found of this behavior pattern which grew more consistent later on In Garrow s evaluation the clerks contributions were historically significant and perhaps decisive in shaping the two decisions 200 In response to Garrow Edward Lazarus said that Justice Blackmun s later clerks like himself did not need as much direction on reproductive rights since they had Justice Blackmun s prior opinions to draw from Lazarus thought that on at least some occasions when legal formulations were created for opinions to be published in Justice Blackmun s name the justice himself was not engaged in originating every significant thought pattern that they employed Lazarus agreed that Garrow s depiction of how the trimester framework came about was an example of one of these occasions 200 He concluded The problem of excessive clerk delegation was less serious in Blackmun s chambers than Garrow suggests but is also more commonplace among the justices The modern Supreme Court has deep problems in its decisional culture and the overuse of law clerks is an aspect of this 201 Justice John Paul Stevens while agreeing with the decision suggested that it should have been more narrowly focused on the issue of privacy According to Stevens if the decision had avoided the trimester framework and simply stated that the right to privacy included a right to choose abortion it might have been much more acceptable from a legal standpoint 202 Before joining the Court Justice Ruth Bader Ginsburg criticized the decision for venturing too far in the change it ordered 203 Had the decision been limited in scope to only permit abortion during certain circumstances physicians might have been less pleased with the decision but the legislative trend might have continued in the direction in which it was headed 204 After becoming a Supreme Court justice Ginsburg faulted the Court s approach for being about a doctor s freedom to practice his profession as he thinks best It wasn t woman centered It was physician centered 205 Justice Ginsburg thought that Roe was originally intended to complement Medicaid funding for abortions but this did not happen 206 About Harris v McRae which upheld restrictions on Medicaid abortion funding she said 206 Yes the ruling about that surprised me Frankly I had thought that at the time Roe was decided there was concern about population growth and particularly growth in populations that we don t want to have too many of So that Roe was going to be then set up for Medicaid funding for abortion Which some people felt would risk coercing women into having abortions when they didn t really want them But when the court decided McRae the case came out the other way And then I realized that my perception of it had been altogether wrong Watergate prosecutor Archibald Cox thought the failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations whose validity is good enough this week but will be destroyed with new statistics upon the medical risks of child birth and abortion or new advances in providing for the separate existence of a fetus Neither historian nor layman nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution 207 In a highly cited Yale Law Journal article published in the months after the decision 15 the American legal scholar John Hart Ely criticized Roe as a decision that was disconnected from American constitutional law 208 What is frightening about Roe is that this super protected right is not inferable from the language of the Constitution the framers thinking respecting the specific problem in issue any general value derivable from the provisions they included or the nation s governmental structure The problem with Roe is not so much that it bungles the question it sets itself but rather that it sets itself a question the Constitution has not made the Court s business Roe is bad because it is bad constitutional law or rather because it is not constitutional law and gives almost no sense of an obligation to try to be 209 American constitutional law scholar Laurence Tribe said One of the most curious things about Roe is that behind its own verbal smokescreen the substantive judgment on which it rests is nowhere to be found 210 Centrist liberal law professors Alan Dershowitz 211 Cass Sunstein 212 and Kermit Roosevelt III have also expressed disappointment with Roe v Wade 13 Jeffrey Rosen 213 214 as well as Michael Kinsley 215 echo Ginsburg arguing that a legislative movement would have been the correct way to build a more durable consensus in support of abortion rights William Saletan wrote Blackmun s papers vindicate every indictment of Roe invention overreach arbitrariness textual indifference 216 Benjamin Wittes argued that Roe disenfranchised millions of conservatives on an issue about which they care deeply 217 Edward Lazarus a former Blackmun clerk who loved Roe s author like a grandfather wrote As a matter of constitutional interpretation and judicial method Roe borders on the indefensible Justice Blackmun s opinion provides essentially no reasoning in support of its holding And in the almost 30 years since Roe s announcement no one has produced a convincing defense of Roe on its own terms 218 Richard Epstein thought that the majority opinion relied on a book written by William Lloyd Prosser about tort law when it stated that it is said recovery of damages was allowed only if the fetus was viable or at least quick when the injuries were sustained 219 He compared this to what was in fact written in the book 220 which was that when actually faced with the issue for decision almost all of the jurisdictions have allowed recovery even though the injury occurred during the early weeks of pregnancy when the child was neither viable nor quick 221 Matt Bruenig lawyer and founder of the People s Policy Project criticized Roe as being weaker than normal and observed that similarly broad interpretations of the Constitution could be used to argue the opposite outcome saying right now we have a constitutional right to an abortion you could also constitutionally ban abortion If you wanted to someone could bring a case file it in a district court hit the appeal button twice and then if you get five judges together the opinion would be the easiest thing in the world to write You would say the Fourteenth Amendment protects the right to life liberty and property without due process and all that shit So we re looking at that and we think that abortion takes a life and so we think that in fact states may not permit abortion So you could constitutionally ban it and say that no state or federal government is allowed to legalize abortion 222 The assertion that the Supreme Court was making a legislative decision is often repeated by opponents of the ruling 223 The viability criterion was still in effect although the point of viability changed as medical science found ways to help premature babies survive 224 Later responses by those involved Harry Blackmun Justice Blackmun who authored the Roe decision subsequently had mixed feelings about his role in the case During a 1974 television interview he stated that Roe will be regarded as one of the worst mistakes in the court s history or one of its great decisions a turning point 225 In a 1983 interview for a newspaper journalist he responded that he was mildly annoyed at those law professors included who personalize it because it was a decision of the court not my decision There were seven votes As a Methodist he felt hurt that Methodist pastors wrote condemning letters to him but as time passed the letters did not hurt as much anymore In defense he responded People misunderstand I am not for abortion I hope my family never has to face such a decision noting that I still think it was a correct decision because we were deciding a constitutional issue not a moral one 226 He described Roe as a no win case and predicted that fifty years from now depending on the fate of the proposed constitutional amendment abortion probably will not be as great a legal issue I think it will continue to be a moral issue however 225 He reflected that his role in the decision meant he was most known as the author of the abortion decision His response was that we all pick up tags I ll carry this one to my grave and so be it 226 In 1987 Justice Blackmun explained in a letter to Chief Justice Rehnquist 227 I remember that the old Chief appointed a screening committee chaired by Potter 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 In 1991 he regretted how the Court decided to hear Roe and Doe in a televised interview It was a serious mistake We did a poor job I think the committee should have deferred them until we had a full Court 228 In 1992 he stood by the analytical framework he established in Roe during the subsequent Casey case 229 He often gave speeches and lectures promoting Roe v Wade and criticizing Roe s critics 230 Norma McCorvey Norma McCorvey would later claim that during the 1970s although some years after Roe she had a nightmare concerning little babies lying around with daggers in their hearts This was the first of a series of recurring nightmares which kept her awake at night 231 She became worried and wondered What really had I done 232 and Well how do they kill a baby inside a mother s stomach anyway McCorvey later reflected 233 I couldn t get the thought out of my mind I realize it sounds very naive especially for a woman who had already conceived and delivered three children Though I had seen and experienced more than my 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 anyone else During the years after Roe although not immediately McCorvey joined with and accompanied others in the abortion rights movement During this time McCorvey stated that she had publicly lied about being raped and apologized for making the false rape claim 234 235 Norma McCorvey became part of the movement against abortion from 1995 until shortly before her death in 2017 236 In 1998 she testified to Congress It was my pseudonym Jane Roe which had been used to create the right to abortion out of legal thin air But Sarah Weddington and Linda Coffee never told me that what I was signing would allow women to come up to me 15 20 years later and say Thank you for allowing me to have my five or six abortions Without you it wouldn t have been possible Sarah never mentioned women using abortions as a form of birth control We talked about truly desperate and needy women not women already wearing maternity clothes 237 Judge Edith Jones In 2002 along with Sandra Cano Mary Doe from Doe v Bolton and Bernard Nathanson a co founder of NARAL Pro Choice America McCorvey appeared in a television advertisement intended to get the Bush administration to nominate members to the Supreme Court who would oppose abortion 238 As a party to the original litigation she sought to reopen the case in U S District Court in Texas to have Roe v Wade overturned However the Fifth Circuit decided that her case was moot in McCorvey v Hill 239 In a concurring opinion Judge Edith Jones agreed that McCorvey was raising legitimate questions about emotional and other harm suffered by women who have had abortions about increased resources available for the care of unwanted children and about new scientific understanding of fetal development However Jones said she was compelled to agree that the case was moot 240 241 On February 22 2005 the Supreme Court refused to grant a writ of certiorari and McCorvey s appeal ended 242 In an interview shortly before her death McCorvey stated that she had taken an anti abortion position because she had been paid to do so and that her campaign against abortion had been an act She also stated that it did not matter to her if women wanted to have an abortion and they should be free to choose 243 244 Rob Schenck a Methodist pastor and activist who once had anti abortion views stated that he and others helped entice McCorvey to claim she changed sides and also stated that what they had done with her was highly unethical and he had profound regret over the matter 245 Frank Pavone a priest with whom McCorvey talked to after the interview reflected after her death that There was no indication whatsoever at the end of her life that she had given up her pro life positions Pavone stated that following the interview McCorvey talked positively with him about a message she wanted him to convey at the next March for Life The message concerned encouraging young people to oppose abortion 246 Sarah Weddington After arguing in Roe v Wade at the age of 26 Sarah Weddington was elected to the Texas House of Representatives for three terms Weddington also was general counsel for the U S Department of Agriculture an assistant to President Jimmy Carter 247 lecturer at the Texas Wesleyan University School of Law and speaker and adjunct professor at the University of Texas at Austin 248 In a 1993 speech for the Institute for Educational Ethics in Oklahoma Weddington discussed her conduct during Roe and stated My conduct may not have been totally ethical But I did it for what I thought were good reasons 249 In 1998 she said that the lack of doctors to abort fetuses could undermine Roe When I look back on the decision I thought these words had been written in granite But I ve learned it was not granite It was more like sandstone The immediate problem is where will the doctors come from 250 Weddington died on December 26 2021 251 Subsequent judicial developmentsRoe is embedded in a long line of cases concerning personal liberty in the realm of privacy since Roe was based on individual liberty cases concerning privacy like Meyer v Nebraska 1923 Griswold v Connecticut 1965 Loving v Virginia 1967 and Eisenstadt v Baird 1972 252 253 254 and became a foundation for individual liberty cases concerning privacy like Lawrence v Texas 2003 and Obergefell v Hodges 2015 253 255 Two of the cases Justice Marshall discussed in his Rodriguez dissent Two months after the decision in Roe the Court issued a ruling about school funding in San Antonio Independent School District v Rodriguez 256 The majority opinion cited Roe v Wade to assert that privacy itself was a fundamental right while procreation implicitly counted as among the rights of personal privacy protected under the Constitution 257 In his dissenting opinion Justice Thurgood Marshall stated that Roe v Wade reaffirmed its initial decision in Buck v Bell and noted where Buck was cited in Roe 258 He found Roe to be a continuation of the Court s practice of granting only a limited stature to the right to procreate 259 since the Court s decision treated procreation as less important than the right to privacy 258 He observed that although past decisions showed strong concern against the state discriminating against certain groups concerning procreation and certain other rights the Court has never said or indicated that these are interests which independently enjoy full blown constitutional protection 260 Instead in Roe the importance of procreation has indeed been explained on the basis of its intimate relationship with the constitutional right of privacy 258 Justice Marshall thought that the method used in Rodriguez for determining which rights were more fundamental was wrong and proposed a different method which would result in procreation receiving greater legal protection 261 The legal interaction between Roe v Wade the Fourteenth Amendment as understood post Roe and changing medical technology and standards caused the development of civil suits for wrongful birth and wrongful life claims 262 Not all states permit a parent to sue for wrongful birth 263 or a child to sue for wrongful life 264 The constitutionality of wrongful life claims is controversial within the legal profession even for states which currently allow them 265 Pre Roe a state court dismissed a lawsuit making both a wrongful birth and life claim which was unsuccessfully appealed to the Supreme Court of New Jersey 266 Prior to Roe the Chancery Division of the Superior Court of New Jersey found that a pregnant Jehovah s Witness woman could be ordered to submit to lifesaving blood transfusions due to the state s compelling interest to save her life and the life of her unborn child 267 The Court appointed a legal guardian to represent the unborn child and ordered the guardian to consent to blood transfusions and to seek such other relief as may be necessary to preserve the lives of the mother and the child 267 After Roe the Fifth District Appellate Court in Illinois ruled that medical professionals had wrongly transfused blood into a pregnant Jehovah s Witness woman on the basis from Roe that the state s important and legitimate interest becomes compelling at viability and her fetus was not yet viable 268 269 President Reagan who supported legislative restrictions on abortion began making federal judicial appointments in 1981 Reagan denied that there was any litmus test I have never given a litmus test to anyone that I have appointed to the bench I feel very strongly about those social issues but I also place my confidence in the fact that the one thing that I do seek are judges that will interpret the law and not write the law We ve had too many examples in recent years of courts and judges legislating 270 In addition to Justices White and Rehnquist Reagan appointee Justice Sandra Day O Connor began dissenting from the Court s abortion cases arguing in 1983 that the trimester based analysis devised by the Roe Court was unworkable 271 Shortly before his retirement Chief Justice Warren Burger suggested in 1986 that Roe be reexamined 272 the associate justice who filled Burger s place on the Court Justice Antonin Scalia vigorously opposed Roe Concern about overturning Roe played a major role in the defeat of Robert Bork s nomination to the Court in 1987 the man eventually appointed to replace Roe supporter Justice Lewis Powell was Justice Anthony Kennedy Oral hearing for the German Constitutional Court s abortion decision November 18 1974 The justices voting in the majority on the Federal Constitutional Court in pre unification West Germany rejected the trimester framework in the German Constitutional Court abortion decision 1975 on the basis that development during pregnancy is a continuous whole rather than made up of three trimesters The Court found that the right to life extends also to the unborn and that life begins on the fourteenth day after conception 273 It also found that the liberties of pregnant mothers were qualified by the existence of another life inside them The Court found that A compromise which guarantees the protection of the life of the one about to be born and permits the pregnant woman the freedom of abortion is not possible since the interruption of pregnancy always means the destruction of the unborn life 274 It ruled that the fetus must be protected and the first responsibility for this lies with the mother with a second responsibility in the hands of the legislature 275 The Court allowed for a balancing of rights between the mother and unborn child but required that the rights of each be considered within a framework which acknowledged the supreme fundamental value of human life Legislation allowing abortion could be constitutional if the rights of the unborn persons were acknowledged in this manner 276 Two minority justices in the ruling for the German Constitutional Court abortion decision in 1975 remarked that the Supreme Court of the United States has even regarded punishment for the interruption of pregnancy performed by a physician with the consent of the pregnant woman in the first third of pregnancy as a violation of fundamental rights This would according to German constitutional law go too far indeed 274 In 1988 the Supreme Court of Canada used the rulings in both Roe and Doe v Bolton as grounds to find Canada s federal law limiting abortions to certified hospitals unconstitutional in R v Morgentaler 277 Planned Parenthood v Danforth Burger Court in 1976 In Planned Parenthood v Danforth 428 U S 52 1976 278 the plaintiffs challenged a Missouri statute which regulated abortion In the regulations for abortions on demand the state required prior written consent from a parent if the patient was a minor or a spouse if the patient was married For pregnancies at 12 weeks and later the statute also banned saline abortions 279 in which chemicals are injected into the amniotic sac to burn the fetus 280 The portions of the statute involving parental or spousal consent and prohibiting saline abortions were struck down 279 Floyd v Anders In Floyd v Anders 440 F Supp 535 D S C 1977 South Carolina attempted to prosecute a doctor for illegal abortion and murder after he attempted to abort an African American boy at 25 weeks During the abortion the boy was born alive and survived for 20 days before dying 281 His prosecution was blocked by Judge Clement Haynsworth and shortly afterwards by a unanimous three judge panel for the U S District Court for the District of South Carolina Judge Haynsworth writing for the panel stated Indeed the Supreme Court declared the fetus in the womb is neither alive nor a person within the meaning of the Fourteenth Amendment 282 John T Noonan criticized this from an anti abortion perspective stating that Judge Haynsworth had replaced the Supreme Court s test of potential ability to live with a new test of actual ability to live indefinitely He also had spelled out what was implied in Roe v Wade but never actually stated there For the American legal systems the fetus in the womb was not alive 283 The standard in Roe for viability outside the womb required a capability of meaningful life 284 Without this capability the state had no compelling important and legitimate interest in potential life 284 Webster v Reproductive Health Services In a 5 4 decision in 1989 s Webster v Reproductive Health Services Chief Justice Rehnquist writing for the Court declined to explicitly overrule Roe because none of the challenged provisions of the Missouri Act properly before us conflict with the Constitution In particular the Court found that the ability to have a nontherapeutic abortion was not an affirmative right of the sort that required the state to pay for it 186 In this case the Court upheld several abortion restrictions and modified the Roe trimester framework 186 In concurring opinions Justice O Connor refused to reconsider Roe and Justice Antonin Scalia criticized the Court and Justice O Connor for not overruling Roe 186 Justice Blackmun stated in his dissent that Justices White Kennedy and Rehnquist were callous and deceptive that they deserved to be charged with cowardice and illegitimacy and that their plurality opinion foments disregard for the law 186 White had recently opined that the majority reasoning in Roe v Wade was warped 272 Planned Parenthood v Casey 1991 1993 Rehnquist Court During initial deliberations for Planned Parenthood v Casey 1992 an initial majority of five justices Rehnquist White Scalia Kennedy and Thomas were willing to effectively overturn Roe Justice Kennedy changed his mind after the initial conference 285 and Justices O Connor Kennedy and Souter joined Justices Blackmun and Stevens to reaffirm the central holding of Roe 286 but instead of justifying the liberty to abort as being based on privacy as in Roe it justified the liberty in a broader manner The opinion asserted an individual s liberty to choose concerning family life and also protection from legal enforcement intended to maintain traditional sex roles writing 287 Our law affords constitutional protection to personal decisions relating to marriage procreation contraception family relationships child rearing and education 288 and against the state insisting 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 289 The plurality of justices stated that abortion related legislation should be reviewed based on the undue burden standard instead of the strict scrutiny standard from Roe 290 The plurality also found that a fetus was now viable at 23 or 24 weeks rather than at the 28 week line from 1973 291 They also felt that fetal viability was more workable than the trimester framework 292 They abandoned the trimester framework due to two basic flaws in its formulation it misconceives the nature of the pregnant woman s interest and in practice it undervalues the State s interest in potential life as recognized in Roe 293 Only Justice Blackmun wanted to retain Roe entirely and issue a decision completely in favor of Planned Parenthood 229 Prior to this he had considered a Pennsylvania viability based law to be unconstitutionally vague in his majority opinion for Colautti v Franklin 294 Justice Scalia s dissent asserted that abortion is not a liberty protected by the Constitution for the same reason bigamy was not protected either because the Constitution does not mention it and because longstanding traditions have permitted it to be legally proscribed 295 He also asked 296 Precisely why is it that at the magical second when machines currently in use though not necessarily available to the particular woman are able to keep an unborn child alive apart from its mother the creature is suddenly able under our Constitution to be protected by law whereas before that magical second it was not That makes no more sense than according infants legal protection only after the point when they can feed themselves Stenberg v Carhart The Rehnquist Court in 1994 the members pictured are the ones who decided Stenberg v Carhart Justice Ginsburg replaced Justice White During the 1990s Nebraska enacted a law banning partial birth abortion The law allowed another second trimester abortion procedure known as dilation and evacuation In 2000 the Supreme Court struck down the law by a 5 4 vote in Stenberg v Carhart with Justice Stephen Breyer writing for the majority that sometimes partial birth abortion would be the safest procedure 297 Justice O Connor wrote a concurrence stating Nebraska was actually banning both abortion methods 298 Justices Ginsburg and Stevens joined each other s concurrences Justice Stevens stated that the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other is simply irrational 299 Justice Ginsburg stated that the law does not save any fetus from destruction for it targets only a method of performing abortion 300 Justice Thomas s dissent stated The partial birth gives the fetus an autonomy which separates it from the right of the woman to choose treatments for her own body 301 Justice Scalia joined Justice Thomas s dissent and also wrote his own stating that partial birth abortion is so horrible that the most clinical description of it evokes a shudder of revulsion and that this case proved Casey was unworkable 302 Chief Justice Rehnquist joined the two dissents by Justices Scalia and Thomas 303 Justice Kennedy who had co authored Casey dissented in Stenberg He described in graphic detail exactly how a fetus dies while being dismembered during a dilation and evacuation procedure He reasoned that since Nebraska was not seeking to prohibit it the state was free to ban partial birth abortion 304 Gonzales v Carhart In 2003 Congress passed the Partial Birth Abortion Ban Act 305 which led to a lawsuit in the case of Gonzales v Carhart 306 The Court previously ruled in Stenberg v Carhart that a state s ban on partial birth abortion was unconstitutional because such a ban did not have an exception for the health of the woman 307 The membership of the Court changed after Stenberg with Chief Justice John Roberts and Justice Samuel Alito replacing Chief Justice Rehnquist and Justice O Connor 308 309 The ban at issue in Gonzales v Carhart was similar to the one in Stenberg 307 but had been adjusted to comply with the Court s ruling 310 On April 18 2007 a 5 to 4 decision upheld the constitutionality of the Partial Birth Abortion Ban Act 309 Justice Kennedy wrote the majority opinion that Congress was within its power to ban partial birth abortion The Court left the door open for as applied challenges 311 The opinion did not address whether Casey remained valid Instead it only assumed Casey was valid for the purposes of this opinion 312 Chief Justice John Roberts and Justices Scalia Thomas and Alito joined the majority Justice Thomas filed a concurring opinion joined by Justice Scalia contending that the Court s prior decisions in Roe v Wade and Planned Parenthood v Casey should be reversed 313 They also noted that the Partial Birth Abortion Ban Act may have exceeded the powers of Congress under the Commerce Clause but that the question was not raised 314 Justice Ginsburg joined by Justices Stevens Souter and Breyer dissented 308 contending that the ruling ignored precedent and that abortion rights should instead be justified by equality 309 Dubay v Wells Judge David Lawson Dubay v Wells was a 2006 paternity case where a man argued he should not have to pay child support for a child he did not want to parent The case was billed as Roe v Wade for men 315 On March 9 2006 Dubay filed a lawsuit before the United States District Court for the Eastern District of Michigan Michigan s Attorney General Joel D McGormley made a motion to have the case dismissed On July 17 2006 District Court Judge David Lawson agreed and dismissed Dubay s lawsuit 316 He appealed it once to the United States Court of Appeals for the Sixth Circuit which also dismissed it and stated Dubay s claim that a man s right to disclaim fatherhood would be analogous to a woman s right to abortion rests upon a false analogy In the case of a father seeking to opt out of fatherhood and thereby avoid child support obligations the child is already in existence and the state therefore has an important interest in providing for his or her support 317 Whole Woman s Health v Hellerstedt The Roberts Court in 2010 eight of the nine members pictured are the ones who decided Whole Woman s Health v Hellerstedt Justice Scalia front row second left died before the oral argument In 2013 the Texas legislature enacted restrictions which required abortion doctors to have admitting privileges at a local hospital and required abortion clinics to have facilities equivalent to others which conducted outpatient surgery 318 On June 27 2016 the Supreme Court in a 5 3 decision for Whole Woman s Health v Hellerstedt struck down these restrictions 318 The majority opinion by Justice Breyer struck down these two provisions of Texas law in a facial manner that is the very words of the provisions were invalid no matter how they might be applied in any practical situation The ruling also stated that the task of judging whether a law puts an undue burden on a woman s right to abortion belongs with the courts and not the legislatures 319 Box v Planned Parenthood In 2016 Indiana passed House Bill 1337 enacting a law which regulated what is done with fetal remains and banning abortion for sexist racist or ableist purposes 320 In its unsigned 2019 ruling for Box v Planned Parenthood of Indiana and Kentucky Inc the U S Supreme Court upheld the regulations about fetal remains but declined to hear the remainder of the law which had been blocked by lower courts 321 Justice Ginsburg dissented from the part of the ruling about fetal remains on the basis that the regulations violated Casey 322 She also criticized Justice Thomas over his use of the word mother in his concurrance 323 Justice Sotomayor stated that she wished the Court would not have heard the case at all 324 Justice Thomas wrote a concurring opinion which expressed concern that the theory presented in Freakonomics echoed the views of the eugenics movement 325 He warned that a constitutional right to an abortion based solely on the race sex or disability of an unborn child as Planned Parenthood advocates would constitutionalize the views of the 20th century eugenics movement He predicted Although the Court declines to wade into these issues today we cannot avoid them forever 326 Whole Woman s Health v Jackson In 2021 the state of Texas devised a legal workaround to Roe that allowed it to successfully outlaw abortion at six weeks of pregnancy despite the continued existence of Roe and Casey In the Texas Heartbeat Act the legislature created a novel enforcement mechanism that bars state officials from enforcing the statute and authorizes private individuals to sue anyone who performs or assists an illegal abortion 327 328 Because the Act is enforced by private citizens rather than government officials there are no state officials that abortion providers can sue to stop the enforcement of the law and they cannot obtain judicial relief that will stop private lawsuits from being initiated against them 329 This has produced an end run around Roe because the threat of private civil enforcement lawsuits has forced abortion providers to comply with the Act despite its incompatibility with the Supreme Court s abortion pronouncements 330 331 Other states have copied this enforcement mechanism to sidestep Roe and immunize their anti abortion statutes from judicial review 332 333 334 This maneuver has weakened Roe and undercut the federal judiciary s ability to protect abortion rights from state legislation 335 Dobbs v Jackson Women s Health Organization Dobbs v Jackson Women s Health Organization is a case that was a legal challenge to Mississippi s 2018 Gestational Age Act which had banned abortions after 15 weeks with exceptions only for medical emergencies or fetal abnormalities Federal courts had enjoined the state from enforcing the law after the state s only abortion clinic Jackson Women s Health Organization filed suit immediately after passage the federal courts stated that the law violated the previously established 24 week point of viability Mississippi asked the Supreme Court to hear the case on June 15 2020 and the Court certified the petition on May 17 2021 limited to the question Whether all pre viability prohibitions on elective abortions are unconstitutional 336 The Court chose not to take up two other questions that Mississippi wanted to bring before the Court 336 On May 2 2022 Politico released a leaked first draft of a majority opinion written by Justice Samuel Alito which had been circulated among the court in February 2022 Alito s draft wrote 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 The release of a draft opinion for a pending case was unprecedented in recent Supreme Court history The document was not a final decision and the justices were still able to change their votes The document was thought to reflect both the justices preliminary voting and the outcome of the internal Court procedure for deciding who is assigned to write the majority opinion 337 338 A press release from the Supreme Court confirmed the leaked document s authenticity and Chief Justice John Roberts in a statement described its release as a betrayal of the confidences of the Court 339 The leaked draft regarding the decision sparked protests 340 341 On June 24 2022 the Supreme Court ruled 6 3 to uphold Mississippi s Gestational Age Act and 5 4 to overrule Roe and Casey Similar to the leaked draft opinion the opinion of the court written by Justice Alito stated that Roe was egregiously wrong from the start and its reasoning exceptionally weak It also stated that Roe has enflamed debate and deepened division and that overruling it would return the issue of abortion to the people s elected representatives 342 The majority opinion relied on a constitutional historical view of abortion rights saying The Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision 22 The reasoning was that abortion couldn t be constitutionally protected Until the latter part of the 20th century such a right was entirely unknown in American law Indeed when the Fourteenth Amendment was adopted three quarters of the States made abortion a crime at all stages of pregnancy 343 Some historians argued that this view is incomplete 343 with Leslie J Reagan saying that Alito speciously claims the truth of his assertions 29 In their dissent Justices Stephen Breyer Elena Kagan and Sonia Sotomayor jointly wrote The right Roe and Casey recognized does not stand alone To the contrary the Court has linked it for decades to other settled freedoms involving bodily integrity familial relationships and procreation Most obviously the right to terminate a pregnancy arose straight out of the right to purchase and use contraception In turn those rights led more recently to rights of same sex intimacy and marriage Either the mass of the majority s opinion is hypocrisy or additional constitutional rights are under threat It is one or the other 23 Role in politicsPresidential positions Generally presidential opinions following Roe have been split along major party lines The decision was opposed by Presidents Gerald Ford 344 Ronald Reagan 345 George W Bush 346 and Donald Trump 347 President George H W Bush also opposed Roe though he had supported abortion rights earlier in his career 348 349 President Richard Nixon appointed Justices Burger Blackmun and Powell who voted with the majority and Justice Rehnquist who dissented 350 1 President Nixon did not publicly comment about Roe v Wade 351 During his early career President Jimmy Carter supported legalizing abortion in order to save the life of a woman or in the event of birth defects or in other extreme circumstances 352 353 As president he thought abortion was wrong but stated that he accepted my obligation to enforce the Roe v Wade Supreme Court ruling and at the same time attempted in every way possible to minimize the number of abortions 354 In 2012 he reflected I never have believed that Jesus Christ would approve of abortions and that was one of the problems I had when I was president having to uphold Roe v Wade He urged the Democratic Party to take a position supporting pregnant mothers to minimize economic and social factors driving women to get abortions He also wanted the party to take stand in favor of banning abortion except for those whose lives are in danger or who are pregnant as a result of rape or incest 355 Roe was supported by Presidents Bill Clinton 356 and Barack Obama 357 In 1981 then Senator Joe Biden voted for a constitutional amendment allowing states to overturn Roe v Wade which he voted against the following year 358 In a 2007 memoir Biden expressed an opinion that although he was personally opposed to abortion he did not have the right to impose his personal opposition onto others 359 In 2021 he described himself to reporters as a strong supporter of Roe v Wade and added And I under I respect people who think that who don t support Roe v Wade I respect their views I respect them they those who believe life begins at the moment of conception and all I respect that Don t agree but I respect that I m not going to impose that on people 360 361 Federal bills or laws regarding Roe Federal bills amendments or laws regarding Roe include the Women s Health Protection Act Freedom of Choice Act Partial Birth Abortion Ban Act Born Alive Infants Protection Act Unborn Victims of Violence Act Interstate Abortion Bill No Taxpayer Funding for Abortion Act Pain Capable Unborn Child Protection Act Partial Birth Abortion Ban Act of 1995 Sanctity of Human Life Act Sanctity of Life Act Hyde Amendment Freedom of Access to Clinic Entrances Act and the Baby Doe Law Following the passage of the Texas Heartbeat Act and the Supreme Court s acceptance of the Dobbs v Jackson Women s Health Organization case 362 and the threat the case poses to Roe in the eyes of Roe supporters 362 Neal Kumar Katyal a law professor and former acting solicitor general of the United States said that instead of abortion regulation by the judicial branch Congress could codify the rights two generations have taken as part of American life 363 and nullify the threat to reproductive health posed by the Mississippi case 363 364 365 Thomas Jipping of the Heritage Foundation wrote that the Women s Health Protection Act is unconstitutional because it regulates how state legislatures regulate abortion and abortion services rather than directly regulating abortion at the federal level 366 Views that the WHPA is unconstitutional or should otherwise be opposed were expressed during Senate Judiciary Committee hearings in 2014 367 State laws regarding Roe At the state level there have been many laws about abortion In the decade after Roe most states passed laws protecting medical workers with a conscientious objection to abortion Nine states which had legalized abortion or loosened abortion restrictions prior to Roe already had statutory protection for those who did not want to participate in or perform an abortion As of 2011 forty seven states and the District of Columbia had laws allowing certain people to decline to perform certain actions or provide information related to abortion or reproductive health 368 At the federal level the Church Amendment of 1973 was proposed in order to protect private hospitals objecting to abortion from being deprived of funding It first passed the Senate 92 1 then a slightly modified version passed the House 372 1 and the final bill which contained it passed the Senate 94 0 369 Justice Blackmun supported this and other regulations protecting individual physicians and entire hospitals operated by religious denominations 370 Some states have passed laws to maintain the legality of abortion if Roe v Wade is overturned Those states include California Connecticut Hawaii Maine Maryland Nevada and Washington 371 Other states have enacted so called trigger laws that would take effect in the event that Roe v Wade is overturned with the effect of outlawing abortions on the state level Those states include Arkansas Kentucky Louisiana Mississippi North Dakota and South Dakota 371 Additionally many states did not repeal pre 1973 statutes against abortion and some of those statutes could again be in force if Roe were reversed 372 On April 16 2012 Mississippi House Bill 1390 was signed into law 373 The law attempted to make abortion unfeasible without having to overturn Roe v Wade 374 Judge Daniel Porter Jordan III of the United States District Court for the Southern District of Mississippi granted an injunction against the law on July 13 2012 375 On April 15 2013 he issued another injunction which only applied to a part of the law which required the individual performing the abortions to have hospital admitting privileges 376 On July 29 2014 a three judge panel from the U S Court of Appeals for the Fifth Circuit upheld the injunction against part of the law with Judge Emilio M Garza dissenting The ruling especially relied on a case unrelated to Roe which was decided nearly fifty years before the right to an abortion was found in the penumbras of the Constitution 377 On February 18 2015 Mississippi asked the Supreme Court to hear the case but they declined to hear it on June 28 2016 378 The Human Life Protection Act was signed by Alabama governor Kay Ivey on May 14 2019 in hopes of challenging Roe v Wade in the Supreme Court 379 It includes exceptions for a serious health risk to the mother or a lethal fetal anomaly but otherwise it will make abortion a felony for the abortion doctor if it goes into effect Women subjected to an abortion will not be criminally culpable or civilly liable under the law 380 On October 29 2019 Judge Myron Thompson for the U S District Court for the Northern District of Alabama issued a preliminary injunction against the law 381 In May 2021 Texas lawmakers passed Senate Bill 8 creating the Texas Heartbeat Act banning abortions except in cases of medical emergency as soon as a fetal heartbeat can be detected 382 This is typically as early as six weeks into pregnancy and often before women know they are pregnant The law established that any Texas resident who is not a state or local government employee or official can sue abortion clinics and doctors who are known to be aiding and abetting abortion procedures after six weeks 383 A clause forbids anyone who impregnated an abortion patient through rape sexual assault or incest to sue concerning the patient 384 The enactment date was September 1 2021 and the U S Supreme Court in a 5 4 decision declined a request to block enforcement of the law that day 385 On October 22 2021 the Court again did not block the law s enforcement and agreed to hear arguments for United States v Texas on November 1 2021 386 They limited the question to a review of standing 387 388 On December 10 2021 the Court dismissed the lawsuit on the basis that lower courts should not have accepted it 389 This decision allows lawsuits against the executive directors of Texas s medical nursing and pharmacy licensing boards and also against the executive commissioner of the Texas Health and Human Services Commission but not certain other lawsuits seeking to overturn the law 390 LegacyEffects of legalization See also Abortion in the United States Effects of legalization Roe v Wade caused a 4 5 decline in births in states that had not previously legalized abortion 391 According to a 2019 study if Roe v Wade is reversed and some states prohibit abortion on demand the increases in travel distance are estimated to prevent at a low estimate of over 90 000 women and at a high estimate of over 140 000 women from having abortions in the year following the ruling s overturning 392 If Roe were to be overturned by a constitutional amendment which would apply to all the states fertility could be expected to increase by 11 because then mothers would not travel to states where abortion is legal 393 Although the legalization of abortion in the United States increased the labor supply of fertile aged women in the workforce it decreased the labor supply of older women This is thought to be due to the fact they now had fewer opportunities to financially support grandchildren Older women whose labors became less necessary for the family s financial wellbeing either left or stayed out of the workforce 394 Since Roe the risk of death due to legal abortion fell considerably due to increased physician skills improved medical technology and earlier termination of pregnancy 395 Various studies have shown that overturning Roe could have adverse socio economic conditions higher maternal mortality 396 and other negative impacts 392 397 398 The Donohue Levitt hypothesis about the legalized abortion and crime effect proposed that legalized abortion was responsible for reductions in the crime rate If there is a relationship between abortion and crime there are several possibilities that could explain how abortion lowers crime One possibility is that crime is disproportionally committed by young males and legalizing abortion reduced the number of young males Another possibility is that children born in the post legalization era are less likely to commit crimes If this is the case it might be explained in two ways One way is that the sort of women who have abortions are not representative of pregnant women as a whole rather they are the sort who are most likely to give birth to children who grow up to be criminals In this way abortion serves to shape American family structure 399 Studies linking demographics to crime have found that children born to American teenagers unmarried mothers and mothers with lower incomes are more likely to engage in criminal activity as adolescents 400 Abortion rates are higher for these demographics A second possible way to explain it is that women use abortion to prevent births until they are most able to provide a stable home environment Factors involved in stability include the age education income of the mother her use of drugs and alcohol the presence of a father and wanted as opposed to unwanted pregnancies 399 Another hypothesis is the Roe effect which tries to explain why the practice of abortion would eventually lead to abortion being restricted or outlawed The hypothesis is that people in favor of abortion rights would not parent as many children when abortion is legal and since children tend to have similar views to their parents eventually voters would not support abortion rights 401 Opinion polls See also Abortion in the United States Public opinion Into the 21st century polls of Americans opinions about abortion indicated they are about equally divided Several organizations among them Gallup 402 403 Pew Research Center 404 and Harris Insights amp Analytics 405 406 conduct abortion or Roe v Wade related polls Regarding the Roe decision as a whole more Americans supported it than supported overturning it 407 In the 2000s when pollsters describe various regulations that Roe prevented legislatures from enacting support for Roe dropped 407 408 Into the 2010s poll results relating to abortion indicated nuance and frequently do not directly match up with respondents self identified political affiliations 409 In 2021 an ABC News Washington Post poll found that 58 of those with children living at home wanted to see Roe v Wade upheld compared to 62 of those without children at home An All In Together poll found that only 36 with children living in their house opposed the Texas Heartbeat Act compared to 54 9 without children 410 After the Supreme Court s decision in June 2022 to overturn Roe v Wade a new CBC News YouGov poll showed 59 disapprove of the decision and of women polled 67 disapprove According to the same poll 52 of the participants called the court s decision a step backward for America 31 said it is a step forward and 17 say it was neither 411 See alsoAbortion law in the United States Abortion law in the United States by state Feticide Laws in the United States Justifiable homicide Common excusing conditions sixth item listed List of United States Supreme Court cases by the Burger Court List of United States Supreme Court cases volume 410 List of United States Supreme Court leaks Roe vs Wade film released in 1989 Roe v Wade film released in 2020 Shelley Lynn Thornton the Roe baby Dobbs v Jackson Women s Health OrganizationReferences a b Roe v Wade 410 U S 113 1973 a b Mears William Franken Bob January 22 2003 30 years after ruling ambiguity anxiety surround abortion debate CNN In all the Roe and Doe rulings impacted laws in 46 states Greenhouse 2005 p 72 Roe v Wade 314 F Supp 1217 N D Tex 1970 Casetext June 17 1970 Retrieved June 15 2022 a b Nowak amp Rotunda 2012 18 29 a i a b c d e f g h Chemerinsky 2019 10 3 3 1 p 887 a b c d e f g h i j Nowak amp Rotunda 2012 18 29 b i Chemerinsky 2019 10 3 3 1 p 886 Few decisions in Supreme Court history have provoked the intense controversy that has surrounded the abortion rulings a b Dworkin Roger 1996 Limits The Role of the Law in Bioethical Decision Making Indiana University Press pp 28 36 ISBN 978 0253330758 Epstein Richard January 1 1973 Substantive Due Process by Any Other Name The Abortion Cases University of Chicago Law Review 1973 159 Ely 1973 a b Balkin Jack Bush v Gore and the Boundary Between Law and Politics Archived February 27 2008 at the Wayback Machine 110 Yale Law Journal 1407 2001 Liberal and feminist legal scholars have spent decades showing that the result was correct even if Justice Blackmun s opinion seems to have been taken from the Court s Cubist period a b Roosevelt Kermit Shaky Basis for a Constitutional Right Washington Post January 22 2003 I t is time to admit in public that as an example of the practice of constitutional opinion writing Roe is a serious disappointment You will be hard pressed to find a constitutional law professor even among those who support the idea of constitutional protection for the right to choose who will embrace the opinion itself rather than the result This is not surprising As constitutional argument Roe is barely coherent The court pulled its fundamental right to choose more or less from the constitutional ether It supported that right via a lengthy but purposeless cross cultural historical review of abortion restrictions and a tidy but irrelevant refutation of the straw man argument that a fetus is a constitutional person entitled to the protection of the 14th Amendment By declaring an inviolable fundamental right to abortion Roe short circuited the democratic deliberation that is the most reliable method of deciding questions of competing values Retrieved January 23 2007 Archived June 16 2017 at the Wayback Machine a b Cohen Richard Support Choice Not Roe Washington Post October 19 2005 If the best we can say for it is that the end justifies the means then we have not only lost the argument but a bit of our soul as well Retrieved January 23 2007 a b Greenhouse 2005 pp 135 136 a b Ross Loretta Solinger Rickie March 21 2017 Reproductive Justice An Introduction Oakland California ISBN 9780520288201 OCLC 960969169 Thomson DeVeaux Amelia June 24 2022 Roe v Wade Defined An Era The Supreme Court Just Started A New One FiveThirtyEight Archived from the original on June 24 2022 Retrieved June 26 2022 a b c d e Thomson DeVeaux Amelia Yi Jean May 6 2022 Where Americans Stand On Abortion In 5 Charts FiveThirtyEight Retrieved June 26 2022 Chemerinsky 2019 10 3 3 1 pp 892 895 Chemerinsky 2019 10 3 3 1 pp 892 893 Dobbs v Jackson Women s Health Organization 597 U S 2022 Justia May 16 2021 Retrieved June 27 2022 a b Breuninger Kevin Mangan Dan June 24 2022 Supreme Court overturns Roe v Wade ending 50 years of federal abortion rights CNBC Archived from the original on June 24 2022 Retrieved June 24 2022 a b Sneed Tierney June 24 2022 Supreme Court s decision on abortion could open the door to overturn same sex marriage contraception and other major rulings CNN Archived from the original on June 24 2022 Retrieved June 24 2022 Farrer Martin June 24 2022 World leaders condemn US abortion ruling as backwards step The Guardian Archived from the original on June 25 2022 Retrieved June 24 2022 Biden Allies in G 7 Aghast at US Abortion Rights Reversal Bloomberg News June 24 2022 Retrieved June 27 2022 Roe v Wade Jacinda Ardern New Zealand politicians celebrities condemn US Supreme Court s abortion decision Newshub Retrieved June 28 2022 Mohr James C 1978 Abortion in America The Origins and Evolution of National Policy 1800 1900 New York Oxford University Press pp 3 4 a b c d Hardin Garrett December 1978 Abortion in America The Origins and Evolution of National Policy 1800 1900 James C Mohr The Quarterly Review of Biology 53 4 499 doi 10 1086 410954 a b c Reagan Leslie J June 2 2022 What Alito Gets Wrong About the History of Abortion in America Politico Archived from the original on June 23 2022 Retrieved June 26 2022 a b Cole George Frankowski Stanislaw 1987 Abortion and Protection of the Human Fetus Legal Problems in a Cross Cultural Perspective Leiden the Netherlands Martinus Nijhoff Publishers p 20 Retrieved April 8 2008 via Google Books By 1900 every state in the Union had an anti abortion prohibition a b c Reexamining Roe Nineteenth Century Abortion Statutes and the Fourteenth Amendment by James S Witherspoon 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 pages 33 34 pages 5 6 of the pdf Population Policy in Hawaii Archived October 13 2022 at the Wayback Machine by Robert C Schmitt Hawaiian Journal of History Volume 8 1974 page 91 page 2 of the pdf also see The Penal Code of the Hawaiian Kingdom Compiled from the Penal Code of 1850 Chapter XII Causing Abortion Concealing the Death of an Infant Honolulu Oahu Government Press 1869 page 19 page 63 of the pdf Historical Ethnography by Marshall Sahlins Volume 1 of Anahulu The Anthropology of History in the Kingdom of Hawaii Part IV Kawailoa Society in the Mid Nineteenth Century Chapter 9 Maka ainana University of Chicago Press 1992 page 201 also see On the Decrease of Population on the Hawaiian Islands by David Malo Hawaiian Spectator Volume 2 April 1839 page 123 Even the unborn child did not escape but was put to death for mothers thinking they should prematurely become old women without having gained property pierced their unborn and thus many a child was destroyed before it was born Others from the time of conception to the birth of the child made it their business to extinguish its life Blackstone William 1765 Commentaries Archived February 24 2019 at the Wayback Machine Life begins in contemplation of law as soon as an infant is able to stir in the mother s womb Wilson James 1790 1792 Of the Natural Rights of Individuals Archived September 24 2008 at the Wayback Machine In the contemplation of law life begins when the infant is first able to stir in the womb Fact Checking the Abortion Claims in Dobbs v Jackson Women s Health Oral Arguments by Lauretta Brown National Catholic Register December 3 2021 Symposium on Anita Bernstein s The Common Law Inside the Female Body by David S Cohen Northwestern University Law Review Volume 114 page 145 page 6 of the pdf Greenhouse 2005 p 92 Lewis Carroll even you wouldn t have believed Madison Scene by Keta Steebs Door County Advocate Volume 114 Issue 74 November 26 1975 page 1 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 page 19 page 20 of the pdf Buell Samuel January 1 1991 Criminal Abortion Revisited New York University Law Review 66 6 1785 1786 pages 12 13 of the pdf PMID 11652642 State v Howard 32 Vt 399 Vt 1859 November 1859 a b c 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 Caught in the Net by Leslie J Reagan Slate September 10 2021 Roe 410 U S at 130 Joyce Ted Tan Ruoding Zhang Yuxiu September 2013 Abortion before amp after Roe Journal of Health Economics 32 5 804 815 footnote 4 doi 10 1016 j jhealeco 2013 05 004 PMC 3791164 PMID 23811233 Blumenthal Karen 2020 Jane Against the World Roe v Wade and the Fight for Reproductive Rights New York Roaring Brook Press Dangerous Pregnancies Mothers Disabilities and Abortion in Modern America by Leslie J Reagan Berkeley California University of California Press 2010 page 172 Bachelors and Bunnies The Sexual Politics of Playboy by Carrie Pitzulo University of Chicago Press page 2011 page 157 Rally Today Supports Wheeler The Harvard Crimson Cambridge Massachusetts Retrieved November 29 2016 a b 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 page 39 Roe v Wade Abortion and a Woman s Right to Privacy by Melissa Higgins Chapter 5 Constructing and Filing Roe v Wade North Mankato MN Abdo Publishing 2012 page 52 and A Question of Choice by Sarah Weddington New York Penguin Books 1993 page 50 a b c Roe v Wade Abortion and a Woman s Right to Privacy by Melissa Higgins Chapter 5 Constructing and Filing Roe v Wade North Mankato MN Abdo Publishing 2012 page 54 and A Question of Choice by Sarah Weddington New York Penguin Books 1993 page 53 a b The Untold Dallas Origins of Roe v Wade by Joshua Prager D Magazine January 11 2022 A Question of Choice by Sarah Weddington New York Penguin Books 1993 pp 50 51 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 p 38 Key Abortion Plaintiff Now Denies She Was Raped by Kenneth B Noble The New York Times September 9 1987 Retrieved June 26 2022 The Lawyers Who Made America From Jamestown to the White House by Anthony Arlidge Oxford United Kingdom and Portland Oregon Hart Publishing 2017 p 176 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 section one on Solicitation and Representation pages 282 283 pages 15 16 of the pdf 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 paragraph 11 on page 5 of 13 affidavit page 000006 Norma McCorvey Jane Roe Of Roe V Wade Is Dead At 69 Archived October 13 2022 at the Wayback Machine by Sara Murphy Yahoo February 18 2017 Retrieved June 26 2022 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 page 14 page 32 of the pdf A Woman s Right to an Abortion Roe v Wade by D J Herda Berkeley Heights New Jersey Enslow Publishing 2016 page 97 and 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 paragraph 9 on pages 4 5 of 13 affidavit pages 000005 000006 Jane Roe Gone Rogue Norma McCorvey s Transformation as a Symbol of the U S Abortceion Debate by Christianna K Barnard MA thesis Sarah Lawrence College May 2018 page 22 page 40 of the pdf and I Am Roe My Life Roe v Wade and Freedom of Choice by Norma McCorvey and Andy Meisler New York City HarperCollins 1994 page 124 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 page 22 page 40 of the pdf and I Am Roe My Life Roe v Wade and Freedom of Choice by Norma McCorvey and Andy Meisler New York City HarperCollins 1994 page 125 Jane Roe s Baby Tells Her Story by Joshua Prager The Atlantic September 9 2021 a b 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 page 85 A Question of Choice by Sarah Weddington New York Penguin Books 1993 page 154 and Roe Reconsidered by Nina Butts The Texas Observer November 13 1992 page 15 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 page 93 What does the original Roe v Wade really say by Amanda Robert American Bar Association Journal May 3 2022 and Summary of Roe v Wade at Lawnix com Archived October 22 2012 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 page 91 and A Question of Choice by Sarah Weddington New York Penguin Books 1993 page 58 Roe v Wade Abortion and a Woman s Right to Privacy by Melissa Higgins Chapter 5 Constructing and Filing Roe v Wade North Mankato MN Abdo Publishing 2012 page 55 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 page 128 a b Roe v Wade 314 F Supp 1217 1221 N D Tex 1970 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 The Untold Story of the Landmark Supreme Court Decision that Made Abortion Legal by Marian Faux New York City Cooper Square Press 2001 pages 126 127 What does the original Roe v Wade really say by Amanda Robert American Bar Association Journal May 3 2022 Summary of Roe v Wade at Lawnix com Archived October 22 2012 and Roe v Wade 314 F Supp 1217 N D Tex 1970 Justia Law Roe v Wade Case US by Merle H Weiner Oxford Constitutional Law August 2016 page 4 Part B The Factual Backdrop Access to Abortion in the United States Prior to Roe v Wade item number 14 At this point McCorvey had been now pregnant for six months United States v Vuitch 402 U S 62 1971 justia com United States v Vuitch 1971 No 84 Argued January 12 1971 Decided April 21 1971 findlaw com Tatalovich Raymond 1997 The Politics of Abortion in the United States and Canada A Comparative Study New York Routledge p 56 Greenhouse 2005 pp 77 79 a b Forsythe 2013 p 98 Forsythe 2013 p 92 Greenhouse 2005 p 80 The Brethren Inside the Supreme Court by Bob Woodward and Scott Armstrong New York Simon and Schuster page 1979 page 265 Sant Geoffrey 8 horrible courtroom jokes and their ensuing legal calamities Salon com July 27 2013 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 Retrieved August 10 2010 Malphurs 2010 p 48 Garrow 1994 p 526 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 pages 20 21 pages 38 39 of the pdf and 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 a b Schwartz 1988 p 103 The Justices Behind Roe v Wade The Inside Story Adapted from The Brethren by Bob Woodward and Scott Armstrong New York Simon and Schuster 2021 page 96 a b Greenhouse 2005 pp 81 88 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 page 1379 page 20 of the pdf Defenders of the Unborn The Pro life Movement Before Roe v Wade by Daniel K Williams New York Oxford University Press page 200 Constitutional Law for a Changing America Rights Liberties and Justice by Lee Epstein Kevin T McGuire and Thomas G Walker 11th edition London SAGE Publications Part Two Civil Liberties Chapter Ten Privacy and Personal Liberty page 354 and A Question of Choice by Sarah Weddington New York Penguin Books 1993 page 132 133 Greenhouse 2005 p 81 Garrow 1994 p 556 Greenhouse 2005 p 89 Roe v Wade 410 U S 113 LII Legal Information Institute Cornell Law School Retrieved October 24 2020 a b Treisman Rachel May 3 2022 The original Roe v Wade ruling was leaked too NPR Retrieved May 3 2022 a b Browder Sue Ellen 2015 Subverted How I Helped the Sexual Revolution Hijack the Women s Movement Ignatius Press pp 93 94 ISBN 978 1586177966 Retrieved August 24 2018 george frampton jr Browder Sue Ellen 2015 Subverted How I Helped the Sexual Revolution Hijack the Women s Movement Ignatius Press pp 95 96 ISBN 978 1586177966 Retrieved August 24 2018 george frampton jr Abortion by Lawrence Lader Indianapolis The Bobbs Merrill Company 1966 page 151 Abortion by Lawrence Lader Indianapolis The Bobbs Merrill Company 1966 page 154 In the Roe v Wade justia com majority opinion Means I denotes The Law of New York Concerning Abortion and the Status of the Foetus 1664 1968 A Case of Cessation of Constitutionality New York Law Forum Volume 14 Number 3 Fall 1968 Means II denotes The Phoenix of Abortional Freedom Is a Penumbral or Ninth Amendment Right About to Arise from the Nineteenth Century Legislative Ashes of a Fourteenth Century Common Law Liberty New York Law Forum Volume 17 Number 2 1971 a b c Abortion Distortion A Review of Dispelling the Myths of Abortion History by Joseph W Dellapenna by John A Keown The Journal of Law Medicine amp Ethics Volume 35 Issue 2 Summer 2007 page 326 quotes cited to Dispelling the Myths of Abortion History by J W Dellapenna Durham Carolina Academic Press 2006 page 684 also cited as footnote 171 on page 30 page 28 of the pdf of 1 Back to the Future of Abortion Law Roe s Rejection of America s History and Traditions by John Keown Issues in Law and Medicine Volume 22 Issue 1 Summer 2006 footnote 171 cites Liberty and Sexuality The Right to Privacy and the Making of Roe v Wade by David J Garrow 1994 pages 853 54 in Garrow the memo is quoted as footnote 41 and cited as David Tundermann to Roy Lucas Legislative Purpose et al 5 August 1971 Lucas Box 13 Greenhouse 2005 pp 93 95 Greenhouse 2005 pp 96 97 a b Revelations on the Road to Roe by David Garrow American Lawyer Volume 22 May 2000 page 4 of the pdf a b Savage David G September 14 2005 Roe Ruling More Than Its Author Intended Los Angeles Times Retrieved October 11 2021 Kmiec Douglas Testimony Before Subcommittee on the Constitution Judiciary Committee U S House of Representatives April 22 1996 page 97 Archived August 21 2008 Greenhouse 2005 p 97 Robenalt James 2017 January 1973 Watergate Roe v Wade Vietnam and the Month That Changed America Forever Chicago Review Press ISBN 978 1 61373 652 4 Retrieved May 3 2022 Lee 1992 pp 610 11 Abernathy M 1993 Civil Liberties Under the Constitution U South Carolina p 4 Retrieved February 4 2007 Chemerinsky Erwin 2003 Federal Jurisdiction Introduction to Law 4th ed Aspen Publishers p 132 ISBN 978 0 7355 2718 8 Roe 410 U S at 125 see also Schwartz 1988 pp 108 09 Quoted in Chemerinsky 2019 10 3 3 1 p 887 Chemerinsky 2019 10 3 3 1 p 887 quoting Roe 410 U S at 153 a b Chemerinsky 2019 10 3 3 1 pp 887 88 Quoted in Chemerinsky 2019 10 3 3 1 p 888 Roe v Wade 1973 LII Legal Information Institute Strauss Valerie May 3 2022 Answer Sheet A brief lesson on Roe v Wade The Washington Post Archived from the original on May 16 2022 Retrieved May 16 2022 a b c Chemerinsky 2019 10 3 3 1 p 888 note 47 Roe v Wade Mr Chief Justice Burger concurring Archived May 8 2022 at the Wayback Machine Landmark Cases C SPAN January 22 1973 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 page 580 page 3 of the pdf 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 pages 579 580 pages 2 3 of the pdf Roe 410 U S at 163 justia com Roe 410 U S at 164 justia com a b Gorlick Adam November 20 2008 Rehnquist papers offer peek inside Supreme Court Stanford Report Stone Alan A 1984 Judges as Medical Decision Makers Is the Cure Worse than the Disease Cleveland State Law Review 33 4 581 582 Doe v Bolton 410 U S 179 1973 justia com Chemerinsky 2019 10 3 3 1 p 888 quoting Doe 410 U S at 222 White J dissenting Roe 410 U S at 174 77 Rehnquist J dissenting Currie David 1994 The Constitution in the Supreme Court The Second Century 1888 1986 University of Chicago Press p 470 Rehnquist s legacy The Economist June 30 2005 Kommers Donald P Finn John E Jacobsohn Gary J 2004 American Constitutional Law Essays Cases and Comparative Notes Rowman amp Littlefield ISBN 978 0 7425 2687 7 Roe v Wade A Legal History on YouTube a b c d e f Greenhouse 2005 p 101 a b c Taylor Derrick Bryson June 25 2022 From the Archives Landmark Decision Establishes a Constitutional Right The New York Times p A12 The Supreme Court legalized abortion in the United States with its decision in Roe v Wade reshaping the nation s social and political landscape The 7 2 ruling was announced on Jan 22 1973 the same day that Lyndon B Johnson died That news led The New York Times the next day with the Roe decision underneath in Columns 1 and 2 Epstein Richard A 1974 Substantive Due Process by any other name The Abortion Cases The Supreme Court Review 1973 University of Chicago Press 185 Records of the National Abortion Rights Action League 1969 1976s Hollis Archival Collection Guides Radcliffe College Harvard University Retrieved June 26 2022 Karrer Robert N 2011 The Pro Life Movement and Its First Years under Roe American Catholic Studies 122 4 47 72 ISSN 2161 8542 JSTOR 44195373 Prager Joshua January 19 2017 Exclusive Roe v Wade s secret heroine tell her story Vanity Fair Retrieved June 30 2022 NBC News Reporting Roe v Wade Ruling and Overturning on YouTube a b CBS Evening News January 22 1973 on YouTube Leaders Send Condolences on Death of LBJ The Washington Post January 24 1973 p A12 a b Broder David S January 23 1973 Quarrels Cast Aside in LBJ Tribute The Washington Post p A1 A shocked capital last night put aside the quarrels of the past and joined in tribute to former president Lyndon B Johnson McFadden Robert D January 23 1973 Nation is Shocked Citizens Join Leaders in Voicing Sorrow and Paying Tribute The New York Times p 1 World Leaders Express Tributes The New York Times January 24 1973 p 22 Johnson Haynes Witcover Jules January 26 1973 LBJ Buried In Beloved Texas Hills The Washington Post p A1 a b c d Ziegler 2015 p 98 Ziegler 2015 p 103 Ziegler 2015 p 117 Ziegler 2013 p 19 In 1969 Planned Parenthood World Population took a position in favor of repealing all laws against abortion see Gender and Women s Leadership A Reference Handbook by Karen O Connor London SAGE Publications 2010 page 744 the Planned Parenthood organization had merged with the World Population Emergency Campaign organization in 1961 to create Planned Parenthood World Population see Population Crisis Hearings Before the Subcommittee on Foreign Aid Expenditures of the Committee on Government Operations United States Senate Eighty Ninth Congress First Session on S 1676 June 29 July 9 24 1965 Part 2 A page 916 the merger occurred during a shift within the birth control movement away from individual health and towards population control see Competitive Problems in the Drug Industry Hearings before the Subcommittee on Monopoly of the Select Committee on Small Business United States Senate Ninety First Congress First session on Present Status of Competition in the Pharmaceutical Industry February 24 March 4 1970 Part 16 Oral Contraceptives Volume Two page 6742 Ziegler 2015 p 115 Beito David T Beito Linda Royster 2009 Black Maverick T R M Howard s Fight for Civil Rights and Economic Power Urbana Illinois University of Illinois Press p 215 Ziegler 2013 p 35 Relf Sisters Sue for Involuntary Sterilization Moments in the Civil Rights Movement Voices of the Civil Rights Movement Comcast NBC Universal April 4 2015 Ziegler 2015 p 117 a b Doboș Corina November 29 2018 Global Challenges Local Knowledges Politics and Expertise at the World Population Conference in Bucharest East Central Europe 45 219 220 Translations on Sub Saharan Africa United States Joint Publications Research Service circular 72986 issue number 2074 March 13 1979 page 15 a b c Ziegler 2013 p 36 Ziegler 2013 p 28 Kitchener Caroline October 2 2021 Thousands gather at Women s March rallies in D C across U S to protect Roe v Wade The Washington Post a b Forced Labor A Thirteenth Amendment Defense of Abortion Archived February 25 2009 by Andrew Koppelman Northwestern Law Review Vol 84 p 480 1990 a b What Roe v Wade Should Have Said The Nation s Top Legal Experts Rewrite America s Most Controversial decision Jack Balkin Ed NYU Press 2005 Retrieved January 26 2007 a b Conroy Meredith Thomson DeVeaux Amelia May 20 2022 The Real Dividing Line On Abortion FiveThirtyEight Retrieved June 26 2022 Manchester Julia December 6 2021 Majority oppose overturning Roe v Wade poll The Hill Retrieved June 26 2022 Desanctis Alexandra December 7 2021 Poll Americans Continue to Misunderstand Roe National Review Retrieved June 26 2022 a b Jackson Natalie June 22 2022 Why It s Possible For Some Americans To Support Abortion Yet Oppose Roe FiveThirtyEight Retrieved June 26 2022 Iglesis Matthew May 20 2019 Men and women have similar views on abortion Vox Retrieved June 26 2022 Molla Rani June 24 2022 What Americans think about abortion in 3 charts Vox Retrieved June 26 2022 a b Durkee Alison June 24 2022 How Americans Really Feel About Abortion The Sometimes Surprising Poll Results As Supreme Court Overturns Roe V Wade Forbes Retrieved June 26 2022 Williams Tarah May 31 2022 Most people support abortion staying legal but that may not matter in making law The Conversation Retrieved June 26 2022 a b Abortion Gallup May 2 22 2022 Retrieved June 26 2022 Treisman Rachel June 3 2022 In a new U S poll a majority identify as pro choice for the first time in decades NPR Retrieved June 26 2022 Tesler Michael May 25 2022 For The First Time In Years Democrats Are More Concerned About Abortion Than Republicans Are FiveThirtyEight Retrieved June 26 2022 Thomson DeVeaux Amelia June 13 2022 How Overturning Roe Could Change The Way Americans Think About Abortion FiveThirtyEight Retrieved June 26 2022 Thomson DeVeaux Amelia June 24 2022 Roe v Wade Defined An Era The Supreme Court Just Started A New One FiveThirtyEight Retrieved June 26 2022 Kestler D Amours Jillian June 17 2022 Religious freedom The next battleground for US abortion rights Al Jazeera Retrieved June 26 2022 a b c d Statements by 2 Cardinals The New York Times January 23 1973 p 20 West R 2009 From Choice to Reproductive Justice De Constitutionalizing Abortion Rights Yale Law Journal 118 1394 1432 Gaard G 2010 Reproductive Technology or Reproductive Justice An Ecofeminist Environmental Justice Perspective on the Rhetoric of Choice Ethics and the Environment 15 2 103 129 doi 10 2979 ete 2010 15 2 103 S2CID 144393726 Symposium on Anita Bernstein s The Common Law Inside the Female Body by David S Cohen Northwestern University Law Review Volume 114 page 147 page 8 of the pdf Appel Jacob M April 24 2009 Do We Need a Pro Choice Litmus Test for Obstetricians Huffington Post Retrieved December 18 2021 a b c d e Webster v Reproductive Health Services 492 U S 490 1989 Jane L v Bangerter 828 F Supp 1544 D Utah 1993 Justia Law Shimron Yonat January 18 2009 Democratic Gains Spur Abortion Foes into Action The News amp Observer The annual March for Life procession is already among Washington s largest rallies drawing an estimated 200 000 people Harper Jennifer January 22 2009 Pro life marchers lose attention Washington Times The event has consistently drawn about 250 000 participants each year since 2003 Johnston Laura January 18 2009 Cleveland s first March for Life anti abortion event draws 200 The Plain Dealer The Washington March for Life draws 200 000 annually on the anniversary of the Roe v Wade decision Youth Turnout Strong at US March for Life Catholic net Zenit org January 25 2011 Retrieved February 9 2011 Portteus Danielle February 10 2013 Newport 650 000 In March For Life The Monroe News MonroeNews Archived from the original on February 13 2014 Retrieved April 14 2013 Childress James F 1984 Bioethics Reporter University Publications of America p 463 Retrieved August 2 2013 Roe v Wade itself provided abortion rights with an unstable foundation Alex Locay 2008 Unveiling the Left Xulon Press p 187 ISBN 978 1 60266 869 0 Retrieved August 2 2013 To justify their decision the Court made up a new right not found in the Constitution the right to privacy The founders of course never intended for such rights to exist as we know privacy is limited in many ways Reagan Ronald Abortion and the Conscience of the Nation Nelson 1984 If you don t know whether a body is alive or dead you would never bury it I think this consideration itself should be enough for all of us to insist on protecting the unborn Retrieved January 26 2007 Guttmacher Institute State Policies in Brief An Overview of Abortion Laws PDF published January 1 2007 Retrieved January 26 2007 Harris v McRae 448 U S 297 1980 Doe v Bolton 410 U S 179 1973 Supreme Court Justice s Papers Opened for Research by Daun Van Ee Library of Congress Information Bulletin Volume 63 Number 4 April 2004 a b The Brains Behind Blackmun by David J Garrow Legal Affairs The Magazine at the intersection of law and life May June 2005 Readers Respond Justice Blackmun letter by Edward Lazarus Legal Affairs The Magazine at the intersection of law and life May June 2005 Rosen Jeffrey September 23 2007 The Dissenter The New York Times Magazine Rosen notes that Stevens is the oldest and arguably most liberal justice Some Thoughts on Autonomy and Equality in Relation to Roe v Wade by Ruth Ginsburg North Carolina Law Review Volume 63 Number 2 Article 4 1985 page 381 page 8 of the pdf Some Thoughts on Autonomy and Equality in Relation to Roe v Wade by Ruth Ginsburg North Carolina Law Review Volume 63 Number 2 Article 4 1985 page 382 page 9 of the pdf page 385 page 12 of the pdf reads The political process was moving in the early 1970s not swiftly enough for advocates of quick complete change but majoritarian institutions were listening and acting Heavy handed judicial intervention was difficult to justify and appears to have provoked not resolved conflict Retrieved January 23 2007 Bullington Jonathan May 11 2013 Justice Ginsburg Roe v Wade not woman centered Chicago Tribune a b The Place of Women on the Court by Emily Bazelon New York Times Magazine July 7 2009 Cox Archibald The Role of the Supreme Court in American Government 113 14 Oxford U Press 1976 quoted in the statement of Hon Henry Hyde A U S Representative from the State of Illinois from the Hearings before the Subcommittee on Separation of Powers of the Committee on the Judiciary United States Senate Washington D C U S Government Printing Office 1982 page 916 Stuart Taylor has argued that Roe v Wade was sort of conjured up out of very general phrases and was recorded even by most liberal scholars like Archibald Cox at the time John Harvey Link just to name two Harvard scholars as kind of made up constitutional law Stuart Taylor Jr Online News Hour PBS July 13 2000 Ely John Hart The Wages of Crying Wolf Archived 2007 06 25 at the Wayback Machine 82 Yale Law Journal 920 1973 Retrieved January 23 2007 Professor Ely supported the availability of abortion as a matter of policy See Liptak Adam John Hart Ely a Constitutional Scholar Is Dead at 64 The New York Times October 27 2003 Ely is generally regarded as having been a liberal constitutional scholar Perry Michael 1999 We the People The Fourteenth Amendment and the Supreme Court at Google Books Ely 1973 pp 935 36 943 947 quoted in part in Chemerinsky 2019 10 3 3 1 p 856 Tribe Laurence 1973 The Supreme Court 1972 Term Foreword Toward a Model of Roles in the Due Process of Life and Law Harvard Law Review 87 1 1 314 doi 10 2307 1339866 JSTOR 1339866 PMID 11663596 Quoted in Morgan Richard Gregory 1979 Roe v Wade and the Lesson of the Pre Roe Case Law Michigan Law Review 77 7 1724 48 doi 10 2307 1288040 JSTOR 1288040 PMID 10245969 Taking the Stand My Life in the Law by Alan Dershowitz New York Broadway Books 2013 page 433 Judges have no special competence qualifications or mandate to decide between equally compelling moral claims as in the abortion controversy Sunstein Cass quoted in Roe v Wade an Issue Ahead of Alito Hearing by Brian McGuire New York Sun November 15 2005 What I think is that it just doesn t have the stable status of Brown or Miranda because it s been under internal and external assault pretty much from the beginning As a constitutional matter I think Roe was way overreached Retrieved January 23 2007 Sunstein is a liberal constitutional scholar See Former U of C law prof on everyone s short court list by Eric Herman Chicago Sun Times Archived December 23 2007 Rosen Jeffrey February 24 2003 Why We d Be Better off Without Roe Worst Choice The New Republic Archived from the original on March 9 2003 Retrieved January 23 2007 In short 30 years later it seems increasingly clear that this pro choice magazine was correct in 1973 when it criticized Roe on constitutional grounds Its overturning would be the best thing that could happen to the federal judiciary the pro choice movement and the moderate majority of the American people Rosen Jeffrey June 1 2006 The Day After Roe The Atlantic Retrieved May 20 2019 Kinsley Michael Bad choice The New Republic June 13 2004 Against all odds and I m afraid against all logic the basic holding of Roe v Wade is secure in the Supreme Court A freedom of choice law would guarantee abortion rights the correct way democratically rather than by constitutional origami Quoted in Honest pro choicers admit Roe v Wade was a horrible decision by Timothy P Carney Washington Examiner January 22 2011 Saletan William Unbecoming Justice Blackmun Legal Affairs May June 2005 Retrieved January 23 2007 Saletan is a self described liberal See Saletan William Rights and Wrongs Liberals progressives and biotechnology Slate July 13 2007 Wittes Benjamin Letting Go of Roe The Atlantic Monthly Jan Feb 2005 Retrieved January 23 2007 Wittes also said I generally favor permissive abortion laws He has elsewhere noted In their quieter moments many liberal scholars recognize that the decision is a mess See Wittes Benjamin A Little Less Conversation The New Republic November 29 2007 Lazarus Edward The Lingering Problems with Roe v Wade and Why the Recent Senate Hearings on Michael McConnell s Nomination Only Underlined Them Findlaw s Writ October 3 2002 Retrieved January 23 2007 Roe 410 U S at 161 The Law of Torts by William Lloyd Prosser 4th edition St Paul Minnesota West Publishing 1971 page 337 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 174 Matt Bruenig June 25 2022 The Bruenigs Apple Podcasts Podcast Retrieved June 26 2022 Forsythe 2013 p 496 Stith Irene Abortion Procedures CRS Report for Congress PDF November 17 1997 Retrieved December 21 2021 a b Legalized abortion a decade later Santa Cruz Sentinel Volume 127 Number 13 January 16 1983 a b Blackmun Accepts Aftermath of Writing Abortion Opinion The New York Times January 18 1983 p A20 Forsythe 2013 p 18 Forsythe 2013 p 19 a b Casey 505 U S at 930 34 Blackmun J concurring in part and dissenting in part In sum Roe s requirement of strict scrutiny as implemented through a trimester framework should not be disturbed Greenhouse 2005 pp 183 206 250 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 38 39 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 38 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 39 This Woman and This Man Made History by Lloyd Shearer Parade magazine May 8 1983 for a book which relied on Shearer see Storm center the Supreme Court in American politics by David M O Brien New York City W W Norton 1986 pages 22 24 The woman whose famous abortion case led to the UPI archives September 8 1987 Roe v Wade Woman in US abortion legal test case dies bbc co uk February 18 2017 McCorvey Norma Testimony to the Senate Subcommittee on the Constitution Federalism and Property Rights January 21 1998 also quoted in the parliament of Western Australia PDF May 20 1998 for a description of an incident which brought McCorvey to reflect about women already wearing maternity clothes see Won by Love Norma McCorvey Jane Roe of Roe v Wade Speaks Out for the Unborn as She Shares Her New Conviction For Life Norma McCorvey and Gary Thomas Nashville Tennessee Thomas Nelson 1997 page 60 Pro life ad campaign features former abortion rights figures Baptist Press January 15 2002 Retrieved December 22 2021 McCorvey v Hill 385 F 3d 846 5th Cir 2004 FindLaw s United States Fifth Circuit case and opinions Findlaw Retrieved November 29 2021 Adams Andrew 2004 Aborting Roe Jane Roe Questions the Viability of Roe v Wade Tex Rev L amp Pol Supreme Court declines to revisist abortion case McCorvey v Hill Westlaw Retrieved November 29 2021 Porterfield Carlie May 19 2020 Roe Vs Wade Plaintiff Was Paid To Switch Sides In Abortion Fight Documentary Reveals Forbes Archived from the original on May 20 2020 Retrieved May 20 2020 Serjeant Jill May 20 2020 Plaintiff in Roe v Wade U S abortion case says she was paid to switch sides www reuters com Reuters Archived from the original on May 20 2020 Retrieved May 20 2020 Lozano Alicia Victoria Anti abortion rights movement paid Jane Roe thousands to switch sides documentary reveals NBC News May 19 2020 The painful journey of Jane Roe and the pro life movement by J D Flynn Catholic News Agency May 19 2020 Archived December 6 2021 Sarah Weddington Exit Interview by Emily Soapes Carter Presidential Library January 2 1981 Winning Roe v Wade Q amp A with Sarah Weddington by Valerie Lapinski Time January 22 2013 Tulsa World May 24 1993 selection reprinted in The Coyote Chronicle California State University San Bernardino Volume 30 Issue 14 May 29 1996 page four of the Human Life Alliance Advertising Supplement page 21 of the pdf Consistently Opposing Killing From Abortion to Assisted Suicide the Death Penalty and War by Rachel MacNair and Stephen Zunes April 2008 Westport Connecticut Praeger page 4 quoted from the February 15 1998 Milwaukee Journal Sentinel Sarah Weddington lawyer in Roe v Wade case dies at 76 by Kate McGee Texas Tribune December 26 2021 Archived December 26 2021 Roe v Wade 410 U S 113 1973 at 152 153 Justia US Supreme Court Center January 22 1973 Retrieved May 30 2022 a b Liptak Adam May 8 2022 If Roe Falls Is Same Sex Marriage Next The New York Times Archived from the original on May 8 2022 Retrieved May 30 2022 Bazelon Emily May 20 2022 America Almost Took a Different Path Toward Abortion Rights The New York Times Archived from the original on May 20 2022 Retrieved May 30 2022 a href Template Cite news html title Template Cite news cite news a CS1 maint bot original URL status unknown link Sosin Kate Rummler Orion May 6 2022 LGBTQ What happens if Roe v Wade is overturned LGBTQ legal experts are worried about civil rights 19thnews org Archived from the original on May 28 2022 Retrieved May 28 2022 San Antonio Independent School District v Rodriguez and Its Aftermath by Jeffrey S Sutton Virginia Law Review Volume 94 Number 8 December 2008 page 1968 page 6 of the pdf San Antonio Independent School District v Rodriguez 411 U S 1 1973 at 33 and footnote 76 justia com a b c San Antonio Independent School District v Rodriguez 411 U S 1 1973 at 101 Marshall J dissenting justia com In Search of Human Nature The Decline and Revival of Darwinism in American Social Thought by Carl N Degler New York Oxford University Press 1991 page 48 footnote In 1996 literary scholar Roger Shattuck also observed that Roe v Wade exploited a preexisting lack of protection for procreation in American jurisprudence See Forbidden Knowledge From Prometheus to Pornography by Roger Shattuck San Diego California Harcourt Brace and Company 1996 page 197 footnote San Antonio Independent School District v Rodriguez 411 U S 1 1973 at 100 Marshall J dissenting justia com San Antonio Independent School District v Rodriguez 411 U S 1 1973 at 102 103 Marshall J dissenting justia com Perfection The Perfection The Fatality of Down Syndrome by Mallory Baucom Undergraduate honors thesis Gardner Webb University December 2018 page 11 page 12 of the pdf Prenatal Tort Slippage Health Matrix The Journal of Law Medicine Volume 31 Issue 1 2001 page 222 page 3 of the pdf Fox Dov June 11 2018 Privatizing procreative liberty in the shadow of eugenics Journal of Law and the Biosciences 5 2 355 374 doi 10 1093 jlb lsy011 PMC 6121041 PMID 30191069 Retrieved September 12 2020 What s Unconstitutional About Wrongful Life Claims Ask Jane Roe by Bruce R Parker Scott C Armstrong and Thomasina Poirot Defense Counsel Journal Volume 87 Number 3 July 2020 page 2 Gleitman v Cosgrove 49 N J 22 1967 227 A 2d 689 justia com a b Raleigh Fitkin Paul Morgan Mem Hosp v Anderson 42 N J 421 1964 justia com In re Brown Fifth Division December 31 1997 No 1 96 2316 justia com When a Parent s Religious Belief Endangers Her Unborn Child by Faith Lagay Virtual Mentor Volume 7 Issue 5 May 2005 pages 375 378 for general context see Jehovah s Witnesses and blood transfusions Reagan Ronald Interview With Eleanor Clift Jack Nelson and Joel Havemann of the Los Angeles Times June 23 1986 Retrieved January 23 2007 Archived December 21 2021 City of Akron v Akron Center for Reproductive Health 462 U S 416 1983 a b Thornburgh v American College of Obstetricians and Gynecologists 476 U S 747 1986 Abortion and Constitution United States and West Germany by Donald P Kommers 1977 page 267 page 14 of the pdf a b Jonas Robert E John D Gorby German Constitutional Court Abortion Decision English translation of German text The John Marshall Journal of Practice and Procedure 9 605 Retrieved January 2 2022 Abortion and Constitution United States and West Germany by Donald P Kommers 1977 page 268 page 15 of the pdf Abortion and Constitution United States and West Germany by Donald P Kommers 1977 page 269 page 16 of the pdf R v Morgentaler 1 S C R 30 1988 V lex Planned Parenthood of Central Missouri v Danforth 428 U S 52 1976 a b Quast Gerald D 1976 Constitutional Law Blanket Parental Consent Requirement for Minor s Abortion Decision Is Unconstitutional PDF Texas Tech Law Review 8 2 394 402 PMID 11664734 Retrieved January 9 2022 I survived an abortion attempt by Jane Elliott December 6 2005 BBC News The Root and Branch of Roe v Wade by John T Noonan Jr Nebraska Law Review Volume 63 Issue 4 Article 4 1984 page 674 page 8 of the pdf Floyd v Anders 440 F Supp 535 D S C 1977 at 539 justia com The Abortion Liberty by John T Noonan Jr Human Life Review Summer 1979 Volume 5 Number 3 page 74 a b Roe 410 U S at 163 Early death as a management option became a medical practice for disabled infants the practice was legally defended under the right to privacy Early death for infants was considered a late abortion but became regulated by the Baby Doe Law See To be liberal and pro life Nat Hentoff Champion of Inconvenient Life by Cathryn Donohoe Washington Times November 6 1989 which discusses the journalism of Nat Hentoff Totenberg Nina March 4 2004 Documents Reveal Battle to Preserve Roe Court Nearly Reversed Abortion Ruling Blackmun Papers Show Morning Edition NPR Retrieved January 30 2007 Greenhouse 2005 pp 203 206 Before Roe v Wade by Linda Greenhouse and Reva B Siegel Yale Law School 2012 pages 260 261 pages 276 277 of the pdf Casey 505 U S at 55 Casey 505 U S at 56 The Casey Undue Burden Standard Problems Predicted and Encountered and the Split over the Salerno Test by Ruth Burdick Hastings Constitutional Law Quarterly Volume 23 Issue 3 Article 8 pages 830 832 pages 7 9 of the pdf Casey 505 U S at 6 Casey 505 U S at 95 Casey 505 U S at 102 Colautti v Franklin 439 U S 379 1979 justia com The viability determination requirement of 5 a is void for vagueness Casey 505 U S at 393 394 Scalia J dissenting Casey 505 U S at 989 n 5 Scalia J concurring in part and dissenting in part Stenberg v Carhart 99 830 530 U S 914 2000 Opinion of the Court law cornell edu and it proscribes not only the D amp X procedure but also the D amp E procedure Stenberg v Carhart 99 830 530 U S 914 2000 O Connor J concurring law cornell edu Stenberg v Carhart 99 830 530 U S 914 2000 Stevens J concurring law cornell edu Stenberg v Carhart 99 830 530 U S 914 2000 Ginsburg J concurring law cornell edu Stenberg v Carhart 99 830 530 U S 914 2000 Thomas J dissenting law cornell edu Stenberg v Carhart 99 830 530 U S 914 2000 Scalia J dissenting law cornell edu Stenberg v Carhart 99 830 530 U S 914 2000 Rehnquist C J dissenting law cornell edu Stenberg v Carhart 530 U S 914 958 59 2000 The fetus in many cases dies just as a human adult or child would It bleeds to death as it is torn from limb from limb The fetus can be alive at the beginning of the dismemberment process and can survive for a time while its limbs are being torn off S 3 Partial Birth Abortion Ban Act of 2003 Congress gov November 5 2003 Retrieved May 20 2019 Montopoli Brian November 7 2006 Late Term Vs Partial Birth CBS News Retrieved January 16 2020 a b Nelson Erin 2013 Law Policy and Reproductive Autonomy Bloomsbury Publishing p 121 ISBN 978 1 78225 155 2 a b Mezey Susan Gluck 2017 Stooksbury Kara E Scheb John M II Stephens Otis H Jr eds Encyclopedia of American Civil Rights and Liberties Revised and Expanded Edition 2nd ed ABC CLIO p 11 ISBN 978 1 4408 4110 1 a b c Stout David April 18 2007 Supreme Court Upholds Ban on Abortion Procedure The New York Times ISSN 0362 4331 Retrieved January 16 2020 Gonzales v Carhart 550 U S 124 2007 justia com Congress it is apparent responded to these concerns because the Act departs in material ways from the statute in Stenberg Gonzales v Carhart 550 U S 124 2007 justia com While it found that it was not facially unconstitutional it did not reject the possibility of an as applied challenge Gonzales v Carhart 550 U S 124 2007 justia com We assume the following principles for the purposes of this opinion Before viability Casey in short struck a balance The balance was central to its holding We now apply its standard to the cases at bar Concurrence Thomas Gonzales v Carhart 550 U S 124 2007 justia com Greely Henry T 2016 The End of Sex and the Future of Human Reproduction Harvard University Press p 285 ISBN 978 0 674 72896 7 The National Center For Men p 7 Archived 2018 05 02 at the Wayback Machine Dubay v Wells Archived 2010 05 27 at the Wayback Machine 442 F Supp 2d 404 E D Mich 2006 U S Court of Appeals for the Sixth Circuit case No 06 11016 PDF a b Whole Woman s Health v Hellerstedt 579 U S 2016 justia com Denniston Lyle June 27 2016 Whole Woman s Health v Hellerstedt Opinion analysis Abortion rights reemerge strongly SCOTUSblog Retrieved June 29 2016 A contractarian approach to the ethics of genetic selective abortion by Thomas Berry Journal of Law and the Biosciences Volume 3 Issue 2 May 4 2016 page 395 page 1 of the pdf Box v Planned Parenthood of Indiana and Kentucky Inc oyez org accessed January 13 2022 18 483 Box v Planned Parenthood of Indiana and Kentucky Inc May 28 2019 Opinion of Ginsburg J concurring in part and dissenting in part pages 1 2 pages 25 26 of the pdf What It Means to Be Human The Case for the Body in Public Bioethics by O Carter Snead Cambridge Massachusetts Harvard University Press 2020 footnote 146 on pages 294 295 18 483 Box v Planned Parenthood of Indiana and Kentucky Inc May 28 2019 Sotomayor per curiam page 4 page 4 of the pdf 18 483 Box v Planned Parenthood of Indiana and Kentucky Inc May 28 2019 Opinion of Thomas J concurring page 18 page 22 18 483 Box v Planned Parenthood of Indiana and Kentucky Inc May 28 2019 Opinion of Thomas J concurring pages 20 21 pages 24 25 Texas Health and Safety Code 171 207 171 208 statutes capitol texas gov Retrieved December 24 2021 Tavernise Sabrina July 9 2021 Citizens Not the State Will Enforce New Abortion Law in Texas www newyorktimes com Retrieved December 24 2021 Whole Woman s Health v Jackson No 21 463 PDF supremecourt gov December 10 2021 Retrieved December 26 2021 Gershman Jacob September 4 2021 Behind Texas Abortion Law an Attorney s Unusual Enforcement Idea The Wall Street Journal Retrieved December 24 2021 Blackburn Jeremy August 31 2021 Abortion providers scramble to respond to patients before new Texas law takes effect houstonchronicle com Retrieved December 24 2021 Text of HB 4327 PDF legiscan com Retrieved May 25 2022 Vander Ploeg Luke May 25 2022 Oklahoma Governor Signs Bill That Bans Most Abortions New York Times Retrieved May 25 2022 Zernike Kate March 14 2022 Idaho Is First State to Pass Abortion Ban Based on Texas Law The New York Times Retrieved June 15 2022 Hammer Josh June 5 2022 Roe v Wade Is Already Dead CDN Retrieved June 15 2022 a b Perry Sarah Parshall Jipping Thomas November 17 2021 Dobbs v Jackson Women s Health Organization An Opportunity to Correct a Grave Error PDF Edwin Meese III Center for Legal and Judicial Studies p 16 Legal Memorandum No 293 Gerstein Josh Ward Alexander May 2 2022 Supreme Court has voted to overturn abortion rights draft opinion shows Politico Archived from the original on May 4 2022 Retrieved May 2 2022 Gerstein Josh May 2 2022 Supreme Court 10 key passages from Alito s draft opinion which would overturn Roe v Wade Politico Archived from the original on May 4 2022 Retrieved May 4 2022 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 Crowds protest at Supreme Court after leak of Roe opinion draft The Washington Post May 3 2022 ISSN 0190 8286 Retrieved June 24 2022 Almasy Steve June 24 2022 Protests underway in cities from Washington to Los Angeles in wake of Supreme Court abortion decision CNN Archived from the original on June 25 2022 Retrieved June 25 2022 Dobbs v Jackson Women s Health Organization 597 U S 24 June 2022 a b Thomson DeVeaux Amelia June 24 2022 The Supreme Court s Argument For Overturning Roe v Wade FiveThirtyEight Archived from the original on June 25 2022 Retrieved June 26 2022 Ford Gerald September 10 1976 Letter to the Archbishop of Cincinnati American Presidency Project Santa Barbara University of California Press Reagan Ronald 1984 Abortion and the Conscience of the Nation Nelson via Wikiquote Kornblut Anne E January 22 2000 Bush Tells Addicts He Can Identify Boston Globe p A12 Foran Clare June 29 2018 The plan to overturn Roe v Wade at the Supreme Court is already in motion CNN Archived from the original on June 29 2018 Retrieved June 29 2018 Fritz Sara August 18 1992 92 Republican Convention Rigid Anti Abortion Platform Plank OKd Policy Los Angeles Times President George Bush supported abortion rights until 1980 when he switched sides after Ronald Reagan picked Bush as his running mate Bush George H W January 23 1989 Remarks to Participants in the March for Life Rally I think the Supreme Court s decision in Roe versus Wade was wrong and should be overturned Table of Supreme Court Justices Constitution Annotated Reeves Richard 2001 President Nixon Alone in the White House 1st ed Simon amp Schuster p 563 ISBN 978 0 684 80231 2 The President did not comment directly on the decision Carter Jimmy February 1 2006 Interview With Jimmy Carter Larry King Live Interview Interviewed by Larry King CNN Bourne Peter Jimmy Carter A Comprehensive Biography from Plains to Postpresidency Early in his term as governor Carter had strongly supported family planning programs including abortion in order to save the life of a woman birth defects or in other extreme circumstances Jimmy Carter on Abortion President of the U S 1977 1981 OnTheIssues org Retrieved December 16 2021 Jimmy Carter Democratic Party Should Be More Pro Life RealClearPolitics March 29 2012 Retrieved August 25 2019 Clinton Bill 2004 My Life Knopf p 229 Obama Barack 1998 Illinois State Legislative National Political Awareness Test Project Vote Smart Archived from the original on September 22 2008 Retrieved January 21 2007 Przybyla Heidi June 5 2019 Joe Biden s long evolution on abortion rights still holds surprises NBC News Joe Biden Dropped 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June 11 2007 Marcus Frances Frank Louisiana Moves Against Abortion The New York Times July 8 1989 Governor Phil Bryant signs House Bill 1390 governorbryant com April 16 2012 Archived April 20 2012 and Gov Phil Bryant signs House Bill 1390 by Lacey Russell The Daily Mississippian April 17 2012 posted to the newspaper archive on September 30 2012 Archived December 21 2021 LZ Granderson Mississippi s end run around abortion CNN July 12 2012 878 F Supp 2d 714 S D Miss 2012 C A 3 12cv436 DPJ FKB Jackson Women s Health Organization v Currier case law vlex com July 13 2012 Jackson Women s Health v Currier Civil Action No 3 12cv436 DPJ FKB leagle com April 15 2013 Archived December 10 2019 No 13 60599 in the United States Court of Appeals for the Fifth Circuit July 29 2014 cases justia com and Court rules in favor of Miss abortion clinic by Emily Le Coz The Clarion Ledger July 29 2014 Currier v Jackson Women s Health Organization scotusblog com published by Tom Goldstein and edited by James Romoser Archived May 6 2021 and No 14 997 Docket Files U S Supreme Court Archived May 11 2021 Governor Ivey Issues Statement After Signing the Alabama Human Life Protection Act May 15 2019 Office of Alabama Governor Alabama abortion law passes Read the bill by Leada Gore May 16 2019 Birmingham News Federal judge blocks Alabama abortion ban by Abbey Crain October 29 2019 Birmingham News S B No 8 Texas State Senate De Vogue Ariane September 1 2021 Texas 6 week abortion ban takes effect after Supreme Court inaction CNN Retrieved September 2 2021 S B No 8 Texas State Senate page 9 21A24 Whole Woman s Health v Jackson 594 U S 2021 September 1 2021 supremecourt gov Oral Argument Audio United States v Texas Docket Number 21 588 supremecourt gov November 1 2021 United States v Texas No 21A85 No 21 588 595 U S Sept 1 2021 PDF Supreme Court of the United States October 22 2021 Chung Andrew October 22 2021 U S Supreme Court to hear challenge to Texas abortion ban Reuters Retrieved October 22 2021 Slip Opinion 595 U S United States v Texas 2021 No 21 588 21A85 supremecourt gov December 10 2021 Supreme Court allows lawsuit challenging Texas abortion ban to continue but keeps law in effect for now by Kevin Breuninger and Dan Mangan CNBC December 10 2021 Levine P B Staiger D Kane T J Zimmerman D J February 1999 Roe v Wade and American fertility American Journal of Public Health 89 2 199 203 201 doi 10 2105 AJPH 89 2 199 PMC 1508542 PMID 9949749 S2CID 1780791 a b 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 73 doi 10 1016 j contraception 2019 07 139 ISSN 0010 7824 PMID 31376381 Levine P B Staiger D Kane T J Zimmerman D J February 1999 Roe v Wade and American fertility American Journal of Public Health 89 2 199 203 202 doi 10 2105 AJPH 89 2 199 PMC 1508542 PMID 9949749 Nguyen D K 2019 Fertility and Family Labor Supply Evidence from the United States Asia Pacific Social Science Review 19 2 206 217 206 215 Coble Yank D 1992 Induced Termination of Pregnancy Before and After Roe v Wade Trends in the Mortality and Morbidity of Women JAMA The Journal of the American Medical Association 268 22 3231 doi 10 1001 jama 1992 03490220075032 Koerth Maggie Thomson DeVeaux Amelia May 31 2022 Overturning Roe v Wade Could Make Maternal Mortality Even Worse FiveThirtyEight Retrieved June 27 2022 Greene Foster Diana November 16 2021 Yes science can weigh in on abortion law Nature 599 7885 349 Bibcode 2021Natur 599 349G doi 10 1038 d41586 021 03434 1 PMID 34785804 S2CID 244280010 Lewis Tanya May 3 2022 Overturning Roe v Wade Could Have Devastating Health and Financial Impacts Landmark Study Showed Scientific American Retrieved May 7 2022 a b Donohue J J III Levitt S D May 2001 The Impact of Legalized Abortion on Crime PDF The Quarterly Journal of Economics 116 2 381 doi 10 1162 00335530151144050 Also see Freakonomics The impact of legalized abortion on crime Abortion Legalization and Child Living Circumstances Who is the Marginal Child by Jonathan Gruber Phillip Levine and Douglas Staiger National Bureau of Economic Research Working Paper 6034 May 1997 Babies Having Fewer Babies by James Taranto wsj com OpinionJournal Dow Jones amp Company April 14 2005 Gallup Abortion Gallup January 6 2022 Saad Lydia More Americans Pro Life Than Pro Choice for First Time Gallup May 15 2009 Public Takes Conservative Turn on Gun Control Abortion Americans Now Divided Over Both Issues Pew Research Center April 30 2009 Harris Interactive November 9 2007 Support for Roe v Wade Increases Significantly Reaches Highest Level in Nine Years Archived January 1 2008 at the Wayback Machine Retrieved December 14 2007 Harris Interactive U S Attitudes Toward Roe v Wade The Wall Street Journal Online May 4 2006 Retrieved February 3 2007 a b Results on Roe v Wade Archived October 13 2008 at the Wayback Machine via Angus Reid Global Monitor 2007 Gallagher Maggie Pro Life Voters are Crucial Component of Electability Realclearpolitics com May 23 2007 Analysis How America feels about abortion The Washington Post Retrieved April 25 2017 How Americans Really Feel About Abortion The Sometimes Surprising Poll Results As Supreme Court Weighs Overturning Roe V Wade by Alison Durkee Forbes November 30 2021 Pandey Erica June 26 2022 Poll Majority of Americans disapprove of overturning Roe v Wade Axios Retrieved June 27 2022 Additional references Ziegler Mary 2015 After Roe The Lost History of the Abortion Debate Cambridge Massachusetts Harvard University Press Chemerinsky Erwin 2019 Constitutional Law Principles and Policies 6th ed New York Wolters Kluwer ISBN 978 1 4548 9574 9 Ely John Hart 1973 The Wages of Crying Wolf A Comment on Roe v Wade Yale Law Journal 82 5 920 49 doi 10 2307 795536 JSTOR 795536 PMID 11663374 Forsythe Clarke 2013 Abuse of Discretion The Inside Story of Roe v Wade Encounter Books p 98 ISBN 978 1594036927 Garrow David J 1994 Liberty and Sexuality The Right to Privacy and the Making of Roe v Wade New York Macmillan ISBN 978 0 02 542755 6 span, wikipedia, wiki, book, books, library,

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