CHAPTER EIGHT

1. Jane Hodgson to Roy Lucas, 28 September 1970, Lucas Box 13; Garrow conversations with Roy Lucas. The two standard biographies of Lyndon Johnson’s ill-fated favorite justice are Bruce A. Murphy, Fortas (New York: William Morrow & Co., 1988), and Laura Kalman, Abe Fortas (New Haven: Yale University Press, 1990). Also see Robert Shogan, A Question of Judgment: The Fortas Case and the Struggle for the Supreme Court (Indianapolis: Bobbs-Merrill, 1972), and Neil D. McFeeley, Appointment of Judges: The Johnson Presidency (Austin: University of Texas Press, 1987), pp. 113–120. Perhaps surprisingly, neither Warren E. Burger nor Harry A. Blackmun have yet received any book-length biographical attention. On Burger, see Charles M. Lamb, “Chief Justice Warren E. Burger,” in Lamb and Stephen C. Halpern, eds., The Burger Court (Urbana: University of Illinois Press, 1991), pp. 129–162, and the special symposium issue of Oklahoma Law Review 45 (Spring 1992): 1–168. On Blackmun, see especially Stephen L. Wasby, “Justice Harry A. Blackmun in the Burger Court,” Hamline Law Review 11 (Summer 1988): 183–245; also see Note, “The Changing Social Vision of Justice Blackmun,” Harvard Law Review 96 (January 1983): 717–736; Wasby, “Justice Harry A. Blackmun,” in Lamb and Halpern, eds., The Burger Court, pp. 63–99; John A. Jenkins, “A Candid Talk With Justice Blackmun,” New York Times Magazine, 20 February 1983, pp. 20–29, 57–66; the special symposium issue of Hamline Law Review 8 (January 1985); and David G. Savage, Turning Right (New York: John Wiley & Sons, 1992), pp. 234–238. On Justice Marshall’s earlier life, see Marshall’s 1977 oral history interviews with Ed Edwin for the Columbia Oral History Program; Michael D. Davis and Hunter R. Clark, Thurgood Marshall (New York: Carol Publishing Group, 1992), Carl Rowan, Dream Makers, Dream Breakers (Boston: Little, Brown, 1993), and especially Richard Kluger, Simple Justice (New York: Alfred A. Knopf, 1976), esp. pp. 173–194 and 214–238. With regard to Marshall on the Supreme Court, see William J. Daniels, “Justice Thurgood Marshall,” in Lamb and Halpern, eds., The Burger Court, pp. 212–237.

2. Garrow conversations with Roy Lucas, Norman Dorsen, and Joseph L. Nellis.

3. Transcript of Oral Argument, U.S. v. Vuitch, U.S.S.C., O.T. 1970, #84, 12 January 1971, 64pp., and Tape Recording of Vuitch Oral Argument, National Archives; “Arguments Before the Court: Abortion,” U.S. Law Week 39 (19 January 1971): 3305–3307; Washington Evening Star, 12 January 1971; Chicago Tribune, 18 January 1971; “Arguments Heard,” Criminal Law Reporter 8 (20 January 1971): 4120–4122; Washington Post, 13 January 1971, p. A5; New York Times, 13 January 1971, p. 45; Garrow conversations with Norman Dorsen, Joseph L. Nellis, Roy Lucas, Milan Vuitch and Cyril C. Means. While the transcript itself does not identify which justice asked a particular question, the tape recording of the argument is generally clear enough to allow most—though not all—particular questioners to be identified. The government’s attorney, Samuel Huntington, should not be confused with a well-known political science scholar of the same name.

4. Means’s comments of 23 January 1971 as cited in both Alan Charles and Susan Alexander, “Abortions for Poor and Nonwhite Women: A Denial of Equal Protection?,” Hastings Law Journal 23 (November 1971): 147–169, at 159–160, and in Paul Marx’s far from friendly reportage in The Death Peddlers (Collegeville, MN: Saint John’s University Press, 1971), pp. 83–87; Lader in NARAL Executive Committee Minutes, 5 February 1971, NARAL Box 1; Dorsen to Vuitch, and to Lucas, 15 January 1971, Dorsen Papers; Dorsen remarks of early June 1971 in Sarah Lewit, ed., Abortion Techniques and Services (Amsterdam: Excerpta Medica, 1972), pp. 89–91; Garrow conversations with Norman Dorsen, Roy Lucas, Cyril C. Means, Joseph L. Nellis, and Larry Lader. Also see Lucas to Irv Cushner, 6 January 1971, Lucas Box 13, Florence Vuitch to Lucas, 14 January 1971, and Milan Vuitch to Lucas, 22 January 1971, Lucas Box 8. Dorsen’s second case, argued January 14, was Tate v. Short, 401 U.S. 395 (2 March 1971), in which Dorsen prevailed unanimously. Also see “U.S. v. Vuitch,” Life, 5 February 1971, p. 63.

5. Harlan, “Memorandum to the Conference,” 14 January 1971, Harlan Box 427, Black Box 437, Brennan Box 236, Douglas Box 1507; Douglas Conference Notes, U.S. v. Vuitch, 15 January 1971, Douglas Box 1507; Brennan Conference Notes, U.S. v. Vuitch, O.T. 1970, #84, Box 417; Brennan Conference Lists, Boxes 224 and 226; Assignment List, 28 January 1971, Marshall Box 63; Douglas Notes, “No. 84,” [17 February 1971], Douglas Box 1507; “1st Draft, RWS 2–9–71,” 18pp., Black Box 437; Garrow conversations with Robert W. Spearman, L. A. Scott Powe, and Thomas Rowe. Also see David M. O’Brien, Storm Center (New York: W. W. Norton & Co., 1986), pp. 25–26, and Tinsley E. Yarbrough, John Marshall Harlan (New York: Oxford University Press, 1992), p. 314.

6. Brennan Docket Book sheets for Hodgson v. Randall (#728), Hodgson v. Minnesota (#729), Roe v. Wade (#808), Doe v. Bolton (#971), Bolton v. Doe (#973), Rosen v. Louisiana State Board of Medical Examiners (#1010), Unborn Child of Mary Doe v. Mary Doe (#6172), Brennan Boxes 417 and 419; Brennan Conference Lists, e.g., 8 January 1971, p. 17, Brennan Boxes 224 and 226; [Scott Powe], Doe v. Wade, 30 December 1970, and [Powe], Doe v. Bolton, 6 February 1971, Douglas Box 1589; Michael Rodak to Margie Hames, 31 March 1971, Hames Papers. On Jane Hodgson’s cases, also see Roy Lucas to Lew Mondy, 23 December 1970 and 5 February 1971, and Mondy to Lucas, 13 January 1971, Lucas Box 13, and St. Paul Pioneer Dispatch, 22 January 1971, p. II-1.

7. Doe v. Scott, 321 F. Supp. 1385, 1388–1391, 1396 (N.D. I11.), 29 January 1971; New York Times, 30 January 1971, p. 25, 2 February 1971, p. 41; Wall Street Journal, 1 February 1971, p. 3; American Medical News, 8 February 1971, p. 12; Chicago Tribune, 11 February 1971, p. 1; Hanrahan v. Doe Case File, U.S.S.C., O.T. 1970, #1522 and 1523, National Archives, RG 267, Box 34; Playboy, September 1971.

8. Corkey v. Edwards, 322 F. Supp. 1248, 1251–1252 (W.D.N.C.), 1 February 1971; Rosen v. Louisiana State Board of Medical Examiners, 318 F. Supp. 1217, 1223 (E.D. La.), 7 August 1970, as cited in chapter seven above at note 82. Also note two cases involving criminal abortion prosecutions, State v. Austin L. Jamieson, 206 Kan. 491, 480 P.2d 87 (Kan. Sup. Ct.), 23 January 1971, where a conviction was reversed because of a faulty information, and Major v. Ferdon, 325 F. Supp. 1141 (N.D. Cal.), 25 February 1971, where Dr. Robert A. Major unsuccessfully attempted to win federal court injunctive relief against pending state charges. Also see Lucas to Patricia A. Carson, 30 December 1970, Lucas Box 25, and Barbara A. Phillips to E. P. Stephenson, 24 and 25 February 1971, Lucas Box 1.

9. Lamm, “Therapeutic Abortion: The Role of State Government” and Packwood, “The Role of the Federal Government” [22–24 January 1971], Clinical Obstetrics and Gynecology 14 (December 1971): 1204–1207, at 1204–05, and 1212–1221, at 1213. Also see Chicago Daily News, 11 February 1971, pp. 1, 10, and the additional papers by S. Leon Israel, “The Liberation of Women from Unwanted Pregnancy,” and Joseph Fletcher, “The Ethics of Abortion,” Clinical Obstetrics and Gynecology 14 (December 1971): 1113–1123 and 1124–1129; see as well Marx, The Death Peddlers, esp. p. 118, an unfriendly observer at the January symposium who believed that the real problem involved “the copulation crisis.”

10. Lamm to Whitehill, n.d. [c.6 January 1971], Whitehill Papers; Lamm, “Therapeutic Abortion: The Role of State Government” [22–24 January 1971], Clinical Obstetrics and Gynecology 14 (December 1971): 1204–1207, at 1205. On Montana, see Jenny Eichwald to Lee Gidding, 17 March 1971, NARAL Box 4 and Joan Uda to Ginny Whitehill, 30 April 1972, Whitehill Papers; on efforts to start a court case there, see John O’Connor to Lucas, 24 November 1970, William N. Jensen to Lucas, 3 January 1972, Lucas Box 25; and Great Falls Tribune, 19 May 1971. On New Mexico, see Christian Science Monitor, 3 March 1971. On Iowa, see Barbara Madden, “An Evaluation of the Defeat of the Abortion Issue in the Iowa House,” n.d. [c.11 February 1971], [Gidding], “Iowa Vote,” 12 February 1971, and Robert L. Webber to Gidding, 28 February 1971, NARAL Box 3; also see James C. Mohr, “Iowa’s Abortion Battles of the Late 1960s and Early 1970s,” Annals of Iowa 50 (Summer 1989): 63–89. On Minnesota, see St. Paul Pioneer Press, 23 February 1971, and Bob McCoy to Larry Lader, 14 April 1972, Lader Box 5; on Massachusetts, see New York Times, 8 April 1971, p. 50. Also see, with regard to Wyoming, Mai Kirkbride (of the Wyoming Council for the Medical Termination of Pregnancy) to ICMCA, 3 February 1971, ARAI 6–24.

11. On Georgia, see Atlanta Constitution, 2 and 23 March 1971; Atlanta Journal, 4 and 9 March 1971; Margie Hames to Virgil T. Smith, 2 March 1971, Hames Papers; Margaret A. Downie to Gidding, 29 March 1971, NARAL Box 2. On New York, see New York Times, 2 November 1970, pp. 1, 46, 22 November 1970, p. 60, 29 November 1970, p. IV-8, 13 December 1970, p. 66, 30 December 1970, p. 23, 4 January 1971, p. 31, 7 January 1971, p. 27, 22 January 1971, p. 24, 28 January 1971, p. 21, 11 February 1971, p. 38, 30 March 1971, p. 39, 31 March 1971, p. 39, 1 April 1971, pp. 1, 36, 2 April 1971, p. 1, 3 April 1971, pp. 26, 28, 30, 4 April 1971, pp. 1, 28, 33, 5 April 1971, p. 32, 7 April 1971, pp. 43, 54, 16 April 1971, p. 73; Gidding to Betty Friedan, “Threats to the 1970 New York Abortion Law,” 9 November 1970, NARAL Box 4; Hall, “Realities of Abortion,” New York Times, 13 February 1971, p. 27; Arlene Carmen to New York Times, 15 February 1971, NARAL Box 4; R. Bradlee Boal and Rosalyn Udow to “Dear Friend,” 5 April 1971, and Udow, “Report of Activities,” Committee for Legal Abortion, November 1970–June 1971, 21 June 1971, 6pp., Guttmacher Papers; Newsweek, 19 April 1971, pp. 129–131. Also see Hall in “Pregnancy Termination: The Impact of New Laws,” Journal of Reproductive Medicine 6 (June 1971): 45–72.

12. Gidding to Ruth Steel, 13 November 1970, Lader Box 16; Peter J. Leahy, “The Anti-Abortion Movement” (unpublished Ph.D. dissertation, Syracuse University, 1975), pp. 33–38; Byrnes, Catholic Bishops in American Politics, p. 58; National Right to Life Committee, “Special Legal Report,” March 1971, Texas AG File 70–308. The late February Supreme Court decisions, four in number, were Younger v. Harris, 401 U.S. 37, Samuels v. Mackell, 401 U.S. 66, Boyle v. Landry, 401 U.S. 77, and Perez v. Ledesma, 401 U.S. 82, all handed down on 23 February 1971. One antiabortion attorney, Dennis J. Horan, asserted that in the end the Supreme Court would hold antiabortion statutes constitutional, while Roy Lucas called the outcome “a very close question” and one that might well turn on the concept of viability. “I think it’s going to be close, but I’m optimistic.” American Medical News, 19 April 1971, pp. 10–13. On the Younger cases, also see Philip B. Kurland, “1970 Term: Notes on the Emergence of the Burger Court,” Supreme Court Review 1971 (Chicago: University of Chicago Press, 1971), pp. 265–322, at 293–297.

13. Atlanta Constitution, 2 March 1971; Time, 29 March 1971, pp. 70, 73; Gidding to Barbara Madden, 30 March 1971, NARAL Box 3. On Michigan, see [Gidding], “Michigan,” 12 and 29 March 1971, NARAL Box 3; Detroit Free Press, 28 March 1971, pp. A3, A6, 30 March 1971, p. A8; George E. LaCroix to Lader, 20 April 1971, Lader Box 16; also see Ron Paul to Lucas, 19 December 1970, Lucas Box 12; Barbara Serena et al., “Attitudes Toward Michigan’s Abortion Law,” Michigan Medicine, April 1971, pp. 309–316; Clara Raven, “Testimony in Favor of Abortion Reform,” Woman Physician 26 (November 1971): 584–586; and Era L. Hill and Johan W. Eliot, “Black Physicians’ Experience with Abortion Requests and Opinion About Abortion Law Change in Michigan,” Journal of the National Medical Association 64 (January 1972): 52–58.

14. Evelyn Sell to “Dear Friends,” 11 January 1971, Linda Dunson to Whitehill, 15 January 1971, Whitehill Papers; Victoria Foe, “Considerations on Abortion,” Daily Texan, 13 January 1971, p. 5; Austin American-Statesman, 17 and 31 January 1971; Houston Post, 17 and 31 January 1971; Weddington to Pat [White] et al., 21 January 1971, Whitehill Papers; Victoria Foe to Alan F. Guttmacher, 24 January 1971, Guttmacher Papers; Second Coming, Vol. 1, #3, 25 January 1971, p. 4, #4, 8 February 1971, p. 10; Dallas Morning News, 27 January 1971, 3 February 1971; Dallas Times-Herald, 27 January 1971; Burnis Cohen to Weddington, 7 February 1971, Whitehill Papers; The Rag, 8 February 1971, p. 5; Marian Faux, Roe v. Wade (New York: Macmillan, 1988), pp. 208–212; Frieda L. Werden, “Adventures of a Texas Feminist,” in Daryl Janes, ed., No Apologies: Texas Radicals Celebrate the ’60s (Austin: Eakin Press, 1992), pp. 191–210, at 202–203. On Senator Creighton, see his 1975 oral history with Ronald Marcello at North Texas State University.

15. Weddington to Lucas, n.d. [January 1971], Lucas Box 22; Dallas Times-Herald, 1 February 1971, p. B2, 18 February 1971, 11 and 12 March 1971; Ft. Worth Star-Telegram, 2 February 1971, pp. B1, B3; Doris Hensarling to Hugh Savage, 2 February 1971, Whitehill Papers; San Antonio Light, 17 February 1971; Second Coming, #5, 22 February 1971, pp. 3, 8, #6, 4 March 1971, p. 11; [Dallas] Abortion Education Committee Newsletter, n.d. [c.6 March 1971], Whitehill Papers; Texas Senate Journal, 10 March 1971, p. 383 (S.B. 553); Austin American-Statesman, 11 March 1971; Dallas Morning News, 11 March 1971, p. A5, 14 March 1971, p. A32; Houston Chronicle, 11 March 1971.

On the application by “Jean Poe” and attorney Sylvia Demarest to intervene in Roe, see Dallas Times-Herald, 25 November 1970; Dallas Morning News, 26 November 1970, p. B9; Austin American-Statesman, 26 November 1970, p. A29; W. M. Taylor, Jr., “Order,” and Taylor, Goldberg, and Hughes, “Order Granting Plaintiffs’ Motion to Withdraw Their Application for Further Relief,” Roe v. Wade, 19 February 1971, Texas AG File 70–308.

16. Dallas Times-Herald, 16 March 1971, 24 March 1971, pp. 31, 34, 1 April 1971, pp. 25, 29, 13 and 14 April 1971; Whitehill et al. to Texas State Legislature, “Abortion Legislation,” 18 March 1971, and Patricia White et al., “Dear Legislator,” 24 March 1971, Whitehill Papers; The Rag, 22 [March] 1971, p. 14, 12 April 1971, p. 4; A. R. Schwartz to Whitehill, 22 March 1971, Whitehill Papers; Second Coming, Vol. 1, #7, 22 March 1971, p. 4, #8, 26 April 1971, p. 9; [Dallas] Abortion Education Committee Newsletter (2), n.d. [c.24 March and 6 April 1971], and “Abortion Hearing” outline, 29 March 1971, Whitehill Papers; Amarillo Daily News, 28 March 1971, pp. C11, C14, 30 March 1971; Lee Gidding to Texas Citizens for Abortion Education, 29 March 1971, NARAL Box 5; Dallas Morning News, 30 March 1971, p. D2, 14 April 1971, p. A4; Houston Post, 30 March 1971, pp. A1, A10, 14 April 1971; Houston Chronicle, 30 March and 14 April 1971; Austin American-Statesman, 30 March and 14 April 1971; Ft. Worth Star-Telegram, 31 March and 14 April 1971; Galveston Daily News, 4–8 April 1971; Whitehill to Lamm, 4 April 1971, and Lamm to “Dear Fellow Legislator,” 8 April 1971, Whitehill Papers; Texas Senate Journal, 13 April 1971, p. 642; Evans, “Abortion Law Reform is Inevitable—Even in Texas,” Christian Century, 5 May 1971, pp. 548–549; Sarah Weddington, A Question of Choice (New York: G. P. Putnam’s Sons, 1992), pp. 75–78.

17. Batchelor v. Buchanan, 401 U.S. 989, 29 March 1971; Dallas Times-Herald, 2 April 1971, pp. 1, 8; “An Open Letter from the Catholic Bishops of Texas on the Subject of Abortion,” n.d. [15 April 1971], Whitehill Papers; Houston Chronicle, 16 April 1971; Austin American-Statesman, 20 April 1971, pp. 1, 6; Dallas Morning News, 20 April 1971; Texas Catholic, 24 April 1971, p. 1. Also see Harlan to Black, 15 March 1971, and Brennan to Black, 9 and 16 March 1971, Marshall Box 64. Three months later the Texas Court of Criminal Appeals reversed one of Alvin Buchanan’s two trial court sodomy convictions but affirmed the other, and the U.S. Supreme Court subsequently denied McCluskey’s petition that it review the remaining conviction. Buchanan v. State, 471 S.W.2d 401 (14 July 1971), Buchanan v. Texas [U.S.S.C., O.T. 1971, #5664], 405 U.S. 930 (22 February 1972). Also see Dallas Morning News, 6 August 1970, p. D1, 12 July 1971, p. D3; Pruett v. State, 463 S.W.2d 191 (Tex. Ct. Crim. App.), 25 November 1970, appeal dismissed for want of a substantial federal question, 402 U.S.902 (19 April 1971); and Dawson v. Vance, 329 F.Supp. 1320 (S.D. Tex.), 29 July 1971.

See as well In re Labady, 326 F. Supp. 924, 927 (S.D.N.Y.), 23 March 1971, a naturalization proceeding where a federal district judge cited Griswold and Stanley in holding that “it is now established that official inquiry into a person’s private sexual habits does violence to his constitutionally protected zone of privacy.” But see Hughes v. State, 287 A.2d 299, 305 (Md. Ct. Spec. App.), 16 February 1972, cert. denied 409 U.S. 1025 (20 November 1972); Connor v. State, 490 S.W.2d 114 (Ark. Sup. Ct.), 29 January 1973, appeal dismissed for want of a substantial federal question, 414 U.S. 991 (5 November 1973), and rehearing denied, 414 U.S. 1138 (7 January 1974), and Connor v. Hutto, 516 F.2d 853 (8th Cir.), 28 May 1975, as well as the additional cases cited in note 37 of chapter nine.

18. The Rag, 19 April 1971, p. 3; Austin American-Statesman, 23 May 1971; Garrow conversations with Judy Smith, Barbara Hines, Beatrice Vogel, Bob Breihan, J. Claude Evans and Emmett Herndon. For a study based upon 1971 interviews with 29 ministerial activists in Michigan, see Nanette J. Davis, “Clergy Abortion Brokers: A Transactional Analysis of Social Movement Development,” Sociological Focus 6 (Fall 1973): 87–109.

19. Melinda Bart Schlesinger and Pauline B. Bart, “Collective Work and Self-Identity: Working in a Feminist Illegal Abortion Collective,” in Frank Lindenfeld and Joyce Rothschild-Whitt, eds., Workplace Democracy and Social Change (Boston: Porter Sargent, 1982), pp. 139–153; Pauline B. Bart, “Seizing the Means of Reproduction: An Illegal Feminist Abortion Collective—How and Why It Worked,” Qualitative Sociology 10 (Winter 1987): 339–357; Linnea Johnson, “Something Real: Jane and Me—Memories and Exhortations of a Feminist Ex-Abortionist” (unpublished essay, Chicago Historical Society, 1992), 27pp. On the one raid (May 3, 1972) in which seven “Jane” participants were arrested, see Illinois Women’s Abortion Coalition Newsletter, n.d. [21 June 1972], CWLU Box 8; the charges were subsequently dropped in March, 1973. Also generally see Pauline Bart in Helen Roberts, ed., Women, Health and Reproduction (London: Routledge & Kegan Paul, 1981), pp. 109–128; Kathryn Pyne Parsons, “Moral Revolution,” in Julia A. Sherman and Evelyn T. Beck, eds., The Prism of Sex (Madison: University of Wisconsin Press, 1979), pp. 189–227, at 204–211; “Just Call Jane,” in Marlene G. Fried, ed., From Abortion to Reproductive Freedom (Boston: South End Press, 1990), pp. 93–100; Ninia Baehr, Abortion Without Apology (Boston: South End Press, 1990), pp. 25–30; Mary Kay Blakely, “Remembering Jane,” New York Times Magazine, 23 September 1990, pp. 26, 78; Peter Broeman and Jeannette Meier, “Therapeutic Abortion Practices in Chicago Hospitals—Vagueness, Variation, and Violation of the Law,” Law and the Social Order [Arizona State University] 1971, pp. 757–775; Suzanne Staggenborg, “Stability and Innovation in the Women’s Movement: A Comparison of Two Movement Organizations,” Social Problems 36 (February 1989): 75–92; and Staggenborg, The Pro-Choice Movement (New York: Oxford University Press, 1991), pp. 21–22, 39.

20. On the Massachusetts appeal, see Robert H. Quinn et al., “Jurisdictional Statement,” Thomas S. Eisenstadt v. William R. Baird, U.S.S.C.,” O.T. 1970, #804, 5 October 1970, 10pp.; E. P. Cullinan to Joseph J. Balliro, 5 January 1971, Eisenstadt Case File, #70–804, National Archives, RG 267, Box 8; Balliro, “Motion to Dismiss or Affirm,” Eisenstadt v. Baird, #804, 3 February 1971; 39 U.S. Law Week 3367 (1 March 1971); New York Times, 2 March 1971, p. 22. Both Justice Brennan’s and Justice Douglas’s notations indicate that six justices—Marshall, White, Stewart, Harlan, Black, and Burger—voted in favor of hearing the appeal, while Justices Blackmun, Brennan, and Douglas voted simply to affirm the First Circuit’s decision. See Brennan Docket Book, O.T. 1970, #804, Brennan Box 417; also see [Scott Powe], Eisenstadt v. Baird, 30 December 1970 and 13 February 1971, Douglas Box 1543.

21. See [Yale Law Women’s Association], Women vs. Connecticut, an undated sixteen-page pamphlet [c.October 1970]; Lucas to Ann C. Hill, 26 October 1970, Lucas Box 25; Hartford Times, 20 November 1970, pp. B1, B8, 17 January 1971, 13 April 1971, 16 May 1971, pp. A1, A7; Hartford Courant, 9 January and 13 April 1971; Waterbury American, 26 January 1971; “Dear Doctor” letter, n.d., Emerson Box 10, whose signatories include Tom Emerson, Ann C. Hill, and Hillary Rodham; Yale Daily News, 15 February 1971, pp. 1, 6; New Haven Register, 29 January and 1 March 1971; New York Times, 3 March 1971, p. 40, 8 April 1971, p. 83; Marilyn Seichter Interview with Hubbell; and Nancy Stearns Interview with Garrow. Rodham was among the students in Emerson’s spring 1971 Political and Civil Rights course. See The Nation, 2 November 1992, p. 492.

22. Burlington Free Press, 17 April 1971, p. 3, 18 June 1971, p. 14; Higgins, “The Vermont Abortion Suits,” ZPG National Reporter, February 1972, pp. 5, 9–10. On ZPG, which initially was begun by Connecticut attorney Richard M. Bowers in the winter of 1968–1969 and expanded from a membership of 3,000 in January 1970 to 34,000 in April 1971, see ZPG Communicator, Vol. 1, #1 (March 1969); Larry D. Barnett, “Zero Population Growth, Inc.,” Bioscience 21 (15 July 1971): 759–765, Barnett, “Zero Population Growth, Inc.: A Second Study,” Journal of Biosocial Science 6 (January 1974): 1–22; Garrow conversations with Richard Bowers.

23. McCann v. Babbitz, 402 U.S. 903 (19 April 1971); Brennan Docket Book, Box 417; McCann Case File (O.T. 1970, #1353), National Archives, RG 267, Box 10393; Kennan v. Nichol, 326 F. Supp. 613 (W.D. Wis.), 27 April 1971; Madison Capital Times, 22 April 1971, pp. 1, 4, 30 April 1971, pp. 1, 2, 6 May 1971, p. 1, 11 May 1971, pp. 1, 2, 12 May 1971, pp. 1, 8; New York Times, 2 May 1971, p. 36; Kennan v. Warren, 328 F. Supp. 525 (W.D. Wis.), 5 May 1971; Nichol v. Kennan Case File (U.S.S.C., O.T. 1971, #595), National Archives, RG 267, Box 189; Anne Gaylor, “Abortion in Wisconsin?,” ZPG National Reporter, July 1971, pp. 1–2; Gaylor, Abortion Is A Blessing (New York: Psychological Dimensions, 1975), pp. 6–20. Also see Richard Cates, “Legal Considerations in Wisconsin and Elsewhere” [23 October 1971], in Thomas M. Hart, ed., Abortion in the Clinic and Office Setting (San Francisco: Society for Humane Abortion, 1972), pp. 40–41; Paul Halvorsen et al., “Attitudes Toward Abortion” [among Milwaukee ob/gyns], Wisconsin Medical Journal 71 (April 1972): 134–139; and two law journal notes on Babbitz, Washington Law Review 46 (May 1971): 565–575, and Grahame G. Capp, Journal of Urban Law 48 (June 1971): 969–982.

24. U.S. v. Vuitch draft circulations, Harlan, “Memorandum to the Conference,” 18 February 1971, Burger to Black, 24 February 1971, Blackmun to Black, 26 February 1971, Blackmun to Harlan, 29 March 1971, Brennan to Harlan, 29 March 1971, Marshall to Harlan, 29 March 1971, Blackmun to Black, 30 March 1971, Blackmun to Black, 13 April 1971, Harlan to Black, 14 April 1971, Douglas to Black, 15 April 1971, Black Box 437, Brennan Box 236, Douglas Box 1507, Harlan Box 427 and Marshall Box 69; Stewart to Black, n.d., and Robert W. Spearman, “Memo on No. 84, the Abortion Case,” n.d. [c.14 April 1971], Black Box 438; Garrow conversations with Robert W. Spearman, L. A. Scott Powe and Thomas Rowe; Evan A. Davis to Garrow, 25 June 1992, and Duncan Kennedy to Garrow, 18 September 1992.

25. U.S. v. Vuitch, 402 U.S. 62, 72–73, 78, 96–97; Harlan to Black, 14 April 1971, Black circulations #5 and #6, 31 March and 14 April 1971, Black Box 437, Brennan Box 236, Douglas Box 1507, Harlan Box 427 and Marshall Box 69. The two substantive sentences deleted by Black at Harlan’s request had read: “It is true that this statute touches a subject that tends to arouse the emotions of both jurors and judges. But the lifetime judges of this Court are simply not empowered to invalidate laws merely because we find them repugnant, ill-conceived or out of step with modern ideas.”

Douglas’s Vuitch dissent was the fifth time since Griswold that he had spoken to the right of privacy, always in dissent. See Schmerber v. California, 384 U.S. 757, 778–779 (“No clearer invasion of this right of privacy can be imagined than forcible blood-letting of the kind involved here”), 20 June 1966; Lewis v. U.S., 385 U.S. 206, and Osborn v. U.S., 385 U.S. 323, 340, 352 (“various provisions of the Bill of Rights contain this aura of privacy”), 12 December 1966; Warden v. Hayden, 387 U.S. 294, 312, 322 (“the privacy protected by the Fourth Amendment is much wider than the one protected by the First”), 325 (Griswold’s “right of privacy … is kin to the right of privacy created by the Fourth Amendment”), 29 May 1967; and Wyman v. James, 400 U.S. 309, 330, 12 January 1971. See as well Douglas’s dissent eight weeks later in Palmer v. Thompson, 403 U.S. 217, 233 (“Rights, not explicitly mentioned in the Constitution, have at times been deemed so elementary to our way of life that they have been labeled as basic rights”), 234, 237, 239, 14 June 1971. Also see Justice Fortas’s dissent in Time, Inc. v. Hill, 385 U.S. 374, 412–414, 415 (“Privacy, then, is a basic right”), 9 January 1967; see as well Laura Kalman, Abe Fortas (New Haven: Yale University Press, 1990), pp. 264–266.

Also see Doe v. D.C. General Hospital, 313 F. Supp. 1170, 434 F.2d 423 (1970), and Philip B. Kurland, “1970 Term: Notes on the Emergence of the Burger Court,” Supreme Court Review 1971 (Chicago: University of Chicago Press, 1971), pp. 265–322, at 309–311 (Vuitch made the D.C. statute “all but unusable against licensed physicians”). Case notes on Vuitch include William J. Curran, New England Journal of Medicine 285 (1 July 1971): 30–31; Robert G. Tanner, Wake Forest Law Review 7 (October 1971): 651–659; and John Wagner, Nebraska Law Review 51 (Winter 1971): 340–351. Also see Angela R. Holder, Journal of the American Medical Association 216 (3 May 1971): 933–934; Donald T. Kramer, “Validity, Under Federal Constitution, of Abortion Laws,” 28 L.Ed. 1053–1087 (1971); Harvard Law Review 84 (June 1971): 1856–1911, at 1877; Georgia Law Review 6 (Fall 1971): 168–193, at 188; Martin F. McKernan, Jr., “Recent Abortion Litigation,” Catholic Lawyer 17 (Winter 1971): 1–10; Donald W. Brodie, “Privacy: the Family and the State,” University of Illinois Law Forum 1972, pp. 743–769, at 766; Thomas Polityka, “From Poe to Roe: A Bickelian View of the Abortion Decision,” Nebraska Law Review 53 (1974): 31–57, at 49–51; and Richard C. Cortner, The Supreme Court and Civil Liberties Policy (Palo Alto, CA: Mayfield Publishing Co., 1975), p. 53.

26. Washington Evening Star, 21 April 1971, pp. A1, A5, 22 and 23 April 1971; Washington Post, 22 April 1971, pp. A1, A9; New York Times, 22 April 1971, pp. 1, 21; Newsweek, 3 May 1971, p. 110; Time, 3 May 1971, p. 40; American Medical News, 3 May 1971, p. 11; Dallas Morning News, 12 August 1971, p. C11; Gail Werner and Penelope Lemov, “Abortion,” Washingtonian, October 1971, pp. 70–73; Lawrence Lader, Abortion II (Boston: Beacon Press, 1973), p. 115; Jane E. Hodgson, “Community Abortion Services,” Minnesota Medicine 56 (March 1973): 239–242 (describing Washington’s “Preterm” clinic); Harold L. Hirsh, “Impact of the Supreme Court Decisions on the Performance of Abortions in the United States,” Forensic Science 3 (June 1974): 209–223, esp. at 214; Pilpel et al., “Memorandum,” 29 April 1971, 8pp., ACLU 1972 Vol. 37, p. 6; Garrow conversations with Milan Vuitch and Norman Dorsen. Also see William J. Brennan, “A Tribute to Norman Dorsen,” Harvard Civil Rights—Civil Liberties Law Review 27 (Summer 1992): 309–314, at 311, noting the Vuitch Court’s “expansive interpretation of the word ‘health’” and how “the Court’s holding [in Vuitch] prefigures certain themes developed more fully in Roe.”

On Dr. Vuitch’s subsequent career, assorted difficulties, and eventual forced retirement, see Washington Post, 7 July 1977, p. MD1, 19 August 1983, p. B2, 11 November 1984, p. B1, 17 November 1984, pp. B1, B7, 28 November 1984, pp. B1, B7, 30 November 1984, p. B4, 15 December 1984, p. B5, 21 December 1984, pp. B1, B6, 23 March 1985, pp. C1, C2.

27. Daily Texan, 22 April 1971; Houston Post, 23 April 1971; Houston Chronicle, 25 and 26 April 1971; Dallas Times-Herald, 25 April 1971; Sam Coats to Ginny Whitehill, 30 April 1971, Whitehill Papers.

28. Hodgson v. Randall and Hodgson v. Minnesota [U.S.S.C., O.T. 1970, #728 and 729], 402 U.S. 967, 17 May 1971; E. Robert Seaver to Roy Lucas (2), 17 May 1971, Lucas Box 12; Brennan Conference Lists and Docket Book, Brennan Boxes 224, 226 and 417. Justice Brennan’s notations indicate that the initial decisions on the Hodgson cases were taken on March 24 and reaffirmed on May 13. Also see Black, “Memorandum on Cases Held for Dombrowski Group,” n.d. [c.8 March 1971], Blackmun to Black, 9 March 1971, Brennan to Black, 9 March 1971, p. 6, Brennan to Black, 16 March 1971, Marshall Box 64. Justice Douglas dissented without comment from the Court’s affirmance of Hodgson v. Randall.

29. In the Louisiana case, Rosen v. State Board of Medical Examiners, O.T. 1970, #1010, the Court in February (E. Robert Seaver to Sam A. LeBlanc, 10 February 1971) had requested a response on behalf of the state to Ben Smith’s November appeal, but following the March 12 filing of a Motion to Affirm or Dismiss, the Court first on April 23 (with Justices Douglas and Harlan voting to take the case) and again on May 13 kept Rosen on hold pending action on a nonabortion case involving a Florida obscenity prosecution, Mitchum v. Foster. Also see White to Black, 10 March 1971, Marshall Box 64. The Missouri case, Rodgers v. Danforth, #70–89, was also considered at those same two conferences and also put on hold in light of Mitchum. On May 21 the Court put both of the appeals stemming from the Illinois three-judge court decision, Hanrahan v. Doe and Heffeman v. Doe, #70–105 and 70–106, on hold pending disposition of the Texas and Georgia cases. Conference List, 20 May 1971, Marshall Box 63, and Brennan Docket Book Box 419. On the Illinois cases, also see Mel Wulf to David A. Goldberger, 27 April 1971, and Sybille Fritzsche to Wulf, 11 May 1971, ACLU 1976 Vol. 24.

30. Roe v. Wade, O.T. 1970, #808, and Doe v. Bolton, #971, Brennan Docket Books, Boxes 417 and 419; Black, “Memorandum on Cases Held for Dombrowski Group,” n.d. [c.8 March 1971], Brennan to Black, 9 March 1971, pp. 6–7, White to Black, 10 March 1971, Blackmun to Black, 10 March 1971, Burger to Black, 10 March 1971, Stewart to Black, 12 March 1971, Brennan to Black, 16 March 1971, Brennan, “Memorandum to the Conference,” 1 and 21 April 1971, Marshall Box 64; Roe v. Wade and Doe v. Bolton, 402 U.S. 941, 3 May 1971. Also see “LAP” [L. A. Scott Powe] to Douglas, Doe v. Wade, 2 March 1971, and “LAP” [Powe] to Douglas, [Doe v. Bolton], 13 April 1971, Douglas Box 1589. After initial consideration on April 22, on April 28 the justices unanimously agreed to dismiss both Georgia’s cross-appeal, Bolton v. Doe, #973, and Ferdinand Buckley’s similar petition, Unborn Child of Mary Doe v. Mary Doe, #6172. Conference Lists, Brennan Boxes 224 and 226 and Marshall Box 63, Brennan Docket Book, Box 417; 402 U.S. 936.

31. New York Times, 4 May 1971, p. 31; Washington Post, 4 May 1971, p. A8; Dallas Morning News, 4 May 1971, p. A5; E. Robert Seaver to Lucas, 4 and 18 May 1971, Lucas Box 22; Lucas to Hames, 4 May 1971, Hames Papers; Lucas, “Memorandum to Ad Hoc Group on Amicus Curiae Support for 1970 Supreme Court Cases,” and “What the Pro-Abortion Groups Did NOT Do in the Court Cases Challenging Abortion Law Restrictions,” 4pp., 7 May 1971, ACLU 1972 Vol. 37; Pilpel in “Roundtable: Legal Abortion” [11 May 1971], Medical Aspects of Human Sexuality 5 (August 1971): 50–75, at 75, and in ASA Board Minutes, 13 May 1971, Guttmacher Papers; Houston Chronicle, 9, 11, and 14 May 1971; Houston Post, 9 May 1971; Dallas Times-Herald, 9 May 1971, 21 May 1971, p. A40; Ft. Worth Star-Telegram, 12 May 1971; Foe to Whitehill, n.d. [c.mid-May 1971], Whitehill Papers.

Also see Heather Sigworth, “Abortion Laws in the Federal Courts—The Supreme Court as Supreme Platonic Guardian,” Indiana Legal Forum 5 (Fall 1971): 130–142, at 133 and 137, who observed with regard to the Court’s May actions that “From the pattern of disposition of these appeals and petitions, it is difficult not to conclude that the Court will give little comfort to those seeking to abolish all abortion laws” and “is unlikely to be sympathetic to the ‘privacy’ argument.” Vuitch in particular, this commentator contended, “must indicate that the Court is of no mind to strike down all substantive limitations on abortion.” Also note Lashley v. Maryland, 402 U.S. 991, 24 May 1971, dismissing an appeal of a nonphysician’s abortion conviction (268 A.2d 502) with only Justice Douglas in dissent.

32. Hames to Michael Rodak, 11 May 1971, Doe Case File, National Archives, RG 267, Box 16; Lucas to E. Robert Seaver, 8 June 1971, and Seaver to Lucas, 14 June 1971, Roe Case File, National Archives, RG 267, Box 9; Lucas to Roy Merrill, 13 April 1971, Lucas Box 22; [Lucas], “Texas Abortion Law Test Case: Appeal Pending Before the Supreme Court,” n.d. [c.late May 1971], 4pp., Whitehill Papers; Houston Chronicle, 28 May 1971; Galveston Daily News, 28 May 1971, pp. A1, A4; Coffee to Robert L. Sassone, 4 June 1971, and Coffee to Ephraim London, 29 July 1971 (also referring to Lucas as “lead counsel”), Lucas Box 22; “Contributions as of 3/15/71,” Whitehill Papers; Jay Floyd notes, 24 May 1971, and Floyd to Lucas, 7 June 1971, Texas AG File 70–308; Barbara Milbauer, The Law Giveth (New York: Atheneum, 1983), p. 52; Sarah Weddington, A Question of Choice (New York: G. P. Putnam’s Sons, 1992), pp. 75–76, 84; Garrow conversations with Roy Lucas, Sarah Weddington, Ron Weddington, Linda Coffee, and Virginia Whitehill.

33. Pilpel to Dorsen et al., 19 and 25 May 1971, Kimmey to Allan Barnes et al., 27 May and 8 June 1971, Hames Papers; Sarah Lewit, ed., Abortion Techniques and Services (Amsterdam: Excerpta Medica, 1972), esp. pp. 91 and 111–113; [Hames], “Memo—Re: Roy Lucas—Abortion Cases,” 2pp., n.d. [c.6 June 1971], [Hames], “Memo—Re: Roy Lucas,” 1pp., n.d. [c.6 June 1971], Zarky to Hames, 8 June 1971, and Hames to Zarky, 16 June 1971, Hames Papers; Lucas to Timothy Bloomfield, 22 June 1971, Lucas Box 8; Kimmey to Barnes et al., “Amicus Briefs Report,” 23 June 1971, Whitehill Papers; Pilpel to Hames, 25 June 1971, Hames Papers; Garrow conversations with Nancy Wechsler, Jane Zuckerman, Roy Lucas, Norman Dorsen, Cyril Means, Jimmye Kimmey, Mel Wulf, Margie Hames, Judith [Bourne] Rooks, Larry Lader, and Joseph Nellis. Also see Nathanson, Aborting America, pp. 152–154. Cyril Means’s obituary appears in the New York Times, 6 October 1992, p. D23; also see Means, “The Constitutional Aspects of a National Population Policy,” Villanova Law Review 15 (Summer 1970): 854–862, and Means’s additional symposium comments at pp. 876–877.

34. New York Times, 9 April 1971, p. 28, 12 April 1971, p. 34, 13 April 1971, p. 43, 15 April 1971, pp. 31, 42, 22 April 1971, pp. 30, 46, 25 April 1971, p. 32, 27 April 1971, p. 47, 28 April 1971, p. 51, 29 April 1971, p. 1, 2 May 1971, pp. 58, V-22, 4 May 1971, p. 38, 7 May 1971, pp. 1, 24, 37, 9 May 1971, pp. 8, VI-80, 11 May 1971, pp. 27, 43, 12 May 1971, p. 1, 13 May 1971, p. 1, 14 May 1971, pp. 1, 66, 15 May 1971, p. 34, 16 May 1971, p. IV-6, 17 May 1971, p. 35, 20 May 1971, p. 57, 27 May 1971, p. 30, 3 June 1971, pp. 29, 43, 4 June 1971, pp. 15, 38, 6 June 1971, p. 64, 8 June 1971, p. 21, 19 June 1971, p. 28, 21 June 1971, p. 15, 24 June 1971, p. 34, 29 June 1971, pp. 22, 35, 30 June 1971, pp. 43, 72, 1 July 1971, p. 42, 2 July 1971, p. 8; American Medical News, 17 May 1971, p. 3; City of New York v. Wyman, 321 N.Y.S.2d 695, 707, 709–710 (N.Y. County Sup. Ct.), 18 May 1971, 322 N.Y.S.2d 957 (Sup. Ct. App. Div., 1st Dept.), 1 July 1971; Lader, “A Guide to Abortion Laws in the United States,” Redbook, June 1971, pp. 51–58; Wall Street Journal, 1 June 1971, pp. 1, 29; Newsday, 30 June 1971, pp. A4, A5; S.P.S. Consultants, Inc. v. Lefkowitz, 333 F. Supp. 1370, 1373 (S.D.N.Y.), 8 July and 5 October 1971; Newsweek, 19 July 1971, pp. 50–52.

On for-profit abortion brokers, also see New York Times, 19 December 1970, p. 21, 10 February 1971, pp. 45, 47, 12 February 1971, p. 38, 27 February 1971, p. 34, 28 February 1971, p. E5, 5 April 1971, p. 26, 8 January 1972, p. 33; Time, 15 March 1971, p. 64. Also see a subsequent and suggestively different Michigan federal court ruling, Mitchell Family Planning, Inc. v. City of Royal Oak, 335 F. Supp. 738 (E.D. Mich.), 5 January 1972.

Subsequent New York Times stories concerning New York implementation also include 26 July 1971, p. 10, 21 August 1971, p. 26, 27 September 1971, p. 27, 13 October 1971, p. 15, 15 October 1971, p. 38, 4 January 1972, p. 22, and 20 February 1972, p. 61. Also see Art Spikol, “Across the Border and Into the Mill: The Boston-New York Abortion Run,” Boston Magazine, July 1971, pp. 34–39, 58–59, John Pennington, “Abortion,” Atlanta Journal-Constitution Magazine, 30 January 1972, pp. 10–18, and Ardis H. Danon, “Organizing an Abortion Service,” Nursing Outlook 21 (July 1973): 460–64.

35. New York Times, 5 July 1971, p. 17; National Clergy Consultation Service on Abortion Newsletter Vol. 2, #1 (July 1971). Also see Christian Century, 21 July 1971, p. 871, which characterized Medeiros’s remarks as an “indiscriminate harangue.” For a vastly different and strikingly liberal Catholic analysis, see John F. Dedek, “Abortion: A Theological Judgment,” Chicago Studies 10 (Fall 1971): 313–333, at 332 (“perhaps even grave socio-economic reasons could justify an abortion before the beginning of the third week,” or possibly even later).

On Illinois, see Chicago Sun-Times, 18 May 1971; on Maine, see New York Times, 20 May 1971, p. 25, and Christian Science Monitor, 22 May 1971, p. 4; on Ohio, see Columbus Dispatch, 6 June 1971, p. A45, and 9 June 1971, p. B15. On North Dakota, see Faye D. Ginsburg, Contested Lives (Berkeley: University of California Press, 1989), pp. 65–67.

On Michigan, see [Lee Gidding], “Michigan,” 29 March 1971, NARAL Box 3; George E. LaCroix to Lader, 20 April 1971, Lader Box 16; Detroit News, 6 June 1971, p. B11; New York Times, 14 July 1971, p. 71; also see Doreen Bierbrier, “The 1972 Abortion Referendum in Michigan” (unpublished paper, University of Michigan, December, 1973), Bentley Historical Library. Led by Detroit attorney Barbara G. Robb, in late August several hundred female plaintiffs filed a constitutional challenge against the existing Michigan abortion law in state court. See Linda Nordquist, “Michigan Women’s Abortion Suit,” 6 August 1971, MARC Box 2; Detroit News, 27 August 1971, pp. D1, D3; and Robb et al., “Amended Complaint,” Lorraine B. Beebe et al. v. William Cahalan, Wayne County Cir. Ct., #CA188-670-R, 23 September 1971, Lucas Box 12.

36. On Connecticut, see the subsequent Second Circuit ruling, Abele v. Markle, 452 F.2d 1121, 13 December 1971; on Kentucky, see Crossen v. Breckenridge, 446 F.2d 833, 23 June 1971. On the Arizona case, see Arizona Republic, 18 May 1971, p. 21, and 19 June 1971, p. 35; Planned Parenthood Association v. Nelson, 327 F. Supp. 1290 (D. Ariz.), 11 June 1971; and Seymour Sacks to Harriet Pilpel, 10 December 1971, Pilpel-SSC.

On New Jersey, see Lucas to Felix H. Vann, 14 September 1971, Lucas Box 25; on Colorado, see Denver Post, 22 May 1971, p. 19; on Oklahoma, see Tulsa Tribune, 1 March 1971, pp. B1, B6, 2 March 1971, pp. B1, B5, and 3 and 4 March 1971. On the South Dakota Munson case, see Lucas to Homer Kandaras, 4 November 1970, Kandaras to Lucas, 14 December 1970, Munson to Lucas, 19 January 1971, Lucas to Kandaras, 15 April 1971, Mel Wulf to Kandaras, 20 April 1971, Lucas to Kandaras, 13 May 1971, C. J. Kelly to Kandaras, 1 June 1971, Kandaras to Lucas, 2 June 1971, Lucas to Kandaras, 7 June 1971, Kandaras to Lucas, 13 July 1971, Lucas to Kandaras, 16 July 1971, Kelly to Kandaras, 27 July 1971, Kandaras to Lucas, 28 July 1971, Lucas to Kandaras, 31 July 1971, Kandaras to Lucas, 12 August 1971, and Kandaras and Lucas, “Respondent’s Brief,” State v. Munson, S.D. Sup. Ct. [1 September 1971], 58pp., Lucas Box 22.

37. On Missouri, see Rodgers et al. v. Danforth, St. Louis County Cir. Ct., #315512, 7 June 1971, 3pp., Lucas Box 15, St. Louis Post-Dispatch, 8 June 1971, p. A8, St. Louis Globe-Democrat, 8 June 1971, p. 1. On Florida, see Landreth v. Hopkins, 331 F. Supp. 920 (N.D. Fla.), 22 September 1971, and Walsingham v. State, 250 So.2d 857 (Fla. Sup. Ct.), 12 July 1971.

On California, see Ballard v. Anderson, 4 Cal.3d 873 (19 May 1971); San Francisco Chronicle, 20 May 1971; New York Times, 20 May 1971, p. 25, and 18 July 1971, p. 29; State v. Pettegrew, 96 Cal. Rptr. 189 (Cal. Ct. App., 2d Dist.), 12 July 1971; State v. Barksdale, 96 Cal. Rptr. 265, 272 (Cal. Ct. App., 1st Dist.), 22 July 1971; also see Ruth Roemer to Joseph Sunnen, 18 and 25 August 1971, CCTA Box 1; Los Angeles Times, 21 November 1971, pp. E1, E20, 22 November 1971, pp. II-1, II-13, II-15, 23 November 1971, pp. II-1, II-6, 24 November 1971, pp. IV-2, IV-4; and Daniel M. Schneider, University of Cincinnati Law Review 41 (1972): 235–244.

38. Garrow conversations with Margie Hames, Reber Boult, Pamela D. Walker, Tobiane Schwartz, Elizabeth Rindskopf, Gale Siegel Messerman, Charles Morgan, Jr., and Sandra [Bensing] Cano; Atlanta Constitution, 22 December 1970, p. A1, 23 December 1970, p. A2, 30 December 1970, p. A4, 26 January 1971, p. A6; [Sandra Bensing] Affidavit, 9 March 1971, Hames Papers; Ann Woolner, “‘I Am Mary Doe,’” Fulton County Daily Report, 9 February 1989, pp. 1, 3–7.

39. Marsha King to Lucas, 5 July 1971, Lucas Box 22; Garrow conversations with Roy Lucas, Linda Coffee, Norma McCorvey, Sarah Weddington, and Virginia Whitehill; Patricia Thomas, “Abortion: Is It a Constitutional Right?,” ZPG National Reporter, July 1971, pp. 6–7; Second Coming, Vol. 1, #9, 15 July 1971, p. 2; Houston Post, 18 July 1971.

On the SWP and WONAAC, see especially “More Trots,” The Rag, 13 March 1972, pp. 12–13, plus Garrow conversations with Judy Smith and Barbara Hines; also see “Dear Sister” letter, 4 June 1971, Barbara Roberts, “Abortion Laws Murder Women,” 12 June 1971, Debbie Notkin to “Dear Sister,” 18 June 1971, and “Dear Sister” letter, 17 July 1971, Chicago Women’s Liberation Union Papers, Box 8; New York Times, 20 July 1971, p. 30, and 15 October 1971, p. 53; WONAAC National Newsletter [#1], 16 September 1971; Judith Papachristou, Women Together (New York: Alfred A. Knopf, 1976), pp. 248–249; Suzanne Staggenborg, “Coalition Work in the Pro-Choice Movement: Organizational and Environmental Opportunities and Obstacles,” Social Problems 33 (June 1986): 374–390, at 378; Staggenborg, The Pro-Choice Movement (New York: Oxford University Press, 1991), p. 26; and especially Flora Davis, Moving the Mountain (New York: Simon & Schuster, 1991), pp. 138–141.

40. Weddington, A Question of Choice (New York: G. P. Putnam’s Sons, 1992), pp. 80, 84–98; Lucas to Michael Rodak, 7 July 1971, Lucas Box 22; Lucas to Weddington, “Re: Hodgson Brief,” n.d. [c.7 July 1971], Lucas Box 12; Brian Sullivan to Margie Hames, 8 July 1971, Hames Papers; Weddington in Texas Citizens for Abortion Education [Newsletter], July-August [1971], p. 3, and Weddington to Whitehill, n.d. [11 July 1971], Whitehill Papers; Lucas to Hames, 17 July 1971, Hames Papers; Lucas, “Memorandum to Trustees—Monthly Report: July, 1971” [c.19 July 1971], Emerson Box 13 and Lucas Box 25; Weddington to John Tolle, 19 July 1971, and Tolle to Weddington, 22 July 1971, Lucas Box 22; Lucas to Rodak, 20 July 1971, and E. Robert Seaver to Lucas, 3 August 1971, Roe Case File, National Archives, RG 267, Box 9; Hames to Seaver, 7 July 1971, and to Rodak, 28 July 1971, Doe Case File, National Archives, RG 267, Box 16; Marian Faux, Roe v. Wade (New York: Macmillan, 1988), pp. 204, 219–223; Garrow conversations with Sarah Weddington, Ron Weddington, Roy Lucas, Nicholas W. Danforth, Brian L. Sullivan, David M. Tundermann, Daniel M. Schneider, Richard G. Singer, Jane E. Hodgson, and Virginia B. Whitehill.

The three affidavits from the Texas physicians—Paul C. MacDonald, chairman of ob/gyn at the University of Texas Southwestern Medical School in Dallas (28 July 1971), Joseph Seitchik, chairman of ob/gyn at the University of Texas Medical School at San Antonio (9 August 1971), and William J. McGanity, chairman of ob/gyn at the University of Texas Medical Branch at Galveston (13 August 1971), appear as appendices B-1, C-1, and D-1 in the Roe brief.

On the North Carolina appeal, see Lucas and George S. Daly, Jr., “Jurisdictional Statement,” Corkey v. Edwards, U.S.S.C., O.T. 1971, #92, 27pp., 19 July 1971, National Archives, RG 267, Box 97; Daly to Richard L. Burt et al., 20 July 1971, Lucas Box 20; and Washington Post, 21 July 1971, p. B2. On 5 November 1971 the justices privately decided to hold Corkey in abeyance until Roe and Doe were resolved. Brennan Docket Book, Box 419.

On the Hodgson case, also see Brian Sullivan to Lucas, “Supreme Court of Minnesota,” 21 May 1971, 4pp., Lucas Box 13; Steering Committee Minutes, Hodgson Defense Fund, 24 June 1971, St. Paul, MARC Papers, Box 120–2B; Lucas et al., “Appellant’s Brief,” Hodgson v. State, Minnesota Sup. Ct., #42966, 77pp., 6 August 1971, and Lucas and Weddington, “First Hospital Abortion Case Appealed in Minnesota,” 6 August 1971, Lucas Box 14.

41. Weddington, A Question of Choice, pp. 89–98; Glen M. Wilkerson to Sarah and Ron Weddington, “Memorandum: In Re Texas Abortion Case,” 22 August 1971, 12pp., Lucas Box 23; Garrow conversations with Roy Lucas, Sarah Weddington, Ron Weddington, Nicholas W. Danforth, Brian L. Sullivan, David M. Tundermann, Daniel M. Schneider, Beatrice Vogel, Barbara Hines, and Margie Hames. Also see Ron Weddington’s comments in Leslie Bennetts, “A Woman’s Choice,” Vanity Fair, September 1992, pp. 148, 152–158.

With regard to Means’s well-known article, “The Law of New York Concerning Abortion and the Status of the Foetus, 1664–1968: A Case of Cessation of Constitutionality,” New York Law Forum 14 (Fall 1968): 411–515, Tundermann reported that Means’s “own conclusions sometime strain credibility: in the presence of manifest public outcry over fetal deaths just prior to the passage of New York’s 1872 abortion law, Means disclaims any impact upon the legislature of this popular pressure (even though the statute itself copies the language of a pro-fetal group).” He added that “Where the important thing is to win the case no matter how, however, I suppose I agree with Means’s technique: begin with a scholarly attempt at historical research; if it doesn’t work, fudge it as necessary; write a piece so long that others will read only your introduction and conclusion; then keep citing it until courts begin picking it up. This preserves the guise of impartial scholarship while advancing the proper ideological goals.” David [Tundermann] to Roy [Lucas], “Legislative Purpose et al.,” 5 August 1971, Lucas Box 13.

42. Roy [Lucas], “Memorandum to Sarah Re: Doe v. Bolton,” 10 August 1971, Lucas Box 5; Garrow conversations with Roy Lucas, Nicholas W. Danforth, David W. Tundermann, Brian L. Sullivan, and Daniel M. Schneider.

43. Lucas, “Brief as Amici Curiae for the American College of Obstetricians and Gynecologists et al.,” Doe v. Bolton, U.S.S.C., O.T. 1971, #70–40, 96pp., 14 August 1971; Lucas et al., “Brief for Appellants,” Roe v. Wade, U.S.S.C., O.T. 1971, #70–18, 145pp., 18 August 1971, esp. pp. 91–95, 101–102, 123; Jacobson v. Massachusetts, 197 U.S. 11, 29–30; Hames et al., “Brief of the Appellants,” Doe et al. v. Bolton, U.S.S.C., O.T. 1971, #70–40, 57pp., 17 August 1971; Pilpel, Wechsler, and Zuckerman, “Brief for Planned Parenthood Federation of America,” Roe v. Wade and Doe v. Bolton, 45pp., 11 August 1971, esp. pp. 10–11, 30, 32, 34; Stearns, “Brief Amicus Curiae on Behalf of New Women Lawyers, Women’s Health and Abortion Project, Inc., and Women’s National Abortion Action Coalition,” Roe v. Wade and Doe v. Bolton, 60pp., 2 August 1971, p. 7; Ryan, “Brief of the American College of Obstetricians and Gynecologists et al.,” Roe v. Wade, 18pp., 17 August 1971, p. 16; Garrow conversations with Roy Lucas, Ron Weddington, and Sarah Weddington.

The additional August amicus briefs were Norma G. Zarky, “Brief Amicus Curiae” for the AAUW, YWCA, and NOW, Roe v. Wade and Doe v. Bolton, 37pp., 10 August 1971; Marttie L. Thompson and Marcia Lowry, “Brief Amicus Curiae for State Communities Aid Association,” Roe v. Wade and Doe v. Bolton, 16pp., 14 August 1971; Helen L. Buttenwieser, “Brief Amicus Curiae for the American Ethical Union, the American Friends Service Committee, the American Jewish Congress, the Episcopal Diocese of New York et al.,” Roe v. Wade and Doe v. Bolton, 35pp., 16 August 1971; and Alan F. Charles and Susan G. Alexander, “Brief Amicus Curiae for the National Legal Program on Health Problems of the Poor, the National Welfare Rights Organization, and the American Public Health Association,” Roe v. Wade, 42pp., 17 August 1971. Also see Jimmye Kimmey to All Attorneys, “Amicus Briefs in Roe v. Wade and Doe v. Bolton,” 25 August 1971, Guttmacher Papers. One other supportive amicus brief was submitted two months later: Charles and Alexander, “Brief Amicus Curiae,” Doe v. Bolton, 53pp., 12 October 1971 (for the same three groups as their earlier brief in Roe).

On the Doe amicus brief, also see Warren E. Magee to Lucas, 5 August 1971, Lucas Box 5; Lucas to Milan Vuitch, 12 August 1971, Lucas Box 8; New York Times, 15 August 1971, p. 56; and American Medical News, 23 August 1971, p. 10. On the Roe brief, also see Dallas Morning News, 5 September 1971, p. A14, and Norman Dorsen to Lucas, 8 September 1971, Lucas Box 22. With regard to Georgia, also see ACLU of Georgia Executive Committee Minutes, 21 July 1971, Georgia ACLU Papers, and Atlanta Constitution, 3 August 1971.

44. Lucas to Means, 12 August 1971, Lucas Box 25; Means to Hames, 17 August 1971, Hames Papers; Means to Larry Lader, 29 August 1971, Lader Box 16; Weddington, A Question of Choice, p. 99; Garrow conversations with Sarah Weddington, Ron Weddington, Cyril Means, Margie Hames, and Roy Lucas.

45. Weddington to Michael Rodak, 30 August and 8 September 1971, Lucas Box 22; Lucas to Nathan H. Rappaport, 14 September 1971, Lucas Box 25; Lucas to Homer Kandaras, 14 September 1971, Lucas Box 22; Lucas Interview with Vose; Garrow conversations with Roy Lucas and Sarah Weddington.

On the Kansas case, Poe v. Menghini, filed 24 September 1971, see Frank D. Menghini to Roosevelt Butler, 29 July 1971, and a 23 September 1971 agreement between Lucas, Dr. Lynn D. Weller, Jr., and the Douglass Hospital of Kansas City, Kansas, Lucas Box 7; as well as Lucas to A. F. “Tony” Ringold, 27 September 1971, Lucas Box 21; Kansas City Star, 24 September 1971, and Kansas City Times, 21 October 1971; also see Lader, Abortion II, pp. 181–182. U.S. District Judge Wesley Brown on 28 September denied Lucas’s 24 September request for a temporary restraining order against the Kansas statute, but a full hearing before a three-judge federal panel took place in Kansas City on October 20.

46. Lucas to Hames, 19 September 1971, and Hames to Lucas, 28 September 1971, Hames Papers; Garrow conversations with Roy Lucas and Margie Hames.

47. “Statement from the Nominating Committee,” 13 September 1971, Lucas Box 27; John Cowles to Frank M. Rarig, Jr., 21 September 1971, and Rarig, Hodgson Legal Defense Fund Steering Committee Minutes, 30 September 1971, MARC Box 120-2B; Lucas, “Statement on Medical Referral Agencies,” 27 September 1971, and “Memorandum to NARAL Board Members and Others,” 1 October 1971, Lucas Box 25. Also see Lucas to Rarig, 7 October 1971, MARC 120-2B.

48. Gidding to Lamm, 12 August 1971, and Biddy Hurlbut to Gidding, 16 September 1971, NARAL Boxes 2 and 3; New York Times, 20 August 1971, p. 9, 18 September 1971, p. 1, 24 September 1971, p. 1, 4 October 1971, p. 27, 5 October 1971, p. 28; NARAL Annual Meeting Minutes, 3–4 October 1971, “Statement by Lawrence Lader,” 3 October 1971, NARAL I-5; Lucas to Frank Rarig, 7 October 1971, MARC 120–2B; American Medical News, 18 October 1971, p. 7; Lucas, “Memorandum to NARAL Membership,” 8 November 1971, and “The Threat of the Lucas Case,” n.d. [c.18 November 1971], NARAL I-25; Robert L. Webber to Lader, 16 November 1971, PPFA II-120; Jones to Gidding, 22 November 1971, NARAL Box 5; Lader, Abortion II, pp. 180–181. Also see Hurlbut to Gidding, 21 October and 6 November 1971, NARAL Box 3; Time, 27 September 1971, pp. 67–70; Nathanson, Aborting America, pp. 154–155; and especially Nellis to Means, 1 November 1971, Lader Box 16, which indicates that the anti-Lucas rebuttal (“The Threat of the Lucas Case,” above) was prepared for Means and Lader at least in part by Joe Nellis.

On Black and Harlan’s retirements, see New York Times, 18 September 1971, pp. 1, 12, and 24 September 1971, pp. 1, 20; on Black’s and then Harlan’s deaths, see New York Times, 25 September 1971, p. 1, and 30 December 1971, pp. 1, 29. On the two justices’ final years on the Court, see Howard Ball, “Justice Hugo L. Black,” and Wallace Mendelson, “Justice John M. Harlan,” in Lamb and Halpern, eds., The Burger Court, pp. 35–62 and 193–211.

49. Weddington, A Question of Choice, p. 100; Weddington to Virginia Whitehill, 23 September 1971, “Thursday” [14] October 1971, and 28 October 1971, Whitehill Papers; Weddington to Margie Hames, “Friday” [15] October 1971, Hames Papers; Dallas Morning News, 16 September 1971, p. D1, 22 September 1971, p. A14. The official sponsor of Weddington’s September 15 admission to the Supreme Court bar was U.S. District Judge Sarah T. Hughes. With regard to Weddington’s statement in the 23 September letter that “Meeting Jane Roe was fascinating,” also see the discussion in note 17 of chapter seven.

50. On the Utah case, Doe v. Rampton, U.S.D.C. D.Utah, #C-234-70, which had been argued in late January, see the unreported, eight-page 8 September 1971 “Opinion and Judgment” which the panel’s 2 to 1 majority, Circuit Judge J. Oliver Seth and Senior District Judge A. Sherman Christensen, filed on 29 September, and Chief District Judge Willis W. Ritter’s energetic ten-page dissent; also see Ogden Standard-Examiner, 27 January 1971. Plaintiffs’ attorney David “Sandy” Dolowitz filed his jurisdictional statement of appeal with the Supreme Court on 4 November 1971. Doe v. Rampton, U.S.S.C., O.T. 1971, #5666, National Archives, RG 267, Box 194.

51. Vuitch v. Maryland, 404 U.S. 868; E. Robert Seaver to E. Barrett Prettyman, Jr., 12 October 1971, Lucas Box 9; Washington Post, 13 October 1971; Nellis to Lader, 13 October 1971, NARAL Box 7; Vuitch v. Hardy, C.A.#71–1129 (D. Md.), 13 October 1971; Garrow conversations with Roy Lucas and Milan Vuitch. Also see Lucas et al., “Petition for a Writ of Certiorari,” Vuitch v. Maryland, U.S.S.C., O.T. 1970, #1533, 20pp., March 1971, Lucas Box 8, and Justice Brennan’s 4 October 1971 conference tally, showing the 5 to 2 vote, in Brennan Docket Book, Box 417.

52. 404 U.S. 813, 12 October 1971; E. Robert Seaver to Lucas, 12 October 1971. The Court also granted permission for the filing of the various amicus briefs that had been submitted in the case, and rejected the request appended to Nancy Stearns’s amicus submission that she be allowed to participate in the oral argument. Justice Douglas’s notes indicate that while both of the actions with regard to oral argument were unanimously agreed upon, four justices—Douglas, Brennan, Stewart, and White—approved the filing of all the amicus briefs, while two—Burger and Blackmun—voted against accepting those submissions, except with regard to the ACOG one, which Justice Blackmun took no part in considering. Douglas’s notations do not indicate whether Justice Marshall was absent or simply did not participate. See Douglas’s notations on “KRR” [Kenneth R. Reed], Roe v. Wade, Doe v. Bolton, 2 October 1971, Douglas Box 1589.

53. Beasley to E. Robert Seaver, 18 August 1971 (requesting extension until 15 November) and Seaver to Beasley, 24 August 1971 (granted only until 15 October), Doe Case File, National Archives, RG 267, Box 16; Floyd to Michael Rodak, 10 September 1971, and Seaver to Floyd, 14 September 1971 (requesting and receiving extension until 15 October), Roe Case File, National Archives, RG 267, Box 9; Arthur K. Bolton et al., “Brief for Appellees,” Doe v. Bolton, U.S.S.C., O.T. 1971, #70–40, 79pp., 15 October 1971; Margaret Shannon, “Matters of Life and Death,” Atlanta Journal-Constitution Magazine, 23 April 1972, pp. 7–17; Garrow conversations with Dorothy Beasley, Elizabeth Rindskopf, Arthur K. Bolton, and Jay Floyd. Also see Ferdinand Buckley et al., “Brief of Ferdinand Buckley as Amicus Curiae,” Doe v. Bolton, 17 pp., 14 October 1971. Beasley’s earlier Supreme Court argument against Rindskopf came on 23 March 1971 in Bell v. Burson, 402 U.S. 535, decided by a unanimous Court on 24 May 1971.

54. Crawford C. Martin et al., “Brief for Appellee,” Roe v. Wade, U.S.S.C., O.T. 1971, #70–18, 58pp., 19 October 1971; McKernan to Alfred Walker, 2 July 1970, Alfred L. Scanlan to William R. “Bud” Considine, 26 August 1971, Jerome A. Frazel, Jr., to Floyd, 9 September 1971, Dennis J. Horan to Floyd, 16, 21, and 24 September 1971, Texas AG File 70–308; Floyd in Dallas Morning News, 15 May 1989, pp. C1, C3, Boston Globe, 15 May 1989, pp. 8, 11, and Dallas Times-Herald, 4 July 1989, p. A13; Garrow conversations with Jay Floyd, John Tolle, Henry Wade, and Robert C. Flowers. The book to which Horan referred Floyd was Germain Grisez, Abortion (New York: Corpus Books), at pages 382–389.

Four of the six other antiabortion amicus briefs were largely unremarkable. See Charles E. Rice, “Brief Amicus Curiae of Americans United for Life,” Roe v. Wade, 11pp., 30 August 1971; Eugene J. McMahon, “Brief of Women for the Unborn et al.,” Roe v. Wade, 18pp., 17 September 1971; Robert E. Dunne, “Brief of Amicus Curiae Robert L. Sassone [president of “LIFE,” the “League for Infants, Fetuses, and the Elderly”],” Doe v. Bolton, 55pp., 12 October 1971; and Joseph P. Witherspoon, “Brief Amicus Curiae,” Roe v. Wade, October 1971. Also see note 53 above and note 55 below. See as well Witherspoon to E. Robert Seaver, 20 November 1971, Roe Case File, National Archives, RG 267, Box 9; and William K. Kimble, Texas Southern Law Review 1 (1971): 173–180.

55. Martin et al., “Brief for Appellee,” Roe v. Wade, 19 October 1971, pp. ii, iii, 9, 10, 12, 16, 20, and 26; Horan, Frazel, et al., “Motion and Brief Amicus Curiae of Certain Physicians …” Roe v. Wade and Doe v. Bolton, 79pp., 15 October 1971; Scanlan et al., “Brief Amicus Curiae of the National Right to Life Committee,” Roe v. Wade and Doe v. Bolton, 61pp., 8 October 1971, p. 7. Also see McKernan to “Gentlemen,” 27 October 1971, Texas AG File 70–308 (telling Floyd “I am very pleased that you found it possible to insert some of the medical evidence which I had suggested to you” and congratulating him for “what I feel is a fine piece of legal writing both in organization and content”). The duplication between the two briefs can be traced by comparing pages 30 to 54 of Texas’s “Brief for Appellee” with pages 7 to 26 of Horan and Frazel’s “Brief Amicus Curiae.” Also compare the “Brief for Appellee” at p. 27 with the Scanlan amicus brief at p. 24; also see Cyril C. Means, “The Phoenix of Abortional Freedom,” New York Law Forum 17 (1971): 335–410, at 406.

56. New York Times, 22 October 1971, pp. 1, 24 and 25, 24 October 1971, p. IV-1, 26 October 1971, p. 1, 28 October 1971, p. 26; Nellis to Means, 15 November 1971, Lader Box 16. On Justice Powell, see J. Harvie Wilkinson III, Serving Justice: A Supreme Court Clerk’s View (New York: Charterhouse, 1974), Wilkinson, “Honorable Lewis F. Powell, Jr.: Five Years on the Supreme Court,” University of Richmond Law Review 11 (Winter 1977): 259–267; Jacob W. Landynski, “Justice Lewis F. Powell, Jr.,” in Lamb and Halpern, eds., The Burger Court, pp. 276–314; and John C. Jeffries, Jr.’s forthcoming Justice Lewis F. Powell, Jr.: A Biography (New York: Macmillan, 1994). On now Chief Justice Rehnquist, see Sue Davis, Justice Rehnquist and the Constitution (Princeton: Princeton University Press, 1989), and Davis, “Justice William H. Rehnquist,” in Lamb and Halpern, eds., The Burger Court, pp. 315–342; also see Donald E. Boles, Mr. Justice Rehnquist, Judicial Activist: The Early Years (Ames: Iowa State University Press, 1987).

57. New York Times, 28 October 1971, pp. 1, 22; Gerald Lipson and Dianne Wolman, “Polling Americans on Birth Control and Population,” Family Planning Perspectives 4 (January 1972): 39–42.

58. Lucas to Weddington, 2 November 1971, Lucas Box 22; Thompson v. State, 493 S.W.2d 913; Dallas Times Herald, 2 November 1971, pp. 19, 21, 21 November 1971, p. A34; New York Times, 3 November 1971, p. 17; Washington Post, Dallas Morning News, Houston Chronicle, Houston Post and Austin American-Statesman, all for 3 November 1971; Scanlan to Floyd, 5 November 1971, Texas AG File 70–308. A full transcript of Dr. C. W. Thompson III’s May 1969 trial—at which the young woman who had undergone an incomplete abortion testified against him—is located in the subsequent U.S. Supreme Court case file, Thompson v. Texas, O.T. 1971, #1200, National Archives, RG 267, Box 296.

59. Weddington to Means, 3 November 1971, Pilpel-SSC; Lucas to Stuart Kinard, 5 November 1971, Lucas Box 22; Weddington to Whitehill, 14 and 28 October 1971, Whitehill Papers; Lucas to Weddington, 7 November 1971, Lucas Box 7; Garrow conversations with Sarah Weddington, L. A. Scott Powe, Roy Lucas, Linda Coffee, and Ron Weddington.

60. E. Robert Seaver to Lucas, 15 November 1971, and Lucas to Seaver, 18 November 1971, Lucas Box 22; Houston Post, 18 November 1971; Weddington to Whitehill, 23 November 1971, Whitehill Papers; Coffee to Seaver, 24 November 1971, Seaver notes, 29 November 1971, and Weddington to Seaver, 29 November 1971, Roe Case File, National Archives, RG 267, Box 9; Weddington to Lucas, 29 November 1971, Whitehill Papers; Seaver to Weddington, 30 November 1971, Lucas Box 22; Lucas to Weddington, 23 July 1972, Whitehill Papers; Weddington, A Question of Choice, p. 102; Garrow conversations with Sarah Weddington, Ron Weddington, Roy Lucas, Linda Coffee, and Roy Merrill. No copy of Marsha King’s November 22 telegram appears to have survived. Two decades later, Lucas would assert that “Cyril, et al. found in Sarah an opportunistic, very inexperienced, malleable individual who technically had to do no more than persuade” the three clients to support her claim and “who risked the results of an important social movement to gratify her own ego and ambition.” Lucas, “Notes on the Efforts in 1965–1973,” pp. 27, 94.

61. Robert H. Quinn et al., “Brief for the Appellant,” Eisenstadt v. Baird, U.S.S.C., O.T. 1970, #70–17, 14 May 1971; Pilpel, Wechsler and Zuckerman, “Brief of the Planned Parenthood Federation of America,” Eisenstadt v. Baird, #70–17, 14 June 1971; Roger P. Stokey and Stephen M. Weiner, “Brief for Amicus Curiae Planned Parenthood League of Massachusetts,” Eisenstadt v. Baird, #70–17, 14 June 1971; Sylvia S. Ellison, “Brief for Human Rights for Women, Inc.,” Eisenstadt v. Baird, #70–17, 15 July 1971; Balliro, “Brief for the Appellee,” Eisenstadt v. Baird, #70–17, 15 July 1971; Matthew H. Feinberg to Mel Wulf, 16 April 1971, Wulf to John A. Robertson, 1 July 1971, Robertson to Wulf, 7 July 1971, and Tydings to Wulf, 15 November 1971, ACLU 1975 Vol. 19; Gruening to Baird, 14 September 1971, Baird Papers; Tydings to E. Robert Seaver, 28 September 1971, Balliro to Seaver, 27 October and 1 November 1971, and Baird to Seaver, 1 November 1971, Eisenstadt Case File, National Archives, RG 267, Box 8; Wulf, Lawrence G. Sager, and Robertson, “Brief of the American Civil Liberties Union and the Civil Liberties Union of Massachusetts,” Eisenstadt v. Baird, #70–17, 26pp., 26 October 1971, pp. 9, 11, 14; Tydings and David W. Rutstein, “Supplemental Brief of Appellee,” Eisenstadt v. Baird, #70–17, 1 November 1971; Garrow conversations with William R. Baird, Joseph D. Tydings and Jane Zuckerman. Also see New York Times, 21 September 1971, p. 30, and Manfredonia v. Barry, 401 F. Supp. 762 (E.D.N.Y.), 25 September 1975.

62. Transcript of Oral Argument, Eisenstadt v. Baird, U.S.S.C., O.T. 1971, #70–17, 17 November 1971, 41pp., esp. pp. 11–14, 16, 21, 28, 39–40.

63. Douglas Conference Notes, Eisenstadt v. Baird, 19 November 1971, Douglas Box 1543. Brennan in resisting any First Amendment holding had cited U.S. v. O’Brien (391 U.S. 367, 1968); White in saying that the law ought to be affirmed cited Ferguson v. Skrupa (372 U.S. 726, 1963). Justice Brennan’s docket book sheets on Eisenstadt contain no notes on the conference discussion aside from a vote tally showing a 5 to 2 majority in favor of affirmance, with Chief Justice Burger and Justice White marked as dissenters. Brennan Docket Books, Boxes 418 and 419.

64. “RLJ” [Richard L. Jacobson] to “Dear Mr. Justice,” 23 November 1971, Douglas Box 1543; Burger to Douglas, and Douglas to Burger, 23 November 1971, Douglas Box 1543 and Brennan Box 255; Brennan assignment sheet, 23 November 1971, Brennan Box 249; Brennan circulations of 13, 23, and 29 December 1971, Marshall to Brennan, 13 December 1971, Stewart to Brennan, 22 December 1971, Brennan Box 255 and Marshall Box 81; Burger to Douglas, 28 December 1971, Brennan Box 255, Douglas Box 1543 and Marshall Box 81; Garrow conversations with Paul R. Hoeber, Gerald Goldman, Paul Gewirtz, Richard L. Jacobson, William H. Alsup, Benjamin W. Heineman, Jr., and Richard D. Parker. No written materials reflecting or documenting the preparation or composition of the Brennan opinion in advance of the initial December 13 typeset circulation appear in any of Justice Brennan’s files.

65. Hames to Cyril Means, 15 November 1971, Hames to Graham, 18 November 1971, Hames to Paul Shimek, Jr., 18 November 1971, Hames Papers; Atlanta Constitution, 24 November 1971, p. B3; Graham to Hames, 29 November 1971, Hames Papers; Garrow conversations with Margie Hames. Reed v. Reed, 404 U.S. 71 (22 November 1971), was argued on October 19; the Florida case was Mitchum v. Foster, 407 U.S. 225 (1972).

66. Floyd, “Motion to Postpone Argument and Submission,” Roe v. Wade, 30 November 1971, Roe Case File, National Archives, RG 267, Box 9; Weddington, A Question of Choice, p. 102; American Medical News, 6 December 1971, pp. 12–13 and 20 December 1971, p. 4; “WHA” [William H. Alsup] note, 2 December 1971, Douglas Box 1589; New York Times, 7 December 1971, p. 1, 11 December 1971, p. 1, 14 December 1971, p. 21; Roe v. Wade, 404 U.S. 981 (7 December 1971); Garrow conversations with Paul Gewirtz, Richard L. Jacobson, Benjamin W. Heineman, Jr., Richard D. Parker, William H. Alsup, and Gerald Goldman. Powell and Rehnquist officially joined the Court on 7 January 1972.

67. New York Times, 4 December 1971, pp. 29, 37, 10 December 1971, p. 32, 17 December 1971, p. 48, 23 December 1971, p. 24; Lucas to James Nespole, 17 December 1971, Lucas Box 19; Minneapolis Tribune and St. Paul Dispatch, 10 December 1971; Lucas to Irene Hoebel, 21 December 1971, MARC 120–2B; Lucas, “Annual Report to [Madison Institute] Trustees,” 28 December 1971, Emerson Box 13; San Francisco Chronicle, 9 December 1971, p. 25; San Francisco Examiner, 9 December 1971, p. 44; Zad Leavy, Norma G. Zarky, and Alan F. Charles, “Amicus Curiae Brief on Behalf of Medical School Deans, Professors and Others,” People v. Pettegrew and People v. Barksdale, Cal. Sup. Ct., Crim. #15841 and 15866, 47pp., 18 November 1971; Ruth Roemer to Lucas, 19 January 1972, Lucas Box 25; Garrow conversations with Ruth Roemer and Zad Leavy.

On WONAAC and the Wheeler case, also see Means to Hames, 20 October 1971, Hames Papers; Austin American-Statesman, 17 October 1971, p. 2, and 23 October 1971; Nellis to Means, 1 November 1971, Lader Box 16; New York Times, 21 November 1971, p. 95; Ellen Frankfort, Vaginal Politics (New York: Quadrangle Books, 1972), pp. 97–100; and Lader, Abortion II, pp. 188–189. On Byrn, also see Byrn, “Abortion on Demand: Whose Morality?,” Notre Dame Lawyer 46 (Fall 1970): 5–40; Science News, 29 January 1972, p. 75; and Frankfort, Vaginal Politics, pp. 94–97.

68. Daily Texan, 2 December 1971; Dallas Times Herald, 12 December 1971, p. D10; Weddington Interview with Cheek, pp. 20–21, 36; Weddington in Vicki Quade, “Our Bodies, Our Law,” The Barrister 13 (Summer 1986): 14ff., at 16; Milbauer, The Law Giveth, pp. 53–54; Weddington, A Question of Choice, pp. 101, 106–108; Garrow conversations with Margie Hames, Sarah Weddington, Ron Weddington, Joseph Nellis, Cyril Means, Nancy Wechsler, and Jane Zuckerman.

69. Texas Citizens for Abortion Education [Newsletter], March 1972, p. 2; Weddington, A Question of Choice, p. 109; Floyd note sheet, n.d., Texas AG File 70–308; Garrow conversations with Sarah Weddington, Ron Weddington, Linda Coffee, Virginia Whitehill, Roy Merrill, Fred Bruner, Margie Hames, Tobi Schwartz, Ruste Kitfield, Judith [Bourne] Rooks, Peter Bourne, Gale Siegel Messerman, Reber F. Boult, Jr., Pamela Walker, Roy Lucas, Bob Hall, Jimmye Kimmey, Brian Sullivan, Nicholas W. Danforth, Daniel M. Schneider, and David W. Tundermann.

70. Transcripts and Tape Recordings of Roe v. Wade and Doe v. Bolton Oral Arguments, 13 December 1971, National Archives; [Floyd], “Introduction [Outline of Oral Argument Presentation],” n.d. [c.13 December 1971], 11pp., and “1st Contention [earlier draft of the same],” n.d., 10pp., Texas AG File 70–308; Washington Post, 14 December 1971, p. A3; Dallas Morning News, 14 December 1971, p. A9; Houston Chronicle, 14 December 1971; American Medical News, 20 December 1971, pp. 4, 9; Weddington in Dallas Morning News, 22 April 1973, p. E1; Weddington Interview with Duke, pp. 4–5; Weddington Interview with Cheek, pp. 23–24; Weddington in Fulton County Daily Report, 9 February 1989, pp. 8–9; Weddington, A Question of Choice, pp. 115–119; Hames in Atlanta Journal-Constitution Magazine, 11 March 1973, pp. 22ff.; Woodward and Armstrong, The Brethren, pp. 165–167; Milbauer, The Law Giveth, pp. 52, 55; O’Brien, Storm Center, pp. 26–28; Garrow conversations with Sarah Weddington, Jay Floyd, Margie Hames, Dorothy Beasley, Linda Coffee, Ron Weddington, Peter Bourne, and Jimmye Kimmey. The article which Weddington cited is Cyril C. Means, “The Phoenix of Abortional Freedom,” New York Law Forum 17 (1971): 335–410, esp. at 336 and 402–403.

Also see Ft. Worth Star-Telegram, 13 December 1971; Atlanta Journal, 13 December 1971; Atlanta Constitution, 14 December 1971; Dallas Times-Herald, 14 December 1971; and 10 Criminal Law Reporter 4117–4119. Published versions of the Roe transcript contain a modest number of errors that can be detected only when a listener carefully compares the transcript to the actual audio recording of the argument. The identity of most but not all questioners can also be determined from the tapes.

71. Garrow conversations with Sarah Weddington, Margie Hames, Jay Floyd, Dorothy Beasley, Linda Coffee, Tobi Schwartz, Ron Weddington, Jimmye Kimmey, Peter Bourne, Brian Sullivan, Gale Siegel Messerman, Virginia Whitehill and Pamela Walker; Weddington to Jay Floyd, 20 December 1971, Texas AG File 70–308; Lucas to Morton Goldstein and to Barbara Phillips, 3 January 1972, Lucas Box 25; Nancy Stearns to Hames, 5 January 197[2], Hames Papers; Science News, 29 January 1972, p. 75; Weddington, A Question of Choice, p. 121. Also see Lynne N. Henderson, “Legality and Empathy,” Michigan Law Review 85 (June 1987): 1574–1653, at 1621–22, who asserts that “Roe v. Wade was not well argued—counsel for both sides … seemed unprepared to answer questions, did not respond to questions, did not have facts at their disposal,” and Lee Epstein and Joseph F. Kobylka, The Supreme Court and Legal Change (Chapel Hill: University of North Carolina Press, 1992), pp. 179–182, who characterize Floyd’s performance as “downright awful” and Weddington’s as “less than stellar,” since “she sounded more like a lobbyist staking out a policy question than an attorney making a legal claim.” Also note H. W. Perry, Jr., Deciding to Decide (Cambridge: Harvard University Press, 1991), p. 127, who observes that in interviews with five sitting justices and some sixty-four clerks, most of whom served in the late 1970s, “Time and again, I was told that most state attorneys general are terrible litigators.”

72. Douglas Conference Notes on Roe and Doe, 16 December 1971, Douglas Box 1588; Brennan Docket Book Conference Notes, 16 December 1971, Brennan Boxes 418 and 419. Also see Woodward and Armstrong, The Brethren, pp. 169–170; James F. Simon, Independent Journey (New York: Harper & Row, 1980), pp. 438–442; O’Brien, Storm Center, pp. 28–29, and especially Bernard Schwartz, The Unpublished Opinions of the Burger Court (New York: Oxford University Press, 1988), pp. 84–86, and Schwartz, The Ascent of Pragmatism (New York: Addison-Wesley, 1990), pp. 47, 298–299.

73. Brennan Conference List for 16 December 1971, Brennan Box 249; 17 and 20 December 1971 Assignment Lists, Brennan Box 249 and Marshall Box 75; Douglas Conference Notes, 16 December 1971, Douglas Box 1588; Douglas to Burger, 18 December 1971, Burger to Douglas, 20 December 1971, Brennan Box 281 and Douglas Box 1589; Garrow conversations with William H. Alsup, Richard L. Jacobson, Paul R. Hoeber, Paul Gewirtz, Benjamin W. Heineman, Jr., Richard D. Parker, Larry A. Hammond, and G. Edward White. Brennan’s docket book sheets contain no vote tallies for the 1971 Roe and Doe discussions, and no conference notes or docket book pages for the 1971 Term appear among Justice Marshall’s otherwise voluminous Supreme Court papers. Also see Woodward and Armstrong, The Brethren, pp. 170–172; Melvin I. Urofsky, ed., The Douglas Letters (Bethesda, MD: Adler & Adler, 1987), pp. 181–182; Schwartz, The Unpublished Opinions of the Burger Court, pp. 86–87; Port of Portland v. United States, 408 U.S. 811 (29 June 1972).

On Douglas’s widespread reputation for unfriendly moodiness, see Schwartz, The Ascent of Pragmatism, pp. 19–20 (“the quintessential loner—a lover of humanity who did not like people”) and Howard Ball and Melvin Urofsky’s contributions in Stephen L. Wasby, ed., “He Shall Not Pass This Way Again”: The Legacy of William O. Douglas (Pittsburgh: University of Pittsburgh Press, 1990), pp. 32 and 36–37. Urofsky quotes Justice Marshall, in a 17 May 1988 interview, as characterizing Douglas as “about as independent a cuss as I knew.”

74. Blackmun in Bill Moyers’s 1987 PBS “In Search of the Constitution,” and in Washington Post, 20 April 1992, pp. A1, A4; Douglas to Brennan, 22 December 1971, with attachment, and Brennan to Douglas, 30 December 1971, Brennan Box 281 and Douglas Box 1589. Douglas’s December 22 draft also appears in Schwartz, The Unpublished Opinions of the Burger Court, pp. 87–102, at 93–102. Also see Schwartz, The New Right and the Constitution (Boston: Northeastern University Press, 1990), pp. 59–60. In mid-January Douglas also mentioned Griswold and the Ninth Amendment in a short public dissent from the Court’s denial of certiorari in a case where a California high school had suspended a male student who had refused to shorten the length of his hair. Under Griswold, Douglas said, “liberty” “includes at least the fundamental rights ‘retained by the people’ under the Ninth Amendment,” and a decision about the length of one’s hair was “a purely private choice.” Olff v. East Side Union High School District, 404 U.S. 1042, 1043–44 (17 January 1972), denying cert. to 445 F.2d 932 (9th Cir., 1971), which in turn had reversed 305 F. Supp. 557 (N.D. Cal., 1969). Also see Dale J. Galvin, Willamette Law Journal 8 (June 1972): 277–283. A profusion of additional “hair length” cases, many involving discussions of either the Ninth Amendment and/or Griswold, percolated in a significant number of federal district and circuit courts between 1966 and 1972, but in no instance did the Supreme Court accord any of them substantive review. See Ferrell v. Dallas Independent School District, 261 F. Supp. 545 (N.D. Tex., 1966), affirmed 392 F.2d 697 (5th Cir., 1968), cert. denied 393 U.S. 856 (15 October 1968); Anderson v. Laird, 437 F.2d 912, 916 (7th Cir., 1971), cert. denied 404 U.S. 865 (12 October 1971); and Freeman v. Flake, 448 F.2d 258, 261 (10th Cir., 1971), cert. denied 405 U.S. 1032 (Douglas dissenting), 27 March 1972. Also see Breen v. Kahl, 296 F. Supp. 702 (W.D. Wis.), 20 February 1969; Richards v. Thurston, 424 F.2d 1281, 1284–85 (1st Cir.), 28 April 1970; Watson v. Thompson, 321 F. Supp. 394, 401–02 (E.D. Tex.), 6 January 1971; Berryman v. Hein, 329 F. Supp. 616, 620 (D. Idaho), 17 February 1971; Bishop v. Colaw, 450 F.2d 1069, 1075 (8th Cir., 1971); Stull v. School Board, 450 F.2d 339, 347 (3d Cir., 1972); and especially Karr v. Schmidt, 460 F.2d 609, 614, 619, 624 (5th Cir., 1972). Also note 401 U.S. 1201, and Murphy v. Pocatello School District, 94 Idaho 32, 480 P.2d 878, 883 (Idaho Sup. Ct. 1971).

75. Blackmun to Burger; 18 January 1972, Brennan Box 249 and Marshall Box 99; “WHA” [William H. Alsup] to Douglas, 25 January 1972, Douglas Box 1589; Hanrahan v. Doe, 404 U.S. 1012 (10 January 1972); Nichol v. Kennan, 404 U.S. 1055 (24 January 1972); Chicago Tribune, 25 January 1972, p. 2. Also see Woodward and Armstrong, The Brethren, p. 176. On Kennan and the highly complex procedural developments in the Wisconsin litigation, also see Joseph L. Nellis, “Memorandum re Babbitz v. McCann,” 14 June 1971, and Nellis to Otto J. Kerner, 18 June 1971, NARAL Box 6; Nichol v. Kennan, 404 U.S. 879 (19 October 1971), and 404 U.S. 1036 (17 January 1972); “KRR” [Kenneth R. Reed] to Douglas, 14 October 1971, Douglas Box 1539; Robert A. Warren et al., “Jurisdictional Statement,” Nichol v. Kennan, 29 October 1971, Nichol Case File #71–595, National Archives, RG 267, Box 189; Nellis to Nathaniel Rothstein and Milton Bordow, 1 November 1971, Lader Box 5; Babbitz v. McCann, 404 U.S. 988 (14 December 1971); Nellis et al., “Brief and Appendix for Appellant,” Babbitz v. McCann, 7th Cir., #71–1763, 34pp., January 1972; Nellis to Cyril Means et al., 3 February 1972, NARAL Box 6 and Lader Box 16; Nellis to Margie Hames, 22 February 1972, Hames Papers; Nellis to Means, 16 and 20 March 1972, NARAL Boxes 6 and 7, Nellis to Jimmye Kimmey, 25 September 1972, NARAL Box 6; and especially “WHA” [William H. Alsup] to Douglas, 5 January 1972, 3pp., Douglas Box 1539, which provides a comprehensive chronological summary of the earlier developments while also observing how “Given that the Court is indicating it will invalidate the Texas and Ga. abortion laws, it would not make much sense to deprive these Wisconsin women of the operation in the meantime. The equities of irreparable harm are clearly in favor of the lower court’s action.”

76. Abele v. Markle, 452 F.2d 1121, 13 December 1971; New York Times, 6 January 1972, p. 24, 7 January 1972, p. 26, 12 January 1972, p. 45, 1 February 1972, p. 34, 11 February 1972, p. 35, 13 February 1972, p. 59, 18 February 1972, p. 34, 26 February 1972, pp. 1, 9, 24 March 1972, p. 45; Byrn v. New York City Health and Hospitals Corp, 329 N.Y.S.2d 722 (App. Div. Sup. Ct.), 24 February 1972, and 333 N.Y.S.2d 63; City of New York v. Wyman, 330 N.Y.S.2d 385 (N.Y. Ct. App.), 10 February 1972. On the Connecticut case, also see Hartford Courant, 18 December 1971; and Elizabeth Gilbertson Wilhelm to Marjorie Fine, and to Stewart Mott, 27 March 1971, Emerson Box 49 and NARAL Box 2. For another unsuccessful effort similar to Professor Byrn’s, see McGarvey v. Magee-Womens Hospital, 340 F. Supp. 751 (W.D. Pa.), 17 March 1972, affirmed without opinion, 474 F.2d 1339 (3d Cir., 1973).

77. Beecham v. Leahy, 287 A.2d 836, 840, 14 January 1972; State v. Barquet, 262 So.2d 431, 437–38, 14 February 1972; Miami Herald, 15 February 1972, pp. A1, A8, 8 April 1972, p. A22; New York Times, 15 February 1972, p. 18; Lawrence Justiz to Lee Gidding, 27 April 1972, NARAL Box 2. On the Vermont case, see particularly Willis E. Higgins, “The Vermont Abortion Suits,” ZPG National Reporter, February 1972, pp. 5, 9–10; also see Lee Gidding to Larry Lader, 22 December 1971, NARAL Box 5; Lucas to Frederick Cross, 9 February 1972, Lucas Box 7; Higgins, “The Phoenix Stirs: Common Law Abortion in Vermont” (unpublished paper, 12 May 1972), 6pp., NARAL I-12; and Lader, Abortion II, p. 190. On the Florida decisions, also see C. Ken Bishop, University of Florida Law Review 24 (Winter 1972): 346–352; and Joseph M. Ellis, Florida Bar Journal 47 (January 1973): 18–22; for legislative background, see Cliff Reuter to Lader, 23 September 1970, Lee Gidding, “Florida Situation,” 27 October 1970, [Gidding], “Florida Situation,” 17 December 1971, and [Gidding], “Florida,” 16 and 24 February 1972, NARAL Box 2.

78. On North Dakota, see Dick Schlorf (North Dakota Citizens for the Legal Termination of Pregnancy) to the Michigan Coordinating Committee for Abortion Law Reform, [10 February 1972], MARC Box 3 (“so far we are operating in sort of an underground manner”), and Faye D. Ginsburg, Contested Lives (Berkeley: University of California Press, 1989), pp. 67–70; on Michigan, see Durlin Hickok and Colin Campbell, “Attitudes Toward Abortion Law Reform …” Michigan Medicine, April 1972, pp. 327–329; and Poe v. Scodeller, U.S.D.C. W.D. Mich., CA# G53–72 [6 March 1972], Lucas Box 12. Also note Tennessee Woman v. David Pack, U.S.D.C. M.D. Tenn., #CA 6538, a challenge to Tennessee’s antiabortion statute in which a federal three-judge panel in an unreported four page opinion on 21 March 1972 declined to order injunctive relief. Texas AG File 70–308.

79. On Oklahoma, see New York Times, 2 March 1972, p. 33; on Georgia, see Atlanta Constitution, 26 and 27 January, 25 and 26 February and 4 March 1972; Sarah Stewart to Lee Gidding, 29 January and 3 March 1972, NARAL Box 2; Atlanta Journal, 23 February 1972, p. B5, 4 March 1972; Atlanta Journal-Constitution, 23 April 1972. Also see Lee Gidding, “Iowa,” 16 February 1972, NARAL Box 3.

80. Austin American-Statesman, 26 January 1972, 7 February 1972, p. 21, 11 February 1972, 30 April 1972, p. D9; Dallas Morning News, 6 February 1972, p. A30, 30 May 1972, p. B7; Ginny Whitehill to Lee Gidding, 9 February, 25 March and 22 April 1972, NARAL Box 5; Houston Chronicle, 23 February 1972; Houston Post, 23 February 1972 and 2 April 1972, p. B8; Abilene Reporter-News, 18 March 1972, p. B3; Whitehill to Ruth [Bowers], 1 April 1972, and Whitehill to Bowers and Weddington, 22 April 1972, Whitehill Papers; New York Times, 17 April 1972, p. 28; Dallas Times-Herald, 28 April 1972; Garrow conversations with Sarah Weddington and Virginia Whitehill. On Weddington’s legislative campaign, also see Ann Richards, Straight From the Heart (New York: Simon & Schuster, 1989), pp. 138–144, and Weddington, A Question of Choice, p. 125.

81. On the ABA, see New York Times, 8 February 1972, p. 37, and James A. Knecht, University of Illinois Law Forum 1972, pp. 177–197; on the Commission on Population Growth and the American Future, see New York Times, 12 March 1972, p. 1, and 17 March 1972, pp. 1, 18. For the January Gallup numbers, see Gerald Lipson and Dianne Wolman, “Polling Americans on Birth Control and Population,” Family Planning Perspectives 4 (January 1972): 39–42. With regard to the “stall,” see Lader to David Huber, 2 February 1972, Lader Box 21; Hall, “Induced Abortion in the United States, 1971,” Journal of Reproductive Medicine 8 (June 1972): 345–347, and Hall’s “Foreword” in David F. Walbert and J. Douglas Butler, eds., Abortion, Society and the Law (Cleveland: Case Western Reserve University Press, 1973), p. ix. On the Massachusetts case, see Commonwealth v. Hare, 280 N.E. 138, 28 February 1972, Gerald A. Messerman in Walbert and Butler, Abortion, Society and the Law, pp. 251–253, and Ellen Messer and Kathryn E. May, Back Rooms (New York: St. Martin’s Press, 1988), p. 211; on earlier developments, see Burlington Free Press, 12 December 1969; Boston Globe, 26 February 1970, pp. 1, 14; Boston Herald-Traveler, 27 February 1970; and Lader, Abortion II, pp. 75–76. Also see generally Time, 20 March 1972, pp. 89–90; National Clergy Consultation Service on Abortion Newsletter, Vol. 3, #1 (May 1972); and compare “A Statement on Abortion by One Hundred Professors of Obstetrics,” American Journal of Obstetrics and Gynecology 112 (1 April 1972): 992–998, with Harvey Karman, “The Paramedic Abortionist,” Clinical Obstetrics and Gynecology 15 (June 1972): 379–387.

82. NARAL memo, 13 January 1972, NARAL I-25; Lucas to Irene Hoebel, 21 December 1971, MARC Box 120-2B; Lucas, “Annual Report to Trustees,” 28 December 1971, Emerson Box 13; Lucas to Pilpel, 3 January 1972, and Pilpel to Lucas, 17 January 1972, Lucas Box 19; Lucas to Ralph Brown, 13 January 1972, Lucas Box 25; Lucas to Richard L. Cates, 18 January 1972, Lucas Box 24; Lucas to James K. Foley, 2 August 1972, Lucas Box 11; Robert E. Hall to Lucas, 22 March 1972, Charles L. Black, Jr., to Lucas, 3 April 1972, and Norman Dorsen to Lucas, 27 April 1972, Emerson Box 13; Garrow conversations with Roy Lucas, Joseph Nellis, Milan Vuitch, Florence “Lee” Vuitch, Larry Lader, and Cyril Means.

83. Stearns to George H. Barlow et al., 26 January 1972, and Forman to Stearns, 31 January 1972, Brennan Box 281; YWCA v. Kugler, 342 F. Supp. 1048, 1069, 1071, 1072, 1082, 29 February 1972. Supreme Court Justice William J. Brennan, as the “circuit” or supervisory justice assigned to the Third Circuit, which encompassed New Jersey, received a copy of both Stearns’s letter and Forman’s reply. Law journal notes on YWCA v. Kugler include Lawrence E. Allison, Jr., Mississippi Law Journal 43 (November 1972): 728–732, and A. G. J. McIntyre, Journal of Urban Law 50 (February 1973): 505–513. Also see “New Jersey’s Abortion Law: An Establishment of Religion?,” Rutgers Law Review 25 (Spring 1971): 452–475, which, despite its face date, actually postdates the Kugler decision, and similarly note Joseph S. Oteri et al., “Abortion and the Religious Liberty Clauses,” Harvard Civil Rights–Civil Liberties Law Review 7 (May 1972): 559–599. Some two years later, in 1974, the Kugler decision was affirmed without opinion by the Third Circuit Court of Appeals (493 F.2d 1402), and certiorari was denied by the U.S. Supreme Court (415 U.S. 989).

84. New York Times, 2 March 1972, p. 31, 5 March 1972, p. 77, 8 March 1972, p. 46, 31 March 1972, p. 36, 9 May 1972, p. 26, 14 May 1972, p. 106, 25 June 1972, p. 69; Trentonian, 2 March 1972, p. 33; Philadelphia Inquirer, 5 March 1972, p. A18; Newark Star-Ledger, 5 March 1972, p. 26; YWCA Magazine, June 1972, pp. 12, 32; Lader to NARAL Executive Committee Members, 2 March 1972, and Lader to Biddy Hurlbut, 8 March 1972, NARAL Box 1; Lader, Abortion II, pp. 191–192. Also see Marianne Dame to Lucas, 6 [March] 1972, and Lucas to Dame, 16 March 1972, Lucas Box 25.

85. Frederick K. Cross to Delmas C. Hill et al., 15 February 1972, Lucas Box 7; Poe v. Menghini, 339 F. Supp. 986, 992–993, 13 March 1972; Means to Lucas, 15 March 1972, Lader Box 5 and Hames Papers; Lucas to Allan Barnes, 8 May 1972, Lucas Box 10.

86. Brennan Circulations (particularly 13 December 1971, p. 15, as well as 16 and 21 March 1972), White Circulations (7 February and 2 March 1972), Blackmun to White, 29 February 1972, Douglas Circulations (13 December 1971, 5 January 1972, and 17, 20, and 21 March 1972), Burger Circulations (10 and 21 March 1972), Brennan Box 255, Douglas Box 1543, and Marshall Box 81; “RLJ” [Richard L. Jacobson] to Douglas (2), 17 March 1972, Douglas Box 1543; Brennan Notes, 5pp., n.d. [22 March 1972], Brennan Box 255; Eisenstadt v. Baird, 405 U.S. 438, 443, 447, 448, 453, 455, 460, 463–64, 465, 472; Garrow conversations with Gerald Goldman, Paul Gewirtz, and Richard L. Jacobson. Also see Stanley v. Illinois, 405 U.S. 645, 651, where Justice White on behalf of a Court majority stated, with a reference to Arthur Goldberg’s concurrence in Griswold, that “The integrity of the family unit has found protection” under the due process and equal protection clauses and the Ninth Amendment.

87. Boston Evening Globe, 22 March 1972, pp. 1, 51; Boston Globe and Boston Herald Traveler, 23 March 1972; Worcester Telegram, 23 March 1972, p. 16; Washington Post, 23 March 1972, pp. A1, A14; New York Times, 23 March 1972, p. 22, 25 March 1972, p. 30; Lucas to Henry Cowie, Jr., 23 March 1972, Lucas Box 13; Hames in Macon Telegraph, 13 April 1972; Richard A. Posner, “The Uncertain Protection of Privacy by the Supreme Court,” Supreme Court Review 1979 (Chicago: University of Chicago Press, 1980), pp. 173–216, at 198; John F. Kippley, Birth Control and Christian Discipleship (Cincinnati: Couple to Couple League, 1985), p. 9; John T. Noonan, Jr., A Private Choice (New York: Free Press, 1979), p. 21; Mary Ann Glendon, Rights Talk (New York: Free Press, 1991), p. 57; William Van Alstyne, “Closing the Circle of Constitutional Review …” Duke Law Journal 1989 (December): 1677–1688, at 1678. Also see Posner, Sex and Reason (Cambridge: Harvard University Press, 1992), pp. 329–331; Van Alstyne, “The Enduring Example of John Marshall Harlan,” New York Law School Law Review 36 (1991): 109–126, at 122; Graham Hughes, The Conscience of the Courts (Garden City, NY: Doubleday, 1975), pp. 33, 55, and 71; Michael J. Sandel, “Moral Argument and Liberal Toleration,” California Law Review 77 (May 1989): 521–538, at 527–528; and Peter S. Wenz, Abortion Rights as Religious Freedom (Philadelphia: Temple University Press, 1992), pp. 28–30.

Note also Harriet F. Pilpel, Nancy F. Wechsler, and Ruth Jane Zuckerman, “U.S. Supreme Court Decision in the Massachusetts Birth Control Case,” 14 April 1972, 12pp.; Pilpel and Wechsler, “Implications of the Baird Decision,” Family Planning/Population Reporter 1 (December 1972): 6–7; William J. Curran, New England Journal of Medicine 286 (1 June 1972): 1198–1199; Morgan S. Bragg, University of Florida Law Review 25 (Fall 1972): 139–159, at 157 (Eisenstadt is “a startling expansion of Griswold”); Gerald Gunther, Harvard Law Review 86 (November 1972): 1–42, at 29–36; Harvard Law Review 86 (November 1972): 116–122; Yale Law Journal 82 (November 1972): 123–154, at 126–128; and Philip B. Kurland, “1971 Term: The Year of the Stewart-White Court,” Supreme Court Review 1972 (University of Chicago Press, 1972), pp. 181–329, at 247–249. Additional law journal notes on Eisenstadt include Christel E. Marquardt, Washburn Law Journal 12 (Fall 1972): 97–101, and Katherine R. Jones, New York University Review of Law and Social Change 3 (Winter 1973): 56–69.

88. Abele v. Markle, 342 F. Supp. 800, 802, 805, 18 April 1972; New York Times, 19 April 1972, pp. 1, 94, 20 April 1972, p. 91, 22 April 1972, p. 34, 23 April 1972, p. IV-3, 10 May 1972, p. 51, 13 May 1972, pp. 1, 38, 15 May 1972, p. 24, 16 May 1972, p. 51, 17 May 1972, p. 53, 19 May 1972, p. 44, 20 May 1972, p. 13, 23 May 1972, pp. 1, 32, 24 May 1972, pp. 1, 51, 25 May 1972, p. 38, 27 May 1972, p. 12, 28 May 1972, p. IV-5, 10 June 1972, p. 35, 18 June 1972, p. 35, 1 July 1972, p. 8; Hearing Transcript, Public Health and Safety Committee, 19 May 1972, 239pp., Transcript of Proceedings, Connecticut House, 22 May 1972, pp. 2–107, and 23 May 1972, pp. 1–14, Transcript of Proceedings, Connecticut Senate, 22 May 1972, pp. 1–145, and 23 May 1972, pp. 1–15, Connecticut State Library; Abele Case File, National Archives, RG 267, Box 386; New Haven Journal-Courier, 1 July 1972 and 5 July 1972, p. 1. Meskill’s attitude toward a rape exception was not unique; twelve years later a prominent antiabortion legal scholar, Basile J. Uddo, would assert that “allowing abortion for rape invites a flood of bogus rape abortions.” Uddo, “Pregnancy Due to Rape and Incest,” in James Bopp, Jr., ed., Restoring the Right to Life (Provo, UT: Brigham Young University Press, 1984), pp. 175–191, at 185.

89. Means to Pilpel, 25 May 1972, Lader Box 3 and PPFA II-184; New York Times, 9 April 1972, p. 70, 14 April 1972, p. 42, 17 April 1972, p. 27, 18 April 1972, p. 43, 19 April 1972, p. 94, 20 April 1972, p. 44, 23 April 1972, p. IV-3, 24 April 1972, p. 24, 25 April 1972, pp. 40, 42, 26 April 1972, p. 31, 27 April 1972, pp. 16, 35, 28 April 1972, pp. 26, 45, 29 April 1972, pp. 30, 35, 1 May 1972, pp. 29, 32, 2 May 1972, p. 32, 3 May 1972, pp. 18, 33, 46, 5 May 1972, pp. 40, 46, 6 May 1972, pp. 1, 12; Lader to NARAL Executive Committee Members, 18 April 1982, NARAL Box 1. Also see “We Have Had Abortions,” Ms., Spring 1972, pp. 34–35, Paul Hoffman, “The Politics of Abortion,” The Nation, 5 June 1972, pp. 712–713, and Fred C. Shapiro, “‘Right to Life’ Has a Message for New York State Legislators,” New York Times Magazine, 20 August 1972, pp. 10, 34–44. When the Illinois plaintiffs’ attorneys, citing Marshall’s refusal to stay the Connecticut order, petitioned to have the stay he had issued in their case vacated, the request was denied first by Justice Rehnquist and then by the entire Court, with only Justice Douglas dissenting. Doe v. Hanrahan, 407 U.S. 902, 12 June 1972.

90. New York Times, 6 May 1972, p. 1, 7 May 1972, pp. 1, 29, 8 May 1972, pp. 1, 36, 43, 9 May 1972, pp. 1, 26, 10 May 1972, pp. 1, 51, 11 May 1972, pp. 1, 37, 40, 41, and 44, 12 May 1972, p. 46, 14 May 1972, pp. 1, 53, 62 and IV-4, 15 May 1972, p. 34, 16 May 1972, p. 1, 21 May 1972, p. IV-7, 25 May 1972, p. 11, 26 May 1972, pp. 34, 40, 27 May 1972, p. 16, 31 May 1972, p. 26; Larry Lader to NARAL Executive Committee Members, 16 May 1972, NARAL Box 1; Wall Street Journal, 17 May 1972; Time, 22 May 1972, p. 23; Newsweek, 22 May 1972, p. 32; Lader in NARAL News, Summer 1972, p. 3; [Alfred F. Moran], “Proposal,” 20 June 1972, Schlesinger 223–1–3; Joan Cassell, A Group Called Women (New York: David McKay, 1977), p. 117. Also see New York Times, 1 June 1972, p. 47, 2 June 1972, p. 41, 8 June 1972, p. 53, 14 June 1972, p. 37, and 17 June 1972, p. 14; Lader, Abortion II, pp. 196–207. See as well Natalie Shainess, “Abortion: Inalienable Right,” New York State Journal of Medicine 72 (1 July 1972): 1772–1775, at 1773 (“a nonsentient, nonindependently viable, noncognitive cell mass is not a human life”); and Suzannah Lessard, Washington Monthly, August 1972, pp. 29–37.

91. New York Times, 25 May 1972, p. 49, 8 June 1972, p. 53, 5 June 1972, p. 28, 21 June 1972, p. 56, 23 June 1972, p. 38; Lee Gidding to Sam Landfather, 22 May 1972, Lader Box 21; Crossen v. Attorney General, 344 F. Supp. 587 (E.D. Ky.), 19 May 1972.

92. Blackmun, “Memorandum to the Conference,” 18 May 1972, and attachment, esp. p. 15, Brennan to Blackmun, 18 May 1972, Douglas to Blackmun, 19 May 1972, Brennan Box 282, Douglas Box 1588 and Marshall Box 99; Brennan Chambers, October Term 1971; Blackmun to Douglas, 22 May 1972, Douglas Box 1589; Garrow conversations with Benjamin W. Heineman, Jr., Paul Gewirtz, and Richard L. Jacobson. Douglas on Monday the 22nd gave updated copies of his Doe draft to both Marshall and Brennan, and wrote but did not send a memo to them, to Stewart and (surprisingly) to White saying that in light of Blackmun’s “apparent problems with the case, I thought it best to circulate” his own Doe draft “to the group of five, thinking we might have a talk about it this week” and volunteering that suggestions would be welcome. “Time is getting late and the case was argued seven [sic] months ago and assigned by the Chief who represented a minority view.” Douglas memo, (“not sent”), 22 May 1972, Douglas Box 1589; Douglas Circulation, 22 May 1972, Marshall Box 99 (“For Justice Marshall—not circulated”) and Brennan Box 281.

Also see Woodward and Armstrong. The Brethren, pp. 183–184; O’Brien, Storm Center, p. 29; Melvin U. Urofsky, ed., The Douglas Letters (Bethesda, MD: Adler & Adler, 1987), pp. 182–185; Schwartz, The Ascent of Pragmatism, pp. 300–305; Phillip J. Cooper, “Justice William O. Douglas,” in Lamb and Halpern, eds., The Burger Court, pp. 163–192, at 185; and especially Schwartz, The Unpublished Opinions of the Burger Court, pp. 103–119 and 144–151.

93. Blackmun, “Memorandum to the Conference,” with attachment, 25 May 1972, Brennan Box 282, Douglas Box 1589 and Marshall Box 99; “WHA” [William H. Alsup] to Douglas, “Mary Doe,” 25 and 26 May 1972, Douglas Box 1589; Douglas to Blackmun, 25 May 1972 (2), Brennan to Blackmun, 25 May 1972, Marshall to Blackmun, 25 May 1972, Blackmun, “Memorandum to the Conference,” 26 May 1972, Brennan Box 282, Douglas Box 1589 and Marshall Box 99; Garrow conversations with Richard L. Jacobson, William H. Alsup, and Paul Gewirtz. Also see Schwartz, The Unpublished Opinions of the Burger Court, pp. 120–140.

Douglas’s papers contain apparently the only surviving copy of a four-page typescript draft of a letter to Blackmun which the Brennan Chambers prepared on May 25 but which Brennan then decided not to send. Addressed “Dear Harry,” the draft states that “I am particularly delighted that there appears to be a Court to confront the central issue in the abortion field and to dispose of it in the way your opinion has so artfully done.” While Brennan’s recommended changes would not “require significant rewriting or delay decision in the case,” should not the Georgia statute, which lacked any fetal time ceiling, be “held invalid in full,” “particularly in view of our recognition that there may be a compelling state interest in protecting such life at some point in pregnancy?” Additionally, “Should we make explicit what appears to be implicit … namely that (1) the fundamental right of choice to have an abortion belongs to the individual pregnant woman, whether married or single, and (2) any state subordinating interest may be asserted only by requirements not merely rationally related, but necessary to its achievement?” Also, “do you think it would be desirable to add an express statement that a physician cannot be subjected to criminal punishment so long as he exercises sound medical judgment, along the lines of Potter’s Vuitch opinion?” Lastly, the opinion ought to make clear that abortions could be performed in licensed clinics as well as in hospitals. No similar copy appears in Justice Brennan’s Papers, but Brennan reportedly conveyed the contents of the letter to a seemingly receptive Blackmun face-to-face. “No. 70–40,” n.d. [25 May 1972], Douglas Box 1589; Brennan Chambers, October Term 1971.

94. Blackmun, “Memorandum to the Conference,” 26 May 1972, Stewart to Blackmun, 30 May 1972, White Circulation in Roe, 3pp., 29 May 1972, Brennan Box 282, Douglas Box 1589, Marshall Box 99. Also see Schwartz, The Unpublished Opinions of the Burger Court, pp. 141–143. At a conference on May 29, the justices also agreed to hold the appeal in Thompson v. Texas until they had decided Roe. See Stuart M. Nelkin and Stuart Kinard, “Jurisdictional Statement,” C. W. Thompson v. Texas, U.S.S.C., O.T. 1971, #1200, 20 March 1972, and Michael Rodak to Carol Vance, 3 May 1972, Thompson Case File, National Archives, RG 267, Box 296; “PG” [Paul Gewirtz] to Marshall, 1 May 1972, Marshall Box 75; and Brennan Docket Book, Box 419.

95. Blackmun, “Memorandum to the Conference,” 31 May 1972, Douglas to Blackmun, 31 May 1972, Brennan to Blackmun, 31 May 1972, Marshall to Blackmun, 31 May 1972, Burger, “Memorandum to the Conference,” 31 May 1972, Brennan Box 282, Douglas Box 1589, and Marshall Box 99; Brennan Chambers, October Term 1971. Also see Schwartz, The Unpublished Opinions of the Burger Court, pp. 143–146. Blackmun’s reference to a “licensed medical facility” appears to mesh with one of the latter suggestions contained in the unsent Brennan letter discussed in note 93 above. Privately Blackmun also felt that the Court should not strike down both abortion statutes and the death penalty (see note 98 below) at the same time.

96. “WHA” [William H. Alsup] to Douglas, “Mary Doe,” 1 June 1972, Douglas Box 1589; Douglas to Burger, 1 June 1972, Powell, “Memorandum to the Conference,” 1 June 1972, Brennan Box 281, Douglas Box 1589, and Marshall Box 99; Garrow conversations with William H. Alsup, Richard L. Jacobson, Paul Gewirtz, and Benjamin W. Heineman, Jr.; Brennan Chambers, October Term 1971. Also see Schwartz, The Unpublished Opinions of the Burger Court, pp. 146–147.

97. Rehnquist, “Memorandum to the Conference,” 1 June 1972, Brennan Box 281, Douglas Box 1589, and Marshall Box 99; “Memorandum from Mr. Justice Douglas,” 4pp. typescript [“OK for printer WOD 6/1/72”] and typeset copy, 2 June 1972, “Mr. Justice Douglas” [“6th draft” (annotation of #5)], 8 June 1972, Douglas Box 1588; “Bill” [“from Justice Brennan”], 2pp., n.d., and “Bill” to “Bill,” [“70–40”], n.d., Douglas Box 1589; White, “Memorandum to the Conference,” 5 June 1972, Brennan Box 281, Douglas Box 1589, and Marshall Box 99; Douglas memorandum, print #6, 13 June 1972, Marshall Box 99; Douglas to Michael Rodak, 26 June 1972, Brennan Box 281 and Douglas Box 1589; Brennan Chambers, October Term 1971; 40 U.S. Law Week 3617 and 404 U.S. 919 (26 June 1972); Garrow conversations with William H. Alsup, Richard L. Jacobson, Benjamin W. Heineman, Jr., Richard D. Parker, and Paul Gewirtz. Brennan’s references were to U.S. v. Wade, 388 U.S. 218 (1967), and Miranda v. Arizona, 384 U.S. 436 (1966). Also see Woodward and Armstrong, The Brethren, pp. 187–189; Simon, Independent Journey, p. 440; Howard Ball in Wasby, ed., “He Shall Not Pass This Way Again,” pp. 7–8, Ball and Cooper, Of Power and Right, pp. 308–309, and Nat Hentoff, “The Justice Breaks His Silence,” Playboy, July 1991, pp. 120–122, 154–158, at 122.

98. Michael Rodak, Jr., to Lucas, and Lucas to “Dear A1,” 26 June 1972, Lucas Box 22; New York Times, 27 June 1972, p. 24; Dallas Morning News, 27 June 1972, p. A6; Medical World News, 14 July 1972; Means in NARAL News, Summer 1972, p. 2; Garrow conversations with Roy Lucas, Sarah Weddington, Ron Weddington, Linda Coffee, Jay Floyd, Margie Hames, and Dorothy Beasley. On Weddington’s legislative campaign, see Austin American-Statesman, 7 May 1972, p. A1, 4 June 1972, p. A1; and Weddington, A Question of Choice, pp. 125 and 134. Beasley’s two death penalty cases, Furman v. Georgia and Jackson v. Georgia, 408 U.S. 238, had been argued on January 17 and were announced on June 29. Peters v. Kiff, 407 U.S. 493, a habeas corpus challenge to the exclusion of black jurors from the trial of a white criminal defendant, was argued on February 22 and decided on June 22. Also see Atlanta Constitution, 14 January 1972, p. B5, and Atlanta Journal-Constitution Magazine, 23 April 1972, pp. 7–17.

99. Washington Post, 4 July 1972, pp. A1, A10; Austin American-Statesman, 4 July 1972, pp. 1, 6; New York Times, 5 July 1972, p. 27; Douglas to Burger, 4 July 1972, Burger to Douglas, 27 July 1972, and Douglas to Burger, 7 August 1972, Brennan Box 281, Douglas Box 1588, and Marshall Box 78; Woodward and Armstrong, The Brethren, p. 229; Blackmun as quoted in Note, “The Changing Social Vision of Justice Blackmun,” Harvard Law Review 96 (January 1983): 717–736, at 723 (characterizing in a 1979 speech in France his “two full weeks” of summer 1972 research as “personally and very privately performed”); Washington Post, 20 April 1992, pp. A1, A4; Garrow conversations with three firsthand observers or participants. Also see The Rag, 31 July 1972, p. 5, and Urofsky, ed., The Douglas Letters, pp. 185–186. Although Burger told Douglas in the July 27 letter that he was writing so as “to allow any future scholar who may peruse the current press accounts or papers of Justices to have the ‘due process’ benefit of all the facts in context,” twenty years later, even when presented with his own 1972 statement, the retired Chief Justice declined to make his Roe and Doe notes and other materials available for review. “I have made it a firm practice not to open my files to third parties for any reason, and I do not believe that it is appropriate for other Justices to do so.” Garrow to Burger, 16 June 1992, and Burger to Garrow, 19 June 1992, author’s files.

100. Weddington to Lee Gidding, 31 August 1972, NARAL Box 5; New York Times, 8 June 1972, p. 38, 19 June 1972, p. 68, 21 June 1972, p. 48, 27 June 1972, p. 30, 28 June 1972, pp. 21, 34, 13 July 1972, pp. 1, 34, 15 July 1972, p. 1, 6 August 1972, pp. 28, 40, 9 August 1972, p. 12, 11 August 1972, p. 8, 17 August 1972, p. 35, 18 August 1972, p. 36, 5 September 1972, p. 1, 25 September 1972, p. 42, 4 October 1972, p. 32; Martin F. McKernan, Jr., “Constitutional Amendments on the Rights of the Unborn,” June 1972, 2pp., Texas AG File 70–308; Garrow conversations with Sarah Weddington, Ron Weddington, and Margie Hames. On Powell’s August 13 speech, also see U.S. News & World Report, 28 August 1972, and Wilkinson, Serving Justice, pp. 102–107, at 105.

101. Vuitch v. Hardy, CA#71–1129 (D. Md.), unreported opinion of Judge Joseph H. Young, 22 June 1972, p. 12; Washington Post, 23 June 1972, pp. C1, C7; Baltimore Sun, 23 June 1972, p. C22; Washington Evening Star, 23 June 1972, 25 June 1972, pp. D1, D3. On subsequent appellate developments, see Lucas et al., “Brief of Respondent in Opposition,” Hardy v. Vuitch, U.S.S.C., O.T. 1971, #1686, 4pp., n.d. [c.July 1972]; 409 U.S. 851 (denying cert.), 10 October 1972; and Lucas et al., “Brief of Appellee,” Hardy v. Vuitch, 4th Cir., #72–1890, 51pp., n.d. [c.November 1972]. See also Lucas, “Verified Complaint in Class Action,” WONAAC et al. v. District of Columbia City Council et al., CA#72–1991 (D.D.C.), 37pp., 4 October 1972, Lucas Box 2.

102. Byrn v. New York City Health and Hospitals Corporation, 335 N.Y.S.2d 390, 392, 31 N.Y.2d 194, 286 N.E.2d 887, 7 July 1972; New York Times, 8 July 1972, pp. 1, 23, 21 July 1972, p. 31, 22 July 1972, p. 31, 27 July 1972, p. 63, 2 August 1972, p. 39, 4 August 1972, p. 35; Thomas J. Ford, “Jurisdictional Statement,” Byrn v. New York City Health and Hospitals Corporation, U.S.S.C., O.T. 1972, #434, 17pp., 14 September 1972, National Archives, RG 267, Box 441; Klein v. Nassau County Medical Center, 347 F. Supp. 496 (E.D.N.Y.), 24 August 1972; New York Times, 25 August 1972, pp. 1, 67, 26 August 1972, p. 16, 29 August 1972, p. 37, 30 August 1972, p. 34, 31 August 1972, p. 37, 1 September 1972, p. 23, 4 September 1972, p. 14, 15 September 1972, p. 41, 20 September 1972, p. 17, 27 September 1972, p. 27. On the New York Court of Appeals decision in Byrn, also see Virginia N. Duin, “New York’s Abortion Reform Law: Unanswered Questions,” Albany Law Review 37 (1972): 22–60; Fordham Law Review 41 (December 1972): 439–449; and James A. Kearns, Notre Dame Lawyer 48 (February 1973): 715–727; on Klein, also see Alan F. Charles, Clearinghouse Review 6 (November 1972): 422–424, and 412 U.S. 925 (1973).

103. New York Times, 11 August 1972, p. 26, 13 August 1972, p. 73, 25 August 1972, p. 67, 16 September 1972, p. 64, 3 October 1972, p. 94, 2 November 1972, p. 91; Cheaney v. State, 285 N.E.2d 265 (Ind. Sup. Ct.), 24 July 1972, cert. denied, 410 U.S. 991 (1973) [nonphysician appellant]; American Medical News, 14 August 1972; People v. Nixon, 201 N.W.2d 635, 640–641 (Mich. Ct. App.), 23 August 1972. On Dr. Robert M. Livingston’s unsuccessful effort to have the New Jersey prosecution blocked by one or another federal court, also see “Opinion of Mr. Justice Douglas,” Livingston v. Kugler, 9 September 1972, Brennan Papers Box 279.

104. New York Times, 25 August 1972, pp. 1, 67, 26 August 1972, p. 37, 1 September 1972, p. 56; Dallas Morning News, 3 September 1972, p. E1; William C. McCready and Andrew M. Greeley, “The End of American Catholicism?,” America, 28 October 1972, pp. 334–338, at 336. On the Gallup data, see especially Richard Pomeroy and Lynn C. Landman, “Public Opinion Trends,” Family Planning Perspectives 4 (October 1972): 44–55, and both Pomeroy and Landman, “American Public Opinion and Abortion in the Early Seventies,” and Judith Blake, “Elective Abortion and Our Reluctant Citizenry,” in Howard J. and Joy D. Osofsky, eds., The Abortion Experience (Hagerstown, MD: Harper & Row, 1973), pp. 447–467 and 482–495; also see Shana Alexander, Newsweek, 2 October 1972, p. 29; Patricia Donovan, “Support for Abortion Reform Increases,” Family Planning/Population Reporter 1 (December 1972): 13–14; John C. Bennett, Christianity & Crisis, 8 January 1973, pp. 287–288; and the 1972 Harris poll numbers cited in Connie deBoer, “The Polls: Abortion,” Public Opinion Quarterly 41 (Winter 1977–1978): 553–564.

105. Larry Lader to NARAL Board Members, 7 July 1972, NARAL Box 1; NARAL News, Summer 1972, pp. 1, 3–4; Michigan Abortion Referendum Committee Minutes, 2 August 1972, MARC Box 2; New York Times, 10 September 1972, p. 71, 11 September 1972, p. 14; Detroit News, 14 September 1972, pp. A1, A20, 5 October 1972, pp. A1, A17.

106. Lucas to Weddington, 23 July 1972, Whitehill Papers; Garrow conversations with Roy Lucas and Sarah Weddington. Also see William F. Buckley’s “Firing Line” (with Lucas and John Noonan), taped 25 July 1972 (and broadcast 5 November 1972); San Antonio Light, 2 August 1972; Lucas to Ermo Ingel, 3 August 1972, Lucas Box 11.

107. Weddington to Lee Gidding, 31 August 1972, and Gidding to Weddington, 8 September 1972, NARAL Box 5; Weddington, A Question of Choice, p. 134, and Garrow conversations with Sarah Weddington; Weddington et al., “Supplemental Brief for Appellants,” Roe v. Wade, U.S.S.C., O.T. 1972, 17pp., 16 September 1972, esp. pp. 8 and 10; Hames et al., “Supplemental Brief of the Appellants,” Doe v. Bolton, U.S.S.C., O.T. 1972, 9pp., 25 September 1972, esp. pp. 2–3; Atlanta Constitution, 28 August 1972; Pilpel et al., “Supplemental Brief for Amici Curiae Planned Parenthood Federation of America,” Roe v. Wade and Doe v. Bolton, 31pp., 15 September 1972, esp. p. 30; Joan K. Bradford, “Brief Amici Curiae on Behalf of the California Committee to Legalize Abortion, et al.,” Roe v. Wade and Doe v. Bolton, 31pp., 20 September 1972; Gary K. Nelson et al., “Brief Amicus Curiae of the Attorneys General of Arizona, Connecticut, Kentucky, Nebraska and Utah,” Roe v. Wade, 10pp., 20 September 1972; McKernan to Floyd, 20 July 1972, Floyd to McKernan, 24 July 1972, McKernan to Floyd, 9 August 1972, Floyd to John Danforth, George Kugler, Robert K. Killian, Gary K. Nelson et al., 25 August 1972, Texas AG File 70–308. Also see Atlanta Cooperative News Project v. United States Postal Service, 350 F. Supp. 234 (N.D. Ga.), 29 September 1972, and Atlanta Constitution, 30 September 1972, regarding a successful suit brought by The Great Speckled Bird, Atlanta’s “underground” newspaper, against an attempt by the post office to deny mailing privileges to the paper because it printed abortion referral advertising.

108. Abele v. Markle, 351 F. Supp. 224, 227, 228–229, 230 (D. Conn.), 20 September 1972; New York Times, 21 September 1972, pp. 1, 42, 22 September 1972, p. 85, 4 October 1972, pp. 51, 100.

109. State v. Munson, 201 N.W.2d 123 (S.D. Sup. Ct.), 26 September 1972; Rodgers v. Danforth, 486 S.W.2d 258 (Mo. Sup. Ct.), 3 October 1972; Kansas City Times, 4 October 1972; New York Times, 27 September 1972, p. 27, 28 September 1972, p. 34, 3 October 1972, p. 22, 4 October 1972, p. 100, 6 October 1972, p. 47. On Munson, also see Roy Lucas and Homer Kandaras, “Jurisdictional Statement,” Munson v. South Dakota, U.S.S.C., O.T. 1972, #631, 11pp., 24 October 1972, and Michael Rodak to Gordon Mydland, 20 December 1972, Munson Case File, National Archives, RG 267, Box 476.

110. NARAL Annual Meeting Minutes, 6–8 October 1972, and Greitzer, “Annual Message,” 7 October 1972, NARAL I-6; New York Times, 8 October 1972, pp. 1, 20, 9 October 1972, p. 9, 12 October 1972, p. 36; Michigan Abortion Referendum Committee Minutes, 27 September and 4 and 11 October 1972, MARC Box 2; MARC Newsletter #3, 10 October 1972; National Observer, 21 October 1972.

111. Pilpel to John Robbins, 19 September 1972, PPFA II-49; San Antonio Light, 15 September 1972; Austin American-Statesman, 8 October 1972, p. F7; Ft. Worth Star-Telegram, 10 October 1972; Weddington Interviews with Duke and Cheek; Weddington, A Question of Choice, p. 136; Garrow conversations with Sarah Weddington, Ron Weddington, Linda Coffee, Roy Lucas, Margie Hames, Cyril Means, and Joseph Nellis.

112. Transcripts and Tape Recordings of Oral Arguments, Roe v. Wade and Doe v. Bolton, 11 October 1972, National Archives; [Roy Lucas], Notes on Roe and Doe Oral Arguments, 11 October 1972, 9pp., Lucas Box 24; [Tobiane Schwartz], Notes on Roe Oral Argument, n.d. [11 October 1972], Hames Papers; Dallas Times Herald, 11 October 1972, 12 October 1972, p. B3; Atlanta Journal, 11 October 1972; Houston Post, 12 October 1972; Washington Post, 12 October 1972, p. A2; Dallas Morning News, 12 October 1972, p. A4; Weddington to Ginny Whitehill, “Sunday” [15 October 1972], Whitehill Papers; Weddington in Dallas Morning News, 23 April 1973, p. C7, and in Joseph Bell, “A Landmark Decision,” Good Housekeeping, June 1973, pp. 77–79ff.; O’Brien, Storm Center, pp. 31–34; Marian Faux, Roe v. Wade, pp. 280–287; Weddington, A Question of Choice, p. 137; Flowers to Michael Rodak, 8 September 1972, Texas AG File 70–308; Garrow conversations with Sarah Weddington, Robert C. Flowers, Margie Hames, and Dorothy T. Beasley. On Flowers, also see Dallas Morning News, 21 September 1973, p. A11.

113. Weddington to Ginny Whitehill, “Sunday” [15 October 1972], Whitehill Papers; Houston Chronicle, 9 March 1973; Weddington in Joseph Bell, “A Landmark Decision,” Good Housekeeping, June 1973, pp. 77–79ff.; Weddington Interviews with Cheek and Marcello; Weddington, A Question of Choice, p. 137; Hames in Atlanta Journal-Constitution Magazine, 11 March 1973, pp. 7–17; Lucas to Cyril Means, 25 October 1972, and Weddington to Whitehill, 9 November 1972, Whitehill Papers; Garrow conversations with Sarah Weddington, Ron Weddington, Linda Coffee, Margie Hames, Tobi Schwartz, and Roy Lucas. Also see Epstein and Kobylka, The Supreme Court and Legal Change, pp. 190–192, who assert that Weddington’s performance was “worse the second time around” and fault her “strategic naiveté.” Robert Flowers, however, “was worse,” for he “was unprepared and faltered at almost every turn,” such that “he practically gave away his case.”

114. William O. Douglas Conference Notes, Roe and Doe, 13 October 1972, Douglas Box 1588; Brennan Conference Notes and Vote Tallies on Roe and Doe, Brennan Docket Books, Boxes 418 and 419; Garrow conversations with Larry A. Hammond; Douglas to “Janet” [Meek] and “Carol” [Bruch], n.d. [c.13 October 1972], Douglas Box 1589. While Justice Douglas’s conference notes are explicitly labeled October 13, Justice Brennan’s conference lists suggest that Roe and Doe actually may have been discussed only on October 24, rather than at either the regular Friday conference on October 13 or the following one on October 20. Justice Marshall’s papers indicate that the Court had 3:30 p.m. conferences on both Wednesday the 11th and Tuesday the 17th, and that the regular conference of October 20 was reconvened on October 24. Conference Lists, Brennan Boxes 277 and 278, Marshall Box 95.

A copy of Jon Newman’s opinion in the Connecticut case, Abele v. Markle, appears in Justice Brennan’s Roe and Doe file (Brennan Box 281), and the Court’s October 13 conference agreed to hold both of Connecticut’s two appeals in abeyance until Roe and Doe were decided. See Burger, “Memorandum for the Conference: Markle v. Abele,” 11 October 1972, 6pp., Brennan Box 279; October 13 Conference List, Brennan Box 278; 409 U.S. 908 (16 October 1972); New York Times, 17 October 1972, p. 45; 409 U.S. 1021 (20 November 1972); and Markle Case Files (#72–56 and 72–530), National Archives, RG 267, Boxes 386 and 491. On November 3 the justices also agreed to continue holding both Roy Lucas’s appeal in the North Carolina case, Corkey v. Edwards, and Professor Byrn’s appeal of Byrn. Brennan Conference List, 3 November 1972, Brennan Box 278; also see Lucas and George S. Daly, Jr., “Motion to Set Questions … for Briefing and Argument,” Corkey v. Edwards, #71–92, 17 October 1972, and Michael Rodak, Jr., to Lucas, 6 November 1972, Corkey Case File, National Archives, RG 267, Box 97; 409 U.S. 975; on Byrn, see New York Times, 12 January 1973, p. 30.

On Roe and Doe, also see Woodward and Armstrong, The Brethren, pp. 230–231; Schwartz, The Unpublished Opinions of the Burger Court, pp. 148–149, and Schwartz, The Ascent of Pragmatism, p. 305, the latter two of which, based only upon the Brennan conference notes, erroneously (but understandably) both render Stewart’s reference to “Jon Newman” as “John Harlan.”

115. Harry M. Clor, “Constitutional Interpretation: An Interview with Justice Lewis Powell,” Kenyon College Alumni Bulletin, Summer 1979, pp. 14–18, at 17.

116. Paul Hendrickson, “The Admen Who Beat Abortion,” Detroit Free Press Magazine, 4 March 1973, pp. 10–15; Detroit News, 19 October 1972, pp. A1, A19, 3 November 1972, pp. A1, A8; MARC Board Minutes, 1 November 1972, MARC Box 2; Wall Street Journal, 3 November 1972, p. 30; New York Times, 8 November 1972, p. 15; Whitehill to Stack, 6 December 1972, Whitehill Papers; Lader to Barbara Madden, 16 November 1972, NARAL Box 3; American Medical News, 20 November 1972, pp. 1, 6; Kimmey to Ruth Roemer, 30 November 1972, CCTA Box 6. Also see Detroit News, 9 June 1972, pp. A1, A8; Edgar B. Keemer, “Update on Abortion in Michigan,” Journal of the National Medical Association 64 (November 1972): 518–519; National Review, 22 December 1972, p. 1407; Christianity Today, 22 December 1972, pp. 24–25; and Doreen Bierbrier, “The 1972 Abortion Referendum in Michigan” (unpublished paper, December 1973), 19pp., Bentley Historical Library. On North Dakota, also see Minneapolis Tribune, 5 November 1972, pp. B1, B21; and Faye Ginsburg, Contested Lives, pp. 67–70. In general, see Warren M. Hern, “The Politics of Abortion,” The Progressive 36 (November 1972): 26–29, and Newsweek, 13 November 1972, p. 70.

117. Austin American-Statesman, 9 November 1972, p. 1, 19 November 1972, p. H4; Weddington, A Question of Choice, p. 142; Cathy Bonner to Ginny Whitehill, 23 and 30 November 1972, Whitehill to Jack Stack, 6 December 1972, Whitehill to James Roderick, 3 January 1973, Whitehill Papers.

118. Bea Blair to Al Moran and John Robbins, 12 October 1972, John Robbins to Fred Jaffe et al., 23 October 1972, Shirley Gordon to John Robbins, 14 November 1972, Betty Dietz to John Robbins, 20 November 1972, Bea Blair to Pam Veerhusen and Robbins, 27 November 1972, Gordon to Robbins, 30 November 1972, and Guttmacher, “Memorandum on [December 13] Conference with Governor Rockefeller,” 20 December 1972, Schlesinger 223–1—3; New York Times, 18 October 1972, p. 38, 22 October 1972, p. 1, 11 November 1972, p. 32, 16 November 1972, p. 51, 19 November 1972, p. 66, 20 November 1972, p. 43, 22 November 1972, p. 35, 23 November 1972, p. 17, 25 November 1972, p. 13, 28 November 1972, p. 90, 12 December 1972, p. 49, 19 December 1972, p. 25, 23 December 1972, p. 17, 31 December 1972, p. 32, 2 January 1973, p. 1, 7 January 1973, p. IV-2, 10 January 1973, p. 48, 11 January 1973, p. 25, 12 January 1973, p. 30, 15 January 1973, p. 63; Commonweal, 24 November 1972, pp. 175–178; Washington Post, 8 January 1973; Newsday, 8 January 1973, pp. A4, A5; Beatrice Blair Interview with Chesler, p. 41. Also see Delpfine Welch, “Defending the Right to Abortion in New York,” International Socialist Review, January 1973, pp. 10–13.

119. New York Times, 16 November 1972, p. 53, 21 November 1972, p. 20, 1 December 1972, p. 17, 13 December 1972, p. 53; Time, 11 December 1972, p. 32; American Medical News, 11 December 1972; Lader to NARAL Board Members, “The Damage to the Abortion Movement,” 5 December 1972, NARAL Box 7; Lader to NARAL Board Members, n.d. [c.7 January 1973], Guttmacher Papers; Kimmey in Kansas City Times, 26 December 1972, p. E6. Also see NARAL Executive Committee Minutes, 27 November 1972, NARAL Box 1; Kimmey to Lee Gidding et al., “Education Campaign re Abortion Rights,” 12 December 1972, NARAL Box 6; and, with regard to the power of fetal photos, Celeste Condit, Decoding Abortion Rhetoric, pp. 79–94.

120. People v. Barksdale, 503 P.2d 257, 263–264, and People v. Pettegrew, 503 P.2d 276, 22 November 1972; New York Times, 23 November 1972, p. 17; Zad Leavy, Memo on People v. Barksdale, 1 December 1972, Leavy Papers; Garrow conversations with Zad Leavy. On Dr. Koome, see Seattle Times, 23 November 1972, p. A17; Seattle Post-Intelligencer, 23 November 1972, p. A13, 3 December 1972, p. G5; In re Koome, 82 Wash.2d 816, 514 P.2d 520 (1973), and State v. Koome, 84 Wash.2d 901, 530 P.2d 260 (7 January 1975), finally dismissing the 1972 conviction. On Minnesota, see Minnesota Supreme Court Administrator to Members of the Press, 28 December 1972, Lucas Box 14.

On other pending matters, see Nelson v. Planned Parenthood Center of Tucson, 505 P.2d 580 (Ariz. Ct. App.), 3 January 1973, and New York Times, 7 January 1973, p. 22; also see a preliminary holding, Planned Parenthood Center of Tucson v. Marks, 497 P.2d 534 (Ariz. Ct. App.), 30 May 1972. In late December of 1972, a new federal court suit was filed challenging Maine’s abortion law. New York Times, 24 December 1972, p. 47.

121. Blackmun, “Memorandum to the Conference,” 21 November 1972, Blackmun Roe and Doe Circulations (each designated as print #2), 22 November 1972, esp. Roe pp. 38, 47–48, Brennan Box 281, Douglas Box 1589, Marshall Box 99; Blackmun to Brennan, 21 November 1972, Brennan Box 282. Also see Woodward and Armstrong, The Brethren, pp. 230–232; and Schwartz, The Unpublished Opinions of the Burger Court, pp. 148–149.

122. Douglas to Blackmun, 24 November 1972, Douglas Circulation #1, 25 November 1972, Stewart to Blackmun, 27 November 1972, White to Blackmun, 1 December 1972, Rehnquist to Blackmun, 4 December 1972, Powell to Blackmun, 5 December 1972, Brennan Box 282, Douglas Box 1589, Marshall Box 99; William J. Maledon, “The Law and the Unborn Child: The Legal and Logical Inconsistencies,” Notre Dame Lawyer 46 (Winter 1971): 349–372, at 372; “MVT” [Mark V. Tushnet] to “Dear Judge,” n.d. [c.22 November 1972], 2pp., Marshall Box 99; Garrow conversations with William J. Maledon, James W. Ziglar, Geoffrey R. Stone, Mark V. Tushnet, L. Michael Seidman, Peter M. Kreindler, Larry A. Hammond, Frederick W. Lambert, and John G. Koeltl; Gerald M. Rosberg to Garrow, 23 June 1992. Also see Woodward and Armstrong, The Brethren, pp. 232–235; O’Brien, Storm Center, pp. 34–35; Urofsky, The Douglas Letters, pp. 186–187; and Schwartz, The Ascent of Pragmatism, pp. 306–307. Several O.T. 1972 clerks have indicated that they have no recollections concerning Roe and Doe. Richard J. Urowsky to Garrow, 16 June 1972, David M. Schulte to Garrow, 17 June 1992, and Stuart C. Stock to Garrow, 23 June 1992.

Ten years later, Mark Tushnet’s evaluation of the Blackmun opinion had changed dramatically. “It seems to be generally agreed that, as a matter of simple craft, Justice Blackmun’s opinion for the Court was dreadful,” while William O. Douglas’s concurrence was “brilliant.” See Tushnet, “Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles,” Harvard Law Review 96 (February 1983): 781–827, at 820–821; also see Tushnet, “The Supreme Court on Abortion,” in J. Douglas Butler and David F. Walbert, eds., Abortion, Medicine, and the Law, 3rd ed. (New York: Facts on File, 1986), pp. 161–176.

123. Blackmun, “Memorandum to the Conference, Re: Abortion Cases,” 11 December 1972, Douglas to Blackmun, 11 December 1972, Brennan Box 282, Douglas Box 1589, Marshall Box 99; [Mark Tushnet], one-page typescript draft of Marshall letter to Blackmun, n.d. [c.12 December 1972], Marshall Box 99; Marshall to Blackmun, “Re: Abortion Cases,” 12 December 1972, Brennan Box 282, Douglas Box 1589, Marshall Box 99; Garrow conversations with William J. Maledon, Geoffrey R. Stone, Mark V. Tushnet, L. Michael Seidman, and James W. Ziglar. The sole word that Marshall added was “here” in the letter’s final sentence. It should be emphasized that Professor Tushnet neither suggested nor fully subscribes to this appraisal of the December 12 Marshall to Blackmun letter. Also see Schwartz, The Unpublished Opinions of the Burger Court, pp. 149–150. Many years later, Tushnet would mount a brief but unpersuasive attack on the usefulness of the viability concept. See “Two Notes on the Jurisprudence of Privacy,” Constitutional Commentary 8 (Winter 1991): 75–85, at 80–85.

124. Brennan to Blackmun, 13 December 1972, Brennan Box 282; Brennan Chambers, October Term 1972, pp. 58–70. Also see Schwartz, The Unpublished Opinions of the Burger Court, pp. 150–151.

125. Burger to Blackmun, 13 December 1972, Stewart to Blackmun, 14 December 1972, Blackmun, “Memorandum to the Conference: Re: Abortion Cases,” 15 December 1972, Brennan Box 282, Douglas Box 1589, Marshall Box 99; Brennan Chambers, October Term 1972, pp. 58–70. Also see Schwartz, The Unpublished Opinions of the Burger Court, pp. 150–151; Washington Post, 22 January 1989, pp. D1, D2.

126. Blackmun, “Memorandum to the Conference,” 21 December 1972, and Blackmun Roe (51pp.) and Doe (28pp.) Circulations #3, 21 December 1972, Douglas to Blackmun, 22 December 1972, Marshall to Blackmun, 26 December 1972, Brennan to Blackmun, 27 December 1972, Stewart to Blackmun, 27 December 1972, Stewart Circulation #2, 28 December 1972, Douglas Circulation #2, 29 December 1972, Powell to Blackmun, 4 January 1973, Brennan Box 282, Douglas Box 1589, Marshall Box 99; Carol [Bruch] to Douglas, 23 December 1972, 4pp., and 1 January 1973, Douglas Box 1589; Brennan Chambers, October Term 1972, pp. 58–70; Garrow conversations with Geoffrey R. Stone, L. Michael Seidman, William J. Maledon, Larry A. Hammond, and Mark V. Tushnet. Also see O’Brien, Storm Center, p. 35.

127. White Circulation #1, Rehnquist Circulations #1 in both Roe and Doe, 11 January 1973, Rehnquist to White, 11 January 1973, Burger to Blackmun, 16 January 1973, Blackmun, “Memorandum to the Conference,” 16 January 1973, Blackmun Doe Circulation #4, 16 January 1973, Blackmun Roe Circulation #4, 17 January 1973, Powell to Blackmun, 16 January 1973, Brennan to Blackmun, 17 January 1973, Burger Circulation #1, 18 January 1973, Brennan Box 282, Douglas Box 1589, and Marshall Box 99; Assignment Sheet, Brennan Box 277; Woodward and Armstrong, The Brethren, p. 236; Garrow conversations with Geoffrey R. Stone, L. Michael Seidman, and Mark V. Tushnet. Ten years later, Justice Blackmun would frankly recall that Warren Burger “was never very enthusiastic about joining the majority.” John A. Jenkins, “A Candid Talk with Justice Blackmun,” New York Times Magazine, 20 February 1983, pp. 20ff., at 28.

128. Houston Post, 31 December 1972, p. AA2; Dallas Morning News, 7 January 1973; Whitehill to Lee Gidding, 10 January 1973, NARAL Box 5; Weddington, A Question of Choice, p. 145; “Abortion on Demand,” Time, 29 January 1973, pp. 46–47; Woodward and Armstrong, The Brethren, pp. 237–238; Garrow conversations with Larry A. Hammond.

129. New York Times, 23 January 1973, pp. 1, 20; Roe v. Wade, 410 U.S. 113, 116–117, 129, 140–141, 149, 150, 152–153, 154, 156–159, 160, 162–164, 165, 166. The Roe majority opinion also included one citation to former Justice Clark’s article (at 140) and two references (154 and 158) to the second Connecticut decision by Judge Newman. Nancy Stearns would later observe, with reference to 410 U.S. 153, that “Blackmun’s description of the physical and emotional harm to women of an unwanted pregnancy, the stigma of an out-of-wedlock pregnancy, and the problems associated with bearing an unwanted child bears a striking resemblance to the language used by the Connecticut court.” “Roe v. Wade: Our Struggle Continues,” Berkeley Women’s Law Journal 4 (1988–89): 1–11, at 5. Also see John A. Jenkins, “A Candid Talk with Justice Blackmun,” New York Times Magazine, 20 February 1983, pp. 20ff., at 26: “I believe everything I said in the second paragraph of that opinion, where I agonized, initially not only for myself, but for the Court.”

130. Doe v. Bolton, 410 U.S. 179, 195, 197, 199.

131. Douglas concurring in both Roe and Doe, 410 U.S. 209, 211, 212, 213, 214, 215, 217, 218, 220.

132. Stewart concurring in Roe v. Wade, 410 U.S. 167, 168, 169–170. Also see Benjamin W. Heineman, Jr., “A Balance Wheel on the Court,” Yale Law Journal 95 (June 1986): 1325–1327.

133. Burger concurring in Roe and Doe, 410 U.S. 207, 208. As two subsequent commentators observed, “The majority opinion in Roe seemed irreconcilable with Chief Justice Burger’s concurrence.” Daniel A. Farber and John E. Nowak, “Beyond the Roe Debate: Judicial Experience with the 1980’s ‘Reasonableness’ Test,” Virginia Law Review 76 (April 1990): 519–538, at 522.

134. White dissenting in Roe and Doe, 410 U.S. 221, 222.

135. Rehnquist dissenting in Roe, 410 U.S. 171, 172, 174; Rehnquist dissenting in Doe, 410 U.S. 223. Also see Rehnquist, “Is an Expanded Right of Privacy Consistent with Fair and Effective Law Enforcement?,” Kansas Law Review 23 (Fall 1974): 1–22, at 5 and 21 (“widely divergent claims, which upon analysis have very little in common with one another, are lumped under the umbrella of ‘privacy’”).

136. Blackmun with Bill Moyers, “In Search of the Constitution: Mr. Justice Blackmun,” 26 April 1987, PBS. Also see New York Times, 8 March 1986, p. 7.

CHAPTER NINE

1. Dallas Times-Herald, 23 January 1973, 28 January 1973, 30 January 1973, p. B1, 15 May 1989, pp. B1, B3; Dallas Morning News, 23 January 1973, pp. A5, A16, D1 and D4, 27 January 1973, p. A30, 22 January 1982, p. A6; Austin American-Statesman, 23 January 1973, pp. 1, 2, 7; Daily Texan, 23 January 1973; Robert O’Brien, Baptist Standard, 31 January 1973, p. 4; Jackson Clarion-Ledger, 3 February 1973; Joseph N. Bell, “A Landmark Decision,” Good Housekeeping 176 (June 1973): 77–79ff.; McCorvey Interview with Dreifus; New Haven Register, 29 September 1985; Village Voice, 11 April 1989, p. 44; Life, May 1989, pp. 111–118; People, 22 May 1989, pp. 36–41; Los Angeles Times, 25 June 1989, pp. 1, 17, 18; Weddington Interviews with Duke and Cheek; Weddington, A Question of Choice, pp. 146–148; Garrow conversations with Norma McCorvey, Sarah Weddington, and Linda Coffee. With regard to Linda Coffee and a significant case that she filed in December of 1973, see Johnson v. Republic National Bank of Dallas, 78 F.R.D. 352 (N.D. Tex.), 15 March 1978, 505 F. Supp. 224 (N.D. Tex.), 22 October 1980, and Dallas Morning News, 26 October 1980, pp. E1, E8.

2. Marsha King to Ginny Whitehill, 12 February 1973, Whitehill Papers; Dallas Times-Herald, 23 January 1973; Evans, “The Abortion Decision: A Balancing of Rights,” Christian Century, 14 February 1973, pp. 195–197. In September 1973 Marsha entered law school at Emory University, and in 1976 she received her law degree. Also see Woodward and Armstrong, The Brethren, p. 240. On Henry McCluskey’s murder and his convicted killer, William David Hovila, whose death sentence was subsequently commuted to life imprisonment by Texas authorities in 1982, see Dallas Morning News, 29 June 1973, p. D1, 30 June 1973, p. E1, 3 July 1973, 10 July 1973, 11 July 1973, 17 July 1973, p. A14, 13 August 1973, p. A22, 23 November 1976, p. A10, 24 November 1976, p. C8, 11 May 1978, 23 January 1979; Dallas Times-Herald, 8, 10, and 17 July 1973, 12 August 1973, p. B4, 13 August 1973; State v. Hovila, 562 S.W.2d 243 (Tex. Ct. Crim. App. 1978); and Hovila v. Texas, 439 U.S. 1135 (22 January 1979).

3. Dallas Times-Herald Magazine, 18 October 1981, pp. 37–42; Dallas Times-Herald, 22 January 1988, pp. A1, A18; New Haven Register, 30 April 1989; Dallas Morning News, 15 May 1989, pp. C1, C3; Garrow conversations with Jay Floyd, Henry Wade, and John B. Tolle.

4. Atlanta Constitution, 23 January 1973, pp. A1, A14, 13 December 1988, pp. A1, A6; Western Union to Michael Rodak, 23 January 1973, and Hames to Rodak, 13 February 1973, Doe Case File, National Archives, RG 267, Box 16; Atlanta Journal, 23 January 1973, p. B4; Sandra Race Cano, “Motion to Unseal,” 9 December 1988, and Judge J. Owen Forrester, “Order,” 2 May 1989, Doe v. Bolton Case File, 74A-2025, Box 16; Ann Woolner, “‘I Am Mary Doe,’” Fulton County Daily Report, 9 February 1989, pp. 1, 3–7; Atlanta Journal-Constitution, 23 April 1992, p. A12; Garrow conversations with Arthur K. Bolton, Dorothy Toth Beasley, Sandra Bensing Cano, Margie Hames, and Tobi Schwartz. Additional coverage of Sandra Bensing Cano’s 1988–89 effort to reopen Doe includes Atlanta Constitution, 5 January 1989, pp. D1, D5, 23 February 1989, p. C4, 3 May 1989, p. C4; Fulton County Daily Report, 22 and 27 February. 1989; Atlanta Journal-Constitution, 7 April 1989, pp. C1, C4; Mark Curriden, ABA Journal, July 1989, p. 26; and Los Angeles Times, 11 November 1989, pp. B1, B4.

5. Gidding to Whitehill, 7 February 1973, Whitehill Papers; Lader, “The Abortion Revolution,” The Humanist, May/June 1973, pp. 4–7; Lader, Abortion II (inside cover); Stearns in Janice Goodman et al., “Doe and Roe: Where Do We Go From Here?,” Women’s Rights Law Reporter 1 (Spring 1973): 20–38, at 23 and 37; Beatrice Blair Interview with Chesler, p. 63; Garrow conversations with Cyril Means. Also see Gidding, “Translating the Supreme Court Decision into Practice,” 7 February 1973, NARAL Box 1, and Lucinda Cisler, “Abortion: A Major Battle Is Over—But the War is Not,” Feminist Studies 1 (1973): 121–131.

6. Dallas Morning News, 28 January 1973, p. A2; Lucas to Hames, 6 March 1973, Hames Papers; Garrow conversations with Roy Lucas.

7. New York Times, 23 January 1973, pp. 1, 20, 24 January 1973, pp. 13, 14, and 89, 27 January 1973, p. 8, 28 January 1973, pp. 45, IV-3; Washington Post, 23 January 1973, p. A1; Newsweek, 5 February 1973, pp. 27–28, 66, 69; Time, 5 February 1973, pp. 50–51; U.S. News & World Report, 5 February 1973, p. 36. An informative analysis of the abortion-related coverage of the New York Times, Washington Post, Los Angeles Times, Boston Globe, and Chicago Tribune between January 22 and February 22, 1973, is John C. Pollock et al., “Media Agendas and Human Rights: The Supreme Court Decision on Abortion,” Journalism Quarterly 55 (Autumn 1978): 544–548, 561. On the Catholic hierarchy, see Byrnes, Catholic Bishops in American Politics, p. 57.

8. New York Times, 24 January 1973, p. 40; Washington Post, 31 January 1973, p. A18; Los Angeles Times, 23 January 1973, p. II-6; Boston Globe, 23 January 1973; Wall Street Journal, 26 January 1973, p. 12; Philadelphia Inquirer, 24 January 1973; Pittsburgh Post-Gazette, 24 January 1973; Atlanta Constitution, 24 January 1973; News and Observer, 24 January 1973; Arkansas Democrat, 27 January 1973; St. Louis Post-Dispatch, 28 January 1973; Houston Chronicle, 26 January 1973; San Angelo Standard-Times, 27 January 1973, p. A6; San Antonio Light, 26 January 1973. Also see Joseph Kraft, Washington Post, 25 January 1973, p. A15, and Anthony Lewis, New York Times, 3 February 1973, p. 29.

9. Drinan, “The Abortion Decision,” Commonweal, 16 February 1973, pp. 438–440; Buckley in the Dallas Morning News, 1 February 1973, p. A23; Christianity Today, 16 February 1973, pp. 32–33; Callahan in Hastings Center Report 3 (April 1973): 4–7, at 7; Lincoln, “Why I Reversed My Stand on Laissez-Faire Abortion,” Christian Century, 25 April 1973, pp. 477–479, at 479; Noonan, “Raw Judicial Power,” National Review, 2 March 1973, pp. 260–264, at 261; “Abortion,” The New Republic, 10 February 1973, p. 9. Also see William Murchison, Dallas Morning News, 7 February 1973, David Hawkins, Dallas Morning News, 8 March 1973, p. D2; and, far more moderately, Daniel A. Degnan, New York Times, 10 March 1973, p. 31. Also note Charles E. Curran, “Abortion: Law and Morality in Contemporary Catholic Theology,” The Jurist 33 (Spring 1973): 162–183.

10. Robert E. Hall, “The Supreme Court Decision on Abortion,” American Journal of Obstetrics and Gynecology 116 (1 May 1973): 1–8; Hall letter in New York Times, 19 February 1984, p. IV-18; Alan A. Stone, “Abortion and the Supreme Court: What Now?,” Modern Medicine, 30 April 1973, pp. 32–37; “33,000 Doctors Speak Out on Abortion,” Modern Medicine, 14 May 1973, pp. 31–35; New York Times, 13 May 1973, p. 40; ASA Newsletter Vol. 8, #3–4. Also see Paul T. Murray and Herman Jew, “Mississippi Physicians’ Attitudes Toward the Supreme Court Abortion Decision,” Journal of the Mississippi State Medical Association 15 (July 1974): 291–294; Gail L. Pratt et al., “Connecticut Physicians’ Attitudes Toward Abortion,” American Journal of Public Health 66 (March 1976): 288–290; and Charles H. Franklin and Liane C. Kosaki, “Republican Schoolmaster: The U.S. Supreme Court, Public Opinion, and Abortion,” American Political Science Review 83 (September 1989): 751–771.

11. Blackmun, “Memorandum to the Conference—Abortion Holds,” 23 January 1973, Brennan Box 282; Cedar Rapids Gazette, 25 January 1973, pp. 1, 7; Washington Post, 26 January 1973, p. A2.

12. David M. Kendall to John Hill, “Roe v. Wade,” 24 January 1973, 10pp., John H. Hagler to Henry Wade, “Roe v. Wade,” 30 January 1973, 5pp., Joseph P. Witherspoon to Hill, 6 February 1973, Mary Jane Bode to Larry York, “Roe vs. Wade,” 12 February 1973, Texas AG File 70–308; Dallas Morning News, 1 February 1973, 7 February 1973, p. D3, 16 February 1973, p. A20, 17 February 1973, pp. A4, D2; John Hill et al., “Petition for Rehearing,” Roe v. Wade, 15 February 1973; Arthur K. Bolton et al., “Petition for Rehearing,” Doe v. Bolton, 16 February 1973; George D. Stoughton and Daniel R. Schaefer, “Brief of State of Connecticut, Amicus Curiae, in Support of Petitions for Rehearing Filed by the States of Georgia and Texas,” Doe v. Bolton and Roe v. Wade, 16 February 1973; Dennis J. Horan et al., “Motion to Intervene … of Dr. Bart T. Heffernan,” Roe v. Wade and Doe v. Bolton, 16 February 1973; Abilene Reporter-News, 17 February 1973, p. B3; Brennan Docket Book, Brennan Box 419; Roe v. Wade, 410 U.S. 959; Doe v. Bolton, 410 U.S. 959; Rodgers v. Danforth, 410 U.S. 949, Corkey v. Edwards, 410 U.S. 950, Doe v. Rampton, 410 U.S. 950, Crossen v. Attorney General, 410 U.S. 950, Munson v. South Dakota, 410 U.S. 950, Thompson v. Texas, 410 U.S. 950, Kruze v. Ohio, 410 U.S. 951, Sasaki v. Kentucky, 410 U.S. 951, Markle v. Abele I and II, 410 U.S. 951, Hanrahan v. Doe, 410 U.S. 950, Heffernan v. Doe, 410 U.S. 950; Byrn v. New York City Health and Hospitals Corporation, 410 U.S. 949 (appeal dismissed for want of a substantial federal question); New York Times, 27 February 1973, p. 22; Dallas Morning News, 27 February 1973, p. A5; Austin American-Statesman, 27 February 1973; Markle v. Abele, 411 U.S. 940, and Byrn v. New York City Health and Hospitals Corporation, 411 U.S. 940, 16 April 1973; New York Times, 5 April 1973, p. 32, 17 April 1973, p. 28; Rosen v. Louisiana, 412 U.S. 902, 21 May 1973. Sasaki, which had not been listed in Blackmun’s memorandum, vacated Sasaki v. Commonwealth, 485 S.W.2d 897, 6 October 1972, in which the Kentucky Supreme Court, relying almost wholly on the May 1972 federal court upholding of Kentucky’s abortion statute in Crossen v. Attorney General, 344 F. Supp. 587 (E.D. Ky.), had affirmed a physician’s conviction. On the subsequent dispositions of several of these cases, also see Danforth v. Rodgers, 414 U.S. 1035, 19 November 1973; Doe v. Rampton, 366 F. Supp. 189 (D. Utah), 7 September 1973; State v. Munson, 206 N.W.2d 434 (S.D. Sup. Ct.), 5 April 1973; State v. Thompson, 493 S.W.2d 793 (Tex. Ct. Crim. App.), 1 May 1973; State v. Kruze, 295 N.E.2d 916 (Ohio Sup. Ct.), 2 May 1973; and Abele v. Markle, 369 F. Supp. 807 (D. Conn.), 26 April 1973. On South Dakota’s Dr. Munson, also see Minneapolis Tribune, 21 August 1977.

13. State v. Hodgson, 204 N.W.2d 199, 2 February 1973; Vuitch v. Hardy, 473 F.2d 1370, 20 February 1973; Jobe v. State, 509 P.2d 481 (Okla. Ct. Crim. App.), 31 January 1973; People v. Frey and People v. Mermelli, 294 N.E.2d 257 (Ill. Sup. Ct.), 20 March 1973; People v. Norton, 507 P.2d 862 (Colo. Sup. Ct.), 5 March 1973, New York Times, 6 March 1973, p. 83; State v. Page and State v. King, 303 A.2d 215 (Pa. Sup. Ct.), 29 March 1973, New York Times, 30 March 1973, p. 8; State v. Wahlrab, 509 P.2d 245 (Ariz. Ct. App.), 24 April 1973; Larkin v. Cahalan, 208 N.W.2d 176 (Mich. Sup. Ct.), 18 June 1973; State v. Lawrence, 198 S.E.2d 253 (S.C. Sup. Ct.), 16 July 1973; Doe v. Burk, 513 P.2d 643 (Wyo. Sup. Ct.), 28 August 1973; Doe v. Woodahl, 360 F. Supp. 20 (D. Mont.), 29 May 1973; Doe v. Turner, 361 F. Supp. 1288 (S.D. Iowa), 3 August 1973.

The unreported February 1 decision in Tennessee Woman v. Pack is noted in both Mark B. Anderson et al., Vanderbilt Law Review 26 (May 1973): 823–836, at 823, and in Memphis State Law Review 3 (Spring 1973): 359–364, at 363; the unreported February 7 decision in Women of Rhode Island v. Israel is noted in New York Times, 9 February 1973, p. 15. On Illinois, also see New York Times, 8 February 1973, p. 33, and 2 March 1973, p. 11; on New Mexico, see New York Times, 10 February 1973, p. 38; and on Indiana, see New York Times, 6 March 1973, p. 83. Also note State v. Hultgren, 204 N.W.2d 197 (Minn. Sup. Ct.), 2 February 1973; Henrie v. Derryberry, 358 F. Supp. 719 (N.D. Okla.), 2 April 1973; May v. State, 492 S.W.2d 888 (Ark. Sup. Ct.), 9 April 1973, New York Times, 10 April 1973, p. 28; People v. Bricker, 208 N.W.2d 172 (Mich. Sup. Ct.), 18 June 1973; State v. New Times, Inc., 511 P.2d 196 (Ariz. Ct. App., Div. 1), 3 July 1973; State v. Ingel, 308 A.2d 223 (Md. Ct. Spec. App.), 6 August 1973; and State v. Nixon, 212 N.W.2d 797 (Mich. Ct. App., Div. 3), 27 September 1973. On Texas, see Mary Ann Beaty, American Journal of Criminal Law 2 (Summer 1973): 231–243; on Georgia, see J. Winston Huff, “The New Georgia Abortion Law,” Journal of the Medical Association of Georgia 62 (June 1973): 241–243, and Elizabeth J. Appley, “Two Decades of Reproductive Freedom Litigation and Activism in Georgia: From Doe v. Bolton to Atlanta v. Operation Rescue,” Georgia State Bar Journal 28 (August 1991): 34–41.

14. Dallas Morning News, 1 February 1973; New York Times, 16 February 1973, pp. 1, 46, 17 February 1973, p. 62, 21 February 1973, p. 31, 2 March 1973, p. 75, 19 March 1973, p. 32, 20 May 1973, p. 35; Frederick S. Jaffe et al., Abortion Politics (New York: McGraw Hill, 1981), pp. 31–41. Two studies that examine hospital responses to Roe in Harris County (Houston), Texas, are David W. Brady and Kathleen Kemp, “The Supreme Court’s Abortion Rulings and Social Change,” Social Science Quarterly 57 (December 1976): 535–546, and Kemp et al., “The Supreme Court and Social Change: The Case of Abortion,” Western Political Quarterly 31 (March 1978): 19–31. Also see Jon R. Bond and Charles A. Johnson, “Implementing a Permissive Policy: Hospital Abortion Services After Roe v. Wade,” American Journal of Political Science 26 (February 1982): 1–24, Johnson and Bond, “Policy Implementation and Responsiveness in Nongovernmental Institutions: Hospital Abortion Services After Roe v. Wade,” Western Political Quarterly 35 (September 1982): 385–405; as well as Johnson and Bond, “Coercive and Noncoercive Abortion Deterrence Policies: A Comparative State Analysis,” Law & Policy Quarterly 2 (January 1980): 106–128, and Susan B. Hansen, “State Implementation of Supreme Court Decisions: Abortion Rates Since Roe v. Wade,” Journal of Politics 42 (May 1980): 372–395. More generally, also note John H. Knowles, “The Health System and the Supreme Court Decision: An Affirmative Response,” Family Planning Perspectives 5 (Spring 1973): 113–116; Helen Dudar, “Abortion for the Asking,” Saturday Review, April 1973, pp. 30–35; Christopher Tietze, “The Public Health Effects of Legal Abortion in the United States,” Family Planning Perspectives 16 (January-February 1984): 26–28; and Patricia B. Richard, “Alternative Abortion Policies: What Are the Health Consequences?,” Social Science Quarterly 70 (December 1989): 941–955.

15. New York Times, 1 February 1973, pp. 22, 73, 2 February 1973, p. 35, 4 February 1973, pp. 39, 66, 68, 10 February 1973, p. 35, 15 February 1973, p. 20, 18 February 1973, p. IV-10, 26 February 1973, p. 62, 28 February 1973, p. 47, 2 March 1973, p. 11, 10 March 1973, pp. 15, 31, 16 March 1973, p. 86, 15 April 1973, p. 73; Bea Blair, “Abortion: Can We Lose Our Right to Choose?,” Ms., October 1973, pp. 92–95. The full text of the Bishops’ February 13 “Pastoral Message” appears in U.S. Congress, Senate, Committee on the Judiciary, Abortion Hearings Before the Subcommittee on Constitutional Amendments, 93rd Cong., 2nd sess., 1974, pp. 237–240. Also see Commonweal, 23 March 1973, pp. 51–52; America, 2 June 1973, pp. 506–507; Mary T. Hanna, Catholics and American Politics (Cambridge: Harvard University Press, 1979), pp. 175–197; and William Lasser, The Limits of Judicial Power (Chapel Hill: University of North Carolina Press, 1988), p. 215.

16. Robert M. Byrn, “An American Tragedy: The Supreme Court on Abortion,” Fordham Law Review 41 (May 1973): 807–862 (reprinted in part as “Wade and Bolton: Fundamental Legal Errors and Dangerous Implications,” Catholic Lawyer 19 [Autumn 1973]: 243–250); Byrn, “Good-bye to the Judeo-Christian Era in Law,” America, 2 June 1973, pp. 511–514; Byrn, “The Abortion Amendments: Policy in the Light of Precedent,” St. Louis University Law Journal 18 (Spring 1974): 380–406; Joseph O’Meara, “Abortion: The Court Decides a Non-Case,” Supreme Court Review 1974 (Chicago: University of Chicago Press, 1975), pp. 337–360, at 358; Charles E. Rice, “The Dred Scott Case of the Twentieth Century,” Houston Law Review 10 (Winter 1972–73): 1059–1086; Rice, “Overruling Roe v. Wade: An Analysis of the Proposed Constitutional Amendments,” Boston College Industrial and Commercial Law Review 15 (December 1973): 307–341; Albert Broderick, “A Constitutional Lawyer Looks at the Roe-Doe Decisions,” The Jurist 33 (Spring 1973): 123–133; Patrick T. Conley and Robert J. McKenna, “The Supreme Court on Abortion—A Dissenting Opinion,” Catholic Lawyer 19 (Winter 1973): 19–28.

Also see Arnold H. Loewy, North Carolina Law Review 52 (December 1973): 223–243, at 224; David Goldenberg, Catholic Lawyer 19 (Winter 1973): 36–57; William R. Hopkin, Jr., Temple Law Quarterly 47 (Summer 1974): 715–738; Jacqueline N. Haley, Suffolk University Law Review 9 (Fall 1974): 145–184; Stanley M. Harrison, New York Law Forum 19 (Winter 1974): 685–701; and Baruch Brody, Abortion and the Sanctity of Human Life (Cambridge, MA: MIT Press, 1975), pp. 123–131. Subsequent but generally similar writings also include John J. Coleman III, “Roe v. Wade: A Retrospective Look at a Judicial Oxymoron,” St. Louis University Law Journal 29 (1984): 7–44; George P. Grant, English-speaking Justice (Notre Dame, IN: University of Notre Dame Press, 1985), pp. 69–73; William Mathie, “Reason, Revelation and Liberal Justice: Reflections on George Grant’s Analysis of Roe v. Wade,” Canadian Journal of Political Science 19 (September 1986): 443–466; and Stephen Schwarz, The Moral Question of Abortion (Chicago: Loyola University Press, 1990).

More significant hostile critiques include Joseph W. Dellapenna, “Neither Piety nor Wit: The Supreme Court on Abortion,” Columbia Human Rights Law Review 6 (Fall-Winter 1974–75): 379–413, at 384 (Roe is “an exceptional example of poor craftsmanship”); Dellapenna, “The History of Abortion: Technology, Morality, and Law,” University of Pittsburgh Law Review 40 (Spring 1979): 359–428, at 424 (“The Court’s discussion of history is inaccurate and inconclusive, and, in any event, unrelated to its later conclusions”); Lynn D. Wardle, “The Gap Between Law and Moral Order: An Examination of the Legitimacy of the Supreme Court Abortion Decisions,” Brigham Young University Law Review 1980: 811–835, at 832 (“As examples of judicial craftsmanship, the Roe and Doe opinions are an embarrassment to the profession”); and James S. Witherspoon, “Reexamining Roe: Nineteenth-Century Abortion Statutes and the Fourteenth Amendment,” St. Mary’s Law Journal 17 (1985): 29–71, at 70 (“the Supreme Court’s analysis in Roe v. Wade of the development, purposes, and the understandings underlying the nineteenth-century antiabortion statutes, was fundamentally erroneous”).

17. Unremarkable notes on Roe and Doe include H. Cam Zachry, Journal of Family Law 12 (1972–73): 459–475; David Granfield, The Jurist 33 (Spring 1973): 113–122; Edward McG. Gaffney, The Jurist 33 (Spring 1973): 134–152; Robert C. Timmons, University of Miami Law Review 27 (Spring/Summer 1973): 481–487; William J. Curran, New England Journal of Medicine 288 (3 May 1973): 950–951; Lauren P. Braunstein, Tulane Law Review 47 (June 1973): 1159–1167; Tom Riggs, San Diego Law Review 10 (June 1973): 844–856; Harley Riedel, University of Florida Law Review 25 (Summer 1973): 779–794; A. J. Alexis Gelinas, Washington and Lee Law Review 30 (Summer 1973): 628–646; Georgetown Law Journal 61 (July 1973): 1559–1575; Arthur G. Scotland, Pacific Law Journal 4 (July 1973): 821–860; Edwin J. Holman, Journal of the American Medical Association 225 (9, 16, and 23 July 1973): 215–216, 343–344, and 447–448; L. Wayne Gilleland, Georgia State Bar Journal 10 (August 1973): 153–162; Dorothy E. Patton, Columbia Human Rights Law Review 5 (Fall 1973): 497–521; William D. Bayliss, University of Richmond Law Review 8 (Fall 1973): 75–87; Robert L. Watt III, North Carolina Law Review 51 (October 1973): 1573–1584; Harvard Law Review 87 (November 1973): 75–85; Peter D. Coddington, Albany Law Review 37 (1973): 776–797; Marilyn B. Cane, Family Law Quarterly 7 (1973): 413–432; Carolyn V. Minter, Ohio Northern University Law Review 1 (1973): 119–129; Michael J. Satris, University of California Davis Law Review 7 (1974): 432–456; Linda Goodnight and Judy Rutledge, Baylor Law Review 27 (Winter 1975): 122–138. Subsequent articles that merit less attention than their titles might suggest include Michael R. Hagan, “Roe v. Wade: The Rhetoric of Fetal Life,” Central States Speech Journal 27 (Fall 1976): 192–199; David Fuqua, “Justice Harry A. Blackmun: The Abortion Decisions,” Arkansas Law Review 34 (1980): 276–296; and Janet LaRue, “Abortion: Justice Harry A. Blackmun and the Roe v. Wade Decision,” Simon Greenleaf Law Review 2 (1982): 122–145.

18. Ely, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” Yale Law Journal 82 (April 1973): 920–949, at 920n3, 924, 926, 927, 928, 929, 943, 947; Francis J. Flaherty, “Abortion, the Constitution, and the Human Life Statute,” Commonweal, 23 October 1981, pp. 586–593, at 588; Los Angeles Daily Journal, 21 January 1983, pp. 1, 15, at 15; Ely in U.S. Congress, Senate, Committee on the Judiciary, Abortion Hearing Before the Subcommittee on Constitutional Amendments, Part III, 93rd Cong., 2nd sess. (8 October 1974), pp. 251–252.

19. Heymann and Barzelay, “The Forest and the Trees: Roe v. Wade and Its Critics,” Boston University Law Review 53 (May 1973): 765–784, at 765, 766, 775, 779, 784.

20. Noonan, A Private Choice (New York: Free Press, 1979), p. 21; Louise A. Wheeler and Shirley L. Kovar, “Roe v. Wade: The Right of Privacy Revisited,” Kansas Law Review 21 (Summer 1973): 527–548, at 527 and 529; Cox, The Role of the Supreme Court in American Government (New York: Oxford University Press, 1976), pp. 53–54, 113.

Also see Richard Epstein, “Substantive Due Process by Any Other Name,” Supreme Court Review 1973 (Chicago: University of Chicago Press, 1974), pp. 159–185; Norman Vieira, “Roe and Doe: Substantive Due Process and the Right of Abortion,” Hastings Law Journal 25 (March 1974): 867–879, at 877; Louis Lusky, By What Right? (Charlottesville, VA: Michie Co., 1975), p. 15; Michael J. Perry, “Abortion, the Public Morals, and the Police Power: The Ethical Function of Substantive Due Process,” UCLA Law Review 23 (April 1976): 689–736, at 690–691, Perry, The Constitution, the Courts, and Human Rights (New Haven: Yale University Press, 1982), p. 144 (“the Court failed to articulate anything like a rigorous argument”), and Perry, Morality, Politics, and the Law (New York: Oxford University Press, 1988), p. 175.

21. Friendly, “The Courts and Social Policy: Substance and Procedure,” University of Miami Law Review 33 (November 1978): 21–42, at 35; Gunther, “Some Reflections on the Judicial Role: Distinctions, Roots, and Prospects,” Washington University Law Quarterly 1979 (Summer): 817–828, at 820, 819; Richard G. Morgan, “Roe v. Wade and the Lesson of the Pre-Roe Case Law,” Michigan Law Review 77 (August 1979): 1724–1748, at 1731 and 1725–1726. Also see Note, “Fornication, Cohabitation, and the Constitution,” Michigan Law Review 77 (December 1978): 252–306, at 293.

22. Van Alstyne, “The Fate of Constitutional Ipse Dixits,” Journal of Legal Education 33 (December 1983): 712–721, at 720; Van Alstyne, “Closing the Circle of Constitutional Review from Griswold v. Connecticut to Roe v. Wade: An Outline of a Decision Merely Overruling Roe,” Duke Law Journal 1989 (December): 1677–1688, at 1680–81, 1683–84, and 1688. Also see Philip Bobbitt, Constitutional Fate (New York: Oxford University Press, 1982), pp. 157 and 159 (Roe an “unpersuasive opinion” and “a doctrinal fiasco”).

23. Ginsburg, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade,” North Carolina Law Review 63 (January 1985): 375–386, at 376, 381 and 385–86; Ginsburg, “A Moderate View on Roe,” Constitution, Spring-Summer 1992, p. 17. Also see Ginsburg, “Speaking in a Judicial Voice,” 9 March 1993, New York University Law School, esp. pp. 22–37, at 32 and 36 (reprinted in part in Legal Times, 5 April 1993, pp. 10–11), and Garrow, Washington Post, 20 June 1993, p. C3.

See as well Carl E. Schneider, “Moral Discourse and the Transformation of American Family Law,” Michigan Law Review 83 (August 1985): 1803–1879, esp. 1864–1870, at 1869 (Roe is “uncommonly unpersuasive”), and Schneider, “State-Interest Analysis in Fourteenth Amendment ‘Privacy’ Law,” Law and Constitutional Problems 51 (Winter 1988): 79–122, at 93–94; Kent Greenawalt, “Religious Convictions and Lawmaking,” Michigan Law Review 84 (December 1985): 352–404, at 371 (Roe “was wrongly decided”); Helen Garfield, “Privacy, Abortion, and Judicial Review: Haunted by the Ghost of Lochner,” Washington Law Review 61 (April 1986): 293–365, at 313 and 316; Hal Miller, The Abandoned Middle: The Ethics and Politics of Abortion in America (Salem, MA: Penumbra Press, 1988), pp. 72–73; Linda R. Hirshman, “Bronte, Bloom, and Bork: An Essay on the Moral Education of Judges,” University of Pennsylvania Law Review 137 (November 1988): 177–231, at 202 (Roe’s “opinion lacks a certain high rhetorical tone we have come to expect from path-breaking developments in the Supreme Court”); Note, “Substantive Due Process Comes Home to Roost,” Women’s Rights Law Reporter 10 (Winter 1988): 177–208, at 188; Harry F. Tepker, Jr., “Abortion, Privacy and State Constitutional Law: A Speculation If (or When) Roe v. Wade Is Overturned,” Emerging Issues in State Constitutional Law 2 (1989): 173–187, at 176 (Blackmun “pastes together several precedents and principles that have little to do with the abortion issue”).

24. Calabresi, Ideals, Beliefs, Attitudes, and the Law (Syracuse, NY: Syracuse University Press, 1985), pp. 92, 97, 101–102, 106, 110; Law, “Rethinking Sex and the Constitution,” University of Pennsylvania Law Review 132 (June 1984): 955–1040, at 1020.

With regard to equal protection, also see Kathryn H. Snedaker, “Reconsidering Roe v. Wade: Equal Protection Analysis as an Alternative Approach,” New Mexico Law Review 17 (Winter 1987): 115–137; Rhonda Copelon, “Unpacking Patriarchy: Reproduction, Sexuality, Originalism, and Constitutional Change,” in Jules Lobel, ed., A Less Than Perfect Union (New York: Monthly Review Press, 1988), pp. 303–334, at 326; Cass R. Sunstein, “Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection,” University of Chicago Law Review 55 (Fall 1988): 1161–1179, at 1175; Sunstein, “Six Theses on Interpretation,” Constitutional Commentary 6 (Winter 1989): 91–96; Sunstein, “Why the Unconstitutional Conditions Doctrine Is an Anachronism …” Boston University Law Review 70 (July 1990): 593–621, at 617–620; Sunstein, “Neutrality in Constitutional Law,” Columbia Law Review 92 (January 1992): 1–52, at 31n; Sunstein, The Partial Constitution (Cambridge, MA: Harvard University Press, 1993), pp. 270–285; Catharine A. MacKinnon, “Reflections on Sex Equality Under Law,” Yale Law Journal 100 (March 1991): 1281–1328, at 1319; Ruth Colker, Abortion & Dialogue (Bloomington: Indiana University Press, 1992), p. 100; Reva Siegel, “Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection,” Stanford Law Review 44 (January 1992): 261–381; and Andrew Koppelman, “Forced Labor: A Thirteenth Amendment Defense of Abortion,” Northwestern University Law Review 84 (Winter 1990): 480–535, at 483–84, who also makes the additional argument that “When women are compelled to carry and bear children, they are subjected to ‘involuntary servitude’ in violation of the Thirteenth Amendment.” Also note Laura W. Stein, “Living with the Risk of Backfire: A Response to the Feminist Critiques of Privacy and Equality,” Minnesota Law Review 77 (May 1993): 1153–1191, at 1171–1182; and Ronald Dworkin, “Feminism and Abortion,” New York Review of Books, 10 June 1993, pp. 27–29.

25. On autonomy, see Note, “On Privacy: Constitutional Protection for Personal Liberty,” New York University Law Review 48 (October 1973): 670–773, at 701; Tyler Baker, “Roe and Paris: Does Privacy Have a Principle?,” Stanford Law Review 26 (May 1974): 1161–1189; Louis Henkin, “Privacy and Autonomy,” Columbia Law Review 74 (December 1974): 1410–1433, at 1424; Graham Hughes, The Conscience of the Courts (Garden City, NY: Doubleday, 1975), pp. 34, 71; June A. Eichbaum, “Towards an Autonomy-Based Theory of Constitutional Privacy,” Harvard Civil Rights–Civil Liberties Law Review 14 (Summer 1979): 361–384; Thomas Huff, “Thinking Clearly About Privacy,” Washington Law Review 55 (1980): 777–794, at 789; Rogers M. Smith, “The Constitution and Autonomy,” Texas Law Review 60 (February 1982): 175–205; Edward T. Mulligan, “Griswold Revisited in Light of Uplinger,” New York University Review of Law and Social Change 13 (1984–85): 51–82, at 75, 78, and 81; David A. J. Richards, Toleration and the Constitution (New York: Oxford University Press, 1986), p. 237; Joseph Kupfer, “Privacy, Autonomy, and Self-Concept,” American Philosophical Quarterly 24 (January 1987): 81–89; Rhonda Copelon, “Beyond the Liberal Idea of Privacy: Toward a Positive Right of Autonomy,” in Michael W. McCann and Gerald L. Houseman, eds., Judging the Constitution (Glenview, IL: Scott, Foresman & Co., 1989), pp. 287–314; and Daniel R. Ortiz, “Privacy, Autonomy, and Consent,” Harvard Journal of Law & Public Policy 12 (Winter 1989): 91–97.

On “liberty,” see Paul Bender, “Privacies of Life,” Harper’s 248 (April 1974): 36–45; Judith J. Thomson, “The Right to Privacy,” Philosophy and Public Affairs 4 (Summer 1975): 295–314; W. A. Parent, “Recent Work on the Concept of Privacy,” American Philosophical Quarterly 20 (October 1983): 341–355; Helen Garfield, “Privacy, Abortion, and Judicial Review,” Washington Law Review 61 (April 1986): 293–365, at 318 and 322; and Robert B. Hallborg, Jr., “Principles of Liberty and the Right to Privacy,” Law and Philosophy 5 (August 1986): 175–218, at 175.

Also note J. Braxton Craven, Jr., “Personhood: The Right to Be Let Alone,” Duke Law Journal 1976 (September): 699–720; Tom Gerety, “Redefining Privacy,” Harvard Civil Rights–Civil Liberties Law Review 12 (Spring 1977): 233–296, and Gerety, “Doing Without Privacy,” Ohio State Law Journal 42 (1981): 143–165; Ruth Gavison, “Privacy and the Limits of Law,” Yale Law Journal 89 (January 1980): 421–471; H. J. McCloskey, “Privacy and the Right to Privacy,” Philosophy 55 (January 1980): 17–38; Raymond Wacks, “The Poverty of ‘Privacy,’” Law Quarterly Review 96 (January 1980): 73–89; Rosalind Petchesky, “Giving Women a Real Choice,” The Nation, 28 May 1990, pp. 732–735; Julie C. Inness, Privacy, Intimacy, and Isolation (New York: Oxford University Press, 1992), p. 120 (“the common denominator of constitutional privacy is intimacy”); and Mark A. Racanelli, “Reversals: Privacy and the Rehnquist Court,” Georgetown Law Journal 81 (December 1992): 443–479. But see Thomas I. Emerson, “The Right of Privacy and Freedom of the Press,” Harvard Civil Rights–Civil Liberties Law Review 14 (Summer 1979): 329–360, at 340–41 (“We will not make much progress if we frame the problem in terms of a broader quest for ‘liberty.’ The recent tendency of the Supreme Court to look upon privacy as merely an undifferentiated aspect of an amorphous right to ‘liberty’ is a regressive step”).

26. Wellington, “Common Law Rules and Constitutional Double Standards: Some Notes on Adjudication,” Yale Law Journal 83 (December 1973): 221–311, at 301; Susan F. Appleton, “Doctors, Patients and the Constitution: A Theoretical Analysis of the Physician’s Role in ‘Private’ Reproductive Decisions,” Washington University Law Quarterly 63 (1985): 183–236, at 187–88 and 197. Also see especially Andrea Asaro, “The Judicial Portrayal of the Physician in Abortion and Sterilization Decisions: The Use and Abuse of Medical Discretion,” Harvard Women’s Law Journal 6 (Spring 1983): 51–102, at 51, 59, and 93; see as well Julie Conger, “Abortion: The Five-Year Revolution and Its Impact,” Ecology Law Quarterly 3 (Spring 1973): 311–347, at 329–330; Laurence H. Tribe, “The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law,” Harvard Law Review 87 (November 1973): 1–53, at 38n (“the Court’s decision to cast Roe and Doe in medico-technocratic terms”), and Tribe, “Seven Deadly Sins of Straining the Constitution Through a Pseudo-Scientific Sieve,” Hastings Law Journal 36 (November 1984): 155–172, at 168 and 170; Nancy S. Erickson, “Women and the Supreme Court: Anatomy is Destiny,” Brooklyn Law Review 41 (Fall 1974): 209–282, at 242–55; and Tina C. Oh, “An Exercise in Anachronism: Blackmun’s Analysis of 19th Century Anti-Abortion Legislation” (unpublished B.A. thesis, Princeton University, 1990), pp. 67 and 70. But note George J. Annas et al., “The Right of Privacy Protects the Doctor-Patient Relationship,” Journal of the American Medical Association 263 (9 February 1990): 858–861, at 861 (“Roe is also a physicians’ rights case” and “Those who seek to overrule Roe are fundamentally arguing for state control of what can and cannot be done and said by physicians”).

27. Robertson, “Gestational Burdens and Fetal Status: Justifying Roe v. Wade,” American Journal of Law & Medicine 13 (Summer-Fall 1987): 189–212, at 193 and 203–204; Rhoden, “Trimesters and Technology: Revamping Roe v. Wade,” Yale Law Journal 95 (March 1986): 639–697, at 640n, 648, and 656; H. Tristram Engelhardt, Jr., “Viability, Abortion, and the Difference Between a Fetus and an Infant,” American Journal of Obstetrics and Gynecology 116 (1 June 1973): 429–434. Also see Rhoden, “The New Neonatal Dilemma: Live Births from Late Abortions,” Georgetown Law Journal 72 (June 1984): 1451–1509; and Roger Wertheimer, “Understanding Blackmun’s Argument: The Reasoning of Roe v. Wade,” in Jay L. Garfield and Patricia Hennessey, eds., Abortion: Moral and Legal Perspectives (Amherst: University of Massachusetts Press, 1984), pp. 105–122.

On the appropriateness of viability, also see Engelhardt, “The Ontology of Abortion,” Ethics 84 (April 1974): 217–234, at 232; L. W. Sumner, “Toward A Credible View of Abortion,” Canadian Journal of Philosophy 4 (September 1974): 163–181, and Sumner, Abortion and Moral Theory (Princeton: Princeton University Press, 1981), esp. pp. 150, 157; Chris Macaluso, “Viability and Abortion,” Kentucky Law Journal 64 (1975): 146–164; Jane English, “Abortion and the Concept of a Person,” Canadian Journal of Philosophy 5 (October 1975): 233–243; Patricia A. King, “The Juridical Status of the Fetus: A Proposal for Legal Protection of the Unborn,” Michigan Law Review 77 (August 1979): 1647–1687, at 1687; Alan Zaitchik, “Viability and the Morality of Abortion,” Philosophy and Public Affairs 10 (Winter 1981): 18–26; Gerald Dworkin, “Morality, Legality, and Abortion,” Society 19 (May-June 1982): 51–53; Deborah L. Rhode, Justice and Gender (Cambridge: Harvard University Press, 1989), pp. 211–212; Rhoden, “A Compromise on Abortion?,” Hastings Center Report, July-August 1989, pp. 32–37; Jed Rubenfeld, “On the Legal Status of the Proposition that ‘Life Begins at Conception,’” Stanford Law Review 43 (February 1991): 599–635, at 635; and Ronald Dworkin, “Unenumerated Rights: Whether and How Roe Should be Overruled,” University of Chicago Law Review 59 (Winter 1992): 381–432, at 430 (“the arguments for choosing viability as the key date remain impressive”).

28. Richard A. Posner, Sex and Reason (Cambridge: Harvard University Press, 1992), p. 337; Fried, Order and Law (New York: Simon & Schuster, 1991), pp. 75, 72, and 79.

29. Tribe, “The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law,” Harvard Law Review 87 (November 1973): 1–53, at 7 and 4n; Tribe in U.S. Congress, Senate, Committee on the Judiciary, Constitutional Amendments Relating to Abortion—Hearings Before the Subcommittee on the Constitution, 97th Cong., 1st sess., 5 October 1981, pp. 101 and 77; Tribe, Abortion: The Clash of Absolutes (New York: W. W. Norton & Co., 1990), p. 110; Tribe, American Constitutional Law, 2nd ed. (Mineola, NY: Foundation Press, 1988), p. 1349. Also see Tribe and Michael C. Dorf, On Reading the Constitution (Cambridge: Harvard University Press, 1991), p. 60 (the constitutional question of abortion is “profoundly difficult” and Roe is “the hardest case of all”).

30. “The Unborn and the Born Again,” The New Republic, 2 July 1977, pp. 5–6; Newsweek, 5 June 1978, pp. 37–47; “Good News on Abortion,” The New Republic, 31 July 1989, pp. 5–6; Glendon, Rights Talk (New York: Free Press, 1991), p. 58; Ginsburg, “A Moderate View on Roe,” Constitution, Spring-Summer 1992, p. 17; Ehrenreich, “Mothers Unite,” The New Republic, 10 July 1989, pp. 30–33. Also see Ginsburg, “Some Thoughts on Autonomy and Equality,” p. 381; Ginsburg, “Speaking in a Judicial Voice,” 9 March 1993, New York University Law School, esp. pp. 32–36 (reprinted in part in Legal Times, 5 April 1993, pp. 10–11); Eva R. Rubin, Abortion, Politics, and the Courts (Westport, CT: Greenwood Press, 1982), p. 166 (“the cause of elective abortion might have fared better if its supporters had continued the state-by-state legislative battle instead of moving into the courts”); Larry R. Churchill and Jose J. Siman, “Abortion and the Rhetoric of Individual Rights,” Hastings Center Report 12 (February 1982): 9–12; Roger M. Williams, “The Power of Fetal Politics,” Saturday Review, 9 June 1979, pp. 12–15, at 12 (“Success … came too easily”); and Charles Krauthammer, New York Daily News, 5 July 1992, p. 31 (1973 as “a time when state after state, reflecting changes in national mores, was liberalizing abortion laws”). Also note Garrow, Washington Post, 20 June 1993, p. C3.

31. On the 1973 congressional scene, see particularly Congressional Quarterly Weekly Report, 10 November 1973, pp. 2973–76; also see Arlie Schardt, “Saving Abortion,” Civil Liberties, September 1973, pp. 1–2; Bea Blair, “Abortion: Can We Lose Our Right to Choose?,” Ms., October 1973, pp. 92–95; and Karen Mulhauser, “Congressional Activities,” in Warren M. Hern and Bonnie Andrikopoulos, eds., Abortion in the Seventies (New York: National Abortion Federation, 1977), pp. 225–228. On Rhode Island, see Doe v. Israel, 358 F. Supp. 1193, 1201 (D.R.I.), 16 May 1973, Doe v. Israel, 482 F.2d 156 (1st Cir.), 6 June 1973, and Israel v. Doe, 416 U.S. 993 (cert. denied), 13 May 1974; on Minnesota, see Hodgson v. Anderson, 378 F. Supp. 1008 (D. Minn.), 28 June 1974; appeal dismissed sub nom. Spannaus v. Hodgson, 420 U.S. 903, 27 January 1975.

On the hospital access litigation, see New York Times, 2 July 1973, p. 11; Nyberg v. City of Virginia, 361 F. Supp. 932 (D. Minn.), 10 August 1973, Nyberg v. City of Virginia, 495 F.2d 1342 (8th Cir.), 19 February 1974, City of Virginia v. Nyberg, 419 U.S. 891 (appeal dismissed), 21 October 1974; Doe v. Hale Hospital, 369 F. Supp. 970 (D. Mass.), 30 January 1974, Doe v. Hale Hospital, 500 F.2d 144 (1st Cir.), 12 July 1974, Hale Hospital v. Doe, 420 U.S. 907 (cert. denied), 27 January 1975; and Doe v. Mundy, 378 F.Supp. 731 (E.D. Wis.), 24 July 1974, Doe v. Mundy, 419 U.S. 813 (stay denied), 15 October 1974, Doe v. Mundy, 514 F.2d 1179 (7th Cir.), 30 January 1975. Also note City of Virginia v. Nyberg, 462 U.S. 1125 (dismissing an appeal of 667 F.2d 754, with White and Rehnquist, JJ., dissenting), 20 June 1983; New York Times, 21 June 1983, p. A21.

On the Florida litigation, see Coe v. Gerstein, 376 F. Supp. 695 (S.D. Fla.), 14 August 1973, Gerstein v. Coe, 417 U.S. 279 (appeal dismissed for want of jurisdiction), and Poe v. Gerstein, 417 U.S. 281, 3 June 1974, Poe v. Gerstein, 517 F.2d 787 (5th Cir.), 18 August 1975. In general, see Richard Wasserman, “Implications of the Abortion Decisions: Post Roe and Doe Litigation and Legislation,” Columbia Law Review 74 (March 1974): 237–268; and “A Review of State Abortion Laws Enacted Since January 1973,” Family Planning/Population Reporter 4 (December 1975): 108–113.

32. Wall Street Journal, 2 August 1973, pp. 1, 27; John Deedy, “The Church in the World: Catholics, Abortion, and the Supreme Court,” Theology Today 30 (October 1973): 279–286, at 281; Time, 4 February 1974, pp. 60–61; Newsweek, 4 February 1974, p. 57; U.S. Congress, Senate, Committee on the Judiciary, Abortion Hearings Before the Subcommittee on Constitutional Amendments, 93rd Cong., 2nd sess. (parts I-IV), 6–7 March 1974. The National Conference of Catholic Bishops’ 18 September and 13 November 1973 resolutions appear in the Senate Hearings at pp. 227–230. Also see Nick Thimmesch, Newsweek, 9 July 1973, p. 7; Hospital Practice, October 1973, pp. 199–201; Dallas Times-Herald, 20 January 1974, p. D5; Marion K. Sanders, “Enemies of Abortion,” Harper’s 248 (March 1974): 26–30; U.S. News & World Report, 4 March 1974, pp. 43–44; Robert Edelstein et al., “Moral Consistency and the Abortion Issue,” Commonweal, 22 March 1974, pp. 59–61; Jim Castelli, “The Catholic Church and Abortion,” The Progressive 38 (April 1974): 9; The New Republic, 18 May 1974, pp. 6–7; Daniel A. Degnan, “Law, Morals and Abortion,” Commonweal, 31 May 1974, pp. 305–308; and Richard A. McCormick, “Notes on Moral Theology: The Abortion Dossier,” Theological Studies 35 (June 1974): 312–359.

33. New York Times, 13 April 1974, pp. 1, 10, 17 February 1975, p. 41, 19 February 1975, p. 34, 29 April 1975, p. 31, 2 November 1975, p. 39, 6 April 1976, p. 25, 18 December 1976, p. 1; Time, 27 May 1974, p. 84, 24 February 1975, p. 67, 3 March 1975, pp. 54–55; Newsweek, 27 January 1975, p. 55, 24 February 1975, p. 20, 3 March 1975, pp. 18–30; Commonwealth v. Edelin, 359 N.E.2d 4, 17 December 1976; Nathan Lewin, “Abortion and Dr. Edelin,” The New Republic, 1 March 1975, pp. 16–19; Connie Paige, The Right to Lifers (New York: Summit Books, 1983), esp. pp. 26 and 119–20. Also see New England Journal of Medicine 290 (6 June 1974): 1301–02; and William A. Nolen, The Baby in the Bottle (New York: Coward, McCann & Geoghegan), 1978.

34. Jeannie I. Rosoff, “Is Support of Abortion Political Suicide?” Family Planning Perspectives 7 (January-February 1975): 13–22; Elizabeth B. Stengel, “Abortion: The Battle’s Not Over,” Ms., February 1975, pp. 98–99; New York Times, 3 February 1975, pp. 1, 42; Newsweek, 17 February 1975, p. 97; James J. Diamond, “The Troubled Anti-Abortion Camp,” America, 10 August 1974, pp. 52–54; Raymond G. Decker, “The Abortion Decision: Two Years Later—More Christian Than Its Critics,” Commonweal, 14 February 1975, pp. 384–392, at 385–86; Congressional Quarterly Weekly Report, 3 May 1975, pp. 917–922. Also see Richard J. Orloski, “Abortion: Legal Questions and Legislative Alternatives,” America, 10 August 1974, pp. 50–51; Time, 2 September 1974, p. 56, 28 April 1975, pp. 75–76; Charles E. Curran, “Civil Law and Christian Morality: Abortion and the Churches,” in Curran, ed., Ongoing Revisions in Moral Theology (Notre Dame, IN: Fides, 1975), pp. 107–143; U.S. Commission on Civil Rights, Constitutional Aspects of the Right to Limit Childbearing (Washington: USCCR), April 1975; Harriet F. Pilpel, “Abortion: U.S.A Style,” Journal of Sex Research 11 (May 1975): 113–118; Joseph F. Donceel, “Why Is Abortion Wrong?,” America, 16 August 1975, pp. 65–67; Denise Spalding, “Abortions: Legal but How Available?,” Ms., September 1975, pp. 103–105; Robert A. Destro, “Abortion and the Constitution: The Need for a Life-Protective Amendment,” California Law Review 63 (September 1975): 1250–1351; and Joseph P. Witherspoon, “The New Pro-Life Legislation: Patterns and Recommendations,” St. Mary’s Law Journal 7 (1976): 637–697.

35. Congressional Quarterly Weekly Report, 19 April 1975, pp. 814–816; New York Times, 18 September 1975, p. 34, 21 November 1975, p. 19, 29 April 1976, p. 35; Time, 1 December 1975, p. 59; America, 27 December 1975, pp. 454–455; Robert N. Lynch, “‘Abortion’ and 1976 Politics,” America, 6 March 1976, pp. 177–178; U.S. Congress, House of Representatives, Committee on the Judiciary, Proposed Constitutional Amendments on Abortion—Hearings Before the Subcommittee on Civil and Constitutional Rights, 94th Cong., 2nd sess., 4–5 February and 22–26 March 1976; Jim Castelli, “Anti-Abortion, the Bishops and the Crusaders,” America, 22 May 1976, pp. 442–444; Byrnes, Catholic Bishops in American Politics, pp. 58–60. Also see Lucy Komisar, Newsweek, 9 June 1975, p. 11; Mary C. Segers, “Abortion: The Last Resort,” America, 27 December 1975, pp. 456–458; Meg Greenfield, Newsweek, 16 February 1976, p. 92; James Armstrong, “The Politics of Abortion,” Christian Century, 10 March 1976, pp. 215–216; Paul J. Weber, “Bishops in Politics: The Big Plunge,” America, 20 March 1976, pp. 220–223; Harriet F. Pilpel, “The Collateral Legal Consequences of Adopting a Constitutional Amendment on Abortion,” Family Planning/Population Law Reporter 5 (June 1976): 44–48; Robert M. Byrn, “Confronting Objections to an Anti-Abortion Amendment,” America, 19 June 1976, pp. 529–534; and John D. Rockefeller III, Newsweek, 21 June 1976, p. 11.

36. William R. Arney and William H. Trescher, “Trends in Attitudes Toward Abortion, 1972–1975,” Family Planning Perspectives 8 (May-June 1976): 117–124; Judith Blake, “The Abortion Decisions: Judicial Review and Public Opinion,” in Edward Manier et al., eds., Abortion (Notre Dame, IN: University of Notre Dame Press, 1977), pp. 51–82; Blake, “The Supreme Court’s Abortion Decisions and Public Opinion in the United States,” Population and Development Review 3 (March-June 1977): 45–62; Theodore C. Wagenaar and Ingeborg W. Knol, “Attitudes Toward Abortion: A Comparative Analysis of Correlates for 1973 and 1975,”Journal of Sociology and Social Welfare 4 (July 1977): 927–944; Elise F. Jones and Charles F. Westoff, “How Attitudes Toward Abortion Are Changing,” Journal of Population 1 (Spring 1978): 5–21; Eric M. Uslaner and Ronald E. Weber, “Public Support for Pro-Choice Abortion Policies in the Nation and States: Changes and Stability After the Roe and Doe Decisions,” Michigan Law Review 77 (August 1979): 1772–1789; Lucky R. Tedrow and E. R. Mahoney, “Trends in Attitudes Toward Abortion: 1972–1976,” Public Opinion Quarterly 43 (Summer 1979): 181–189; Mark Evers and Jeanne McGee, “The Trend and Pattern in Attitudes Toward Abortion in the United States, 1965–1977,” Social Indicators Research 7 (January 1980): 251–267; Stephen J. Cutler et al., “Aging and Conservatism: Cohort Changes in Attitudes About Legalized Abortion,” Journal of Gerontology 35 (January 1980): 115–123; Helen R. F. Ebaugh and C. Allen Haney, “Shifts in Abortion Attitudes: 1972–1978,” Journal of Marriage and the Family 42 (August 1980): 491–499; and Donald Granberg and Beth W. Granberg, “Abortion Attitudes, 1965–1980: Trends and Determinants,” Family Planning Perspectives 12 (September-October 1980): 250–261.

37. Webster Schott, “A 4-Million Minority Asks for Equal Rights,” New York Times Magazine, 12 November 1967, pp. 44–72, at 59; Delaney v. Florida, 387 U.S. 426, 29 May 1967 (dismissing appeal of State v. Delaney, 190 So.2d 578 [Fla. Sup. Ct.], for want of a substantial federal question, with only Justice Douglas voting to note probable jurisdiction); Baker v. Nelson, 409 U.S. 810, 10 October 1972 (dismissing an appeal from Minn. Sup. Ct., 191 N.W.2d 185); Canfield v. Oklahoma, 414 U.S. 991, 5 November 1973 (dismissing appeal of 506 P.2d 987 [Okla. Ct. Crim. App.], for want of a substantial federal question); Carter v. Arkansas, 416 U.S. 905, 1 April 1974 (denying certiorari to State v. Carter, 500 S.W.2d 368 [Ark. Sup. Ct.]); Brewer v. United States, 416 U.S. 990, 13 May 1974 (denying certiorari to United States v. Brewer, 363 F. Supp. 606 [M.D. Pa.], aff’d memo, 491 F.2d 751 [3d Cir.].

Also note Acanfora v. Board of Education of Montgomery County, 419 U.S. 836, 15 October 1974 (denying certiorari to 359 F. Supp. 843 [D. Md.], affirmed 491 F.2d 498 [4th Cir.]). Also see Arthur J. Silverstein, “Constitutional Aspects of the Homosexual’s Right to a Marriage License,” Journal of Family Law 12 (1972–73): 607–634; Silverstein, “The Legality of Homosexual Marriage,” Yale Law Journal 82 (January 1973): 573–589; Walter Barnett, Sexual Freedom and the Constitution (Albuquerque: University of New Mexico Press), 1973, esp. pp. 15–16 and 97 (Griswold “can be read to mean that sexual fulfillment is a fundamental human right”); Ellen Chaitin and V. Roy Lefcourt, “Is Gay Suspect?” Lincoln Law Review 8 (1973): 24–54; Note, “The Constitutionality of Laws Forbidding Private Homosexual Conduct,” Michigan Law Review 72 (August 1974): 1613–1637; Kent Greenawalt, “Privacy and Its Legal Protections,” Hastings Center Studies 2 (September 1974): 45–68, at 53; Lawrence M. Goldyn, “Legal Ideology and the Regulation of Homosexual Behavior” (unpublished Ph.D. dissertation, Stanford University, 1979); Vern L. Bullough, “Lesbianism, Homosexuality, and the American Civil Liberties Union,” Journal of Homosexuality 13 (Fall 1986): 23–33; and Richard D. Mohr, “Mr. Justice Douglas at Sodom: Gays and Privacy,” Columbia Human Rights Law Review 18 (Fall-Winter 1986–87): 43–110.

38. California v. LaRue, 409 U.S. 109, 132n (Marshall, J., dissenting), 5 December 1972; Fisher v. Snyder, 346 F. Supp. 396 (D. Neb.), 10 August 1972, affirmed, 476 F.2d 375 (8th Cir.), 16 April 1973; Drake v. Covington County Board of Education, 371 F. Supp. 974 (M.D. Ala.), 23 January 1974. But see Wishart v. McDonald, 500 F.2d 1110, 1114 (1st Cir.), 10 July 1974 (affirming 367 F. Supp. 530) (upholding dismissal of teacher who each Thursday evening played on his lawn with a life-sized mannequin: “The right to be left alone in the home extends only to the home and not to conduct displayed under the street lamp on the front lawn”); and especially Sullivan v. Meade County Independent School District, 387 F. Supp. 1237 (D.S.D.), 21 February 1975, affirmed, 530 F.2d 799 (8th Cir.), 26 February 1976.

Also see Dixon v. State, 268 N.E.2d 84, 90 (Ind. Sup. Ct., DeBruler, J., dissenting), 6 April 1971 (“I see no valid reason to limit the right of sexual privacy to married persons.… Sexual acts between consenting adults in private do not harm anyone else and should be free from state regulation”); Davis v. Meek, 344 F. Supp. 298 (N.D. Ohio), 5 May 1972; Commonwealth v. Balthazar, 318 N.E.2d 478, 481 (Mass. Sup. Jud. Ct.), 1 November 1974; and Major v. Hampton, 413 F. Supp. 66 (E.D. La.), 23 February 1976. But see Pettit v. State Board of Education, 513 P.2d 889 (Cal. Sup. Ct.), 7 September 1973; and note Robert E. Willett, California Law Review 61 (December 1973): 1442–1462.

39. Wainwright v. Stone, 414 U.S. 21, 5 November 1973, reversing Stone v. Wainwright, 478 F.2d. 390 (5th Cir.), 19 April 1973 (also see Stone v. State, 264 So.2d 81, 267 So.2d 329 [Fla. Sup. Ct.], and Franklin v. State, 257 So.2d 21 [Fla. Sup. Ct.], 17 December 1971); Rose v. Locke, 423 U.S. 48, 51, 55, 17 November 1975, reversing Locke v. Rose, 514 F.2d 570 (6th Cir.), 4 April 1975 (also see Locke v. State, 501 S.W.2d 826 [Tenn. Ct. Crim. App.], 2 October 1973); Thomas C. Grey, “Eros, Civilization and the Burger Court,” Law and Contemporary Problems 43 (Summer 1980): 83–100, at 86n. Also note State v. Crawford, 478 S.W.2d 314 (Mo. Sup. Ct.), appeal dismissed for want of a substantial federal question, Crawford v. Missouri, 409 U.S. 811, 10 October 1972; and Jellum v. Culp, 475 F.2d 829 (9th Cir.), 6 March 1973, 476 P.2d 205 (Or. Ct. App.), 1970.

Also see Paris Adult Theater v. Slaton, 413 U.S. 49, 65–67, United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123, 126–127, and United States v. Orito, 413 U.S. 139, 142, 21 June 1973; Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639–640, 21 January 1974; Village of Belle Terre v. Boraas, 416 U.S. 1, 1 April 1974; Lehman v. City of Shaker Heights, 418 U.S. 298, 307 (Douglas, J., dissenting), 25 June 1974; and Kelley v. Johnson, 425 U.S. 238, 244, 251, 5 April 1976.

40. Doe v. Commonwealth’s Attorney, 403 F. Supp. 1199, 1203, 1205 (E.D. Va.), 24 October 1975; Edward T. Mulligan, “Griswold Revisited in Light of Uplinger,” New York University Review of Law and Social Change 13 (1984–1985): 51–82, at 55; Philip J. Hirschkop and John D. Grad, “Jurisdictional Statement,” Doe v. Commonwealth’s Attorney, U.S.S.C., O.T. 1975, #896, 19 November 1975, 12pp., pp. 7, 9–10; Doe v. Commonwealth’s Attorney, 425 U.S. 901, 29 March 1976; New York Times, 30 March 1976, pp. 1, 17, 31 March 1976, p. 40, 8 April 1976, p. 37; Los Angeles Times, 30 March 1976, pp. 1, 8, 1 April 1976, p. II-6; Wall Street Journal, 5 April 1976, p. 12; Time, 12 April 1976, p. 50. Also see Toby Marotta, The Politics of Homosexuality (Boston: Houghton Mifflin, 1981), pp. 22–23, 322–324, and 330, identifying research chemist Tony Segura, a founding member of the New York Mattachine Society chapter, as a leading Richmond activist at the time of Doe’s filing; Ronald J. Bacigal, May It Please the Court: A Biography of Judge Robert R. Merhige, Jr. (Lanham, MD: University Press of America, 1992); H. W. Perry, Jr., Deciding to Decide (Cambridge, MA: Harvard University Press, 1991), pp. 49, 257, concerning clerks’ impressions of the Court’s reluctance to decide gay rights cases; Woodward and Armstrong, The Brethren, p. 425; and Enslin v. North Carolina, 425 U.S. 903, 29 March 1976, denying certiorari to State v. Enslin, 214 So.2d 318.

On John Paul Stevens, see Robert J. Sickels, Justice John Paul Stevens and the Constitution (University Park: Pennsylvania State University Press, 1989); Bradley C. Canon, “Justice John Paul Stevens,” in Charles M. Lamb and Stephen C. Halpern, eds., The Burger Court (Urbana: University of Illinois Press, 1991), pp. 343–374; and Woodward and Armstrong, The Brethren, pp. 400–402. For Stevens’ prior stance toward the right to privacy, see his opinion in Fitzgerald v. Porter Memorial Hospital, 523 F.2d 716, 719, 720 (7th Cir.), 26 September 1975 (noting “our tradition of respect for the dignity of individual choice in matters of conscience” and observing that “neither the conception that produced Griswold, nor its progeny, is narrowly limited to marital rights”).

41. E. Carrington Bogan to Mel Wulf, 6 April 1976, and Wulf to Harriet Pilpel, 22 April 1976, ACLU 1978 Vol. 30; Wulf et al., “Consolidated Petition for Rehearing,” Doe v. Commonwealth’s Attorney and Enslin v. North Carolina, U.S.S.C., O.T. 1975, #896 and 897, 22 April 1976, 6pp., pp. 4–5; William Thom and Marilyn G. Haft, “Brief Amicus Curiae of the National Gay Task Force in Support of Petition for Rehearing,” Doe v. Commonwealth’s Attorney, #896, 26 April 1976; E. Carrington Bogan, “Brief Amicus Curiae of Lambda Legal Defense and Educational Fund, Inc., in Support of Petitions for Rehearing,” Doe v. Commonwealth’s Attorney and Enslin v. North Carolina, #896 and 897, 26 April 1976; New York Times, 9 May 1976, p. 26, 20 May 1976, p. 31; Doe v. Commonwealth’s Attorney, 425 U.S. 985, 19 May 1976.

Comments on the Court’s action in Doe include Kent Greenawalt, “The Burger Court and Claims of Privacy,” Hastings Center Report 6 (August 1976): 19–20; W. Cecil Jones, “Doe v. Commonwealth’s Attorney: Closing the Door to a Fundamental Right of Sexual Privacy,” Denver Law Journal 53 (1976): 553–576, esp. at 574; Nathan Lewin, “Avoiding the Supreme Court,” New York Times Magazine, 17 October 1976, pp. 31, 90–100, at 98; Leslie L. Cooney, Duquesne Law Review 15 (Fall 1976): 123–132; James J. Rizzo, “The Constitutionality of Sodomy Statutes,” Fordham Law Review 45 (December 1976): 553–595, at 570, 574, and 592; Iowa Law Review 62 (December 1976): 568–590; Brigham Young University Law Review 1977: 170–188; Tim O’Neill, “Doe v. Commonwealth’s Attorney: A Set-Back for the Right of Privacy,” Kentucky Law Journal 65 (Spring 1977): 748–763; Martin R. Levy and C. Thomas Hectus, “Privacy Revisited: The Downfall of Griswold,” University of Richmond Law Review 12 (Summer 1978): 627–646, at 627; David L. Bazelon, “Probing Privacy,” Gonzaga Law Review 12 (Summer 1977): 587–619, at 616–617; and Yale L. Rosenberg, “Notes from the Underground: A Substantive Analysis of Summary Adjudication by the Burger Court, Part II,” Houston Law Review 19 (July 1982): 831–897, at 848 (Doe is “One of the most criticized decisions rendered by the Court in recent years”).

On public opinion statistics, see especially Eugene E. Levitt and Albert D. Klassen, Jr., “Public Attitudes Toward Homosexuality,” Journal of Homosexuality 1 (Fall 1974): 29–43, at 30, 35, and 40; also see Jon P. Alston, “Attitudes Toward Extramarital and Homosexual Relations,” Journal for the Scientific Study of Religion 13 (December 1974): 479–481; Kenneth L. Nyberg and Alston, “Analysis of Public Attitudes Toward Homosexual Behavior,” Journal of Homosexuality 2 (Winter 1976–77): 99–107; Norval D. Glenn and Charles N. Weaver, “Attitudes Toward Premarital, Extramarital, and Homosexual Relations in the U.S. in the 1970s,” Journal of Sex Research 15 (May 1979): 108–118; and Tom W. Smith, “The Polls—The Sexual Revolution?,” Public Opinion Quarterly 54 (Fall 1990): 415–435. Also note Gilbert Geis et al., “Reported Consequences of Decriminalization of Consensual Adult Homosexuality in Seven American States,” Journal of Homosexuality 1 (Summer 1976): 419–426.

42. Richard E. Crouch to Mel Wulf, 27 May 1976, and Wulf to General Counsel, 2 June 1976, ACLU 1978 Vol. 38; Lovisi v. Virginia, 405 U.S. 936, 22 February 1972, 405 U.S. 998, 20 March 1972 (with Douglas, J., dissenting), 405 U.S. 1048, 3 April 1972 (with Douglas, J., dissenting); Lovisi v. Virginia, 212 Va. 848, 188 S.E.2d 206, 207, 24 April 1972, cert. denied, 407 U.S. 922, 19 June 1972; Lovisi v. Slayton, 363 F. Supp. 620, 624, 625, 626, 627, (E.D. Va.), 31 August 1973; Lovisi v. Slayton, 539 F.2d 349, 351, 355 (4th Cir.), 12 May 1976, cert. denied, Lovisi v. Zahradnick, 429 U.S. 977, 29 November 1976.

Also see State v. Bateman, 547 P.2d 6 (Ariz. Sup. Ct.), 10 March 1976 (stay denied, 429 U.S. 1302, 16 August 1976 [Rehnquist, Crct. J.], cert. denied, Bateman v. Arizona, 429 U.S. 864, 4 October 1976), reversing both State v. Bateman, 540 P.2d 732 (Ariz. Ct. App., Div. 1), 30 September 1975, and State v. Callaway, 542 P.2d 1147 (Ariz. Ct. App., Div. 2), 26 November 1975. Also note Judith E. Sirkis, Arizona State Law Journal 1976: 499–524.

But see State v. Pilcher, 242 N.W.2d 348, 359 (Iowa Sup. Ct.), 19 May 1976, a 5 to 4 holding that “the rationale expressed in Eisenstadt extends to protect the manner of sexual relations performed in private between consenting adults of the opposite sex not married to each other.” Also note State v. Pilcher, 242 N.W.2d 367 (Iowa Sup. Ct.), 19 May 1976; Washington University Law Quarterly 1977 (Spring): 337–348, and Iowa Law Review 63 (October 1977): 248–265.

Law journal notes on Lovisi include Keith M. Wiener, Emory Law Journal 25 (Fall 1976): 959–981; E. Clifton Knowles, Tennessee Law Review 44 (Fall 1976): 179–188; Journal of Criminal Law and Criminology 68 (March 1977): 77–82; Joseph L. Koplin, George Washington Law Review 45 (May 1977): 839–861; Carleton H. A. Taber, Hastings Constitutional Law Quarterly 4 (Summer 1977): 637–664; Stephen A. Yeagy, Rutgers Camden Law Journal 8 (Summer 1977): 707–713; and June A. Eichbaum, “Lovisi v. Slayton: Constitutional Privacy and Sexual Expression,” Columbia Human Rights Law Review 10 (Fall-Winter 1978–79): 525–540.

Also see Warner v. State, 489 P.2d 526 (Okla. Ct. Crim. App.), 1 September 1971; and Chesebrough v. State, 255 So.2d 675 (Fla. Sup. Ct.), 8 December 1971, cert. denied, 406 U.S. 976, 7 June 1972.

43. Planned Parenthood of Central Missouri v. Danforth, 392 F. Supp. 1362 (E.D. Mo.), 31 January 1975; 420 U.S. 918 (enforcement stayed pending appeal), 18 February 1975; Blackmun, “Memorandum to the Conference” (and attachment), 17 June 1975, Stewart to Blackmun, 17 June 1975, Brennan to Blackmun, 17 June 1975, and Marshall to Blackmun, 18 June 1975, Marshall Box 166; Woodward and Armstrong, The Brethren, pp. 414–416; 423 U.S. 819 (probable jurisdiction noted), 6 October 1975; New York Times, 7 October 1975, p. 1, 12 October 1975, p. IV-4; Wulff v. Singleton, 508 F.2d 1211 (8th Cir.), 1975 (reversing 380 F. Supp. 1137 [E.D. Mo.], 1974); Baird v. Bellotti, 393 F. Supp. 847 (D. Mass.), 28 April 1975. On the Massachusetts statute, see Virginia G. Cartoof, “Massachusetts’ Parental Consent Law: Origins, Implementation and Impact” (unpublished Ph.D. dissertation, Brandeis University, 1985).

Also see especially Connecticut v. Menillo, 423 U.S. 9, 11 November 1975 (vacating and remanding 362 A.2d 962); and Word v. Poelker, 495 F.2d 1349 (8th Cir.), 20 February 1974. Also note Wolfe v. Schroering, 388 F. Supp. 631 (W.D. Ky.), 19 November 1974; Doe v. Zimmerman, 405 F. Supp. 534 (M.D. Pa.), 3 December 1975; Roe v. Arizona Board of Regents, 549 P.2d 150 (Ariz. Sup. Ct.), 11 May 1976 (reversing 534 P.2d 285 [Ariz. Ct. App.]); and M. David Bryant, Jr., “State Legislation on Abortion After Roe v. Wade,” American Journal of Law and Medicine 2 (Summer 1976): 101–132.

44. Blackmun, Danforth Circulation #2, 26 May 1976, Brennan to Blackmun, 28 May 1976, Stevens to Blackmun, 28 May 1976, Stewart to Blackmun, 1 June 1976, Stevens Danforth Prints #2 and 3, 1 and 4 June 1976, Marshall to Blackmun, 2 June 1976, White to Blackmun, 4 June 1976, Marshall Box 166; Blackmun Bellotti typescript circulation, 7 June 1976, Stevens to Blackmun, 8 June 1976, Brennan to Blackmun, 9 June 1976, Stewart to Blackmun, 9 June 1976, Powell to Blackmun, 9 June 1976, Blackmun Bellotti Prints #1 and 2, 10 and 15 June 1976, Marshall to Blackmun, 10 June 1976, Rehnquist to Blackmun, 11 June 1976, White to Blackmun, 14 June 1976, and Burger to Blackmun, 16 June 1976, Marshall Box 170; White Danforth typescript circulation, 16 June 1976, Rehnquist to White, 17 June 1976, Stewart Danforth typescript circulation, 17 June 1976, Stevens to Blackmun, 17 June 1976, Powell to Stewart, 18 June 1976, Stewart Print #1, 21 June 1976, Blackmun, “Memorandum to the Conference” (Danforth), 21 June 1976, Marshall Box 166; Blackmun, “Memorandum to the Conference” (Bellotti), 21 June 1976, Marshall Box 170; Blackmun Danforth Print #3, 26 June 1976, Blackmun, “Memorandum to the Conference,” 28 June 1976, Stewart to Blackmun, 28 June 1976, Blackmun, “Memorandum to the Conference,” 28 June 1976, Powell to Blackmun, 28 June 1976, White Print #2, 28 and 30 June 1976, Burger to White, 30 June 1976, Stewart Print #2, 29 June 1976, Blackmun, “Memorandum to the Conference,” 29 June 1976, White, “Memorandum to the Conference,” 29 June 1976, Marshall Box 166.

45. Planned Parenthood of Central Missouri v. Danforth, 438 U.S. 52, 64, 71, 74, 78–79, 89, 92; Singleton v. Wulff, 428 U.S. 106, Bellotti v. Baird, 428 U.S. 132, 1 July 1976; New York Times, 2 July 1976, pp. A1, A8. Also see Epstein and Kobylka, The Supreme Court and Legal Change, pp. 216–220. Relevant law journal notes include Merrill S. Schell, “Third Party Consent to Abortions Before and After Danforth,” and George W. Moss III, “Abortion Statutes After Danforth,” Journal of Family Law 15 (1976–77): 508–536 and 537–567.

46. New York Times, 26 August 1976, p. 15, 16 September 1976, pp. 1, 30, 17 September 1976, p. 22, 18 September 1976, pp. 1, 9, 30 September 1976, p. 1, 1 October 1976, p. 1, 2 October 1976, p. 1, 23 October 1976, p. 1, 9 November 1976, p. 1, 14 November 1976, p. IV-8, 15 February 1977, p. 49; McRae v. Mathews, 421 F. Supp. 533, 22 October 1976; Buckley v. McRae, 429 U.S. 935, 8 November 1976 (stay denied), Buckley v. McRae, 429 U.S. 1085, 22 February 1977 (stay again denied); Maris A. Vinovskis, “The Politics of Abortion in the House of Representatives in 1976,” Michigan Law Review 77 (August 1979): 1790–1827, at 1793–1799. Also see Joyce Gelb and Marian L. Palley, “Women and Interest Group Politics: A Comparative Analysis of Federal Decision Making,” Journal of Politics 41 (May 1979): 362–392, at 375–377; Gelb and Palley, Women and Public Policies, rev. ed. (Princeton: Princeton University Press, 1987), pp. 129–161; Charles Fimian, “The Effects of Religion on Abortion Policy-Making: A Study of Voting Behavior in the U.S. Congress, 1976–1980” (unpublished Ph.D. dissertation, Arizona State University, 1983); and Raymond Tatalovich and David Schier, “The Persistence of Ideological Cleavage in Voting on Abortion Legislation in the House of Representatives, 1973–1988,” American Politics Quarterly 21 (January 1993): 125–139.

47. Sendak v. Arnold, 429 U.S. 968, 29 November 1976 (affirming 416 F. Supp. 22). On abortion’s role in the 1976 presidential campaign, see especially Byrnes, Catholic Bishops in American Politics, pp. 68–81; also see Byrnes, “The Bishops and Electoral Politics: A Case Study,” in Segers, ed., Church Polity and American Politics, pp. 121–141; Sandra Stencel, “Abortion Politics,” Editorial Research Reports 15 (22 October 1976): 767–784; and Byron W. Daynes and Raymond Tatalovich, “Presidential Politics and Abortion, 1972–1976,” Presidential Studies Quarterly 22 (Summer 1992): 545–561, at 546–49.

See as well Whalen v. Roe, 429 U.S. 589, 22 February 1977, at 605n: “The constitutional right vindicated in Doe was the right of a pregnant woman to decide whether or not to bear a child,” Justice Stevens observed on behalf of all nine justices. “The statutory restrictions on the abortion procedures were invalid because they encumbered the woman’s exercise of that constitutionally protected right by placing obstacles in the path of the doctor.… If those obstacles had not impacted upon the woman’s freedom to make a constitutionally protected decision, if they had merely made the physician’s work more laborious or less independent without any impact on the patient, they would not have violated the Constitution.” Also see 429 U.S. 609, Stewart, J., concurring: “Whatever the ratio decidendi of Griswold, it does not recognize a general interest in freedom from disclosure of private information.”

Also note Garger v. New Jersey, 429 U.S. 922, 1 November 1976, denying cert. to In re Quinlan, 355 A.2d 647, 663–64 (N.J. Sup. Ct.), 31 March 1976; Superintendent of Belchertown State School v. Saikewicz, 370 N.E.2d 417, 424, 426 (Mass. Sup. Jud. Ct.), 28 November 1977; In re Eichner, 423 N.Y.S.2d 580, 593 (Nassau County Sup. Ct.), 6 December 1979; Eichner v. Dillon, 426 N.Y.S.2d 517, 537–541 (App. Div. Sup. Ct., 2d Dept.), 27 March 1980; Satz v. Perlmutter, 379 So.2d 359 (Fla. Sup. Ct.), 17 January 1980 (affirming 362 So.2d 160); and Rasmussen v. Fleming, 741 P.2d 674, 682 (Ariz. Sup. Ct.), 23 July 1987 (“The right to refuse medical treatment is a personal right sufficiently ‘fundamental’ or ‘implicit in the concept of ordered liberty’ to fall within the constitutionally protected zone of privacy contemplated by the Supreme Court”). See too Edward M. Kay, “The Right to Die,” University of Florida Law Review 18 (Spring 1966): 591–605, at 604 (“The right to die complements and falls within the right to be let alone concept”); Richard Delgado, “Euthanasia Reconsidered—The Choice of Death as an Aspect of the Right of Privacy,” Arizona Law Review 17 (1975): 474–494, at 478 (“the decision to die is even more intimate than the decision to abort since no potentially independent entity is destroyed”); William F. Smith, “In re Quinlan: Defining the Basis for Terminating Life Support Under the Right of Privacy,” Tulsa Law Journal 12 (1976): 150–167; Norman L. Cantor, “Quinlan, Privacy, and the Handling of Incompetent Dying Patients,” Rutgers Law Review 30 (Winter 1977): 243–266; Patricia Archbold, “Roe v. Wade and In re Quinlan: Individual Decision and the Scope of Privacy’s Constitutional Guarantee,” University of San Francisco Law Review 12 (Fall 1977): 111–153, at 130 (“preserving individual decision is the essence of privacy’s constitutional role”); David A. J. Richards, “Constitutional Privacy, the Right to Die and the Meaning of Life,” William and Mary Law Review 22 (Spring 1981): 327–419; and Joyce A. Howell, “Guaranteeing the Right to Privacy: A Proposal,” Rutgers Law Journal 17 (Spring-Summer 1986): 615–657.

48. Carey v. Population Services International, 431 U.S. 678, 687, 688–689, 693, 703, 9 June 1977 (affirming 398 F. Supp. 321). Also see Brian DeBoice, “Due Process Privacy and the Path of Progress,” University of Illinois Law Forum 1979: 469–546, at 505.

See also Moore v. City of East Cleveland, 431 U.S. 494, 499, 503, 31 May 1977 (Powell, J., writing for only a four-justice plurality); and Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 844, 13 June 1977; note as well Harvard Law Review 91 (November 1977): 128–152, at 136 and 150; and Robert A. Burt, “The Constitution of the Family,” Supreme Court Review 1979 (Chicago: University of Chicago Press, 1980), pp. 329–395, at 388–391.

49. Maher v. Roe, 432 U.S. 464, 473–474, 475, 484, (reversing 408 F. Supp. 660); Beal v. Doe, 432 U.S. 438, 450, 462 (reversing 523 F.2d 611); Poelker v. Doe, 432 U.S. 519 (reversing 515 F.2d 541), 20 June 1977.

Also see Powell, “Memorandum to the Conference” (and Maher Print #1), 15 April 1977, Stevens to Powell, 18 April 1977, Powell Print #2, 28 April 1977, Stewart to Powell, 28 April 1977, Rehnquist to Powell, 28 April 1977, Marshall Box 186; Powell Circulation #1 in Beal, 28 April 1977, Stevens to Powell, 29 April 1977, Brennan to Powell, 2 May 1977, Powell Print #2, 2 May 1977, Rehnquist to Powell, 3 May 1977, Stewart to Powell, 3 May 1977, Marshall Box 182; Powell Per Curiam Circulation #1 in Poelker, 2 May 1977, Brennan to Powell, 2 May 1977, Stevens to Powell, Stewart to Powell, and Rehnquist to Powell, all 3 May 1977, Marshall Box 181; Powell Maher Print #3, 6 May 1977, Burger Concurrence Print #1, 11 May 1977, Brennan Dissent Print #2, 31 May 1977, Marshall to Brennan, 31 May 1977, Blackmun to Brennan, 1 June 1977, White to Powell, 1 June 1977, Powell Print #4, 2 June 1977, Marshall Box 186; Brennan Beal Dissent Print #1, 31 May 1977, Marshall to Brennan, 31 May 1977, Blackmun to Brennan, 1 June 1977, Blackmun Dissent Print #1, 1 and 2 June 1977, White to Powell, 1 June 1977, Burger to Powell, 1 June 1977, Marshall Box 182; Brennan Poelker Dissent Print #1, 31 May 1977, Marshall to Brennan, 31 May 1977, Blackmun to Brennan, 1 June 1977, Burger to Powell, 1 June 1977, White to Powell, 1 June 1977, Brennan to Blackmun, 14 June 1977, Marshall to Blackmun, 14 June 1977, Marshall Box 181; Powell to Brennan, 13 June 1977, Marshall Box 186. Marshall apparently first circulated his seven-page typescript dissent in all three cases on 10 January 1977, the day before they were argued. Maher File, Marshall Box 186.

50. New York Times, 18 June 1977, p. 1, 21 June 1977, pp. 1, 13, 22 June 1977, pp. 17, 22, 26 June 1977, p. IV-1, 27 June 1977, 30 June 1977, pp. 1, 20, 1 July 1977, p. 24, 3 July 1977, p. 32, 5 July 1977, p. 28, 6 July 1977, p. 12, 10 July 1977, p. 23, 13 July 1977, pp. 1, 10, 14 July 1977, p. 38, 17 July 1977, p. IV-10, 29 July 1977, p. 1, 31 July 1977, p. IV-2, 3 August 1977, p. 11, 5 August 1977, pp. 1, 9, 6 August 1977, p. 16; Califano v. McRae, 433 U.S. 916, 29 June 1977; Jeanne B. Nicholson and Debra W. Stewart, “The Supreme Court, Abortion Policy, and State Response: A Preliminary Analysis,” Publius 8 (Winter 1978): 159–178. On Judge Dooling himself, see New York Times, 1 August 1977, p. 42. Also see Ms., July 1977, pp. 54–55; Richard N. Ostling, “The Changing Abortion Debate,” Theology Today 34 (July 1977): 161–166; The New Republic, 2 July 1977, pp. 5–6; Eugene J. McMahon, America, 9 July 1977, pp. 12–14; Peter Steinfels, “The Politics of Abortion,” Commonweal, 22 July 1977, p. 456; Lance Morrow, Time, 11 August 1977, p. 49; Howard A. Palley, “Abortion Policy: Ideology, Political Cleavage and the Policy Process,” Policy Studies Journal 7 (Winter 1978): 224–233; Peter Skerry, “The Class Conflict Over Abortion,” The Public Interest 52 (Summer 1978): 69–84; and Marc I. Steinberg, St. Louis University Law Journal 22 (1979): 596–600.

51. Kristen B. Glen, “Abortion in the Courts: A Laywoman’s Historical Guide to the New Disaster Area,” Feminist Studies 4 (February 1978): 1–26, at 1; Moody in Christianity & Crisis, 19 September 1977, pp. 202–207, at 203; Susman, “Roe v. Wade and Doe v. Bolton Revisited in 1976 and 1977—Reviewed?; Revived?; Revested?; Reversed? or Revoked?” St. Louis University Law Journal 22 (1979): 581–595, at 584; Law in Patricia Donovan, Family Planning/Population Reporter 6 (October 1977): 66–67; New York Times, 17 August 1977, p. 1, 13 September 1977, p. 14, 27 September 1977, p. 24, 28 September 1977, p. 1, 30 September 1977, pp. 20, 26, 1 October 1977, p. 8, 2 October 1977, p. IV-4, 6 October 1977, p. A21, 14 October 1977, p. 14, 23 October 1977, pp. 1, 24, 1 November 1977, p. 29, 2 November 1977, p. 19, 4 November 1977, p. 1, 5 November 1977, p. 9, 27 November 1977, p. IV-4, 28 November 1977, p. 19, 30 November 1977, p. 20, 7 December 1977, p. 19, 8 December 1977, pp. 1, 14, 9 December 1977, p. 16, 25 December 1977, p. 20.

Also see Mary C. Segers, “Abortion and the Supreme Court: Some Are More Equal Than Others,” Hastings Center Report 7 (August 1977): 5–6; Janet Benshoof, “Mobilizing for Abortion Rights,” Civil Liberties Review 4 (September-October 1977): 76–79; Michael Kinsley, The New Republic, 19 November 1977, pp. 13–15; David T. Hardy, “Privacy and Public Funding: Maher v. Roe as the Interaction of Roe v. Wade and Dandridge v. Williams,” Arizona Law Review 18 (1977): 903–938; Alan J. Shefler, “Indigent Women and Abortion: Limitation of the Right of Privacy in Maher v. Roe,” Tulsa Law Journal 13 (1977): 287–303; Barnett M. Sneideman, “Abortion: A Public Health and Social Policy Perspective,” New York University Review of Law and Social Change 7 (Spring 1978): 187–213; Michael J. Perry, “The Abortion Funding Cases,” Georgetown Law Journal 66 (June 1978): 1191–1245; Dennis J. Horan and Thomas J. Marzen, “The Moral Interest of the State in Abortion Funding: A Comment on Beal, Maher, and Poelker,” St. Louis University Law Journal 22 (1979): 566–579; Debra W. Stewart and Jeanne B. Nicholson, “Abortion Policy in 1978: A Follow-Up Analysis,” Publius 9 (Winter 1979): 161–167; Susan J. Tolchin, “The Impact of the Hyde Amendment on Congress: Effects of Single Issue Politics on Legislative Disfunction, June 1977-June 1978,” Women and Politics 5 (Spring 1985): 91–106; and Kathleen R. Scharf, “Abortion and the Body Politic: An Anthropological Analysis of Legislative Activity in Massachusetts” (unpublished Ph.D. dissertation, Boston University, 1981).

52. Time, 19 December 1977, pp. 12–13; “A Call to Concern,” Christianity & Crisis, 3 October 1977, pp. 222–224, and Christian Century, 12 October 1977, pp. 912–14. Also see Gloria Steinem, “Abortion Alert,” Ms., November 1977, p. 118.

In later years, some writers would blame the supposed passivity of abortion rights advocates for antiabortionists’ increasing success. See, e.g., Samuel Walker, In Defense of American Liberties (New York: Oxford University Press, 1990), p. 303 (after Roe, “the abortion rights legislative movement evaporated”), Marlene Gerber Fried, in Fried, ed., From Abortion to Reproductive Rights (Boston: South End Press, 1990), p. 5 (“The abortion rights movement essentially folded after abortion became legal”), and Susan G. Mezey, In Pursuit of Equality (New York: St. Martin’s Press, 1991), p. 210 (until 1989, pro-choice proponents had been “largely quiescent since 1973”). Also see Pamela J. Conover and Virginia Gray, Feminism and the New Right (New York: Praeger, 1983), p. 67. However, as Suzanne Staggenborg has correctly noted, “Contrary to some accounts … the pro-choice movement did not demobilize in response to the victory.” Staggenborg, “Organizational and Environmental Influences on the Development of the Pro-Choice Movement,” Social Forces 68 (September 1989): 204–240, at 221; also see Staggenborg, The Pro-Choice Movement (New York: Oxford University Press, 1991), pp. 10, 57.

53. James T. Burtchaell, Christianity & Crisis, 14 November 1977, pp. 270–271; Frederick S. Jaffe et al., Abortion Politics (New York: McGraw-Hill, 1981), pp. 10, 32 (reporting 1977 statistics); New York Times, 20 February 1978, p. 12, 2 March 1978, 3 March 1978, p. 8, 4 March 1978, p. 24, 10 March 1978, p. 16; Congressional Quarterly Weekly Report, 1 July 1978, pp. 1677–1679; Patricia Donovan, Family Planning/Population Reporter 7 (August 1978): 62–64; Newsweek, 5 June 1978, pp. 37–47. On Burtchaell, also see New York Times, 3 December 1991, p. A20.

See also Christianity & Crisis, 31 October 1977, pp. 253–255, 14 November 1977, pp. 264–266, and 26 December 1977, pp. 311–318; Lawrence Lader, New York Times, 11 January 1978, p. A19; New York Times, 22 January 1978, p. D19, 23 January 1978, pp. A18, B2, 24 January 1978, p. A12, 4 May 1978, p. A17, 20 May 1978, p. 24; Time, 10 April 1978, p. 26, 22 May 1978, p. 24; and Judy Barton, “Abortion Clinics Under Siege,” The Progressive, March 1979, pp. 27–29.

54. New York Times, 14 March 1978, p. 37, 14 June 1978, p. 1, 20 June 1978, p. 16, 20 June 1978, pp. 1, 16, 16 August 1978, p. 128, 4 October 1978, p. 75, 13 October 1978, p. 3, 16 October 1978, p. 5, 5 December 1978, p. 18, 26 December 1978, p. B14; Margaret Steinfels et al., “Is Abortion a Religious Issue?,” Hastings Center Report 8 (August 1978): 12–17; Commonweal, 8 December 1978, pp. 771–773, 2 February 1979, pp. 35–38; Aryeh Neier, “Theology and the Constitution,” The Nation, 30 December 1978, pp. 723, 726–727; “Does the First Amendment Bar the Hyde Amendment?,” Christianity & Crisis, 5 March 1979, pp. 34–43; Beal v. Franklin, 435 U.S. 913 (probable jurisdiction noted), 6 March 1978 (argued 3 October 1978); New York Times, 7 March 1978, p. 12, 17 October 1978, p. 29, 31 October 1978, p. 20; Bellotti v. Baird, 439 U.S. 925 (probable jurisdiction noted), 30 October 1978; New York Times, 13 November 1978, p. 18, 16 November 1978, p. 27, 22 November 1978, p. 1; Time, 29 January 1979, pp. 62–63. Also see Richard A. McCormick, America, 22 July 1978, pp. 26–30; Wall Street Journal, 15 August 1978.

55. Colautti v. Franklin, 439 U.S. 379, 386, 387, 388, 393, 394, 409, 9 January 1979; New York Times, 10 January 1979, p. D18, 14 January 1979, p. IV-22, 23 January 1979, p. C10. Also see especially Anders v. Floyd, 440 U.S. 445, 5 March 1979 (vacating and remanding 440 F.Supp. 535), and New York Times, 6 March 1979, p. B7, as well as Planned Parenthood Association v. Fitzpatrick, 401 F. Supp. 554 (E.D. Pa.), Franklin v. Fitzpatrick and Beal v. Franklin, 428 U.S. 901, 6 July 1976; Leslie Ann Cohen, “Fetal Viability and Individual Autonomy: Resolving Medical and Legal Standards for Abortion,” UCLA Law Review 27 (August 1980): 1340–1364, at 1354–55; Eugene Griffin, “Viability and Fetal Life in State Criminal Abortion Laws,” Journal of Criminal Law & Criminology 72 (Spring 1981): 324–344; and Ken Martyn, “Technological Advances and Roe v. Wade: The Need to Rethink Abortion Law,” UCLA Law Review 29 (June-August 1982): 1194–1215. Blackmun first circulated an initial print of his Colautti opinion on 22 November 1978, and it was joined by Justices Marshall (22 November), Brennan, Stewart, Stevens (all 27 November) and Powell (7 December). Also see White to Blackmun, 24 November 1978, White Print #1, 29 December 1978 (joined 2 January 1979 by both Rehnquist and Burger), and White to Blackmun, 4 January 1979, all in Marshall Box 226. On “right to life” efforts in Pennsylvania, see especially Michael Margolis and Kevin Neary, “Pressure Politics Revisited: The Anti-Abortion Campaign,” Policy Studies Journal 8 (Spring 1980): 698–716.

Also note Zablocki v. Redhail, 434 U.S. 374, 384, 18 January 1978 (“the right to marry is part of the fundamental ‘right of privacy’ implicit in the Fourteenth Amendment’s Due Process Clause”). See as well “The Constitution and the Family,” Harvard Law Review 93 (April 1980): 1156–1383, at 1250.

56. New York Times, 1 March 1979, p. B20, 12 March 1979, p. 16, 22 April 1979, p. 49, 1 May 1979, p. C22, 15 May 1979, p. B6, 20 May 1979, p. 52, 28 June 1979, p. B14, 29 June 1979, p. 15, 3 July 1979, p. 9; Bellotti v. Baird, 443 U.S. 622, 649, 651, 655, 2 July 1979 (affirming 450 F. Supp. 997); Stevens to Powell, 5 June 1979, Marshall Box 235. Also see Baird v. Attorney General, 360 N.E.2d 288 (Mass. Sup. Jud. Ct.), and Baird v. Bellotti, 428 F. Supp. 854.

Powell first circulated his opinion on June 1, and in a cover note highlighted how in part he was working from Bellotti I’s specification of whether or not a statutory requirement posed an “undue burden” (428 U.S. 145) on a pregnant minor’s right to an abortion. Powell, “Memorandum to the Conference,” 1 June 1979 (with attachment). Prior to subsequently joining Powell’s opinion, Potter Stewart initially contended “that a pregnant minor should not have even the rather light burden that you would require of satisfying the Superior Court that her parents would probably deny consent and seek to obstruct her efforts to seek judicial relief. In my opinion, her burden should be only to convince the Court that she is sufficiently mature to decide the matter for herself or that an abortion would be in her best interest.” Their disagreement, Stewart added, “probably depends ultimately upon a differing assessment of what is an ‘undue burden’” per Bellotti I. Stewart to Powell, 4, 5, and 25 June 1979. Also see Rehnquist to Powell (2), 5 June 1979, Stevens typescript circulation, 6 June 1979, and Print #1, 8 June 1979, White to Powell, 7 June 1979, Rehnquist to Powell, 8 June 1979, Burger to Powell, 8 June 1979, Brennan to Stevens, 8 June 1979, Blackmun to Powell, 18 June 1979 (“I have been through these woods before and I know how sticky and difficult the going is in this general area”), Blackmun to Stevens, 18 June 1979, Marshall to Stevens, 19 June 1979, Rehnquist to Powell, 25 June 1979, Burger to Powell, 25 June 1979, all in Marshall Box 235.

Also note Juli Loesch, “Abortion and an Attempt at Dialogue,” America, 24 March 1979, pp. 234–236; Rhonda Copelon, Ms., May 1979, pp. 91–92; Elizabeth R. Dobell, Redbook, June 1979, pp. 42, 86–97; and especially Roger M. Williams, “The Power of Fetal Politics,” Saturday Review, 9 June 1979, pp. 12–15; as well as Robert B. Keiter, “Privacy, Children, and Their Parents: Reflections On and Beyond the Supreme Court’s Approach,” Minnesota Law Review 66 (March 1982): 459–518, at 472–477.

57. New York Times, 20 July 1979, p. A14, 18 September 1979, p. B8, 29 September 1979, pp. 1, 24, 2 October 1979, p. B13, 4 October 1979, p. 30, 10 October 1979, p. 1, 13 October 1979, p. 1, 11 November 1979, p. 43, 14 November 1979, p. 22, 16 November 1979, p. 9, 17 November 1979, p. 10, 26 November 1979, p. 18, 27 November 1979, p. B18; Williams v. Zbaraz, 444 U.S. 962 (26 November 1979).

On public opinion, see Judith Blake and Jorge H. Del Pinal, “Predicting Polar Attitudes Toward Abortion in the United States,” in James T. Burtchaell, ed., Abortion Parley (Kansas City: Andrews & McMeel, 1980), pp. 29–56, and “Negativism, Equivocation, and Wobbly Assent: Public ‘Support’ for the Pro-Choice Platform on Abortion,” Demography 18 (August 1981): 309–320; Donald and Beth W. Granberg, “Pro-Life Versus Pro-Choice: Another Look at the Abortion Controversy in the U.S.,” Sociology and Social Research 65 (July 1981): 424–434; Michael W. Coombs and Susan Welch, “Blacks, Whites, and Attitudes Toward Abortion,” Public Opinion Quarterly 46 (Winter 1982): 510–520, at 514; Herbert McClosky and Alida Brill, Dimensions of Tolerance (New York: Russell Sage Foundation, 1983), pp. 218–231; Cynthia H. Deitch, “Ideology and Opposition to Abortion: Trends in Public Opinion, 1972–1980,” Alternative Lifestyles 6 (Fall 1983): 6–26; Helen R. F. Ebaugh and C. Allen Haney, “Abortion Attitudes in the United States: Continuities and Discontinuities,” and Donald and Beth W. Granberg, “Social Bases of Support and Opposition to Legalized Abortion,” both in Paul Sachdev, ed., Perspectives on Abortion (Metuchen, NJ: Scarecrow Press, 1985), pp. 163–77 and 191–204; Allen L. McCutcheon, “Sexual Morality, Pro-Life Values, and Attitudes Toward Abortion: A Simultaneous Latent Structure Analysis for 1978–1983,” Sociological Methods and Research 16 (November 1987): 256–275; Ted G. Jelen, “Changes in the Attitudinal Correlations of Opposition to Abortion, 1977–1985,” Journal for the Scientific Study of Religion 27 (June 1988): 211–228; Robert F. Szafran and Arthur F. Clagett, “Variable Predictors of Attitudes Toward the Legalization of Abortion,” Social Indicators Research 20 (June 1988): 271–290; and Michael W. Gillespie et al., “Secular Trends in Abortion Attitudes: 1975–1980–1985,” Journal of Psychology 122 (July 1988): 323–341. Also note Ross K. Baker et al., “Matters of Life and Death: Social, Political, and Religious Correlates of Attitudes on Abortion,” American Politics Quarterly 9 (January 1981): 89–102; Howard Schuman et al., “Context Effects on Survey Responses to Questions About Abortion,” Public Opinion Quarterly 45 (Summer 1981): 216–223; Gregory Casey, “Intensive Analysis of a ‘Single’ Issue: Attitudes on Abortion,” Political Methodology 10 (1984): 97–124; and George F. Bishop et al., “The Importance of Replicating a Failure to Replicate: Order Effects on Abortion Items,” Public Opinion Quarterly 49 (Spring 1985): 105–114.

Also see generally Andrew Hacker, “Of Two Minds About Abortion,” Harper’s 259 (September 1979): 16–22, at 18 (“Support for abortion comes primarily from men and women who admit to enjoying sexual activity.… They compose a new class of Americans, for whom intercourse is an important leisure pursuit”); Edward A. Langerak, “Abortion: Listening to the Middle,” Hastings Center Report 9 (October 1979): 24–28; and ABA Journal November 1979, pp. 1634–35.

58. Kristin Luker, Abortion and the Politics of Motherhood (Berkeley: University of California Press, 1984), pp. 137–138, 193, 224, 241; Stephen L. Markson, “Normative Boundaries and Abortion Policy: The Politics of Morality,” Research in Social Problems and Public Policy 2 (1982): 21–33, at 32; Linda Gordon and Allen Hunter, “Sex, Family & the New Right,” Radical America 11/12 (December 1977-February 1978): 9–25, at 11; Patrick J. Sheeran, Women, Society, the State, and Abortion (New York: Praeger, 1987), at pp. 125 and 127–28; Rosalind P. Petchesky, “Antiabortion, Antifeminism, and the Rise of the New Right,” Feminist Studies 7 (Summer 1981): 206–246, at 207 and 210. Also note Petchesky, “Reproductive Freedom: Beyond ‘A Woman’s Right to Choose,’” Signs 5 (Summer 1980): 661–685; Faye Ginsburg, “Procreation Stories: Reproduction, Nurturance, and Procreation in Life Narratives of Abortion Activists,” American Ethnologist 14 (November 1987): 623–636; Suzanne Staggenborg, “Life-Style Preferences and Social Movement Recruitment: Illustrations from the Abortion Conflict,” Social Science Quarterly 68 (December 1987): 779–797; and Elizabeth A. Cook et al., Between Two Absolutes: Public Opinion and the Politics of Abortion (Boulder, CO: Westview Press, 1992), pp. 5, 86–87 and 108.

Also see Donald Granberg, “Pro-Life or Reflection of Conservative Ideology?—An Analysis of Opposition to Legalized Abortion,” Sociology and Social Research 62 (April 1978): 414–429; William A. McIntosh et al., “The Differential Impact of Religious Preference and Church Attendance on Attitudes Toward Abortion,” Review of Religious Research 20 (Spring 1979): 195–213; Granberg, “The Abortion Activists,” Family Planning Perspectives 13 (July-August 1981): 157–163; Mary Jo Neitz, “Family, State, and God: Ideologies of the Right-to-Life Movement,” Sociological Analysis 42 (Fall 1981): 265–276; Granberg, “Comparison of Members of Pro- and Anti-Abortion Organizations in Missouri,” Social Biology 28 (Fall-Winter 1981): 239–252; Granberg, “Family Size Preferences and Sexual Permissiveness as Factors Differentiating Abortion Activists,” Social Psychology Quarterly 45 (March 1982): 15–23; Granberg, “What Does It Mean to Be ‘Pro-Life’?” Christian Century, 12 May 1982, pp. 562–566; Granberg, “Comparison of Pro-Choice and Pro-Life Activists: Their Values, Attitudes, and Beliefs,” Population and Environment 5 (Summer 1982): 75–94; Peter J. Leahy et al., “The Anti-Abortion Movement and Symbolic Crusades: Reappraisal of a Popular Theory,” Alternative Lifestyles 6 (Fall 1983): 27–47; Ted G. Jelen, “Respect for Life, Sexual Morality, and Opposition to Abortion,” Review of Religious Research 25 (March 1984): 220–231; Mary H. Benin, “Determinants of Opposition to Abortion,” Sociological Perspectives 28 (April 1985): 199–216; Robert J. Spitzer, The Right to Life Movement and Third Party Politics (Westport, CT: Greenwood Press, 1987), p. 85; John D. McCarthy, “Pro-Life and Pro-Choice Mobilization: Infrastructure Deficits and New Technologies,” in Mayer N. Zald and McCarthy, eds., Social Movements in an Organizational Society (New Brunswick, NJ: Transaction Books, 1987), pp. 49–66; Amy Fried, “Abortion Politics as Symbolic Politics: An Investigation Into Belief Systems,” Social Science Quarterly 69 (March 1988): 137–154; and James L. Guth et al., “The Sources of Antiabortion Attitudes,” American Politics Quarterly 21 (January 1993): 65–80.

59. New York Times, 13 January 1980, p. 22, 16 January 1980, pp. A1, B2, 17 January 1980, p. B3, 20 January 1980, p. IV-18, 23 January 1980, p. 12, 13 February 1980, p. B7, 15 February 1980, p. 30, 20 February 1980, p. 1, 21 February 1980, p. B11, 22 February 1980, p. 14, 24 February 1980, p. 29; McRae v. Harris, 491 F. Supp. 630 (E.D.N.Y.), 15 January 1980; Harris v. McRae, 444 U.S. 1069, 19 February 1980; Congressional Quarterly Weekly Report, 19 April 1980, pp. 1037–1041.

Also see Mary Meehan, Commonweal, 18 January 1980, pp. 13–16; Mary C. Segers, Christianity & Crisis, 18 February 1980, pp. 21–27; and especially Eve W. Paul and Paula Schaap, “Abortion and the Law in 1980,” New York Law School Law Review 25 (1980): 497–525.

60. “CRS” [Cass R. Sunstein], Bench Memo, Williams v. Zbaraz, n.d. [c.March 1980], p. 8, Marshall Box 239; “JMC” [Janet M. Cooper], Bench Memo, Harris v. McRae, n.d. [c. early April 1980], 7pp., Marshall Box 240; New York Times, 20 April 1980, p. IV-8, 22 April 1980, p. B12; Brennan to Marshall, Blackmun and Stevens, 28 April 1980, Stewart, “Memorandum to the Conference” (with attached 54pp. typescript for Harris), 6 June 1980, Stevens to Stewart, Marshall to Stewart, and Powell to Stewart, 9 June 1980, Rehnquist to Stewart, and White to Stewart, 10 June 1980, Stewart Print #1, 11 June 1980, Stevens typescript, 13 June 1980, Brennan to Stevens, and Brennan typescript, 20 June 1980, Blackmun to Brennan, 23 June 1980, Blackmun typescript, Marshall typescript, White typescript, and Stevens Print #1, 23 June 1980, Burger to Stewart, 23 June 1980, Marshall to Brennan, 24 June 1980, Marshall Print #1, Blackmun Print #1, and White Print #1, 25 June 1980, Brennan Print #1, 26 June 1980, Marshall Box 258; Stewart Zbaraz typescript, 11 June 1980, Powell to Stewart, Rehnquist to Stewart, and White to Stewart, 16 June 1980, Stewart Zbaraz Print #1, 17 June 1980, Marshall Box 253.

61. Harris v. McRae, 448 U.S. 297, 316, 317, 318, 325, 326, 330, 331n, 352 (reversing 491 F. Supp. 630); Williams v. Zbaraz, 448 U.S. 358, 369 (vacating 469 F. Supp. 1212), 30 June 1980. Also see Zbaraz v. Quern, 572 F.2d 582 and 596 F.2d 196 (7th Cir.); also note Pre-term, Inc. v. Dukakis, 591 F.2d 121 (1st Cir.).

62. New York Times, 30 June 1980, p. B15, 1 July 1980, pp. A1, A18, B8, B9, 4 July 1980, p. 10, 6 July 1980, pp. IV-4, IV-16, 7 July 1980, p. B2, 26 July 1980, p. 6; Congressional Quarterly Weekly Report, 5 July 1980, pp. 1860–63; Time, 14 July 1980, pp. 10–13; Michael J. Perry, “Why the Supreme Court Was Plainly Wrong in the Hyde Amendment Case: A Brief Comment on Harris v. McRae,” Stanford Law Review 32 (July 1980): 1113–1128, at 1120; Mary C. Segers, “Governing Abortion Policy,” in Richard A. Gambitta et al., eds., Governing Through Courts (Beverly Hills, CA: Sage Publications, 1981), pp. 283–300, at 289; Dennis J. Horan, “The Supreme Court on Abortion Funding: The Second Time Around,” St. Louis University Law Journal 25 (1981): 411–427, at 426.

On Harris, also see Leslie F. Goldstein, “A Critique of the Abortion Funding Decisions: On Private Rights in the Public Sector,” Hastings Constitutional Law Quarterly 8 (Fall 1980): 313–342; John T. Noonan, Jr., and David Mechanic, in Hastings Center Report 10 (December 1980): 14–16 and 17–19; Robert W. Bennett, “Abortions and Judicial Review,” Northwestern University Law Review 75 (February 1981): 978–1017; Tinsley E. Yarbrough, “The Abortion-Funding Issue: A Study in Mixed Constitutional Cues,” North Carolina Law Review 59 (March 1981): 611–627; David T. Hardy, “Harris v. McRae: Clash of a Nonenumerated Right with Legislative Control of the Purse,” Case Western Reserve Law Review 31 (Spring 1981): 465–508; Susan F. Appleton, “Beyond the Limits of Reproductive Choice: The Contributions of the Abortion-Funding Cases to Fundamental Rights Analysis and to the Welfare Rights Thesis,” Columbia Law Review 81 (May 1981): 721–758; Paul M. Sommers and Laura S. Thomas, “Restricting Federal Funds for Abortion: Another Look,” Social Science Quarterly 64 (June 1983): 340–346; and Kenneth J. Meier and Deborah R. McFarlane, “The Politics of Funding Abortion,” American Politics Quarterly 21 (January 1993): 81–101. Also note Jean G. Platt et al., “Special Project—Survey of Abortion Law,” Arizona State Law Journal 1980: 67–216; and Epstein and Kobylka, The Supreme Court and Legal Change, pp. 221–231.

63. New York Times, 18 August 1980, p. A15, 30 September 1980, p. 16, 1 October 1980, p. 16, 2 October 1980, pp. 18, 19, 6 November 1980, p. B9, 7 November 1980, pp. 14, 16, 9 November 1980, p. IV-8, 10 November 1980, p. 21, 13 December 1980, p. 1, 14 December 1980, pp. 1, 31; Patricia Donovan, “The Defeat of the Toledo Abortion Ordinance: An Anatomy of a Crucial Victory,” Family Planning/Population Reporter 9 (August 1980): 64–67; George G. Higgins, “The Pro-life Movement and the New Right,” America, 13 September 1980, pp. 107–110; Donald Granberg and James Burlison, “The Abortion Issue in the 1980 Elections,” Family Planning Perspectives 15 (September-October 1983): 231–238; and Byrnes, Catholic Bishops in American Politics, pp. 82–91.

Also see Life, November 1981, pp. 45–54; Commonweal, 12 February 1982, pp. 75–84, at 78; Stanley K. Henshaw and Greg Martire, “Abortion and the Public Opinion Polls: Morality and Legality,” Family Planning Perspectives 14 (March-April 1982): 53–60; Jerome S. Legge, Jr., “The Determinants of Attitudes Toward Abortion in the American Electorate,” Western Political Quarterly 36 (September 1983): 479–490; and Granberg, “An Anomaly in Political Perception,” Public Opinion Quarterly 49 (Winter 1985): 504–516.

64. H. L. v. Matheson, 445 U.S. 903, 25 February 1980; New York Times, 26 February 1980, p. D19, 12 October 1980, pp. 35, IV-8; “MM” [Martha Minow], Bench Memo, H. L. v. Matheson, n.d. [c.late October 1980], 5pp., Marshall Box 261; Marshall Print #1, 7 November 1980, Stewart to Marshall, 10 November 1980, Powell to Marshall, 12 November 1980, Blackmun to Marshall, 12 November 1980, Marshall Box 279. Blackmun’s “out there” reference echoed a phrase—“another world ‘out there’”—he had used three years earlier in Beal v. Doe, 432 U.S. at 463. Also note Nanette Dembitz, “The Supreme Court and a Minor’s Abortion Decision,” Columbia Law Review 80 (October 1980): 1251–1263.

65. Moe v. Secretary of Administration and Finance, 382 Mass. 629, 651, 18 February 1981; New York Times, 19 February 1981, p. A20; Committee to Defend Reproductive Rights v. Myers, 29 Cal.3d 252, 282, 284–85, 20 March 1981. Also generally see Gerald B. Cope, Jr., “Toward a Right of Privacy as a Matter of State Constitutional Law,” Florida State University Law Review 5 (Fall 1977): 631–745; and Mark Silverstein, “Privacy Rights in State Constitutions: Models for Illinois?” University of Illinois Law Review 1989: 215–296.

On Massachusetts, also note William L. Pardee, “The Massachusetts Right of Privacy Statute,” Suffolk University Law Review 9 (Summer 1975): 1254–85; on California, also note Lewis A. Kornhauser, “Privacy: The New Constitutional Language and the Old Right,” California Law Review 64 (March 1976): 347–369; Peter H. Behr, “Privacy: To Be or Not to Be, That Is the Question,” Pacific Law Journal 10 (July 1979): 663–671; City of Santa Barbara v. Adamson, 610 P.2d 436, 440n (Cal. Sup. Ct.), 15 May 1980 (“the federal right of privacy in general appears to be narrower than what the voters approved in 1972 when they added ‘privacy’ to the California Constitution”); and Robert S. Gerstein, “California’s Constitutional Right to Privacy,” Hastings Constitutional Law Quarterly 9 (Winter 1982): 385–427.

Regarding other states, also note Joan Uda, “Roe v. Wade and the Montana Dilemma,” Montana Law Review 35 (Winter 1974): 103–118, and Larry M. Elison and Dennis NettikSimmons, “Right of Privacy,” Montana Law Review 48 (Winter 1987): 1–52; James C. Harrington, “Privacy and the Texas Constitution,” Vermont Law Review 13 (Spring 1988): 155–177; and John Devlin, “Privacy and Abortion Rights Under the Louisiana State Constitution,” Louisiana Law Review 51 (March 1991): 685–732.

No doubt the most unusual state constitutional privacy holding of the 1970s and 1980s was the Alaska Supreme Court’s unanimous 1975 ruling that the privacy language added to that state’s Constitution in 1972 (“The right of the people to privacy is recognized and shall not be infringed”) effectively decriminalized the use and possession of small amounts of marijuana within the home. Ravin v. State, 537 P.2d 494, 27 May 1975. Also note New York Times, 28 May 1975, p. 8, as well as State v. Kanter, 493 P.2d 306, 313–14 (Hawaii Sup. Ct., Levinson, J., dissenting), 20 January 1972 (cert. denied, Kantner v. Hawaii, 409 U.S. 948, 24 October 1972). Law journal notes on Ravin include Lynda Mae Wong, UCLA—Alaska Law Review 5 (Fall 1975): 178–229; Janet K. Breece, North Carolina Central Law Journal 7 (Fall 1975): 163–174; Gerald Solk, Texas Southern University Law Review 4 (1976): 50–65; David E. Rohrer, Wisconsin Law Review 1976: 305–330; Bruce Brashear, Tulsa Law Journal 11 (1976): 563–586; and Bruce M. Botelho, Willamette Law Journal 12 (Spring 1976): 394–400. Also note Mark Soler, Connecticut Law Review 6 (Summer 1974): 601–723; and Michael A. Lamson, Arizona Law Review 18 (1976): 207–231.

66. H. L. v. Matheson, 450 U.S. 398, 420 (affirming 604 P.2d 907), 23 March 1981; New York Times, 24 March 1981, p. 1, 29 March 1981, p. IV-7. Also see especially Gary-Northwest Indiana Women’s Services, Inc. v. Orr, 451 U.S. 934, 27 April 1981 (affirming 496 F. Supp. 894), with Justices Brennan, Marshall, and Blackmun indicating that they would note probable jurisdiction; New York Times, 28 April 1981, p. D23. Note also Elizabeth Buchanan, “The Constitution and the Anomaly of the Pregnant Teenager,” Arizona Law Review 24 (1982): 553–610; and Janet Benshoof, “Reproductive Freedom,” in Kenneth P. Norwick, ed., Lobbying For Freedom in the 1980s (New York: Wideview/Perigee), 1983, pp. 71–111, at 83 (H. L. “a very narrow” decision).

On H. L., also see Blackmun to Marshall, and Brennan to Marshall, 13 November 1980, Marshall Print #2, 17 November 1980, Burger to Marshall, and White to Burger, 24 November 1980, Burger Print #1, 16 December 1980, Stevens Print #1, 17 December 1980, Powell to Burger and Marshall (and attachment), 8 January 1981, Stewart to Powell, 9 January 1981, Burger, “Memorandum to the Conference” (and Print #2), 10 January 1981, Burger to Powell, 15 January 1981, Powell to Burger, 16 January 1981, Stewart to Powell, Stewart to Burger, and Rehnquist to Burger, 22 January 1981, Marshall Dissent Print #1, 25 February 1981, Blackmun to Marshall, 26 February 1981, Brennan to Marshall, 27 February 1981, White to Burger, 4 March 1981, Marshall Box 279.