Primer on Roe & How We Got Here​

​

Roe has fallen so instead of just putting this on the blog I will made it a page and put it here for anyone who may need help.

​

How did we get here? (A primer on abortion laws before and after Roe and Right to Privacy)

​

​

Roe v Wade (text of the case) 

​

The case was brought by Norma McCorvey—known by 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 attorneys, 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 three-judge panel of the U.S. District Court for the Northern District of Texas ruled in her favor and declared the relevant Texas abortion statutes unconstitutional.[4] The parties appealed this ruling to the Supreme Court of the United States.

​

On January 22, 1973, the Supreme Court issued a 7–2 decision 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. But 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 trimester timetable to govern all abortion regulations in the United States. During the first trimester, governments could not regulate abortion at all, except to require that abortions be performed by a licensed physician. During the second trimester, governments could regulate the abortion procedure, but only for the purpose of protecting maternal health and not for protecting fetal life. After viability (which includes the third trimester of pregnancy and the last few weeks of the second trimester), abortions could be regulated and even prohibited, but only if the laws provided exceptions for abortions necessary to save the "life" or "health" of the mother.[6] 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]

​

~

​

In 1821, Connecticut passed the first state statute banning abortion in the United States.[13] In 1868, abortion was not legal before quickening in 27 out of all thirty-seven states. Altogether, 30 of the thirty-seven states and six of the ten U.S. territories had codified laws which restricted abortion[14] along with the Kingdom of Hawai'i where abortion had once been common.[15][16] Every state had abortion legislation by 1900.[13]

​

In the United States, abortion was sometimes considered a common law offense before specific statutes were made against it.[17] 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 felony.[18] 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 offences.[19] The majority opinion for Roe v. Wade authored in Justice Harry Blackmun's name would later claim that the criminalization of abortion did not have "roots in the English common-law tradition".[20]

​

One purpose for banning abortion was to preserve the life of the fetus,[22] another was to protect the life of the mother, another was to create deterrence against future abortions,[23] and another was avoid injuring the mother's ability to have children. Judges did not always distinguish between which purpose was more important.[24] 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.[25] This law enforcement strategy was a response to juries which refused to convict women prosecuted for abortion in the 19th century.[26] In 1973, Justice Harry Blackmun's opinion stated that "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage".[27]

​

By 1971, elective abortion on demand was effectively available in Alaska, California, Washington, D.C., Washington state, Hawaii, and New York.[28] Some women traveled to jurisdictions where it was legal, although not all could afford to.[29] In 1971, Shirley Wheeler was charged with manslaughter after Florida hospital staff reported her illegal abortion to the police. Wheeler was one of few women who were prosecuted by their states for abortion.[30] 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.[25] The Playboy Foundation donated $3,500 to her defense fund and Playboy magazine denounced her prosecution.[31] 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).[32] Her conviction was overturned by the Supreme Court of Florida.[25]

​

~

​

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.[135] 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.[136] Reproductive justice proponents contend that factors permitting choice are unequal, thus perpetuating oppression and serving to divide women.[137] 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.[138] 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.[139] 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.[140]

​

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.[132]

​

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".[141]

​

~

​

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)[210][211][212] and became a foundation for individual liberty cases concerning privacy like Lawrence v. Texas (2003) and Obergefell v. Hodges (2015).[211][213]

​

Two months after the decision in Roe, the Court issued a ruling about school funding in San Antonio Independent School District v. Rodriguez.[214] 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."[215] 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.[216] He found Roe to be a continuation of the Court's practice of granting only a limited stature to the right to procreate,[217] since the Court's decision treated procreation as less important than the right to privacy.[216] 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."[218] Instead, in Roe, "the importance of procreation has indeed been explained on the basis of its intimate relationship with the constitutional right of privacy ..."[216] 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.[219]

​

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.[220] Not all states permit a parent to sue for wrongful birth[221] or a child to sue for wrongful life.[222] The constitutionality of wrongful life claims is controversial within the legal profession, even for states which currently allow them.[223] 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.[224]

​

~

​

In Planned Parenthood v. Danforth, 428 U.S. 52 (1976),[236] 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,[237] in which chemicals are injected into the amniotic sac to burn the fetus.[238] The portions of the statute involving parental or spousal consent and prohibiting saline abortions were struck down.[237]

​

~

​

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.[239] 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."[240] 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."[241] The standard in Roe for viability outside the womb required a "capability of meaningful life".[242] Without this capability, the state had no compelling "important and legitimate interest in potential life".[242]

​

~

​

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.[140] In this case, the Court upheld several abortion restrictions, and modified the Roe trimester framework.[140]

​

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.[140] 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."[140] White had recently opined that the majority reasoning in Roe v. Wade was "warped."[230]

​

~

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,[243] and Justices O'Connor, Kennedy, and Souter joined Justices Blackmun and Stevens to reaffirm the central holding of Roe,[244] 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,[245] "Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. ..."[246] 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."[247]

​

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.[248]

​

The plurality also found that a fetus was now viable at 23 or 24 weeks rather than at the 28 week line from 1973.[249] They also felt that fetal viability was "more workable" than the trimester framework.[250] 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."[251] Only Justice Blackmun wanted to retain Roe entirely and issue a decision completely in favor of Planned Parenthood.[185] Prior to this, he had considered a Pennsylvania viability-based law to be unconstitutionally vague in his majority opinion for Colautti v. Franklin.[252]

​

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.[253] He also asked:[254]

​

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.

​

~

​

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".[255] Justice O'Connor wrote a concurrence stating Nebraska was actually banning both abortion methods.[256] 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."[257] Justice Ginsburg stated that the "law does not save any fetus from destruction, for it targets only 'a method of performing abortion'."[258]

​

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."[259] 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".[260] Chief Justice Rehnquist joined the two dissents by Justices Scalia and Thomas.[261]

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.[262]

​

~

​

In 2003, Congress passed the Partial-Birth Abortion Ban Act,[263] which led to a lawsuit in the case of Gonzales v. Carhart.[264] 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.[265] 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.[266][267] The ban at issue in Gonzales v. Carhart was similar to the one in Stenberg,[265] but had been adjusted to comply with the Court's ruling.[268]

​

On April 18, 2007, a 5 to 4 decision upheld the constitutionality of the Partial-Birth Abortion Ban Act.[267] 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.[269] The opinion did not address whether Casey remained valid. Instead it only assumed Casey was valid "for the purposes of this opinion".[270]

​

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.[271] 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.[272]

​

Justice Ginsburg, joined by Justices Stevens, Souter, and Breyer, dissented,[266] contending that the ruling ignored precedent and that abortion rights should instead be justified by equality.[267]

​

~

​

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".[273]

​

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.[274] 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.[275]

​

~

​

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.[276] On June 27, 2016, the Supreme Court in a 5–3 decision for Whole Woman's Health v. Hellerstedt struck down these restrictions.[276]

​

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.[277]

​

~

​

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.[278] 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.[279] Justice Ginsburg dissented from the part of the ruling about fetal remains on the basis that the regulations violated Casey.[280] She also criticized Justice Thomas over his use of the word "mother" in his concurrance.[281]

Justice Sotomayor stated that she wished the Court would not have heard the case at all.[282] Justice Thomas wrote a concurring opinion which expressed concern that the theory presented in Freakonomics echoed the views of the eugenics movement.[283] 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."[284]

​

~

​

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.[285][286] Because the Texas Heartbeat 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.[287] This has produced an end-run around Roe because the threat of private civil-enforcement lawsuits has forced abortion providers to comply with the Texas Heartbeat Act despite its incompatibility with the Supreme Court's abortion pronouncements.[288][289] Other states have copied this enforcement mechanism to sidestep Roe and immunize their anti-abortion statutes from judicial review.[290][291][292] This maneuver has weakened Roe and undercut the federal judiciary’s ability to protect abortion rights from state legislation.[293]

​

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 of "Whether all pre-viability prohibitions on elective abortions are unconstitutional".[294] The Court chose not to take up two other questions that Mississippi wanted to bring before the Court.[294]

​

On May 2, 2022, Politico released a leaked first draft of a majority opinion written by Justice Alito, which had been circulated among the court in February 2022. Alito's draft called the Roe decision "egregiously wrong from the start" and would allow states to decide on abortion restrictions, overturning Roe and Casey. The release of a draft opinion for a pending case is unprecedented in recent Supreme Court history. The document was not a final decision, and justices are able to change their votes. The document is 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.[295][296] A press release from the Supreme Court confirmed the leaked document's authenticity, and Chief Justice Roberts in a statement described its release as a "betrayal of the confidences of the Court".[297] The leaked draft regarding the decision has sparked protests.[298]

​

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".[299]

​

~

​

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.[324] 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.[325] Justice Blackmun supported this and other regulations protecting individual physicians and entire hospitals operated by religious denominations.[326]

​

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.[327] 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.[327] 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.[328]

​

On April 16, 2012, Mississippi House Bill 1390 was signed into law.[329] The law attempted to make abortion unfeasible without having to overturn Roe v. Wade.[330] 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.[331] 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.[332] 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".[333] On February 18, 2015, Mississippi asked the Supreme Court to hear the case, but they declined to hear it on June 28, 2016.[334]

​

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.[335] 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.[336] 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.[337]

​

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.[338] 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.[339] A clause forbids anyone who impregnated an abortion patient through rape, sexual assault, or incest to sue concerning the patient.[340] 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.[341] On October 22, 2021, the Court again did not block the law's enforcement, and agreed to hear arguments for United States v. Texas (2021) later, on November 1, 2021.[342] They limited the question to a review of standing.[343][344] On December 10, 2021, the Court dismissed the lawsuit on the basis that lower courts should not have accepted it.[345] 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.[346]

​

​- Wikipedia

​

​

Planned Parenthood v Casey (text of the case)

​

The case arose from a challenge to five provisions of the Pennsylvania Abortion Control Act of 1982; among the provisions were requirements for a waiting period, spousal notice, and (for minors) parental consent prior to undergoing an abortion procedure. In a plurality opinion jointly written by associate justices Sandra Day O'Connor, Anthony Kennedy, and David Souter, the Supreme Court upheld the "essential holding" of Roe, which was that the Due Process Clause of the Fourteenth Amendment protected a woman's right to have an abortion prior to viability.[2]

​

The Court overturned the Roe trimester framework in favor of a viability analysis, thereby allowing states to implement abortion restrictions that apply during the first trimester of pregnancy. The Court also replaced the strict scrutiny standard of review required by Roe with the undue burden standard, under which abortion restrictions would be unconstitutional when they were enacted for "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Applying this new standard of review, the Court upheld four provisions of the Pennsylvania law, but invalidated the requirement of spousal notification. Four justices wrote or joined opinions arguing that Roe v. Wade should have been struck down, while two justices wrote opinions favoring the preservation of the higher standard of review for abortion restrictions.

​

On June 24, 2022, the final opinion of Dobbs v. Jackson overturned both Casey and Roe,[3] holding "the Constitution does not confer a right to abortion" and that "the authority to regulate abortion is returned to the people and their elected representatives."[4]

​

​

This Vanity Fair article explains how the decision in Casey led to Roe's death:

​

The joint dissent in Dobbs v. Jackson Women’s Health Organization, in which a majority of the Supreme Court decided to abolish the constitutional right to abortion, is an impassioned, meticulous, and at times usefully nonplussed document. Written by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, it itemizes all the familiar, but no less horrifying, likely consequences of the Court’s opinion: rape survivors forced to bear their rapists’ children, prison terms for abortion providers, and bounty laws that “turn neighbor against neighbor . . . in the effort to root out anyone who tries to get an abortion.” It points toward a cascade of new legislation and court challenges that may result from the decision: restrictions on interstate travel for abortion providers and patients, criminal sanctions on women who seek abortions, the reversal of other Court decisions that safeguard liberty and equality, even a federal ban on abortion. (The last of these will not seem far-fetched if Republicans win back Congress and the White House in 2024.) “As of today,” the three dissenting Justices write, “this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare.”

But the dissent in Dobbs has a blind spot, and it has to do with Planned Parenthood v. Casey, the case decided in 1992 that revisited and revised Roe v. Wade. It is somewhat understandable that Casey has not become synonymous with the American abortion debate in the same way that Roe did, or that Dobbs will. After all, Casey neither established nor rescinded reproductive freedom for women in America. But our vague, muddled grasp of Casey—and its vague, muddled wording—is integral to its power: Casey’s role in emboldening anti-abortion activists and curtailing abortion rights unfolded quietly and gradually, state by state, bill by bill. The decision epitomized a centrist, compromising approach to bodily autonomy, one that ostensibly sought comity between opposing sides, but which permitted the language, precepts, and assumptions of the anti-abortion movement to seep into the mainstream discourse on reproductive rights. The road to Dobbs was cleared in part by Casey.

​

For nineteen years, up until the decision in Casey, Roe v. Wade held that the government had no “compelling interest” in a pregnancy whatsoever during the first trimester, when the vast majority of abortions are performed. Writing for the majority in Roe, Justice Harry Blackmun stated that, for those first twelve or so weeks:

​

The attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State. With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability.

​

The language of Roe is regrettably patriarchal, as it casts the pregnant woman as a mere consultant to the (male) physician. But the protective boundaries that Roe marked around reproductive freedom were bright and unmistakable. The state had no business anywhere near abortion decisions in the first trimester. It could only intervene in the second trimester in order to protect maternal health. And, before viability, it could not restrict abortion for the purposes of “protecting fetal life.”

Justice Alito posits, in Dobbs, that Roe v. Wade was less a constitutional decision than a poor imitation of “a statute enacted by a legislature,” and a mockery of substantive due process. It is received wisdom among many centrist and liberal Court observers, too, that Roe was a weak decision—a political position in search of a constitutional justification. The first time I heard this sentiment expressed was by a professor in a constitutional-law class I took as an undergraduate, a quarter century ago; I shared and even parroted this view for years as consensus, as fact. But Roe was pretty awesome at what it intended to do, which was to insure, for the first time, a woman’s self-evident right to possession of her own body. The success of the sustained right-wing backlash against Roe is less an indictment of the decision itself than of the flaccid, hand-wringing, extremely Democratic Party response to the backlash by some of the liberals who might have been expected to be Roe’s staunchest defenders. The skeptics included Ruth Bader Ginsburg, who somehow believed that a Roe-like abortion decision would have been less likely to be strafed by the Moral Majority had it been based on equal protection rather than substantive due process.

​

An illustration of the strength of Roe’s framework can be found in the 1983 Supreme Court case City of Akron v. Akron Center for Reproductive Health, which concerned an anti-abortion city ordinance. The Court found every single one of the rules at issue—including parental notification and consent; a twenty-four-hour waiting period; a requirement that second-trimester abortions be performed in hospitals; and a script in which a patient was told, among other things, that life begins at conception—to be unconstitutional. The Court correctly identified the restrictions as efforts to stall or change a woman’s decision to end her pregnancy—in other words, as efforts to protect fetal life, which Roe did not condone before viability. One of the dissenters in Akron was a relatively new Justice, and the first woman ever named to the Court, the Reagan appointee Sandra Day O’Connor. According to Evan Thomas’s biography of O’Connor, she wrote in her personal notes at the time that the “interest of the state in protecting the unborn is essentially the same at all stages of pregnancy,” which meant, in her view, that regulations were permissible throughout. She disagreed with viability as a useful borderline for deciding abortion law, believing that medical advances would likely keep pushing it earlier and earlier. (Roe v. Wade, in 1973, placed its earliest estimate of viability at twenty-four weeks, which still roughly holds.)

O’Connor went on to co-author the plurality opinion in Planned Parenthood v. Casey, which took up provisions of a Pennsylvania abortion law that required a twenty-four-hour waiting period; counselling; and, depending on the patient, spousal or parental consent. As in Akron, all of these restrictions appeared to contravene the trimester framework of Roe. But, a decade later, the Court had a majority that was widely expected to reject that framework. The decision in Casey, in the end, was a compromise brokered by O’Connor and two of the other newer Justices, David Souter and Anthony Kennedy. It did reaffirm the constitutional right to abortion—and yet, with the exception of the spousal-notification requirement, it upheld the abortion restrictions at hand in the Pennsylvania law. As the plurality explained, “to promote the State’s interest in potential life throughout pregnancy, the State may take measures to ensure that the woman’s choice is informed.” The government could now enact restrictions on abortion care at any time before viability, so long as they did not place “an undue burden on a woman’s constitutional right to decide to terminate a pregnancy.” But a definition of this brand-new “undue burden” standard—or another phrase deployed in the decision, “substantial obstacle”—was not forthcoming in the opinion. Anti-abortion forces could now test its meaning in the courts, with the onus on abortion-rights advocates to prove which burdens were undue. Three Republican-appointed Justices—O’Connor, Kennedy, and Souter—saved Roe, it seemed, by critically wounding it. (Meaghan Winter wrote an excellent piece for Slate in 2016 on the historical background and the practical effects of the Casey decision.)

​

Roe was far from perfect, but it was, to a great extent, clear, definitive, quantifiable; Casey, with its hazy, conciliatory talk of “undue burdens,” was not. Roe sought to make procuring an abortion as frictionless as possible; Casey sought to uphold the right while allowing states to second-guess and nitpick and means-test it within an inch of its life. (In the year that Casey was decided, Bill Clinton made the prim slogan “Abortion should be safe, legal, and rare” into a refrain of his Presidential candidacy.) Roe shut the door before the second trimester; Casey opened it. And anti-abortion advocates have been pushing through that door ever since, using legislative measures that have little other pretense than to discourage, delay, and thwart abortion care. Abortion providers in various states have been legally compelled to tell patients that life begins at conception or that a medication abortion can be reversed midway (it can’t). Six states have mandated seventy-two-hour waiting periods between two required visits. So-called crisis pregnancy centers, which fraudulently pose as abortion clinics in order to persuade women to continue unwanted pregnancies, have proliferated unchecked in swaths of the country. A 2013 Texas law, which required that abortion providers have admitting privileges at nearby hospitals and held abortion clinics to the same standard as ambulatory surgical centers, stood for three years and shut down half the clinics in the state before it was invalidated by the Supreme Court case Whole Woman’s Health v. Hellerstedt, in which Justice Breyer wrote the majority opinion.

​

Given the distinctions between Roe and Casey, and the ways in which the latter undermined the former, it is strange that the dissenting Justices write, in Dobbs, that “Roe and Casey well understood the difficulty and divisiveness of the abortion issue. . . . And the Court recognized that ‘the State has legitimate interests from the outset of the pregnancy in protecting’ the ‘life of the fetus that may become a child.’ ” Roe, emphatically, did nothing of the kind. (The dissent later self-corrects on this point, but it is startling that it conflates the two decisions in the first place.) The dissent is appealing to precedent, to stare decisis, and thus is understandably invested in defending the three-decade benchmark set by Casey. It declares, for example, that Casey’s undue-burden schema has “nothing unworkable” about it, that it “has given rise to no unusual difficulties.” It’s true that judges have not had unusual difficulty applying “undue burden” to evaluate the abortion restrictions they’ve had to strike down or uphold. But one imagines that a physician finds it “unworkable” to be forced, by law, to tell a patient that abortion raises her risk of breast cancer (it doesn’t). One can be sure that any number of patients have found “unusual difficulties” in travelling long distances to clinics and trying to make a seventy-two-hour waiting period somehow align with inflexible work schedules and child-care arrangements and budgeting for hotel accommodations.

Planned Parenthood v. Casey made it harder for millions of people to obtain abortion care. It played a role in preventing some untold number from seeking or obtaining abortions at all. It helped to create obstetric deserts across the U.S. It made a world without access to abortion—the world of Dobbs—seem possible. It never unseated Roe in the popular imagination, but it did something more meaningful: it reified, both conceptually and linguistically, the idea that the government has a legitimate interest in “the life of the fetus” from “the outset of pregnancy.” This is a reactionary idea, even coming from three pro-choice Justices. Reproductive freedom as a constitutional right was not destroyed until Friday, but American jurisprudence had given quarter to the anti-abortion side’s terms, its language, its version of history and precedent, for thirty years already. ♦

​

​

Thirteenth Amendment 

​

Section 1
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

​

Section 2
Congress shall have power to enforce this article by appropriate legislation.

​

- Constitution.Congress.gov

​

​

The Thirteenth Amendment (Amendment XIII) to the United States Constitution abolished slavery and involuntary servitude, except as punishment for a crime. The amendment was passed by the Senate on April 8, 1864, by the House of Representatives on January 31, 1865, and ratified by the required 27 of the then 36 states on December 6, 1865, and proclaimed on December 18. It was the first of the three Reconstruction Amendments adopted following the American Civil War.

​

President Abraham Lincoln's Emancipation Proclamation, effective on January 1, 1863, declared that the enslaved in Confederate-controlled areas were free. When they escaped to Union lines or federal forces—including now-former slaves—advanced south, emancipation occurred without any compensation to the former owners. Texas was the last Confederate territory reached by the Union army. On June 19, 1865—Juneteenth—U.S. Army general Gordon Granger arrived in Galveston, Texas, to proclaim the war had ended and so had slavery (in the Confederate states). In the slave-owning areas controlled by Union forces on January 1, 1863, state action was used to abolish slavery. The exceptions were Kentucky and Delaware, where slavery was finally ended by the Thirteenth Amendment in December 1865.

​

In contrast to the other Reconstruction Amendments, the Thirteenth Amendment has rarely been cited in case law, but it has been used to strike down peonage and some race-based discrimination as "badges and incidents of slavery". The Thirteenth Amendment has also been invoked to empower Congress to make laws against modern forms of slavery, such as sex trafficking.

​

Since 1776, the Union had divided into states that allowed slavery and states that prohibited it. Slavery was implicitly recognized in the original Constitution in provisions such as Article I, Section 2, Clause 3, commonly known as the Three-Fifths Compromise, which provided that three-fifths of each state's enslaved population (“other persons”) was to be added to its free population for the purposes of apportioning seats in the United States House of Representatives, its number of Electoral votes, and direct taxes among the states. Article IV, Section 2, provided that slaves held under the laws of one state, who escaped to another state, did not become free, but remained slaves.

​

Though three million Confederate slaves were in fact eventually freed as a result of Lincoln's Emancipation Proclamation, their post-war status was uncertain. To ensure the abolition was beyond legal challenge, an amendment to the Constitution to that effect was initiated. On April 8, 1864, the Senate passed an amendment to abolish slavery. After one unsuccessful vote and extensive legislative maneuvering by the Lincoln administration, the House followed suit on January 31, 1865. The measure was swiftly ratified by nearly all Northern states, along with a sufficient number of border states (slave states not part of the Confederacy) up to the assassination of President Lincoln. However, the approval came via his successor, President Andrew Johnson, who encouraged the "reconstructed" Southern states of Alabama, North Carolina, and Georgia to agree, which brought the count to 27 states, leading to its adoption before the end of 1865.

​

Though the Amendment abolished slavery throughout the United States, some black Americans, particularly in the South, were subjected to other forms of involuntary labor, such as under the Black Codes, as well as subjected to white supremacist violence, and selective enforcement of statutes, besides other disabilities.

​

- Wikipedia