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THE SYMBIOSIS OF ABORTION AND PRECEDENT, 134 Harv. L. Rev.
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134 Harv. L. Rev. 308
Harvard Law Review

November, 2020
The Supreme Court 2019 Term
Comment
Melissa Murraya1
Copyright © 2020 by The Harvard Law Review Association; Melissa Murray
THE SYMBIOSIS OF ABORTION AND PRECEDENT

Judges have to have the humility to recognize that they operate within a system of precedent ....
--Then-Judge John G. Roberts, Jr.1
[Stare decisis is] important because it reflect[s] the view that courts should respect the judgments and the wisdom that are
embodied in prior judicial decisions.
--Then-Judge Samuel A. Alito, Jr.2
Introduction
During his 2016 presidential campaign, Donald Trump repeatedly described himself as “pro-life”3 and vowed, if elected, to
appoint Supreme Court Justices who would be reliable votes to overturn Roe v. Wade,4 the 1973 decision that expanded on
prior interpretations of the Fourteenth Amendment5 to conclude that the right to privacy was “broad enough to encompass a
woman's decision whether or not to terminate her pregnancy.”6
When President Trump put forth two nominees to the United States Supreme Court, then-Judge Gorsuch and then-Judge
Kavanaugh, the confirmation proceedings unsurprisingly unfolded in the shadow of the *309 President's pro-life promises.
As has been the recent practice for nominees to the Court,7 both then-Judge Gorsuch and then-Judge Kavanaugh avoided
providing specific views about abortion rights and instead “made the customary noises”8 about stare decisis and respect for
settled precedent.9 Although neither nominee specifically stated his views about the continued longevity of Roe v. Wade,
discussion of respect for precedent and stare decisis has become a stand-in for a more fraught conversation about the future
of abortion rights.10
Latin for “to stand by what has been decided,” stare decisis is a cornerstone of the Anglo-American legal tradition.11 By its
terms, stare decisis demands that lower courts follow the decisions of superior courts and that the United States Supreme Court
defer to past decisions on the same, or similar, issues.12 And while a court may overturn its own *310 precedent, the demands
of stare decisis suggest that such a step should be taken only if strong reasons exist for doing so.13
For the last fifty years, the debate over what it means to observe the strictures of stare decisis and follow precedent has centered
largely around a single decision: Roe v. Wade.14 Not only is every Supreme Court nominee quizzed about her views on the role
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THE SYMBIOSIS OF ABORTION AND PRECEDENT, 134 Harv. L. Rev. 308
of precedent in decisionmaking and, indirectly, the continued vitality of Roe v. Wade, but each abortion case that comes before
the Court is also framed in the context of whether it will provide the Court with the opportunity to overrule or uphold Roe.15
In this regard, stare decisis is the alpha and the omega of the Supreme Court's abortion jurisprudence. Because of stare decisis,
Justices, regardless of their views as to whether Roe was correctly decided or properly reasoned, have been reluctant to jettison
entirely the 1973 decision.16 And yet, the Court's failure to formally overrule Roe has cemented the decision's position as a
precedent, legitimizing the abortion right to the dismay of abortion opponents. On this account, stare decisis is both the reason
why Roe cannot be overturned and the reason why it must be.
But it is not simply that stare decisis principles are the alpha and the omega that shape the Court's approach to abortion; it is
also that the Court's abortion jurisprudence, in turn, informs its approach to stare decisis. That is, conflicts over the scope and
substance of the abortion right have shaped our understanding of what is precedential and what it means to follow precedent.
Indeed, it has been in the context of the Court's abortion jurisprudence itself that the Justices have sought to delineate when--
and how-- they adhere to, or depart from, past precedents. In this regard, the relationship between stare decisis and the law
of abortion is not confined to disputes over the constitutionality *311 of a particular abortion restriction or even whether the
Constitution recognizes a fundamental right to choose an abortion. Instead, the relationship between the two informs every
dispute in which the Court considers whether and how to defer to its past decisions.
The relationship between stare decisis and the Court's abortion jurisprudence is evident in the Court's disposition of June
Medical Services L.L.C. v. Russo,17 a challenge to Louisiana's Act 620,18 which required physicians providing abortions to have
admitting privileges at a local hospital.19 Although the Court voted 5-4 to invalidate the challenged law,20 the Justices were
fractured in their reasoning and the guidance they provided to lower courts judging future abortion restrictions.21 Indeed, one of
the few points of agreement among all nine Justices was that principles of stare decisis dictated the outcome in the instant case.22
It is perhaps unsurprising that all of the opinions in June Medical Services focused heavily on stare decisis and fidelity to
precedent. After all, the case bore striking similarities to Whole Woman's Health v. Hellerstedt,23 a challenge to a virtually
identical Texas admitting privileges law that the Court decided only four years earlier.24 But it was not just that, as a settled
precedent squarely on point, Whole Woman's Health obviously should have dictated the outcome in June Medical Services.
Stare decisis dominated the Court's disposition of June Medical Services in the same way that it has come to dominate almost
every case that implicates the constitutional right to abortion.
*312 Using June Medical Services as a point of entry, this Comment surfaces and examines the complicated and constitutive
relationship between the Court's approach to stare decisis and its abortion-related jurisprudence. This Comment proceeds in
four parts. Part I considers the relationship between stare decisis and the Court's abortion jurisprudence. Focusing specifically
on Planned Parenthood v. Casey25 and Gonzales v. Carhart,26 it argues that stare decisis and precedent have come to shape the
public conflict over abortion rights and, more particularly, the Court's efforts to resolve that conflict in its jurisprudence.
Part II turns to June Medical Services v. Russo to elaborate the relationship between stare decisis and the Court's abortion
jurisprudence. Specifically, it focuses on Chief Justice Roberts's concurrence27 to show that the dynamics identified in Casey
and Gonzales are not isolated, but rather are part and parcel of the Court's efforts to delineate the scope and substance of the
abortion right. As this Part explains, the Chief Justice's concurrence wrestled with the question of what it means to be faithful
to past precedent. While the Chief Justice acknowledged that, under principles of stare decisis, Whole Woman's Health, the
Court's most recent abortion decision, controlled,28 he was nonetheless selective about which aspects of the 2016 decision
demanded deference.29 This selective approach to stare decisis transformed the meaning--and precedential value--of Whole
Woman's Health, as well as the standards by which abortion restrictions will be judged going forward.

Part III argues that even as stare decisis has shaped the Court's abortion jurisprudence, the doctrine has in turn been shaped
by the Court's abortion jurisprudence. To elaborate this claim, this Part first explains how Casey has informed much of the
Court's jurisprudence on stare decisis. Relatedly, it shows how the Court's abortion jurisprudence has served as both a blueprint
and a roadmap for dealing with precedent in nonabortion contexts. More provocatively, this Part argues that Roe and the
abortion right shadow all of the Court's efforts to define and observe the requirements of stare decisis. Part IV considers the
normative implications of the abortion jurisprudence's influence on the Court's approach to precedent. The Comment then
briefly concludes.
*313 I. Stare Decisis and Abortion
Concerns about stare decisis have long shaped the Court's abortion jurisprudence.30 In Roe v. Wade, the Court recognized a
constitutional right to choose an abortion.31 In the half century that has followed, the Court has faced a series of abortion-related
legal challenges,32 many of which have presented the question of whether Roe was properly decided.33 In these disputes, in
particular, stare decisis has shaped the *314 Court's disposition of the cases. For example, throughout the 1980s, the Court
entertained a series of cases that implicated Roe or openly challenged it.34 Although some members of the Court insisted that
Roe was wrongly decided and should be overruled,35 a majority of the Court, nodding to stare decisis, avoided overruling a
decision so recently rendered.36 To do so, one Justice fretted, would undermine the predictability and legitimacy of the Court's
pronouncements.37
By 1992, a new challenge, Planned Parenthood of Southeastern Pennsylvania v. Casey, seemed poised to overrule Roe. In a
surprising turn, however, the Casey Court declined to do so.38 Guided by “principles of institutional integrity, and the rule of
stare decisis,” the Court instead reaffirmed Roe's “essential holding” that there is an individual right to terminate a pregnancy.39
Because it explicitly declined to overrule Roe, Casey is widely credited with “saving” the 1973 decision.40 But even as the Casey
plurality professed fidelity to stare decisis and rejected claims that Roe was improperly reasoned, it did not leave Roe intact.
The Casey joint opinion abandoned Roe's trimester framework, decrying its “elaborate but rigid construct” as “unnecessary”
and, more troublingly, an undue limit on “the State's permissible exercise of its powers.”41 The Casey plurality also abandoned
strict scrutiny as the appropriate standard of review for *315 abortion regulations, in favor of the more permissive “undue
burden” standard.42 The profundity of Casey's alterations did not go unnoticed. As Chief Justice Rehnquist archly observed in
dissent, the joint opinion “retains the outer shell of Roe v. Wade but beats a wholesale retreat from the substance of that case.”43
In deference to stare decisis, Casey declined to explicitly overrule Roe v. Wade.44 But in truth, Casey's fidelity to Roe was
selective--the joint opinion deferred to certain aspects of Roe, while abandoning others.45 And in so doing, Casey dramatically
altered the abortion landscape, allowing states broader authority to slowly strangle access to abortion via a steady stream of
restrictions and regulations.46 On this account, declining to overrule Roe was a mere formality. In practical effect, by authorizing
states to legislate abortion rights out of existence, Casey overruled much of Roe's substance, substantially curtailing access to
abortion for most women.47
But if Casey effectively overruled Roe, it also made clear why, for some, actually overruling the 1973 decision remained urgent
and necessary. For abortion opponents, it was not enough to gut Roe and sharply *316 limit abortion access. Casey's failure
to formally overrule Roe left the 1973 decision standing as a precedent--and in so doing, further entrenched the view that the
Constitution recognizes and protects a right to choose an abortion.48 In this regard, for abortion opponents, Casey was both
a practical victory and an incalculable loss. In a legal tradition where respect for precedent looms large, functional victories

are hollow and inadequate. Stare decisis does not simply demand respect for precedent as settled law; “by giving the veneer of
respectability”49 to the underlying precedent, it fuels the view that the precedent is properly reasoned and correct.
With this dynamic in mind, it is no surprise that when disputes over abortion rights come before the Court, they often turn
on whether and how to apply extant precedent--and more particularly, whether and how to protect Roe and other precedents
recognizing a right to abortion. Gonzales v. Carhart is illustrative of this dynamic. There, the Court took up a challenge to
the federal Partial-Birth Abortion Ban Act of 200350 (PBABA), which prohibited the performance of certain second-trimester
abortions.51 Critically, in enacting the challenged law, Congress explicitly understood itself to be testing the limits of precedent
and stare decisis. Just three years earlier, the Court, in Stenberg v. Carhart,52 struck down a similar Nebraska statute partly
because the law lacked a health exception that would allow the use of the prohibited abortion method where necessary to
preserve the woman's health.53 In enacting the federal ban, Congress deliberately excluded a health exception, thus provoking
a direct challenge to the Court's precedents.54
*317 In Gonzales, a narrow 5-4 majority rejected two facial challenges to the PBABA55 and, in so doing, all but ignored the
2000 decision in Stenberg and instead offered a narrow reading of Casey. Writing for a majority that included Chief Justice
Roberts and Justices Scalia, Thomas, and Alito, Justice Kennedy distinguished the facts of Stenberg from those in Gonzales,
thereby diminishing Stenberg's relevance to the Court's determinations.56 And though he “assume[d]” that Casey controlled,57
Justice Kennedy explicitly noted that the Casey joint opinion “did not find support from all those who join the instant opinion.”58
Instead, Justice Kennedy and his fragile majority focused narrowly on one aspect of Casey--the joint opinion's conclusion that
“the government has a legitimate and substantial interest in preserving and promoting fetal life.”59 This premise, which Justice
Kennedy deemed “central” to the joint opinion's holding, “would be repudiated” were the Court to invalidate the PBABA.60
To this end, in considering the challenged statute, Justice Kennedy asserted that the federal abortion ban could be justified in
part as reflecting the government's interest in protecting women from the regret and emotional consequences they may suffer
in the wake of choosing an abortion.61
As with Casey, Gonzales underscores the degree to which concerns about stare decisis and, particularly, deference to Roe
have shadowed and shaped the Court's abortion jurisprudence. The Gonzales majority pantomimed respect for precedent by
“assum[ing]” that Casey controlled.62 At the same time, however, it went to broad lengths to distinguish--and neuter--Stenberg's
precedential impact, while reducing Casey to a narrow endorsement of the state's interest in protecting fetal life. But even as
the majority's disposition of Gonzales focused on the weight of Stenberg and Casey, its efforts to narrow the scope of these
applicable precedents obviously implicated Roe--a point that Justice Ginsburg raised in a vigorous dissent.
Writing on behalf of herself and Justices Stevens, Souter, and Breyer,63 Justice Ginsburg made clear that the majority's casual
regard for precedent had broad implications for Roe and the abortion right. Despite its nod to stare decisis, the majority's
decision was, in Justice Ginsburg's view, an “alarming”64 “effort to chip away at a right declared *318 again and again by
this Court.”65 Not only did the decision “refuse[] to take Casey and Stenberg seriously,”66 “blur[ring] the line, firmly drawn in
Casey, between previability and postviability abortions,”67 but the Court also had, “for the first time since Roe, ... blesse [d]
a prohibition with no exception safeguarding a woman's health.”68 And perhaps most troubling of all, the majority's uncritical
acceptance of the narrative of “abortion regret” reflected its prioritization of what Justice Ginsburg termed “an antiabortion
shibboleth” over medical evidence,69 creating an “undisguised conflict with Stenberg.”70
Justice Ginsburg's point was clear. Although the majority in Gonzales did not confront Roe directly, as the Casey plurality
had done, it nonetheless did not miss an opportunity to reflect upon--and revisit--the question of whether Roe was properly
decided. And to the extent that stare decisis limited the majority's predisposition to cast Roe as a constitutional impropriety,

Casey furnished the template for achieving a similar practical result. In lieu of explicitly overruling an abortion precedent, the
Court could simply distinguish or narrow past decisions, entirely undermining their force and scope.
And even in cases like Gonzales, where there was no direct conflict with Roe, the strategy of nodding to precedent, while
simultaneously limiting it, could also incrementally lay a foundation for eventually overruling Roe and reimagining a more
cabined understanding of abortion rights. In this regard, every abortion challenge--from Casey forward--is both a test of the
Court's commitment to its precedents and a fresh opportunity to utterly reimagine those precedents. And all of this ineluctably
points to Roe. At bottom, the perfunctory performance of stare decisis in which the Court engages in every abortion challenge
is one that leads inexorably to a single, preordained outcome--a final confrontation with Roe and the vexed question of whether
the Court will overrule its most controversial decision.
Accordingly, every abortion-related challenge that the Court faces is a test of the Court's commitment to stare decisis and,
indirectly, its stomach for preserving Roe. And this dynamic can be glimpsed in the Court's most recent foray into the abortion
debate: June Medical Services.
*319 II. June Medical Services v. Russo
From the start, June Medical Services v. Russo raised questions of stare decisis. The case involved a challenge to Louisiana's
Act 620, a 2014 law that required physicians providing abortions to secure admitting privileges at a local hospital.71 That June
Medical Services was even before the U.S. Supreme Court raised eyebrows. Just three years earlier, in Whole Woman's Health
v. Hellerstedt, the Court struck down, in a 5-3 decision, a virtually identical Texas admitting privileges law.72 As the Court
in that case explained, under the undue burden standard announced in Planned Parenthood v. Casey, an abortion restriction
could be upheld only if it did not have the “purpose or effect” of “plac[ing] a substantial obstacle in the path of a woman
seeking” a previability abortion.73 To determine whether an abortion restriction was a substantial obstacle, courts were required
to “consider the burdens a law imposes on abortion access together with the benefits those laws confer.”74
These instructions were intended both to clarify Casey's amorphous “substantial obstacle” language75 and to inject more rigor
into the calculus in the wake of Gonzales. On this logic, courts could not simply decide what obstacles were so substantial as to
be impermissible and what obstacles fell within constitutional limits. Instead, lower courts were obliged to weigh the benefits
that the state hoped to achieve through the legislation against the burdens that the legislation imposed.76 If the burdens exceeded
the likely benefits, then the challenged law posed a substantial obstacle under Casey.77
Relying on Whole Woman's Health, a Louisiana federal district court weighed the purported benefits against the burdens imposed
and found that, if permitted to go into effect, Act 620 would leave Louisiana with only one physician available to perform
abortions in the early stages of pregnancy and none available to perform abortions between seventeen and twenty-one weeks
of pregnancy.78 Although the state claimed that *320 the law was intended to ensure that physicians providing abortions
had proper credentials, thereby protecting women's health, the court concluded that the burden on abortion access grossly
outweighed the limited benefits that the challenged law achieved.79 Accordingly, the district court enjoined Louisiana from
implementing the admitting privileges requirement on the ground that it unconstitutionally imposed an “undue burden” on a
woman's right to an abortion.80
The U.S. Court of Appeals for the Fifth Circuit, however, reversed that ruling.81 The court conceded that it was “bound to apply
[Whole Woman's Health]”82 and weigh the benefits of Act 620 against the burdens imposed,83 but it maintained that “the facts
in the instant case are remarkably different” from Whole Woman's Health.84 According to the court, “[u]nlike Texas, Louisiana
presents some evidence of a minimal benefit” and “far more detailed evidence of Act 620's impact on access to abortion.”85 “In
light of the more developed record,” the Fifth Circuit then purported to weigh the benefits and burdens and concluded that “[i]n

contrast to Texas's H.B. 2, Louisiana's Act 620 does not impose a substantial burden on a large fraction of women,” thus allowing
the state to enforce the challenged provision.86 The full Fifth Circuit, in a 9-6 vote, denied a rehearing en banc.87 In October
2019, the Supreme Court granted the challengers' petition for certiorari, as well as the state's related petition for review.88
That the Court granted review in June Medical Services was perhaps surprising, given that it had considered the constitutionality
of an almost identical statute only a few years earlier.89 For some, the fact that four votes could be mustered to grant certiorari
under these unusual circumstances suggested that one wing of the Court was especially eager *321 to revisit the question
of abortion rights.90 Regardless of who had voted to grant certiorari, the mere fact of Court review was “likely to yield an
unusually telling decision, reshaping the constitutional principles governing abortion rights.”91
On review, the Court considered whether the challenged admitting privileges law was an undue burden on the abortion right.92
Writing for himself and Justices Ginsburg, Sotomayor, and Kagan, Justice Breyer, the author of Whole Woman's Health, applied
“the constitutional standards set forth in our earlier abortion-related cases, and in particular in Casey and Whole Woman's
Health.”93 As the plurality observed, “a statute which, while furthering [a] valid state interest has the effect of placing a
substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends.”94
On this logic, the plurality maintained that “‘[u]nnecessary health regulations' impose an unconstitutional ‘undue burden’ if they
have ‘the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.”’95 In determining whether a
challenged abortion restriction constitutes a substantial obstacle, “courts must ‘consider the burdens a law imposes on abortion
access together with the benefits those laws confer.”’96 Such an inquiry requires courts to review legislative factfinding “under
a deferential standard,”97 but, as the plurality made clear, deference does not mean an abdication of the judicial role. Instead, the
plurality cautioned, “the courts ‘retai[n] an independent *322 constitutional duty to review factual findings where constitutional
rights are at stake.”’98
In view of Casey and Whole Woman's Health, Justice Breyer then carefully weighed the purported benefits of Act 620 against the
burdens that its enforcement would entail, concluding that the district court's determination that Act 620 “would place substantial
obstacles in the path of women seeking an abortion in Louisiana”99 while providing “no significant health benefits”100 was
not “clearly erroneous.”101 In “pos[ing] a ‘substantial obstacle’ to women seeking an abortion,” the plurality concluded, the
challenged law “violate[d] the Constitution.”102
Although Chief Justice Roberts joined in the Court's judgment invalidating the Louisiana admitting privileges law, he did not join
the plurality opinion, choosing instead to write separately.103 And although he wrote only for himself, Chief Justice Roberts's
concurrence carries particular weight. As the narrowest opinion supporting the judgment, Chief Justice Roberts's concurrence
will be regarded as the controlling opinion.104
And while Chief Justice Roberts joined in the judgment,105 his concurrence was meaningfully different from the plurality
opinion. Almost immediately, the Chief Justice made clear that, even as he joined the plurality to strike down the Louisiana
law, his misgivings about abortion rights had not abated--he specifically noted that he “joined the dissent in Whole Woman's
Health and continue[d] to believe that the case was wrongly decided.”106 But despite his skepticism of abortion rights more
generally, and Whole Woman's Health in particular, other values counseled in favor of invalidating Act 620. As Chief Justice
Roberts explained, “[t]he legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike.”107
Because the Louisiana law imposed “as severe” a burden on abortion access as did the Texas law *323 invalidated in Whole
Woman's Health, the Chief Justice concluded that it “cannot stand under our precedents.”108

On this account, it would seem that stare decisis carried the day, leading a most recalcitrant Chief Justice to a decision that he
otherwise would have avoided. But even as Chief Justice Roberts extolled the virtues of stare decisis--promoting “reliance on
judicial decisions,” the “evenhanded, predictable, and consistent development of legal principles,” and the legitimacy of the
judicial process109--he also acknowledged its limits. Stare decisis is not simply “a mechanical formula of adherence to the latest
decision.”110 To the contrary, “[s]tare decisis principles ... determine how we handle a decision that itself departed from the
cases that came before it.”111
On this point, the Chief Justice's antipathy for Whole Woman's Health--and the precariousness of his commitment to stare
decisis--came into sharp focus. If fidelity to precedent demanded his vote to invalidate Act 620, it also demanded interrogating
whether Whole Woman's Health, the Court's most recent abortion decision, had been faithful to the Court's earlier abortion
decisions, particularly Planned Parenthood v. Casey.
According to Chief Justice Roberts, although the majority in Whole Woman's Health “faithfully recit[ed]” Casey's substantial
obstacle standard,112 the decision to invalidate the Texas admitting privileges law also had gone beyond Casey to “require[] that
courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”113 But “[n]othing
about Casey suggested that a weighing of costs and benefits of an abortion regulation was a job for the courts.”114 As Chief
Justice Roberts explained, if Casey required any consideration of the benefits of an abortion regulation, it was only in establishing
the “threshold requirement that the State have a ‘legitimate purpose’ and that the law be ‘reasonably related to that goal.”’115
On this telling, Whole Woman's Health was precedential only to the extent that it reiterated Casey's substantial obstacle
standard.116 By contrast, its directive to reviewing courts to weigh the benefits of an abortion regulation against its burdens
was, in Chief Justice Roberts's *324 view, a distortion of Casey's logic and holding.117 Accordingly, if stare decisis dictated
the outcome in June Medical Services, the precedent to be followed was not the full decision in Whole Woman's Health, as
the plurality maintained, but rather only those aspects of Whole Woman's Health that reiterated the more limited standard first
identified in Casey.
To underscore the point that fidelity to precedent demanded only consideration of substantial obstacles, rather than the weighing
of benefits and burdens, Chief Justice Roberts cataloged the restrictions challenged in Casey,118 all but one of which were upheld
on the ground that they did not pose a substantial obstacle to a woman seeking an abortion.119 More importantly, in reviewing
the challenged restrictions, Chief Justice Roberts noted that the Casey plurality considered only “whether there was a substantial
burden, not whether benefits outweighed burdens,”120 including in its consideration of a twenty-four-hour waiting period that
the lower court found “did ‘not further the state interest in maternal health.”’121 As a result, Chief Justice Roberts concluded
that “[t]he upshot of Casey is clear: The several restrictions that did not impose a substantial obstacle were constitutional, while
the restriction that did impose a substantial obstacle was unconstitutional.”122
Having clarified that Whole Woman's Health was controlling precedent only insofar as it affirmed the substantial obstacle
standard announced in Casey-- and rejecting any benefits-burdens balancing test as beyond the scope of Casey-- the Chief
Justice turned to whether Act 620 was an unconstitutional substantial obstacle. Noting the district court's findings “that the
Louisiana law would ‘result in a drastic reduction in the number and geographic distribution of abortion providers”’ and “longer
waiting times for appointments, increased crowding and increased associated health risk,”123 the Chief Justice thus concluded
the challenged law was an unconstitutional substantial obstacle.124
In many ways, Chief Justice Roberts's approach to precedent recalls Justice Scalia's partial concurrence in Webster v.
Reproductive Health *325 Services,125 a pre-Casey challenge to abortion funding restrictions in which the Court declined
to explicitly overrule Roe v. Wade.126 There, Justice Scalia outlined the four options before the Court when it confronted

past precedent--“to reaffirm [the precedent], to overrule it explicitly, to overrule it sub silentio, or to avoid the question.”127
According to Justice Scalia, the Webster Court took the “least responsible” path, avoiding the question of Roe entirely.128 By
contrast, in June Medical Services, Chief Justice Roberts took a dual-pronged approach--reaffirming Whole Woman's Health
for the purpose of distinguishing it and, in the process, implicitly overruling it.
Therein lies the irony of Chief Justice Roberts's approach to precedent in June Medical Services. Chief Justice Roberts invoked
stare decisis as a means of ensuring judicial modesty and restraint, noting that “[a]dherence to precedent is necessary to ‘avoid
an arbitrary discretion in the courts.”’129 Yet in the name of stare decisis and restraint, Chief Justice Roberts at once adhered
to Whole Woman's Health and simultaneously denounced the decision as a departure from past precedent (Casey). In this way,
Chief Justice Roberts's respect for precedent depended entirely on identifying those aspects of past decisions that he wished to
follow and those that he did not. Indeed, Chief Justice Roberts's version of stare decisis was so selective that one of the June
Medical Services dissenters was compelled to name it. In a dissenting opinion, Justice Alito noted that, even as the Chief Justice
“stresses the importance of stare decisis ... he votes to overrule Whole Woman's Health insofar as it changed the Casey test.”130
But the issue is not simply that Chief Justice Roberts believes that Casey alone prescribes the appropriate standard for judging
abortion restrictions;131 it is that in following only those aspects of Whole Woman's Health that, in his view, cohere with
Casey, Chief Justice *326 Roberts transformed the meaning of Whole Woman's Health--and indeed, what it means to “follow”
precedent. In a separate dissent, Justice Gorsuch noted precisely these incongruities in Chief Justice Roberts's position.132 As
Justice Gorsuch explained, though Chief Justice Roberts insisted that he was following Whole Woman's Health, Chief Justice
Roberts's claims to respect precedent were wholly unfounded in light of his rejection of the benefits-burdens balancing test.133
As Justice Gorsuch archly underscored, “whatever else respect for stare decisis might suggest, it cannot demand allegiance to
a nonexistent ruling inconsistent with the approach actually taken by the Court.”134
Taken together, the dissents by Justices Alito and Gorsuch took a dim view of Chief Justice Roberts's approach to stare decisis.
Both dissents argued that Chief Justice Roberts's characterization of Whole Woman's Health was a legal fiction--a remade ruling
utterly inconsistent with the actual holding in Whole Woman's Health.135 And they were correct. Although Chief Justice Roberts
professed allegiance to stare decisis, in fact, the vision of Whole Woman's Health that he viewed as controlling bears little
resemblance to the 2016 decision. In Chief Justice Roberts's recasting, Whole Woman's Health became the legal version of
Dorian Gray's portrait136--aging backwards until it was recognizable only as a rerendering of Casey.
This is all to say that, in June Medical Services, allegiance to stare decisis yielded a strikingly discordant outcome. In the
name of preserving and following precedent, Chief Justice Roberts purported to maintain Whole Woman's Health but utterly
transformed the case's meaning. When all was said and done, Whole Woman's Health, which was once heralded as providing
robust protections for abortion rights,137 was left desiccated--a point that did not go unnoticed by other members of the June
Medical Services Court. Surveying the jurisprudential landscape, dissenting Justice Kavanaugh observed that “[t]oday, five
Members of the Court reject the Whole Woman's Health cost-benefit standard.”138 In this regard, Chief Justice Roberts's efforts
to follow precedent led, *327 curiously, to a result in which the conservative wing of the Court rejected the substance of
Whole Woman's Health, even as a shell of the decision stands as an “homage”139 to stare decisis. That is, Chief Justice Roberts's
defense of stare decisis was also a departure from it--an effort to preserve precedent while simultaneously transforming it. Going
forward, it is the 5-4 rejection of Whole Woman's Health's benefits-burdens balancing test that will stand as the precedent that
June Medical Services established.140
Taken alongside Casey, Gonzales, and Whole Woman's Health, June Medical Services exemplifies the Court's approach to stare
decisis in the hothouse climate of abortion rights. In this politically pitched context, the Court has developed an approach to
precedent that at once has generated important, and often incremental, doctrinal changes and simultaneously preserved the

appearance of fealty to its past decisions. In these cases, the Court has distinguished and cabined earlier decisions, forging a
line of jurisprudence that entrenches the abortion right while sharply limiting its scope.141
In this way, stare decisis has profoundly shaped the Court's approach to abortion. But this is only part of the story. If stare
decisis has shaped the law of abortion, it has also, in turn, been shaped by the law of abortion. As the following Part examines,
the Court's ongoing struggle over abortion rights has inexorably influenced our understanding of what it means to follow and
be faithful to precedent.
*328 III. Abortion and Stare Decisis
As the previous Part demonstrates, questions of stare decisis and precedent shadow the Court's disposition of almost every
abortion case.142 While this insight is important, it illuminates only one facet of the symbiotic relationship between abortion
and stare decisis. Less obviously, the Court's efforts to grapple with abortion have, in turn, shaped its approach to stare decisis.
This Part develops this claim in three ways. First, it focuses on Planned Parenthood v. Casey to show how this “precedent on
precedent” has shaped not only the Court's abortion jurisprudence, but also its jurisprudence on stare decisis. It then pivots from
a granular discussion of cases to consider how the Court's abortion jurisprudence has provided a blueprint of interpretive moves
that the Court has deployed in other contexts in which it has interpreted precedent. Finally, this Part makes clear that while cases
from across the doctrinal spectrum may present questions of stare decisis, the Court's efforts to consider and apply precedent
always occur in the shadow of Roe v. Wade and the abortion right. Put differently, Roe and the abortion right function as a
gnomon, the central pillar of a sundial, casting shadows across the Court's encounters with stare decisis, even in nonabortion
contexts.
A. Abortion as “Precedent on Precedent”
In decisions in which the Court confronts questions of stare decisis, it often adverts to its prior opinions identifying whether and
how it will regard its past precedents. Not surprisingly, chief among these “precedents on precedent” is Planned Parenthood v.
Casey. In Casey, a plurality of the Court not only salvaged (and sandbagged) Roe v. Wade, but also identified a series of factors
designed to “gauge the respective costs of reaffirming and overruling a prior case.”143 Under Casey's logic, when contemplating
a departure from extant precedent, courts should consider:
[(1)] whether the rule has proven to be intolerable simply in defying practical workability; [(2)] whether the rule is
subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity
to the cost of repudiation; [(3)] whether related principles of law have so far developed as to have left the old rule
no more than a remnant of abandoned *329 doctrine; or [(4)] whether facts have so changed, or come to be seen
so differently, as to have robbed the old rule of significant application or justification.144
Critically, Casey's factors have not only guided the Court in its review of subsequent abortion cases, like Gonzales and June
Medical Services, but also explicitly informed the Court's understanding of stare decisis in nonabortion contexts. For example, in
Lawrence v. Texas,145 a challenge to a criminal prohibition on same-sex sodomy, the Court confronted Bowers v. Hardwick,146
a 1986 decision upholding a similar sodomy prohibition. In overruling Bowers, the Lawrence majority explicitly weighed the
Casey factors, concluding that Bowers had not engendered “individual or societal reliance” and had “cause[d] uncertainty, for
the precedents before and after its issuance contradict its central holding.”147

Likewise, in Agostini v. Felton,148 where the Court overruled an Establishment Clause precedent decided just twelve years
earlier,149 it referenced Casey for the proposition that “stare decisis does not prevent us from overruling a previous decision
where there has been a significant change in, or subsequent development of, our constitutional law.”150 And in Adarand
Constructors, Inc. v. Pena,151 a challenge to a federal affirmative action program, even as a plurality of the Court concluded
that there was “special justification” that warranted overruling an earlier decision,152 it was at pains to distinguish the factual
circumstances from those in Casey, where, in the context of a similarly divisive issue, the Court declined to overrule an earlier
precedent.153 The mere fact that two members of the narrow Adarand majority felt compelled to distinguish their decision from
Casey speaks to Casey's status as a critical “precedent on precedent”--both in and outside of the abortion context.
In this vein, it is unsurprising that those who disagree with a departure from precedent often root their disagreement in Casey's
logic. In Citizens United v. FEC,154 for example, Justice Stevens objected to the *330 majority's decision to depart from
established campaign finance precedents, citing Casey for the proposition that “[a] decision to overrule should rest on some
special reason over and above the belief that a prior case was wrongly decided.”155 Likewise, in his bitter dissent in Lawrence
v. Texas, Justice Scalia cataloged the myriad ways that the majority opinion was inconsistent with Casey.156 As importantly, he
argued that if, by the majority's reasoning, Bowers was an unstable precedent, then so too was Roe.157 Justice Scalia suggested
that, rather than faithfully applying Casey's factors, the majority had “revise[d]” the stare decisis calculus to suit its predisposition
toward jettisoning Bowers.158 In so doing, the majority, Justice Scalia crowed, had “exposed Casey's extraordinary deference
to precedent for the result-oriented expedient that it is.”159
In this regard, Casey not only has formed the core of the Court's post-Roe abortion jurisprudence, but also has come to serve
as a pillar of its stare decisis jurisprudence. In its detailed consideration of whether and under what circumstances to overrule
or retain Roe, Casey has informed the Court's subsequent discussions about stare decisis and precedent.
B. Abortion as Blueprint
Casey's imprint is evident on the face of the Court's stare decisis jurisprudence. Less obvious is the influence of the Court's
abortion jurisprudence on the ways that the Court applies stare decisis principles in its treatment of precedent. As this
section explains, the Court's abortion jurisprudence has also, more subtly, offered a blueprint for narrowing, limiting, and
eventually overturning earlier precedents. And meaningfully, this blueprint for gradually eroding precedent has surfaced even
in circumstances where the Court is not considering abortion or even explicitly adverting to its abortion jurisprudence.
Payne v. Tennessee,160 a 1991 challenge to the admissibility of victim impact statements, is instructive. There, a 6-3 majority
of the Court overruled two prior decisions that prescribed a per se rule prohibiting the admission of victim impact statements in
the penalty phase of a capital trial.161 In overruling the two earlier precedents, Booth v. *331 Maryland162 and South Carolina
v. Gathers,163 Chief Justice Rehnquist, who authored the majority opinion, conceded that “[s]tare decisis is the preferred
course.”164 Nevertheless, he noted that “when governing decisions are unworkable or are badly reasoned, ‘this Court has never
felt constrained to follow precedent.”’165 On this account, the per se rule against the admission of victim impact statements
“defied consistent application by the lower courts”166 and neglected criminal sentencing's concern for the injuries to the victim
and society.167 And more troublingly, it diminished the states' “traditional latitude to prescribe the method by which those who
commit murder shall be punished.”168
The Court's disposition in Payne recalled its treatment of Roe's trimester framework in City of Akron v. Akron Center
for Reproductive Health, Inc.,169 Thornburgh v. American College of Obstetricians and Gynecologists,170 and Webster v.
Reproductive Health Services,171 a trio of abortion cases decided in the 1980s. In those cases, members of the Court denounced

the trimester framework first articulated in Roe as “outmoded,”172 unduly “rigid,”173 and “on a collision course with itself.”174
In a series of moves that the Payne Court would later apply in the context of capital sentencing, those skeptical of the trimester
framework emphasized its incoherence with both obstetric practice175 and the states' traditional police powers.176 In this way,
the Payne Court's concern that the per se rule against victim impact statements was impractical and inconsistent recalled the
Court's earlier efforts to limit Roe's force.
Payne evinced an effort to translate interpretive moves used in the abortion context to other contested doctrinal arenas. But
Payne is not alone in this regard. Take, for example, the Court's decision this Term in Ramos v. Louisiana,177 where it considered
whether the Sixth *332 Amendment required that guilty verdicts for serious crimes be unanimous.178 Central to the Court's
disposition of Ramos was its treatment of an earlier case on the same issue, Apodaca v. Oregon.179 Decided in 1972 in tandem
with Johnson v. Louisiana,180 Apodaca had fractured the Court, producing together with Johnson “a tangle of seven separate
opinions.”181 By all accounts, the controlling opinion was Justice Powell's concurrence,182 which joined the judgment to uphold
the Louisiana nonunanimous jury rule, while separately noting that the Sixth Amendment's unanimous jury requirement applied
only to federal trials and was not incorporated against the states.183
In Ramos, as in Casey, stare decisis took center stage. Writing for the majority, Justice Gorsuch gestured to the Casey factors,
emphasizing the questionable “quality of [Apodaca's] reasoning” and its incoherence with Sixth Amendment doctrine.184 But
the issue was not just that Apodaca failed to appreciate the degree to which the expectation of unanimity underlay the Sixth
Amendment's jury right; it was also that the Apodaca Court failed to appreciate the “racist origins” of the Louisiana rule when
it rendered its decision in 1972.185 In this regard, the fact that Louisiana had adopted the nonunanimous jury rule in an effort
to “establish the supremacy of the white race”186 rendered Apodaca not only a Sixth Amendment “outlier,”187 but also a case
decided without due consideration of the challenged rule's complicated factual and historical context. Thus, the Ramos Court
reflected Casey's caution that new factual considerations could be a basis for reexamining--and discarding--an earlier decision,
in order to distinguish, limit, and ultimately overrule it.
C. Abortion as Roadmap
If abortion jurisprudence has served as a blueprint for reconsidering and overruling unruly precedents, then why have these
same strategies proven unsuccessful in dismantling Roe and the abortion right? Despite *333 efforts to challenge and overrule
Roe, it has stubbornly survived. And its survival means that any effort to roll back abortion rights will not be accomplished
by simply declaring some aspect of Roe unworkable or doctrinally incoherent, as the Court did with other precedents in Payne
and Ramos. Instead, a different approach is required.
This section argues that the seeds of the strategy to dismantle Roe have already been sown--in nonabortion cases that, like Payne
and Ramos, rely on an interpretation of precedent honed in the abortion context. Where this strategy departs from Payne and
Ramos is that it is not simply a “one and done” effort. Indeed, it is a strategy in which distinguishing and limiting precedent is part
of an incremental approach that, over time, destabilizes and discredits precedent, laying the foundation for later overruling.188
We have yet to see the culmination of this strategy in the context of abortion. But because abortion jurisprudence has strongly
influenced the Court's approach to precedent more generally, we can see its culmination in other doctrinal contexts. Indeed,
the template for this long-term strategy for undermining abortion rights can be glimpsed in the arc of a series of decisions
considering the constitutionality of union shop fees.
In 1977, the Supreme Court unanimously decided Abood v. Detroit Board of Education,189 upholding the constitutionality of
agency shop fees for members of a public sector union.190 Forty-one years later, in Janus v. AFSCME, Council 31,191 a 5-4
majority of the Court overruled Abood on the grounds that it was “poorly reasoned,” had “led to practical problems and abuse,”

lacked sufficiently justifiable “reliance interests,” and, most troublingly, was “inconsistent with other First Amendment cases
and ha[d] been undermined by more recent decisions.”192 Critically, when Abood was litigated, the Court explicitly considered
whether the imposition of union shop fees violated the First Amendment rights of nonunion public employees and unanimously
concluded it did not.193 If Abood had proven unworkable and posed such a profound conflict with First Amendment principles,
these frailties had *334 surfaced only recently in a series of cases that preceded Janus by just a few years.
For example, in Knox v. SEIU, Local 1000,194 decided in 2012, the Court began its reconsideration of Abood, noting that it
“assumed without any focused analysis” that the First Amendment required only that public sector employees be permitted to
opt out of certain union political expenditures.195 Two years later, in Harris v. Quinn,196 a majority of the Court distinguished
Abood on the ground that it “involved full-fledged public employees.”197 Yet, even as it found Abood distinguishable and
therefore “not controlling,”198 the Harris majority nonetheless reiterated its concerns that Abood was a First Amendment
“anomaly,”199 whose reasoning was “questionable on several grounds”--some of which “were noted or apparent at or before the
time of the decision, but several [of which had] become more evident and troubling in the years since then.”200 In Friedrichs
v. California Teachers Ass'n,201 the Court was presented with “exhaustive briefing and argument on ... whether Abood should
be overruled,”202 but Justice Scalia's unexpected death left the Court without a full complement of Justices and the Court split
evenly on the question.203 Two years later, a majority of the Court, including a newly appointed Justice Gorsuch, overruled
Abood in Janus, explaining that it had for years expressed concern about the 1977 decision.204
Taken together, the Knox-Harris-Friedrichs-Janus suite of cases shares important features with the Court's abortion cases. As
an initial matter, the Janus majority's focus on Abood's “poor reasoning” and conflict with the First Amendment gestured toward
the “prudential and pragmatic considerations” for overruling that Casey prescribed.205 In the context of public sector unions, the
Court redefined notions of “unworkability” and “reliance” so as to destabilize and depart from Abood. And, as others have noted,
in both contexts, the changing composition *335 of the Court's personnel appears to have paved the way for reconsideration
of decisions once viewed as well settled.206
But beyond the Court's shifting membership and the shifting understanding of unworkability, the public union cases recall
the abortion cases in their instrumental treatment of precedent. As in Casey, where the plurality recognized Roe as precedent
while simultaneously stripping it of its substantive content, the Knox majority acknowledged Abood's controlling weight while
simultaneously casting doubt on its coherence with the First Amendment.207 In Harris, as in Gonzales and June Medical
Services, the Court expressed further skepticism of Abood, insisting that doing so was not inconsistent with stare decisis, but
rather was part of its broader effort to achieve coherence in First Amendment doctrine.208 On this account, the majority's swipes
at Abood are framed as efforts to promote doctrinal coherence. That is, they are recast as interpretive moves that serve, rather
than detract from, stare decisis and the rule of law.
Recognizing this transformation-through-preservation dynamic209 helps to make sense of the stubborn incongruity between
Janus and June Medical Services. In Janus, as in Ramos, the effort to unsettle earlier precedents ultimately resulted in the
Court's overruling those precedents. By contrast, despite efforts to cabin its force and breadth, Roe has survived. What explains
the difference? And does the Chief Justice's embrace of stare decisis in June Medical Services suggest that Roe and its progeny
will continue to withstand future attacks?
With these questions in mind, it is worth noting that the shift from Abood to Janus was neither instantaneous nor serendipitous.
Rather, it depended on changes in the Court's personnel and a long-game strategy of steadily eroding Abood's foundations.
In each case, from Knox to *336 Janus, the Court either subtly distinguished Abood and its ilk or, alternatively, expressed
skepticism of Abood's coherence with the First Amendment. On this account, the majority's campaign to unsettle Abood was,
like the Chief Justice's treatment of Whole Woman's Health,210 one of transformation through preservation. That is, the majority

professed fidelity to Abood and maintained the decision in principle, even as it worked assiduously to undermine Abood and
gut its substance.
In this regard, the trajectory from Abood to Janus not only mirrors the degree to which the Court's abortion jurisprudence
has informed the way the Court thinks about and treats extant precedents, but also suggests that the effort to subtly revise
and reshape precedent glimpsed in cases like June Medical Services may be part of a slow-building and sedimentary strategy
aimed at revising and rewriting abortion precedents out of existence. That is, the outcome in Janus not only reflects a blueprint
articulated in earlier abortion cases, but also may serve as a roadmap to a future in which the scaffolding of empty precedents
that support Roe and its progeny is ultimately--and formally--dismantled.
And with this dynamic in mind, perhaps what distinguishes Janus from the abortion cases is not simply that the Court
successfully overruled an earlier precedent but that the conditions were more favorable for doing so. Unlike Abood, which had
only recently been questioned, Roe had weathered over four decades of challenges. And critically, these challenges to Roe
amplified, rather than settled, political contestation over abortion rights.
On this account, the difference between Janus and June Medical Services is not only the fact of an embattled but resilient
precedent, but also the particularly pitched climate that surrounds Roe and abortion rights. Members of the Court have admitted
as much. As Justice Scalia observed, with each abortion case, the Court is besieged with “carts full of mail from the public,
and streets full of demonstrators” on both sides of the debate.211 Likewise, the Casey Court frankly acknowledged the fraught
political climate in which it reached its decision to uphold Roe.212 And although public sector unions arouse strong feelings, the
*337 issue is unlikely to prompt the kind of deeply divided and highly publicized political responses that attend the abortion
debate. In this regard, abortion is a blueprint that provides a template for undermining--and overruling--precedent. And critically,
as a means of overruling past precedent, this template, though informed by abortion, may have more force outside of it. For
abortion is the Court's third rail, and as such it is the context in which the Court's treatment of precedent has evolved to be both
an act of interpretive principle and a “political and social compromise[].”213
D. Abortion as Shadow
Janus--and indeed, other recent cases involving overruled precedents from within the Court--underscores another important
insight: abortion shadows the Court's stare decisis jurisprudence. On this account, it is not just that abortion cases are among
the “precedents on precedent”; it is that whenever the Court thinks about stare decisis and precedent, it is, whether expressly
or not, thinking about abortion.
The shadow and pull of abortion can be glimpsed in the anxieties raised in response to Janus. In a stinging dissent in Janus,
Justice Kagan lamented the Court's “6-year campaign to reverse Abood”214 and the majority's disregard for the “usual principles
of stare decisis,” which demand “special justifications for reversing” an extant precedent.215 Regardless of the majority's
particular views of Abood, stare decisis “means sticking to some wrong decisions” or providing “a special justification [for
departure]--over and above the belief that the precedent was wrongly decided.”216 Abood, she maintained, was “entrenched
in this Nation's law--and in its economic life,”217 engendering “massive reliance interests” that counseled in favor of its
preservation.218
Justice Kagan was speaking of Abood, but she just as easily could have been referring to Roe. Her laser focus on reliance
interests recalls the joint opinion in Casey, in which the Court linked its fidelity to Roe to a frank acknowledgment that “people
have organized intimate relationships and made choices that define their views of themselves and their places in society, in
reliance on the availability of abortion in the *338 event that contraception should fail.”219 On this account, her fears that

Abood, a decision that was embedded in the legal landscape “beyond even the normal precedent,”220 could be easily jettisoned
by five willing members of the Court also speaks to an anxiety that Casey and Roe are similarly vulnerable.221
In fact, Justice Kagan was not alone in her sense that Roe and abortion were in the crosshairs. In response to the Court's
decision to overrule a longstanding sovereign immunity precedent in Franchise Tax Board of California v. Hyatt,222 Justice
Breyer reiterated Justice Kagan's warning that a majority's mere disagreement with a past decision did not suffice as the “special
justification” necessary to overrule it.223 Although Justice Breyer “wonder[ed] which cases the Court [would] overrule next,”224
the answer was clear. Throughout his dissent, he twice referenced Casey,225 suggesting that the majority's casual approach to
precedent made Casey, and by implication, Roe, ever more vulnerable.
To be sure, it is not only liberal-leaning Justices who conflate discussions of stare decisis with the abortion right. Only a few
days before it announced its decision in Hyatt, the Court decided Gamble v. United States,226 where it considered overruling the
separate sovereigns exception to the Fifth Amendment's prohibition against double jeopardy.227 Although the Court declined
to do so, concluding that “a departure from precedent ‘demands special justification,”’228 Justice Thomas wrote separately “to
address the proper role of the doctrine of stare decisis.”229 As Justice Thomas explained, the Court's current approach to stare
decisis, which demanded fidelity to past decisions even if they were “demonstrably erroneous,”230 was out of step with the
Constitution's structure of divided government.231 Slavishly adhering to past decisions made sense in a purely common law
tradition, where “judges were tasked with identifying and applying objective principles of law--discerned from natural reason,
custom, and other external sources--to *339 particular cases.”232 But in a constitutional republic, where “[t]he Constitution,
federal statutes, and treaties are the law, and the systematic development of the law is accomplished democratically,” the
judicial role is more cabined than that of common law courts.233 Rather than discovering the law, Article III judges need only
“interpret and apply written law to the facts of particular cases.”234 On this account, to follow and uphold a precedent that is
“demonstrably incorrect ... is tantamount to making law, and adhering to it both disregards the supremacy of the Constitution
and perpetuates a usurpation of the legislative power.”235 Accordingly, Justice Thomas declared that, “[w]hen faced with a
demonstrably erroneous precedent,” federal courts are duty-bound to “not follow it.”236
Although Justice Thomas was writing in the context of a criminal procedure case, his underlying message was understood to go
beyond the four corners of Gamble. In requiring the overruling of precedents that are not rooted in a permissible interpretation
or application of constitutional or statutory text, Justice Thomas's muscular approach to stare decisis was viewed by many as
pointing directly to the Court's abortion jurisprudence,237 which Justice Thomas has repeatedly dismissed as having “no basis
in the Constitution.”238
And meaningfully, although Justice Thomas wrote for himself alone, voices on both sides of the issue in Gamble echoed his
concern about following “demonstrably erroneous”239 constitutional precedents. Writing for the Gamble majority, Justice Alito
noted that although stare *340 decisis has its virtues, “it is also important to be right, especially on constitutional matters.”240
Although he disagreed with both the majority's judgment and reasoning, Justice Gorsuch agreed that “while we rightly pay
heed to the considered views of those who have come before us,”241 stare decisis is “at its weakest when we interpret the
Constitution.”242
Certainly, both Justices Alito and Gorsuch could have been referring to a more generalized desire to get constitutional
interpretation right. But in the pitched climate in which the Court operates, the prospect of abandoning stare decisis looked to
many like a gesture toward Roe and abortion. In this regard, though Gamble was nominally about the scope and substance of
the Fifth Amendment's Double Jeopardy Clause, its confrontation with stare decisis and the weight of past precedent implicitly

implicated Roe and the abortion right.243 And indeed, whenever the Court discusses stare decisis or articulates an approach to
precedent, it is understood to, whether expressly or implicitly, gesture toward the future of abortion rights.
IV. Abortion-Stare Decisis Symbiosis
What are we to make of the symbiotic relationship between the Court's abortion jurisprudence and its approach to stare decisis?
As this Part explains, understanding the relationship between the Court's abortion jurisprudence and its approach to stare
decisis helps to illuminate other dynamics that surround the Court and adjacent institutions. First, understanding the relationship
between abortion and stare decisis renders legible the interpretive pluralism that characterizes the Justices' various approaches
to stare decisis. On this account, the relationship between abortion and stare decisis helps to explain why different members of
the Court adopt different strategies and methodologies for dealing with precedent. Relatedly, the relationship between abortion
rights and precedent also makes sense of our collective interest in and commitment to stasis within the judiciary as an institution.
That is, comfort--or indeed, discomfort--with the prospect of changes within the Court, or even in other branches whose
work implicates the Court, is directly related to our understanding of the degree to which stare decisis and abortion rights are
inextricably intertwined. Finally, and perhaps more importantly, understanding this symbiotic relationship helps to clarify why
the abortion right is both deeply entrenched and highly circumscribed in our constitutional landscape.
*341 A. Interpretive Pluralism
Recognizing the role that abortion plays in anchoring, however implicitly, the Court's discussions of stare decisis renders
more comprehensible the interpretive pluralism that pervades the Court's approach to precedent. As Professor Randy Kozel
has observed, in multimember courts, like the Supreme Court, the prospect of consensus is elusive, if not illusory.244 No
single interpretive methodology prevails on the Court, and indeed, even among those who profess allegiance to a particular
methodological approach, there may nonetheless be variations in the way they choose to deploy their favored methodology.245
In Kozel's view, the fact of interpretive pluralism helps to explain why the Court's members often differ in their approaches to
precedent and stare decisis.246 Originalists may view the obligation “to stand by what has been decided” differently from those
who profess to be living constitutionalists or pragmatists.
Kozel is surely correct in gauging the impact of diverse interpretive methodologies on individual approaches to stare decisis.
That said, what goes undiscussed is the degree to which interpretive methodologies, and thus approaches to precedent, may also
be shaped in turn by other factors, including abortion. For example, as a number of commentators have observed, originalism
emerged in the 1970s as a means of counteracting the “judicial activism” of the Warren and Burger Courts, including Roe v.
Wade.247 As originalism became the intellectual lingua franca of the conservative legal movement, it took aim at the Court's
substantive due process jurisprudence, and Roe v. Wade particularly, as unrooted in history or constitutional text.248 By the
same token, as other interpretive methodologies emerged to challenge *342 originalism, they often did so by explaining how
these competing approaches provided strong justifications for Roe and abortion rights.249
Abortion and Roe have informed not only methods of constitutional interpretation, but also the diversity of approaches to stare
decisis among the Court's members. Even among the conservative Justices, who have evinced skepticism of abortion rights,
there is variation as to whether and in what circumstances the Court should depart from past precedent.
The flurry of separate writings in Ramos v. Louisiana is exemplary on this point. In the majority opinion in Ramos, Justice
Gorsuch insisted that stare decisis is not “an inexorable command,”250 particularly in constitutional cases, and there may be
special justifications that militate in favor of departing from an earlier decision.251 Like Justice Gorsuch, Justice Kavanaugh
agreed that stare decisis is not absolute but argued for an approach to stare decisis in which courts balance a set of considerations
to determine whether and in what circumstances to overrule an extant precedent.252 For both Justices, fidelity to precedent is not

always required, but rather should be exercised flexibly given the circumstances. The intensity of the commitment to following
precedent likely tracks the intensity of their interest in maintaining Roe.
This account helps render legible Justice Thomas's strong views of stare decisis. In his separate concurrence in Ramos, Justice
Thomas reiterated the point made a year earlier in his Gamble concurrence: “[T]he Court's typical formulation of the stare
decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions--
meaning decisions outside the realm of permissible interpretation--over the text of the Constitution and other duly enacted
federal law.”253 Justice Thomas has repeatedly made clear that he views the Court's substantive due process jurisprudence,
and abortion jurisprudence in particular, as unmoored from constitutional text and history.254 In this regard, his approach to
precedent is *343 commensurate with the intensity of his disagreement with the Court's abortion jurisprudence.
Among the remaining Justices in Ramos, their visions of stare decisis also are likely consistent with the strength of their
commitment to maintaining Roe. For example, although Justice Sotomayor concurred in the Court's judgment in Ramos, she
wrote separately to distinguish the circumstances in Ramos from future circumstances in which a majority might be inclined to
“cast aside precedent ‘simply because [the majority] now disagrees with’ it.”255 As she explained, “overruling precedent here
is not only warranted, but compelled”256--both by Apodaca's disjunction with extant Sixth Amendment doctrine257 and by the
“legacy of racism” that undergirded the challenged law.258
In a similar vein, though Justice Kagan did not write separately in Ramos, she nonetheless joined most of Justice Alito's
dissenting opinion, which maintained that the majority had not identified special justifications that would warrant overruling a
precedent in which there were “enormous reliance interests.”259 No doubt recognizing Ramos's import for another troublesome
precedent from the 1970s, Justice Kagan declined to join the part of Justice Alito's opinion in which he confidently asserted
that, “[b]y striking down a precedent upon which there has been massive and entirely reasonable reliance, the majority sets an
important precedent about stare decisis”--one that he “assume[d] ... will apply ... in future cases.”260
This is all to say that although Roe and abortion were not at issue in Ramos, the diversity of approaches to precedent among
the Justices highlights the degree to which Roe and the abortion right not only shadow all discussions of precedent, but also
may produce a wide diversity of views about whether and how to maintain fidelity to past decisions. Although the opinions
in Ramos focused on whether to follow Apodaca, all of the Justices were scanning the jurisprudential horizon, reading the tea
leaves for what overruling--or maintaining--Apodaca would likely mean for another embattled precedent.
B. Investment in Institutional Stasis
Recognizing the degree to which abortion shapes the Court's understanding of stare decisis also renders legible the investment in
institutional stasis that pervades the Court and institutions that impact the *344 Court. By “investment in institutional stasis,” I
mean the strong interest in maintaining the Court's status quo and, perhaps more profoundly, avoiding the collective discomfort
that the prospect of change within and around the Court inevitably prompts. The most obvious example of commitment to
maintaining the Court's status quo is the hand-wringing and teeth-gnashing that accompanies a vacancy-- or even the prospect
of a vacancy--on the Court. As Professor Michael Gerhardt has documented, “[a] change in personnel on the Supreme Court
is unquestionably the main trigger to a shift in precedent.”261 On this account, the departure of a Justice--and the arrival of her
successor--is often a necessary precondition for a reassessment of past precedents.262
Recall the tumult that occurred in 2018 when Justice Kennedy announced his retirement from the Court.263 Instantaneously,
there were questions about what Justice Kennedy's retirement would mean for the balance of power on the Court264--and not
surprisingly, much of the discussion focused on what Justice Kennedy's departure would mean for the future of abortion rights
and the continued vitality of Roe.265 When then-Judge Kavanaugh was nominated to fill the vacant seat, the commentary shifted

into overdrive, as his record--on many issues, but especially abortion--was probed for telltale clues about his likely *345 future
inclinations as a Justice.266 And indeed, the public opposition to then-Judge Kavanaugh's nomination was, at least initially,267
framed in terms of support for abortion rights.268
With this dynamic in mind, even a Justice's personal decision about whether and when to withdraw from the Court is often
navigated in the shadow of Roe and abortion rights.269 When Justice Ginsburg declined to retire during President Obama's
second term, critics argued that, given her past health crises, her decision risked the seat's falling into the hands of a Republican
President eager to appoint a pro-life Justice, imperiling the balance of power on the Court and, in particular, imperiling Roe.270
In this regard, the prospect of a liberal Justice being replaced by a Republican President was viewed as presaging the disruption
of the Court's status quo and the precarious equipoise of abortion rights.
*346 Later, in a candid interview, Justice Ginsburg suggested that her decision to remain on the bench was informed, at least
in part, by an interest in maintaining the fragile status quo. As she explained, “given the [ideological] boundaries that we have
[in the Senate],” it was unlikely that President Obama would have been able to replace her with a Justice who was similarly
minded on key issues, like women's rights.271 Although Justice Ginsburg did not name Roe explicitly, it was surely part of
her calculus. In a polarized political climate in which a supermajority of Senators was required to confirm a Supreme Court
nominee, President Obama might have been pressed to nominate a candidate whose views on women's rights and abortion
rights were considerably more moderate than those of Justice Ginsburg. And the appointment of a moderate to occupy Justice
Ginsburg's seat would likely have left Roe and abortion rights exposed and vulnerable.
The political firestorm that erupted in the wake of Justice Ginsburg's passing suggests that these anxieties are not unfounded.
Justice Ginsburg's death created not only a vacancy on the Court, but also an opportunity for the President to cement a 6-3
conservative majority, disrupting the Court's delicate ideological balance. And as commentators noted, any disruption of the
Court's ideological tilt portends a pitched battle over Roe and the future of abortion rights.272
If the prospect of disruption and change on the Court can prompt anxieties about Court vacancies (or even a Justice's decision
to retire), it also may help explain the anxieties that surround rule and policy changes in institutions whose work influences the
Court and its composition. Consider the efforts to revise the Senate rules regarding judicial nominations. Ordinarily, the arcane
rules of the upper chamber of Congress would not even register for most Americans. However, because the Senate is tasked
with providing “Advice and Consent” for *347 Supreme Court nominations,273 changes in the Senate rules--whether to the
number of votes required to appoint a Justice or to end debate on a nominee--have become a topic of public interest.274 Some
of this interest obviously stems from the pitched political climate in which the Court and Congress operate. But quite a lot of
the interest in these rules reflects their likely impact on judicial nominations, which in turn reflects the understanding that the
nature of the candidates nominated, and ultimately appointed, to the Court will irrevocably affect the Court's status quo.275
C. The Stickiness and Scope of the Abortion Right
Finally, and perhaps most obviously and importantly, understanding the way that abortion operates as a shadow and pull, shaping
the Court's approach to stare decisis, helps us to better understand why the abortion right is at once deeply entrenched and
yet stubbornly narrow in breadth and scope. Because the continued vitality of Roe v. Wade and the abortion right shadows the
Court's efforts to interpret and apply past precedent in all contexts, and especially in the abortion context, the interpretive moves
that are available are limited. As Casey makes clear, the Court has been wary of expressly overruling Roe because doing so
would likely unleash backlash that would compromise the Court's legitimacy and public standing.276
Rather than overturning the abortion right by overruling Roe, the Court has instead, through its interpretation of precedent,
focused on limiting the right and curtailing its breadth. Casey and Gonzales both reflected this impulse. In Casey, the Court
winnowed the scope of the right first articulated in Roe, widening the State's legislative authority *348 over abortion and

prescribing a less rigorous standard of review for courts to deploy in reviewing abortion regulations.277 Likewise, in Gonzales,
the Court again widened the State's authority to limit the abortion right by upholding a regulation enacted without the benefit of
a health exception and by broadly deferring to the legislature's stated purpose in enacting the challenged law.278 June Medical
Services was also consistent with this impulse. Rather than expressly overruling Whole Woman's Health, Chief Justice Roberts's
concurrence narrowed the scope of that decision by relieving states of the obligation to ensure that the benefits of a proposed
abortion restriction outweigh the burdens it imposes on the right itself.279
Yet even as the Court's interpretive moves have narrowed the abortion right, the right has stubbornly survived,280 becoming
solidly embedded in the firmament of constitutional law.281 Roe's entrenchment was evident in the 2005 confirmation hearings
for then-Judge Roberts. In a colloquy with then-Judge Roberts, Senator Specter, then the chair of the Judiciary Committee,
asked whether then-Judge Roberts agreed that Roe had become a “superprecedent” or even a “super-duper precedent”--that is, a
decision “so deeply embedded in the fabric of law [it] should be especially hard to overturn.”282 Senator Specter was reiterating
a view of stare decisis initially articulated by Judge Luttig, who, in the context of a challenge to an abortion restriction, referred
to Roe v. Wade's “super-stare decisis” status due to the Court's continual refusal to overrule it.283
Although then-Judge Roberts avoided giving a direct answer,284 the question of Roe's “superprecedent” status has surfaced at
subsequent confirmation hearings, including at those of the two most recent Court appointees. Regardless of what one thinks
of a theory of “super-stare decisis” and “superprecedent,” the fact of its discussion suggests the *349 inherent difficulty
of overruling Roe. If Roe is understood as a superprecedent, fixed in the constitutional landscape, then overruling it would
invariably expose the Court to claims of partisanship and political opportunism. And this, in turn, helps explain why the abortion
right has, over time, become increasingly narrow. Because the abortion right is “sticky,” having been repeatedly reaffirmed,
it cannot be overruled without a fight. Accordingly, in order to curb the right while avoiding the conflict that its overruling
would prompt, the Court has instead interpreted and distinguished abortion precedents in ways that preserve the right while
simultaneously cabining it. Casey's revision of Roe is the most obvious example of this dynamic, but Chief Justice Roberts's
treatment of Whole Woman's Health is the most recent.
The dichotomy of a right that is at once stubbornly durable and startlingly narrow reflects the symbiotic dynamic of abortion
and precedent. Stare decisis has shaped abortion jurisprudence, entrenching the abortion right while narrowing its scope. And
in turn abortion has informed the doctrine of stare decisis such that any discussion of precedent necessarily implicates the future
of abortion, whether abortion is at issue or not.
Conclusion
Stepping forward to argue on behalf of the abortion providers in June Medical Services v. Russo, Julie Rikelman reminded the
Court and all assembled that “[t]his case is about respect for the Court's precedent.”285 Rikelman, of course, was referring to
the fact that the Court, just four years earlier, had invalidated a Texas admitting privileges law that was virtually identical to the
Louisiana law challenged in June Medical Services. But Rikelman's opening statement was correct on yet another level. June
Medical Services, like every other case concerning the abortion right, “is about respect for the Court's precedent.”286
It was not surprising that Rikelman framed her argument in terms of stare decisis. In the years since Roe was decided, those
who have stepped forward to defend the embattled precedent have also emphasized stare decisis and the Court's duty to respect
precedent.287 The *350 appeal to stare decisis in abortion cases serves dual purposes. It connects the case at bar to an unbroken
line of precedent in which a woman's right to choose an abortion has consistently been upheld. But more profoundly, it is an
effort to strip the Court's decisionmaking of the vexed political climate that cloaks the abortion right. It is an appeal to individual
Justices to put aside their particular views of abortion and Roe in favor of the broader principles on which the rule of law is

based. On this account, the invocation of stare decisis is an appeal to the “neutral principles” that, we are told, should guide
jurists instead of their own political sensibilities.288
The fact that so many lawyers intent on defending Roe have appealed to stare decisis underscores the mutually constitutive
relationship between abortion and precedent. Precedent has shaped the Court's abortion jurisprudence, but the Court's abortion
jurisprudence has also shaped its approach to precedent. In this regard, the relationship between the Court's understanding of the
abortion right and its understanding of stare decisis and precedent is inextricably intertwined and mutually dependent. But the
symbiosis between abortion and precedent is not simply about jurisprudence. The symbiotic relationship between abortion and
precedent has also shaped our public discourse about the Court as an institution. The association of stare decisis with abortion
has amplified the Court's importance in political disputes and heightened anxiety about the prospect of institutional change.
And perhaps most importantly, it has shaped our understanding of stare decisis. Chief Justice Roberts's concurrence in June
Medical Services is illustrative on this point. There, the Chief Justice extravagantly embraced stare decisis, noting that although
he had dissented from the majority's decision in Whole Woman's Health, the fact of the Court's decision in that case compelled
his vote to invalidate the Louisiana admitting privileges law. In so doing, Chief Justice Roberts was appealing to the neutral
principles that Rikelman alluded to in her opening statement to the Court. Precedent, not politics, had commanded his vote
in the instant case.
In many ways, Chief Justice Roberts's concurrence recalled his statements at his 2005 confirmation hearing. There, he famously
analogized the judicial role to that of a baseball umpire, whose job it is “to call balls and strikes.”289 What then-Judge Roberts
failed to say was that it is *351 also the umpire's job to determine--indeed, to judge--where the strike zone lies.290
Just as the seemingly neutral exercise of calling balls and strikes is undergirded by the exercise of judgment, so too is stare
decisis. The act of following precedent may yield a range of interpretive choices that may admit politicized and ideological
judgment. Again, the Chief Justice's concurrence in June Medical Services is instructive. Despite his professed allegiance to
following precedent, the Chief Justice's approach to stare decisis was contingent and selective, undermining Whole Woman's
Health, the very precedent it purported to follow. And in so doing, it yielded an outcome that was hardly value-neutral--it effaced
the profound impact of Whole Woman's Health for future abortion challenges, returning the law to the pre-2016 status quo.
On this account, June Medical Services is a decision about abortion and precedent--and the relationship between the two. But
more profoundly, it is a decision that speaks to the relationship between the Court, its institutional identity, and its efforts to
respect both abortion rights and precedent at the same time.
Footnotes
a1 Frederick I. and Grace Stokes Professor of Law and Faculty Director of the Birnbaum Women's Leadership Network, New York
University School of Law. For helpful comments and conversations, I am grateful to Colleen Campbell, Guy-Uriel Charles, Cynthia
Godsoe, Solangel Maldonado, Caitlin Millat, Doug NeJaime, Rachel Rebouché, Alice Ristroph, Carol Sanger, Micah Schwartzman,
Reva Siegel, and Jane Spinak. I received helpful feedback from participants at the New York City Family Law Scholars Workshop.
Alon Handler and Hilarie Meyers contributed valuable research assistance. Many thanks to the editors of the Harvard Law Review
for their excellent editorial assistance. All errors are my own.
1 Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the S.
Comm. on the Judiciary, 109th Cong. 55 (2005) (statement of Judge John G. Roberts, Jr.) [hereinafter Roberts Confirmation Hearing].
2 Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to Be an Associate Justice of the Supreme Court of the United States:
Hearing Before the S. Comm. on the Judiciary, 109th Cong. 318-19 (2006) (statement of Judge Samuel A. Alito, Jr.).
3 See, e.g., Emily Crockett, Donald Trump Is Going All In on Banning Abortion, Vox (Sept. 20, 2016, 8:30 AM), https://
www.vox.com/2016/9/20/12970076/donald-trump-ban-abortion-policy [https://perma.cc/3V2T-GFJK]; Dan Mangan, Trump: I'll

Appoint Supreme Court Justices to Overturn Roe v. Wade Abortion Case, CNBC (Oct. 19, 2016, 10:00 PM), https://
www.cnbc.com/2016/10/19/trump-ill-appoint-supreme-court-justices-to-overturn-roe-v-wade-abortion-case.html [https://perma.cc/
F9E3-3S5F].
4 410 U.S. 113 (1973).
5 See id. at 152-53 (collecting cases).
6 Id. at 153.
7 Recent nominees have invoked the so-called “Ginsburg standard” to avoid discussing specific cases or controversial issues. See
Abigail Simon, Why Ruth Bader Ginsburg's Confirmation Fight Still Matters, 25 Years Later, Time (Aug. 3, 2018, 6:22 PM), https://
time.com/5357068/ruth-bader-ginsburg-anniversary-confirmation-fight-standard [https://perma.cc/PB95-X2KM]. The informal rule
refers to then-Judge Ginsburg's remarks during her confirmation hearing stating that she would “offer no forecasts, no hints” as to
her rulings on future cases that might come before the Court. See id.
8 Jeffrey Toobin, The Abortion Fight and the Pretense of Precedent, New Yorker (May 19, 2019), https://www.newyorker.com/
magazine/2019/05/27/the-abortion-fight-and-the-pretense-of-precedent [https://perma.cc/M4WP-LWUZ].
9 Then-Judge Gorsuch vowed to analyze cases with respect to the “law of precedent.” Confirmation Hearing on the Nomination of
Hon. Neil M. Gorsuch to Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the
Judiciary, 115th Cong. 74, 76, 135 (2017) (statement of Judge Neil M. Gorsuch). Then-Judge Kavanaugh assured the Senate Judiciary
Committee of his commitment to precedent, noting that the concept of stare decisis “comes from Article III itself.” Confirmation
Hearing on the Nomination of Hon. Brett M. Kavanaugh to Be an Associate Justice of the Supreme Court of the United States: Hearing
Before the S. Comm. on the Judiciary, 115th Cong. (Sept. 5, 2018) (statement of Judge Brett M. Kavanaugh) (transcript available at
https://edition.cnn.com/TRANSCRIPTS/1809/05/wolf.02.html [https://perma.cc/46RC-FFUL]).
10 See, e.g., Anna North, Brett Kavanaugh Won't Oppose Roe v. Wade Outright. Here's What He Might Say Instead, Vox
(Aug. 31, 2018, 8:10 AM), https://www.vox.com/2018/8/31/17791858/brett-kavanaugh-judge-views-vote-abortion-roe [https://
perma.cc/5K2V-C5WK] (noting that vague remarks about respecting precedent and “settled law” are used as substitutes for
articulating clear positions on reproductive rights).
11 See Stare Decisis, Encyclopaedia Britannica, https://www.britannica.com/topic/stare-decisis [https://perma.cc/7TVD-HQXV]; see
also Joseph W. Mead, Stare Decisis in the Inferior Courts of the United States, 12 Nev. L.J. 787, 792 (2012) (noting that federal
courts have employed stare decisis since the Founding).
12 See, e.g., Mead, supra note 11, at 790 (“Horizontal stare decisis is the practice of a court deferring to its own decisions, while vertical
stare decisis is the practice of a lower court adhering to the decisions of courts with supervisory jurisdiction ....”); see also Frederick
Schauer, Stare Decisis--Rhetoric and Reality in the Supreme Court, 2018 Sup. Ct. Rev. 121, 124-25 (“The idea of vertical precedent,
as it is sometimes called, is a widely accepted feature of a judicial system in which lower courts are called ‘lower’ for a reason, and
one of those reasons is that these lower courts are expected, to put it loosely and roughly, to treat higher court decisions on matters
of legal interpretation and application as if they were law themselves.” Id. at 125 (footnote omitted).).
13 See Mead, supra note 11, at 791 (“[T]he Supreme Court today is willing to revisit precedent only after considering several
factors: ‘workability ... [,] the antiquity of the precedent, the reliance interests at stake, and ... whether the decision was well
reasoned.”’ (omissions in original) (footnote omitted) (quoting Montejo v. Louisiana, 556 U.S. 778, 792-93 (2009))).
14 See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844 (1992) (“[Nineteen] years after our holding that the Constitution
protects a woman's right to terminate her pregnancy in its early stages, that definition of liberty is still questioned.” (citation omitted)
(citing Roe v. Wade, 410 U.S. 113 (1973))); id. at 854-61 (discussing factors of stare decisis analysis and applying them to Roe).
15 See, e.g., Henry J. Reske, Is This the End of Roe?, 78 A.B.A. J. 64, 66 (1992); Ian Millhiser & Anna North, The Supreme Court
Case that Could Dismantle Roe v. Wade, Explained, Vox (Jan. 22, 2020, 10:53 AM), https://www.vox.com/2019/10/4/20874618/roe-
wade-supreme-court-louisiana-abortion-gee [https://perma.cc/B7RT-886R].

16 See Leah Litman, Opinion, Supreme Court Liberals Raise Alarm Bells About Roe v. Wade, N.Y. Times (May 13, 2019), https://
www.nytimes.com/2019/05/13/opinion/roe-supreme-court.html [https://perma.cc/UP27-WVZ8] (“[R]espect for precedent is one of
the few things, if not the only thing, that stands between the conservative Roberts court and overruling Roe v. Wade.”).
17 140 S. Ct. 2103 (2020).
18 Unsafe Abortion Protection Act, La. Stat. Ann. § 40:1061.10 (2020), invalidated by June Med. Servs., 140 S. Ct. 2103.
19 Id. § 40:1061.10(A)(2)(a).
20 June Med. Servs., 140 S. Ct. at 2133 (plurality opinion); id. at 2142 (Roberts, C.J., concurring in the judgment).
21 Despite concurring in the judgment, Chief Justice Roberts seemed to invite a future opportunity to revisit Planned Parenthood of
Southeastern Pennsylvania v. Casey's, 505 U.S. 833 (1992), undue burden standard and echoed the dissenters' disdain for Whole
Woman's Health v. Hellerstedt, 136 S. Ct. 2292 (2016). See Gretchen Borchelt, Symposium: June Medical Services v. Russo: When
a “Win” Is Not a Win, SCOTUSblog (June 30, 2020, 12:31 PM), https://www.scotusblog.com/2020/06/symposium-june-medical-
services-v-russo-when-a-win-is-not-a-win [https://perma.cc/BD42-VXK7].
22 In his plurality opinion, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, noted the similarity of June Medical
Services to Whole Woman's Health and argued that in such nearly identical cases “the law must consequently reach a similar
conclusion.” June Med. Servs., 140 S. Ct. at 2133 (plurality opinion). In his concurrence, Chief Justice Roberts noted that “[s]tare
decisis instructs us to treat like cases alike,” id. at 2141 (Roberts, C.J., concurring in the judgment), and that the result in June Medical
Services was dictated by past precedent, id. at 2141-42. In his dissent, Justice Alito, joined in full by Justice Gorsuch and in part by
Justices Thomas and Kavanaugh, argued that the plurality and concurrence misapplied stare decisis and failed to consistently adhere
to precedent. Id. at 2153 (Alito, J., dissenting).
23 136 S. Ct. 2292.
24 Id. at 2300; see also June Med. Servs., 140 S. Ct. at 2112 (plurality opinion) (describing Louisiana's Act 620 as “almost word-for-
word identical to Texas' admitting-privileges law”).
25 505 U.S. 833.
26 550 U.S. 124 (2007).
27 June Med. Servs., 140 S. Ct. at 2133-42 (Roberts, C.J., concurring in the judgment).
28 Id. at 2134 (“The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law
imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons.”).
29 See id. at 2135-36.
30 See, e.g., Gonzales, 550 U.S. at 191 (Ginsburg, J., dissenting) (criticizing the majority for being “[un]faithful to our earlier invocations
of ‘the rule of law’ and the ‘principles of stare decisis”’); Casey, 505 U.S. at 845-46 (“[C]onsidering the fundamental constitutional
questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, ... the essential holding of Roe v. Wade
should be retained and once again reaffirmed.”); City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 419-20 (1983)
(reaffirming Roe v. Wade out of respect for the principle of stare decisis).
31 Roe v. Wade, 410 U.S. 113, 153 (1973).
32 E.g., Nat'l Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361, 2370 (2018) (invalidating a California law requiring certain
disclosures regarding abortion at crisis pregnancy centers); Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2300 (2016)
(invalidating two Texas abortion restrictions); McCullen v. Coakley, 134 S. Ct. 2518, 2541 (2014) (invalidating a Massachusetts law
prescribing “buffer zones” at abortion clinic entrances); Gonzales, 550 U.S. at 132-33 (upholding a federal law proscribing a particular
abortion procedure); Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 323-24 (2006) (considering a facial challenge
to New Hampshire's parental notification requirement); Stenberg v. Carhart, 530 U.S. 914, 921-22 (2000) (invalidating a Nebraska
law proscribing a particular abortion procedure); Hill v. Colorado, 530 U.S. 703, 735 (2000) (upholding a Colorado law prohibiting

sidewalk counseling within 100 feet of any healthcare facility, including abortion clinics); Casey, 505 U.S. at 844-46 (reaffirming
Roe's essential holding and upholding several provisions of the Pennsylvania Abortion Control Act); Rust v. Sullivan, 500 U.S. 173,
177-78 (1991) (upholding federal regulations prohibiting family planning clinics receiving Title X funding from providing counseling
regarding abortion or referring clients for abortions); Webster v. Reprod. Health Servs., 492 U.S. 490, 499-501 (1989) (upholding a
Missouri law denying state funding for and prohibiting state employee participation in performing or providing counseling regarding
abortions); Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 772 (1986) (invalidating a Pennsylvania law
requiring informed consent on fetal development, abortion alternatives, and the medical risks of abortion; reporting of abortions;
and that the physician use the abortion method most likely to preserve the life of a viable child); City of Akron, 462 U.S. at 452
(invalidating a range of abortion restrictions); H.L. v. Matheson, 450 U.S. 398, 413 (1981) (upholding a Utah parental notification
requirement); Harris v. McRae, 448 U.S. 297, 326 (1980) (upholding the Hyde Amendment, which strictly limits the use of federal
funds for abortions); Bellotti v. Baird, 443 U.S. 622, 651 (1979) (plurality opinion) (invalidating a Massachusetts parental consent
requirement); Colautti v. Franklin, 439 U.S. 379, 401 (1979) (invalidating a Pennsylvania law requiring doctors to protect the life
of a fetus that “may be viable” both during and after an abortion); Maher v. Roe, 432 U.S. 464, 474 (1977) (holding that a state has
“authority ... to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public
funds”); Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 84 (1976) (invalidating a range of abortion restrictions).
33 E.g., Casey, 505 U.S. at 927 (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part) (writing that
the Court “correctly applied” principles of privacy rights in Roe v. Wade); id. at 944 (Rehnquist, C.J., concurring in the judgment in
part and dissenting in part) (“We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our
traditional approach to stare decisis in constitutional cases.”); id. at 999 (Scalia, J., concurring in the judgment in part and dissenting in
part) (“[T]he Justices should do what is legally right by asking two questions: (1) Was Roe correctly decided? (2) Has Roe succeeded
in producing a settled body of law? If the answer to both questions is no, Roe should undoubtedly be overruled.”).
34 See, e.g., Webster, 492 U.S. at 521 (plurality opinion); Thornburgh, 476 U.S. at 759; City of Akron, 462 U.S. at 420.
35 See, e.g., Webster, 492 U.S. at 532 (Scalia, J., concurring in part and concurring in the judgment) (calling on the Court to “more
explicitly” overrule Roe v. Wade); Thornburgh, 476 U.S. at 788 (White, J., dissenting) (“In my view, the time has come to recognize
that Roe v. Wade ... ‘depart[s] from a proper understanding’ of the Constitution and to overrule it.” (quoting Garcia v. San Antonio
Metro. Transit Auth., 469 U.S. 528, 557 (1985))).
36 See, e.g., City of Akron, 462 U.S. at 420 (“We respect [the principle of stare decisis] today, and reaffirm Roe v. Wade.”).
37 See Webster, 492 U.S. at 559-60 (Blackmun, J., concurring in part and dissenting in part) (“By refusing to explain or to justify its
proposed revolutionary revision in the law of abortion, and by refusing to abide not only by our precedents, but also by our canons
for reconsidering those precedents, the plurality invites charges of cowardice and illegitimacy to [the Court's] door.”).
38 Casey, 505 U.S. at 845-46.
39 Id.
40 See, e.g., Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution 117 (1996) (noting that Casey “saved”
Roe); John Paul Stevens, The Making of a Justice: Reflections on My First 94 Years 485 (2019) (noting that Justice Kennedy was
“one of the three decisive votes that had saved Roe v. Wade from being overruled in Planned Parenthood v. Casey ”); Nadine
Strossen & Ronald K.L. Collins, The Future of an Illusion: Reconstituting Planned Parenthood v. Casey, 16 Const. Comment. 587,
590 (1999) (describing Casey as having “fostered a ‘Roe was saved’ public mindset”); Mary-Rose Papandrea, Sex and Religion:
Unholy Bedfellows, 116 Mich. L. Rev. 859, 874 (2018) (book review) (noting that, in Casey, Justice Kennedy had joined Justices
O'Connor and Souter to “save” Roe).
41 Casey, 505 U.S. at 872 (plurality opinion).
42 Id. at 874; see also id. at 929-34 (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part).
43 Id. at 944 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part) (citation omitted).
44 Id. at 853 (majority opinion) (“While we appreciate the weight of the arguments made on behalf of the State in the cases before
us, arguments which in their ultimate formulation conclude that Roe should be overruled, the reservations any of us may have in

reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force
of stare decisis.”).
45 Compare id. at 871 (plurality opinion) (“The woman's right to terminate her pregnancy before viability is the most central principle of
Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce.”), with id. at 873 (“We reject the trimester framework,
which we do not consider to be part of the essential holding of Roe.”). For further discussion of Casey's impact on Roe, see Carol
Sanger, About Abortion: Terminating Pregnancy in Twenty-First-Century America 31-34 (2017).
46 See Serena Mayeri, Opinion, How Abortion Rights Will Die a Death by 1,000 Cuts, N.Y. Times (Aug. 30, 2018),
https://www.nytimes.com/2018/08/30/opinion/brett-kavanaugh-abortion-rights-roe-casey.html [https://perma.cc/BF7Z-2T7V] (“As
abortion-rights leaders feared, Casey's undue burden standard allowed more restrictions than Roe. Many states have enacted laws
that drastically limit access to reproductive health care, particularly for poor, rural and immigrant women who cannot afford to miss
work and make repeated trips to clinics hundreds of miles away.”).
47 See id.; see also Brief of Amici Curiae Law Professors Melissa Murray, I. Glenn Cohen and B. Jessie Hill in Support of Petitioners
at 12-13, Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (No. 15-274); Induced Abortion in the United States,
Guttmacher Inst. (Sept. 2019), https://www.guttmacher.org/fact-sheet/induced-abortion-united-states [https://perma.cc/D83S-CZP7]
(calculating that approximately forty million women, or fifty-eight percent of American women of reproductive age, live in states
that are considered hostile to abortion rights); Dan Keating, Tim Meko & Danielle Rindler, Abortion Access Is More Difficult
for Women in Poverty, Wash. Post (July 10, 2019), https://www.washingtonpost.com/national/2019/07/10/abortion-access-is-more-
difficult-women-poverty [https://perma.cc/4G36-YUUT].
48 The statements of those in the antiabortion movement express the concern that leaving Roe undisturbed as a formal matter lends
credence to the view that abortion is a constitutionally protected right. For example, the United States Conference of Catholic
Bishops notes on its website that many Americans view Roe “as being immutable, permanent, ‘settled law”'-- “elevated ... to the
stature of ‘freedom of speech,’ ‘trial by jury’ and other bedrock American principles.” Susan E. Wills, Ten Legal Reasons to Reject
Roe, U.S. Conf. Cath. Bishops, http://www.usccb.org/issues-and-action/human-life-and-dignity/abortion/ten-legal-reasons-to-reject-
roe.cfm [https://perma.cc/BF2H-XNSE]; see also Americans United for Life Observes that Roe v. Wade Is Not Settled Law nor
Is Abortion Safe for Women, Ams. United for Life (Mar. 21, 2017), https://aul.org/2017/03/21/americans-united-for-life-observes-
that-roe-v-wade-is-not-settled-law-nor-is-abortion-safe-for-women [https://perma.cc/ACS9-M8AZ] (challenging the idea of Roe as
settled law).
49 Gamble v. United States, 139 S. Ct. 1960, 1981 (2019) (Thomas, J., concurring).
50 18 U.S.C. § 1531.
51 See Gonzales v. Carhart, 550 U.S. 124, 132-36 (2007).
52 530 U.S. 914 (2000).
53 Id. at 929-30.
54 Indeed, in its statement of findings, Congress noted that although the Stenberg Court had been “required to accept the very questionable
findings issued by the district court judge,” Congress was “not bound to accept the same factual findings.” See Partial-Birth Abortion
Ban Act of 2003, Pub. L. No. 108-105, § 2(7)-(8), 117 Stat. 1201, 1202 (2003). Instead, Congress found that “[a] moral, medical,
and ethical consensus exists that the practice of performing a partial-birth abortion ... is a gruesome and inhumane procedure that is
never medically necessary and should be prohibited.” Id. § 2(1), 117 Stat. at 1201.
55 Gonzales, 550 U.S. at 168.
56 See id. at 151-53.
57 Id. at 146.
58 Id. at 145.
59 Id.

60 Id.
61 Id. at 159-60.
62 Id. at 146.
63 Id. at 169 (Ginsburg, J., dissenting).
64 Id. at 170.
65 Id. at 191.
66 Id. at 170.
67 Id. at 171.
68 Id.
69 Id. at 183.
70 Id. at 179.
71 Unsafe Abortion Protection Act, La. Stat. Ann. § 40:1061.10(A)(2)(a) (2020), invalidated by June Med. Servs., 140 S. Ct. 2103.
72 See June Med. Servs., 140 S. Ct. at 2112 (plurality opinion) (“In this case, we consider the constitutionality of a Louisiana statute,
Act 620, that is almost word-for-word identical to Texas' admitting-privileges law.”).
73 Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2300 (2016) (emphasis omitted) (quoting Planned Parenthood of Se. Pa. v.
Casey, 505 U.S. 833, 878 (1992) (plurality opinion)).
74 Id. at 2309.
75 Casey, 505 U.S. at 877 (plurality opinion) (“A finding of an undue burden is a shorthand for the conclusion that a state regulation
has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”).
76 Whole Woman's Health, 136 S. Ct. at 2309.
77 See id. at 2300.
78 June Med. Servs. LLC v. Kliebert, 250 F. Supp. 3d 27, 80, 82 (M.D. La. 2017).
79 Id. at 89.
80 Id. at 88-90.
81 June Med. Servs. L.L.C. v. Gee, 905 F.3d 787, 791 (5th Cir. 2018).
82 Id. at 815.
83 Id. at 803.
84 Id. at 791.
85 Id. at 805.
86 Id.
87 June Med. Servs., L.L.C. v. Gee, 913 F.3d 573, 573 (5th Cir. 2019) (per curiam).
88 Gee v. June Med. Servs. L.L.C., 140 S. Ct. 35 (2019) (mem.).

89 See, e.g., Linda Greenhouse, Opinion, A Supreme Court Abortion Case that Tests the Court Itself, N.Y. Times (Oct. 10, 2019), https://
www.nytimes.com/2019/10/10/opinion/supreme-court-abortion.html [https://perma.cc/H8BP-ARQ7] (“The challenge for Louisiana
is that the court answered precisely that question three years ago in Whole Woman's Health v. Hellerstedt, declaring that an identical
law in Texas imposed an unconstitutional burden on access to abortion.”); Jonathan B. Miller, Symposium: June Medical Should
Be Summarily Reversed, SCOTUSblog (Mar. 7, 2019, 11:04 AM), https://www.scotusblog.com/2019/03/symposium-june-medical-
should-be-summarily-reversed [https://perma.cc/T6NZ-BPFQ] (arguing that the Court should have summarily reversed June Medical
Services given Act 620's similarities to the restrictions at issue in Whole Woman's Health).
90 See, e.g., Melissa Murray, Symposium: Party of Five? Setting the Table for Roe v. Wade, SCOTUSblog (July 24,
2019, 3:18 PM), https://www.scotusblog.com/2019/07/symposium-party-of-five-setting-the-table-for-roe-v-wade [https://perma.cc/
MSH8-3GJU]; David G. Savage, A Supreme Court Retreat from Roe vs. Wade Could Begin This Week with Louisiana Abortion Case,
L.A. Times (Mar. 2, 2020, 4:00 AM), https://www.latimes.com/politics/story/2020-03-02/supreme-court-retreat-from-roe-vs-wade-
could-begin-this-week-with-louisiana-abortion-case [https://perma.cc/HGU7-X9BT] (“For the first time, the court appears to have a
majority of conservative justices inclined to sharply limit abortion rights or overturn Roe vs. Wade entirely.”).
91 Adam Liptak, Supreme Court to Hear Abortion Case from Louisiana, N.Y. Times (June 29, 2020), https://
www.nytimes.com/2019/10/04/us/politics/supreme-court-abortion-louisiana.html [https://perma.cc/N2LS-QF2T].
92 June Med. Servs., 140 S. Ct. at 2120 (plurality opinion). The Court also considered whether the abortion providers, as opposed
to patients, were the appropriate parties to challenge the Louisiana law. Id. at 2117-20. On that point, the plurality concluded that
Louisiana had “waived [the standing] argument,” id. at 2117, and that “a long line of well-established precedents foreclose[d] [this]
belated challenge to the plaintiffs' standing,” id. at 2120.
93 Id. at 2120.
94 Id. (alteration in original) (quoting Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016)).
95 Id. (alteration in original) (emphasis omitted) (quoting Whole Woman's Health, 136 S. Ct. at 2309).
96 Id. (quoting Whole Woman's Health, 136 S. Ct. at 2309).
97 Id. (quoting Whole Woman's Health, 136 S. Ct. at 2310).
98 Id. (alteration in original) (quoting Whole Woman's Health, 136 S. Ct. at 2310 (emphasis omitted)).
99 Id. at 2130.
100 Id. at 2131 (quoting June Med. Servs. LLC v. Kliebert, 250 F. Supp. 3d, 27, 86 (M.D. La. 2017)).
101 Id.
102 Id. at 2132.
103 Id. at 2133 (Roberts, C.J., concurring in the judgment).
104 Under Marks v. United States, 430 U.S. 188 (1977), “[w]hen a fragmented Court decides a case and no single rationale explaining
the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds.”’ Id. at 193 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (plurality
opinion)); see also Ramos v. Louisiana, 140 S. Ct. 1390, 1403 (2020) (plurality opinion) (discussing the Marks rule).
105 June Med. Servs., 140 S. Ct. at 2133 (Roberts, C.J., concurring in the judgment).
106 Id.
107 Id. at 2134.
108 Id.

109 Id. (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)).
110 Id. at 2135 (quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940)).
111 Id. at 2134.
112 Id. at 2135.
113 Id. (quoting Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016)).
114 Id. at 2136.
115 Id. at 2138 (first quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 882 (1992) (plurality opinion); and then quoting
id. at 878).
116 See id. at 2139 (noting that Casey's “substantial obstacle” test was a sufficient basis for the decision in Whole Woman's Health).
117 See id. at 2136; see also id. at 2139 (“In neither [June Medical Services nor Whole Woman's Health], nor in Casey itself, was there
call for consideration of a regulation's benefits, and nothing in Casey commands such consideration.”).
118 See id. at 2136-37.
119 Id. at 2137 (noting that the spousal notification requirement was the only restriction found to be unconstitutional in Casey).
120 Id.
121 Id. at 2136 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 886 (1992) (plurality opinion)).
122 Id. at 2138.
123 Id. at 2140 (first quoting June Med. Servs. LLC v. Kliebert, 250 F. Supp. 3d 27, 87 (M.D. La. 2017); and then quoting id. at 81).
124 See id. at 2134.
125 492 U.S. 490 (1989).
126 See id. at 521 (plurality opinion) (“This case therefore affords us no occasion to revisit the holding of Roe .... To the extent indicated
in our opinion, we would modify and narrow Roe and succeeding cases.”).
127 Id. at 537 (Scalia, J., concurring in part and concurring in the judgment).
128 Id.
129 June Med. Servs., 140 S. Ct. at 2134 (Roberts, C.J., concurring in the judgment) (quoting The Federalist No. 78, at 470 (Alexander
Hamilton) (Clinton Rossiter ed., 2003)).
130 Id. at 2153 (Alito, J., dissenting).
131 See id. at 2138 (Roberts, C.J., concurring in the judgment) (“So long as that showing [that the law has a legitimate purpose and a
reasonable relation to that goal] is made, the only question for a court is whether a law has the ‘effect of placing a substantial obstacle
in the path of a woman seeking an abortion of a nonviable fetus.”’ (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 877
(1992) (plurality opinion))); see also id. at 2179 (Gorsuch, J., dissenting) (“[A]s today's concurrence recognizes, the legal standard
the plurality applies when it comes to admitting privileges for abortion clinics turns out to be exactly the sort of all-things-considered
balancing of benefits and burdens this Court has long rejected.”).
132 See id. at 2180 (Gorsuch, J., dissenting) (“Start with the concurrence's discussion of Whole Woman's Health. Immediately after paying
homage to stare decisis, the concurrence refuses to follow the all-things-considered balancing test that decision employed when
striking down Texas's admitting privileges law.”).

133 See id. at 2181.

134 Id.
135 See id. at 2153 (Alito, J., dissenting); id. at 2180-81 (Gorsuch, J., dissenting).
136 Oscar Wilde, The Picture of Dorian Gray (Bernhard Tauchnitz 1908) (1890).
137 See, e.g., Linda Greenhouse & Reva B. Siegel, The Difference a Whole Woman Makes: Protection for the Abortion Right After Whole
Woman's Health, 126 Yale L.J.F. 149, 150 (2016) (“[Whole Woman's Health] decisively reaffirms robust judicial protection for the
right declared two generations ago and under relentless attack for much of the time since.”).
138 June Med. Servs., 140 S. Ct. at 2182 (Kavanaugh, J., dissenting).
139 Id. at 2180 (Gorsuch, J., dissenting).
140 For example, a few weeks after June Medical Services, the State of Texas filed a brief before the Fifth Circuit in a case challenging a
law prescribing specific guidelines for the disposal of embryonic and fetal tissue, arguing that “Chief Justice Roberts' concurrence in
June Medical is controlling and explicit: There is no balancing test .... As the Chief Justice noted, the Whole Woman's Health majority
stated that it was applying Casey, not changing it.” Supplemental Letter Brief at 4, Whole Woman's Health v. Smith, No. 18-50730 (5th
Cir. July 10, 2020), https://www.texasattorneygeneral.gov/sites/default/files/images/admin/2020/Press/SuppLtrBrf_FM.pdf [https://
perma.cc/NBJ9-NMCQ].
141 To be sure, in much of the Court's abortion jurisprudence, the catch-22 of stare decisis works to limit the abortion right. But in rare
cases, the same dynamic has worked to subtly enlarge the right as well. For example, Whole Woman's Health emphasized coherence
with Casey, even as it sought to counter the Fifth Circuit's interpretation of Gonzales as giving broad deference to legislatures with a
more rigorous standard that required reviewing courts to weigh the benefits of the disputed legislation against the resulting burdens to
abortion access. See Greenhouse & Siegel, supra note 137, at 156 & n.45 (noting that in Whole Woman's Health the Court “total[ly]
repudiat[ed]” the lower court's reasoning, id. at 156, stating that “[t]he Court of Appeals' articulation of the relevant standard is
incorrect” and “simply does not match the standard that this Court laid out in Casey,” id. at 156 n.45 (alteration in original) (first
quoting Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016); and then quoting id. at 2310)).
142 See, e.g., Gonzales v. Carhart, 550 U.S. 124, 191 (2007) (Ginsburg, J., dissenting) (criticizing the majority for not being “faithful
to our earlier invocations of ‘the rule of law’ and the ‘principles of stare decisis”’); Planned Parenthood of Se. Pa. v. Casey, 505
U.S. 833, 944 (1992) (Rehnquist, C.J., concurring in the judgment in part and dissenting in part) (“We believe that Roe was wrongly
decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases.”);
City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 420 (1983) (“We respect [the principle of stare decisis] today,
and reaffirm Roe v. Wade.”).
143 Casey, 505 U.S. at 854.
144 Id. at 854-55 (citations omitted).
145 539 U.S. 558 (2003).
146 478 U.S. 186 (1986).
147 Lawrence, 539 U.S. at 577.
148 521 U.S. 203 (1997).
149 Aguilar v. Felton, 473 U.S. 402 (1985).
150 Agostini, 521 U.S. at 235-36.
151 515 U.S. 200 (1995).
152 Id. at 231 (plurality opinion).

153 See id. at 233-34 (“[I]n this case ... we do not face a precedent of [the kind discussed in Casey], because Metro Broadcasting itself
departed from our prior cases-- and did so quite recently. By refusing to follow Metro Broadcasting, then, we do not depart from
the fabric of the law; we restore it.”).
154 558 U.S. 310 (2010).
155 Id. at 408-09 (Stevens, J., concurring in part and dissenting in part) (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,
864 (1992)).
156 Lawrence v. Texas, 539 U.S. 558, 588-92 (2003) (Scalia, J., dissenting).
157 Id. at 587.
158 Id. at 592.
159 Id.
160 501 U.S. 808 (1991).
161 Id. at 817-18, 830.
162 482 U.S. 496 (1987).
163 490 U.S. 805 (1989).
164 Payne, 501 U.S. at 827.
165 Id. (quoting Smith v. Allwright, 321 U.S. 649, 665 (1944)).
166 Id. at 830.
167 Id. at 825.
168 Id. at 824 (quoting Blystone v. Pennsylvania, 494 U.S. 299, 309 (1990)).
169 462 U.S. 416 (1983).
170 476 U.S. 747 (1986).
171 492 U.S. 490 (1989).
172 Thornburgh, 476 U.S. at 828 (O'Connor, J., dissenting).
173 Webster, 492 U.S. at 518 (plurality opinion).
174 City of Akron, 462 U.S. at 458 (O'Connor, J., dissenting).
175 See id.
176 See Webster, 492 U.S. at 519 (plurality opinion); Thornburgh, 476 U.S. at 828 (O'Connor, J., dissenting).
177 140 S. Ct. 1390 (2020).
178 Id. at 1394.
179 406 U.S. 404 (1972).
180 406 U.S. 356 (1972).
181 Brief for Petitioner at 7, Ramos, 140 S. Ct. 1390 (No. 18-5924).

182 Johnson, 406 U.S. at 366 (Powell, J., concurring in Johnson and concurring in the judgment in Apodaca).
183 Id. at 369.
184 Ramos, 140 S. Ct. at 1405.
185 Id. For further discussion of the role of race in interrogating past precedents, see Melissa Murray, Race-ing Roe: Reproductive Justice,
Racial Justice, and the Battle for Roe v. Wade, 134 Harv. L. Rev. (forthcoming 2021) (on file with the Harvard Law School Library).
186 Ramos, 140 S. Ct. at 1394 (quoting Official Journal of the Proceedings of the Constitutional Convention of the State of Louisiana
374 (New Orleans, H.J. Hearsey 1898)).
188 See, e.g., Adam Liptak, The Threat to Roe v. Wade in the Case of the Missing Precedent, N.Y. Times (Sept.
17, 2018), https://www.nytimes.com/2018/09/17/us/politics/kavanaugh-abortion-precedent.html [https://perma.cc/HK57-85LW]
(“Justice Alito's approach in the case on public unions, coupled with his failure to cite Casey, suggested a road map to an eventual
decision overruling Roe.”).
189 431 U.S. 209 (1977).
190 See id. at 229-32.
191 138 S. Ct. 2448 (2018).
192 Id. at 2460.
193 See Abood, 431 U.S. at 222-23, 229-32 (“The differences between public- and private-sector collective bargaining simply do not
translate into differences in First Amendment rights.” Id. at 232.).
194 567 U.S. 298 (2012).
195 Id. at 313.
196 134 S. Ct. 2618 (2014).
197 Id. at 2634.
198 Id. at 2639.
199 Id. at 2627 (quoting Knox, 567 U.S. at 311).
200 Id. at 2632.
201 136 S. Ct. 1083 (2016) (per curiam).
202 Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2485 (2018); see also id. at 2484-85 (discussing Friedrichs).
203 See Friedrichs, 136 S. Ct. at 1083; see also Adam Liptak, Victory for Unions as Supreme Court, Scalia Gone, Ties 4-4, N.Y. Times
(Mar. 29, 2016), https://www.nytimes.com/2016/03/30/us/politics/friedrichs-v-california-teachers-association-union-fees-supreme-
court-ruling.html [https://perma.cc/S3JV-BNJH].
204 See Janus, 138 S. Ct. at 2463.
205 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854 (1992).
206 See, e.g., Michael J. Gerhardt, The Power of Precedent 11 (2008) (observing that in the Supreme Court's history, only four
constitutional precedents have been reversed in the absence of any change in the Court's composition); Michael J. Gerhardt, The Role

of Precedent in Constitutional Decisionmaking and Theory, 60 Geo. Wash. L. Rev. 68, 99 (1991) (“Change in personnel on the Court
is often the catalyst for overrulings.”).
207 See supra p. 334.
209 This concept adverts to Professor Reva Siegel's theory of “preservation-through-transformation,” which explains that status
hierarchies are able to preserve themselves in the face of change by transforming the rationales upon which they are justified. See Reva
B. Siegel, ‘‘The Rule of Love”: Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117, 2175-88 (1996); see also Reva Siegel,
Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan. L. Rev. 1111, 1114-29
(1997) (identifying examples of the preservation-through-transformation dynamic in the context of racial and gender status law in
the nineteenth century). In my view, the Court's approach to stare decisis works in the opposite direction--insisting on preserving the
underlying precedent while subtly transforming it. And critically, in so doing, these “preserved-but-transformed” precedents may, as
in the case of abortion, serve to perpetuate status hierarchies.
210 See supra pp. 326-27.
211 Webster v. Reprod. Health Servs., 492 U.S. 490, 535 (1989) (Scalia, J., concurring in part and concurring in the judgment); see also
Dahlia Lithwick, Foreword: Roe v. Wade at Forty, 74 Ohio St. L.J. 5, 11 (2013) (“Day after day, week after week, and year after
year, regardless of the case being argued and the case being handed down, the issue that brings protesters to the plaza of the Supreme
Court building is abortion.”).
212 See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 866-67 (1992) (“Where, in the performance of its judicial duties, the Court
decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases,
its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's
interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a
common mandate rooted in the Constitution.”).
213 Id. at 958 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part).
214 Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2487 (2018) (Kagan, J., dissenting).
215 Id.
216 Id. at 2497 (first quoting Kimble v. Marvel Ent., LLC, 576 U.S. 446, 455 (2015); and then quoting id. at 456 (internal quotation
marks omitted)).
217 Id. at 2501.
218 Id. at 2497.
219 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 856 (1992).
220 Janus, 138 S. Ct. at 2497 (Kagan, J., dissenting).
221 See Liptak, supra note 188 (arguing that the Court's disposition of Janus suggests an effort to discredit Casey and lay a path for
overruling Roe).
222 139 S. Ct. 1485 (2019).
223 Id. at 1505 (Breyer, J., dissenting) (quoting Kimble v. Marvel Ent., LLC, 576 U.S. 446, 456 (2015)).
224 Id. at 1506.
225 See id. at 1504, 1506.
226 139 S. Ct. 1960 (2019).

227 Id. at 1963-64.

228 Id. at 1969 (quoting Arizona v. Rumsey, 467 U.S. 203, 212 (1984)).
229 Id. at 1981 (Thomas, J., concurring).
230 Id.
231 See id.
232 Id. at 1983.
233 Id. at 1984.
234 Id.
235 Id.
236 Id.
237 See, e.g., Rebecca Falconer, Justice Thomas: Supreme Court Shouldn't Follow Erroneous Precedent, Axios (June 18, 2019),
https://www.axios.com/justice-thomas-supreme-court-erroneous-precedent-d3754206-a7a5-4612-8932-762b3a78bf8c.html [https://
perma.cc/K64Q-8M38]; Lawrence Hurley, U.S. Supreme Court Declines to Expand “Double Jeopardy” Protections, Reuters (June
17, 2019, 10:34 AM), https://www.reuters.com/article/us-usa-court-doublejeopardy/us-supreme-court-declines-to-expand-double-
jeopardy-protections-idUSKCN1TI1TC [https://perma.cc/8RX2-NWES]; Murray, supra note 90 (“[I]n offering this muscular vision
of stare decisis and the judicial role, Thomas takes direct aim at Casey, the 1992 case that not only upheld the right to an abortion
first recognized in Roe, but also identified a series of factors that courts must weigh in determining whether overruling an extant
precedent is warranted.”).
238 Gonzales v. Carhart, 550 U.S. 124, 169 (2007) (Thomas, J., concurring). Indeed, in his concurrence in Gamble, Justice Thomas
specifically identified as “[p]erhaps the most egregious example of [an] illegitimate use of stare decisis” the Court's substantive due
process jurisprudence, Gamble, 139 S. Ct. at 1988 (Thomas, J., concurring), which includes (although it is not limited to) its abortion
jurisprudence, see id. at 1989 (citing Stenberg v. Carhart, 530 U.S. 914, 982 (2000) (Thomas, J., dissenting)).
239 Gamble, 139 S. Ct. at 1984 (Thomas, J., concurring).
240 Id. at 1969 (majority opinion).
241 Id. at 2005 (Gorsuch, J., dissenting).
242 Id. at 2006 (quoting Agostini v. Felton, 521 U.S. 203, 235 (1997)).
243 See Michael Conway, Legal Abortion Wasn't on the Supreme Court Docket This Week. But Justices Revealed How They'll End It,
NBC News (June 18, 2019, 10:52 AM), https://www.nbcnews.com/think/opinion/legal-abortion-wasn-t-supreme-court-docket-week-
justices-revealed-ncna1018526 [https://perma.cc/W9S9-KRVA].
244 See Randy J. Kozel, Settled Versus Right: Constitutional Method and the Path of Precedent, 91 Tex. L. Rev. 1843, 1879-80 (2013)
(“The prevalence of pluralism owes in part to the Court's composition of different individuals appointed by different presidents and
espousing different judicial philosophies. The institutional dynamics of the Court as a multimember body reduce the probability of
methodological consensus.” Id. at 1879 (footnote omitted).).
245 Kozel argues that the essence of interpretive pluralism is the lack of “an overarching theory of interpretation” to guide how the Justices
invoke their preferred methods of interpretation. Id. at 1879.
246 See id. at 1879-80.
247 See Robert Post & Reva Siegel, Originalism as a Political Practice: The Right's Living Constitution, 75 Fordham L. Rev. 545,
554-55 (2006) (“[T]he Reagan Administration's use of originalism marked, and was meant to mark, a set of distinctively conservative
objections to the liberal precedents of the Warren Court.” Id. at 555.); Mary Ziegler, Originalism Talk: A Legal History, 2014 BYU L.

Rev. 869, 907-12 (noting that in the early 1980s, originalism was seen as a realistic compromise for abortion opponents, who shifted
their focus from fighting for a constitutionally recognized “right to life” to appointing judges who would overturn Roe).
248 Prominent antiabortion leaders pointed to Roe as a particularly egregious form of judicial activism that lacked any constitutional
basis. See Ziegler, supra note 247, at 910.
249 See, e.g., Jack M. Balkin, Living Originalism 214-18 (2011).
250 Ramos v. Louisiana, 140 S. Ct. 1390, 1405 (2020) (quoting Pearson v. Callahan, 555 U.S. 223, 233 (2009)).
251 Id. at 1405-07.
252 Id. at 1414-15 (Kavanaugh, J., concurring in part).
253 Id. at 1421 (Thomas, J., concurring in the judgment) (quoting Gamble v. United States, 139 S. Ct. 1960, 1981 (2019) (Thomas, J.,
concurring)).
254 See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2631 (2015) (Thomas, J., dissenting) (“By straying from the text of the Constitution,
substantive due process exalts judges at the expense of the People from whom they derive their authority.”); McDonald v. City of
Chicago, 561 U.S. 742, 811-12 (2010) (Thomas, J., concurring in part and concurring in the judgment) (casting doubt on the Fourteenth
Amendment's Due Process Clause as a source of substantive rights); Gonzales v. Carhart, 550 U.S. 124, 169 (2007) (Thomas, J.,
concurring) (“I write separately to reiterate my view that the Court's abortion jurisprudence, including Casey and Roe v. Wade, has no
basis in the Constitution.” (citation omitted)); Stenberg v. Carhart, 530 U.S. 914, 980-82 (2000) (Thomas, J., dissenting) (referring
to Roe as “grievously wrong,” id. at 980, and casting doubt on Casey and the Court's abortion jurisprudence).
255 Ramos, 140 S. Ct. at 1409 (Sotomayor, J., concurring in part) (quoting Alleyne v. United States, 570 U.S. 99, 133 (2013) (Alito,
J., dissenting)).
256 Id. at 1408.
257 Id. at 1409-10.
258 Id. at 1410.
259 Id. at 1436 (Alito, J., dissenting).
260 Id. at 1440.
261 Michael J. Gerhardt, The Limited Path Dependency of Precedent, 7 U. Pa. J. Const. L. 903, 952 (2005).
262 Id. As Gerhardt explains:
[O]f the more than 130 cases overruled by the Court, seven involved a Court with one new Justice, seven involved a Court with two
new Justices, nine involved a Court with three new Justices, fourteen involved a Court with four new Justices, seven involved a Court
with five new Justices, fifteen involved a Court with six new Justices, eighteen involved a Court with seven new Justices, eleven
involved a Court with eight new Justices, and seventy involved a Court with nine different Justices.
Id.
263 See, e.g., Michael D. Shear, Supreme Court Justice Anthony Kennedy Will Retire, N.Y. Times (June 27, 2018), https://
www.nytimes.com/2018/06/27/us/politics/anthony-kennedy-retire-supreme-court.html [https://perma.cc/7N29-FM4X].
264 See id. (noting that Justice Kennedy's retirement would give Republicans the opportunity to secure a conservative majority
on the Court); cf. Alicia Parlapiano & Jugal K. Patel, With Kennedy's Retirement, the Supreme Court Loses Its Center, N.Y.
Times (June 27, 2018), https://www.nytimes.com/interactive/2018/06/27/us/politics/kennedy-retirement-supreme-court-median.html
[https://perma.cc/9SGA-B7AX] (noting that Justice Kennedy held the Court's ideological center for a significant number of years
and was a particularly influential median Justice in key decisions).
265 See Sarah McCammon, What Justice Kennedy's Retirement Means for Abortion Rights, NPR (June 28, 2018, 3:02 PM), https://
www.npr.org/2018/06/28/624319208/what-justice-kennedy-s-retirement-means-for-abortion-rights [https://perma.cc/8YL5-R9TD]

(observing that abortion would be a central issue in the nomination of Justice Kennedy's replacement); see also Mary Ziegler, What
Does the Future of Abortion Rights Look Like?, The Atlantic (July 2, 2018), https://www.theatlantic.com/politics/archive/2018/07/
kennedy-abortion-supreme-court/564191 [https://perma.cc/68VT-2QQ7] (speculating on the future of abortion rights and how they
might be overturned or further narrowed following Justice Kennedy's retirement).
266 See, e.g., Josh Gerstein, Teenage Immigrant Abortion Case Could Be Hurdle for Kavanaugh's Supreme Court Bid, Politico
(July 6, 2018, 5:42 PM), https://www.politico.com/story/2018/07/06/trump-supreme-court-pick-kavanaugh-immigrant-abortion-
teen-700856 [https://perma.cc/LUE5-LS9E] (noting then-Judge Kavanaugh's dissent in a D.C. Circuit Court of Appeals case that
allowed a teenage immigrant in custody to receive an abortion).
267 As the confirmation hearings progressed, concerns about then-Judge Kavanaugh's views on abortion and precedent were
overshadowed by allegations that he, as a high school student, had sexually assaulted Christine Blasey Ford. See Sheryl Gay
Stolberg & Nicholas Fandos, Brett Kavanaugh and Christine Blasey Ford Duel with Tears and Fury, N.Y. Times (Sept. 27, 2018),
https://www.nytimes.com/2018/09/27/us/politics/brett-kavanaugh-confirmation-hearings.html [https://perma.cc/EFN7-QWGA]; see
also Melissa Murray, Sex and the Schoolhouse, 132 Harv. L. Rev. 1445, 1445-46 (2019) (book review) (discussing briefly these
allegations).
268 See Michelle Goldberg, Opinion, The Handmaid's Court, N.Y. Times (Sept. 10, 2018), https://www.nytimes.com/2018/09/10/
opinion/columnists/kavanaugh-abortion-roe-v-wade-trump.html [https://perma.cc/N2LC-VKS3] (describing a Supreme Court with
the addition of then-Judge Kavanaugh as a “Handmaid's Court” and suggesting that if he were confirmed, Roe would “either fall or be
eviscerated”); Lynn M. Paltrow, Opinion, Life After Roe, N.Y. Times (Sept. 1, 2018), https://www.nytimes.com/2018/09/01/opinion/
sunday/brett-kavanaugh-roe-abortion.html [https://perma.cc/3WKE-473D] (highlighting the stakes of then-Judge Kavanaugh's
nomination for the future of Roe).
269 See, e.g., Mark Helm, Potomac Watch: Rehnquist Replacement Unlikely to Change Court, Seattle Post-Intelligencer (Nov.
12, 2004, 10:00 PM), https://www.seattlepi.com/national/article/Potomac-Watch-Rehnquist-replacement-unlikely-to-1159393.php
[https://perma.cc/GK2S-8CLV] (noting that the potential retirement of Chief Justice Rehnquist was unlikely to substantially change
the Court's abortion jurisprudence but that the retirement of Justice O'Connor or one of the liberal Justices could result in a
“hard turn in the conservative direction”); Billy House, Roe's Fate Could Soon Be in O'Connor's Hands: Swing-Vote Justice
Possibly in Line as Chief, Ariz. Republic (Jan. 22, 2003), http://web1.nusd.k12.az.us/schools/nhs/gthomson.class/articles/judicial/
occonnor.swing.roe.htm [https://perma.cc/4P4U-TKGH] (speculating on the future of Roe if Chief Justice Rehnquist retired and
Justice O'Connor were elevated to replace him).
270 See Erwin Chemerinsky, Opinion, Much Depends on Ginsburg, L.A. Times (Mar. 15, 2014, 1:44 PM), https://www.latimes.com/
opinion/op-ed/la-oe-chemerinsky-ginsburg-should-resign-20140316-story.html [https://perma.cc/D8YG-NDCR] (noting that if a
Republican President had the opportunity to select Justice Ginsburg's replacement, then there would likely be five votes to overturn
Roe).
271 Jonathan Topaz, Ginsburg: Why I Can't Resign Now, Politico (Sept. 24, 2014, 6:37 AM), https://www.politico.com/story/2014/09/
ruth-bader-ginsburg-elle-interview-111281 [https://perma.cc/Q58U-K77F].
272 See, e.g., Sarah McCammon, Ginsburg's Death a “Pivot Point” for Abortion Rights, Advocates Say, NPR (Sept. 19,
2020, 8:56 PM), https://www.npr.org/sections/death-of-ruth-bader-ginsburg/2020/09/19/914864867/ginsburgs-death-a-pivot-point-
for-abortion-rights-advocates-say [https://perma.cc/RP7E-FZFX] (“Ginsburg's death sets up a divisive nomination fight in the midst
of a presidential campaign. And advocates on opposing sides of the issue agree that it could be a turning point in the long-running
debate over one of the most divisive issues for the court: abortion rights.”); Anna North, What Ruth Bader Ginsburg's Death
Means for the Future of Abortion Rights, Vox (Sept. 19, 2020, 2:50 PM), https://www.vox.com/21446616/ruth-bader-ginsburg-and-
abortion-roe-wade [https://perma.cc/683K-9CVM] (“If President Trump is able to appoint Ginsburg's replacement, he will likely give
conservatives on the Court the votes they need to overturn Roe, or at least to weaken it beyond recognition.”); Bridget Read, We Could
Lose Roe v. Wade Next Year. What Now?, The Cut (Sept. 19, 2020), https://www.thecut.com/2020/09/ruth-bader-ginsburg-roe-v-
wade-overturned-what-to-do.html [https://perma.cc/KY3Y-8SAU] (“As Trump moves to nominate a conservative replacement, the
fate of Roe v. Wade, the landmark case that made abortion legal throughout the U.S., has never been so tenuous.”).
273 U.S. Const. art. II, § 2, cl. 2.

274 See, e.g., Steve Benen, On the Future of the Senate Filibuster, Obama Changes the Game, MSNBC: MaddowBlog (July 31,
2020, 8:00 AM), www.msnbc.com/rachel-maddow-show/future-senate-filibuster-obama-changes-game-n1235444 [https://perma.cc/
Z5XK-AULW]; Drew DeSilver, Scalia's Supreme Court Vacancy Draws Much Public Interest, Unlike Past Open Seats, Pew
Rsch. Ctr. (Feb. 24, 2016), https://www.pewresearch.org/fact-tank/2016/02/24/scalias-supreme-court-vacancy-draws-much-public-
interest-unlike-past-open-seats [https://perma.cc/EG42-9QJQ] (finding that there was unusually high public interest in the debate
over whether the Senate should consider a nominee to fill Justice Scalia's seat prior to the 2016 election). Indeed, the outsized interest
in filling Justice Scalia's seat was likely because Justice Scalia was a staunch conservative and his seat would be filled by a Democratic
President--thereby presenting an opportunity to tilt the Court's balance toward the liberal wing.
275 See Charles Tiefer & Kathleen Clark, Deliberation's Demise: The Rise of One-Party Rule in the Senate, 24 Roger Williams U. L.
Rev. 46, 57-59 (2019) (observing that Majority Leader Mitch McConnell's use of the “nuclear option” in confirming Justice Gorsuch
will likely reduce deliberation on future Supreme Court nominees and may result in nominees with more extreme views, since the
minority party now has less ability to resist them).
276 See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 867 (1992) (“[T]o overrule under fire in the absence of the most compelling
reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question.”).
277 See id. at 869-70, 872-74 (plurality opinion).
278 Gonzales v. Carhart, 550 U.S. 124, 158 (2007).
279 See June Med. Servs., 140 S. Ct. at 2138-39 (Roberts, C.J., concurring in the judgment).
280 See Caitlin E. Borgmann, Roe v. Wade's 40th Anniversary: A Moment of Truth for the Anti-Abortion-Rights Movement?, 24 Stan. L.
& Pol'y Rev. 245, 268-70 (2013) (suggesting that, after over forty years of advocacy, antiabortion activists have failed to overturn
Roe's essential holding); Nina Totenberg & Brian Naylor, Supreme Court Hands Abortion-Rights Advocates a Victory in Louisiana
Case, NPR (June 29, 2020, 10:23 AM), https://www.npr.org/2020/06/29/874458692/supreme-court-hands-abortion-rights-a-victory-
in-louisiana-case [https://perma.cc/HHH9-BGDJ] (observing that Chief Justice Roberts's concurrence in June Medical Services would
likely stall attempts to overrule Roe and the subsequent decisions affirming the right to an abortion).
281 See cases cited supra note 32.
282 Jeffrey Rosen, So, Do You Believe in “Superprecedent”?, N.Y. Times (Oct. 30, 2005), https://www.nytimes.com/2005/10/30/
weekinreview/so-do-you-believe-in-superprecedent.html [https://perma.cc/6YAM-GG7G].
283 Richmond Med. Ctr. for Women v. Gilmore, 219 F.3d 376, 376 (4th Cir. 2000); see also Michael J. Gerhardt, Super Precedent, 90
Minn. L. Rev. 1204, 1204 (2006).
284 See Rosen, supra note 282.
285 Transcript of Oral Argument at 4, June Med. Servs., 140 S. Ct. 2103 (2020) (No. 18-1323), https://www.supremecourt.gov/
oral_arguments/argument_transcripts/2019/18-1323_d18e.pdf [https://perma.cc/ZA5J-JJN4].
286 Id.
287 See, e.g., Transcript of Oral Argument at 28, Gonzales v. Carhart, 550 U.S. 124 (2007) (No. 05-380), https://www.supremecourt.gov/
oral_arguments/argument_transcripts/2006/05-380.pdf [https://perma.cc/S42L-5HDG] (“The only course here that preserves the
independence of the judiciary, that exemplifies the importance of stare decisis, not to mention the only course that will protect women
from needless risks of uterine perforation, infertility, sepsis and hemorrhage, is to hold this act unconstitutional.”); Transcript of Oral
Argument at 6, Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (No. 91-744), https://www.supremecourt.gov/pdfs/
transcripts/1991/91-744_91-902_04-22-1992.pdf [https://perma.cc/PH87-BZAP] (“This Court has repeatedly held that the doctrine
of stare decisis is of fundamental importance to the rule of law.”).
288 Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 16 (1959).
289 Roberts Confirmation Hearing, supra note 1, at 56.

290 Mark A. Graber, Law and Sports Officiating: A Misunderstood and Justly Neglected Relationship, 16 Const. Comment. 293, 295
(1999) (noting that “baseball umpires ‘interpret’ the strike zone and other rules”); see also id. at 300 (“Major league umpires ...
do not engage in mere fact-finding when calling balls and strikes. Pitchers and hitters know that the strike zone in the National
League is different than the strike zone in the American League .... These different interpretations of the strike zone reflect different
understandings of baseball, not different understandings of the precise location of those parts of the body set out in the definition
of strike.”).
134 HVLR 308
End of Document © 2021 Thomson Reuters. No claim to original U.S. Government

Works.

1. ABORTION, 100 Harv. L. Rev. 200
100 Harv. L. Rev. 200
Harvard Law Review Association

November, 1986
The Supreme Court, 1985 Term
100 Harv. L. Rev. 1
Leading Cases
I. Constitutional Law
*200 F. Right to Privacy
Copyright 1986 by the Harvard Law Review Association
1. ABORTION
In 1973, the Supreme Court held in Roe v. Wade1 that the Constitution protects a woman's right to an abortion. Since then, state
legislatures have attempted to regulate abortions in numerous ways, including imposing requirements of parental or spousal
consent and rules relating to the choice of abortion procedures after the fetus has become viable. In a series of cases since
Roe v. Wade, the Court has struck down several such state restrictions.2 Last Term, in Thornburgh v. American College of
Obstetricians and Gynecologists, *201 3 the Supreme Court struck down another state regulation as unconstitutional, holding
that six provisions of the 1982 Pennsylvania Abortion Control Act4 impermissibly attempted to ‘deter a woman from making
a decision that, with her physician, is hers to make.’5 In Thornburgh, the Court demonstrated its lack of a coherent vision for
determining when state regulations of the abortion decision are so coercive as to be unconstitutional. Such fine-tuning of the
Roe v. Wade precedent, however, is in many ways only a side issue. Although Thornburgh strongly affirms the principles of
Roe v. Wade, its greatest significance may lie in the margin of its vote rather than in the substance of its opinion. Thornburgh's
5-4 decision represents a considerable decrease in support on the Court for abortion rights since Roe v. Wade's 7-2 vote. In
practical terms, Thornburgh may serve as a warning to the shrinking majority of justices who still support Roe v. Wade that
they should be cautious not to read the abortion right too broadly lest they arouse its opponents on the Court and provide them
with the resolve the reverse Roe v. Wade.
Nine years after Roe v. Wade, the State of Pennsylvania passed the Pennsylvania Abortion Control Act. The Act, based on
bills that a nonprofit anti-abortion organization helped to draft,6 required doctors to give every woman seeking an abortion
an identical litany of information at least twenty-four hours before she gave her “voluntary and informed consent.”7 This
information included a warning of the medical risks associated with the procedure used, an estimate of the gestational age of the
fetus, assurances that medical benefits might be available for prenatal care and childbirth, and assurances that the father would
be liable for financial assistance.8 Doctors were also required to furnish printed material stating that agencies were available
to help a prospective mother “carry the child to term,”9 and giving a description of what the fetus would probably look like
at two-week gestational increments.10 Physicians were required under the Act to sign reports prepared by the abortion clinic
or hospital giving detailed information about the patient, such as her state, political subdivision, age, race, marital status, and
the method of payment. Although the identity of both the reporting person and the *202 patient ostensibly would remain
confidential, each report nevertheless would be available for public inspection and copying within fifteen days of receipt.11
Physicians were required to file official reports with the state explaining the basis for their determinations that fetuses were
not viable after the first trimester.12 If the fetus was potentially viable, the Act required that a second physician be consulted13
and that physicians use the same degree of care for the fetus that they would use to ‘preserve the life and health of any unborn

child intended to be born and not aborted.”14 The physicians were required to employ the technique “which would provide the
best opportunity for the unborn child to be aborted alive unless . . . it would present a significantly greater medical risk to the
life or health of the pregnant woman.”15 The American College of Obstetricians and Gynecologists, individual physicians who
perform abortions, and other interested parties16 challenged the constitutionality of several provisions of the Pennsylvania Act,
seeking declaratory and injunctive relief.
The federal district court invalidated the twenty-four-hour waiting period required before a woman could give her informed
consent. But the court denied the motion for a preliminary injunction regarding the other disputed provisions.17 The Third
Circuit reversed the lower court, striking down each of the statutory provisions.18
The Supreme Court affirmed.19 Writing for the majority, Justice Blackmun first addressed the constitutionality of the informed-
consent and printed-information provisions.20 He found the reporting requirements *203 at issue to be highly similar to the
ones struck down three years earlier in City of Akron v. Akron Center for Reproductive Health.21 He asserted that the regulations
at issue in Thornburgh, like the provisions struck down in Akron, went beyond the legitimate state interest in maternal health.
Rather than objectively describing the options and risks involved, the regulations attempted to dissuade women from having
abortions.22 According to the majority, the Pennsylvania information provisions were ‘nothing less than an outright attempt
to wedge the Commonwealth's message discouraging abortion into the privacy of the informed-consent dialogue between
the woman and her physician.’23 The Court found, as it had in Akron, that the provisions intruded into the privacy of the
physician-patient consultation by ‘officially structur ing . . . the dialogue between the woman and her physician.’24 By requiring
the physician to offer information that might be irrelevant to the woman's needs, the provision infringed on the physician's
professional responsibilities, thereby making her ‘an agent of the State.’25
The Court next considered and struck down the reporting provisions of the Act, concluding that the public availability of the
reports, as well as some of the data required in them, went well beyond the state's legitimate interest in maternal health and
failed to respect the “patient's confidentiality and privacy.”26 Unlike the reporting requirements upheld in Planned Parenthood
v. Danforth,27 the information requested delved into the woman's personal history and would be available for copying by the
public. Instead of advancing health-related concerns, the reporting provisions provided a means to identify women having
abortions, thus inviting harassment and discouraging women from choosing to have abortions.28
*204 Finally, the Court invalidated the provisions relating to the degree of care and choice of procedure for post-viability
abortions29 and the provision requiring that a second physician be consulted before abortion of a viable fetus.30 The majority
agreed with both the appellees and the court of appeals that the degree-of-care provisions required physicians to use methods
aimed at saving the viable fetus, even though such methods imposed a greater medical risk to the health of the pregnant woman.31
Similarly, the Court viewed the second-physician requirement as invalid because it did not provide an exception for situations
in which the delay necessary to find a second physician would endanger the health of the woman.32 Not only did the provision
lack language providing such protection, but it also failed to show an intent to protect a woman whose life was at risk.33 The
Court thus reaffirmed the unconstitutionality of statutes that mandate a trade-off between the mother's health and the survival
of her fetus rather than placing the primary emphasis on protecting the woman.34
In his dissenting opinion,35 Justice White vociferously attacked the premises of the majority's decision, calling the Court's
position ‘fundamentally *205 misguided since its inception’36 in Roe v. Wade. Although Justice White conceded that the
freedom to choose to have an abortion is a liberty interest protected under the fourteenth amendment, he argued that it is not a
‘fundamental liberty’ and that therefore restrictions upon abortion rights should not be reviewed under strict judicial scrutiny.37
Because the text of the Constitution does not specifically protect the right to an abortion, he argued, the Court must be especially

careful not to impose its own value judgments on those seeking to restrict the right. Justice White distinguished the abortion
decision from other decisions concerning family autonomy that have been accorded constitutional protection38 by noting that
abortion involves the termination of a life—that of the fetus.39
Justice White also contested the declaration in Roe v. Wade that the state's interest in fetal life becomes ‘compelling’ only after
the fetus becomes viable.40 According to Justice White, the state's interest in protecting potential human life should not depend
on this arbitary line drawn by the Court. Because the viability of the fetus depends on the state of medical technology, the state's
interest becomes contingent on a factor that is ‘morally and constitutionally irrelevant.’41
Furthermore, Justice White argued, even if Roe v. Wade were to be accepted as valid, the Pennsylvania statute's reporting
provisions should still be upheld. He asserted that the statute's information requirements did not directly infringe upon
the woman's abortion decision, but rather enhanced her ability to make that decision.42 He contended that the information
requirements did not invade the privacy of the physician-patient relationship, because the legislature may *206 police a
profession in order to protect the public.43 The Pennsylvania statute's reporting requirements, he argued, served the legitimate
purpose of advancing medical knowledge without revealing the identity of the patient or physician.44 He also disagreed with the
invalidation of the provision relating to degree of care. He argued that because Roe v. Wade itself would allow the prohibition
of all post-viability abortions except when necessary to protect the mother's health, the state can require an abortion procedure
that will protect the fetus unless a method more dangerous to the fetus is needed to protect the mother.45 Finally, Justice White
would have construed the provision requiring consultation with a second physician as incorporating the constitutionally required
‘emergency’ exception.46 He thus disagreed with the majority's stance on all of the provisions.47
In Thornburgh, the Court extended the protection that Roe v. Wade accorded a woman's freedom of choice to invalidate
state regulations that would have minimal, if any, impact on the woman's decision-making. In Akron, the Court struck down
regulations that were more coercive of a woman's abortion decision than the regulations struck down in Thornburgh. The statute
struck down in Arkon detailed precisely the side-effects of which a physician must warn her petient, and it required the physician
to inform the woman that the fetus is an unborn life from inception.48 The traditional interpretation of Roe *207 v. Wade,
elucidated in Akron, seemed to imply that only coercive state regulations are unconstitutional. Thornburgh appears to represent
a movement by the Court beyond this standard of coerciveness.
The stance in the Akron line of cases on the question of coercion contrasts with the Court's holdings in cases involving abortion
funding, in which it appeared to permit the use of economic coercion to discourage abortions. In Harris v. McRae49 and Maher
v. Roe,50 which upheld state refusals to provide Medicaid funding for abortions, the Court held that not only could a state adopt
a policy of encouraging childbirth, but it could also subsidize childbirth while refusing to fund the alternative of abortion.51 The
tension between these two lines of cases reflects the Court's continuing difficulty in determining when the state's interference
with the woman's decisionmaking is acceptable and when it is impermissibly coercive.
Although state persuasion or propaganda may be tantamount to coercion, that was not the case with the Pennsylvania information
requirements in Thornburgh. Whereas the informed-consent provisions invalidated in Akron blatantly attempted to dissuade
women from having abortions, the Pennsylvania provisions lacked this coercive effect. They did not purport to define when
human life began, nor did they require the physician to recite a ‘parade of horribles.’ Some of the provisions admittedly were
effective in discouraging abortions: the description of the fetus at two-week gestational intervals, the provision informing a
woman that the father would be liable for child support, and the required printed information urging a pregnant woman to contact
agencies that offered alternatives to abortion.52 Nonetheless, the remainder of the information provisions did not seriously
*208 impinge on a woman's decisionmaking and should not have been struck down under the Akron approach. Requiring the
woman to know the name of the physician performing the abortion, the probable gestational age of the fetus, and the possibility
of unforeseeable risks seems no more coercive than informed-consent provisions for other medical procedures.

At the same time, the majority correctly invalidated the other disputed provisions of the Pennsylvania Act. By requiring
extremely detailed and personalized information, the reporting requirements would have created a pronounced chilling effect on
a woman's willingness to get an abortion, especially because the report would be available for public perusal and for copying.53
This chilling effect would be further enhanced because the hospital, a large, impersonal institution, would be the party actually
preparing the ostensibly anonymous report.54 The degree-of-care and second-physician requirements, although they concern
the physician's choice of procedure and have no direct influence on the woman's decisionmaking,55 were correctly struck down
for a different reason: they impermissibly required physicians to jeopardize the safety of the woman in order to increase the
probability of the fetus's survival.56
The Court's principal problem is methodological. It should establish a clearer basis for making its determinations of which state
regulations unduly coerce a woman's decision whether to have an abortion. The Court should analyze such regulations in terms
of the actual *209 effect they have on a woman's decisionmaking process, thus ensuring that the abortion right is protected.
The problem of determining when a statute crosses the line between innocuous regulation and coercion would be better solved
not by arbitrary and perhaps overly rigid line drawing but by a more flexible, pragmatic approach. As applied to Thornburgh,
this type of analysis would dictate upholding those portions of the Pennsylvania information requirements that did not actually
interfere with or have a serious impact on a woman's decisionmaking. Such a pragmatic approach would relieve the Court of the
pressure to manipulate rhetoric as it has been forced to do in its decisions that permit states to promote childbirth over abortion
by withholding funds but not by direct regulation.57
The stakes involved in deciding how far to extend Roe v. Wade may be quite high. The Thornburgh dissenters vociferously
indicated their antipathy to Roe v. Wade. Chief Justice Burger, who sided with the Roe v. Wade majority thirteen years ago,58
warned ominously in his Thornburgh dissent that Roe v. Wade itself may be imperiled by decisions like Akron and Thornburgh.
He suggested that ‘ t he soundness of our holdings must be tested by the decisions that purport to follow them.’59 Justice White,
in reaffirming his original opposition to Roe v. Wade, used inordinately harsh language suggesting an eagerness to reverse it.
He stated that Roe v. Wade ‘essentially created something out of nothing’ and that ‘there are many in this country who hold
the decision to be basically illegitimate.’60 In her dissent, Justice O'Connor stated that ‘because Pennsylvania has not asked
the Court to reconsider or overrule Roe v. Wade, . . . I do not address that question,’61 but elsewhere in her opinion, she made
a telling reference to Roe v. Wade's ‘outmoded trimester framework.’62 Justice Rehnquist joined in both Justice White's and
Justice O'Connor's dissents.63
Thus, Thornburgh's greatest significance may lie in the warning held out by its dissenters. The narrow margin of the decision
and the vehemence of the dissents suggest that sentiment on the Court may be turning against Roe v. Wade. If the Court continues
to interpret Roe v. Wade so broadly that every information requirement becomes an infringement of the abortion right, Roe
v. Wade's supporters on *210 the Court may be undermining the decision by encouraging needless discontent.64 In order to
preserve the fundamental right of access to abortion, the Court should refrain from applying Roe v. Wade in so sweeping a
fashion that it invalidates regulations that only incidentally infringe that right.
Footnotes
1 410 U.S. 113 (1973) (invalidating Texas criminal abortion statutes as unconstitutional).
2 See, e.g., Colautti v. Franklin, 439 U.S. 379 (1979) (invalidating Pennsylvania's standard-of-care requirements for abortions as
impermissibly vague); Bellotti v. Baird, 443 U.S. 622 (1978) (striking down a Massachusetts statute that required parental consent
before an unmarried woman under the age of 18 could undergo an abortion).

3 106 S. Ct. 2169 (1986).

4 18 PA. CONS. STAT. ANN. § 3201 (Purdon 1982) [hereinafter Act].
5 106 S. Ct. at 2178.
6 American United For Life, a Chicago-based nonprofit organization, helped draft the four Pennsylvania House bills from which
the Pennsylvania Abortion Act originated. See Comment, Toward Constitutional Abortion Control Legislation: The Pennsylvania
Approach, 87 DICK. L. REV. 373, 382 n.84 (1983).
7 106 S. Ct. at 2178 (quoting Act § 3205(a)).
8 See id. at 2178-79.
9 Id. at 2179 (quoting Act § 3208(a)(1)-(2)).
10 See id.
11 See id. at 2181.
12 The statute required physicians to prepare reports only if they determined that the fetus was not viable. See id. at 2181.
13 See id. at 2183. Planned Parenthood Association v. Ashcroft, 462 U.S. 476, 485-86 (1983), suggested that the role of the second
physician was to protect the fetus's interests during childbirth.
14 106 S. Ct. at 2182 (quoting Act § 3210(b)). Anyone who knowingly or recklessly violated this standard would be guilty of a third-
degree felony that carried a maximum sentence of seven years imprisonment and a maximum fine of $15,000. See id. at 2183.
15 Id. at 2183 (quoting Act § 3210(b)).
16 These other parties included additional physicians licensed in Pennsylvania, Pennsylvania abortion counselors, clergymen, and one
woman who purchased health care and disability insurance extending to abortions. See id. at 2174; Brief for Appellants at 5 n.4,
Thornburgh (No. 84-495).
17 See American College of Obstetricians and Gynecologists v. Thornburgh, 552 F. Supp. 791, 797-98, 811 (E.D. Pa. 1982).
18 See American College of Obstetricians and Gynecologists v. Thornburgh, 737 F.2d 283 (3d Cir. 1984).
19 Justice Blackmun's opinion for the Court was joined by Justices Brennan, Marshall, Powell, and Stevens. Justice Stevens also filed
a separate concurring opinion.
20 Before discussing the constitutionality of the six provisions, Justice Blackmun established that the Court was not going beyond
the scope of its review by determining that the provisions were unconstitutional. The Court conceded that it did not have appellate
jurisdiction in this case because the judgment of the court of appeals was not final, but it treated the appellant's jurisdictional statement
as a petition for certiorari. See 106 S. Ct. at 2175-76.
21 462 U.S. 416 (1983). In Akron, the Court invalidated informed-consent requirements similar to the ones at issue in Thornburgh on the
ground that the state does not have ‘unreviewable authority to decide what information a woman must be given before she chooses
to have an abortion,’ id. at 443, and that such statutes intrude upon the discretion of the pregnant woman's physician, see id. at 445.
22 See 106 S. Ct. at 2178-80.
23 Id. at 2179.
24 Id. at 2180.
25 Id.
26 Id. at 2181 (quoting Planned Parenthood v. Danforth, 428 U.S. 52, 80 (1976)).

27 428 U.S. 52 (1976). The Missouri reporting provisions involved in Danforth were to be compiled for statistical purposes, thus
furthering the state's health-related interests, and did not threaten to reveal the identity of individual women. See id. at 87.
28 See 106 S. Ct. at 2182. Justice Blackmun's opinion asserted: ‘Although the statute does not specifically require the reporting of the
woman's name, the amount of information about her and the circumstances under which she had an abortion are so detailed that
identification is likely. Identification is the obvious purpose of these extreme reporting requirements.’ Id.
29 See id. at 2182-83.
30 See id. at 2183-84.
31 See id. at 2182-83. According to the majority, physicians could be required to use methods of saving the fetus only if those methods
did not impose any additional risks on the woman. Because the Pennsylvania statute excepted only those methods that would impose
significantly greater risks, the Court concluded that it was unconstitutionally narrow. See id.
32 The absence of a medical emergency requirement distinguished this case from Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476
(1983), in which the Court had interpreted a similar statute as including an emergency exception. See id. at 485 n.8. The Court upheld
the statute in that case because a second physician was required only when it would “not pose an increased risk to the life or health
of the woman.” Id. (quoting MO. STAT. ANN. § 188.030.3 (Vernon 1983)).
33 See 106 S. Ct. at 2184.
34 See id. at 2183.
35 See id. at 2192 (White, J., dissenting). In addition to Justice White's dissenting opinion, in which Justice Rehnquist joined, Justice
O'Connor wrote a dissenting opinion, also joined by Justice Rehnquist, and Chief Justice Burger wrote his own dissenting opinion.
Chief Justice Burger called for a reexamination of the Court's decision in Roe v. Wade. See id. at 2190 (Burger, C.J., dissenting). He
emphasized that the state has two legitimate interests: protecting the health of the mother, see id. (citing Roe v. Wade, 410 U.S. 113,
162 (1973)), and “protecting the potentiality of human life,” id. at 2191 (quoting Roe v. Wade, 410 U.S. at 162). Moreover, he argued
that a viable fetus should have ‘every protection required to preserve its life.’ Id. at 2191.
In her dissent, Justice O'Connor argued that the Court was addressing issues beyond the proper scope of its review. Justice O'Connor
argued that because the Court had an inadequate record upon which to decide the constitutional merits of the case, it could decide
only the question of whether a preliminary injunction should have been issued. See id. at 2206-07 (O'Connor, J., dissenting). The
parties had expressly stipulated the facts of the care on the condition that either party could controvert any fact or prove additional
facts at any later proceeding. See id. at 2207. If the Court could decide the case on the merits under these circumstances, then parties
would face the risk that a final ruling on the merits would be entered against them whenever they appealed the grant or denial of
a preliminary injunction. See id. at 2213. With respect to the merits of the claim, Justice O'Connor expressed her concern that the
Court was now adopting a rule under which any regulation concerning abortion could be invalidated if it could potentially deter the
exercise of the abortion right. See id. at 2214.
36 Id. at 2192 (White, J., dissenting).
37 See id. at 2194.
38 See, e.g., Carey v. Population Servs. Int'l, 431 U.S. 678, 685 (1977) (invalidating a state law prohibiting advertisement of
contraceptives, sale to minors under the age of 16, or sale by anyone other than a licensed physician, and stating that the ‘decision
whether or not to beget or bear a child is at the very heart of this cluster of constitutionally protected choices'); Moore v. City of
East Cleveland, 431 U.S. 494, 503 (1977) (striking down a zoning provision that arbitrarily defined ‘family’ to include only nuclear
families, and asserting that the Court's past decisions ‘establish that the Constitution protects the sanctity of the family precisely
because the institution of the family is deeply rooted in this Nation's history and tradition’); Eisenstadt v. Baird, 405 U.S. 438 (1972)
(holding that a statute that prohibited distribution of contraceptives to unmarried individuals violated the rights of single people under
the equal protection clause of the fourteenth amendment); Griswold v. Connecticut, 381 U.S. 479 (1965) (invalidating a Connecticut
statute forbidding the use of contraceptives).
39 See 106 S. Ct. at 2195-96 (White, J., dissenting).

40 See id. at 2196-97.

41 Id. at 2197.
42 See id. at 2199-2200.
43 See id. at 2200-01.
44 See id. at 2201-03.
45 See id. at 2204.
46 The majority found the statute unconstitutional because it failed to provide an emergency exception to protect maternal health and
life. Justice White, however, construed the portion of the statute stating that it would be a complete defense that the ‘abortion was
necessary to preserve material life or health” as providing such an exception. See id. at 2205 (quoting Act § 3210(a)). He criticized
the majority for rejecting an interpretation of the statute that would otherwise render it constitutional and ridiculed its stance that the
term ‘necessary’ did not imply an emergency exception. See id.
47 In a separate concurrence, Justice Stevens defended the majority's position from the onslaught of Justice White's dissent. See id. at
2185-90 (Stevens, J., concurring). Justice Stevens noted that the fundamental liberty at stake in Thornburgh was the freedom from
‘unwarranted governmental intrusion’ in individual decisions regarding childbearing. Id. at 2186. Because he believed that a woman's
post-conception reproductive decisions had more serious implications than did her pre-conception reproductive decisions, Justice
Stevens disagreed with Justice White's view that a woman's post-conception decisions were somehow less fundamental than her
pre-conception decisions. See id. at 2187. Moreover, Justice Stevens argued that the state must observe the ‘fundamental and well-
recognized difference between a fetus and a human being,’ id. at 2188, unless it adopted the religious stance that the fetus is a person,
a stance that even Justice White refused to take. Justice Stevens emphasized that no one should be shackled to the ‘will of a transient
majority,’ id. at 2190, by being ‘compelled to surrender the freedom to make [the abortion] decision for herself simply because her
‘value preferences' are not shared by the majority.’ Id. at 2187.
48 See City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 442-45 (1983). The statute in Akron forced the physician
to state:
[A]bortion is a major surgical procedure which can result in serious complications, including hemorrhage, perforated uterus,
infection, menstrual disturbances, sterility and miscarriage and prematurity in subsequent pregnancies; and . . . abortion may leave
essentially unaffected or may worsen any existing psychological problems [the woman] may have, and can result in severe emotional
disturbances.
Id. at 445 n.36.
49 448 U.S. 297 (1980).
50 432 U.S. 464 (1977).
51 Critics of the Burger Court's stance in the abortion funding cases maintain that those decisions imply that the courts should be tolerant
of state action impinging on all fundamental rights. For an in-depth discussion, see Appleton, Beyond the Limits of Reproductive
Choice: The Contributions of the Abortion-Funding Cases to Fundamental-Rights Analysis and to the Welfare-Rights Thesis, 81
COLUM. L. REV. 721 (1981).
52 A pregnant woman was to receive the following printed statement:
There are many public and private agencies willing and able to help you to carry your child to term, and to assist you and your child
after your child is born, whether you choose to keep your child or place her or him for adoption. The Commonwealth of Pennsylvania
strongly urges you to contact them before making a final decision about abortion. The law requires that your physician or his agent
give you the opportunity to call agencies like these before you undergo an abortion.
106 S. Ct. at 2179 (quoting Act § 3208(a)(1)).
53 Although the majority did not consider the reporting issue directly, the clear legislative intent may have influenced its interpretation
of the statute. Because the Pennsylvania Abortion Control Act states that it is ‘the public policy of this Commonwealth [to encourage]
childbirth over abortion,’ 18 PA. CONS. STAT. ANN. § 3202(c) (Purdon 1982), the Court may have presumed that at least some of the
provisions were intended to dissuade a woman from choosing to have an abortion. Support for this interpretion may be gleaned from

the opinion, in which the majority noted that identification of the woman was undoubtedly the goal of the reporting requirements.
See supra at note 28.
54 Another attack on the reporting provisions rests on the ground that the state interest in this case was weaker than for the reporting
provisions in Akron. By requiring such detailed reports, the state would be compiling useful statistics, but it would be protecting
neither the life of the fetus nor that of the woman.
55 At least one commentator has suggested that the Court has been at least as concerned about the rights of the physician, who is generally
male, as about the woman's right to privacy in its abortion decisions. See Asaro, The Judicial Portrayal of the Physician in Abortion
and Sterilization Decisions: The Use and Abuse of Medical Discretion, 6 HARV. WOMEN'S L.J. 51, 59-61 (1983).
56 In dissent, Justice White argued that these provisions were valid because they applied only to potentially viable fetuses and because,
under Roe v. Wade, a state may prohibit post-viability abortions. See supra p. 206. However, the Pennsylvania Act applied to any fetus
that might be viable—defined by the statute to be any fetus in the second or third trimesters of gestation, 18 PA. CONS. STAT. ANN. §
3211(a) (Purdon 1982)—whereas Roe v. Wade allowed the prohibition of only third-trimester abortions. Therefore, the Pennsylvania
statute was unconstitutionally overbroad.
57 But see Wilson, The Morality of Formalism, 33 UCLA L. REV. 431, 442-45 (1985) (arguing that complex legal questions, such as
abortion, are best resolved by clear guidelines and brightlines rules).
58 Roe v. Wade, 410 U.S. 113, 207 (1973) (Burger, C.J., concurring).
59 106 S. Ct. at 2192 (Burger, C.J., dissenting).
60 Id. at 2206 (White, J., dissenting).
61 Id. at 2213 (O'Connor, J., dissenting) (citations omitted).
62 Id. at 2214.
63 See 106 S. Ct. at 2192 (White, J., dissenting); id. at 2206 (O'Connor, J., dissenting).
64 Roe v. Wade, a controversial decision when originally handed down, continues to arouse considerable scholarly opposition and has
provoked calls for its reveral. One commentator has gone so far as to suggest that the Roe v. Wade doctrine is ‘fantasy in the service
of ideology.’ Noonan, Commentary: The Root and Branch of Roe v. Wade, 63 NEB. L. REV. 668, 675 (1984).
100 HVLR 200

Works.

2. PUBLIC FUNDING OF ABORTIONS, 91 Harv. L. Rev. 137
91 Harv. L. Rev. 137
Harvard Law Review

November 1977
Supreme Court, 1976 Term
D. Due Process
Copyright (c) 1998 by the Harvard Law Review Association
2. PUBLIC FUNDING OF ABORTIONS

2. Public Funding of Abortions. — In its watershed 1973 decisions of Roe v. Wade1 and Doe v. Bolton,2 the Supreme Court
invalidated statutes which imposed criminal penalties and procedural restrictions on abortion, announcing that the constitutional
right of privacy is “broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”3 Last *138
Term, in Maher v. Roe4 and Poelker v. Doe,5 the Court limited the potential reach of Roe v. Wade by ruling that state and
local governments are not constitutionally compelled either to pay the costs of nontherapeutic abortions6 for those who cannot
otherwise afford them or to provide elective abortion services in municipal hospitals, even where subsidies and facilities for
normal childbirth are provided.
At issue in Maher was a Connecticut regulation which authorizes medicaid payments only for those abortions which have
been certified as “medically necessary” by the attending physician. A three-judge court ruled that the provision of medicaid
funds for childbirth but not for nontherapeutic abortion contravenes the equal protection clause because it “weights the choice
of the pregnant mother against choosing to exercise her constitutionally protected right” under Roe v. Wade.7 In Poelker, an
indigent mother challenged a St. Louis directive which prohibits the performance of abortions in municipal hospitals except
where necessary to preserve the mother's physical health.8 Finding the abortion exclusion to be an “arbitrary governmental
discrimination against indigent women choosing to have an abortion,” the Eighth Circuit overturned the policy on equal
protection grounds.9
The Supreme Court reversed in each case, 6-3.10 After noting *139 that the due process clause imposes no obligation on the
states to provide pregnancy-related care to the poor,11 Justice Powell's opinion for the Maher majority declined to apply strict
scrutiny to the state's policy of providing medical care for childbirth but not for abortion.12 The Court reasoned first that no
suspect classification was involved, noting that “financial need alone [does not identify] a suspect class for purposes of equal
protection analysis.”13 It then found that the fundamental right to make the choice between abortion and childbirth free of
“unduly burdensome” state interference was not impinged by Connecticut's refusal to reimburse the expenses of nontherapeutic
abortions, because that policy “imposed no restriction on access to abortions” that did not exist already as a result of the woman's
poverty.14 Although Justice Powell conceded that the availability of state-paid childbirth might “influenc[e]” the indigent
woman's decision,15 he found such influence permissible both under the language of Roe and under a broad constitutional
principle that the state may make a value judgment to “encourage” alternatives to the exercise of constitutional rights which
it may not proscribe *140 directly.16 Applying the minimum rationality standard, the Court determined that subsidizing
childbirth but not abortion would further the state's interests in protecting potential fetal life and in “encouraging normal
childbirth.”17 The Court then relied on its Maher analysis to dispose of Poelker in a per curiam opinion upholding the provision
of maternity but not elective abortion services in municipal hospitals.18

The dissenting opinions were unusually vituperative,19 each criticizing the majority from a different doctrinal perspective.
Justice Marshall reiterated his disenchantment with two-tier scrutiny, suggesting that had the Court weighed the importance
of medicaid abortions to the lives of welfare mothers against the interest of the state in preserving potential life prior to the
point of viability, it would have found the abortion exclusions invalid.20 Justice Brennan contended that the financial incentives
favoring childbirth deprive the indigent woman of her freedom to choose abortion over maternity, thereby impinging on the
due process right recognized in Roe and triggering strict scrutiny.21 Justice Blackmun, the author of the Roe and Doe v. Bolton
opinions, chastised the majority for severing the Roe right in the abstract from the ability of indigent women to enjoy that right,
and for deferring to legislative processes which impose government-preferred *141 values on the poor and which, on the issue
of abortion, may not accurately reflect majority sentiment.22
In upholding the medicaid abortion exclusions, the Maher Court rejected two separate lines of argument. First, the Court closed
off the possibility that Roe v. Wade might be interpreted to impose on government affirmative obligations to ensure minimal
access to abortions for those unable to finance them privately.23 Although the claim of constitutional entitlement to the minimum
means of realizing fundamental rights is particularly compelling in the abortion context, there are sound reasons to support
the Court's reluctance to recognize such affirmative state duties. In the first place, it is difficult to discern a principle which
would limit the reach of this duty to abortion alone, without requiring the state to fund minimum exercises of other rights of
privacy, travel, and speech.24 Moreover, there are no clear standards by which the Court might allocate such an abstract duty
between federal and state governments, and no effective remedial tools with which the Court might enforce the duty against a
state that refuses to erect a mechanism for providing the required payments or services.25 Finally, if identification of an interest
as fundamental would trigger a governmental duty to aid in its implementation, the Court might hesitate before acting boldly
on behalf of nascent liberties, as it acted in Roe.
Maher's rejection of a second line of argument — that once the state provides pregnancy care for indigent women, it cannot
*142 exclude abortions from reimbursement — is more troubling.26 The Court found that in making childbirth free for the poor,
the state erects no “obstacle” to the indigent woman's opportunity to obtain a private abortion; because her poverty is “neither
created nor in any way affected” by the exclusion, her attempt to procure a private abortion is made no more difficult than it
would be were the state unwilling to assume the costs of childbirth.27 While the bright line between “obstacles” which prevent
a decision altogether and “encouragements” which merely make an alternative decision “more attractive”28 may satisfy the
Justices' concern to avoid a deepening involvement in the complex areas of abortion and welfare, it can hardly reflect the reality
of the situation confronting pregnant poor women. As an initial matter, the Court cannot be correct in thinking that the mother's
indigency is unaffected by giving birth to a child which she would not have carried to term had abortion funds been available.
Moreover, as the Court partially acknowledged,29 indigent women are unable, according to the state's own declaration of their
eligibility for medicaid, to pay for either childbirth or abortion. By providing the former free, the state removes the incentive to
seek private funds for abortion, leaving the woman with a choice between an option which the state admits she cannot afford and
a free alternative *143 which she does not desire. Only in the most jejune sense does this leave the constitutionally protected
decision regarding the termination of pregnancy in the hands of the pregnant woman rather than those of the political majority.30
The Maher Court's lack of realistic insight also produces doctrinal shortcomings. In holding that the state may “encourage”
an alternative to constitutionally protected behavior, Maher fails to recognize that, in the modern state, the potential for
governmental usurpation of fundamental liberties is no less dramatic where the state acts in its capacity as provider of
largesse than by its authority to impose criminal and regulatory sanctions.31 Although its attention to this potential has
been notably incomplete,32 the Court has emphasized that state efforts to purchase the waiver of liberties through selective
distribution of benefits can result in the erosion of constitutional guarantees.33 And while it has occasionally upheld selective
distributions which advance important instrumental interests in the efficient and uncorrupted functioning of the political and

governmental processes,34 where the clear purpose underlying a policy of selectivity is to discourage one manner of exercising
a constitutionally protected choice — how to speak, with whom to associate, where to worship — the Court has not hesitated
to require the state to act evenhandedly in dispensing its favor.35 Because Connecticut could premise its *144 decision to
fund only childbirth solely on its desire to disfavor one means of exercising the right to control the outcome of a pregnancy,36
Maher's ratification of the medicaid abortion exclusions sharply contradicts the Court's heretofore vigilant concern to insulate
fundamental liberties from the coercive use of governmental bounty.
Justice Powell's opinion suggests two responses to this conclusion. First, it indicates that this rule of evenhandedness is
inapposite where the state withdraws only the specific costs of the disfavored right, and not other benefits — such as general
welfare assistance — to which the recipient is otherwise entitled.37 This distinction is unpersuasive. It can hardly be the case,
for example, that the state could provide a free forum for indigents' speech only on the condition that no unpopular views
be espoused, even though this policy would deny only the specific costs of exercising disfavored speech rights. Similarly,
it is difficult to imagine that the Court would uphold a policy of providing free justices of the peace for intraracial but not
racially mixed marriages, thereby declining to pay the specific costs of a disfavored but constitutionally protected union,38
notwithstanding that the state has merely made intraracial marriage a more attractive alternative without creating an obstacle to
private marriage opportunities. In either case, the state's effort to induce conformity to its own values is equally objectionable
whether or not targeted to deny a subsidy only for the exact costs of the disfavored behavior.
As a second response, Justice Powell suggests a new formulation of Roe v. Wade under which the state remains free to “make
*145 a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds.”39
Justice Powell does not explain what value may underlie conditioning pregnancy care on the decision not to have an abortion.
But given the Court's emphasis on the state interest in “encouraging normal childbirth” and the lack of other interests served
by the policy,40 there appears to be only one possibility — the moral distaste or reservations with which those in control of
the political branches regard abortion.
This constricted view of Roe is Maher's most disconcerting feature. By rejecting the implication of Roe that the political branches
are precluded, at least in the abortion context, from embracing one viewpoint in an area of deep and irreconcilable moral
dispute,41 the Court indicates that the use of state largess for the purpose of discouraging the exercise of basic liberties may
be justified by the state interest in implementing its moral concerns. But it is difficult to see what constitutional rights are
if not protection against the encroachments of state-sponsored morality. To be sure, moral judgments undoubtedly animate
most laws,42 and the political branches do have a vital role to play in articulating a moral vision of society. But once it is
determined that an activity falls within the scope of constitutional liberty, that activity should by definition be removed from
the stultifying morality of political majorities.43 Nowhere is this clearer than in *146 the case of privacy rights, which are
inherently countermajoritarian.44 Having placed abortion within the sphere of constitutional privacy in Roe, the Court fails in
Maher to explain why the decision to abort should receive less protection from the “normal democratic processes”45 than other
fundamental liberties.
Maher therefore appears to rest less on a general principle of constitutional analysis than on the Court's view that the freedom to
control one's own reproduction is an incomplete form of liberty. That the Court has taken this tack may be understood to reflect
only the controversial nature of the abortion issue, and not a broad constitutional license for the use of the fisc to encourage
moral conformity.46
Footnotes
1 410 U.S. 113 (1973).

2 410 U.S. 179 (1973).

3 410 U.S. at 153. Roe left unclear whether the abortion right was bottomed on the individual autonomy of the pregnant woman, see
Eisenstadt v. Baird, 405 U.S. 438, 453 (1972), or the intimacy of the familial or medical relationship, see Paris Adult Theatre I v.
Slaton, 413 U.S. 49, 66 n.13 (1973); Roe v. Wade, 410 U.S. 113, 165-66 (1973); Doe v. Bolton, 410 U.S. 179, 219 (1973) (Douglas,
J., concurring). The Court last Term unanimously opted for the former view. Whalen v. Roe, 429 U.S. 589, 598-600 & n.26 (1977).
4 97 S. Ct. 2376 (1977).
5 97 S. Ct. 2391 (1977).
6 Nontherapeutic (or elective) abortions are those which are not necessary to protect the pregnant woman's life or health. See note
26 infra.
7 Roe v. Norton, 408 F. Supp. 660, 663 (D. Conn. 1975). The court declared the asserted state interest in conserving state resources to
be “wholly chimerical,” because the cost of an abortion is significantly lower than that of carrying a pregnancy to term or of providing
welfare assistance for children of indigent mothers. Id. at 664. The court also refused to find the medical necessity rule justified by
the state's moral objection to abortion, explaining that “[t]o sanction such a justification would be to permit discrimination against
those seeking to exercise a constitutional right on the basis that the state simply does not approve of the exercise of that right.” Id.
8 The lower court found that as a result of this directive and the practice of recruiting hospital staff from a Jesuit-operated medical
school, no abortions had been performed in St. Louis public hospitals since the decision in Roe v. Wade. Doe v. Poelker, 515 F.2d
541, 542-44 (8th Cir. 1975).
9 Id. at 545.
10 Chief Justice Burger and Justices Stewart, White, Powell, Rehnquist, and Stevens formed the majority. The Chief Justice filed a brief
concurrence in Maher. Justice Brennan, joined by Justices Marshall and Blackmun, filed a dissenting opinion in each case. Justice
Blackmun added a dissent in which Justices Brennan and Marshall joined, and Justice Marshall filed an individual dissent.
In a companion case addressing the problem of statutory construction, the Court held by the same 6-3 vote that states are not required
by the Medical Assistance Program (Medicaid) of title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396d (1970 & Supp. V
1975), to fund nontherapeutic abortions. Beal v. Doe, 97 S. Ct. 2366 (1977).
11 97 S. Ct. at 2380 & n.5. The Court distinguished Boddie v. Connecticut, 401 U.S. 371 (1971), which required the state to waive
filing fees for divorce proceedings, on grounds that the state had not monopolized the means of terminating pregnancies as it had
monopolized the means of dissolving marriages.
12 Following the lead of the lower courts, Justice Powell cast the case in an equal protection framework, employing the traditional two-
tier analysis of San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973). While the issue might as easily have been viewed
as one of due process, as a practical matter the analysis under either clause appears the same. See Goodpaster, The Constitution and
Fundamental Rights, 15 Ariz. L. Rev. 479, 503-05 (1973).
13 97 S. Ct. at 2381. No claim of sex discrimination was raised in Maher. Cf. Geduldig v. Aiello, 417 U.S. 484 (1974) (classifications
on the basis of pregnancy are not discriminatory sex-based classifications).
14 97 S. Ct. at 2382-83. Justice Powell first emphasized that prior cases striking down abortion laws had involved “absolute obstacles”
to the realization of the decision to abort, then conceded that an obstacle need not be absolute but only “unduly burdensome” in order
to be unlawful, but concluded that the abortion exclusion in Maher erected no obstacle at all to the woman's obtaining an abortion
from private sources. The Court therefore implied that the exclusion imposed no burden — “undue” or not — on the Roe right, and
consequently it did not have occasion to consider what an “unduly burdensome” state interference might be.
15 Id. at 2383.
16 There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity
consonant with legislative policy. Constitutional concerns are greatest when the State attempts to impose its will by force of law; the
State's power to encourage actions deemed to be in the public interest is necessarily far broader.
Id.

17 The Court reasoned that, because the costs of carrying a pregnancy to term are higher than those of terminating it, the goal of fostering
normal childbirth could be achieved by bringing its cost below that of abortion. Id. at 2385. The average cost of first-trimester
abortions is $150; the cost of normal delivery in public hospitals is between $500 and $800. See Butler, Right to Medicaid Payment
for Abortion, 28 Hastings L.J. 931, 949 n.122 (1977).
18 97 S. Ct. at 2392-93.
19 See, e.g., 97 S. Ct. at 2399 (Blackmun, J., dissenting):
Implicit in the Court's holdings is the condescension that [the pregnant woman] may go elsewhere for her abortion. I find that
disingenuous and alarming, almost reminiscent of “let them eat cake.”…There is another world “out there,” the existence of which
the Court, I suspect, either chooses to ignore or fears to recognize. And so the cancer of poverty will continue to grow.
20 Id. at 2395-96. Justice Marshall accused the majority of “misreading” Roe to give the state interest in fetal life more force than that
case warranted. Id. He also suggested, using studies showing that nonwhites both receive medicaid and undergo abortion at rates well
above those for whites, that the disproportionate racial impact of the abortion exclusions should influence the Court's outcome, even
if insufficient to support an inference of racial animus under Washington v. Davis, 426 U.S. 229 (1976).
21 97 S. Ct. at 2388-90.
22 Id. at 2399.
23 Several courts and commentators had suggested that Roe might be read in this way. See, e.g., Nyberg v. City of Virginia, 495 F.2d
1342, 1346 (8th Cir.), appeal dismissed, 419 U.S. 891 (1974); City of New York v. Wyman, 66 Misc. 2d 402, 414, 321 N.Y.S.2d 695,
707 (Sup. Ct.), aff'd on other grounds, 37 A.D. 700, 322 N.Y.S.2d 957 (1971), rev'd, 30 N.Y.2d 537, 281 N.E.2d 180, 300 N.Y.S.2d
385 (1972); Tribe, The Supreme Court, 1972 Term — Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87
Harv. L. Rev. 1, 42-50 (1973); Comment, Abortion on Demand in a Post-Wade Context: Must the State Pay the Bills?, 41 Fordham
L. Rev. 921, 928-31 (1973).
To the extent that the inability to pay for an abortion impairs a woman's right to determine her social role and destiny, Professor Karst
suggests that the principle of equal citizenship — the substantive core of the fourteenth amendment — entitles her to state assistance
in implementing her choice to undergo an abortion. Karst, The Supreme Court, 1976 Term — Foreword: Equal Citizenship Under
the Fourteenth Amendment, 91 Harv. L. Rev. 1, 58-59 (1977).
24 Justice Powell noted the problem in Maher, emphasizing that cases recognizing the constitutional right to travel do not require that
the state pay indigents' busfares. 97 S. Ct. at 2383 n.8. See also Butler, supra note 17, at 938; Note, Medicaid and the Abortion Right,
44 Geo. Wash. L. Rev. 404, 411 (1976).
25 See Michelman, In Pursuit of Constitutional Welfare Rights: One View of Rawls' Theory of Justice, 121 U. Pa. L. Rev. 962, 997-1015
(1973).
26 It would appear that the rationale of Maher extends fully to the federal government as well as the states. Indeed, on the last day of the
Term, the Court remanded for reconsideration in light of Maher a case raising similar issues with regard to congressional withdrawal
of medicaid appropriations for all abortions except those in which the mother's life was endangered. Califano v. McRae, 97 S. Ct. 2993
(1977), vacating and remanding McRae v. Mathews, 421 F. Supp. 533 (E.D.N.Y. 1976). However, because the amendment challenged
in McRae barred funding for abortions which were necessary to terminate pregnancies that jeopardized the mother's physiological or
psychological health (but not her life), Maher's holding regarding nontherapeutic abortions may not be completely controlling. Roe
declared that the state interest in fetal life — which Maher equated with “encouraging normal childbirth” — cannot override, even
in the final trimester, the mother's interest in her health. 410 U.S. at 164-65. The Court has consistently defined “health” broadly to
include psychological and familial factors, see Doe v. Bolton, 410 U.S. 179, 192 (1973); United States v. Vuitch, 402 U.S. 62, 72
(1971), and Justice Powell was careful to note in Maher that Connecticut's “medical necessity” standards incorporated that broad
definition. 97 S. Ct. at 2378. Denial of funding for abortions which meet this liberal standard of safeguarding the mother's overall
well-being therefore may be impermissible because (1) a pregnancy which so endangers the mother cannot be described as leading
to a “normal” childbirth, and (2) Roe's recognition of a distinction between therapeutic and nontherapeutic abortions may distinguish
Maher. But see Poelker v. Doe, 97 S. Ct. 2391 (1977) (upholding, but without noting the constricted range of, a policy permitting
abortions only for threats of “grave physiological danger”).

27 97 S. Ct. at 2382-83.
28 Id. at 2383.
29 Id.
30 See L. Tribe, American Constitutional Law § 16-9 (1977).
31 See O'Neil, Unconstitutional Conditions: Welfare Benefits with Strings Attached, 54 Calif. L. Rev. 443 (1966); Reich, Individual
Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245 (1965); Van Alstyne, The Demise of the Right-Privilege
Distinction in Constitutional Law, 81 Harv. L. Rev. 1439 (1968).
32 See, e.g., Arnett v. Kennedy, 416 U.S. 134, 153-54 (1974) (plurality opinion); Wyman v. James, 400 U.S. 309 (1971) (home visits by
welfare caseworkers held not searches within fourth amendment and justified by beneficent character of welfare payments).
33 See, e.g., Elfbrandt v. Russell, 384 U.S. 11 (1966); Sherbert v. Verner, 374 U.S. 398 (1963); Speiser v. Randall, 357 U.S. 513 (1958);
Frost & Frost Trucking Co. v. Railroad Comm'n, 271 U.S. 583, 593-94 (1926); P. Brest, Processes of Constitutional Decisionmaking
806-08 (1975); Comment, Another Look at Unconstitutional Conditions, 117 U. Pa. L. Rev. 144 (1968).
34 See Buckley v. Valeo, 424 U.S. 1, 95-96 (1976) (public campaign financing conditioned on acceptance of expenditure limitations
justified by “significant governmental interest” in integrity and efficiency of political process); United States Civil Serv. Comm'n
v. National Ass'n of Letter Carriers, 413 U.S. 548, 564 (1973) (Hatch Act limitation on speech of government employees upheld
because, inter alia, “obviously important interests” in efficient and uncorrupted civil service are served). See also Santobello v. New
York, 404 U.S. 257 (1971) (functioning of criminal justice system requires that defendants be permitted to waive fifth and sixth
amendment rights in exchange for plea bargain).
35 See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (speech); United States Dep't of Agric. v. Moreno, 413 U.S. 528
(1973) (association); Sherbert v. Verner, 374 U.S. 398 (1963) (religion); Speiser v. Randall, 357 U.S. 513 (1958) (speech); Comment,
supra note 33, at 152, 154. Where the Court has upheld conditioning of benefits, it has specifically pointed out that the condition
did not discriminate between alternative modes of exercising the right at stake. See Buckley v. Valeo, 424 U.S. 1, 96 (1976) (public
financing equally available to major parties; doubtful deleterious effect on minor party access to political process); United States
Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 564 (1973) (Hatch Act “not aimed at particular parties, groups,
or points of view”).
36 Because the costs and risks to the mother's health are higher for childbirth than for abortion, the state could not advance such traditional
instrumental rationales as conserving revenues, diminishing bureaucratic procedures, or protecting individual health. Justice Powell
suggested that an interest in achieving demographic balance might justify differential treatment of childbirth and abortion, 97 S. Ct.
at 2385 n.11, but as Justice Brennan pointed out in dissent, id. at 2390 n.*, no such arguments were made or available in Maher.
37 Id. at 2383 n.8. Justice Powell distinguished Shapiro v. Thompson, 394 U.S. 618 (1969), and Sherbert v. Verner, 374 U.S. 398
(1963), on grounds that those cases involved denial of welfare and unemployment benefits, respectively, which were not specifically
connected to the rights of travel and religion at stake.
38 See Loving v. Virginia, 388 U.S. 1 (1967).
39 97 S. Ct. at 2382.
40 See note 36 supra.
41 Roe suggested this interpretation, in language which came as close as any in the opinion to expressing a principled rationale for
invalidating abortion laws, by denying the state the authority to “adop[t] one theory of life” in light of the “wide divergence of
thinking” about the abortion issue. 410 U.S. at 162, 160. See McRae v. Mathews, 421 F. Supp. 533, 542 (E.D.N.Y. 1976) (“Divisions
between sober and God-fearing people so deep and equal deny to civil authority any power to intervene by direction or indirection,
either to compel abortion as a measure of population control or to deny medical assistance to the needy who act on their own beliefs.”),
vacated and remanded sub nom. Califano v. McRae, 97 S. Ct. 2993 (1977); Doe v. Rose, 499 F.2d 1112, 1117 (10th Cir. 1974); Ravin
v. State, 537 P.2d 494, 509 (Alas. 1975); A. Cox, The Role of the Supreme Court in American Government 113 (1976).

42 See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 108-09 (1973) (Brennan, J., dissenting); Doe v. Beal, 523 F.2d 611, 634 (3d Cir.
1975) (en banc) (Kalodner, J., dissenting), rev'd, 97 S. Ct. 2366 (1977); L. Tribe, supra note 30, §§ 12-4, 15-10.
43 See West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (“One's right to life, liberty, and property, to free speech, a
free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome
of no elections.”); H.L.A. Hart, Law, Liberty and Morality 81 (1963). Thus, that the state is free to make moral judgments as diverse
as those condemning murder and securities fraud hardly explains why those judgments would be permissible were the choice to kill or
to deceive shielded by the Constitution. Moreover, while the state may pursue “the social interest in order and morality” in regulating
speech that is obscene, see Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61 (1973), once speech is within the protection of the first
amendment, it is immune from such regulation. But see Young v. American Mini Theatres, Inc., 427 U.S. 50, 70 (1976) (plurality
opinion). See generally Note, Roe and Paris: Does Privacy Have a Principle?, 26 Stan. L. Rev. 1161, 1167-73 (1974).
44 See Gerety, Redefining Privacy, 12 Harv. C.R.-C.L. L. Rev. 233, 277 (1977).
45 97 S. Ct. at 2386.
46 See L. Tribe, supra note 30, § 15-10 n.77.
91 HVLR 137

Works.

RACE-ING ROE: REPRODUCTIVE JUSTICE, RACIAL..., 134 Harv. L. Rev. 2025
134 Harv. L. Rev. 2025
Harvard Law Review

April, 2021
Article
Melissa Murraya1
Copyright © 2021 by The Harvard Law Review Association; Melissa Murray
RACE-ING ROE: REPRODUCTIVE JUSTICE, RACIAL JUSTICE, AND THE BATTLE FOR ROE v. WADE
CONTENTS
Introduction 2027
I. Race and Reproduction Before and After Roe 2031
A. Race-ing Reproduction: From Slavery to the Birth Control Movement 2033
1. Slavery and Reproduction 2033
2. The Racial Politics of Abortion Criminalization 2034
3. The Racial Politics of the Eugenics Movement 2036
4. Race, Eugenics, and the Birth Control Movement 2038
5. Racial Opposition to the Birth Control Movement 2040
B. Race and Abortion Before Roe v. Wade 2041
1. Black Genocide and Reproductive Rights 2041
2. Reproductive Rights and Race, Gender, and Class Equality 2045
C. Race and Abortion After Roe v. Wade 2049
D. Reproductive Justice and Racial Justice in the Abortion Debate 2055
E. Race, Disability, and Reproductive Justice 2059
II. Abortion, Disability, and Antidiscrimination 2062
III. Race-ing Roe 2071
A. Stare Decisis and Abortion 2072
B. Race and Precedent 2076
C. Ramos v. Louisiana 2080
D. Ramos, Box, and Roe 2083
IV. Race in the Balance 2088
A. Undermining Reproductive Justice 2089
B. Undermining Racial Justice 2094
Conclusion 2101
*2026 Amidst a raft of major Supreme Court decisions, a relatively quiet concurrence has planted the seeds
for what may precipitate a major transformation in American constitutional law. Writing for himself in Box v.
Planned Parenthood, Justice Thomas chided the Court for declining to review a decision invalidating an Indiana
law that prohibited abortions undertaken “solely because of the child's race, sex, diagnosis of Down syndrome,
disability, or related characteristics.” Arguing that the challenged law was merely Indiana's modest attempt to
prevent “abortion from becoming a tool of modern-day eugenics,” Justice Thomas proceeded to elaborate a
misleading history in which he associated abortion with eugenics, racism, and a broader campaign to improve
the human race by limiting Black reproduction.
While many decried his selective and inaccurate invocation of the history of eugenics, Justice Thomas's ambitions
for the concurrence likely went beyond the historical record. Indeed, in drafting the concurrence, Justice Thomas
may have been less concerned with history than with the future--and specifically the future of abortion rights

and the jurisprudence of race. As this Article explains, the concurrence's misleading association of abortion
and eugenics may well serve two purposes. First, it justifies trait-selection laws, an increasingly popular type
of abortion restriction, on the ground that such measures serve the state's interest in eliminating various forms
of discrimination. But more importantly, and less obviously, by associating abortion with eugenic racism, the
concurrence lays a foundation for discrediting--and overruling-- Roe v. Wade on the alleged ground that the
abortion right is rooted in, and tainted by, an effort to selectively target Black reproduction.
Under the principle of stare decisis, a past decision, like Roe v. Wade, cannot be overruled simply because a
majority of the current Court disagrees with it. Instead, a “special justification” is required. Justice Thomas's
association of abortion with eugenics constructs the case that racial injustice is the “special justification” that
warrants overruling Roe. In this regard, the Box concurrence builds on past decisions, like *2027 Brown v.
Board of Education, as well as more recent cases, like Ramos v. Louisiana, in which the Court overruled past
precedents, in part, to correct racial wrongs.
If undertaken, the Box concurrence's latent strategy will be devastating to abortion rights, but as this Article
explains, its deleterious impact goes beyond eviscerating Roe v. Wade. Under the concurrence's logic, race may
serve dual purposes in shaping the Court's jurisprudence. As an initial matter, race--and the prospect of redressing
racial injustice-- furnishes the Court with a potent justification for reconsidering settled precedent. But it also
provides the Court with an opportunity to articulate new law that affirms and entrenches the Court's preferred
conception of race and racial harm. In this regard, the Box concurrence is not merely an invitation to recast
abortion as an issue of racial injustice; it is an invitation to entirely reconceptualize the meaning of race, racial
injury, and racism.
Introduction
In May 2019, the Supreme Court issued a per curiam decision in Box v. Planned Parenthood of Indiana and Kentucky, Inc.,1
a challenge to two Indiana abortion restrictions--one that “makes it illegal for an abortion provider to perform an abortion in
Indiana when the provider knows that the mother is seeking the abortion solely because of the child's race, sex, diagnosis of
Down syndrome, disability, or related characteristics,”2 and one that prescribed particular protocols for the disposal of fetal
remains.3
The Court's disposition of the two challenges was not necessarily noteworthy. It granted certiorari in the challenge to the
fetal disposal restriction, while denying certiorari as to the challenge to the trait-selection prohibition.4 What was noteworthy,
however, was that one member of the Court, Justice Thomas, wrote separately to share his *2028 views regarding the
constitutionality of the Indiana trait-selection statute.5 As Justice Thomas explained, the law, and others like it,6 promoted the
state's “compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”7
To this end, Justice Thomas proceeded to elaborate a misleading and incomplete history in which he associated abortion with
eugenics and the rise of the modern birth control movement.8 Thus, while he concurred in the Court's judgment to deny certiorari,
conceding that “further percolation”9 may assist the Court's future review of such laws, he nonetheless maintained that the day
was coming when the Court would “need to confront the constitutionality of laws like Indiana's.”10

To be sure, no other member of the Court joined Justice Thomas's concurrence. And many commentators and scholars decried
his selective and misleading invocation of the history of eugenics.11 But in drafting his concurrence, it seems Justice Thomas
was not concerned with *2029 setting straight the historical record. Instead, his ambitions for this concurrence likely were
focused on issues closer to the Court's present docket.
This Article contextualizes Justice Thomas's Box concurrence and elaborates the way in which his opinion may, in tandem
with other recent decisions, provide a roadmap for upholding trait-selection abortion restrictions, overruling Roe v. Wade,12
and reconceptualizing the Court's understanding of racial injury. As the Article explains, the Box concurrence trades, perhaps
ironically, on the success of the reproductive justice movement, which has surfaced the myriad ways in which race, class, and
other forms of marginalization shape women's experiences with, and the state's efforts to regulate, reproduction. But rather than
surfacing race as a means of promoting greater reproductive autonomy and access in service of Roe v. Wade, as the reproductive
justice movement does, the Box concurrence integrates racial injustice into the history of abortion for the purpose of destabilizing
abortion rights.
Although Roe has been widely critiqued over the years, it has never been formally overruled. The doctrine of stare decisis,
which demands fidelity to past decisions on the same, or similar, issues, has been the chief impediment to overruling Roe.13
Under the Supreme Court's stare decisis jurisprudence, a past decision cannot be overruled simply because a majority of the
current Court disagrees with it.14 Instead, a “special justification” is required to overrule.15 Thus, in order to over- *2030 ride
the demands of precedent and dislodge Roe, which has been repeatedly reaffirmed by the Court,16 some “special justification”
must be proffered.17 Under the logic of the Box concurrence, that special justification is race. In this way, Justice Thomas's
Box concurrence constructs a narrative that associates abortion with eugenics and racial injustice, such that when the Court
next confronts Roe, it may, as it famously did in Brown v. Board of Education,18 circumvent the demands of stare decisis and
overrule its most controversial precedent in the name of racial justice.
Accordingly, where other efforts to discredit Roe have failed, Justice Thomas's Box concurrence plants the seeds for a potentially
more successful strategy. Rather than insisting that Roe is wrongly decided, those intent on overruling it need only argue that
the Roe Court failed to fully appreciate the racial dynamics and underpinnings of abortion. In this regard, the Box concurrence
provides a roadmap to lower courts and abortion opponents to challenge Roe on the grounds that the abortion right allegedly is
rooted in racial injustice and results in disproportionate impacts on minority groups.
If this strategy is successful, it will have implications that reverberate beyond Roe and abortion rights. By the concurrence's
logic, race may serve dual purposes in shaping the Court's jurisprudence. As an initial matter, race--and the prospect of redressing
racial injustice--furnishes the Court with a potent justification for reconsidering contested precedents. But it also provides the
Court with an opportunity to articulate new precedents that may affirm and entrench the Court's preferred conception of race
and racial harm. This is particularly meaningful when one considers that the Court's race jurisprudence is replete with contested
narratives about the nature of race and racial liability. In this regard, the Box concurrence is not merely an invitation to recast
abortion as an issue of racial injustice; it is an invitation to entirely reconceptualize the meaning of race, racial injury, and racism.
This Article proceeds in four Parts. Part I lays a contextual foundation for a critique of the Box concurrence by providing a
full and nuanced account of the role that race has played on both sides of the abortion debate. As it explains, from slavery to
the present, race has been inextricably intertwined in discussions of reproductive rights. With this in mind, this Part counters
the thin historical account that Justice Thomas provides in the Box concurrence with a more robust and nuanced discussion
of the history of abortion criminalization, the birth control movement, and the association of reproductive rights with Black
genocide. In charting the intersection of race and reproductive rights, this Part considers the emergence of the reproductive
justice movement *2031 and the co-optation of reproductive justice themes by those opposed to abortion rights. It concludes
by locating the Box concurrence and its racialized critique of abortion within this trajectory.

Part II focuses on the Box concurrence's immediate goal-- providing a defense of trait-selection abortion restrictions. By
characterizing abortion as a “tool of modern-day eugenics,”19 the concurrence augments the existing defense of trait-selection
laws as antidiscrimination measures that do not trigger the heightened constitutional scrutiny that generally attends restrictions
on the abortion right, or, more troublingly, that fall outside of the scope of traditional abortion jurisprudence.
Parts III and IV pivot to the heart of the argument--that the aspirations for the Box concurrence are not limited to simply
defending trait-selection laws. Instead, the racialized critique of abortion rights lays a foundation for discrediting--and eventually
overruling--Roe v. Wade. As Part III explains, the effort to overrule Roe v. Wade and the abortion right has been stymied by
the force of stare decisis.20 However, in the Court's history, the prospect of correcting racial wrongs has served as a predicate
for reconsidering--and overruling--past precedents. To support this claim, this Part considers Brown v. Board of Education
and Loving v. Virginia,21 in which the Court overruled two earlier precedents in the interest of promoting racial equality. To
underscore that the interest in overruling in order to correct racial wrongs is not confined to the Court's past, this Part also
discusses Ramos v. Louisiana,22 a case from the most recent Supreme Court term, in which the Court overruled a 1972 precedent
in part because the earlier decision was inattentive to the challenged policy's “racist origins.”23 Part IV considers the broader
implications of this strategy for issues of reproductive justice and racial justice. The Article then briefly concludes.
I. Race and Reproduction Before and After Roe
In May 2019, the Court issued its decision in Box v. Planned Parenthood of Indiana and Kentucky, Inc., a challenge to two
Indiana laws regulating abortion. The first law, Indiana's Sex Selective and Disability Abortion Ban,24 prohibited abortions
performed solely on the *2032 basis of the fetus's sex, race, or disabilities,25 while the second law required abortion providers
to use funereal methods for disposing of fetal remains.26 The Court denied certiorari as to the first law, while upholding the
second without requiring full briefing and argument.27
Although he concurred in the Court's judgment, Justice Thomas wrote separately to express his views of the issues presented.28
There, Justice Thomas chided the Court for declining to review the Sex Selective and Disability Abortion Ban.29 As he
explained, the challenged trait-selection law was a modest attempt to prevent abortion “from becoming a tool of modern-
day eugenics.”30 In making this claim, Justice Thomas invoked a selective history of reproductive rights. As he explained,
the modern birth control movement “developed alongside the American eugenics movement,”31 which was preoccupied with
both “inhibiting reproduction of the unfit”32 and preventing the white race from being “overtaken by inferior races.”33 And
although Justice Thomas eventually conceded that the movement to legalize contraception was distinct from the movement to
legalize abortion, he nonetheless maintained that the arguments lodged in favor of birth control “apply with even greater force
to abortion, making it significantly more effective as a tool of eugenics.”34
Throughout the opinion, Justice Thomas invoked Margaret Sanger, the founder of what is now known as Planned Parenthood
and the modern birth control movement.35 Sanger, Justice Thomas recounted, was an unrepentant eugenicist whose interest
in eugenics often tilted toward the elimination of the “unfit,”36 a group that often included nonwhites.37 As examples of this,
Justice Thomas cited Sanger's campaign for birth control in communities of color, including Harlem, New York; her work
*2033 in the “Negro Project,” which sought to popularize the use of birth control among Southern Blacks; and her coauthorship
of a report titled “Birth Control and the Negro,” which identified Blacks as “the great problem of the South”-- “the group with
‘the greatest economic, health, and social problems.”’38
This Part maintains that the history of race, eugenics, and reproductive rights upon which Justice Thomas relied is selective
and incomplete.39 As a corrective, this Part furnishes a more accurate and complete historical account of the intersection of

race and reproduction. As section I.A explains, throughout the nineteenth and early twentieth centuries, racialized arguments
appeared on all sides of the debate over whether and how to regulate abortion, birth control, and reproduction. Section I.B pivots
to consider the ways in which race figured in arguments for and against abortion before Roe v. Wade. Section I.C considers the
post-Roe landscape, including the emergence of the reproductive justice movement. Section I.D focuses on the emergence of
arguments sounding reproductive justice themes into advocacy on both sides of the abortion debate. Finally, section I.E returns
to Box and the role of race, in tandem with gender and disability, in legislative efforts to restrict abortion access.
A. Race-ing Reproduction: From Slavery to the Birth Control Movement
1. Slavery and Reproduction.-- Any historical account of the intersection of race and reproduction in the United States must
begin with the experience of enslavement. Article 1, section 9, clause 1 of the Constitution provides that “The Migration or
Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress
prior to the Year one thousand eight hundred and eight.”40 Although the clause does not specifically invoke the term “slave,” it
was understood to be a compromise between the Southern states, which depended on slavery for their economies, and *2034
those states that had abolished slavery or were considering abolition.41 By its terms, the clause prohibited the federal government
from limiting the importation of “persons”--understood to refer to enslaved persons-- until twenty years after the Constitution's
ratification in 1788.42 In anticipation of the 1808 deadline, Congress enacted in 1807, and President Jefferson signed into law,
a statute prohibiting the importation of slaves as of January 1, 1808.43
I raise this constitutional history because of its impact on the institution of slavery, and by extension, reproduction. Prior to 1808,
slaveholders could rely on the international slave trade as a means of expanding the enslaved labor force. After 1808, however,
any expansion of the labor force would depend on the reproduction of those who were already enslaved.44 As Professor Dorothy
Roberts explains: “[t]he ban on importing slaves after 1808 and the steady inflation in their price made enslaved women's
childbearing even more valuable.”45 This changed economic reality, coupled with the lived experience of enslaved persons,
who had no expectation of or legal entitlement to family integrity, cultivated conflicting interests with regard to reproduction.46
Slave owners had economic interests in the reproduction of enslaved persons and the reproductive capacities of enslaved women.
For enslaved persons, however, the absence of sexual autonomy and knowledge that their children were not their own and could
be sold away from them resulted in efforts to control reproduction. Although ascertaining the causes of infertility and miscarriage
was often difficult, many slave owners suspected that their slaves deliberately tried to prevent or terminate pregnancies.47 In an
academic paper read before the Rutherford County Medical Society in 1860, Dr. John T. Morgan of Murfreesboro, Tennessee,
recounted the various techniques that enslaved women used “to effect an abortion or to derange menstruation.”48 During
this period, abortion was not legally proscribed if undertaken before quickening, the point at which fetal movement could be
perceived, “typically late in the fourth month or early in the fifth month of *2035 gestation.”49 Nevertheless, because the use
of contraception and abortion to control reproduction had profound implications for property interests, slave owners sought to
deter and punish efforts to prevent or terminate pregnancies.
2. The Racial Politics of Abortion Criminalization.-- Emancipation and the postbellum shift to a wage labor economy brought
renewed interest in race, reproduction, and abortion. As Professor Reva Siegel has documented, following the Civil War,
“states began to enact legislative restrictions on abortion,”50 the cumulative effect of which “was to prohibit abortion from
conception.”51 In addition to criminalizing abortion, states “also adopted legislation barring the distribution of abortifacients
and contraceptives, as well as the circulation of advertisements or information about them.”52
This criminalization campaign was spearheaded largely by physicians, who associated contraception and abortion with the lay
“folk medicine” of homeopaths and midwives, many of whom were Black and Indigenous women.53 Eager to professionalize
medical practice and the nascent field of obstetrics and gynecology, the physicians sought to drive out these “irregular”

practitioners who had traditionally handled the business of pregnancy and birth.54 To be sure, physicians did not frame their
appeal to criminalize abortion in the language of professional self-interest.55 Instead, they maintained that abortion, and the
midwives and homeopaths who practiced it, was dangerous and unsafe.56 Further, abortion diverted women from their “natural”
inclination toward wifehood and motherhood, posing physiological harm to women while also imperiling marriage and the
family.57
In framing abortion as a vehicle of social disorder, the physicians did not limit themselves to the practice's impact on motherhood
and the family. Abortion, they argued, posed broader demographic concerns *2036 that would have a profound impact on
American society.58 As the physicians noted, in the nineteenth century, the birthrate among white, native-born women had fallen
dramatically.59 At the same time, the birthrate among the immigrant and nonwhite populations had risen, fueling concerns that
the nation was on the precipice of a massive demographic reordering.60
Fearful that these demographic changes would radically alter the nation's character (and reduce the political power of native-
born whites), the predecessors of the pro-life movement pushed to criminalize abortion as a means of deterring native-born
white women from terminating pregnancies and allowing the white birth rate to be overwhelmed by immigrant and nonwhite
births.61 Siegel and Duncan Hosie have put it more succinctly: the interest in regulating, and indeed criminalizing, abortion was
hand in glove with the effort to ensure that America remained a white nation.62
3. The Racial Politics of the Eugenics Movement.-- The criminalization of abortion and concerns about demographic change
coincided with the growing interest in eugenics throughout the United States.63 The origins of the eugenics movement have
been traced to Sir Francis Galton, an English scientist whose interest in the science of heredity was piqued by Charles Darwin's
theory of natural selection, which posited that over time, the weakest species, unable to adapt and compete against hardier
species, would become extinct.64 Darwin's theories were not confined to the animal kingdom. Galton and his ilk argued that
the theory of natural selection could be translated and applied to humankind as well. Noting that “[w]hat Nature does blindly,
slowly, and ruthlessly, man may do providently, quickly, and kindly,”65 Galton sought to replace the natural evolution of the
species with “affirmative state intervention” aimed at promoting the very best of humankind.66 *2037 Eugenics--taken from
the Greek root meaning “good in stock”67--was “‘the science of improving stock’ by giving ‘the more suitable races or strains
of blood a better chance of prevailing speedily over the less suitable than they otherwise would have had.”’68 Because character
and intelligence were viewed as heritable qualities, the eugenics movement argued that society should encourage the procreation
of those of superior lineage, while discouraging procreation among--and public support for--those of inferior lineage.69
Unsurprisingly, Galton's eugenic theories were underwritten by a deep-seated belief in genetic distinctions between the races.70
Eugenic theory posited that the human species was divided into different races, each with its own distinctive features and
characteristics.71 As Galton explained: “The Mongolians, Jews, Negroes, Gipsies [sic], and American Indians severally
propagate their kinds; and each kind differs in character and intellect, as well as in colour and shape, from the other four.”72
Notably, Blacks were distinctive in their “strong impulsive passions” and “remarkabl[e] domestic[ity].”73 Further, they were
“endowed with such constitutional vigour, and [were] so prolific, that [their] race [was] irrepressible.”74 At a time when white
Americans were gripped by fears that immigrants and nonwhites were reproducing faster than native-born whites, it is not
surprising that eugenic theories, with all their implications for reproduction, took root and flourished in the United States.
By the early twentieth century, the American legal landscape was dotted with laws that reflected both anxiety about demographic
change and a eugenic interest in regulating reproduction. A number of states enacted laws permitting the sterilization of the
“feebleminded”75 and “habitual” criminals.76 Others enacted laws criminalizing miscegenation and interracial marriage in order
to prevent the “mongrelization” of the *2038 white race.77 At the federal level, eugenics left an indelible imprint on the nation's

immigration laws and policies.78 The interest in eugenic lawmaking reflected both a desire to prevent socially undesirable
populations from procreating and the desire to ensure the genetic selection of the “fittest” of the race.79
4. Race, Eugenics, and the Birth Control Movement.-- As the eugenics movement gained force in the United States in the
early twentieth century, another social movement was also ascendant. Early feminists had long raised calls for “voluntary
motherhood”--that is, the ability, given the real dangers that childbirth posed, to allow women to better control when and how
they became pregnant.80 As noted above, white women's efforts to limit childbirth gave rise, at least in part, to the cultural
climate that fueled the criminalization of abortion and contraception.81 By the early twentieth century, however, some women
reformers were redoubling their efforts to secure access to the means by which they could control reproduction and plan their
families.82
Although a number of women were involved in the campaign to expand access to birth control, Margaret Sanger emerged as
one of the most stalwart voices in the birth control movement.83 In 1921, for the purpose of expanding access to contraception
and family planning guidance to middle-class women, she founded the American Birth Control League, which would become
the Planned Parenthood Federation of America.84 Sanger's early efforts to promote contraceptive access were *2039 rooted
in feminist themes like voluntary motherhood, but they also included calls for contraception as a means of ensuring women's
sexual gratification, which cost her crucial support among some quarters of the women's rights movement. Early twentieth
century feminists often extolled the moral superiority of motherhood as the foundation of their claims for women's equality.85
Sanger's call for contraception and sexual gratification was at odds with the women's movement's emphasis on maternal virtue,
chastity, and temperance.86
Unable to secure the support of some sectors of the women's movement, Sanger sought to reframe the campaign for birth
control to appeal to a wider audience.87 In this regard, Sanger's efforts to link the birth control movement to eugenics served
a number of purposes. As an initial matter, it imbued the birth control movement with a successful national movement that
carried with it the veneer of reputable scientific authority.88 As importantly, eugenics offered the birth control movement another
lens through which to articulate the interest in wider access to contraception. With eugenics as a frame, Sanger and the birth
control movement could emphasize contraception not only as conducive to women's health and autonomy, but also as a means
of promoting the national welfare.89
Contemporary scholars have been forthright about Sanger's ties to eugenics and its troubling racial implications.90 But they
have also made clear that Sanger's interests were focused on expanding access to contraception, rather than facilitating abortion,
which she viewed as unsafe and dangerous.91 As Sanger herself explained, among women, family planning “is being practised;
it has long been practised and it will *2040 always be practised.”92 The more pressing question, in Sanger's view, was “whether
[family planning] is to be attained by normal, scientific Birth Control methods or by the abnormal, often dangerous, surgical
operation.”93
As importantly, scholars have noted that increased access to birth control was not simply thrust upon the Black community in an
unwelcome attempt to reduce the Black birthrate, as Justice Thomas's history suggests. As Roberts explains, “Black women were
interested in spacing their children and Black leaders understood the importance of family-planning services to the health of
the Black community,” which was plagued by high rates of maternal and infant mortality.94 The Black press routinely provided
frank information about birth control, including advertisements for contraceptive douches, pessaries, and suppositories. Indeed,
in a 1932 article in Birth Control Review, George S. Schuyler wryly observed: “If anyone should doubt the desire on the part of
Negro women and men to limit their families, it is only necessary to note the large scale of ‘preventative devices' sold in every
drug store in the various Black Belts ....”95 Even W.E.B. Du Bois publicly endorsed birth control as a means of vesting Black
women with the ability to choose “motherhood at [their] own discretion.”96

5. Racial Opposition to the Birth Control Movement.-- Not everyone in the Black community understood access to contraception
as a means of liberation and autonomy. Marcus Garvey, who led the Pan-African movement of the 1930s, condemned
contraception as “race suicide.”97 In 1934, the Universal Negro Improvement Association, with *2041 which Garvey was
associated, passed a resolution condemning birth control as an attempt “to interfere with the course of Nature and with the
purpose of the God in whom we believe.”98 In a 1940 guest editorial in the New York Amsterdam News, Philip Francis insisted
that “[t]he Negro needs more and better babies to overwhelm the white world, in war, in peace and in prosperity.”99 With this
in mind, Francis urged fellow members of the Black community to usher “our women back to the home” so that they might
“breed us the men and women who will really inherit the earth.”100
B. Race and Abortion Before Roe v. Wade
1. Black Genocide and Reproductive Rights.--A generation later, the strains of Black natalism that undergirded Garvey's Pan-
African movement were reflected in the nascent Black Power movement and its opposition to contraception and abortion. During
the 1960s, changing sexual mores, concerns about state intervention in private life, and anxiety about unchecked population
growth fueled efforts to liberalize--or repeal entirely--criminal bans on contraception and abortion. Despite these dynamics,
Black nationalist groups resisted efforts to expand birth control and abortion in the Black community, and their opposition
sounded in the register of racial genocide. Both the Black Panthers and Nation of Islam opposed birth control and abortion, albeit
for different reasons.101 Like Marcus Garvey a generation earlier, the Panthers initially decried abortion and contraception as a
form of deracination that deprived the community of a generation of potential soldiers in the crusade for Black freedom.102 By
contrast, the Nation of Islam's opposition to reproductive rights was rooted in religious principles and a notion of *2042 racial
uplift that was linked to the patriarchal family.103 For both groups, however, Black reproduction was necessary not only to erase
the losses of slavery and Jim Crow, but also to populate a strong Black community that could resist--and indeed, overwhelm
and dominate--the white power structure.
Critically, the narrative of racial genocide gained traction-- even outside of Black nationalist circles. In a 1972 article in the
American Journal of Public Health, researchers William Darity and Castellano Turner reported that a significant number of
Blacks were wary of family planning programs, particularly if they were administered and operated by non-Blacks.104 Further,
at least part of the skepticism of family planning programs was animated by an association between family planning and racial
genocide.105
Even more traditional African American groups, like the National Association for the Advancement of Colored People
(NAACP), began to reevaluate their positions on reproductive rights during this period.106 In the 1920s and 1930s, the NAACP,
under the leadership of W.E.B. Du Bois, had supported birth control as a means of racial betterment.107 By the 1960s and 1970s,
however, the organization's stance on birth control was informed by the distrust of government and mainstream institutions
that pervaded Black political discourse.108 In particular, some local affiliates of the NAACP questioned the proliferation of
government-subsidized Planned Parenthood birth control clinics in predominantly Black neighborhoods, noting that such clinics
typically did not include Black community members in their administration and operating staffs and limited their services to the
provision of contraception and abortion.109 Black women's reproductive needs, these local NAACP affiliates argued, were not
limited to contraception and abortion, but instead included a wider range of services aimed at facilitating family planning.110
*2043 Although the Black Panthers rejected abortion and contraception as tools of Black genocide, other civil rights
groups pointed to other developments as they articulated their objections to, and skepticism of, state efforts to control Black
reproduction. In a 1964 pamphlet entitled Genocide in Mississippi, the Student Nonviolent Coordinating Committee (SNCC)
argued that forced sterilization of Black women throughout the South was a species of state-facilitated genocide that should

be rooted out and condemned.111 Critically, unlike the Panthers and the Nation, SNCC saw forced sterilization, as opposed to
abortion and contraception, as the more pernicious threat to the Black community. Indeed, as the broader group condemned the
forced sterilization of Black women as genocide, some members of SNCC also emphasized--and advocated for--Black women's
freedom and autonomy to use birth control voluntarily.112 As SNCC explained, the distinction between genocidal sterilization
and autonomous contraceptive use hinged on Black women's freedom to choose for themselves, rather than having the state's
will imposed upon them.113
In a similar vein, other voices in the Black community explicitly countered Black nationalist opposition to abortion and
reproductive rights. Martin Luther King, Jr., registered his support of family planning measures aimed at the Black community.
Having served on a committee for a Planned Parenthood study on contraception, King, who received Planned Parenthood's
Margaret Sanger Award in Human Rights in 1966, maintained that “easy access to the means to develop a family related in size
to [the] community environment and to the income potential [each individual] can command” could be a “profoundly important
ingredient” for the Black community's economic security and stability.114 Like King, other Black leaders saw a connection
between family planning and the broader civil rights movement, lending support to efforts to expand access to family planning
resources within the Black community.115
*2044 Black women were especially vociferous in their desire for, and defense of, broader access to contraception and abortion.
A 1973 study found that, “despite obvious fears of genocide among young black men, there was ‘considerable evidence that
black women ... are even more positively inclined toward family planning than white women.”’116 To this end, the Chicago
Defender, arguably the country's most prominent Black newspaper, featured a weekly column, “Letters to Leontyne,” in which
Leontyne Hunt, a Black woman, responded to family planning questions from women readers.117 Many of the letters were
explicit in their request for broader access to contraception and family planning resources within the Black community.118
Calls for broader access to family planning resources were often animated by the deleterious impact of abortion criminalization
on Black women. Acknowledging “the experiences of several young women [she] knew,” who “had suffered permanent injuries
at the hands of illegal abortionists,”119 Congresswoman Shirley Chisholm, who served as the honorary president of the National
Abortion Rights Action League120 (NARAL), worked to increase the number of family planning clinics in Black neighborhoods,
repudiating the Black genocide argument as “male rhetoric, for male ears” that “falls flat to female listeners and to thoughtful
male ones.”121
Like Chisholm, other Black women directly challenged the account of contraception and abortion as genocidal. Professor
Angela Davis acknowledged the rhetoric of Black genocide but directed those claims at forced sterilization, as opposed to birth
control and abortion.122 Toni *2045 Cade did not oppose the Black Power movement's interest in birthing a new generation
of revolutionaries.123 That said, she disagreed vehemently with “the irresponsible, poorly thought-out call to ... every Sister at
large to abandon the pill that gives her certain decision power, a power that for a great many of us is all we know, given the setup
in this country and in our culture.”124 In debating whether family planning constituted Black genocide or female liberation,
Cade made clear that the issue was not simply about the decision to have a child, but rather the broader social conditions in
which Black children were raised. In her view, insisting on Black women's reproduction without dealing with the social and
material conditions-- food insecurity, poverty, inadequate housing, and state violence--in which Black women often raised their
children missed the mark.125
Florynce Kennedy, who was no stranger to the Black Power movement, having cut her teeth as a litigator defending H. Rap
Brown and the Black Panthers,126 was outspoken in her defense of reproductive rights. A bridge between the Black Power and
women's liberation movements, Kennedy repeatedly challenged the Black nationalist view that having a large family was both a
revolutionary act and Black women's principal responsibility in the struggle for Black liberation.127 Countering this masculinist

vision, Kennedy argued that “if [B]lack women were to be truly ‘revolutionary’ and play varied and significant roles in the
Black Freedom movement, ‘some of us might want to travel light.”’128 Indeed, in their book, Abortion Rap, Kennedy and her
coauthor Diane Schulder devoted an entire chapter to debunking the claim that legalizing abortion and contraception was a
genocidal plot to deracinate Black people.129 They countered the Black nationalist argument against abortion by arguing that
Black women needed and desired access to safe and legal birth control.130 Powerfully deploying examples of the Black women
who died or suffered from botched abortions and unwanted pregnancies, Kennedy and Schulder argued that these deaths should
be viewed-- and condemned--as a form of genocide.131
*2046 2. Reproductive Rights and Race, Gender, and Class Equality.--While others did not frame support for abortion
legalization in terms that expressly countered claims of Black genocide, their arguments explicitly and implicitly centered
the impact of abortion restrictions on marginalized groups, including communities of color. Echoing Kennedy and Schulder's
invocation of the Black women who had suffered botched and illegal abortions, public health advocates argued that abortion
criminalization posed health concerns, particularly in poor communities.132 As they explained, regardless of criminalization,
and with limited access to birth control, women would continue to seek abortions.133 In this regard, the impact of laws that
prohibited abortion except where necessary to save the mother's life fell disproportionately on poor women, many of whom
were women of color.134 Wealthy, well-connected women could circumvent the law either by leaving the country to seek legal
abortion care, or finding a psychiatrist who could attest to the woman's likely suicide if leave for a “therapeutic” abortion was
not granted.135 Those without the financial wherewithal to do so were left with the prospect of continuing a pregnancy or risking
their lives in a “back-alley” abortion. As one public health official noted, the difference between a lawful “therapeutic” abortion
and an illegal abortion was merely “$300 and knowing the right person.”136
In addition to concerns about public health, appeals for greater control of population growth were also marshaled in support
of more liberal abortion policies. And these arguments also implicitly touched on issues of race. Unlike the eugenics-fueled
interest in controlling the demographic growth of “the unfit,” 1960s population-based arguments in favor of abortion were more
environmental and ecological, focusing instead on the universal threat that population growth posed to the planet *2047 and
its inhabitants.137 Founded in 1968, the organization Zero Population Growth argued that “no responsible family should have
more than two children” and that “[a]ll methods of birth control, including legalized abortion, should be freely available.”138
Likewise, the bestselling book The Population Bomb warned of the consequences of overpopulation to the developing world--
and to the poor and marginalized living in more developed countries, like the United States.139
Broader concerns about sexual freedom, government intrusion into intimate life, and sex equality also framed the 1960s effort
to repeal and liberalize criminal abortion laws--and in doing so, implicitly acknowledged the differential impact of morals
legislation on marginalized communities.140 The changing sexual mores of the 1960s called into question a range of moral
offenses that criminalized the consensual, nonmarital sexual activity of adults, as well as measures, like contraception and
abortion, that might facilitate sex outside of marriage.141 Many argued that the enforcement of morals offenses was necessarily
selective, allowing the state to more actively police the intimate lives of minorities and other marginalized groups.142 It also
sanctioned state intervention into the most intimate aspects of private life, including the “marital bedroom.”143 Indeed, concern
about state intervention into the private recesses of intimate life underwrote the Court's invalidation of laws criminalizing the
use of contraception by married couples and single people.
Although the Court relied on the logic of privacy to strike down criminal restrictions on contraception,144 privacy was not
the only legal frame available to house constitutional protections for access to contraception. Early challenges to contraceptive
bans noted that such laws placed heavier burdens on women than men,145 while other challenges emphasized privacy as a
necessary precondition for structuring intimate *2048 life along more gender-egalitarian lines.146 In the same vein, challenges
to abortion restrictions also emphasized both freedom from unnecessary government regulation and sex equality. Although the

women's movement was not active in the earliest efforts to reform abortion laws, in time, feminists came to understand the
interest in repealing and reforming abortion regulation as consistent with their aims to secure equal pay, equal access to higher
education, opportunity in the workplace, and other policies, including access to childcare, that were necessary for women's
equal citizenship.147
As feminists integrated abortion into their public discourse around sex equality, calls for sex equality were central to feminist
legal challenges to abortion bans. In contrast to early abortion challenges, which were framed in terms of the professional
obligations and rights of physicians, feminists challenging nineteenth-century abortion bans in the 1970s explicitly framed
their claims in terms of liberty, women's equality, and sexual freedom.148 Consider Hall v. Lefkowitz,149 in which a team of
feminist lawyers that included Florynce Kennedy challenged New York's abortion ban as an affront to women's rights. In so
doing, these feminist lawyers explicitly rooted their objections to abortion bans in women's lived experiences, salting their
briefs and courtroom arguments with testimony from women who experienced illegal abortions, lack of contraceptive access,
adoption, or forced motherhood.150 In Abele v. Markle,151 a challenge to Connecticut's abortion ban, feminist lawyers led by
Catherine Roraback emphasized both the gendered impact of the law, and its impact on poor women and women of color.152 As
they explained, women experienced motherhood differently based on their race and class, meaning that laws that criminalized
abortion disadvantaged women but were doubly burdensome for those women who could not “afford to travel to London or
Puerto Rico for abortions.”153
This is all to say that, in the period before Roe v. Wade was decided, the discourse surrounding abortion rights was diverse
and multifaceted, reflecting concerns about the environment, the breadth of criminal regulation, sex equality, racial and class
injustice, and intersectional claims that implicated both race and sex discrimination.
*2049 Not all of these frames, however, were reflected in the Court's decision in Roe v. Wade, which was rooted in the right to
privacy. In this regard, Roe's embrace of privacy was as much a question of timing as it was a substantive choice. Abramowicz v.
Lefkowitz, with its claims of sex and class equality, was mooted when the New York legislature repealed the challenged law.154
Likewise, Abele v. Markle was pending before the Supreme Court when the Court issued its decision in Roe.155
Because Roe reached the Court first, the equality-based claims and frames that had infused other abortion challenges did not
make their way into the Court's understanding of abortion rights. And critically, unlike the feminist lawyers who litigated Abele
and Lefkowitz, the Roe lawyers, Linda Coffee and Sarah Weddington, did not frame their arguments in terms of sex equality
or race and class inequality, choosing instead to root their claims in the privacy logic that had undergirded the Court's earlier
contraception decisions.156 In this regard, the Court's decision in Roe reflected a narrower framing of the abortion debate,
emphasizing the role of physicians, the scope of state police power, and, above all, privacy.157
C. Race and Abortion After Roe v. Wade
The Court's decision in Roe rooted the abortion right in the logic of constitutional privacy, and in so doing, foreclosed the
other doctrinal frames that had circulated in abortion litigation and discourse in the decade that preceded Roe. As importantly,
this section explains, the Court's narrow framing shaped the response to, and defense of, the abortion right in the decades that
followed.158
In announcing a woman's right to choose an abortion in consultation with her physician, Roe rested on a series of assumptions.
First, it assumed a certain degree of affluence and access--women choosing an abortion ostensibly had access to medical care,
and as such, made their *2050 decisions in consultation with medical professionals.159 Relatedly, Roe framed abortion as the
“choice” of whether or not to have a child, irrespective of the background conditions that might inform or shape such choices.160
It offered no quarter to those women whose reproductive “choices” were shadowed by economic insecurity, the absence of safe

and affordable childcare, and racial and gender injustice.161 Nor did Roe venture beyond the issue of terminating a pregnancy
to consider the conditions necessary to exercise the “choice” to bear and raise a child to adulthood.162
But it was not only that Roe framed the issue of reproductive freedom narrowly around abortion and avoiding a pregnancy;
it also resolved the conflict by resorting to the constitutional discourse of negative rights.163 Roe offered women the right
to make the decision to have an abortion free from undue state interference and regulation.164 But it did not offer, and later
cases would emphatically reject,165 positive constitutional entitlements that would facilitate women's exercise of the abortion
right.166 Moreover, as scholars like Professor Robin West have argued, regardless of their content, “rights and rights rhetoric ...
tend to protect preexisting property entitlements ... by discrediting precisely the democratic, popular, majoritarian, and political
deliberation and reform it would take to upend them.”167 To the extent that rights yield progressive gains, they should also be
understood as “risking some degree of entrenchment of current distributions of power that favor a wealthy minority against
majoritarian redistribution.”168 As troublingly, *2051 “rights” center the work of courts, and in so doing, “feed[] a distrust
of the machinations of public deliberation--including processes of government, of democracy, and collective action--the use of
which is essential to any sort of genuinely progressive political movement against private injustice.”169
The legal challenges launched in Roe's wake reflected these assumptions and the narrow logic of privacy. Harris v. McRae170 is
illustrative. In Harris, the Court considered a challenge to the Hyde Amendment,171 an appropriations rider that prohibited the
use of federal funds, including Medicaid funding, for abortion services, except in cases of rape, incest, or where necessary to
save the woman's life.172 As many recognized, the Hyde Amendment was legislated, in part, to blunt Roe's impact by preventing
women who relied on Medicaid and public assistance from accessing abortion.173 Predictably, the Hyde Amendment's force
was keenly felt by poor women and women of color. Indeed, drawing connections between economic oppression, reproductive
control, and women's subordination, the Committee for Abortion Rights and Against Sterilization Abuse (CARASA) argued
that the restriction was not simply aimed at preventing poor women and women of color from accessing abortion, but rather
was part of an antinatalist effort to force poor women and women of color to submit to sterilization.174
Although groups like CARASA articulated the connections between race, class, and sex at issue in Harris v. McRae, the Court's
disposition of the case was shaped by the negative rights framing that had prevailed in Roe. As the Court explained, “[t]he Hyde
Amendment ... places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but rather,
by means of unequal subsidization of abortion and other medical services, encourages alternative activity deemed in the public
interest.”175 On this logic, although the Constitution recognized a right to abortion, the state was under no obligation to *2052
facilitate--or in this case, subsidize--an individual's exercise of the right.176
One member of the Court, however, recognized the race and class implications of the majority's decision. In a vehement
dissent, Justice Thurgood Marshall, the first Black justice to sit on the Court, noted that “[t]he class burdened by the Hyde
Amendment consists of indigent women, a substantial proportion of whom are members of minority races.”177 Further, because
“nonwhite women obtain abortions at nearly double the rate of whites” and “the burden of the Hyde Amendment falls exclusively
on financially destitute women,”178 Justice Marshall believed the Court's review of the Hyde Amendment demanded “more
searching judicial inquiry.”179
Although a majority of the Harris Court was unwilling to draw connections between abortion and race, those opposed to abortion
used the language of race and racial injustice as a weapon to beat back abortion rights. In the wake of Roe v. Wade, abortion
opponents sought to underscore the view that Roe was improperly decided by analogizing abortion to slavery and Roe to Dred
Scott v. Sandford.180 J.C. Willke, a coauthor of the pro-life Handbook on Abortion,181 rooted the analogy in the concepts of
personhood and sectional conflict.182 As he explained, just as Dred Scott had concluded that African Americans were non-

citizens--non-persons for constitutional purposes183--so too had Roe consigned the unborn to the constitutional status of non-
persons.184 Moreover, in its attempt to “finally settle a very vexing and controversial social issue,” Roe, like Dred Scott before
it, had only fanned the flames of the conflict.185 As backlash to Roe v. Wade mounted, a range of prominent leaders, including
President Ronald Reagan and Justice Scalia, explicitly linked Roe and abortion to Dred Scott and slavery.186
*2053 The Right's efforts to weaponize race in their arguments against abortion rights contrasted sharply with the tactics of
the reproductive rights movement, which was roundly criticized for focusing their advocacy on defending Roe, while being
inattentive to the scourge of forced sterilization and the impact of funding restrictions on poor women and women of color.
Frustrated by Roe v. Wade's limited framing of abortion and abortion rights,187 and the reproductive rights movement's weak
response to the Hyde Amendment and forced sterilization, feminists of color began to articulate a new, intersectional approach
to reproductive rights that explicitly centered concerns about race, class, and discrimination.
Combining the terms “reproductive rights” and “social justice,” the reproductive justice movement emerged in the 1990s as
a counterpoint to the reproductive rights framework that Roe and its progeny engendered.188 Rooted in the work of groups
like the Committee to End Sterilization Abuse (CESA), the Committee for Abortion Rights and Against Sterilization Abuse
(CARASA), and the Combahee River Collective, the reproductive justice movement eschewed traditional feminism to take
an explicitly intersectional approach, centering the experiences of women of color, the poor, queer communities, and the
disabled.189 Moreover, it purposefully looked beyond abortion to condemn sterilization abuse and other forms of state-imposed
reproductive control.190 To this end, reproductive justice advocates continue today to emphasize a tripartite framework that
focuses on (1) reproductive health, by advocating for the provision of more robust health services to historically underserved
communities; (2) reproductive rights, by emphasizing increased access to contraception and abortion; and (3) reproductive
justice, by calling attention to the social, political, and economic systemic inequalities that impact women's reproductive health
and their ability to control their reproductive lives.191
*2054 In this regard, the contours of a reproductive justice framework are purposely broad, “encompassing the various
ways law shapes the decision ‘whether to bear or beget a child’ and the conditions under which families are created and
sustained.”192 The reproductive justice framework “highlights the intersecting relations of race, class, sexuality, and sex that
shape the regulation of reproduction.”193 In this regard, it is attentive to “the many ways law shapes the choice to have, as well as
to avoid having, children.”194 In so doing, reproductive justice goes beyond “contraception and abortion--the traditional subject
matter of ‘reproductive rights”'--to consider a broad range of issues that impact reproductive freedom, including sterilization,
assisted reproductive technology, access to childcare, pregnancy discrimination, community safety, food and housing insecurity,
the criminalization of pregnancy, and access to reproductive health care.195 Indeed, as one prominent reproductive justice group,
Forward Together, puts it:
[R]eproductive justice is the complete physical, mental, spiritual, political, economic, and social well-being of
women and girls, and will be achieved when women and girls have the economic, social and political power and
resources to make healthy decisions about our bodies, sexuality and reproduction for ourselves, our families and
our communities in all areas of our lives.196
By deliberately centering marginalized groups and expanding the lens to include a range of issues that impact reproductive
freedom, the reproductive justice movement recuperated many of the themes that had framed pro-choice advocacy in the decade
before Roe v. Wade and has become an important and influential presence in debates over reproductive rights and healthcare.197
And indeed, although reproductive justice was explicitly contemplated as a counterweight to the reproductive rights movement's
emphasis on abortion and contraception, and its association with traditional feminism, it has nonetheless been embraced by

traditional abortion rights groups.198 More intriguingly, as abortion *2055 rights groups have embraced reproductive justice,
their antiabortion opponents, perhaps to capitalize on the growing interest in reproductive justice, have continued to marshal
racialized arguments in their opposition to abortion rights.
D. Reproductive Justice and Racial Justice in the Abortion Debate
In the white paper What is Reproductive Justice?, Loretta Ross, a leader of SisterSong Women of Color Reproductive
Health Collective and an architect of the reproductive justice movement, noted that “[o]ne of the key problems addressed
by Reproductive Justice is the isolation of abortion from other social justice issues that concern communities of color.”199
All too often, abortion rights were framed as issues of “choice,” without regard to the way in which, depending on one's
circumstances, the notion of “choice” could be severely constrained.200 As she explained, it was essential to understand abortion
rights in concert with other issues that impacted communities of color, including “issues of economic justice, the environment,
immigrants' rights, disability rights, discrimination based on race and sexual orientation, and a host of other community-centered
concerns.”201 All of these issues, whether individually or in concert, “directly affect an individual woman's decisionmaking
process.”202
The critique hit home. By the early 2000s, both Planned Parenthood and the NARAL expanded their reform agendas beyond
abortion to include access to contraception and health care.203 By 2010, the changes were even more profound, as mainstream
reproductive rights groups began to embrace the vernacular and logic of the reproductive justice movement in earnest.204
In 2004, the National Organization for Women's (NOW) national conference featured programming that explicitly focused
on reproductive justice.205 By 2016, NOW's platform had *2056 a decidedly reproductive justice cast, as the organization
“demand[ed] access not only to abortion but also ‘birth control, pre-natal care, maternity leave, child care and other crucial
health and family services.”’206
In the same vein, Planned Parenthood also retooled its messaging. Recognizing that the term “pro-choice” failed to capture a
range of issues that mattered to women of reproductive age, the venerable reproductive rights organization sidelined choice-
focused messaging in favor of arguments that spoke to a broader range of issues, including pay equity, access to health care, and
increased access to contraception.207 As Professor Mary Ziegler notes, the rhetorical shift allowed “more in-depth discussion
of reproductive justice.”208
Critically, the reproductive justice movement's influence was not only felt in broadening the range of issues that traditional
reproductive rights groups addressed. It was also evident in the discussion of a bread-and-butter concern for reproductive
rights advocates: abortion rights themselves. Once criticized as inattentive to the threat of the Hyde Amendment, by the 2000s,
traditional abortion rights groups had begun highlighting Hyde's impact on marginalized communities.209
And in their court-centered advocacy efforts, reproductive rights groups also began to deploy methods and messaging infused
with reproductive justice themes. For example, in the Court's most recent abortion case, June Medical Services v. Russo,210
both the petitioner's brief and related amicus briefs explicitly invoked reproductive justice themes,211 *2057 highlighting the
impact of the challenged abortion restriction on marginalized communities throughout Louisiana and the state's disinterest in
securing women's health beyond restricting abortion access.212 In a nod to reproductive justice's effort to center the narratives
of those affected by reproductive policies, a brief filed in Whole Woman's Health v. Hellerstedt,213 a 2016 challenge to a Texas
abortion restriction, simply reproduced statements from women lawyers who maintained that their ability to obtain an abortion
had shaped their careers and economic lives.214

But critically, as the traditional reproductive rights groups came to frame their defense of abortion rights in terms that drew
on reproductive justice discourses, in time, their antiabortion opponents parried with their own vision of reproductive justice
that traded heavily on tropes of racial equity and recalled earlier Black nationalist claims associating reproductive rights with
genocide.
Created by Life Dynamics, a predominantly white antiabortion activist group, the 2009 documentary Maafa 21: Black
Genocide in 21st Century America linked abortion to an elaborate (alleged) conspiracy to eliminate “surplus” Black labor after
emancipation.215 The Radiance Foundation, an antiabortion group, placed billboards in predominately Black neighborhoods
asserting, “Black children are an endangered species.”216 Life Always, another prominent pro-life group, also orchestrated
a billboard campaign in minority neighborhoods that proclaims “The Most Dangerous Place for an African American is in
the Womb.”217 And recent calls for Black Lives Matter have been met with *2058 claims from antiabortion groups that
unborn Black lives matter.218 Indeed, Reverend Clenard Childress, the creator of BlackGenocide.org and the president of Life
Education and Resource Network (LEARN), a prominent Black antiabortion organization, has suggested that the Black Lives
Matter movement cannot advocate in favor of Black uplift so long as it continues to partner with abortion rights groups like
Planned Parenthood.219 As these advocacy groups explain, they are calling attention to the disproportionate rate of abortions
among Black women, and countering the broader message of reproductive rights and reproductive justice groups that abortion
rights serve Black women's autonomy and the interests of the Black community.220
This is all to say that, even as Roe and its progeny avoided explicit discussion of race and racial inequality in favor of privacy,
questions of race and racial injustice continue to be surfaced in contemporary reproductive rights advocacy and messaging. In
response to the reproductive justice movement's critiques of reproductive rights, and its call to center the claims and needs of
marginalized communities, traditional reproductive rights groups have adjusted their rhetoric and methods to better integrate
issues of race and class. But critically, the successful integration of reproductive justice themes into abortion advocacy has
prompted a similar response from those opposed to abortion rights. Importantly, the antiabortion movement's use of racialized
rhetoric and narratives reprises the themes of Black genocide that once undergirded Black nationalist thought. But it also reflects,
to some degree, the reproductive justice movement's success in centering race and class in the public and *2059 legal discourse
around abortion and reproductive rights. Put differently, while the antiabortion community's racialized rhetoric is informed by
the complicated history of race and reproduction, it also reflects a desire to shift the social meaning of abortion by making
claims about abortion that sound in the register of racial justice. And critically, as the next section explains, this selective vision
of reproductive justice has underwritten a new category of abortion restrictions: trait-selection laws.
E. Race, Disability, and Reproductive Justice
Just as the reproductive justice movement successfully surfaced race and class as dynamics that shape state regulation of
reproduction and reproductive decisionmaking, it has also highlighted disability's role in these discussions. To be sure, questions
of disability, as much as race, are imprinted in America's experience with reproductive regulation. Indeed, as Justice Thomas
noted in his concurrence in Box, one of the Court's most infamous decisions is 1927's Buck v. Bell,221 in which Justice Oliver
Wendell Holmes upheld the sterilization of “feeble minded”222 Carrie Buck on the ground that “[t]hree generations of imbeciles
are enough.”223 Although Buck v. Bell has been discredited, it has never been formally overruled.224 Indeed, to this day, many
states have maintained policies that limit and constrain the reproductive choices of individuals with disabilities.225
Although the reproductive justice movement has sought to highlight the role that disability has played in regulating and
constraining reproductive decisionmaking, it is also worth noting how disability has worked in tandem with race in shaping the
reproductive landscape. Again, the country's experience with eugenics is illustrative. The eugenicist commitment to advancing
the fittest of the human race focused *2060 on both maintaining racial purity and eliminating traits deemed undesirable,
including mental and physical disabilities. On this account, we might understand Buck v. Bell as not only a case about the
state's antipathy for the cognitively disabled, but also about its investment in racial purity and betterment. As scholar Adam

Cohen has argued, Virginia's sterilization of Carrie Buck was informed by the young woman's unfortunate economic and family
circumstances as much as her alleged “feeble-mindedness.”226 As Cohen notes, at the time of her institutionalization, Carrie
Buck was poor, unmarried, and pregnant--hardly representative of the best of the white race.227 Given her circumstances, it
was unsurprising that Dr. Albert Priddy, a student of eugenic theory and the director of the Virginia Colony of Epileptics, where
Buck was institutionalized, categorized her as part of “the shiftless, ignorant, and worthless class of antisocial whites of the
South”228 who posed, as much as people of color, a threat to the purity of the white race.229
Critically, race and disability are not just intertwined in the history of eugenics. They have become linked in contemporary
discourses about abortion rights. In advocating for greater reproductive choice, reproductive rights advocates have described:
Disability in the context of a termination decision for a wanted pregnancy ... as a “tragedy” and a “defect”--using
the language of pain, suffering, and devastation. The focus is on the potential suffering a child with a disability
will allegedly experience and inevitably bring on parents and other siblings. The fetus with a disability that is
survivable postpartum is often considered damaged.”230
By contrast, those opposed to abortion rights counter by pointing to the empowering and affirming experience that many have
had parenting a child with disabilities.231 According to some abortion opponents, “abortion advocates ... argue for the right to
abort children who might grow up with a disability, as if disease or handicap somehow strips a *2061 person of their right to
live and relegates them to a life of misery.”232 The National Right to Life Committee makes the point more explicitly: “Aborting
a child with a disability or illness is the height of prejudice.”233
To combat what they view as prejudice against the disabled unborn, antiabortion groups have yoked concerns with
discrimination on the basis of disability to concerns about race and sex discrimination. Abortion legislation that prohibits
abortion for the purpose of “trait selection” has proliferated across the country, including at the federal level.234 These trait-
selection laws prohibit the exercise of the abortion right if undertaken for the purpose of sex or race selection or to avoid bearing a
child with a disability. In defending such laws, antiabortion groups have framed their claims explicitly in terms of discrimination
and inequality. The Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act (“PRENDA”),235 a proposed
federal trait-selection law, is illustrative of this impulse. Not only was the federal bill named for Susan B. Anthony and Frederick
Douglass, two towering figures in the struggle for gender and racial equality, according to its sponsors, its criminalization of
race- and sex-selective abortions was intended to address race and gender discrimination within certain racial communities.236
Specifically, PRENDA sought to address the disproportionately high rate of abortions among Black women, as well as the use
of abortion for “son-selection” in certain Asian communities.237
Although PRENDA failed at the federal level, its logic lives on--and indeed, has thrived--in state-level trait-selection laws.
Such laws prohibit abortion for race, sex, and disability selection and are framed as efforts to eliminate discrimination on the
basis of race, sex, and dis *2062 ability. Specifically, those who propose and defend these trait-selection laws emphasize
disproportionately high abortion rates among minority communities and the need for antidiscrimination protections for the
unborn.238
The Box concurrence taps into these anxieties about trait selection, discrimination, and abortion. But, as the preceding sections
make clear, the history of race and abortion is more nuanced and complicated than Justice Thomas's thin account in the Box
concurrence suggests. Race and reproduction were inextricably intertwined in the political economy of slavery, and in the
postbellum period, again intersected to inform, often in conflicting ways, the criminalization of abortion and contraception and
the rise of the eugenics movement. Likewise, in the twentieth century, claims of racial justice and injustice have informed efforts

to both expand and contract abortion rights. In this regard, the history that Justice Thomas relies on in the Box concurrence is
at once selective and indeterminate.
But crafting a complete and accurate history of abortion regulation likely was not Justice Thomas's goal in linking abortion,
race, and eugenics. Indeed, in framing his skepticism of abortion in the register of eugenics and racial injustice, Justice Thomas
likely had a more straightforward outcome in mind. By drawing a straight line between abortion and eugenics, Justice Thomas
cast abortion as a potential tool for deracination, while firmly rooting abortion (and contraception) in a past tainted by the stain
of racism. As the following Parts explain, in so doing, Justice Thomas's racialized account of abortion rights underwrites both
a short-term strategy to uphold trait-selection laws and a long-term strategy for challenging--and perhaps, overruling--Roe v.
Wade.
II. Abortion, Disability, and Antidiscrimination
It is worth remembering that Justice Thomas's concurrence in Box was a response to the Court's refusal to take up a challenge
to Indiana's trait-selection law. In this regard, we might understand the concurrence as expressing Justice Thomas's views as
to the constitutionality of this *2063 type of abortion restriction. On this point, Justice Thomas is incredibly transparent. His
concurrence operates as both a defense of trait-selection laws, and as a roadmap for upholding such laws in the lower federal
courts.
By suggesting that abortion could become a “tool of modern-day eugenics,”239 the concurrence augments the existing defense
of trait-selection laws as antidiscrimination measures that do not trigger the heightened constitutional scrutiny that generally
attends restrictions on the abortion right. And importantly, when framed as antidiscrimination measures, rather than as efforts to
promote maternal health or the potentiality of life, abortion restrictions may be more likely to be upheld as legitimate exercises
of state authority.240 Under the Court's abortion jurisprudence--specifically, Planned Parenthood of Southeastern Pennsylvania
v. Casey241--to withstand constitutional scrutiny, an abortion restriction may not be an undue burden.242 That is, it cannot
have “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.”243 Accordingly, if
trait-selection abortion restrictions are framed as antidiscrimination measures, states need only show that the challenged law's
antidiscrimination gains exceed the burdens on abortion access.244
Moreover, using the racialized critique of abortion to characterize trait-selection laws as antidiscrimination measures may be
a means of sidelining Casey's substantial-obstacle analysis entirely. The procedural history of Box provides a glimpse of this
line of reasoning. An earlier three-judge panel of the Seventh Circuit invalidated the challenged Indiana trait-selection law on
the ground that the law was an “absolute prohibition [] on abortions prior to viability which the Supreme Court has clearly held
cannot be imposed by the State.”245 However, in an opinion dissenting from the Seventh Circuit's denial of a rehearing en banc,
Judge Easterbrook was “skeptical” of this view “because Casey did not consider the validity of an anti-eugenics law.”246 To
illustrate his concerns, Judge Easterbrook offered an analogy: Traditionally, the common law permitted employers to terminate
an employee “for any or *2064 no reason.”247 However, “by the late twentieth century courts regularly created exceptions
when the discharge was based on race, sex, or dis ability.”248 On this account, Casey provided no guidance as to “whether a
parallel ‘except’ clause is permissible for abortions.”249
Further, Judge Easterbrook noted, the legal challenge that resulted in the Court's decision in Casey focused narrowly on a single
question--whether “a woman is entitled to decide whether to bear a child.”250 The Indiana trait-selection law encompassed an
entirely different issue--as Judge Easterbrook maintained, “there is a difference between ‘I don't want a child’ and ‘I want a
child, but only a male.”’251 The question of whether abortion may be used “to promote eugenic goals” was completely outside
of the scope of “the statutes Casey considered.”252 As such, it was an open question as to whether Casey was applicable to
the challenged trait-selection law.

Viewed in tandem with Judge Easterbrook's dissent, the Box concurrence's potential becomes clearer. On the one hand, the
association of abortion with eugenics may serve as a thumb on the scale, imbuing the state's efforts to limit abortion access
with the patina of antiracism and antidiscrimination. On the other hand, the association may be proffered for the purpose of
putting trait-selection laws beyond the scope of the Court's extant abortion jurisprudence entirely. In either respect, casting
abortion restrictions as efforts to combat racism and discrimination may blunt the force of Roe and Casey as limits on the state's
authority to regulate abortion.
Meaningfully, this short-term strategy has gained traction as a defense for trait-selection statutes in the lower federal courts.
For example, in Preterm-Cleveland v. Himes,253 a challenge to a law prohibiting abortion if undertaken because of Down
syndrome,254 the State of Ohio defended the law by adverting to its “strong interest in preventing discrimination.”255 As such,
it continued, the constitutional balance of interests was different “from what they were in Roe and Casey,”256 in which the
state's interests had been confined to maternal health and the *2065 potentiality of life.257 Because “[t]he Supreme Court
has never considered” whether a state's interest in “prohibiting discrimination” could override a woman's right to choose an
abortion, it remained an open question whether the State's interest in prohibiting trait discrimination might outweigh a woman's
right to terminate her pregnancy.258
The State's arguments were ultimately unavailing with the district court and a three-judge panel of the Sixth Circuit, both of
which enjoined the law on the ground that it constituted a previability ban on abortion, in violation of Roe and Casey.259
However, Judge Batchelder dissented from the Sixth Circuit majority, and in doing so, subscribed fully to the logic of the
Box concurrence.260 As she explained, the challenged Ohio law, like the Indiana law at issue in Box, “promote[d] a State's
compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”261 Because the Court's abortion
jurisprudence “did not decide whether the Constitution requires States to allow eugenic abortions,”262 the State's interest in
preventing discrimination against those with Down syndrome required the court to “review laws like [the challenged law] under
an undue-burden analysis, which is fact-intensive and must consider the State's interests and the benefits of the law, not just the
potential burden it places on women seeking an abortion.”263 Because “[n]either the district court nor the majority ... ma[de] a
genuine attempt to meet that demand,” Judge Batchelder branded their decisions “insupportable and incorrect.”264
Similarly, in Reproductive Health Services of Planned Parenthood of St. Louis Region, Inc. v. Parson,265 a district court wrestled
with whether the State's interest in prohibiting discrimination could override the abortion right.266 The court concluded that
the “anti-discrimination” provision seemed dangerously close to an impermissible previability abortion ban.267 Nevertheless, it
noted that while “[t]he Supreme Court *2066 has not dealt with the merits of this question,” Justice Thomas has “demonstrated
great interest in the ultimate question of a State's authority ... to prevent ‘abortion from becoming a tool of modern-day
eugenics.”’268
The State of Arkansas also underscored the unresolved status of trait-selection laws in its briefs in Little Rock Family Planning
Services v. Rutledge,269 a challenge to a state statute banning abortions performed solely on the basis of a Down syndrome
diagnosis.270 In its trial court brief, the State touted its interest in prohibiting discrimination on the basis of disability, and
cited Justice Thomas's Box concurrence to support the view that such trait-selective abortions were “eugenical.”271 And in its
appeal to the Eighth Circuit, Arkansas echoed Judge Easterbrook's skepticism, again citing Justice Thomas in Box to support
the view that the constitutionality of trait-selection laws “‘remains an open question’ because Casey ‘did not decide whether
the Constitution requires States to allow eugenic abortions.”’272
In deciding the case, the Eighth Circuit concluded that “it is ‘inconsistent to hold that a woman's right of privacy to terminate
a pregnancy exists if ... the State can eliminate this privacy right if [she] wants to terminate her pregnancy for a particular

purpose.”’273 But even as the court struck down the challenged trait-selection law, it noted that “the Supreme Court may of
course decide to revisit how Casey should apply to purpose-based bans on pre-viability abortions.”274 In a separate concurrence,
Judge Shepherd went further, citing the Box concurrence and concluding that “[Casey's] viability standard does not and cannot
contemplate abortions based on an unwanted immutable characteristic of the unborn child.”275
This is all to say that in a very short period of time, the Box concurrence has been repeatedly marshalled into service to defend
the state's *2067 interest in restricting abortion for the purpose of prohibiting discrimination.276 And in so doing, as these
cases make clear, the concurrence's racialized critique of abortion has been highlighted to show that, in the context of banning
a narrow group of abortions, antidiscrimination concerns may themselves serve as a compelling state interest that may well be
sufficient to override--or severely limit--a woman's constitutional right to an abortion. Alternatively, the fact that trait-selection
laws are framed as antidiscrimination measures may place them beyond Casey's purview. In this regard, in the short-term, the
racialized critique of abortion as eugenical has underwritten a strategy to undermine the limits on state regulation that Roe and
Casey impose.
But critically, in the cases discussed above, the challenged statutes differed from the trait-selection law challenged in Box. In
Box, the Indiana law at issue prohibited abortion if undertaken for purposes of race and sex selection or because of a disability or
fetal abnormality.277 By contrast, the laws challenged in Himes and Rutledge were narrower, prohibiting abortion if undertaken
because of a diagnosis of fetal abnormality (Down Syndrome, in particular).278 While the Box concurrence mentions the
prospect of discrimination on the basis of disability, it is primarily preoccupied with the prospect of racially eugenic abortions.279
What explains this disjunction?
As discussed above, concerns about race and disability have been imbricated in our history and in the state's efforts to regulate
reproduction. With this history in mind, it is perhaps unsurprising that contemporary pro-life discourse that frames abortion
as an attempt to completely eliminate certain disabilities mirrors the contemporary prolife discourse that associates abortion
with efforts to regulate and limit Black reproduction. In both circumstances the common thread is abortion's potential as a tool
of genocide that reflects discriminatory animus against particular groups.280 And just as the contemporary account of *2068
abortion as racial genocide builds on the reproductive justice movement's focus on the racialized impact of abortion restrictions,
trait-selection laws draw on the reproductive justice movement's efforts to surface the ways in which disability functions as an
axis of discrimination and oppression.
Cynically, one might argue that in framing its opposition to abortion in terms of race, sex, and disability discrimination, the
pro-life movement is not only using antidiscrimination norms opportunistically, it is doing so in a way that divides the coalition
of pro-choice advocates and activists. As Professors Sujatha Jesudason and Julia Epstein observe in the context of disability,
“reproductive rights proponents can portray disability as a tragic state that justifies abortion--even for wanted pregnancies,”
while “anti-choice advocates proclaim their value for all life, including individuals with and without disabilities.”281 As
Jesudason and Epstein note, this results in a paradox in which “disability rights advocates, generally a group that finds itself in the
progressive political camp,” are “on the same side as anti-choice advocates who are more usually associated with conservative
political positions.”282
A similar cognitive dissonance arises in the context of race- and sex-selection bans, which put the social justice community's
predisposition toward abortion rights in conflict with laws that ostensibly prevent discrimination on the basis of race and sex.
In this regard, in the same way that reproductive justice sought to build coalitions between various social justice communities
in order to strengthen the demand for reproductive freedom, its methods and vernacular have been co-opted in ways that may
actually divide this coalition.
Justice Thomas's association of abortion with eugenics doubles down on the effort to splinter the various constituents of the
reproductive rights coalition. But critically, this is not the first time that Justice Thomas has deployed racialized narratives

in ways that challenge or disrupt longstanding social justice alliances. His dissent in Kelo v. City of New London283 and
his concurrence in McDonald v. City of Chicago284 are instructive on this point. In Kelo, a narrow majority of the Court
upheld a private redevelopment scheme as a permissible “public use” under the Takings Clause of the Fifth Amendment.285
As the majority explained, the redevelopment scheme was a permissible public use because it served the citizens of New
London, Connecticut, by revitalizing a near-blighted neighborhood with new businesses, housing, and *2069 employment
opportunities.286 In a lone dissent, Justice Thomas offered a counterpoint to this rosy urban progress narrative in which he
linked the Court's public use jurisprudence to 1950s and 1960s urban renewal projects that “destroyed predominantly minority
communities” and displaced Blacks and other marginalized groups.287
Similarly, in McDonald v. City of Chicago, Justice Thomas wrote separately to introduce a racialized account of the Second
Amendment. The issue in McDonald was whether the Second Amendment right to bear arms was incorporated as to the states.288
The Court held that it was289 through the Due Process Clause of the Fourteenth Amendment.290 Justice Thomas joined in
the judgment, but he wrote separately to express his own view that the Privileges or Immunities Clause of the Fourteenth
Amendment was the better doctrinal home for incorporation.291 In so doing, he specifically repudiated the logic of United States
v. Cruikshank,292 an 1876 case in which the Supreme Court held that, despite the ratification of the Fourteenth Amendment,
the Bill of Rights, including Second Amendment protections for the right to keep and bear arms, did not apply to private actors
or to state governments.293 Meaningfully, Cruikshank arose from the infamous Colfax Massacre of 1873, in which an armed
mob of white militiamen slaughtered dozens of newly freed Blacks, many of whom were unarmed.294
In his McDonald concurrence, Justice Thomas drew a straight line connecting Cruikshank and its failure to protect the
individual's right to bear arms to the terror that Blacks experienced in the South during the waning days of Reconstruction and
Redemption.295 As Justice Thomas explained, Cruikshank, which made clear that the right to bear arms was not a privilege
or immunity of national citizenship, “enabled private forces, often with the assistance of local governments, to subjugate the
newly freed slaves and their descendants through a wave of private violence designed to drive blacks from the voting booth
and force them into peonage, an effective return to slavery.”296 Because “[t]he use of firearms for self-defense was often the
only way black citizens could *2070 protect themselves from mob violence,”297 freedmen were uniquely vulnerable to this
campaign of intimidation and terror in the postbellum era and well into the twentieth century.298
To further underscore Cruikshank's brutal impact on freed Blacks, Justice Thomas's concurrence detailed the violent lynchings
and deaths of numerous Black men, including Emmett Till,299 the boy whose brutal Mississippi lynching inspired civil rights
activism in the 1950s.300 The point was plain: Till, like other victims of lynching and other forms of racial violence, was
unarmed. To the extent that some African Americans were able to stand up to white violence, doing so depended largely on
their ability to bear arms. As Justice Thomas explains: “the use of firearms allowed targets of mob violence to survive.”301
Much has been made of Justice Thomas's preoccupation with issues of race in these cases and others.302 In referencing these
cases, I do not wish to engage in the psychologizing that often attends discussions of Justice Thomas's use of race.303 Instead,
I mean only to suggest that the racialized narratives that Justice Thomas offers in both Kelo and McDonald may hint at his
aspirations for the racialized critique of abortion that he introduces in Box.
In Kelo, Justice Thomas complicates the view that economic redevelopment benefits the entire community by showing that
marginalized groups within the community will likely bear the brunt of urban renewal. With a similar logic, his account of
racial genocide in Box counters the stock reproductive rights narrative that expanding abortion rights is good for women and
their families, including women of color. In a similar vein, in McDonald, Justice Thomas goes further, showing that the weight

of judicial decisionmaking is borne disproportionately by certain groups while simultaneously countering the progressive view
that gun control laws redound to the benefit of minority communities.
*2071 As importantly, taken together, Justice Thomas's concurrences in McDonald and Box lay the foundation for a crucial
comparison between gun rights and abortion rights. His racialized account of the Second Amendment underscores that the
Constitution's enumerated protections for gun rights are essential to the uplift and survival of the Black community. By contrast,
his racialized account of abortion underscores that the unenumerated right to abortion serves an entirely different purpose--to
decimate and eliminate the Black community.
With this in mind, Justice Thomas's likely ambitions for his racialized critique of abortion rights come into sharper focus. As
the following Part argues, the most devastating aspect of the association of abortion with eugenics and racism is not in its short-
term benefits for upholding trait-selection laws, but, perhaps less obviously, in its long-term implications for the abortion right
writ large. In linking the abortion right to eugenics and racism, Justice Thomas's racialized critique of abortion provides a potent
justification--race--for circumventing the demands of stare decisis and overruling Roe. On this logic, it is not Roe's roots in an
ephemeral notion of liberty or an unenumerated right to privacy that render it a constitutional apostasy.304 Rather, it is Roe's
links to inequality--and more specifically, racial inequality--that ultimately furnish the necessary predicate for revisiting and,
indeed, overruling it.
III. Race-ing Roe
This Part elaborates the argument sketched in Part II: namely, that in drawing on both reproductive justice and racial justice
themes, Justice Thomas's Box concurrence lays a foundation for undermining, and eventually overruling, Roe v. Wade. This Part
develops the claim in the following ways. First, section III.A explains the role that stare decisis has played in both entrenching
Roe and simultaneously fueling the effort to overrule it. As section III.B explains, because of stare decisis, Roe cannot be
overruled simply because some majority of the Court thinks it improper; instead, a special justification is required. By the
Box concurrence's logic, in the case of Roe, that special justification may be race. With that in mind, this section explains that
although the Court professes fidelity to precedent, it has on a number of occasions overruled past precedent for the purpose
of redressing racial harm.
And, as section III.C asserts, not only is there a broader history of the Court overruling past precedents in order to remedy
racial harms, *2072 there is a quite recent history of it doing so. In the most recent term, the Court, in Ramos v. Louisiana,305
overruled a 1972 precedent in part because the earlier Court failed to appreciate the racialized context undergirding the
challenged policy.306 In tandem with the Box concurrence, this same logic may serve as a roadmap for challenging Roe on the
ground that the Roe Court failed to properly appreciate the racial context of abortion.
A. Stare Decisis and Abortion
In 1973, the Court, in Roe v. Wade, recognized a constitutional right to choose an abortion. In the half-century since Roe,
the Court repeatedly has confronted the question of whether or not Roe was properly decided307 and whether it should be
overruled.308 In these disputes, the doctrine of stare decisis served to beat back assaults on Roe and the abortion right.
Latin for “let the decision stand,” stare decisis maintains that the Court cannot simply overrule past decisions because it believes
they are wrong.309 Doing so would compromise the predictability and order of the judicial system, while exposing the Court to
claims of illegitimacy and partisanship.310 In this regard, throughout the 1980s, the Court, citing stare decisis, rejected repeated
invitations to overrule Roe.311 Although some members of the Court insisted that Roe was wrongly *2073 decided and should

be overruled,312 a majority of the Court, nodding to stare decisis, declined to do so on the ground that it would undermine the
predictability and legitimacy of the Court's pronouncements.313
In 1992, the Court again faced a frontal challenge to Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey.314
Again, instead of overruling Roe, a plurality of the Casey Court, citing concerns for stare decisis, explicitly reaffirmed what it
deemed to be Roe's “essential holding,” recognizing a woman's right to choose an abortion.315 Meaningfully, however, Casey
also affirmed the state's interest in regulating abortion in order to promote women's health and the “potentiality of life,”316 and
discarded the strict scrutiny standard of review prescribed in Roe in favor of the more permissive “undue burden” standard.317
As discussed earlier, this new, more permissive standard now governs judicial review of abortion restrictions.318 For this reason,
as many have argued, Casey was a Pyrrhic victory for abortion rights--one that left Roe standing, but gutted its substantive
protections for abortion rights.319 In truth, Casey was a boon to abortion opponents, providing a more permissive standard of
review for abortion restrictions and granting states broad license to restrict and regulate abortion rights.320 In this regard, Casey
was both a formal victory for abortion rights (retaining Roe) and *2074 a practical victory for abortion opponents (restricting
the abortion right).321
And critically, Casey was crucially important for the Court's jurisprudence about stare decisis and precedent itself. In rejecting
the invitation to overrule Roe, the Casey plurality opinion made clear that the decision to overrule a prior decision is not one
undertaken lightly.322 Instead, when a court “reexamines a prior holding, its judgment is customarily informed by a series
of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of
the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case.”323 Among the considerations
specifically articulated in Casey are whether (1) the precedent in question “has proven to be intolerable simply in defying
practical workability;” (2) “the rule is subject to a kind of reliance that would lend a special hardship to the consequences of
overruling and add inequity to the cost of repudiation;” (3) “related principles of law have so far developed as to have left
the old rule no more than a remnant of abandoned doctrine;” or (4) “facts have so changed, or come to be seen so differently,
as to have robbed the old rule of significant application or justification.”324 In recent years, the Court has adopted a kind of
shorthand for these considerations, concluding that where one or more of these factors is present, a decision is “egregiously
wrong” and may be overruled.325
In this way, even as Casey declined to overrule Roe, it nonetheless made clear why, for abortion opponents, merely stripping Roe
of its substance was cold comfort, indeed. For the antiabortion movement, whatever gains Casey offered were overshadowed by
the fact that Roe survived. And indeed, it survived in the face of a constitutional inquiry that refused to denounce its reasoning
as erroneous, emphasizing instead its entrenchment as a right that many had come to rely upon.326 In this regard, in reaffirming
Roe, Casey further entrenched the view that the *2075 Constitution properly recognizes and protects a right to choose an
abortion.327 But even as Casey afforded states broader latitude to restrict abortion rights, it also engendered other difficulties.
After all, stare decisis does more than demand respect for precedent as settled law: it lends a “veneer of respectability”328 to
the underlying precedent that suggests that the precedent is correct.329 On this account, in the wake of Casey, “stare decisis is
both the reason why Roe cannot be overturned and the reason why it must be.”330
To be sure, abortion opponents have, despite the Court's repeated reaffirmance of Roe, maintained the hope that the Court will,
one day, cast aside stare decisis and formally discard Roe. Indeed, it is the prospect of cultivating the conditions under which
the Court might overrule Roe that inspires presidential candidates to vow to appoint only pro-life justices who will overrule
Roe v. Wade.331 But critically, as Casey makes clear,332 even with the desired personnel changes on the Court, the pressure
to observe the strictures of stare decisis are considerable-- particularly in the hyper-politicized context of abortion rights.333
On this account, to overrule Roe, it is not enough simply to cobble together a majority of five who believe Roe was wrongly

decided. Stare decisis demands more than the conviction that an earlier Court got it wrong. As Casey and the other precedents
on precedent make clear, more is required-- indeed, a special justification is needed to circumvent stare decisis and trigger
reconsideration of an earlier decision.
As the following section explains, one such special justification that may compel a break with precedent is an interest in
correcting racial injustice. Indeed, the foundation for using race and concerns about racial justice as a predicate for reconsidering
a past decision has already been laid in the Court's jurisprudence.
*2076 B. Race and Precedent
Critically, the Box concurrence was not Justice Thomas's only notable separate writing in October Term 2018. In Gamble v.
United States,334 the Court declined to overrule the separate sovereigns exception to the Fifth Amendment's prohibition against
double jeopardy.335 Justice Thomas wrote separately “to address the proper role of the doctrine of stare decisis.”336 As Justice
Thomas explained, the Court's prioritization of settled over right in its consideration of precedent elevates and entrenches
“demonstrably erroneous decisions.”337 In a constitutional democracy where the judicial role is confined to interpreting the
law, Justice Thomas wrote, slavish adherence to a precedent that is “demonstrably incorrect ... is tantamount to making law,
and adhering to it both disregards the supremacy of the Constitution and perpetuates a usurpation of the legislative power.”338
According to Justice Thomas: “[w]hen faced with a demonstrably erroneous precedent,” federal courts are duty-bound to “not
follow it.”339
It is no secret that the “muscular vision of stare decisis” that Justice Thomas articulates in Gamble takes aim at Roe and its
progeny,340 which Justice Thomas repeatedly has denounced as having “no basis in the Constitution.”341 Still, he could not
garner another supporter for his view--the Gamble majority remained faithful to traditional stare decisis principles, insisting
that any “departure from precedent ‘demands special justification.”’342
*2077 So, what might constitute a “special justification” sufficient to warrant breaking with the past and overruling an earlier
precedent--especially one like Roe that has been repeatedly reaffirmed?343 If past is prologue, then an interest in remedying
racial discrimination and racial harms might indeed suffice to justify a departure from stare decisis. The Court's history bears
this out.
Consider Brown v. Board of Education, where the Court unanimously overruled Plessy v. Ferguson344 and declared the principle
of “separate but equal” unconstitutional.345 In overruling Plessy, which had been upheld in prior challenges,346 the Court
focused on factors that the Plessy Court had not--and indeed, could not--appreciate when it rendered its decision to bless
de jure segregation. As the Brown Court explained, neither the Plessy Court nor the framers of the Fourteenth Amendment
could have appreciated the importance of public education in a democratic society.347 By 1954, however, public education had
become “perhaps the most important function of state and local governments,” as it was “required in the performance of our
most basic public responsibilities” and was regarded as “the very foundation of good citizenship.”348 But more importantly,
the Plessy Court had not fully grappled with the way that state-sanctioned segregation “generate[d] a feeling of inferiority ...
that may affect [black children's] hearts and minds in a way unlikely ever to be undone.”349 While the deleterious impact of
segregation was “amply supported by modern authority,”350 such knowledge was potentially unavailable “at the time of Plessy
v. Ferguson.”351 Put differently, the Plessy Court had deliberated in a blind, unconscious of the future import of public school
and the psychological weight of segregation. In overruling Plessy, Brown was a means of considering--and indeed, remedying--
the racial injuries that the Plessy Court had overlooked.

*2078 Brown's overruling of Plessy is not the only instance of a later Court accounting for race and racism in ways that earlier
Courts had not. McLaughlin v. Florida352 and Loving v. Virginia struck down criminal prohibitions on interracial relationships,
and in the process, repudiated Pace v. Alabama,353 an 1883 decision in which the Court declared Alabama's antimiscegenation
laws constitutional on the ground that they applied with equal force to Blacks and whites.354 When the McLaughlin Court took
up the challenge to Florida's ban on interracial cohabitation, it acknowledged that Pace, with its “equal application”355 theory,
was “controlling authority.”356 Nevertheless, the McLaughlin Court struck down the challenged law, noting that Pace's “narrow
view of the Equal Protection Clause [had been] swept away”357 in favor of a “strong policy [that] renders racial classifications
‘constitutionally suspect.”’358
Three years later, in Loving, the Court applied its concern with Pace's flawed reasoning to the question of interracial marriage.359
As Florida had done in McLaughlin, Virginia defended the challenged laws by reference to Pace, arguing that so long as the
prohibition and penalties on interracial marriage applied equally to Blacks and whites, they were constitutionally sound.360 In
rejecting this view, the Loving Court built upon McLaughlin, noting that because the Fourteenth Amendment's “clear and central
purpose ... was to eliminate all official state sources of invidious racial discrimination,” the necessary question was not whether
the prohibition applied equally to all races, but rather whether the interracial marriage ban constituted “arbitrary and invidious
discrimination.”361 The Loving Court underscored its break with Pace by noting that “[t]here can be no doubt that restricting
the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”362
The Court's repudiation of earlier decisions because of concerns about race and racism is not limited to the decisions of the
Civil Rights Era. As recently as 2018, the Court famously discarded a precedent, not *2079 because the earlier Court did
not appreciate the racial impact of its decision, but rather, because it did.363 Issued in the heat of World War II, and after
the bombing of Pearl Harbor, Korematsu v. United States364 upheld an executive order requiring the internment of Japanese
nationals and American citizens of Japanese descent.365 There was no doubt that the Korematsu Court understood the racial
impact of its decision. It explicitly acknowledged that the challenged executive order classified on the basis of race, triggering
strict scrutiny,366 and all three dissenters specifically identified the order's obvious racism and xenophobia as the basis for their
objections.367
Although its racism had been roundly criticized for years,368 Korematsu remained good law369--until the Court's disposition
of Trump v. Hawaii370 in 2018.371 There, the Court considered the constitutionality of the “Travel Ban,” an executive order
limiting admission to the United States of nationals from certain Muslim-majority countries.372 The Court upheld the executive
order,373 dismissing claims that the President's statements in advance of the executive order evinced discriminatory animus
toward Muslims.374 However, amidst claims from dissenting Justice Sotomayor that the majority's reasoning recalled “that of
Korematsu v. United States,”375 the majority took the unusual step of “express[ing] what is already obvious: Korematsu was
gravely wrong the day it was decided, has been overruled in the court of history, and--to be clear--‘has no place in law under
the Constitution.”’376
Taken together, these cases make clear that, modernly, an interest in correcting racial wrongs has shaped the Court's
thinking about stare decisis-- and indeed, has on occasion provided the special justification necessary for the Court to depart
from precedent. Of course, some might *2080 argue that these cases are exemplary because they involved facial racial
classifications. But, as the section that follows makes clear, facial racial classifications are not necessary for race to form a basis
for reconsidering--and overruling--an earlier precedent.

C. Ramos v. Louisiana
As the previous section argues, some of the Court's most celebrated departures from stare decisis have involved race and racism.
More particularly, many of these departures were explicitly contemplated as efforts to remedy the impact of race and racism in
judicial decisionmaking. Some might argue that the interest in overruling as a means of addressing racial injustices has been
limited to certain cases--and certain periods--in the Court's history, and that this phenomenon is unlikely to continue in the
future. However, in its most recent term, the Court overruled an earlier decision in part because it had failed to properly consider
racial harm in its disposition of the case.
Ramos v. Louisiana involved a challenge to Louisiana's policy of allowing criminal convictions to proceed from nonunanimous
jury verdicts.377 At issue in Ramos was whether the Fourteenth Amendment fully incorporates against the states the Sixth
Amendment's requirement for a unanimous jury verdict in order to convict.378 Meaningfully, the Supreme Court had confronted
the same question before in a set of earlier cases, Apodaca v. Oregon379 and Johnson v. Louisiana,380 decided in 1972.
Consolidated for review, the twin appeals produced “a tangle of seven separate opinions.”381 Four Justices agreed that the
Sixth Amendment right to a jury trial, while incorporated against the states under the Fourteenth Amendment, did not require
unanimous jury verdicts.382 Justice Powell concurred with the judgments in both Apodaca and Johnson, writing separately to
note that while the Sixth Amendment required unanimous juries in federal criminal cases, this feature of federal criminal practice
was not incorporated as to the states.383 Although Justice Powell agreed with the four dissenting Justices that “unanimous jury
decisions ... are constitutionally required in federal prosecutions,”384 he alone on the Apodaca Court advanced a theory of
dualtrack incorporation under which “a single right can mean two different *2081 things depending on whether it is being
invoked against the federal or a state government.”385 Taken together, Apodaca and Johnson stood for the proposition that the
Sixth Amendment guarantees a right to a unanimous jury, but that such a right does not extend to defendants in state trials.386
With this jurisprudential history in mind, it was not surprising that, at oral argument, the Justices and the litigants were
preoccupied with the question of stare decisis, and more particularly, the circumstances under which the Court might depart
from a set of past decisions that were almost fifty years old and had been reaffirmed in subsequent challenges.387 Indeed,
when the Court announced its decision in Ramos, the question of stare decisis was center stage, with a majority of six Justices
overruling Apodaca (and, by extension, Johnson) on the ground that Louisiana's rule permitting nonunanimous jury convictions
was inconsistent with the logic and history of the Sixth Amendment.388
In so doing, the Ramos majority declared Apodaca “gravely mistaken”--so much so that “no Member of the Court today defends
either [the plurality opinion or Justice Powell's separate concurrence endorsing dual-track incorporation] as rightly decided.”389
But meaningfully, the Ramos majority went beyond simply recasting Apodaca as an improperly reasoned Sixth Amendment
“outlier.”390 Race, the Ramos majority insisted, also shaped its consideration of Apodaca's precedential value.
As the Ramos majority explained, the interest in permitting nonunanimous jury verdicts was inextricably intertwined with a
desire to “establish the supremacy of the white race.”391 When Louisiana drafted its postbellum constitution in 1898, an interest
in maintaining white supremacy underlaid the proceedings, “and the resulting document included many of the trappings of the
Jim Crow era: a poll tax, a combined literacy and property ownership test, and a grandfather clause that in practice exempted
white residents from the most onerous of these requirements.”392 The nonunanimous jury rule was of a piece with these
efforts. Recognizing that any attempt to explicitly bar Blacks from jury service would draw “unwanted national attention”393
and would be *2082 struck down under the Fourteenth Amendment,394 Louisiana instead “sought to undermine African-
American participation on juries” by “sculpt[ing] a ‘facially race-neutral’ rule” that would “ensure that African-American juror
service would be meaningless.”395 Adopted in the 1930s, the Oregon jury rule did not share the same Jim Crow provenance as

Louisiana's, but as the majority noted, its origins could be “similarly traced to the rise of the Ku Klux Klan and efforts to dilute
‘the influence of racial, ethnic, and religious minorities on Oregon juries.”’396
To be sure, the fact of “clear” racist origins of the nonunanimous jury rule, by itself, might have been insufficient to overrule
Apodaca. However, taken in tandem with Apodaca's status as a Sixth Amendment “outlier,” race tipped the balance. Writing for
the Ramos majority, Justice Gorsuch explained that Apodaca's precedential value was diminished by the “implacable fact that
the plurality spent almost no time grappling with the historical meaning of the Sixth Amendment's jury trial right, this Court's
long-repeated statements that it demands unanimity, or the racist origins of Louisiana's and Oregon's laws.”397
In their concurrences, Justices Sotomayor and Kavanaugh struck similar notes. Conceding that “overruling precedent must
be rare,”398 Justice Sotomayor nonetheless determined that overruling Apodaca was “not only warranted, but compelled”399
by the significant “interests at stake”400 for the criminal defendants challenging their convictions and because Apodaca's
“functionalist”401 logic was out of step with Sixth Amendment doctrine.402
But in addition to these practical and doctrinal concerns, Justice Sotomayor was adamant that “the racially biased origins of
the Louisiana and Oregon laws uniquely matter here.”403 To be sure, “many laws and policies in this country have had some
history of racial animus,” but what set Apodaca and its entrenchment of the nonunanimous jury rule apart, in her view, was that
“the States' legislatures never truly *2083 grappled with the laws' sordid history in reenacting them.”404 The failure of the
state legislatures-- and the Apodaca Court--to do so meant that it fell to the Ramos Court to ensure that Apodaca was “fully--
and rightly-- relegated to the dustbin of history.”405
Justice Kavanaugh, concurring in part, also acknowledged the presumption in favor of affirming Apodaca. Still, he noted,
“the doctrine of stare decisis does not dictate, and no one seriously maintains, that the Court should never overrule
erroneous precedent.”406 Indeed, Justice Kavanaugh identified a “lengthy and extraordinary list of landmark cases that
overruled precedent,”407 including Brown v. Board of Education, “the single most important and greatest decision in this
Court's history.”408 But if “special justification” or “strong grounds” counseled in favor of overruling precedent, then what
“constitute[d] a ‘special justification’ or ‘strong grounds”’ in the instant case?409
Like Justice Sotomayor, Justice Kavanaugh noted Apodaca's disjunction with Sixth Amendment doctrine.410 But as importantly,
he emphasized the nonunanimous jury rule's racialized origins. The rule, he argued, was “one pillar of a comprehensive and
brutal program of racist Jim Crow measures against African-Americans, especially in voting and jury service.”411 This history,
in tandem with the rule's contemporary impact “as an engine of discrimination against black defendants, victims, and jurors,”
“strongly support[ed] overruling Apodaca.”412 On “the question whether to overrule,” Justice Kavanaugh's views were clear:
Apodaca's failure to account for “the Jim Crow origins and racially discriminatory effects (and the perception thereof) of non-
unanimous juries in Louisiana and Oregon should matter and should count heavily in favor of overruling.”413
D. Ramos, Box, and Roe
The connections between the Court's disposition of Ramos and Roe are not obvious. After all, Ramos was a criminal procedure
case that focused on the incorporation of the Bill of Rights' guarantees against state governments. It is a world away from
Roe, privacy, and the right *2084 to choose an abortion. But, as this section maintains, the Box concurrence provides the
connective tissue that renders the relationship between these two disparate cases more legible. And in so doing, it explicates
the Box concurrence's roadmap for challenging, and even overruling, Roe v. Wade.

For years, those opposed to abortion have argued that Roe lacks a foundation in constitutional text,414 was improperly
reasoned,415 and has proven unworkable over time.416 Despite these efforts, Roe has survived.417 But Justice Thomas's
racialized critique of abortion furnishes new justifications for reconsidering--and overruling--this embattled decision.
Specifically, it provides new factual circumstances steeped in race and racial animus that may suffice to render Roe “a remnant
of abandoned doctrine.”418 Justice Thomas's effort to graft the history of Margaret Sanger, the birth control movement, and
eugenics to abortion may be selective and indeterminate, but it may prove incredibly effective.419
*2085 Justice Thomas's racialized critique of abortion rights has already been incorporated into amicus briefs, and reproduced
in judicial opinions, in the lower federal courts.420 It is not difficult to see how this racialized narrative might make its way to the
Supreme Court in the near future. Over the last fifty years, there has been a considerable uptick in the number of amicus filings
before the Court.421 And critically, the Court has been quite receptive to the prospect of amicus briefs that furnish additional
factual grounds on which to base a decision.422 But despite the proliferation of amicus briefs before the Court, there is no
mechanism in place to verify the facts put forth by amici.423 These concerns may be especially acute in circumstances, like those
in Box, where the case proceeds to the Court as part of the shadow docket and is resolved without oral argument, eliminating
an opportunity for questioning and discussion of new information.
Under these conditions, it is entirely likely that the racialized critique of abortion rights will be presented to the Court via
amicus briefs, and when this happens, there will be no institutional apparatus to question or challenge its contested historical
foundations. Indeed, the narrative is sure to find a hospitable ear with Justice Thomas--the Justice who may be best positioned to
command deference from his colleagues on issues of race and racism,424 particularly in circumstances where the *2086 facts
are disputed or indeterminate. In this regard, if the racialized narrative of abortion rights is left unchallenged, it will decisively
frame abortion before the Court as part of a long-standing eugenic effort to eliminate marginalized groups, including racial
minorities. As importantly, by highlighting the disproportionate abortion rates in minority communities, this narrative suggests
that the racialized impact of abortion's alleged eugenicist origins continues to be felt to this day.
To be sure, the argument toward which this racialized narrative gestures is not that Roe is analogous to Plessy or Korematsu--
cases that involved laws that were explicitly racist on their face and in their application. Rather, the logic of the narrative is that
what renders Roe “egregiously wrong” is the same neglect that the Ramos Court identified in the Apodaca Court's deliberations.
By failing to “grapple[]” with the racist roots of the Louisiana and Oregon nonunanimous jury rules, the Apodaca Court allowed
the residue of this past racism to seep into the present day.425 Accordingly, in failing to appreciate both abortion's racially tainted
origins and its current impact on racial minorities, Roe was--and is--egregiously wrong.
Critically, it is unclear whether concerns about race, by themselves, would be enough to render Roe ripe for overruling. On
this point, Ramos again is instructive. There, concerns about racism were layered atop concerns about Apodaca's incoherence
with Sixth Amendment doctrine and the jury right more generally.426 In this regard, race was not the reason for overruling
Apodaca, but rather the tipping point militating in favor of overruling.427 In the same way, race need not--and indeed, given
the contested nature of Justice Thomas's narrative, *2087 cannot--be the reason for overruling Roe. But it can, in tandem with
concerns about unenumerated rights and the workability of abortion doctrine, serve as the crucial element-- the tipping point--
that shifts the balance toward overruling.428
Recent legal challenges make clear that this existential threat to abortion rights is not hypothetical. In June Medical Services,
the Court's most recent abortion challenge, in which it considered the constitutionality of a Louisiana admitting privileges law,
this racialized critique of abortion and the association of abortion with eugenics surfaced in the briefs of several amici.429
Critically, the law challenged in June Medical Services was wholly distinct from the Indiana trait-selection law challenged
in Box; nevertheless, several amici referenced the Box concurrence to underscore the notion that abortion has--and has been
deployed to exercise its-- eugenic potential against marginalized groups. For example, in its brief supporting Louisiana, the

Pro-Life Legal Defense Fund described Roe v. Wade as a “tragic ruling [that] has led directly to the death of over 60 million
unborn babies--of which in one recent year, 36 percent would have been born to black women.”430 On this account, Roe had
“accomplish[ed] what the Eugenics Movement only could have dreamed of achieving about as it pushed for abortion rights.”431
Likewise, an amicus brief submitted by African American Pro-Life Organizations adverted to statistics purporting to show “an
enormous national racial disparity in abortion rates,” arguing that the “disproportionate abortion rate approaches what some
civil rights leaders have called ‘race suicide.”’432 More ominously, the Foundation for Moral Law explicitly connected abortion
to race discrimination, noting that because “abortion in the United States arose from the eugenics movement,” the practice was
an “inherent equal protection violation.”433
*2088 Of course, it is entirely possible that the Court will not rely on the racialized critique of abortion to overrule or discredit
Roe v. Wade. Even if that is the case, the association between abortion and racism may nonetheless be taken for granted
and accepted as part of the discourse of abortion rights. Consider, for example, Gonzales v. Carhart,434 in which the Court
upheld the Partial-Birth Abortion Act.435 Critically, in concluding that the challenged law passed constitutional muster, Justice
Kennedy credited an unsupported assertion that “some women come to regret their choice to abort the infant life they once
created and sustained.”436 Although the Court was criticized for “invok[ing] an antiabortion shibboleth for which it concededly
has no reliable evidence,”437 its uncritical acceptance of “post-abortion syndrome”438 shaped the constitutional culture of
abortion rights. In the wake of the Court's decision in Carhart, woman-protective arguments proliferated--both in antiabortion
discourse and in mainstream press coverage of the abortion debate.439 In this regard, even if the racialized narrative of the Box
concurrence is not taken up directly, it may nonetheless have a decisive impact on constitutional culture and meaning, cementing
the association between abortion and race in our understanding of abortion rights.440
IV. Race in the Balance
As the preceding Parts have made clear, Justice Thomas's Box concurrence is not merely a call for the Court “to confront the
constitutionality of [trait-selection] laws.”441 It is also a roadmap for opportunistically using race--and an interest in racial
justice--to circumvent the strictures of stare decisis and overrule Roe v. Wade once and for all. Obviously, this strategy would
be devastating to abortion rights, but as this Part makes clear, its deleterious impact goes beyond eviscerating Roe. As section
IV.A explains, Justice Thomas's effort to inject race into the Court's abortion jurisprudence is both opportunistic and at odds
*2089 with reproductive justice efforts to center communities of color and the systemic inequities that constrain reproductive
decisionmaking. Section IV.B maintains that the Box concurrence's negative impact is not solely limited to issues of reproductive
rights and reproductive justice, but has broader implications for the Court's race jurisprudence, as well.
A. Undermining Reproductive Justice
Although Justice Thomas never references the reproductive justice movement in the Box concurrence, we might understand his
opinion as trading on the reproductive justice movement's successful effort to expand the terms of the abortion debate to focus
more specifically on the needs of communities of color. Just as the reproductive justice movement extended the boundaries of
the abortion debate beyond gender and feminism, thus transforming the central understanding of what reproductive rights are,
Justice Thomas seeks to change the social--and constitutional--meaning of abortion, transforming it from an issue of privacy
and sex equality to one of racial equality.
But in opportunistically co-opting the reproductive justice movement's interest in the intersection of race and abortion rights, the
Box concurrence's racialized critique of abortion rights actually undermines the goals and interests of reproductive justice.442 For
example, a central pillar of the reproductive justice movement is the understanding that disability, class, race, sexual orientation,
and gender identity shape the ability to exercise “choice.”443 Although the association of eugenics and abortion injects a racial

dynamic into the abortion debate, this racialized account of abortion is inattentive to both the structural dynamics that shape
Black people's reproductive choices and the prospect of abortion as an act of individual autonomy.444 Put simply, Justice Thomas
invokes a particular historicized and disputed racial narrative while ignoring the functional ways that race has impacted--and
continues to impact-- reproductive autonomy.
As discussed earlier, in painting reproductive rights as tools of deracination, Justice Thomas invokes history selectively,
overlooking the way in which the denial of reproductive rights-- and, specifically, efforts to *2090 restrict abortion--were
also used to bolster white supremacy and suppress communities of color.445 But it is not just that Justice Thomas's critique
occludes a more comprehensive history of abortion, it is that it promotes a masculinist vision of abortion, and in so doing,
evinces a palpable distrust of Black women and their reproductive choices. By charting a straight line between birth control,
abortion, and eugenics, Justice Thomas echoes the claims of male Black nationalist figures, who viewed Black reproduction as
Black women's specific contribution to the political project of the Black Power movement.446 More troublingly, in resuscitating
masculinist narratives of Black reproduction and genocide, Justice Thomas not only ignores the voices of the Black women
who registered their objections to these claims, but also crafts, whether consciously or not, a damning indictment of Black
women who would terminate their pregnancies (or make use of contraception).447 On his telling, Black women who consider--
or obtain--an abortion are coconspirators with eugenicists (here, Margaret Sanger, a white woman) in orchestrating the Black
community's destruction.448 That is, in the name of individual rights and choice, Black women who avail themselves of abortion
have blithely (and selfishly) invited the (white) eugenicist into the part of the Black community that is absolutely vital to its
future: the womb.449
Of course, what is missing from this account of Black women as unwitting (or complicit) agents of deracination is an account of
their own autonomy and attention to the structural impediments that communities of color face in reproductive decisionmaking--
the kinds of concerns that animated the reproductive justice movement in the first place.450 Though Justice Thomas cites
disproportionate abortion rates within the Black community, his concurrence is utterly inattentive to the factors that may drive
a decision to terminate a pregnancy.451 As reproductive justice advocates make clear, for many people of color, the *2091
decision to terminate a pregnancy is shot through with concerns about economic and financial insecurity, limited employment
options, diminution of educational opportunities and lack of access to health care and affordable quality childcare.452 However,
any mention of these considerations is absent from Justice Thomas's racialized critique of abortion rights. Also in this absence
is a neglect of any account of Black women's autonomy in seeking an abortion--the very voices once raised from within the
Black community to counter the narrative of Black genocide.453 Instead, on Justice Thomas's telling, Black women are reduced
to being either the victims of eugenics or active participants in a eugenic conspiracy.
As importantly, the injection of race into the abortion narrative for the purposes of upholding trait-selection laws or providing a
new justification for overruling Roe seems particularly opportunistic when juxtaposed against the Court's inability to articulate
in its jurisprudence the racialized dimensions of abortion rights. Recall the earlier discussion of Harris v. McRae, in which
the Court considered the constitutionality of the Hyde Amendment.454 In upholding the Hyde Amendment, the Harris Court
concluded that regardless of the right articulated in Roe, “it simply does not follow that a woman's freedom *2092 of choice
carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.”455
As many commentators, including those in the reproductive justice community, have noted, Harris has had a profound impact
on abortion access for women who are Medicaid recipients, a group that is disproportionately women of color.456 Unable
to secure abortions, these women, it has been argued, could be coerced into sterilization as a condition of receiving public
assistance.457 Indeed, in an amicus brief filed in Harris, New York City Legal Aid attorneys highlighted the incongruity of
the federal government withholding financial support for abortion while underwriting “sterilization abuse among Puerto Rican,
Native American, Black, and Mexican American women and among welfare recipients.”458 “The disparity of funding between

abortion and sterilization,” they argued, “ha[d] the effect of compelling poor and minority women to be sterilized in violation
of their constitutional rights.”459
Despite these efforts, the Court's opinion in Harris v. McRae made no mention of race or the disproportionate impact of the
Hyde Amendment on poor women of color. Meaningfully, these views have also been absent in the Court's most recent abortion
decisions. In Whole Woman's Health v. Hellerstedt and June Medical Services, advocates and amici underscored the view that
the burdens of abortion restrictions are borne disproportionately by low-income women of color.460 But even as the Court struck
down the challenged laws in both cases and reaffirmed the abortion right, as in Harris v. McRae, it made no mention *2093
of the disproportionate impact of abortion regulations on these marginalized groups.461
As advocates and scholars have long noted, the impact of abortion regulations depends in large part on the social conditions in
which women live.462 For some women, laws that impose waiting periods and additional medical procedures or that limit access
to a handful of providers may have little impact on the ability to obtain an abortion.463 These women are equipped with the
resources-- health insurance, flexible work schedules, ready transportation, childcare--to be able to withstand the limitations that
such restrictions impose.464 For other women, however, the social conditions in which they live mean that abortion restrictions
will have a more profound impact on their lives.465 In this way, abortion restrictions are often especially burdensome for poor
women.466 And because race and socioeconomic status are often related--particularly in those regions of the country where
abortion restrictions are more extensive--the burden on poor women will also result in a burden on women of color, rendering
abortion inaccessible to these groups.467
In focusing on the links between racism and abortion as a means of overturning Roe, while simultaneously overlooking the
systemic and institutional constraints that shape abortion decisionmaking, the racialized critique of abortion rights surrenders
an important opportunity to settle some of the conflict that abortion engenders. As Professor Robin West has argued:
By putting legal abortion in its place--that is, putting it in the context of a reproductive justice agenda pursued in
the legislative arena--pro-choice advocates might find common cause with pro-life movements that responsibly
seek greater justice for pregnant women who choose to carry their pregnancies to term, working families, and
struggling mothers.468
Put differently, in laying a path toward overruling Roe, the injection of race that Justice Thomas proposes in Box only exacerbates
contestation around abortion rights. By contrast, the use of race as a part of a broader reproductive justice framework might
instead offer a way to bridge the distance between abortion rights advocates and abortion opponents.
*2094 This is all to say that Justice Thomas's effort to introduce race into the Court's discourse about abortion regulation and
rights is incomplete, instrumental, and problematic. Although the Box concurrence, with its indeterminate historical record,
attempts to surface the racial dynamics of abortion, it fails to account for the systemic inequities that shape Black women's
reproductive choices and paints Black women as either unwitting victims or eager eugenicists who callously prioritize their
own needs above those of the Black community. Further, the effort to account for race in abortion discourse seems opportunistic
given the Court's long-standing record of sequestering its discussions of abortion from discussions of race and inequality.
B. Undermining Racial Justice
As the previous section explained, the Box concurrence's opportunistic use of race to challenge Roe is not only devastating to
reproductive rights, but also undermines the reproductive justice movement's effort to call attention to the racialized impacts of

abortion regulation. But critically, the concurrence's deleterious consequences extend beyond reproductive rights and justice.
As this section maintains, the Box concurrence's use of race also undermines the broader project of racial justice.
As an initial matter, Justice Thomas's invocation of race in Box is inconsistent with his views of race in other constitutional
and statutory contexts. As some scholars have noted, Justice Thomas's views on race reflect his--and indeed, other Justices'--
interest in “color-blind constitutionalism.”469 Rooted in the first Justice Harlan's dissent in Plessy v. Ferguson,470 “color-blind
constitutionalism” maintains that race is almost never a legitimate ground for legal or political distinctions between groups.471
On this view, any law that draws distinctions on the basis of race, whether for benign or nefarious purposes, is presumptively
unconstitutional.472 Accordingly, under a theory of colorblind constitutional- *2095 ism, the race-based classifications that
undergirded Jim Crow are unconstitutional, but so too are the race-based affirmative action measures designed to remedy past
discrimination.473
The Court's affirmative action cases provide a helpful illustration. In a series of cases challenging the use of race-based
affirmative action programs in employment and university admissions, the Court was repeatedly asked to consider whether
“benign” race-conscious policies were constitutionally distinct from the race-based classifications that characterized Jim Crow
and “separate but equal.”474 As some argued, because affirmative action programs were intended to remedy past racial injustices
in higher education and employment, they should not be subjected to strict scrutiny, as other racial classifications were.475
Others, however, maintained that because it was difficult to discern whether a race-conscious measure was intended to help or
harm, all racial classifications should be subjected to the same punishing standard: strict scrutiny.476
In Regents of the University of California v. Bakke,477 Justice Powell cast the deciding vote to uphold the use of race in medical
school admissions, but in so doing, he also made clear that strict scrutiny, as opposed *2096 to a less stringent standard, was
the appropriate standard of review.478 In City of Richmond v. J.A. Croson Co.,479 the Court confirmed strict scrutiny as the
appropriate standard of review for all race-based classifications--even those aimed at remedying past discrimination.480 In this
regard, the racial context and interests that undergird affirmative action programs are of no moment--as the Court has concluded,
and Justice Thomas has agreed, the remedial motives behind affirmative action programs are irrelevant and, indeed, “inherently
unknowable.”481 “Distrusting its ability to parse the state's intentions” in order to distinguish between benign measures and those
meant to further racial subordination, the Court has subjected all affirmative action programs to the most punishing standard
of constitutional scrutiny.482
But if context and intent are meaningless in the context of affirmative action claims, then, perhaps perversely, they are all too
meaningful in the context of disparate impact claims. For purposes of equal protection doctrine, the Court has concluded that
where a facially neutral law disproportionately impacts a protected group, there is no constitutional injury unless discriminatory
intent can be established.483 But proving intent in the disparate impact context is a nearly impossible endeavor. As Professor Ian
Haney-López explains, in its current incarnation, the disparate impact intent doctrine goes beyond simply demanding evidence
of discriminatory intent--it requires “that plaintiffs prove a state of mind akin to malice on the part of an identified state actor.”484
Such a requirement is “so exacting that, since this test was announced in 1979, it has never been met--not even once.”485 On this
account, if a facially neutral examination results in the elimination of minorities from the pool of those eligible to be considered
for employment, in the absence of evidence that the exam was administered for the purpose of excluding minorities, there is
no constitutional injury.486
Taken together, the Court's disparate impact and affirmative action jurisprudence reflects broad skepticism of efforts to
redress racial injustices. More importantly, it reflects an approach to racial liability that is utterly at odds with the spirit of
the Box concurrence. In Box, much of *2097 Justice Thomas's evidence of abortion's “eugenic potential” flows from the
disproportionate incidence of abortion within the Black community. Yet, in other contexts--capital punishment, employment--

the disparate impact of race-neutral laws on racial minorities, by itself, is insufficient to establish an equal protection
violation.487 Justice Thomas underscored this point just four years prior to Box in Texas Department of Housing & Community
Affairs v. Inclusive Communities Project, Inc.488 There, Justice Thomas maintained that “[a]lthough presently observed racial
imbalance might result from past [discrimination], racial imbalance can also result from any number of innocent private
decisions.”489 And perhaps perversely, in a footnote in the Box concurrence, Justice Thomas reiterated this view, staunchly
asserting that “[b]oth eugenics and disparate-impact liability rely on the simplistic and often faulty assumption that ‘some one
particular factor is the key or dominant factor behind differences in outcomes.”’490
But, curiously, even as he cautioned against “automatically presum[ing] that any institution with a neutral practice that happens
to produce a racial disparity is guilty of discrimination,”491 Justice Thomas had no trouble associating disproportionately high
rates of abortion in the Black community with eugenics and the desire to limit Black reproduction.492 This type of cognitive
dissonance highlights the flaws in Justice Thomas's selective invocation of racial inequity: he rejects the notion that racism is
to blame for racially imbalanced outcomes even as he, in the context of abortion, defends it as the most likely cause of racial
imbalance.
But it is not just that Justice Thomas's interest in making eugenics part of the racial context of abortion is opportunistic and
inconsistent; it is that the understanding of race that undergirds Justice Thomas's Box concurrence reinforces a particular vision
of racism and racial injury and liability that the Court, in recent years, has prioritized. Recall the earlier discussions of Ramos
v. Louisiana and Trump v. Hawaii, *2098 where the Court abandoned two earlier decisions in part because of concerns about
racism.493 Critically, in these two cases, it was not simply that the Court used race and racism as a justification for departing
from precedent, but rather that, in doing so, the Court reaffirmed a particular understanding of the kinds of racial injuries that
are constitutionally cognizable.
In Trump v. Hawaii, the Court consigned Korematsu to constitutional law's anticanon;494 however, in doing so, it also
underscored color-blind constitutionalism's view that only discrete acts of intentional discrimination constitute racial injuries
redressable under the Constitution.495 Specifically, Trump v. Hawaii repudiated Korematsu' s intentional discrimination against
those of Japanese descent,496 while simultaneously rejecting the notion that President Trump's inflammatory statements about
Muslims--statements made just months before the issuance of the challenged travel ban--could serve as evidence that the ensuing
prohibitions on Muslims entering the country reflected discriminatory animus.497 On this telling, the Court acknowledged that
Korematsu reflected a clear intent to discriminate, but concluded that the challenged travel ban-- the Administration's third
version of the prohibition498--was entirely disconnected, both temporally and in terms of purpose, from the President's earlier
statements and thus was “facially neutral.”499
In this way, in Trump v. Hawaii, race served as a “special justification” that warranted repudiating Korematsu. However, even
as the Court disavowed Korematsu, it also articulated a new conception of racial injury--one in which a cognizable injury exists
only upon a showing of racist intent that is clearly and closely connected to the challenged policy. The invocation of race to
reconsider an earlier decision also furnished the Court with an opportunity to lay down a new precedent--one that entrenched
this crabbed understanding of racial injury and racial liability.
Likewise, in Ramos, race served as a vehicle for reconsidering and overruling Apodaca. But, unlike Trump v. Hawaii, where the
Court determined that there was no nexus between the President's anti-Muslim statements and the challenged executive order,
the Court in Ramos saw a clear connection between Louisiana's postbellum interest *2099 in preserving white supremacy and
the nonunanimous jury rule.500 In this regard, Ramos echoed Brown's rejection of Plessy and separate but equal. Put differently,
the racialized harm to be remedied in Ramos was obvious, long-standing, and expressly stated in the legislative record. It was
a clear-cut case of discriminatory intent that was obviously connected to the challenged policy. And in recognizing this history
as problematic,501 the Ramos Court reinforced the notion that the racial injuries are constitutionally cognizable when they rest

on obvious expressions of discriminatory intent. In Ramos, as in Trump v. Hawaii, the effort to redress a racial injustice brings
with it the opportunity to reiterate and embed an understanding of racial injury and liability that is limited to discrete acts of
intentionally discriminatory conduct.
All of this is deeply concerning--for Roe and the future of abortion rights and for the Court's prior precedents on race and racial
discrimination. The Box concurrence makes clear that there is play in the joints as to what constitutes racial harm and racial
liability. In this regard, the Box concurrence offers the Court different ways to use race to shape its jurisprudence. First, and most
obviously, race can be used as a trigger for overriding stare decisis and reconsidering past precedents. Second, in serving as the
trigger that prompts the reconsideration of past precedent, race can provide the Court with an opportunity to reconceptualize the
nature of the injury at the heart of the case in question. On this telling, the invocation of race to reconsider Roe also will transform
the social meaning of abortion from an exercise of individual autonomy to a collective racial injury. Finally, and perhaps most
profoundly, by providing an opportunity to reconsider past precedent, race may also serve as the vehicle by which the Court
may articulate new precedents--precedents that will guide and inform its understanding of race and racial injury going forward.
This last insight is especially important in understanding the Box concurrence's relevance not only to the future of the Court's
reproductive rights jurisprudence, but to its race jurisprudence as well. Roe v. Wade is not the only contested precedent in the
Court's jurisprudence. Indeed, across the Court's race jurisprudence, narratives about what race is and what constitutes a race-
based injury are abundant--and more importantly, continually contested, even across established precedents. For example, in
Shaw v. Reno,502 the Court emphasized an understanding of race as fixed and biological.503 By contrast, in Hernandez *2100
v. Texas,504 it presented race as a social construction.505 In McCleskey v. Kemp,506 the majority and the dissents bitterly debated
the scope and nature of judicial inquiry into racial discrimination.507 Likewise, in Grutter v. Bollinger,508 the majority posited
a vision of society in which racial progress was in process and ongoing.509 Shelby County v. Holder,510 by contrast, depicted
American society as one in which the project of racial progress was largely complete.511
As these examples suggest, throughout the Court's jurisprudence, the question of whether and how to think about race is--and
remains--bitterly contested.512 This means that under the logic of the Box concurrence, the use of race as a justification for
revisiting and overruling a prior decision may also yield an opening for the Court to reinforce a particular conception of race
and racism that is internal to--and contested within--the Court's race jurisprudence itself.
Critically, the Box concurrence's racialized critique of abortion already evinces a particular conception of racism and racial harm.
By its terms, it equates racism and racial injury with eugenics and genocide. It would be an understatement to say that there
are few accounts of racism more egregious than the genocidal use of eugenics. Racialized eugenics underwrote the Holocaust,
in which countless Jews were dispossessed of their property, imprisoned, and killed.513 If eugenics is the marker by which
we measure constitutionally cognizable racial injuries, then the bar is very high indeed. On this account, using eugenics as an
exemplar of racial injury moves the needle from Jim Crow and de jure segregation--already deeply problematic episodes of
racism--toward something even more extreme.
Highlighting the fact of more egregious forms of racism and racial injury-- beyond Jim Crow and segregation--is not, by itself,
objectionable. We should recognize racialized eugenics as a constitutionally cognizable injury where and when it occurs. The
difficulty, though, is a question of constitutional meaning. In ratcheting up what it means to *2101 experience racism and
racial injury, we necessarily minimize the constitutional meaning and value we assign to other, less obviously egregious, forms
of racism and racial harm. Again, the trajectory of constitutional colorblindness is instructive. Under the theory of constitutional
colorblindness, evidence of disparate impact, absent a showing of discriminatory intent, is insufficient to trigger more searching
equal protection review.514 In a world where the exemplar of discriminatory intent is the racialized use of eugenics, claims
of disparate impact may be pushed even further to the periphery. Put differently, in equating racism and racial injury with
the horrors of eugenics and genocide, the Box concurrence's racialized narrative underscores the view that the only kinds of
racial injuries for which the Constitution offers redress are the exceptionally evil, intentional incidences of clear racial animus.

Garden variety, “second-generation” discrimination slips beneath the surface-- insufficiently egregious and thus constitutionally
uncognizable.515
With this in mind, the Box concurrence's association of race, abortion, and eugenics is incredibly consequential on a number of
fronts. As the foregoing discussion makes clear, it is not merely an invitation to recast abortion as an issue of racial injustice;
it is also an invitation to entirely reconceptualize the meaning of race and racism.
Conclusion
On July 21, 2020, Planned Parenthood of Greater New York (PPGNY) announced its plans to remove Margaret Sanger's
name from its Manhattan Health Center as part of its “public commitment to reckon with its founder's harmful connections
to the eugenics movement.”516 The change, which grew out of a three-year reproductive justice-framed dialogue between the
group and 300 community members, was “a necessary and overdue step to reckon with our legacy and acknowledge Planned
Parenthood's contributions to historical reproductive harm within communities of color.”517
Critically, PPGNY's announcement came just a year after Justice Thomas's Box concurrence interposed the issues of eugenics
and racial selection into the abortion debate, and three weeks after the Court announced June Medical Services v. Russo, its
most recent abortion decision, where it adverted to stare decisis to strike down a Louisiana admitting privileges law.518
*2102 The connections between PPGNY's announcement, the Box concurrence, and June Medical Services are not
immediately obvious. But, as this Article maintains, under the logic of the Box concurrence, one can draw a straight line from
Margaret Sanger and eugenics to the “special justification” necessary to set aside stare decisis and reconsider a past precedent
like Roe v. Wade. In this regard, the Box concurrence's conflation of abortion, eugenics, and racial injury has harnessed the
narrative and logic of reproductive justice and deployed it for its own ends.
But to be sure, the dismantling of abortion and reproductive rights is not the only likely casualty of the Box concurrence and
its narrative of racial injury. If race furnishes an opportunity for the Court to consider an earlier decision afresh, then it also
furnishes an opportunity to generate new precedents that articulate and embed a specific conception of race and racial harm. In
this regard, the Box concurrence contains not only the germ of a new campaign to topple Roe v. Wade, but the means by which
the Court may continue to sow the seeds of a more parsimonious vision of racial justice.
Footnotes
a1 Frederick I. and Grace Stokes Professor of Law, New York University School of Law. For helpful suggestions and feedback, I'm
grateful to Susan Frelich Appleton, Rabia Belt, Devon Carbado, Guy-Uriel Charles, Erwin Chemerinsky, Katherine Franke, José
Edwin Argueta Funes, Michele Goodwin, Stephen Lee, Leah Litman, Serena Mayeri, Caitlin Millat, Joy Milligan, Jamelia Morgan,
Erin Murphy, Douglas NeJaime, Shaun Ossei-Owusu, Alice Ristroph, Rachel Rebouché, Judge Carlton Reeves, Laura Rosenbury,
Bertrall Ross, Deborah Tuerkheimer, Carol Sanger, Reva Siegel, Fred Smith, Karen Tani, and Kendall Thomas. I presented this paper
at Columbia Law School's Barbara Aronstein Black Lectures on Women and Law. I am grateful for the helpful feedback I received
there, as well as the comments received at the Family Law Scholars and Teachers Conference, the Lutie A. Lytle Black Women Law
Faculty Workshop, and faculty workshops at Rutgers, George Washington University, the University of Colorado, the University of
Pennsylvania, UC Irvine, Northwestern, Temple, Stanford, Berkeley, the University of Florida, NYU, and Vanderbilt. Alon Handler
and Hilarie Meyers provided outstanding research assistance. All errors are my own.
1 139 S. Ct. 1780 (2019) (per curiam). The Court reached a decision in Box without oral argument. As such, the case may be
considered part of the Court's “shadow docket.” The shadow docket refers to “emergency orders and summary decisions that are
outside the high court's main docket of argued cases and decisions.” Mark Walsh, The Supreme Court's “Shadow Docket” Is
Drawing Increasing Scrutiny, ABA J. (Aug. 20, 2020, 9:20 AM), https://www.abajournal.com/web/article/scotus-shadow-docket-
draws-increasing-scrutiny [https://perma.cc/F778-EKGU]. Recently, scholars have noted the challenges that dispositions from the

shadow docket present in terms of transparency and predictability. See generally Stephen I. Vladeck, Essay, The Solicitor General
and the Shadow Docket, 133 Harv. L. Rev. 123 (2019) (discussing these challenges vis-à-vis the interaction between the Office of the
Solicitor General and the Court); William Baude, Foreword: The Supreme Court's Shadow Docket, 9 N.Y.U. J.L. & Liberty 1 (2015)
(arguing that the shadow docket presents difficulties in terms of transparency).
2 Box, 139 S. Ct. at 1783 (Thomas, J., concurring); Ind. Code § 16-34-2-1.1(a)(1)(K) (2019).
3 Ind. Code § 16-41-16-7.6 (2019); 410 Ind. Admin. Code § 35-2-1 (2019).
4 Box, 139 S. Ct. at 1781.
6 As Justice Thomas detailed in his concurrence, a number of states have taken steps to enact similar prohibitions on race, sex, and
disability-selective abortions. See id. at 1783 n.2 (citing Ariz. Rev. Stat. Ann. § 13-3603.02 (2018) (sex and race); Ark. Code Ann.
§ 20-16-1904 (2018) (sex); Kan. Stat. Ann. § 65-6726 (2017) (sex); La. Stat. Ann. § 40:1061.1.2 (2019) (genetic abnormality); N.C.
Gen. Stat. § 90-21.121 (2017) (sex); N.D. Cent. Code Ann. § 14-02.1-04.1 (West 2017) (sex and genetic abnormality); Ohio Rev.
Code Ann. § 2919.10 (West 2018) (Down syndrome); Okla. Stat. tit. 63, § 1-731.2(B) (2016) (sex); 18 Pa. Cons. Stat. § 3204(c)
(2015) (sex); S.D. Codified Laws § 34-23A-64 (2018) (sex)).
7 Box, 139 S. Ct. at 1783.
8 See Eli Rosenberg, Clarence Thomas Tried to Link Abortion to Eugenics. Seven Historians Told the Post He's Wrong., Wash.
Post (May 30, 2019, 9:50 PM), https://www.washingtonpost.com/history/2019/05/31/clarence-thomas-tried-link-abortion-eugenics-
seven-historians-told-post-hes-wrong [https://perma.cc/5DNR-PJT5]; Imani Gandy, When It Comes to Birth Control and Eugenics,
Clarence Thomas Gets It All Wrong, Rewire (May 29, 2019, 5:11 PM), https://rewire.news/ablc/2019/05/29/when-it-comes-to-birth-
control-and-eugenics-clarence-thomas-gets-it-all-wrong [https://perma.cc/3HZ3-689B]; Lydia O'Connor, What Justice Clarence
Thomas Gets Wrong About Eugenics and Abortion, Huffington Post (May 29, 2019, 5:50 PM), https://www.huffpost.com/entry/
clarence-thomas-eugenics-abortion_n_5ced6c87e4b0356205a07182 [https://perma.cc/6AHJ-MS5U].
9 Box, 139 S. Ct. at 1784 (Thomas, J., concurring).
10 Id.
11 See, e.g., Mary Ziegler, Essay, Bad Effects: The Misuses of History in Box v. Planned Parenthood, 105 Cornell L. Rev. Online 165,
196-202 (2020) (critiquing the historical arguments in Justice Thomas's Box concurrence and arguing that “it is wrong to equate the
population-control and abortion-rights movement--or to argue that eugenicists dominated the movement for population control,” id.
at 200); Samuel R. Bagenstos, Disability and Reproductive Justice, 14 Harv. L. & Pol'y Rev. 273, 276 (2020) (“When Justice Thomas
and others seek to weaponize disability rights against abortion, they distort or disregard the full history of eugenics.”); Adam Cohen,
Clarence Thomas Knows Nothing of My Work, The Atlantic (May 29, 2019), https://theatlantic.com/ideas/archive/2019/05/clarence-
thomas-used-my-book-argue-against-abortion/590455 [https://perma.cc/8835-64ZU] (explaining that “Thomas used the history of
eugenics misleadingly, and in ways that could dangerously distort the debate over abortion”); Rosenberg, supra note 8 (“The
Washington Post spoke to seven scholars of the eugenics movement; all of them said that Thomas's use of this history was deeply
flawed.”); Joanna L. Grossman & Lawrence M. Friedman, Junk Science, Junk Law: Eugenics and the Struggle over Abortion
Rights, Justia: Verdict (June 25, 2019), https://verdict.justia.com/2019/06/25/junk-science-junk-law-eugenics-and-the-struggle-over-
abortion-rights [https://perma.cc/3JUS-THGA] (“But if eugenics rested on junk science, Thomas' opinion--and the eugenics label--
might be said to rest on junk history, and to end up in what might be called junk law.”); Dorothy Roberts Argues that Justice
Clarence Thomas's Box v. Planned Parenthood Concurrence Distorts History, Penn. L. (June 6, 2019), https://www.law.upenn.edu/
live/news/9138-dorothy-roberts-argues-that-justice-clarence [https://perma.cc/84BX-ELVP]; Michael C. Dorf, Clarence Thomas's
Misplaced Anti-Eugenics Concurrence in the Indiana Abortion Case, Dorf on Law (May 28, 2019), http://dorfonlaw.org/2019/05/
clarence-thomass-misplaced-anti.html [https://perma.cc/7KFF-S3QK]; Alexandra Minna Stern, Opinion, Clarence Thomas' Linking
Abortion to Eugenics Is as Inaccurate as It Is Dangerous, Newsweek (May 31, 2019, 12:02 PM), https://www.newsweek.com/
clarence-thomas-abortion-eugenics-dangerous-opinion-1440717 [https://perma.cc/DE5J-TQ2K]; Gandy, supra note 8; O'Connor,
supra note 8.
12 410 U.S. 113 (1973).

13 See Melissa Murray, The Supreme Court, 2019 Term-- Comment: The Symbiosis of Abortion and Precedent, 134 Harv. L. Rev. 308,
311 (2020).
14 See Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014) (citing Dickerson v. United States, 530 U.S. 428, 443 (2000)).
15 Id.
16 See Murray, supra note 13, at 310.
17 Halliburton, 573 U.S. at 266.
18 347 U.S. 483 (1954).
19 Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1783 (2019) (Thomas, J., concurring).
20 See Murray, supra note 13, at 310.
21 388 U.S. 1 (1967).
22 140 S. Ct. 1390 (2020).
23 Id. at 1405.
24 Ind. Code § 16-34-2-1.1(a)(1)(K) (2019).
25 Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1781 (2019) (Thomas, J., concurring); see Planned Parenthood of Ind.
& Ky., Inc. v. Comm'r of Ind. State Dep't of Health, 888 F.3d 300, 303 (7th Cir. 2018) (citing Ind. Code § 16-34-4 (2016)), vacated
in part, 727 F. App'x 208 (7th Cir. 2018) (mem.), reinstated by 917 F.3d 532 (7th Cir. 2018).
26 Box, 139 S. Ct. at 1781 (citing Ind. Code §§ 16-41-16, 16-34-3 (2016)).
27 Id. at 1782.
28 Id. at 1782-93 (Thomas, J., concurring).
29 See id. at 1792-93 (“Although the Court declines to wade into these issues today, we cannot avoid them forever.” Id. at 1793.).
30 See id. at 1783.
31 Id.
32 Id. at 1784.
33 Id. at 1785.
34 Id. at 1784.
35 See id. at 1783-89.
36 Id. at 1787 (quoting Margaret Sanger, Birth Control and Racial Betterment, Birth Control Rev., Feb. 1919, at 11, 11).
37 See id. at 1788.
38 Id. (quoting Birth Control or Race Control? Sanger and the Negro Project, Margaret Sanger Papers Project (Fall 2001), https://
www.nyu.edu/projects/sanger/articles/bc_or_race_control.php [https://perma.cc/D6NA-XTX5]).
39 See, e.g., Rosenberg, supra note 8 (“The Washington Post spoke to seven scholars of the eugenics movement; all of them said
that Thomas's use of this history was deeply flawed.”); Cohen, supra note 11 (arguing that “Thomas used the history of eugenics
misleadingly, and in ways that could dangerously distort the debate over abortion”); Dahlia Lithwick, Why Clarence Thomas Is Trying
to Bring Eugenics into the Abortion Debate, Slate (June 17, 2019, 10:42 AM), https://slate.com/news-and-politics/2019/06/clarence-

thomas-eugenics-abortion-debate-roe-v-wade.html [https://perma.cc/WHV2-NC44]; Dorothy Roberts Argues that Justice Clarence

Thomas's Box v. Planned Parenthood Concurrence Distorts History, supra note 11.
40 U.S. Const. art. I, § 9, cl. 1.
41 Gordon Lloyd & Jenny S. Martinez, The Slave Trade Clause, Nat'l Const. Ctr., https://constitutioncenter.org/interactive-constitution/
interpretation/article-i/clauses/761 [https://perma.cc/GHG6-JVHN].
42 Id.
43 Act of Mar. 2, 1807, ch.22, 2 Stat. 426.
44 Dorothy Roberts, Killing the Black Body 24 (Vintage Books 2d ed. 2017).
45 Id.
46 See id. at 26 (noting that enslaved women could reduce the likelihood of being sold and separated from their families by having more
children); cf. id. at 46-47 (noting evidence of abstinence, contraceptive use, and abortion among enslaved women to rebel against
forced reproduction).
47 Id. at 47.
48 Id.
49 Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan.
L. Rev. 261, 281-82 (1992).
50 Id. at 282.
51 Id.
52 Id.
53 See Michele Goodwin, The Racist History of Abortion and Midwifery Bans, ACLU (July 1, 2020), https://www.aclu.org/news/racial-
justice/the-racist-history-of-abortion-and-midwifery-bans [https://perma.cc/V2HV-FA8Q].
54 Siegel, supra note 49, at 283.
55 See, e.g., Nicola Beisel & Tamara Kay, Abortion, Race, and Gender in Nineteenth-Century America, 69 Am. Socio. Rev. 498, 506
(2004) (noting that “physicians opposed both contraception and abortion because they violated the natural purpose of sexuality and
women's natural role as mothers”).
56 See Goodwin, supra note 53.
57 Beisel & Kay, supra note 55, at 506.
58 Id. at 504.
59 Id. at 502 (“[T]he total fertility rate for whites fell dramatically, from seven children in 1800 to 3.6 in 1900.” (citation omitted)).
While many white European immigrants obtained citizenship as “free white persons” in the eighteenth century, by the nineteenth
century, they were increasingly looked down upon as inferior by native-born Anglo-Saxons. Id. at 501 (observing that the social and
political categorization of “white” has varied throughout American history).
60 See Siegel, supra note 49, at 285 & n.87, 297-300.
61 Id. at 298 & nn.140-41.
62 Reva Siegel & Duncan Hosie, Trump's Anti-abortion and Anti-immigration Policies May Share a Goal, Time (Dec. 13, 2019, 4:35
PM), https://time.com/5748503/trump-abortion-immigration-replacement-theory [https://perma.cc/Q5Q7-SEJB].

63 Roberts, supra note 44, at 59.

64 Id.
65 Id.
66 Id. (quoting Francis Galton, Eugenics: Its Definition, Scope and Aims 50 (1905)).
67 Francis Galton, Inquiries into Human Faculty and Its Development 24 n.1 (London, MacMillan & Co. 1883).
68 Roberts, supra note 44, at 59 (quoting Galton, supra note 67, at 24-25).
69 Id. at 59-60.
70 Id. at 60.
71 Id.; see also Sonia M. Suter, A Brave New World of Designer Babies?, 22 Berkeley Tech. L.J. 897, 904 (2007) (noting that eugenicists
of the 1920s “conflated national and racial identity and believed that race determined behavior”).
72 Roberts, supra note 44, at 60 (quoting Francis Galton, Hereditary Talent and Character, 12 MacMillan's Mag. 318, 320 (1865)).
73 Id. (quoting Galton, supra note 72, at 321).
74 Id. (quoting Galton, supra note 72, at 321).
75 Id. at 69-70; see also Suter, supra note 71, at 906 (noting that states also restricted marriage of the “feebleminded”).
77 See id. at 268; see also Matthew J. Lindsay, Reproducing a Fit Citizenry: Dependency, Eugenics, and the Law of Marriage in the
United States, 1860-1920, 23 Law & Soc. Inquiry 541, 546 & n.7 (1998).
78 See Robert J. Cynkar, Buck v. Bell: “Felt Necessities” v. Fundamental Values?, 81 Colum. L. Rev. 1418, 1432 (1981) (discussing
the influence of eugenic thinking in immigration law and policy); Suter, supra note 71, at 907 (noting that eugenic principles were
“central to the passage of the Immigration Restriction Act of 1924, which set quotas limiting the immigration of ‘biologically inferior’
ethnic groups into the United States and favored the entrance of Northern Europeans”).
79 See Khiara M. Bridges, White Privilege and White Disadvantage, 105 Va. L. Rev. 449, 465-67 (2019).
80 Beisel & Kay, supra note 55, at 510-11 (observing that “voluntary motherhood,” id. at 510, arose as a response to marital rape, and
a desire for early feminists to “guard rather than undermine the sanctity of motherhood,” id. at 510-11).
81 Id. at 507 (noting that physicians advocating for antiabortion laws tried to generate widespread concern over abortion among native-
born white women and the consequences of declining birthrates for “native-born” social and political power).
82 See id. at 515 (“Despite physicians' successful efforts to get anti-abortion statutes passed, the available historical evidence suggests
that women did, indeed, continue to make decisions about reproduction. In spite of statutes banning use of abortion and contraception,
the United States completed its first demographic transition in the early twentieth century.” (citation omitted)).
83 See generally Ellen Chesler, Woman of Valor: Margaret Sanger and the Birth Control Movement in America (1992) (discussing
Sanger's role in the birth control movement).
84 James Risen & Judy L. Thomas, Wrath of Angels: The American Abortion War 10 (1998).
85 See Roberts, supra note 44, at 72.
86 Hagar Kotef, On Abstractness: First Wave Liberal Feminism and the Construction of the Abstract Woman, 35 Feminist Stud. 495,
499-500 (2009) ( “Even the most liberal among First Wave feminists were concerned with domesticity, republican motherhood,
religiosity, and moral virtues (often at the same time as they asserted full equality).”); see also Carole R. McCann, Birth Control

Politics in the United States, 1916-1945, at 38 (1994) (explaining that suffragists told Sanger “to abandon birth control, or at least
tone down her tactics”).
87 Gerald V. O'Brien, Commentary, Margaret Sanger and the Nazis: How Many Degrees of Separation?, 58 Soc. Work 285, 285 (2013)
(explaining that Margaret Sanger “sought, and largely failed, to co-opt the growing eugenics movement as a means of supporting her
efforts to increase support for the birth control movement”); Dorothy Roberts, Margaret Sanger and the Racial Origins of the Birth
Control Movement, in Racially Writing the Republic 196, 200 (Bruce Baum & Duchess Harris eds., 2009); Alexander Sanger, Musing,
Eugenics, Race, and Margaret Sanger Revisited: Reproductive Freedom for All?, Hypatia, Spring 2007, at 210, 213 (explaining that
Sanger “co-opted” eugenics to build support for birth control).
88 Roberts, supra note 87, at 200; McCann, supra note 86, at 100.
90 See, e.g., McCann, supra note 86, at 130-34; Roberts, supra note 44, at 79-81.
91 McCann, supra note 86, at 9 (“Confronted with death from illegal abortions, Sanger suddenly recognized that it was unconscionable
for women to be forced to choose between avoiding sex altogether or risking their lives simply because the government prohibited
them from having simple, safe, and effective contraceptives.”); Rosalind Pollack Petchesky, Abortion and Woman's Choice: The
State, Sexuality, and Reproductive Freedom 89-93 (rev. ed. 1990) (noting that Sanger disavowed abortion on the view that
access to contraception was a safer alternative for women seeking to limit their reproductive capacities); Deborah L. Rhode,
Politics and Pregnancy: Adolescent Mothers and Public Policy, 1 S. Cal. Rev. L. & Women's Stud. 99, 107 (1992) (“Yet most
leaders such as Margaret Sanger disavowed any support for abortion and presented their preventive approach as a sufficient
alternative.”); Imani Gandy, How False Narratives of Margaret Sanger Are Being Used to Shame Black Women, rewire news
grp. (Aug. 20, 2015, 12:08 PM), https://rewire.news/article/2015/08/20/false-narratives-margaret-sanger-used-shame-black-women
[https://perma.cc/3R6Q-2N5C] (“Sanger opposed abortion. She believed it to be a barbaric practice.”).
92 Margaret Sanger, Birth Control or Abortion?, Birth Control Rev., Dec. 1918, at 3, 3, https://www.nyu.edu/projects/sanger/webedition/
app/documents/show.php?sangerDoc=232534.xml [https://perma.cc/NMP3-AB73] (discussing abortion).
93 Id.
94 Roberts, supra note 44, at 82-84.
95 Id. at 83 (alteration in original) (quoting George S. Schuyler, Quantity or Quality, 16 Birth Control Rev. 165, 166 (1932)).
96 W.E.B. Du Bois, Darkwater (1920), reprinted in The Oxford W.E.B. Du Bois Reader 483, 565 (Eric J. Sundquist ed., 1996).
97 See Dorothy Roberts, Black Women and the Pill, 32 Fam. Plan. Persps. 92, 93 (2000); see also Roberts, supra note 44, at 84; Jill
C. Morrison, Resuscitating the Black Body: Reproductive Justice as Resistance to the State's Property Interest in Black Women's
Reproductive Capacity, 31 Yale J.L. & Feminism 35, 38 (2019); Beryl Satter, Marcus Garvey, Father Divine, and the Gender Politics
of Race Difference and Race Neutrality, 48 Am. Q. 43, 43 (1996).
98 Convention of Negro Peoples Meet at Edelweiss Park, Daily Gleaner (Kingston), Aug. 31, 1934, reprinted in 7 The Marcus Garvey
and Universal Negro Improvement Association Papers 602, 603 (Robert A. Hill ed., 1990).
99 Roberts, supra note 44, at 84 (quoting Philip Francis, Guest Editorial, Birth Control and the Negro, N.Y. Amsterdam News, Aug.
17, 1940, at 8).
100 Id. (quoting Francis, supra note 99, at 8).
101 See Jennifer Nelson, Women of Color and the Reproductive Rights Movement 96-97 (2003) (detailing the opposition to birth control
by Black Muslims); Robert G. Weisbord, Genocide?: Birth Control and the Black American 96-105 (1975); Simone M. Caron, Birth
Control and the Black Community in the 1960s: Genocide or Power Politics?, 31 J. Soc. Hist. 545, 547 (1998) (noting the differences
between the Panthers' objections to birth control and those of the Nation of Islam); Morrison, supra note 97, at 38 (“Both the Black
Panthers and Nation of Islam opposed birth control and abortion, but the genocide argument was much more common among the
Panthers, who viewed Black children as potential soldiers in the fight for Black freedom. The Nation's opposition was rooted in

religious principles and women's duty to raise children.”); Robert G. Weisbord, Birth Control and the Black Americans: A Matter
of Genocide?, 10 Demography 571, 580 (1973).
102 See Nelson, supra note 101, at 102.
103 Id. at 96-98. That said, not all members of the Nation were implacably opposed to family planning. According to Professor Robert
Weisbord, in a 1962 interview with Black field consultants for Planned Parenthood, Malcolm X seemed to favor family planning
measures “for health and economic reasons.” Weisbord, supra note 101, at 99.
104 William A. Darity & Castellano B. Turner, Family Planning, Race Consciousness and the Fear of Race Genocide, 62 Am. J. Pub.
Health 1454, 1458 (1972).
105 Id.
106 See Roberts, supra note 44, at 99.
108 Roberts, supra note 44, at 99; Caron, supra note 101, at 546-47. But see Weisbord, supra note 101, at 585 (noting that the national
leadership of the NAACP “believe[d] in family planning as a social value and reject[ed] the notion ... that this is a form of genocide”).
109 Greenlee Holds Position on Birth Control Charge, New Pittsburgh Courier, Dec. 23, 1967, at 1; Negroes Criticize Family Planners,
N.Y. Times, Dec. 17, 1967, at 71.
110 Stephanie Flores, Redefining Reproductive Rights in an Age of Cultural Revolution, 2 On Our Terms 1, 16-18 (2014).
111 Student Nonviolent Coordinating Comm., Genocide in Mississippi 3-4 (1964).
112 See Frances Beale, Double Jeopardy: To Be Black and Female, in The Black Woman 90, 98 (Toni Cade ed., 1970) (“The lack of
availability of safe birth-control methods, the forced sterilization practices, and the inability to obtain legal abortions are all symptoms
of a decadent society that jeopardizes the health of Black women ....”).
113 See Nelson, supra note 101, at 91 (noting that a SNCC representative wrote “[t]hose black militants who stand up and tell women,
‘Produce black babies!’ are telling black women to be slaves” (quoting Julius Lester, From the Other Side of the Tracks, The Guardian
(New York), Aug. 17, 1968)).
114 Caron, supra note 101, at 550 (quoting Mary Smith, Birth Control and the Negro Woman, Ebony, Mar. 1968, at 29, 37).
115 Id. (discussing the work of Walter R. Chivers, Jerome Holland, and Bayard Rustin, among others, on behalf of family planning).
116 Id. at 548 (quoting Castellano Turner & William A. Darity, Fears of Genocide Among Black Americans as Related to Age, Sex, and
Region, 63 Am. J. Pub. Health 1029, 1033 (1973)).
117 See, e.g., Leontyne Hunt, Keep Your Family the Right Size, Chi. Def., Oct. 22, 1966, at 11. Interestingly, there was no “Leontyne.”
The column was written by staff at the local Planned Parenthood's Chicago South Side affiliate, who culled questions from their
largely Black clientele and provided responses. Nicola Beisel & Bonnie Bright, Letters to Leontyne: Black Women's Questions to
Planned Parenthood, 1964-1970, at 1 (Nov. 18, 2013) (unpublished manuscript) (on file with the Harvard Law School Library).
118 Beisel & Bright, supra note 117, at 2.
119 Shirley Chisholm, Facing the Abortion Question (1970), reprinted in Black Women in White America: A Documentary History 602,
603 (Gerda Lerner ed., 1973).
120 Mary Ziegler, The Framing of a Right to Choose: Roe v. Wade and the Changing Debate on Abortion Law, 27 Law & Hist. Rev.
281, 327 (2009).
121 Shirley Chisholm, Unbought and Unbossed 114 (1970). Critically, Chisholm initially had reservations about the efforts to liberalize
New York's abortion law. See id. at 113. Careful reflection on the real-world circumstances of Black women's reproduction prompted
her to change her views. As she noted in her autobiography, “49 percent of the deaths of pregnant black women and 65 percent of

those of Puerto Rican women ... [are] due to criminal, amateur abortions.” Id. at 122 (omission in original). “Which,” she mused, “is
more like genocide ... the way things are, or the conditions I am fighting for in which the full range of family planning services is
freely available to women of all classes and colors ...?” Id.
122 See, e.g., Angela Davis, The Historical Context: Racism, Birth Control and Reproductive Rights, Women, Race & Class, Summer
1993, at 21, 21.
123 Toni Cade, The Pill: Genocide or Liberation?, in The Black Woman, supra note 112, at 162, 164.
124 Id. at 164.
125 See id. at 167-68.
126 Douglas Martin, Flo Kennedy, Feminist, Civil Rights Advocate and Flamboyant Gadfly, Is Dead at 84, N.Y. Times, Dec. 23, 2000,
at B7.
127 Sherie M. Randolph, Florynce “Flo” Kennedy: The Life of a Black Feminist Radical 179 (2015).
128 Id.
129 Id. at 176-77.
130 Id.
131 Id. at 170.
132 See Mary Steichen Calderone, Illegal Abortion as a Public Health Problem, 50 Am. J. Pub. Health 948, 951 (1960).
133 See id. at 950.
134 See id. at 951; see also Leslie J. Reagan, When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973,
at 205 (1997) (noting studies from the time period that show that most therapeutic abortions performed in hospitals were performed
on white patients with private health insurance).
135 Linda Greenhouse & Reva B. Siegel, Feature, Before (and After) Roe v. Wade: New Questions About Backlash, 120 Yale L.J. 2028,
2036 (2011).
136 Id. (quoting Calderone, supra note 132, at 949). In this regard, public health arguments in favor of abortion liberalization echoed
earlier arguments in favor of repealing criminal bans on contraception: despite criminalization, those with means--and access to
private physicians--were able to obtain contraception. Criminal prohibitions on contraception effectively limited the operation of
public birth control clinics upon which the poor relied for family planning information and assistance. See Cary Franklin, The New
Class Blindness, 128 Yale L.J. 2, 22-24 (2018) (discussing contraceptive bans' impact on public birth control clinics); Melissa Murray,
Sexual Liberty and Criminal Law Reform: The Story of Griswold v. Connecticut, in Reproductive Rights and Justice Stories 11, 12
(Melissa Murray, Katherine Shaw & Reva B. Siegel eds., 2019).
137 Greenhouse & Siegel, supra note 135, at 2038.
138 Id. (alteration in original) (quoting Zero Population Growth, Brochure, reprinted in Linda Greenhouse & Reva B. Siegel, Before Roe
v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court's Ruling 55, 57 (2010)).
139 Paul R. Ehrlich, The Population Bomb 3 (rev. ed., 19th prtg. 1988).
140 See Melissa Murray, Essay, Griswold's Criminal Law, 47 Conn. L. Rev. 1045, 1059 (2015) (discussing the concerns about selective
enforcement of morals offenses).
141 See id. at 1048, 1068.
142 See id. at 1059.

143 Id. at 1064 (quoting Griswold v. Connecticut, 381 U.S. 479, 485 (1965)).
144 See Griswold, 381 U.S. at 483; Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). Although Eisenstadt was technically decided on equal
protection grounds, the Court nonetheless engaged in a discussion of the scope and breadth of constitutional privacy. Id. at 453-55.
145 Neil S. Siegel & Reva B. Siegel, Contraception as a Sex Equality Right, 124 Yale L.J.F. 349, 353-54 (2015) (discussing the way in
which the law traded on well-worn gendered stereotypes about sex and parenting).
146 See Complaint at 2, Trubek v. Ullman, 367 U.S. 907 (1961) (No. 847); see also Melissa Murray, Overlooking Equality on the Road
to Griswold, 124 Yale L.J.F. 324, 326 (2015) (discussing sex-equality claims in Trubek v. Ullman).
147 Greenhouse & Siegel, supra note 135, at 2042.
148 See id. at 2044.
149 305 F. Supp. 1030 (S.D.N.Y. 1969).
150 See id. at 1031.
151 342 F. Supp. 800 (D. Conn. 1972).
152 Women vs. Connecticut Organizing Pamphlet (1970), reprinted in Greenhouse & Siegel, supra note 138, at 174.
153 Id.
154 Reva B. Siegel, Roe's Roots: The Women's Rights Claims that Engendered Roe, 90 B.U. L. Rev. 1875, 1886 n.49 (2010) (explaining
that the opinion dismissing Abramowicz and its companion suits as moot was issued on July 1, 1970, but it was not published in any
official court reporter). Abramowicz was the companion case to the earlier discussed Hall v. Lefkowitz. Id.
155 Id. at 1894 (noting that the appeal of Abele “was intercepted by the Roe decision itself”).
156 See id. at 1897.
157 See Roe v. Wade, 410 U.S. 113, 153 (1973).
158 As scholars have argued, Roe's framing of the abortion right was not the only available framing. Other challenges to abortion bans
surfaced other constitutional lenses, including sex equality and class privilege, that, as much as privacy, could have provided doctrinal
roots for the abortion right. See, e.g., Siegel, supra note 154, at 1886-94 (discussing the women's rights and equality claims put
forth in Abele v. Markle); Linda Greenhouse & Reva B. Siegel, The Unfinished Story of Roe v. Wade, in Reproductive Rights and
Justice Stories, supra note 136, at 63 (discussing the sex equality and Eighth Amendment arguments advanced against abortion bans
in Abramowicz v. Lefkowitz).
159 Roe, 410 U.S. at 166 (calling abortion “primarily, a medical decision” such that “basic responsibility for it must rest with the
physician”).
160 Id. at 141, 153.
161 See Rebecca L. Rausch, Reframing Roe: Property over Privacy, 27 Berkeley J. Gender L. & Just. 28, 31 (2012) (noting that the right
announced in Roe “might provide the right woman with reproductive choice ... but for the wrong woman--one with limited resources--
the so-called ‘choice’ becomes nonexistent”); Michele Goodwin & Erwin Chemerinsky, Pregnancy, Poverty, and the State, 127 Yale
L.J. 1270, 1330 (2018) (reviewing Khiara M. Bridges, The Poverty of Privacy Rights (2017)) (discussing how Roe helped provide
“a wide range of reproductive choices” to wealthy women but “little solace to ... poor wom[e]n” seeking abortion access).
162 See Linda C. McClain, The Poverty of Privacy?, 3 Colum. J. Gender & L. 119, 125 (1992) (discussing how reproductive choices for
certain women are often burdened by “circumstance and constraint”).
163 See Rausch, supra note 161, at 31 (noting “the right to privacy ... is relegated to the land of negative rights”).
164 Roe, 410 U.S. at 163.

165 See, e.g., Harris v. McRae, 448 U.S. 297, 315 (1980); Maher v. Roe, 432 U.S. 464, 474 (1977).
166 Rachel Rebouché, The Limits of Reproductive Rights in Improving Women's Health, 63 Ala. L. Rev. 1, 24 (2011) (“Roe has not been
a ready platform for thinking about abortion in terms of women's right to health care.”).
167 Robin West, From Choice to Reproductive Justice: De-constitutionalizing Abortion Rights, 118 Yale L.J. 1394, 1413 (2009).
168 Id.
169 Id. at 1414.
170 448 U.S. 297.
171 Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, §§ 506-07, 128 Stat. 5, 409 (2013).
172 Harris, 448 U.S. at 302.
173 See id. at 343 (Marshall, J., dissenting).
174 See Brief Amici Curiae of the Association of Legal Aid Attorneys, et al., at 15, Harris, 448 U.S. 297 (No. 79-1268). CARASA
was not alone in its association of the Hyde Amendment and sterilization abuse. Activist and scholar Angela Davis observed that
while Hyde “effectively divested” poor and minority women of “the right to legal abortions,” “surgical sterilizations, funded by the
Department of Health, Education and Welfare, remained free on demand,” prompting “more and more poor women ... to opt for
permanent infertility.” Angela Davis, Racism, Birth Control and Reproductive Rights, in Women, Race, and Class 202, 206 (1983).
175 Harris, 448 U.S. at 315.
176 Id. at 316 (“[I]t simply does not follow that a woman's freedom of choice carries with it a constitutional entitlement to the financial
resources to avail herself of the full range of protected choices.”).
177 Id. at 343 (Marshall, J., dissenting).
178 Id.
179 Id. at 343-44 (quoting United States v. Carolene Products Co., 304 U.S. 144, 153 n.4 (1938)).
180 60 U.S. (19 How.) 393 (1857); J.C. Willke, Abortion and Slavery: History Repeats ix (1984) (“The abortion-slavery analogy is one
that has been drawn by right-to-life leaders since the decision, granting mothers the right to abort, was handed down in 1973 by the
U.S. Supreme Court in its Roe vs. Wade and Doe vs. Bolton rulings.”).
181 Dr. & Mrs. J.C. Willke, Handbook on Abortion (1971).
182 See Willke, supra note 180, at 11-15.
183 Id. at 12.
184 Id. at 13.
185 Id. at 14.
186 See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 998 (1992) (Scalia, J., concurring in part, dissenting in part)
(comparing Roe to Dred Scott); Debora Threedy, Slavery Rhetoric and the Abortion Debate, 2 Mich. J. Gender & L. 3, 7-8 (1994)
(describing how Ronald Reagan compared Roe to Dred Scott).
187 See Mary Ziegler, The Price of Privacy, 1973 to the Present, 37 Harv. J.L. & Gender 285, 315-19 (2014) (tracing post-Roe feminist
efforts to move toward a multi-issue reproductive agenda); Dorothy Roberts, Reproductive Justice, Not Just Rights, Dissent (Fall
2015), https://www.dissentmagazine.org/article/reproductive-justice-not-just-rights [https://perma.cc/RJ4SX-E9R].

188 See Mary Ziegler, Roe's Race: The Supreme Court, Population Control, and Reproductive Justice, 25 Yale J.L. & Feminism 1, 38-40
(2013); Zakiya Luna & Kristin Luker, Reproductive Justice, 9 Ann. Rev. L. & Soc. Sci. 327, 334-35 (2013).
189 See Ziegler, supra note 188, at 38-40; Luna & Luker, supra note 188, at 333-37; Human Rights Program at Justice Now, Prisons as
a Tool of Reproductive Oppression, 5 Stan. J.C.R. & C.L. 309, 312 (2009).
190 See Ziegler, supra note 188, at 39.
191 See, e.g., Rachel Rebouché, How Radical Is Reproductive Justice? Remarks for the FIU Law Review Symposium, 12 FIU L. Rev.
9, 16-19 (2016).
192 See Melissa Murray, Katherine Shaw & Reva B. Siegel, Introduction to Reproductive Rights and Justice Stories, supra note 136, at
1 (footnote omitted) (quoting Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)).
193 Id.
194 Id.
195 See id.
196 Asian Cmtys. for Reprod. Just., A New Vision for Advancing Our Movement for Reproductive Health, Reproductive Rights and
Reproductive Justice 1 (2005) (emphasis omitted), https://forwardtogether.org/tools/a-new-vision [https://perma.cc/A5JW-FGXC].
197 See Rebouché, supra note 191, at 18-19 (highlighting the “important role” reproductive justice has played in reproductive rights
advocacy).
198 See, e.g., Big Victories for Reproductive Justice in 2011, Planned Parenthood, https:// archive.vn/20130415204608/http://
act.ppsne.org/connecticut/big-victories-reproductive-justice-2011 [https://perma.cc/6VVQ-DZNZ].
199 Loretta Ross, What is Reproductive Justice?, in Reproductive Justice Briefing Book: A Primer on Reproductive Justice and Social
Change 4, 4 (SisterSong ed., 2007).
200 See id.
201 Id.
202 Id.
203 See Charles Babington, Abortion-Rights Group Broadens Focus, Wash. Post (Dec. 24, 1992), https://www.washingtonpost.com/
archive/politics/1992/12/24/abortion-rights-group-broad-ens-focus/2dd2cb7f-4933-4cba-b355-8d5cdeb328e8 [https://perma.cc/
ZAA8-PPC2] (discussing the shift in NARAL's agenda); Shari Roan, Moving “Beyond Abortion”: Planned Parenthood President
Pamela J. Maraldo Says Her Mission Is to Re-emphasize Health Care and Birth Control, L.A. Times (Nov. 9, 1993),
https://www.latimes.com/archives/la-xpm-1993-11-09-vw-54964-story.html [https://perma.cc/ZJ52-DVX5] (discussing the change
in Planned Parenthood's agenda).
204 Mary Ziegler, Reproducing Rights: Reconsidering the Costs of Constitutional Discourse, 28 Yale J.L. & Feminism 103, 142 (2016).
205 Id. Some have argued that these changes were merely cosmetic and did not result in leadership changes and representation in
the ranks of these traditional reproductive rights groups. See Ema O'Connor, Employees Are Calling Out Major Reproductive
Rights Organizations for Racism and Hypocrisy, BuzzFeed News (Aug. 21, 2020, 6:04 PM), https://www.buzzfeednews.com/article/
emaoconnor/employees-calling-out-reproductive-rights-groups [https://perma.cc/K9NS-32NJ].
206 Ziegler, supra note 204, at 142 (quoting Reproductive Justice Is Every Woman's Right, Nat'l Org. for Women, http://now.org/resource/
reproductive-justice-is-every-womans-right [https://perma.cc/WF43-K2AH]).
207 See Jackie Calmes, Advocates Shun “Pro-Choice” to Expand Message, N.Y. Times (July 28,
2014), http://www.nytimes.com/2014/07/29/us/politics/advocates-shun-pro-choice-to-expand-message.html [https://perma.cc/

N73R-NBZA]; Dawn Laguens, We're Fighting for Access, Not Choice, Huffington Post (Sept. 29, 2014), http://
www.huffingtonpost.com/dawn-laguens/were-fighting-for-access_b_5635999.html [https://perma.cc/HX9M-EAKS].
208 Ziegler, supra note 204, at 142.
209 See, e.g., Hyde Amendment, Planned Parenthood, https://www.plannedparenthoodaction.org/issues/abortion/hyde-amendment
[https://perma.cc/J4HN-MUBV].
210 140 S. Ct. 2103 (2020).
211 See, e.g., Brief for Petitioners at 30, June Med. Servs., 140 S. Ct. 2103 (No. 18-1323), 2019 WL 6341152 (discussing the impact
of the challenged abortion restriction on low-income women); Brief of Amici Curiae National Health Law Program and National
Network of Abortion Funds Supporting Petitioners-Cross-Respondents at 2-4, June Med. Servs., 140 S. Ct. 2103 (Nos. 18-1323,
18-1460), 2019 WL 6698205 (discussing the impact of the challenged abortion restriction on low-income people, people of color,
LGBTQ-GNC people, and people experiencing intimate partner violence); Brief for Amici Curiae for Organizations and Individuals
Dedicated to the Fight for Reproductive Justice--Women with a Vision, et al.--in Support of Petitioners at 7, June Med. Servs., 140
S. Ct. 2103 (No. 18-1323, 18-1460), 2019 WL 6727087 (discussing the impact of the challenged abortion restriction on “people of
color and other marginalized individuals and communities”).
212 See generally, e.g., Brief for Amici Curiae for Organizations and Individuals Dedicated to the Fight for Reproductive Justice--Women
with a Vision, et al.--in Support of Petitioners, supra note 211; Brief for Petitioners, supra note 211; Brief of African American
Pro-Life Organizations as Amici Curiae in Support of Rebekah Gee, JuneMed. Servs., 140 S. Ct. 2103 (Nos. 18-1323, 18-1460)
(advocating women's health solely through the lens of restrictions on abortion providers); Brief in Opposition, June Med. Servs., 140
S. Ct. 2103 (No. 18-1323).
213 136 S. Ct. 2292 (2016).
214 See generally Brief of Janice MacAvoy, et al. as Amicus Curiae in Support of Petitioners, Whole Woman's Health, 136 S. Ct. 2292
(No. 15-274); see also Brief for Michele Coleman Mayes, et al. as Amici Curiae Supporting Petitioners, June Med. Servs., 140 S.
Ct. 2103 (Nos. 18-1323, 18-1460), 2019 WL 6650222. This strategy echoed Florynce Kennedy's story-centered strategy in Hall v.
Lefkowitz. See supra p. 2048.
215 Maafa 21: Black Genocide in 21st Century America at 4:00-13:50 (Life Dynamics 2009), https://www.maafa21.com/watch [https://
perma.cc/9QED-E4DV].
216 See Roberts, supra note 44, at xiv-xv; Morrison, supra note 97, at 41 (citing Radiance Found., Black Children Are an Endangered
Species, Too Many Aborted (Feb. 4, 2010), http://toomanyaborted.com/black-children-are-an-endangered-species [https://perma.cc/
X85X-99Z8]) (noting that the Radiance Foundation's billboards were placed in “predominately Black areas”).
217 Roberts, supra note 44, at xiv; Morrison, supra note 97, at 41 (citing “The Most Dangerous Place for
an African-American Is in the Womb”: Black Politician Criticises Anti-abortion Billboard, Daily Mail (Feb.
24, 2011, 7:03 AM), https://www.dailymail.co.uk/news/article-1360125/The-dangerous-place-African-American-womb-Black-
politician-criticises-anti-abortion-billboard.html [https://perma.cc/8KN3-62W4]); see also Shyrissa Dobbins-Harris, The Myth of
Abortion as Black Genocide: Reclaiming Our Reproductive Choice, 26 Nat'l Black L.J. 85, 117-20 (2017) (discussing billboard
campaigns in Oakland, Atlanta, Missouri, Chicago, Memphis, and New York City).
218 See, e.g., Black Preborn Lives Matter, Pro Life Am., https://prolifeamerica.org/preborn-black-lives-matter [https://perma.cc/
BD89-58Z8]; see also Opinion, Planned Parenthood Claims “Black Lives Matter,” but Kills 247 Black Babies in Abortion Every
Day, Life News (June 4, 2020, 1:53 PM), https://www.lifenews.com/2020/06/04/planned-parenthood-claims-black-lives-matter-but-
kills-247-black-babies-in-abortion-every-day [https://perma.cc/79DU-7S82] [hereinafter Planned Parenthood].
219 Clenard Childress, John Leaps Evangelization Livestream 6/26/2020, YouTube (June 26, 2020), https://www.youtube.com/watch?
v=hvforA4A_gM [https://perma.cc/RP8X-2LWX].
220 See, e.g., James L. Sherley, Opinion, Preborn Black Lives Matter, Too, Wash. Times (Aug. 2, 2020), https://
www.washingtontimes.com/news/2020/aug/2/preborn-black-lives-matter-too [https://perma.cc/3SXC-63SG]. To be sure, the
messages espoused by these antiabortion groups have been countered by others in the Black community who have offered a more

nuanced message. While some Black evangelicals reject abortion, they nonetheless recognize “a contradiction in the great concern
some lawmakers and activists show toward the fetus versus the limited focus on policies that uplift black communities.” John Eligon,
When “Black Lives Matter” Is Invoked in the Abortion Debate, N.Y. Times (July 6, 2019), https://www.nytimes.com/2019/07/06/us/
black-abortion-missouri.html [https://perma.cc/5J73-ZSVV].
221 274 U.S. 200 (1927).
222 Id. at 205.
223 Id. at 207.
224 See Skinner v. Oklahoma, 316 U.S. 535, 542 (1942) (distinguishing the Virginia statute challenged in Buck from the Habitual Criminal
Sterilization Act challenged in Skinner); see also Paul A. Lombardo, Medicine, Eugenics, and the Supreme Court: From Coercive
Sterilization to Reproductive Freedom, 13 J. Contemp. Health L. & Pol'y 1, 24 (1996) (“Skinner qualified, but did not overrule
Buck.”); Robert L. Burgdorf, Jr. & Marcia Pearce Burgdorf, The Wicked Witch Is Almost Dead: Buck v. Bell and the Sterilization of
Handicapped Persons, 50 Temp. L.Q. 995, 1011 (1977) (noting that Skinner “does not ... overrule” Buck).
225 Elizabeth S. Scott, Sterilization of Mentally Retarded Persons: Reproductive Rights and Family Privacy, 1986 Duke L.J. 806, 807
(arguing against the traditional and paternalistic model of sterilization law as applied to the mentally disabled); Maura McIntyre, Note,
Buck v. Bell and Beyond: A Revised Standard to Evaluate the Best Interests of the Mentally Disabled in the Sterilization Context,
2007 U. Ill. L. Rev. 1303, 1303 (detailing the inconsistent and unjust sterilization approval procedures used throughout the United
States and proposing a “revised best interest” standard).
226 See Adam Cohen, Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck 58 (2016).
227 Id. at 19; see also Bridges, supra note 79, at 465 (noting that Carrie Buck's race, coupled with her poverty and unchastity, made her
vulnerable to eugenic sterilization “because the eugenics movement was always about protecting the white race from degeneration”).
228 Paul A. Lombardo, Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell 131-32, 134 (2008).
229 Cohen, supra note 226, at 58 (“Southern eugenicists were particularly concerned with the lowest economic class, people often
disparagingly referred to as ‘poor white trash,’ who were seen as repositories of the worst of the white race's germplasm.”).
230 Sujatha Jesudason & Julia Epstein, Editorial, The Paradox of Disability in Abortion Debates: Bringing the Pro-choice and Disability
Rights Communities Together, 84 Contraception 541, 541 (2011).
231 Id.
232 Id. (quoting Common Abortion Fallacies: Poverty, Rape, Disability, and “Unwantedness” Do Not Morally Justify Abortion., Abort73
(July 21, 2020), https://www.abort73.com/abortion/common_objections [https://perma.cc/4UDP-7LJC]).
233 National Right to Life (@nrlc), Twitter (Sept. 27, 2019, 3:00 PM), https://twitter.com/nrlc/status/1177659189344243715 [https://
perma.cc/K38B-MYCK].
234 See, e.g., Prenatal Nondiscrimination Act (PRENDA) of 2016, H.R. 4924, 114th Cong. (2016); Morrison, supra note 97, at
46 n.69 (describing legislative efforts to ban abortion based on race); Abortion Bans in Cases of Sex or Race Selection or
Genetic Anomaly, Guttmacher Inst. (Feb. 1, 2021), https://www.guttmacher.org/state-policy/explore/abortion-bans-cases-sex-or-
race-selection-or-genetic-anomaly [https://perma.cc/4XUD-M35N] (outlining state and federal trait-selection abortion legislation in
various cases).
235 Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act of 2011, H.R. 3541, 112th Cong. (2011); Susan B. Anthony
and Frederick Douglass Prenatal Nondiscrimination Act of 2009, H.R. 1822, 111th Cong. (2009). For a deeper discussion of PRENDA
and its impact on the proliferation of state-level trait-selection laws, see Rachel Rebouché, Testing Sex, 49 U. Rich. L. Rev. 519,
521 (2015).

236 See Ashland Johnson, Sinking to a New Low: The Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act of
2011--Part I, Nat'l Women's L. Ctr. (Dec. 21, 2011), https://nwlc.org/blog/sinking-new-low-susan-b-anthony-and-frederick-douglass-
prenatal-nondiscrimination-act-2011-part-1 [https://perma.cc/S8NA-GPHX].
237 See id.
238 E.g., Brief Amicus Curiae of Pro-Life Legal Defense Fund et al. in Support of Petitioners at 5-16, Box v. Planned Parenthood of Ind.
& Ky., Inc., 139 S. Ct. 1780 (2019) (No. 18-483) (arguing Box provided an opportunity to reevaluate abortion rights grounded in
eugenics); Brief Amici Curiae of Ethics and Religious Liberty Commission of the Southern Baptist Convention et al. in Support of
the Petitioners at 7-8 & n.8, Box, 139 S. Ct. 1780 (No. 18-483) (discussing racial discrimination in abortion and the rate of abortions
among non-Hispanic Black women); Brief of the Restoration Project et al. as Amici Curiae in Support of Petitioners at 5-9, Box, 139
S. Ct. 1780 (No. 18-483) (arguing that “[m]inority babies in America are at far greater risk from abortion than white babies” and that
“[i]n parts of this country, black babies are more likely to be aborted than they are to be born alive”).
239 Box, 139 S. Ct. at 1783 (Thomas, J., concurring).
240 See id.
241 505 U.S. 833 (1992).
243 Id. at 877.
244 See id. at 878.
245 Planned Parenthood of Ind. & Ky., Inc. v. Comm'r of Ind. State Dep't of Health, 888 F.3d 300, 306 (7th Cir. 2018), cert. granted in
part, judgment rev'd in part sub nom. Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780 (2019) (per curiam).
246 Planned Parenthood of Ind. & Ky., Inc. v. Comm'r of Ind. State Dep't of Health, 917 F.3d 532, 536 (7th Cir. 2018) (Easterbrook,
J., dissenting from the denial of rehearing en banc) (emphasis added). Then-Judge, now Justice, Barrett joined Judge Easterbrook's
dissent. Id.
247 Id.
248 Id.
249 Id.
250 Id.
251 Id.
252 Id.
253 940 F.3d 318 (6th Cir.), vacated, 944 F.3d 630 (6th Cir. 2019).
254 Id. at 320-21.
255 Brief of Defendants-Appellants Lance Himes, Kim G. Rothermel & Bruce R. Saferin at 33, Preterm-Cleveland, 940 F.3d 318 (No.
18-3329).
256 Id. at 43.
257 Id. at 40-42.
258 Id. at 43-44. On this point, the State also noted that “Roe ... rejected both the notion that the ‘woman's right [was] absolute’ and the
notion that it gave her the option to obtain an abortion ‘for whatever reason she alone chooses.”’ Id. at 43 (alteration in original)
(emphasis omitted) (quoting Roe v. Wade, 410 U.S. 113, 153 (1973)).

259 Preterm-Cleveland v. Himes, 294 F. Supp. 3d 746, 749 (S.D. Ohio 2018), aff'd, 940 F.3d 318 (6th Cir.), vacated, 944 F.3d 630 (6th
Cir. 2019); see Preterm-Cleveland, 940 F.3d at 323-25 (analyzing the law under Roe and Casey).
260 Preterm-Cleveland, 940 F.3d at 325-28 (Batchelder, J., dissenting).
261 Id. at 325 (quoting Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1783 (2019) (Thomas, J., concurring)).
262 Id. at 326 (quoting Box, 139 S. Ct. at 1792 (Thomas, J., concurring)).
263 Id.
264 Id.
265 389 F. Supp. 3d 631 (W.D. Mo.), modified, 408 F. Supp. 3d 1049 (W.D. Mo. 2019).
266 See id. at 634-35.
267 Id. at 634; see id. at 635-36.
268 Id. at 634 (quoting Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1783 (2019) (Thomas, J., concurring)).
269 397 F. Supp. 3d 1213 (E.D. Ark. 2019), aff'd, 984 F.3d 682 (8th Cir. 2021).
270 Id. at 1220.
271 Response in Opposition to Plaintiffs' Motion for a Preliminary Injunction or Temporary Restraining Order at 29-30, Rutledge, 397
F. Supp. 3d 1213 (No. 19-cv-00449).
272 Brief of Defendants-Appellants at 29-30, Little Rock Fam. Plan. Servs. v. Rutledge, 984 F.3d 682 (8th Cir. 2021) (No. 19-2690)
(quoting Box, 139 S. Ct. at 1782 (Thomas, J., concurring)).
273 Rutledge, 984 F.3d at 690 (alteration in original) (quoting Planned Parenthood of Ind. & Ky., Inc. v. Comm'r of Ind. State Dep't of
Health, 888 F.3d 300, 307 (7th Cir. 2018), rev'd in part on other grounds sub nom. Box v. Planned Parenthood of Ind. & Ky., Inc.,
139 S. Ct. 1780 (2019) (per curiam)).
274 Id.
275 Id. at 693 (Shepherd, J., concurring).
276 The fact that this racialized narrative has found such a receptive audience in the lower federal courts may speak to Justice Thomas's
broad influence. Not only is Justice Thomas regarded as the Court's most stalwart conservative voice, but also many of his former
clerks now populate the ranks of the federal district and circuit courts. See John Kruzel, Trump's Supreme Court List Reveals Influence
of Clarence Thomas, The Hill (Sept. 13, 2020, 6:00 AM), https://thehill.com/regulation/court-battles/516109-trumps-supreme-court-
list-reveals-influence-of-clarence-thomas [https://perma.cc/J2RR-AC6Z].
277 Box, 139 S. Ct. at 1782.
278 Little Rock Fam. Plan. Servs. v. Rutledge, 397 F. Supp. 3d 1213, 1220 (E.D. Ark. 2019); Preterm-Cleveland v. Himes, 940 F.3d 318,
320 (6th Cir.), vacated, 944 F.3d 630 (6th Cir. 2019).
279 See Box, 139 S. Ct. at 1783-88 (Thomas, J., concurring).
280 See, e.g., George F. Will, Opinion, The Real Down Syndrome Problem: Accepting Genocide, Wash.
Post (Mar. 14, 2018, 7:49 PM), https://www.washingtonpost.com/opinions/whats-the-real-down-syndrome-problem-the-
genocide/2018/03/14/3c4f8ab8-26ee-11e8-b79d-f3d931db7f68_story.html [https://perma.cc/B544-2HA2].
281 Jesudason & Epstein, supra note 230, at 541.
282 Id.

283 545 U.S. 469 (2005).

284 561 U.S. 742 (2010).
285 545 U.S. at 472-73, 475, 485, 490.
286 Id. at 472, 483.
287 Id. at 522 (Thomas, J., dissenting).
288 561 U.S. at 750.
289 Id.
290 Id. at 758 (plurality opinion) (“For many decades, the question of the rights protected by the Fourteenth Amendment against state
infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities
Clause.”).
291 Id. at 805-11 (Thomas, J., concurring in part and concurring in the judgment).
292 92 U.S. 542 (1876).
293 McDonald, 561 U.S. at 808-09 (Thomas, J., concurring in part and concurring in the judgment); see Cruikshank, 92 U.S. at 552-53.
294 McDonald, 561 U.S. at 757 (majority opinion).
295 Id. at 855-56 (Thomas, J., concurring in part and concurring in the judgment).
296 Id.
297 Id. at 857.
298 See id. at 856-57.
299 Id. at 857 (“Emmit [sic] Till, for example, was killed in 1955 for allegedly whistling at a white woman.”).
300 See Ronald Turner, Essay, Remembering Emmett Till, 38 How. L.J. 411, 420-21 (1995).
301 McDonald, 561 U.S. at 858 (Thomas, J., concurring in part and concurring in the judgment).
302 See, e.g., Corey Robin, The Enigma of Clarence Thomas 19-61 (2019); Shaun Ossei-Owusu, Racial Revisionism, 119
Mich. L. Rev. 1165 (2021); Corey Robin, Essay, Clarence Thomas's Radical Vision of Race, New Yorker (Sept. 10,
2019), https://www.newyorker.com/culture/essay/clarence-thomass-radical-vision-of-race [https://perma.cc/T8W7-F7T7]; Angela
Onwuachi-Willig, Using the Master's “Tool” to Dismantle His House: Why Justice Clarence Thomas Makes the Case for Affirmative
Action, 47 Ariz. L. Rev. 113 (2005); Angela Onwuachi-Willig, Just Another Brother on the SCT?: What Justice Clarence Thomas
Teaches Us About the Influence of Racial Identity, 90 Iowa L. Rev. 931 (2005); Melissa Murray, Foiling Clarence Thomas, House
Divided (Jan. 28, 2020), https://ahousedividedapd.com/2020/01/28/foiling-clarence-thomas [https://perma.cc/RQQ7-2H52].
303 See, e.g., Kevin Merida & Michael A. Fletcher, Supreme Discomfort: The Divided Soul of Clarence Thomas (2007).
304 But see Gonzales v. Carhart, 550 U.S. 124, 169 (2007) (Thomas, J., concurring) (“I write separately to reiterate my view that the
Court's abortion jurisprudence, including Casey and Roe v. Wade, has no basis in the Constitution.” (internal citation omitted)); John
Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 939 (1973) (critiquing Roe as unmoored from
constitutional text and the Framers' intent).
305 140 S. Ct. 1390 (2020).
306 Id. at 1394, 1408.

307 E.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 926-27 (1992) (Blackmun, J., concurring in part, concurring in the
judgment, dissenting in part) (writing that the Court “correctly” applied principles of privacy rights in Roe v. Wade); id. at 944
(Rehnquist, C.J., concurring in the judgment in part and dissenting in part) (“We believe that Roe was wrongly decided, and that it
can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases.” (citation omitted));
id. at 999 (Scalia, J., concurring in the judgment in part and dissenting in part) (“[T]he Justices should do what is legally right by
asking two questions: (1) Was Roe correctly decided? (2) Has Roe succeeded in producing a settled body of law? If the answer to
both questions is no, Roe should undoubtedly be overruled.”).
308 E.g., id. at 944 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part); id. at 999 (Scalia, J., concurring in the
judgment in part and dissenting in part).
309 See Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting) (“Stare decisis is usually the wise policy,
because in most matters it is more important that the applicable rule of law be settled than that it be settled right.”); see also Randy
J. Kozel, Settled Versus Right: Constitutional Method and the Path of Precedent, 91 Tex. L. Rev. 1843, 1845 (2013) (noting the
“overarching tension ... between the law's being ‘settled’ and its being ‘settled right”’ (quoting Burnet, 285 U.S. at 406 (Brandeis,
J., dissenting))).
310 See Bush v. Vera, 517 U.S. 952, 985 (1996) (“Our legitimacy requires, above all, that we adhere to stare decisis, especially in such
sensitive political contexts as the present, where partisan controversy abounds.”).
311 See Webster v. Reprod. Health Servs., 492 U.S. 490, 521 (1989) (plurality opinion); id. at 559-60 (Blackmun, J., concurring in part and
dissenting in part); Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 779-81 (1986) (Stevens, J., concurring);
City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 419-20 (1983).
312 See, e.g., Webster, 492 U.S. at 532 (Scalia, J., concurring in part and concurring in the judgment) (calling on the Court to “more
explicitly” overrule Roe); Thornburgh, 476 U.S. at 788 (White, J., dissenting) (“In my view, the time has come to recognize that Roe
v. Wade ... ‘departs from a proper understanding’ of the Constitution and to overrule it.” (alteration in original) (quoting Garcia v.
San Antonio Metro. Transit Auth., 469 U.S. 528, 557 (1985))).
313 Webster, 492 U.S. at 559-60 (Blackmun, J., concurring in part and dissenting in part) (“By refusing to explain or to justify its
proposed revolutionary revision in the law of abortion, and by refusing to abide not only by our precedents, but also by our canons
for reconsidering those precedents, the plurality invites charges of cowardice and illegitimacy to [the Court's] door.”); City of Akron,
462 U.S. at 420 (“We respect [the principle of stare decisis] today, and reaffirm Roe.”).
314 505 U.S. 833 (1992).
315 Id. at 845-46 (“[T]he essential holding of Roe v. Wade should be retained and once again reaffirmed.” Id. at 846.).
316 Id. at 871 (plurality opinion) (quoting Roe v. Wade, 410 U.S. 113, 162 (1973) (alteration in original)).
317 Id. at 876.
318 See June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2135 (2020) (Roberts, C.J., concurring in the judgment) (recognizing that the
abortion restriction in question should be evaluated under Casey's undue burden standard).
319 Murray, supra note 13, at 314-16; Linda Greenhouse & Reva B. Siegel, The Difference a Whole Woman Makes: Protection for the
Abortion Right After Whole Woman's Health, 126 Yale L.J.F. 149, 151 (2016); Serena Mayeri, Opinion, How Abortion Rights Will
Die a Death by 1,000 Cuts, N.Y. Times (Aug. 30, 2018), https://www.nytimes.com/2018/08/30/opinion/brett-kavanaugh-abortion-
rights-roe-casey.html [https://perma.cc/SL5E-PJYE].
320 Dawn Johnsen, The Outer Shell, Slate (Jan. 25, 2006, 5:01 PM), https://slate.com/news-and-politics/2006/01/the-hollowing-out-
of-roe-v-wade.html [https://perma.cc/8SL4-QQP8] (contending Casey's “malleable undue-burden standard ... almost certainly will
continue to serve as the vehicle for an increasingly restrictive abortion regime”).
321 Nina Martin, The Supreme Court Decision that Made a Mess of Abortion Rights, Mother Jones (Feb. 29, 2016), https://
www.motherjones.com/politics/2016/02/supreme-court-decision-mess-abortion-rights [https://perma.cc/R449-7UFR] (calling Casey
“a clouded victory for abortion rights,” because “[e]ven as [Casey] upheld the right to abortion, the plurality opinion took [Roe]

apart”); Linda J. Wharton & Kathryn Kolbert, Preserving Roe v. Wade ... When You Win Only Half the Loaf, 24 Stan. L. & Pol'y
Rev. 143, 144-45 (2013) (characterizing Casey as a “partial victory” that “secured Roe's formal status, but w[as] unable to forestall
a plethora of burdensome abortion restrictions that increasingly threaten to make abortion services unavailable to America's most
vulnerable women”).
322 Casey, 505 U.S. at 854.
323 Id.
324 Id. at 854-55 (internal citations omitted).
325 Ramos v. Louisiana, 140 S. Ct. 1390, 1412, 1414-15 (2020) (Kavanaugh, J., concurring in part).
326 Casey, 505 U.S. at 856.
327 The statements of those in the antiabortion movement make clear these concerns that leaving Roe undisturbed as a formal matter
lends credence to the view that abortion is a constitutionally protected right. The United States Conference of Catholic Bishops notes
on its website that many Americans view Roe “as being immutable, permanent, ‘settled law”'-- “elevated ... to the stature of ‘freedom
of speech,’ ‘trial by jury’ and other bedrock American principles.” Susan E. Wills, Ten Legal Reasons to Reject Roe, U.S. Conf. of
Cath. Bishops, http://www.usccb.org/issues-and-action/human-life-and-dignity/abortion/ten-legal-reasons-to-reject-roe.cfm [https://
perma.cc/R339-VJW3].
328 Gamble v. United States, 139 S. Ct. 1960, 1981 (2019) (Thomas, J., concurring).
329 Murray, supra note 13, at 316.
330 Id. at 310.
331 Id. at 308.
332 See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 865-66 (1992).
333 Murray, supra note 13, at 310.
334 139 S. Ct. 1960 (2019).
335 Id. at 1963-64.
337 Id.
338 Id. at 1984.
339 Id.
340 Melissa Murray, Party of Five? Setting the Table for Roe v. Wade, SCOTUSblog (July 24, 2019, 3:18 PM), https://
www.scotusblog.com/2019/07/symposium-party-of-five-setting-the-table-for-roe-v-wade [https://perma.cc/VKZ8-CTSV] (“[I]n
offering this muscular vision of stare decisis and the judicial role, Thomas takes direct aim at Casey, the 1992 case that not only
upheld the right to an abortion first recognized in Roe, but also identified a series of factors that courts must weigh in determining
whether overruling an extant precedent is warranted.”); see Rebecca Falconer, Justice Thomas: Supreme Court Shouldn't Follow
Erroneous Precedent, Axios (June 18, 2019), https://www.axios.com/justice-thomas-supreme-court-erroneous-precedent-d3754206-
a7a5-4612-8932-762b3a78bf8c.html [https://perma.cc/ZAB5-U4N8]; Lawrence Hurley, U.S. Supreme Court Declines to Expand
“Double Jeopardy” Protections, Reuters (June 17, 2019, 10:34 AM), https://www.reuters.com/article/us-usa-court-doublejeopardy/
u-s-supreme-court-declines-to-expand-double-jeopardy-protections-idUSKCN1TI1TC [https://perma.cc/3URM-79TS].
341 Gonzales v. Carhart, 550 U.S. 124, 169 (2007) (Thomas, J., concurring). Indeed, in his concurrence in Gamble, Justice Thomas
specifically identified as “the most egregious example of [an] illegitimate use of stare decisis” the Court's substantive due process

jurisprudence, which includes (although it is not limited to) its abortion jurisprudence. Gamble, 139 S. Ct. at 1988-89 (Thomas, J.,
concurring).
342 Gamble, 139 S. Ct. at 1969 (quoting Arizona v. Rumsey, 467 U.S. 203, 212 (1984)).
343 E.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846, 870 (1992) (describing the Court's “unbroken commitment ... to
the essential holding of Roe,” id. at 870 (plurality opinion), and concluding this holding should be “reaffirmed,” id. at 846 (majority
opinion)); Webster v. Reprod. Health Servs., 492 U.S. 490, 556 n.11 (1989) (Blackmun, J., concurring in part and dissenting in part)
(noting the Court's “numerous cases reaffirming Roe”); Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747,
759 (1986) (“Again today, we reaffirm the general principles laid down in Roe ....”); City of Akron v. Akron Ctr. for Reprod. Health,
462 U.S. 416, 420 (1983) (“We respect [stare decisis] today, and reaffirm Roe.”).
344 163 U.S. 537 (1896).
345 Brown v. Board of Education, 347 U.S. 483, 494-95 (1954).
346 See id. at 491-92 (collecting cases).
347 See id. at 489-90.
348 Id. at 493.
349 Id. at 494.
350 Id.
351 Id.
352 379 U.S. 184 (1964).
353 106 U.S. 583 (1883).
354 Id. at 585.
355 379 U.S. at 191.
356 Id. at 188.
357 Id. at 190.
358 Id. at 192 (quoting Bolling v. Sharpe, 347 U.S. 497, 499 (1954)).
359 Loving v. Virginia, 388 U.S. 1, 10-11 (1967).
360 Id. at 10 (“The State finds support for its ‘equal application’ theory in the decision of the Court in Pace.”).
361 Id.
362 Id. at 12.
363 See Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018).
364 323 U.S. 214 (1944).
365 Id. at 218-19.
366 See id. at 216.
367 Id. at 226 (Roberts, J., dissenting) (“[This] is the case of convicting a citizen as a punishment for not submitting to imprisonment in
a concentration camp, based on his ancestry, and solely because of his ancestry ....”); id. at 242 (Murphy, J., dissenting) (“I dissent ...

from this legalization of racism.”); id. at 243 (Jackson, J., dissenting) (calling the majority's decision “an attempt to make an otherwise
innocent act a crime merely because this prisoner ... belongs to a race from which there is no way to resign”).
368 See generally Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379 (2011); Jamal Greene, Is Korematsu Good Law?, 128 Yale L.J.F.
629 (2019).
369 Greene, The Anticanon, supra note 368, at 399 (noting the Korematsu decision had not been formally overruled by the Supreme Court).
370 138 S. Ct. 2392 (2018).
371 Id. at 2423.
372 See id. at 2403-06.
373 See id. at 2420-23.
374 See id. at 2421-22.
375 Id. at 2447 (Sotomayor, J., dissenting).
376 Id. at 2423 (majority opinion) (quoting Korematsu v. United States, 323 U.S. 214, 248 (1944) (Jackson, J., dissenting)).
377 140 S. Ct. 1390, 1394 (2020).
378 Id. at 1394-95.
379 406 U.S. 404 (1972).
380 406 U.S. 356 (1972).
381 Brief for Petitioner at 6-7, Ramos, 140 S. Ct. 1390 (No. 18-5924).
382 See Apodaca, 406 U.S. at 406.
383 Johnson, 406 U.S. at 373 (Powell, J., concurring in Johnson and concurring in the judgment in Apodaca).
384 Id. at 383 (Douglas, J., dissenting); see Apodaca, 406 U.S. at 414-15 (Stewart, J., dissenting).
385 Ramos, 140 S. Ct. at 1398.
386 Id. at 1397-98.
387 Indeed, at oral argument, Justice Alito observed, “last term, the majority was lectured pretty sternly in a couple of dissents about the
importance of stare decisis and about the impropriety of overruling established rules.” Transcript of Oral Argument at 7-8, Ramos,
140 S. Ct. 1390 (No. 18-5924).
388 Ramos, 140 S. Ct. at 1408 (plurality opinion).
389 Id. at 1405.
390 Id. at 1406.
391 Id. at 1394 (citations omitted).
392 Id. (citations omitted).
393 Id.
394 See Strauder v. West Virginia, 100 U.S. 303, 310 (1880) (holding discrimination in jury selection on the basis of race violated the
Equal Protection Clause).

395 Ramos, 140 S. Ct. at 1394 (plurality opinion) (alteration in original) (quoting State v. Maxie, No. 13-CR-72522, at 57 (La. Dist. Ct.
Oct. 11, 2018)).
396 Id. (quoting State v. Williams, No. 15-CR-58698, at 16 (Cir. Ct. Or., Dec. 15, 2016)).
397 Id. at 1405 (emphasis added).
398 Id. at 1410 (Sotomayor, J., concurring in part).
399 Id. at 1408.
400 Id.
401 Id. at 1409.
402 Id. at 1410.
403 Id. at 1408.
404 Id. at 1410 (citing United States v. Fordice, 505 U.S. 717, 729 (1992) (observing that “policies that are ‘traceable’ to a State's de jure
racial segregation and that still ‘have discriminatory effects' offend the Equal Protection Clause”)).
405 Id.
406 Id. at 1412 (Kavanaugh, J., concurring in part).
407 Id.
408 Id.
409 Id. at 1414.
410 Id. at 1416.
411 Id. at 1417.
412 Id. at 1417-18.
413 Id. at 1418.
414 See, e.g., Roe v. Wade, 410 U.S. 113, 174 (1973) (Rehnquist, J., dissenting) (suggesting that Roe “partakes more of judicial legislation
than” of constitutional interpretation).
415 Mary Ziegler, Opinion, Roe v. Wade Was About More than Abortion, N.Y. Times (Jan. 21, 2018), https://
www.nytimes.com/2018/01/21/opinion/roe-v-wade-abortion.html [https://perma.cc/L7J2-GGL9] (“Most scholars agreed that Roe
was a poorly reasoned opinion.”).
416 Mark Joseph Stern, The Trick that Could Bring Down Roe v. Wade, Slate (Jan. 3, 2020, 5:48 PM), https://slate.com/news-
and-politics/2020/01/roe-v-wade-scotus-brief-unworkable-trick.html [https://perma.cc/5HPC-HBA6] (noting abortion opponents'
claims that Roe has proven unworkable); e.g., Brief Amici Curiae of 207 Members of Congress in Support of Respondent and
Cross-Petitioner at 29-34, June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020) (Nos. 18-1323 & 18-1460) (arguing the Court
should reconsider Roe and Casey because they are “unworkable” precedents, id. at 29).
417 In the Court's most recent abortion-related decision, it confirmed that Casey remained good law--and relied on “the most central
principle of Roe ... a woman's right to terminate her pregnancy before viability.” June Med. Servs., 140 S. Ct. at 2135 (Roberts,
C.J., concurring in the judgment) (plurality opinion) (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 871 (1992)
(plurality opinion)).
418 Casey, 505 U.S. at 855 (majority opinion).

419 See Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1783-89 (2019) (Thomas, J., concurring). Though
Sanger's involvement with eugenics has long been widely known, discussions about Sanger's eugenics connection--and calls
for reproductive-rights advocates to renounce Sanger entirely as a figure of the movement--have increased in recent years. See
Kristan Hawkins, Opinion, Remove Statues of Margaret Sanger, Planned Parenthood Founder Tied to Eugenics and Racism,
USA Today (July 23, 2020, 4:00 AM), https://www.usatoday.com/story/opinion/2020/07/23/racism-eugenics-margaret-sanger-
deserves-no-honors-column/5480192002 [https://perma.cc/5VRB-FCEX]; Melissa Jeltsen, Reckoning with the Feminist, Eugenicist
Founder of Planned Parenthood, Huffington Post (July 31, 2020), https://www.huffpost.com/entry/margaret-sanger-eugenics-
birth-control-planned-parenthood_n_5f1f2a40c5b638cfec4893a8 [https://perma.cc/A76Z-C8A4]; Amita Kelly, Fact Check: Was
Planned Parenthood Started to “Control” the Black Population?, NPR (Aug. 14, 2015, 12:59 PM), https://www.npr.org/sections/
itsallpolitics/2015/08/14/432080520/fact-check-was-planned-parenthood-started-to-control-the-black-population [https://perma.cc/
MB23-FNX5].
420 See supra notes 253-272 and accompanying text.
421 Allison Orr Larsen, The Trouble with Amicus Facts, 100 Va. L. Rev. 1757, 1758 (2014); Joseph D. Kearney & Thomas W. Merrill,
The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. Pa. L. Rev. 743, 752 (2000).
422 Larsen, supra note 421, at 1777 (“Supreme Court Justices, like the rest of us, seem to be craving more factual information, and the
amicus briefs are stepping in to fill the void.”). The influence of amicus facts can be seen in Gonzales v. Carhart, 550 U.S. 124 (2007),
a 2007 challenge to the federal Partial-Birth Abortion Ban. In his opinion for the majority, Justice Kennedy cited an amicus brief to
support the claim that some women later regret their abortions. Id. at 159.
423 Larsen, supra note 421, at 1784-86 (discussing circumstances in which the Court's use of brief-based assertions later proved to be
contested).
424 As the only Black member of the Court, and a conservative to boot, Justice Thomas's views may have particular weight with his
colleagues on issues of race. As Professor Guy-Uriel Charles explains, as a Black man who has experienced racism, Justice Thomas
“possesses epistemic authority and commands epistemic deference” from his colleagues. Guy-Uriel E. Charles, Colored Speech:
Cross Burnings, Epistemics, and the Triumph of the Crits?, 93 Geo. L.J. 575, 611 (2005). “He alone on the Court is positioned to
explain, on the basis of what he knows to be true and what he has experienced as a person of color, the distinctive harm caused
by [racism].” Id. And because he is a conservative, his views are unlikely to be dismissed as “political correctness.” Id. Likewise,
the addition of Justice Barrett to the Court may serve a similar function. When the question of Roe--or abortion more generally--
comes before the Court, Justice Barrett will likely be skeptical. See Adam Liptak, Barrett's Record: A Conservative Who Would Push
the Supreme Court to the Right, N.Y. Times (Nov. 2, 2020), https://www.nytimes.com/article/amy-barrett-views-issues.html [https://
perma.cc/S2V3-A8Z3] (“One area in which almost no one expects surprises [from Justice Barrett] is abortion .... Groups opposing
abortion have championed [her] nomination. And her academic and judicial writings have been skeptical of broad interpretations of
abortion rights.”). But because she is a woman, her skepticism of abortion as a means of promoting women's equality and autonomy
will likely be imbued with a kind of epistemic authority that may resonate--if not with her colleagues, then with facets of the
public. See, e.g., Ramesh Ponnuru, Opinion, In the Wings: Anthony Kennedy's Replacement Should Be Amy Barrett, Chi. Trib. (June
29, 2018, 2:45 PM), https://www.chicagotribune.com/opinion/commentary/ct-perspec-vetting-supreme-court-replacement-kennedy-
amy-barrett-0702-story.html [https://perma.cc/XG3Y-ZVXC] (arguing, in the context of Justice Kennedy's retirement, for Judge
Barrett's appointment to the Court on the ground that “[i]f Roe v. Wade is ever overturned ... it would be better if it were not done
by only male justices, with every female justice in dissent”); see also Elizabeth Dias & Adam Liptak, To Conservatives, Barrett
Has “Perfect Combination” of Attributes for Supreme Court, N.Y. Times (Oct. 26, 2020), https://www.nytimes.com/2020/09/20/us/
politics/supreme-court-barrett.html [https://perma.cc/8QKE-4Y6K] (quoting Marjorie Dannenfelser, the president of the Susan B.
Anthony List, an antiabortion political group, as saying “[Judge Barrett] is the perfect combination of brilliant jurist and a woman
who brings the argument to the court that is potentially the contrary to the views of the sitting women justices”). In a similar vein,
Justice Barrett, who is the mother of two Black children and a child with Down syndrome, may also be vested with a degree of
authority on the question of trait-selection abortion restrictions functioning as antidiscrimination measures. See Dias & Liptak, supra
(“Judge Barrett and her husband, Jesse Barrett ... have seven children, all under 20, including two adopted from Haiti and a young
son with Down syndrome ....”).
425 See Ramos v. Louisiana, 140 S. Ct. 1390, 1410 (2020) (Sotomayor, J., concurring in part).

426 Id. at 1394-95 (majority opinion).

427 See id. at 1417-18 (Kavanaugh, J., concurring).
428 Indeed, in Gonzales v. Carhart, a disputed narrative about abortion regret appeared to sway Justice Kennedy, who provided the crucial
fifth vote to uphold the Partial-Birth Abortion Ban. Reva B. Siegel, The Right's Reasons: Constitutional Conflict and the Spread of
Woman-Protective Antiabortion Argument, 57 Duke L.J. 1641, 1690-91 (2008).
429 E.g., Brief Amicus Curiae of Pro-Life Legal Defense Fund et al. in Support of Rebekah Gee at 32 n.9, June Medical Servs. L.L.C.
v. Russo, 140 S. Ct. 2103 (2020) (Nos. 18-1323, 18-1460); Brief of African American Pro-Life Organizations as Amici Curiae in
Support of Rebekah Gee at 8, June Med. Servs., 140 S. Ct. 2103 (Nos. 18-1323, 18-1460); Brief of Amicus Curiae Foundation for
Moral Law in Support of Rebekah Gee at 21 n.9, June Med. Servs., 140 S. Ct. 2103 (Nos. 18-1323, 18-1460).
430 Brief Amicus Curiae of Pro-Life Legal Defense Fund et al. in Support of Rebekah Gee, supra note 429, at 31.
431 Id. at 31-32.
432 Brief of African American Pro-Life Organizations as Amici Curiae in Support of Rebekah Gee, supra note 429, at 8-9 (quoting
Donald T. Critchlow, Intended Consequences: Birth Control, Abortion, and the Federal Government in Modern America 142 (1999)).
433 Brief of Amicus Curiae Foundation for Moral Law in Support of Rebekah Gee, supra note 429, at 21 n.9.
434 550 U.S. 124 (2007).
435 Id. at 147; 18 U.S.C. § 1531.
436 Gonzales, 550 U.S. at 159.
437 Id. at 183 (Ginsburg, J., dissenting).
438 Emily Bazelon, Is There a Post-Abortion Syndrome?, N.Y. Times Mag. (Jan. 21, 2007), https://www.nytimes.com/2007/01/21/
magazine/21abortion.t.html [https://perma.cc/BAT6-F938].
439 Siegel, supra note 428, at 1648-49.
440 For a broader discussion of the feedback loop between the Court and nonjudicial actors in the creation of constitutional meaning,
see Lani Guinier, The Supreme Court, 2007 Term-- Foreword: Demosprudence Through Dissent, 122 Harv. L. Rev. 4, 60 (2008)
(“Constitutional law ... is not autonomous from the beliefs and values of nonjudicial actors and mobilized constituencies.”); and Jack
M. Balkin & Reva B. Siegel, Essay, Principles, Practices, and Social Movements, 154 U. Pa. L. Rev. 927, 928 (2006) (“[P]olitical
contestation plays an important role in shaping understandings about the meaning and application of constitutional principles.”).
441 Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1784 (2019) (Thomas, J., concurring).
442 To be sure, I do not mean to say that in discussing race, Justice Thomas has always behaved opportunistically. As a Justice, he has
evinced considerable interest in exploring racial inequities--perhaps more so than any other Justice in the Court's conservative wing.
Rather, this Article surfaces the ways in which abortion opponents have begun to--and will likely continue to--co-opt principles of
racial equity in the abortion debate, relying on arguments set forth in large part by Justice Thomas.
443 Sarah London, Reproductive Justice: Developing a Lawyering Model, 13 Berkeley J. Afr.-Am. L. & Pol'y 71, 76 (2011).
444 See Roberts, supra note 44, at xv (discussing the “structural causes of racial disparities in abortion rates--poverty, lack of access to
contraception, and inadequate sex education”).
445 Murray, supra note 302.
446 See supra pp. 2041-42.
447 See supra pp. 2041-42. Critically, the way in which Justice Thomas dismisses--or ignores--the views of Black women challenging the
Black nationalist account of racial genocide and paints Black women as accomplices in deracination recalls his 1991 confirmation

hearings. There, in the face of Professor Anita Hill's sexual harassment claims, his supporters presented then-Judge Thomas as the
embattled standard-bearer of the Black community, while depicting Professor Hill as a treacherous Black woman intent on tearing
down a Black man, and with him, the Black community's hopes. For a more robust discussion of these dynamics, see Kimberlé
Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241,
1298 (1991).
448 See supra pp. 2041-42.
449 See supra pp. 2041-42.
450 See supra pp. 2043-48.
451 See Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1791 (2019) (Thomas, J., concurring).
452 See Rausch, supra note 161, at 31; Goodwin & Chemerinsky, supra note 161, at 1330. To be sure, these concerns are not limited to
those in the reproductive justice movement. Katrina Jackson, the state representative who introduced and sponsored the Louisiana
admitting privileges restriction challenged in June Medical Services v. Russo, maintains that opposition to abortion can coexist with
redistributivist calls for a more robust social safety net. See Lauretta Brown, Pro-life Democrat Katrina Jackson Marches for Life,
Writes Louisiana Legislation, Nat'l Cath. Reg. (Jan. 21, 2020), https://www.ncregister.com/news/pro-life-democrat-katrina-jackson-
marches-for-life-writes-louisiana-legislation [https://perma.cc/8E4E-TEMV] (reporting Representative Jackson's claim that “[p]ro-
lifers and those who are pro-abortion ... might not ever agree on the sanctity of life, but we can agree on the woman receiving
proper health care during her pregnancy; and around this country and in the state of Louisiana we're having to address the high
[maternal] mortality rate that has been developing” (second alteration in original)). Characterizing herself as a “whole life Democrat,”
Representative Jackson, who is a Black woman, insists that her concern with supporting Black life “from the womb to the tomb” is
reflected in her opposition to abortion and efforts to improve maternal health and access to health care among minorities in Louisiana.
See Valerie Richardson, “Whole Life Democrats” Seek to Redefine Party's Stance on Abortion, Wash. Times (June 6, 2019), https://
www.washingtontimes.com/news/2019/jun/6/katrina-jackson-whole-life-democrat-abortion-posit [https://perma.cc/2C72-4JUK].
453 See supra pp. 2043-48.
454 At present, the Hyde Amendment continues to limit the use of Medicaid funds for abortion services. See Hyde Amendment, supra
note 209. But importantly, its impact is felt even beyond the realm of public insurance. See Khiara M. Bridges, Elision and Erasure:
Race, Class, and Gender in Harris v. McRae, in Reproductive Rights and Justice Stories, supra note 136, at 117, 134. Under the
Affordable Care Act (ACA), “individuals with incomes that exceed Medicaid limits, but do not exceed 400 percent of the federal
poverty level, receive federal subsidies that they can use to purchase private health insurance on health insurance exchanges.” Id.
However, under the ACA, “these federal subsidies cannot be used to purchase insurance coverage for abortion services.” Id. In this
regard, “the Hyde Amendment now reaches beyond the realm of public insurance, affecting more than just the poor.” Id.
455 Harris v. McRae, 448 U.S. 297, 316 (1980).
456 See generally Jill E. Adams & Jessica Arons, A Travesty of Justice: Revisiting Harris v. McRae, 21 Wm. & Mary J. Women & L. 5
(2014) (discussing the impact of Harris on low-income women and the need to overrule the decision).
457 See Elizabeth Jones, Note, Looking Back to Move Forward: An Intersectional Perspective on Harris v. McRae, 1 Geo. J.L. & Mod.
Critical Race Persps. 379, 379-80 (2009).
458 Brief Amici Curiae of the Ass'n of Legal Aid Attorneys, et al. at 16, Harris, 448 U.S. 297 (No. 79-1268).
459 Id. at 17.
460 Brief of Amici Curiae Law Professors Melissa Murray et al. in Support of Petitioners at 13, Whole Woman's Health v. Hellerstedt,
136 S. Ct. 2292 (2016) (No. 15-274); Brief of Amici Curiae National Women's Law Center et al. in Support of Petitioners at 18,
22-24, Whole Woman's Health, 136 S. Ct. 2292 (No. 15-274); Brief Amici Curiae for Organizations and Individuals Dedicated to
the Fight for Reproductive Justice--Women with a Vision et al.--in Support of Petitioners at 24, June Med. Servs. L.L.C. v. Russo,
140 S. Ct. 2103 (2020) (Nos. 18-1323, 18-1460); Brief of Amici Curiae America College of Obstetricians and Gynecologists et al.
in Support of June Medical Services, L.L.C., et al. at 23, June Med. Servs., 140 S. Ct. 2103 (Nos. 18-1323, 18-460); Brief of Amici
Curiae National Women's Law Center et al. in Support of June Medical Services L.L.C. at 3, June Med. Servs., 140 S. Ct. 2103 (Nos.

18-1323, 18-1460). This view was also reiterated by the Seventh Circuit in its disposition of Planned Parenthood of Wisconsin, Inc.
v. Schimel, 806 F.3d 908, 919 (7th Cir. 2015), when it described the strain that low-income women would face if required to travel
to Chicago to obtain a late-term abortion.
461 See generally Whole Woman's Health, 136 S. Ct. 2292; June Med. Servs., 140 S. Ct. 2103.
462 Loretta J. Ross & Rickie Solinger, Reproductive Justice: An Introduction 123-24 (2017); Susan A. Cohen, Abortion and Women of
Color: The Bigger Picture, Guttmacher Pol'y Rev., Summer 2008, at 2, 4-5.
463 See Cohen, supra note 462, at 4.
464 See id. at 4-5.
465 Id.
466 Id.
467 Id.
468 West, supra note 167, at 1427.
469 See generally Jeffrey Rosen, Essay, The Color-Blind Court, 45 Am. U. L. Rev. 791 (1996); Scott D. Gerber, Justice Clarence Thomas
and the Jurisprudence of Race, 25 S.U. L. Rev. 43 (1997); Cedric Merlin Powell, Blinded by Color: The New Equal Protection, the
Second Deconstruction, and Affirmative Inaction, 51 U. Mia. L. Rev. 191 (1997). See also Kendall Thomas, Racial Justice: Moral
or Political?, 17 Nat'l Black L.J. 222, 224 (2002-2004) (discussing Justice Thomas's and Justice Scalia's “commitment to color-
blindness”); Rogers M. Smith, Black and White After Brown: Constructions of Race in Modern Supreme Court Decisions, 5 U. Pa. J.
Const. L. 709, 725-29 (2003) (noting that Justice Thomas's views on race have influenced other Justices); Christopher W. Schmidt,
Essay, Brown and the Colorblind Constitution, 94 Cornell L. Rev. 203 (2008) (discussing the impact of colorblind constitutionalism
on cases post-Brown).
470 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).
471 See Schmidt, supra note 469, at 203-04.
472 Id.
473 Id. at 204 n.8.
474 United Jewish Orgs. of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 167-68 (1977) (concluding, in the context of a state's use of
affirmative action principles to enhance minority voting representation in particular districts, that there was not unconstitutional
discrimination); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 305-08 (1978) (considering the appropriate standard of review
for race-conscious measures that are intended to ameliorate the effects of discrimination); Fullilove v. Klutznick, 448 U.S. 448, 472-73
(1980) (considering, in the context of a federal legislative program, the appropriate standard of review for race-conscious measures
that are intended to remedy the effects of discrimination); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (concluding
that strict scrutiny is the appropriate standard of review for race-conscious programs aimed at ameliorating past discrimination);
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995) (concluding that strict scrutiny is the appropriate standard of review
for race-conscious measures); Johnson v. California, 543 U.S. 499, 512-13 (2005) (holding that colorblind reasoning requires strict
scrutiny of the practice of segregating prisoners).
475 Schmidt, supra note 469, at 214.
476 See, e.g., Adarand Constructors, 515 U.S. at 226; J.A. Croson Co., 488 U.S. at 493 (“Absent searching judicial inquiry into the
justification for such race-based measures, there is simply no way of determining what classifications are ‘benign’ or ‘remedial’ and
what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics. Indeed, the purpose of
strict scrutiny is to ‘smoke out’ illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough
to warrant use of a highly suspect tool.”); Jed Rubenfeld, Essay, Affirmative Action, 107 Yale L.J. 427, 428 (1997) (“One powerful
function of strict scrutiny has always been that of ‘smoking out’ invidious purposes masquerading behind putatively legitimate public
policy.”); see also Case Comment, Civil Rights--Do “Skepticism,” “Consistency,” and “Congruence” Foreshadow a Color-Blind

Future? Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995), 69 Temp. L. Rev. 1521, 1527-31, 1534 (1996) (discussing cases
in which the Court considered the appropriate level of scrutiny for remedial race-based classifications).
477 438 U.S. 265.
478 Ian Haney-López, Intentional Blindness, 87 N.Y.U. L. Rev. 1779, 1826 n.202 (2012) (“Though Powell cast the decisive vote upholding
the challenged program, he did so only after holding that strict scrutiny should apply. Making this victory even more costly, Powell
went on to hold that the government's sole cognizable interest lay in increasing diversity in the classroom.”).
479 488 U.S. 469.
480 See id. at 494 (plurality opinion); id. at 520 (Scalia, J., concurring in the judgment).
481 See Haney-López, supra note 478, at 1783, 1832.
482 Id. at 1783.
483 See id.
484 Id.
485 Id.
486 Id. at 1806.
487 See id. at 1806, 1846.
488 135 S. Ct. 2507 (2015).
489 Id. at 2530 (Thomas, J., dissenting) (second alteration in original) (emphasis added) (quoting Parents Involved in Cmty. Schs. v.
Seattle Sch. Dist. No. 1, 551 U.S. 701, 750 (2007) (Thomas, J., concurring)). As scholars have noted, Justice Thomas's view of
disparate impact liability is strongly informed by the work of Professor Thomas Sowell. Robin, supra note 302, at 7, 120; Reva B.
Siegel, The Supreme Court, 2012 Term--Foreword: Equality Divided, 127 Harv. L. Rev. 1, 26 (2013) (discussing Sowell's influence
in the disparate impact context). As Sowell argues, “there are many reasons, besides genes and discrimination, why groups differ in
their economic performances and rewards.” Thomas Sowell, Civil Rights: Rhetoric or Reality? 42 (1984).
490 Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1787 n.4 (2019) (Thomas, J., concurring) (quoting Thomas Sowell,
Discrimination and Disparities 25 (rev. ed. 2019)).
491 Id. (quoting Inclusive Cmtys., 135 S. Ct. at 2530 (Thomas, J., dissenting)).
492 Id. at 1791.
493 See supra pp. 2079-83.
494 See Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018).
495 See id.
496 Id.
497 See id. at 2417-18, 2420-23.
498 See id. at 2403-04.
499 See id. at 2418.
500 Ramos v. Louisiana, 140 S. Ct. 1390, 1394 (2020).
501 See id. at 1401.

502 509 U.S. 630 (1993).

503 See id. at 647.
504 347 U.S. 475 (1954).
505 See id. at 478.
506 481 U.S. 279 (1987).
507 See id. at 291-300; id. at 321-22, 325-35 (Brennan, J., dissenting); id. at 349-61 (Blackmun, J., dissenting).
508 539 U.S. 306 (2003).
509 Id. at 343.
510 570 U.S. 529 (2013).
511 Id. at 547-48.
512 See Justin Driver, Essay, Recognizing Race, 112 Colum. L. Rev. 404, 412-26 (2012) (discussing the judiciary's decisions as to when,
and how, to recognize issues of race in its jurisprudence).
513 See Khiara M. Bridges, Race, Pregnancy, and the Opioid Epidemic: White Privilege and the Criminalization of Opioid Use During
Pregnancy, 133 Harv. L. Rev. 770, 830 n.375 (2020).
514 See Haney-López, supra note 478, at 1784.
515 Cf. Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 767-68 (2011).
516 Press Release, Planned Parenthood of Greater N.Y., Planned Parenthood of Greater New York
Announces Intent to Remove Margaret Sanger's Name from NYC Health Center (July 21,
2020), https://www.plannedparenthood.org/planned-parenthood-greater-new-york/about/news/planned-parenthood-of-greater-new-
york-announces-intent-to-remove-margaret-sangers-name-from-nyc-health-center [https://perma.cc/6AYN-2NH2].
517 Id.
518 June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2113 (2020) (plurality opinion).
134 HVLR 2025

Works.

3. STATE RESTRICTIONS ON ABORTION AS VIOLATION OF..., 87 Harv. L. Rev. 75
87 Harv. L. Rev. 75
Harvard Law Review

November, 1973
A. Due Process
Copyright (c) 1973 by the Harvard Law Review Association
3. STATE RESTRICTIONS ON ABORTION AS VIOLATION OF DUE PROCESS RIGHT OF PRIVACY

In Roe v. Wade1 and Doe v. Bolton,2 the Supreme Court ruled last Term that the Texas and Georgia statutes *76 regulating
abortion3 interfered to an unconstitutional extent with a woman's right to decide whether to terminate her pregnancy.
The principal plaintiff in Roe, an unmarried pregnant woman who wanted an abortion,4 sought injunctive and declaratory relief
from a three-judge federal district court on the ground that the Texas law, which forbade all abortions not necessary “for the
purpose of saving the life of the mother,”5 unconstitutionally “deprive[d] married couples and single women of the right to
choose whether to have children.”6 The court responded by declaring that the Texas statute impermissibly interfered with the
plaintiff's right to privacy.7
The principal plaintiff in Doe was a married pregnant woman8 who had applied for a therapeutic abortion under the more liberal
*77 Georgia statute9 but who had failed to satisfy the law's requirement of prior approval by a hospital committee.10 A three-
judge district court held that while a state may not restrict the reasons for which a woman may choose to have an abortion, it
may regulate the medical procedure and require that physicians and others concur in her decision.11
On appeal12 the Supreme Court, in opinions delivered by Justice Blackmun, affirmed, 7-2,13 the lower court holdings that the
state statutes had impermissibly restricted the reasons for which abortions could be performed. The Court held that the woman's
interest in the abortion decision falls within a constitutionally protected “zone of privacy” and may therefore be outweighed
only by “compelling” state interests.14 Balancing the woman's interest against those asserted by the state, the Court concluded
that the state interests justified only limited governmental interference in the abortion decision.15
In Roe, the state had asserted (1) that its interest in protection of maternal health justified careful regulation;16 (2) that, in the
judgment of the Texas legislature, human life begins at conception and limitations on abortion are therefore justified in order
to preserve human life;17 and (3) that, regardless of when human life may actually begin, the state's interest in protecting the
fetus *78 as potential life is itself sufficiently compelling to warrant state regulation of abortion.18 The Court held, first, that
protection of maternal health justifies regulation of abortion procedures that is objectively related to the mother's safety.19 The
Court then rejected the human life argument and accepted the potential life claim only with reference to abortions performed
after viability, the point at which a fetus can survive with artificial aid outside the mother's body.20
*79 Regarding the state's argument that abortion laws protect human life in utero, the Court found that the state had not met its
burden of proof that life begins before birth. The Court noted the lack of consensus among medical and religious authorities as

to when life begins and the refusal of tort and property law to recognize rights in the unborn absent subsequent live birth.21 In
this situation, the Court held, a state legislature could not assert a compelling interest based solely on “one theory of life.”22 The
Court did hold, however, that the state's interest in protecting the fetus as potential human life becomes compelling at viability,23
although even then the state cannot proscribe abortions necessary to protect the mother's life or health.24
This analysis produced a three-part holding summarized in Roe:25
(a) For the stage prior to approximately the end of the first trimester [of pregnancy], the abortion decision and its
effectuation must be left to the medical judgment of the pregnant woman's attending physician.
*80 (b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest
in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related
to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if
it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment,
for the preservation of the life or health of the mother.
In Doe the Court also struck down, as an excessive restriction on the woman's right to terminate her pregnancy, state requirements
that abortions be performed only at accredited hospitals and only after approval by two consulting physicians and a hospital
committee.26
The Court's holding that the right of privacy extends to the abortion decision purports to protect interests which have received
constitutional protection in previous cases.27 Noting that prior decisions had “found at least the roots of … [a] guarantee of
personal privacy” in various amendments to the Constitution or their penumbras,28 the Court characterized the right to privacy
as grounded in “the Fourteenth Amendment's concept of personal liberty and restrictions upon state action.”29 Regarding the
scope of the right, the Court stated that it includes “only personal rights that can be deemed ‘fundamental’ or ‘implicit in the
concept of ordered liberty”’30 and bears “some extension to activities relating to marriage, procreation, contraception, family
relationships, *81 and child rearing and education.”31 Such a right is “broad enough,” concluded the Court, to encompass the
abortion decision.32 However, Roe appears to extend the privacy right well beyond the limits suggested by prior decisions. By
failing to provide a new set of limitations, the Court gave no guidance to lower courts regarding the scope of the guarantee and
left its holding without a firm constitutional basis.33
In Griswold v. Connecticut34 Justice Douglas, writing for the Court, emphasized the close relationship between specific
guarantees of the Bill of Rights and the privacy interests endangered by the Connecticut law forbidding use of contraceptives by
married couples.35 He linked the marital relationship to political associations protected by the penumbra of the first amendment,
and he related the privacy of the marital bedroom to interests protected by the fourth and fifth amendments.36 Moreover, in
Stanley v. Georgia37 the Court relied heavily on the first amendment “right to receive information and ideas”38 to invalidate a
statute forbidding mere private possession of obscene materials. The Court held that such a law unconstitutionally presumed
to “reach into the privacy of one's own home” and dictate “what books [one] may read or what films [one] may watch.”39 The

reasoning of both Griswold and Stanley indicates an intention *82 to limit the right of privacy to situations in which Bill of
Rights guarantees are closely involved.40
Another set of limitations on the extent of the privacy right is suggested by Justice Harlan's view of substantive due process
under the fourteenth amendment. Dissenting in Poe v. Ullman41 from the Court's dismissal of an earlier challenge to the same
anticontraception law invalidated in Griswold, Justice Harlan examined the statute's invasion of marital privacy in the light
of past governmental practices and court decisions and found the statute inconsistent with the respect with which the state
has “always and in every age” regarded the “intimacy of husband and wife.”42 He argued that the due process clause protects
“fundamental” liberties “derived from … considerations deeply rooted in reason and in the compelling traditions of the legal
profession.”43 To be sure, Justice Harlan allowed for firmly established developments in legal thinking which might carry the
definition of privacy beyond strictly traditional bounds. Yet the point remains that in his view the right was limited to matters
which have generally come to be regarded as predominantly private.44
In Roe, Justice Blackmun made no clear attempt to link the woman's interest in the abortion decision either to specific Bill
of Rights guarantees or to the traditional concerns of American law. Nor does it appear that resort to either of these sources
could have supported the Court's holding that the right of privacy extends to the abortion decision. First, by extending the right
to choose an abortion to an unmarried woman, Roe reached beyond the marital relationship. It would be difficult, therefore,
to link the holding closely to either the penumbral first amendment right of association or traditional regard for a particular
relationship.45 Second, the laws invalidated in Roe, unlike those struck *83 down in Griswold and Stanley, did not presume to
proscribe activities which take place in areas that the fourth amendment indicates may reasonably be expected to be private.46
By broadening the definition of the right of privacy beyond previous limits,47 Roe seems to require that a wide variety of laws
regulating family matters and sexual activity be looked upon as impinging on a fundamental privacy interest. Laws which have
heretofore been viewed as not affecting the privacy right, such as those proscribing sexual activity between unmarried adults,48
would therefore be subject to strict scrutiny under the compelling interest test.
However, the Court's handling of the asserted state interests suggests several grounds on which laws affecting other interests
apparently within the broad right of privacy set out in Roe may be distinguished from the abortion statutes.49
*84 In a lengthy historical discussion of the abortion laws,50 the Court indicated its belief that such laws were not fully
established in the legal tradition of state regulation of personal matters. Justice Blackmun concluded that until a century
ago, “abortion was viewed with less disfavor than under most American statutes currently in effect…. [A] woman enjoyed a
substantially broader right to terminate a pregnancy than she does in most States today.”51 Seen in this perspective, abortion
laws may be distinguished from those which also interfere with private matters but which, in Justice Harlan's words, “form a
pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that
basis.”52 Roe leaves open the possibility that such laws may be entitled to more respect and less severe scrutiny.
Furthermore, assessment of the state interests asserted in Roe was peculiarly bound up with highly subjective and religiously
permeated questions.53 As the Court noted, there exists no definite secular consensus on the question of when life begins or
indeed on the morality of abortion.54 The state must therefore choose among deeply felt, religiously influenced views or make
no choice at all.55 Other laws affecting interests within the privacy right may be looked upon more favorably if they reflect
the predominant moral view of the society. Abortion laws may also be distinguished from other forms of “morals legislation”
which proscribe activities that more clearly harm the public welfare in an objective, material sense.56 It seems more difficult
to explain in terms of objective effects how the public welfare suffers by the loss of a potential life than to explain how a law
allowing free dissolution of marriage, for example, may lead to social hurt.

Although the Court has made clear, at least in the area of obscenity, that it desires to restrict the use of Roe and Doe to strike
down laws dealing with personal affairs,57 the reasoning of these cases appears to extend the scope of the privacy right well
beyond *85 prior holdings of the Court and to require strict scrutiny of many familiar laws. Roe and Doe are not wholly
inconsistent, however, with a prediction that legislation deeply rooted in American legal tradition and supported by widely held,
secular views will not readily be overturned.
Footnotes
1 410 U.S. 113 (1973).
2 410 U.S. 179 (1973).
3 Ga. Code §§ 26-1201 to -1203 (1972); Tex. Penal Code tit. 15, ch. 9, arts. 1191-94, 1196 (1961).
4 The principal plaintiff was joined in the lower court by a physician facing prosecution under the Texas abortion statute. The Supreme
Court dismissed his complaint in view of the pending state indictment. 410 U.S. at 126-27. In addition, a married couple filed a
companion complaint alleging that the wife's health required her to avoid both pregnancy and birth control pills and that she would
therefore desire an abortion should she become pregnant. The lower court dismissed this complaint as too speculative, and the Supreme
Court affirmed. See Roe v. Wade, 314 F. Supp. 1217, 1225 (N.D. Tex. 1970) (three-judge court) (per curiam), aff'd, 410 U.S. at 128-29.
5 Tex. Penal Code tit. 15, ch. 9, art. 1196 (1961).
6 Roe v. Wade, 314 F. Supp. 1217, 1219 (N.D. Tex. 1970) (three-judge court) (per curiam). The physician plaintiff-intervenor also
argued that the Texas abortion statute was unconstitutionally vague, and the lower court agreed. See id. at 1223. Since the Supreme
Court invalidated the statute on other grounds, it did not consider this argument. See 410 U.S. at 164. This approach has been criticized
as having favored a broad ground of decision over a plausible narrower one. See Ely, The Wages of Crying Wolf: A Comment on Roe
v. Wade, 82 Yale L.J. 920, 922 (1973). But the Court's previous decision in Vuitch v. United States, 402 U.S. 62 (1971), rejecting
a vagueness challenge to a similarly worded District of Columbia law, D.C. Code Ann. § 22-201 (1967), and the Roe Court's use
of similar language to describe the limits of permissible state interference in the abortion of viable fetuses, see 410 U.S. at 165,
indicate that the Court probably would not have found the Texas statute unconstitutionally vague. See Doe v. Bolton, 410 U.S. 179,
191-92 (1973).
7 314 F. Supp. at 1221-23. The lower court, however, abstained from granting injunctive relief. See id. at 1224, aff'd, 410 U.S. at 166.
8 The principal plaintiff was joined by physicians, social workers, and others, see Doe v. Bolton, 410 U.S. 179, 184 (1973), who claimed
that the Georgia law unconstitutionally restricted them in the practice of their professions by limiting their freedom to perform or
counsel abortions. See Doe v. Bolton, 319 F. Supp. 1048, 1052 (N.D. Ga. 1970) (three-judge court) (per curiam). On the ground that
the physicians were faced with a genuine threat of criminal prosecution if they performed abortions in Georgia, the Supreme Court
reversed the lower court's dismissal of the physicians' complaint. 410 U.S. at 188-89; cf. note 4 supra.
9 The statute permitted abortions when continued pregnancy seriously threatened the mother's life or health, when the fetus was very
likely to have severe birth defects, or when the pregnancy resulted from rape. Ga. Code § 26-1202(a) (1972).
10 319 F. Supp. at 1054; see Ga. Code 26-1202(b)(5) (1972).
11 319 F. Supp. at 1055.
12 In Roe, plaintiffs appealed from the denial of injunctive relief, see note 7 supra, and the defendant cross-appealed from the grant of
the declaratory judgment. Although 28 U.S.C. § 1253 (1970) does not authorize direct appeal to the Supreme Court from a grant or
denial of declaratory relief by a three-judge district court, the Court took jurisdiction of defendant's appeal as pendent to plaintiffs'.
See 410 U.S. at 123. In Doe, however, the Court accepted jurisdiction over the plaintiffs' appeal of the district court's failure to give
injunctive relief, 410 U.S. at 187, but declined to take jurisdiction over defendant's appeal from the grant of declaratory relief. Bolton
v. Doe, 402 U.S. 936 (1971).

Both cases were first argued during the 1971 Term before Justices Powell and Rehnquist had taken their seats, and were reargued
on October 11, 1972.
13 Six Justices joined in Justice Blackmun's opinions. The Chief Justice and Justices Douglas and Stewart also filed concurring opinions.
Justice White filed a dissenting opinion, in which Justice Rehnquist joined. Justice Rehnquist filed two dissenting opinions.
14 Roe v. Wade, 410 U.S. 113, 155 (1973). The Court expressly declined to consider whether the father or the woman's parents may
interfere with the decision of a woman and her doctor to terminate her pregnancy. Id. at 165 n.67; cf. Tribe, Foreword: Toward a
Model of Roles in the Due Process of Life and Law, supra p.1, at 38-41.
15 410 U.S. at 162-64.
16 Id. at 148-50.
17 Id. at 159.
18 Id. at 150.
19 The holding appears to be that the state may regulate abortion procedures only to the extent that it regulates any other medical
operation of equal dangerousness. Thus, the state could require that abortions be performed only at licensed facilities and by licensed
personnel and could tighten its requirements during the later stages of pregnancy, when the dangerousness of abortion increases.
Difficulties in interpretation arise, however, from the Court's statement that the state's interest in maternal health abruptly becomes
compelling at the point in pregnancy, “approximately the end of the first trimester,” when mortality rates for abortions rise above
those for births. 410 U.S. at 163; see Tribe, supra note 14, at 3-4, 29-30. There is, for example, language suggesting that the state
may not regulate abortion procedures at all prior to the end of the first trimester. See Comment, In Defense of Liberty: A Look at the
Abortion Decisions, 61 Geo. L.J. 1559, 1569-70 (1973). Justice Blackmun stated that during this period the decision of patient and
doctor to terminate pregnancy “may be effectuated by an abortion free of interference by the State,” 410 U.S. at 163, and listed routine
licensing of personnel and facilities performing abortions among the sorts of regulation a state may impose after the compelling point.
Id. And in Doe the Court forbade the state to require that first trimester abortions be performed in a licensed hospital, even though
the same requirement might be applied to the “performance of non-abortion surgery.” See 410 U.S. at 193, 195.
However, the Court recognized that some regulation of abortion procedures during the first trimester may be justified by the state's
interest in the mother's health. Thus, it ruled that “the State must show more than it has in order to prove that only the full resources
of a licensed hospital, rather than those of some other appropriately licensed institution, satisfy [the state's] health interests [during
the first trimester].” Id. at 195 (emphasis supplied). It is reasonable to conclude, therefore, that the state may regulate the abortion
procedure during the first trimester if it can prove that the mother's health requires it. See Tribe, supra note 14, at 29-30.
The care with which the Court will examine such regulation is illustrated by Doe's invalidation of statutory requirements that abortions
be performed only in hospitals accredited by the Joint Committee on Accreditation of Hospitals and only after approval by two
consulting physicians and a hospital committee. See 410 U.S. at 193-94, 197, 199-200.
20 See Roe v. Wade, 410 U.S. 113, 160 (1973). By placing viability at the point where a fetus can survive with artificial aid, the Court
conditioned the degree of permissible governmental interference in the abortion decision on the state of medical technology and
apparently would allow a restriction of the woman's privacy right as technology progresses. Cf. Tribe, supra note 14, at 3 n.18.
However, the Court's requirement that the state allow abortions of viable fetuses for the purpose of protecting the mother's health
would appear to reduce the importance of any increase in state regulation allowed by technological change. Cf. note 24 infra.
21 410 U.S. at 160-62.
22 Id. at 162. The Court described the medical and other authorities as “unable to arrive at any consensus.” Id. at 159. This description
appears to leave the Court free to find a compelling state interest based on moral or philosophical grounds in situations in which such
a consensus does appear to exist. See p. 84 infra.
23 410 U.S. at 163. At viability the distinction between potential life and actual human life depends simply on whether the fetus continues
to remain in the womb; and the state's interest in the fetus has therefore become much less speculative. Cf. Clark, Religion, Morality,
and Abortion: A Constitutional Appraisal, 2 Loy. L.A. L. Rev. 1, 9-10 (1969).
24 410 U.S. at 163-64. The Court does not explain why the mother's health remains more important than the potential life of a fetus
capable of being removed alive. See Heymann & Barzelay, The Forest and the Trees: Roe v. Wade and its Critics, 53 B.U. L. Rev.

765, 766 n.12 (1973). The practical effect of this part of the decision is particularly unclear. It would not seem inconsistent with
the logic of Roe for a state to require that viable fetuses be removed alive whenever possible. Cf. Tribe, supra note 14, at 4 n.24,
27 & n.118, 29 n.131. However, the holding appears to bar such a requirement if live removal would increase the dangerousness
of the abortion procedure.
25 410 U.S. at 164-65. Although only the Texas and Georgia anti-abortion laws were at issue, the Court took note of the laws of the
other states and of the District of Columbia. See id at 118 n.2, 139 n.35, 140 n.37. None meets the standards set out in Roe. The most
liberal statutes are invalid under these standards because, although they do not restrict the purposes for which abortions of nonviable
fetuses may be performed, they limit abortions of viable fetuses to those necessary to protect the mother's life, compare id. at 164-65
with Alaska Stat. § 11.15.060 (1970), Hawaii Rev. Stat. § 453-16 (Supp. 1971), and N.Y. Penal Code § 125.05(3) (McKinney Supp.
1972-73), and may also impose residency requirements for women seeking abortions, compare Doe v. Bolton, 410 U.S. 179, 200
(1973), with Alaska Stat. § 11.15.060(a)(4) (1970), and Hawaii Rev. Stat. § 453-16(a)(3) (Supp. 1971).
26 See 410 U.S. at 192-201.
27 See Heymann & Barzelay, supra note 24, at 770; Comment, supra note 19. The privacy holding in Roe was most closely presaged in
Eisenstadt v. Baird, 405 U.S. 438 (1972), in which the Court held a statute permitting sale of contraceptives only to married persons
to be a denial of equal protection. Although the Baird Court's equal protection analysis did not require any finding that the privacy
right extends to the intimate sexual behavior of unmarried persons, see The Supreme Court, 1971 Term, 86 Harv. L. Rev. 50, 119
(1972), the opinion stated in dicta that “[i]f the right of privacy means anything, it is the right of the individual, married or single,
to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear
or beget a child.” 405 U.S. at 453.
28 Roe v. Wade, 410 U.S. 113, 152 (1973).
29 Id. at 153. The Court's reliance on the due process clause as the constitutional locus of a broadly defined right of privacy, see id.; id.
at 168 (Stewart, J., concurring), appears to bring Roe into close parallel with the discredited substantive due process methodology
of Lochner v. New York, 198 U.S. 45 (1905) (holding law prescribing maximum 10-hour day for bakers to be an unreasonable
interference with the right to contract protected by the due process clause). See Ely, supra note 6, at 937-43. But see Tribe, supra
note 14, at 5-13.
30 410 U.S. at 152, quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937).
31 410 U.S. at 152-53 (citations omitted).
32 Id. at 153. The Court went on to note the practical importance of the abortion decision to a pregnant woman. Id. Such importance is
in itself irrelevant to the question of whether the abortion decision is within the constitutional privacy right, for that determination
must rest solely on whether the Constitution explicitly or implicitly affords the decision special protection. See San Antonio Indep.
School Dist. v. Rodriguez, 411 U.S. 1, 29-34 (1973), noted p. 105 infra; Doe v. Bolton, 410 U.S. 179, 221-22 (White, J., dissenting).
But cf. Tribe, supra note 14, at 42-44; p. 113 infra.
33 See note 29 supra. But see Tribe, supra note 14, at 15-25.
34 381 U.S. 479 (1965), noted in The Supreme Court, 1964 Term, 79 Harv. L. Rev. 56, 162 (1965).
35 381 U.S. at 482-86.
36 Id. It should be noted that this effort to derive a right of marital privacy from the guarantees of the Bill of Rights has been criticized
as a “belabored” attempt to avoid a substantive due process holding. See, e.g., Kauper, Penumbras, Peripheries, Emanations, Things
Fundamental and Things Forgotten: The Griswold Case, 64 Mich. L. Rev. 235, 252-54 (1965). To link marital association to the Bill
of Rights, Justice Douglas set out not a single but a double penumbra to the first amendment. First, he noted that the penumbra of the
first amendment protects associations formed for political ends. 381 U.S. at 483. Such protection, he then argued, should be extended
to marriage because, though nonpolitical, the marital relationship is a fundamental one underlying our entire way of life. Id. at 486.
37 394 U.S. 557 (1969), noted in The Supreme Court, 1968 Term, 83 Harv. L. Rev. 7, 147 (1969).
38 394 U.S. at 564.

39 Id. at 565.
40 See Griswold v. Connecticut, 381 U.S. 479, 500 (1965) (Harlan, J., concurring). But see Dixon, The Griswold Penumbra:
Constitutional Charter for an Expanded Law of Privacy?, 64 Mich. L. Rev. 197, 205-07 (1965).
41 367 U.S. 497 (1961).
42 Id. at 553.
43 Id. at 544-45, quoting Rochin v. California, 342 U.S. 165, 170-71 (1952).
44 Justice Harlan's argument was narrowly applied to the intimate internal affairs of the marital relationship. He distinguished regulation
of the “external” matters relating to marriage, such as “the legal and societal context in which children are born and brought up,” 367
U.S. at 546, as well as intimacies in less accepted relationships, such as “adultery, homosexuality, fornication, and incest,” id. at 552.
45 Although men and women arguably have an interest in pursuing sexual relations outside of marriage which the Court has previously
recognized in dictum, see note 27 supra, it is highly doubtful that this interest could be fit within the penumbral first amendment right
of association set out in Griswold, see note 36 supra, or the fundamental interest view of Justice Harlan, see note 44 supra.
46 Although abortions are ordinarily performed outside the home, the Court has suggested in an opinion handed down later in the 1972
Term that because of the special protection given by the Constitution to the intimate abortion decision a woman has a legitimate
expectation of privacy which “extends to the doctor's office [and] the hospital.” See Paris Adult Theatre I v. Slaton, 93 S. Ct. 2628,
2640 n.13 (1973), noted p. 160 infra; cf. Tribe, supra note 14, at 17 n.83. This rationale for the constitutional protection of the
performance of abortion must rest on a prior assumption that the abortion decision itself is protected; the rationale fails to explain
why there would be a reasonable expectation of such protection in the first place.
47 None of the cases cited in the Court's privacy discussion, 410 U.S. at 152-54, has established a right of privacy existing beyond the
penumbral reach of the Bill of Rights or the fundamental liberties analysis of Justice Harlan. See pp. 81-82 & notes 34-40 supra.
Some, such as Meyer v. Nebraska, 262 U.S. 390 (1923) (invalidating law prohibiting teaching of foreign languages in private schools),
have already been reinterpreted as falling within first amendment penumbras. See Griswold v. Connecticut, 381 U.S. 479, 482 (1965).
Others are plainly amenable to such analysis. See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) (holding that law prohibiting racial
intermarriage violates fundamental right to marry). However, in Skinner v. Oklahoma, 316 U.S. 535 (1942), the Court applied “strict
scrutiny” to a statute prescribing sterilization for persons convicted of certain crimes because the statute threatened procreation, a
“basic liberty.” Id. at 541. Although Skinner may be distinguished from Roe as an equal protection rather than a substantive due process
holding, the characterization of procreation as a fundamental liberty would seem quite close precedent for the abortion decision.
However, Roe goes well beyond Skinner in that the latter described the right of procreation as one traditionally accorded great respect
in our law, whereas the Roe Court identified no similar tradition of special regard for the abortion decision. See also note 27 supra.
Furthermore, Roe purported to be placing the abortion decision within a broadly described right of privacy, whereas Skinner spoke
in terms of the particular interest involved. See 316 U.S. at 541.
48 Cf. note 44 supra.
49 A theory that Roe may be distinguished in future decisions primarily with regard to the weight to be accorded asserted state interests
presupposes to some extent that the very strict “compelling interest” test will be loosened. Cf. pp. 91-93, 113-14 infra.
50 410 U.S. at 132-41.
51 Id. at 140. Of course, it hardly follows from this that the abortion decision was accorded specially protected status during the nineteenth
century or that respect for the abortion decision is a traditional feature of American constitutional law.
52 Poe v. Ullman, 367 U.S. 497, 546 (1961).
53 See 410 U.S. at 160-61.
54 See Tribe, supra note 14, at 18-25.
55 See Clark, supra note 23, at 4.

56 Cf. Emerson, Nine Justices in Search of a Doctrine, 64 Mich. L. Rev. 219, 226-27 (1965). But cf. The Supreme Court, 1964 Term,
79 Harv. L. Rev. 56, 165 & n.22 (1965).
57 See Paris Adult Theatre I v. Slaton, 93 S. Ct. 2628, 2649 & n.13, 2641 & n.15 (1973); Comment, supra note 19, at 1574; cf. note
44 supra.
87 HVLR 75

Works.

1. ABORTION RIGHTS, 97 Harv. L. Rev. 78
97 Harv. L. Rev. 78
Harvard Law Review Association

November, 1983
*78 B. Due Process
Copyright 1983 by the Harvard Law Review Association
1. ABORTION RIGHTS
Ten years ago, the Supreme Court held in Roe v. Wade1 that a woman's decision to have an abortion is protected by the
Constitution.2 Last Term, despite the furor sparked by that ruling during the intervening decade,3 the Court reaffirmed Roe.
Reviewing a wide array of statutory restrictions on abortions,4 the Court signalled its continued unwillingness5 to countenance
attempts to regulate *79 the abortion right out of existence. But in its confirmation of Roe, the Court simultaneously confirmed
that its vision of abortion as a woman's fundamental right is a severely constricted and unstable one, linked to and further limited
by the Court's persistent deference to doctors and medical technology.
In City of Akron v. Akron Center for Reproductive Health, Inc.,6 the Court, by a vote of 6-3, overturned various provisions of
Akron's sweeping abortion ordinance, including requirements that all abortions after the first trimester be performed in hospitals,
that the attending physician recite a detailed list of ‘facts' about fetal development and the risks of abortion, and that women wait
twenty-four hours after signing a consent form.7 In Planned Parenthood Association v. Ashcroft,8 a majority of the Court voted
to strike down a second-trimester hospitalization requirement, but a different majority voted to sustain provisions requiring a
pathologist's report for each abortion, the presence of a second physician at abortions performed after viability, and parental
or judicial consent for minors.9
Writing for the Court in both cases, Justice Powell used the occasion to express the majority's continuing commitment to Roe10
and its trimester framework,11 and to reject suggestions that the Court adopt a new standard that would drastically curtail the
abortion right.12 In assessing the constitutionality of the challenged provisions *80 under the Roe scheme, Justice Powell
focused on three factors: the extent of infringement of the woman's fundamental right, the justification for the regulation in light
of current medical technology, and the burden on the physician's discretion.
Accordingly, Justice Powell found that the hospitalization requirements for second-trimester abortions in Akron and Ashcroft
‘place[d] a significant obstacle in the path of women seeking an abortion,’ because they increased the cost and inconvenience of
such abortions but were not justified as a ‘reasonable health regulation.’13 Recognizing that a second-trimester hospitalization
requirement ‘had strong support at the time of Roe v. Wade,’ Justice Powell noted that, because the safety of second-trimester
abortions ‘has increased dramatically’ since then, it is now medically acceptable for many abortions to be performed outside
of hospitals.14
Justice Powell employed the same reasoning but reached a contrary result in discussing the pathology report provision at issue
in Ashcroft.15 Sustaining the requirement that a pathologist, rather than merely the attending physician, examine the tissue
removed during an abortion, Justice Powell found that the provision, which could increase the cost of abortions by twenty to

forty dollars,16 did not significantly burden the abortion right. Explicitly balancing the state's interest in protecting a woman's
health against the ‘comparatively small additional cost’ of the report, Justice Powell held that the Constitution does not require
‘that a State subordinate its interest in health to minimize to this extent the cost of abortions.’17
Justice Powell's consideration of Akron's informed consent requirements highlighted the importance of doctors' discretion.
Justice Powell dealt first with the portion of the law that specified a ‘litany of information that the physician must recite to
each woman,’18 including a description of ‘the anatomical and physiological characteristics' of the fetus, the assertion that
‘the unborn child is a human *81 life from the moment of conception,’ and the warning that abortion is ‘a major surgical
procedure.’19 Although the Court overturned this requirement because it was ‘designed not to inform the woman's consent
but rather to persuade her to withhold it altogether,’ an ‘equally decisive objection’ was that the requirement interfered with
the physician's exercise of medical discretion.20 The provision, Justice Powell wrote, put the doctor in the ‘undesired and
uncomfortable straitjacket’ that the Court had warned against in upholding a less burdensome informed consent requirement
seven years before.21
The Court had greater difficulty in overturning the more open-ended portion of Akron's ‘informed consent’ requirement. Justice
Powell conceded that requiring the attending physician to inform each patient of the risks that pregnancy and abortion would
pose for her did not unduly interfere with the physician's discretion and was clearly related to maternal health.22 Although he
acknowledged that the Court's prior abortion decisions had “stressed repeatedly the central role of the physician,”23 Justice
Powell nevertheless found that Akron's interest in ensuring informed decisionmaking could be vindicated through procedures
less expensive than face-to-face counselling with physicians.24
The Court in Ashcroft upheld for the first time a provision requiring parental or judicial consent to abortions sought by minors.
In earlier cases dealing with the issue, the Court had identified important interests—promoting family integrity and protecting
adolescents—that the state may consider in regulating minors' access to abortion.25 These interests, the Court had suggested,
permit parental or judicial veto of an immature minor's abortion decision, as long as the state provides a proceeding in which
a minor wishing to avoid parental involvement may demonstrate that she is sufficiently mature to make the abortion decision
herself26 or that, despite her immaturity, an *82 abortion would be in her best interest.27 Justice Powell construed the law at
issue in Ashcroft to provide the required alternative proceeding.28
In contrast to the six members of the majority, who adhered to Roe, Justice O'Connor and the two Roe dissenters29 argued that,
‘ e ven assuming that there is a fundamental right to terminate pregnancy in some situations,’ the Court should abandon its
‘completely unworkable’ trimester framework.30 Justice O'Connor proposed an alternative that, the majority charged, would
effectively overrule Roe.31 She urged the Court to apply at all stages of pregnancy a uniform test of whether a particular
regulation unduly burdens the abortion right; even if the regulation is unduly burdensome, Justice O'Connor added, it must
be measured against the compelling interests in protecting maternal health and potential life—interests that, she asserted,
the Court should also apply uniformly throughout pregnancy.32 Applying that test to the provisions challenged in Akron and
Ashcroft, the dissenters did not find that any of the regulations unduly interfered with the abortion right;33 to constitute an
undue burden, Justice O'Connor suggested, a regulation would have to impose ‘absolute obstacles or severe limitations on the
abortion decision.’34
Although the majority's vision of women's abortion rights is clearly *83 more expansive than that of the dissent, the decisions
nevertheless illustrate the essentially limited nature of the right declared fundamental in Roe, and continue the erosion of
women's abortion rights begun in cases involving public funding35 and minors.36 The Court quietly erected greater obstacles
to challenges of abortion regulations than any it had previously imposed, and it extended its deference to state interests even to

regulations concerning the first trimester of pregnancy. Earlier, in Planned Parenthood v. Danforth,37 the Court had sustained
recordkeeping and reporting requirements that applied during the first trimester; the Court found that these requirements had
no ‘legally significant impact,’ but cautioned that they ‘perhaps approach ed impermissible limits.’38 Although the Court
labeled the burden imposed by the Ashcroft pathology report requirement ‘comparable to that in Danforth and . . . relatively
insignificant,’39 the cost of complying with the requirement makes it substantially more onerous. The Court's willingness to
sustain such a requirement in the first trimester—a period during which, the Court has held, ‘a pregnant woman must be
permitted, in consultation with her physician, to decide to have an abortion and to effectuate that decision ‘free of interference
by the State’'40—indicates that its vision of freedom from interference is becoming increasingly narrow.41 Moreover, what little
guidance can be gleaned from comparing the waiting period overturned in Akron, for example, with the pathology report upheld
in Ashcroft42 suggests that the Court's sense of burdensomeness *84 is not triggered by cost. The Court's approach is thus
deeply insensitive to the situation of poor women.43
The Court's focus on physicians' discretion and medical technology in Akron and Ashcroft illustrates the doctrinal severing of
the abortion right from women's rights generally. Deference to doctors—a ‘judicial philosophy of ‘doctor knows best”44—was
present in Roe45 and reemerged in later cases.46 Likewise, the conditioning of abortion rights on the state of medical technology
was implicit in Roe's adoption of the trimester approach.47 Last Term's abortion cases highlight the importance of both these
considerations and suggest that the Court's reliance on doctors and medical technology is not simply rhetoric masking a more
controversial reality;48 rather, such reliance has become an integral part of the Court's vision of the abortion right.
By framing the right in terms of doctors' professional discretion, the Court avoids having to posit a woman's right, however
limited, to control her own body. The Court's position is thus ‘less susceptible to attack as affirmatively pro-abortion.’49 The
idealization of the professional obscures, both for the Court and for its audience, the underlying issue of how much control
women should be able to exercise over their own bodies.50 Similarly, by effectively ceding to organized medical groups its
authority to determine the constitutionality of abortion restrictions, the Court has avoided the difficulty of—and evaded any
blame for—drawing controversial lines.
But tying women's fundamental rights to the discretion of individual *85 doctors and to existing medical knowledge is a
deeply flawed approach with ominous implications for the future of those rights. Akron and Ashcroft suggest that the power to
decide whether a woman will have an abortion does not rest with the woman alone, but rather is shared with her doctor and with
organized medical groups. This analysis ‘ultimately relegates reproductive freedom to secondary importance.’51 The Court's
deference to doctors dulls its sensitivity when it deals with issues such as funding52 and minors53, and with provisions, like
the pathology report requirement, that do not obviously impinge on the doctor's freedom yet may impose heavy burdens on the
woman's ability to exercise her constitutional right. Moreover, although abortion is a medical procedure, the abortion decision is
primarily a moral one;54 there are few purely medical reasons for abortion.55 The issue facing the Court in abortion cases is who
shall be empowered to make that moral choice. By interposing the doctor as a paternalistic figure who steers each woman to the
‘correct’ choice,56 the Court reinforces the notion that women are incapable of rationally determining their own destinies.57
In the long run, the Court's decision to ground its abortion jurisprudence in medical technology—and consequently to avoid
confronting the basic tension between women's rights and fetal rights—will create far more problems than it solves. Given vast
improvements in prenatal care and such new technology as artificial wombs and fetal implantation, it is, in Justice O'Connor's
words, ‘certainly reasonable to believe that fetal viability in the first trimester of pregnancy may be possible in the not too distant
future.’58 Akron's reaffirmation *86 of the trimester and viability59 standards means that the Court will eventually have to
wrestle not only with the difficult question whether technological advances will utterly negate the abortion right,60 but with a
host of subsidiary issues concerning, for example, the extent to which the fetus is entitled to artificial aid and what constitutes a

‘reasonable likelihood of sustained survival.’61 Conditioning women's abortion rights on the medical technology of the moment
threatens to permit those rights to evaporate altogether.62
In one sense, Akron and Ashcroft were simply the latest in a series of cases in which legislative reaction to Roe required
the Court ‘to define the limits of a State's authority to regulate’ abortions.63 But coming a decade after Roe and in highly
charged political circumstances, the Court's reaffirmation of Roe gives the decisions symbolic significance beyond their specific
holdings. Proponents of abortion rights, worried that losses in cases involving public funding and minors boded ill for the
survival of Roe itself, have hailed the rulings as a decisive victory.64 Yet the decisions constitute a giant step forward only in
the context of an expectation that the Court would seize the opportunity to move backward instead. In fact, the Court subtly
erodes women's abortion rights even as it purports to affirm them.
Footnotes
1 410 U.S. 113 (1973).
2 Roe held that the 14th amendment right of privacy encompasses a woman's abortion decision. Id. at 153. This right, however, is
not absolute. At approximately the end of the first trimester, the state's compelling interest in maternal health allows it to impose
regulations that ‘reasonably relate[ ] to the preservation and protection of maternal health.’ Id. at 163. At the point of fetal viability,
the state's compelling interest in ‘protecting the potentiality of human life’ allows it to ‘go so far as to proscribe abortion during that
period, except when it is necessary to preserve the life or health of the mother.’ Id. at 162-64.
3 See, e.g., After Roe v. Wade: 10 Years' Conflict Over Abortion, Wash. Post, Jan. 23, 1983, at A1, col. 1.
4 Simopoulos v. Virginia, 103 S. Ct. 2532 (1983); Planned Parenthood Ass'n v. Ashcroft, 103 S. Ct. 2517 (1983); City of Akron v.
Akron Center for Reproductive Health, Inc., 103 S. Ct. 2481 (1983).
5 See, e.g., Colautti v. Franklin, 439 U.S. 379 (1979) (finding viability and standard-of-care provisions void for vagueness); Planned
Parenthood v. Danforth, 428 U.S. 52 (1976) (overturning parental and spousal veto, as well as ban on saline injection abortions); Doe
v. Bolton, 410 U.S. 179 (1973) (invalidating requirement that abortions be performed in accredited hospitals and approved by two
independent physicians and a hospital committee).
6 103 S. Ct. 2481 (1983). Justice Powell wrote the majority opinion, in which Chief Justice Burger and Justices Brennan, Marshall,
Blackmun, and Stevens joined. Justice O'Connor, joined by Justices White and Rehnquist, dissented.
7 Many states have similar laws. Eleven impose a waiting period of 24 hours or longer, and 22 have hospitalization requirements. See
Barbash, High Court's Ruling Enshrines Abortion as Fundamental Right, Wash. Post, June 17, 1983, at A3, col. 1.
8 103 S. Ct. 2517 (1983).
9 Justice Powell, joined by Chief Justice Burger, wrote for the majority on both issues. Justices White, Rehnquist, and O'Connor
dissented from the hospitalization ruling. Justices Brennan, Marshall, Blackmun, and Stevens concurred in the hospitalization ruling
but dissented from the rest of the opinion.
In a third case, Simopolous v. Virginia, 103 S. Ct. 2532 (1983), Justice Powell, writing for the Court, upheld a second-trimester
hospitalization requirement on the ground that the challenged law included outpatient abortion clinics in its definition of hospitals.
10 See Akron, 103 S. Ct. at 2487.
11 See id. at 2492 n.11. The trimester approach, however, may exist more on paper than in practice. Akron requires that the state ‘make
a reasonable effort to limit the effect of its regulations to the period in the trimester during which its health interest will be furthered.’
Id. at 2495. The Court further blurred the lines between trimesters in upholding the Ashcroft pathology requirement even though it
applied to first-trimester abortions. See Ashcroft, 103 S. Ct. at 2524; cf. Akron, 103 S. Ct. at 2505-06 & n.2 (O'Connor, J., dissenting)
(Court ‘purports' to retain trimesters).

12 One such suggestion came from the Solicitor General, who urged the Court to apply an ‘undue burden’ standard of review regardless
of trimester and, in doing so, to accord substantial deference to legislative judgments on abortion. Brief Amicus Curiae of the United
States in Support of Petitioners at 8, 18, Akron (No. 81-746) & Ashcroft (No. 81-1623); cf. Akron, 103 S. Ct. at 2511 n.10 (O'Connor,
J., dissenting) (distinguishing dissenters' approach from Solicitor General's).
13 Akron, 103 S. Ct. at 2495. Second-trimester abortions may cost more than twice as much in a hospital as they would in a clinic. Id.
14 Id. at 2495-96. Justice Powell relied largely on the positions of the American College of Obstetricians and Gynecologists and the
American Public Health Association.
15 See Ashcroft, 103 S. Ct. at 2522-25.
16 Compare id. at 2524 (cost of compliance is $19.40) with id. at 2528 (O'Connor, J., dissenting) (cost may be as high as $40).
17 Id. at 2524. Although Justice Powell twice invoked balancing, see id., the Court's normal approach to abortion regulation is to ask
whether a particular regulation burdens the abortion right and, if so, whether it is supported by a compelling state interest. See Akron,
103 S. Ct. at 2493. Thus, Justice Powell may simply have found that the regulation did not constitute a burden and may accordingly
have applied a lower standard of review.
18 Akron, 103 S. Ct. at 2500.
19 Id.
20 Id.
21 Id. at 2501 (quoting Planned Parenthood v. Danforth, 428 U.S. 52, 67 n.8 (1976)). The Danforth provision required only that the
patient certify in writing that she consented to the procedure and ‘that her consent [be] informed and freely given.’ Danforth, 428
U.S. at 65.
22 Akron, 103 S. Ct. at 2501.
23 Id. at 2502 (quoting Colautti v. Franklin, 439 U.S. 379, 387 (1979)).
24 Id. Similarly, Justice Powell invoked the medical discretion and cost rationales in finding that Akron had failed to justify its
requirement that a woman seeking an abortion wait 24 hours after signing a consent form. Id. at 2503. In Ashcroft, however, Justice
Powell sustained a requirement that a second physician be present at abortions performed after viability, and rejected arguments that
the provision ‘distorts the traditional doctor-patient relationship, and is both impractical and costly.’ Ashcroft, 103 S. Ct. at 2522.
25 See H.L. v. Matheson, 450 U.S. 398 (1981) (upholding parental notification statute as applied to immature minors); Bellotti v. Baird,
443 U.S. 622 (1979) (plurality opinion) (invalidating statute that permitted judicial veto of mature minor's abortion decision); Planned
Parenthood v. Danforth, 428 U.S. 52 (1976) (striking down blanket parental consent requirement).
26 Cf. Dembitz, The Supreme Court and a Minor's Abortion Decision, 80 COLUM. L. REV. 1251, 1255-56 (1980) (minor's deciding to
seek abortion, instead of ‘fantasizing’ that pregnancy will ‘magically disappear,’ is signal of maturity).
27 See Bellotti v. Baird, 443 U.S. 622 (1979).
28 Ashcroft, 103 S. Ct. at 2525-26. The Court, however, overturned Akron's parental consent requirement—which called for parental
or judicial consent for minors 15 or under—on the grounds that the ordinance's provision for an alternative proceeding was
constitutionally inadequate. The Court found that it was not clear that state juvenile courts had jurisdiction to hear abortion requests;
even if they did, moreover, the state juvenile court statute required that parents be notified of all cases before the court. Akron, 103
S. Ct. at 2498-99 & n.31.
29 Akron, 103 S. Ct. at 2504 (O'Connor, J., dissenting). Justices Rehnquist and White dissented in Roe. See Roe v. Wade, 410 U.S. 113,
171 (1973) (Rehnquist, J., dissenting); id. at 221 (White, J., dissenting).
30 Akron, 103 S. Ct. at 2508-09.

31 See id. at 2487 n.1.

32 See id. at 2508-09 (O'Connor, J., dissenting). Justice O'Connor argued that the ‘unduly burdensome’ standard was superior to the
trimester approach because it would reflect the ‘limited nature’ of the abortion right, id. at 2510, at well as the deference to the
legislature appropriate when the Court grapples with ‘extremely sensitive issues,’ id. at 2511. Moreover, such a standard would free
abortion legislation from review conditioned on the medical technology of the moment and thus excuse the Court from functioning
‘as the nation's ‘ex officio medical board.” Id. at 2506 (quoting Planned Parenthood v. Danforth, 428 U.S. 52, 99 (1979) (White, J.,
concurring in part and dissenting in part)).
33 Ashcroft, 103 S. Ct. at 2532 (O'Connor, J., dissenting); Akron, 103 S. Ct. at 2512-16 (O'Connor, J., dissenting). Even if the challenged
provisions constituted an undue burden, Justice O'Connor added, they would be justified in light of the state's compelling interest
in maternal health and protection of fetal life. See, e.g., Ashcroft, 103 S. Ct. at 2532 (O'Connor, J., dissenting); Akron, 103 S. Ct.
at 2516 (O'Connor, J., dissenting).
34 Akron, 103 S. Ct. at 2511 (O'Connor, J., dissenting).
35 See Harris v. McRae, 448 U.S. 297 (1980) (Congress may bar use of federal funds for medically necessary abortions); Williams v.
Zbaraz, 448 U.S. 358 (1980) (upholding similar state law); Maher v. Roe, 432 U.S. 464 (1977) (states may bar Medicaid coverage of
nontherapeutic abortions); see also Poelker v. Doe, 432 U.S. 519 (1977) (city may bar nontherapeutic abortions in public hospitals);
Beal v. Doe, 432 U.S. 438 (1977) (Social Security Act does not bar exclusion of nontherapeutic abortions from Medicaid coverage).
36 See cases cited supra note 25.
37 428 U.S. 52 (1979).
38 Id. at 81.
39 Ashcroft, 103 S. Ct. at 2525.
40 Akron, 103 S. Ct. at 2492 (quoting Roe v. Wade, 410 U.S. 113, 163 (1973)).
41 Likewise, dicta in Akron state that ‘regulations that have no significant impact on the woman's exercise of her right may be permissible
where justified by important state health objectives.’ Id. at 2492-93 (emphasis added). For discussion and criticism of this trend
toward raising the level of infringement that triggers strict scrutiny, see Appleton, Beyond the Limits of Reproductive Choice: The
Contributions of the Abortion-Funding Cases to Fundamental-Rights Analysis and to the Welfare-Rights Thesis, 81 COLUM. L.
REV. 721, 746-58 (1981).
42 The comparison illustrates the manipulability of the ‘reasonably related to maternal health’ standard. In support of its invalidation
of the hospitalization requirement, for example, the Court pointed to the fact that the American College of Obstetricians and
Gynecologists (ACOG) had switched positions after trial. Akron, 103 S. Ct. at 2496 & n.26. Yet in upholding the pathology
requirement, the Court noted a similar switch by the ACOG but discounted it by finding that, ‘[n]ot surprisingly, this change in policy
was controversial within the College.’ Ashcroft, 103 S. Ct. at 2523 n.11.
43 Cf. Ashcroft, 103 S. Ct. at 2528 (Blackmun, J., dissenting) (‘For the women on welfare or the unemployed teenager, this additional
cost may well put the price of an abortion beyond reach.’).
44 Asaro, The Judicial Portrayal of the Physician in Abortion and Sterilization Decisions: The Use and Abuse of Medical Discretion,
6 HARV. WOMEN'S L.J. 51, 52 (1983).
45 See Roe v. Wade, 410 U.S. 113, 165-66 (1973); see also Doe v. Bolton, 410 U.S. 179, 199 (1973) (requirement that abortion be
approved by two other doctors ‘unduly infringes on the physician's right to practice’).
46 See, e.g., Colautti v. Franklin, 439 U.S. 379 (1979); Planned Parenthood v. Danforth, 428 U.S. 52 (1976).
47 Problems with this approach were evident to Roe commentators. See, e.g., Ely, The Wages of Crying Wolf: A Comment on Roe v.
Wade, 82 YALE L.J. 920, 924 (1973); Tribe, The Supreme Court, 1972 Term—Foreword: Toward of Model of Roles in the Due
Process of Life and Law, 87 HARV. L. REV. 1, 3 n.18 (1973).

48 Cf. L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 15-10, at 933 (1978) ( ‘Unless the decision ultimately delegates enormous
power to doctors over the lives of women, . . . its suggestion of making medical judgment decisive will have to be disregarded as more
rhetoric than substance.’); Wood & Durham, Counseling, Consulting, and Consent: Abortion and the Doctor-Patient Relationship,
1978 B.Y.U. L. REV. 783, 785 (dominant approach has been to dismiss language about doctors as ‘so much legal claptrap’).
49 Asaro, supra note 44, at 87.
50 The Court's emphasis on the doctor-patient relationship not only misdirects its analysis, but also misconceives the true nature of this
relationship. For a large number of abortion patients—particularly those who have the procedure performed at a clinic—the doctor-
patient relationship is nonexistent. See, e.g., Akron, 103 S. Ct. at 2515-16 (O'Connor, J., dissenting).
51 Asaro, supra note 44, at 52; cf. Note, Roe and Paris: Does Privacy Have a Principle?, 26 STAN. L. REV. 1161, 1179 (1974) (focus
on medical relationships obscures individual's interest in autonomous decisionmaking).
52 See Asaro, supra note 44, at 91 (‘There is virtually no mention of the physician in Maher or in Harris. The rhetoric of medical
discretion accorded such deference by Blackmun in Roe and Doe has been abandoned altogether in favor of hollow lip service to
the indigent woman's ‘freedom of choice.”).
53 See cases cited supra note 25. The argument that restrictions on minors' abortion rights interfere with doctors' discretion was rejected
by Justice Powell in H.L. v. Matheson, 450 U.S. 398, 419-20 (1981) (Powell, J., concurring).
54 But see Roe v. Wade, 410 U.S. 113, 166 (1973) (abortion decision at early stages of pregnancy is inherently and primarily a medical
decision). Justice Blackmun's vision of abortion as a medical decision seems to contradict his acknowledgment ‘of the vigorous
opposing views, even among physicians,’ that abortion inspires. Id. at 116.
55 See Nathanson, Sounding Board—Deeper into Abortion, 291 NEW ENG. J. MED. 1189 (1974).
56 See Akron, 103 S. Ct. at 2491; Colautti v. Franklin, 439 U.S. 379, 387 (1979); Roe v. Wade, 410 U.S. 113, 153 (1973).
57 See Asaro, supra note 44, at 102 (‘From a feminist perspective, the judicial deference to the generally-male physician is inherently
offensive.’).
58 Akron, 103 S. Ct. at 2507 & n.5 (O'Connor, J., dissenting); see Note, Fetal Viability and Individual Autonomy: Resolving Medical and
Legal Standards for Abortion, 27 UCLA L. REV. 1340, 1359-60 (1980) [hereinafter cited as Note, Viability]; Note, Technological
Advances and Roe v. Wade: The Need to Rethink Abortion Law, 29 UCLA L. REV. 1194, 1203-04 (1982) [hereinafter cited as Note,
Advances].
59 The Court has defined viability as the point at which the fetus has a reasonable likelihood of sustained survival outside the mother's
womb with or without artificial aid. Colautti v. Franklin, 439 U.S. 379, 388 (1979). It has also deliberately ‘left the point flexible
for anticipated advancements in medical skill.’ Id. at 387.
60 The permissibility of abortions necessary to preserve the life and health of the mother would presumably remain unaffected by
technological advances, because the state may not proscribe such abortions even when the fetus is viable.
61 L. TRIBE, supra note 48, at 925 n.33; see Note, Advances, supra note 58, at 1202.
62 See Note, Viability, supra note 58, at 1363; Note, Advances, supra note 58, at 1215.
63 Akron, 103 S. Ct. at 2487.
64 See N.Y. Times, June 16, 1983, at 1, col. 1.
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THE SYMBIOSIS OF ABORTION AND PRECEDENT, 134 Harv. L. Rev.

134 Harv. L. Rev. 308

Harvard Law Review

The Supreme Court 2019 Term

Copyright © 2020 by The Harvard Law Review Association; Melissa Murray

THE SYMBIOSIS OF ABORTION AND PRECEDENT

--Then-Judge John G. Roberts, Jr.1

--Then-Judge Samuel A. Alito, Jr.2

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 1

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*313 I. Stare Decisis and Abortion

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*319 II. June Medical Services v. Russo

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*328 III. Abortion and Stare Decisis

A. Abortion as “Precedent on Precedent”

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IV. Abortion-Stare Decisis Symbiosis

*341 A. Interpretive Pluralism

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B. Investment in Institutional Stasis

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C. The Stickiness and Scope of the Abortion Right

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133 See id. at 2181.

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227 Id. at 1963-64.

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134 HVLR 308

End of Document © 2021 Thomson Reuters. No claim to original U.S. Government

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100 Harv. L. Rev. 200

Harvard Law Review Association

The Supreme Court, 1985 Term

100 Harv. L. Rev. 1

*200 F. Right to Privacy

Copyright 1986 by the Harvard Law Review Association

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