67. Stephen H. Galebach, “A Human Life Statute,” Human Life Review 7 (Winter 1981): 3–31; New York Times, 23 January 1981, p. 14, 15 February 1981, p. 38, 16 February 1981, p. B6, 7 March 1981, p. 11, 13 March 1981, p. A18, 21 March 1981, p. 22, 27 March 1981, p. 1, 28 March 1981, p. 9, 19 April 1981, p. IV-16, 22 April 1981, p. 25, 23 April 1981, p. B9, 24 April 1981, p. 16, 25 April 1981, p. 7, 26 April 1981, pp. IV-1, 9, and 24, 3 May 1981, p. 31, 4 May 1981, p. B12, 18 May 1981, p. 18, 21 May 1981, p. B12, 22 May 1981, p. 16, 24 May 1981, p. IV-19, 2 June 1981, p. B9, 11 June 1981, p. 18, 13 June 1981, p. 10, 14 June 1981, p. IV-8, 19 June 1981, p. A16, 20 June 1981, p. 10; Congressional Quarterly Weekly Report, 28 February 1981, pp. 383–384; Timothy Noah, “The Right-to-Life Split,” The New Republic, 21 March 1981, pp. 7–9; Time, 6 April 1981, pp. 20–28; U.S. Congress, Senate, Committee on the Judiciary, The Human Life Bill—Hearings Before the Subcommittee on Separation of Powers, 97th Cong., 1st sess., 23–24 April, 20–21 May, and 1, 10, 12, and 18 June 1981, pp. 195–97, 310, 328, and 426. Also see Bernard N. Nathanson, The Abortion Papers (New York: Frederick Fell, 1983), pp. 7–11, 17–18; Edward Keynes, The Court vs. Congress (Durham, NC: Duke University Press, 1989), pp. 245–300, at 285–91; Susan R. Burgess, Contest for Constitutional Authority (Lawrence: University Press of Kansas, 1992), pp. 28–48; and especially Charlotte Low, “The Pro-Life Movement in Disarray,” American Spectator, October 1987, pp. 23–26.

Also note Charles Hartshorne, Christian Century, 21 January 1981, pp. 42–45; Gloria Steinem, Ms., February 1981, pp. 43–44; Lisa C. Wohl, Ms., February 1981, pp. 48, 81–82; Deirdre English, Mother Jones, February-March 1981, pp. 16–26; John Hart Ely and Laurence H. Tribe, New York Times, 17 March 1981, p. A17 (as well as 12 April 1981, p. IV-22, and 20 April 1981, p. 18); and Stacey Oliker, Socialist Review 11 (March-April 1981): 71–95.

On Galebach’s proposal, also see Rhonda Copelon, Ms., February 1981, pp. 46, 72–74; Charles E. M. Kolb, “The Proposed Human Life Statute: Abortion as Murder?,” ABA Journal 67 (September 1981): 1123–26; Francis J. Flaherty, “Abortion, the Constitution, and the Human Life Statute,” Commonweal, 23 October 1981, pp. 586–593; Basile J. Uddo, “The Human Life Bill: Protecting the Unborn Through Congressional Enforcement of the Fourteenth Amendment,” Loyola Law Review 27 (Fall 1981): 1079–97; Samuel Estreicher, “Congressional Power and Constitutional Rights: Reflections on Proposed ‘Human Life’ Legislation,” Virginia Law Review 68 (February 1982): 333–458; Thomas I. Emerson, “The Power of Congress to Change Constitutional Decisions of the Supreme Court: The Human Life Bill,” Northwestern University Law Review 77 (April 1982): 129–142; David Westfall, “Beyond Abortion: The Potential Reach of a Human Life Amendment,” American Journal of Law & Medicine 8 (Summer 1982): 97–135; John G. Ferreira, “The Human Life Bill: Personhood Revisited, or Congress Takes Aim at Roe v. Wade,” Hofstra Law Review 10 (Summer 1982): 1269–1290; Henry J. Hyde, “The Human Life Bill: Some Issues and Answers,” and Harriet F. Pilpel, “Hyde and Go Seek: A Response to Representative Hyde,” both in New York Law School Law Review 27 (1982): 1077–1100 and 1101–1123.

68. New York Times, 10 July 1981, p. 12, 12 July 1981, p. IV-2, 22 September 1981, p. B5, 31 October 1981, p. 11, 6 November 1981, p. 1, 17 November 1981, p. 20, 18 November 1981, pp. A1, B4, 19 November 1981, p. 19, 26 November 1981, p. B8, 13 December 1981, p. 39, 17 December 1981, p. B15, 22 January 1982, pp. A12, A20, 23 January 1982, p. 1, 25 January 1982, p. 31, 23 February 1982, p. 18, 3 March 1982, p. 22, 10 March 1982, p. 26, 11 March 1982, p. 1, 7 August 1982, p. 44, 17 August 1982, p. 18, 18 August 1982, p. 9, 19 August 1982, p. 23, 20 August 1982, pp. A26, D16, 21 August 1982, p. 9, 25 August 1982, p. 22, 7 September 1982, pp. A18, A22, 9 September 1982, p. 18, 10 September 1982, p. D17, 11 September 1982, p. 7, 14 September 1982, p. 19, 16 September 1982, p. 1, 17 September 1982, p. 19, 20 September 1982, p. B10, 25 September 1982, p. 9, 1 November 1982, p. D13; Congressional Quarterly Weekly Report, 11 July 1981, p. 1253; 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, 14, and 19 October, 4, 5, 12, and 16 November, and 7 and 16 December 1981; Tim Miller, National Journal, 20 March 1982, pp. 511–513; Mary C. Segers, “Can Congress Settle the Abortion Issue?,” Hastings Center Report 12 (June 1982): 20–28; Roger H. Davidson, “Procedures and Politics in Congress,” in Gilbert Y. Steiner, ed., The Abortion Dispute and the American System (Washington, DC: Brookings Institution, 1983), pp. 30–46. Also note Nathanson, The Abortion Papers, pp. 37–42.

Also see Donald Granberg, “The Abortion Controversy: An Overview,” The Humanist, July-August 1981, pp. 28–38, 66; Carol Joffe, “The Abortion Struggle in American Politics,” Dissent 28 (Summer 1981): 268–271; William J. Voegeli, Jr., “A Critique of the Pro-Choice Argument,” Review of Politics 43 (October 1981): 560–571; Peter Steinfels, Commonweal, 20 November 1981, pp. 660–664, at 664 (“The goal … should be the prohibition of abortion after eight weeks of development”); Richard Polenberg, “The Second Victory of Anthony Comstock,” Society 19 (May-June 1982): 32–38; and Granberg and Donald Denney, “The Coathanger and the Rose,” Society 19 (May-June 1982): 39–46.

69. Right to Choose v. Byrne, 91 N.J. 287, 306 (also acknowledging “the fundamental right of a woman to control her body and destiny”), 18 August 1982; New York Times, 19 August 1982, p. B4.

70. Joe Caldwell, “Memorandum to the Conference—Pending Abortion Cases,” 29 April 1982, Marshall Box 304; Simopoulos v. Virginia (probable jurisdiction noted), City of Akron v. Akron Center for Reproductive Health and Planned Parenthood Association of Kansas City v. Ashcroft (cert. granted), 456 U.S. 988, 24 May 1982; New York Times, 25 May 1982, p. B7, 29 July 1982, p. 17, 30 July 1982, p. D16, 4 August 1982, p. 22, 31 August 1982, pp. 1, 12, 1 December 1982, p. B4, 5 December 1982, p. 49, 19 December 1982, p. IV-18; Blackmun to O’Connor, and Brennan to O’Connor, 13 August 1982, O’Connor to Blackmun, O’Connor to Alexander L. Stevas, and Blackmun to O’Connor, 3 September 1982, Marshall Box 304; “LT” [Lawrence Tu], “Bench Memo,” Simopoulos v. Virginia, 29 November 1982, 7pp., “PM” [Paul Mogin), “Bench Memo,” City of Akron v. Akron Center, n.d. [c.29 November 1982], 8pp., “Bench Memo,” Planned Parenthood Association of Kansas City v. Ashcroft, n.d. [c.29 November 1982], 8pp., Marshall Box 305; Transcript of Oral Argument, City of Akron v. Akron Center, 30 November 1982, pp. 12 and 14.

On Justice Stewart’s retirement and Justice O’Connor’s nomination and confirmation, see New York Times, 19 June 1981, pp. 1, 14, 20 June 1981, p. 9, 8 July 1981, p. 1, 9 July 1981, p. 17, 10 July 1981, p. 11, 12 July 1981, p. IV-20, 16 July 1981, p. 14, 19 July 1981, p. IV-4, 10 September 1981, p. B14, 22 September 1981, p. 1, 26 September 1981, p. 8; Epstein and Kobylka, The Supreme Court and Legal Change, pp. 235–236. Also see Richard A. Cordray and James T. Vradlis, “The Emerging Jurisprudence of Justice O’Connor,” University of Chicago Law Review 52 (Spring 1985): 389–459; Beverly B. Cook, “Justice Sandra Day O’Connor,” in Charles M. Lamb and Stephen C. Halpern, eds., The Burger Court (Urbana: University of Illinois Press, 1991), pp. 238–275; and Howard Kohn, Los Angeles Times Magazine, 18 April 1993, pp. 14ff. Just a few months prior to O’Connor’s nomination, one prominent liberal had emphasized that progressives’ concern over possible Reagan Supreme Court nominees was “a misplaced worry.” Michael Walzer, “The Courts, the Elections, and the People,” Dissent 28 (Spring 1981): 153–155.

71. “Abortion Cases,” n.d. [c.16 December 1982], 4pp., Burger, “Memorandum to the Conference,” 10 and 13 December 1982, Brennan, “Memorandum to the Conference—Abortion Cases,” 16 December 1982, Marshall Vote Tally Sheet, 16 December 1982, Powell, “Memorandum to the Conference,” 17 December 1982, Marshall Box 304; Powell Print #1, Simopoulos v. Virginia, 3 March 1983, Stevens to Powell, O’Connor to Powell, and Rehnquist to Powell, 7 March 1983, Blackmun to Powell, 8 March 1983, Burger to Powell, 11 March 1983, Powell, “Memorandum to the Conference” (and Print #3), 28 April 1983, O’Connor Concurrence, Print #1, 5 May 1983, Rehnquist to O’Connor, 5 May 1983, White to O’Connor, 6 May 1983, Burger to Powell, 16 May 1983, Powell Print #4, 23 May 1983, Marshall to Powell, Blackmun to Powell, and Brennan to Powell, 23 May 1983, Marshall Box 312; Powell Print #1, Akron, 3 March 1983, Stevens to Powell, 4 March 1983, O’Connor to Powell, and Rehnquist to Powell, 7 March 1983, Brennan to Powell, 8 March 1983, Powell to Brennan, 9 March 198[3], Brennan to Powell, 9 March 1983, Blackmun to Powell, 8 March 1983, Powell to Blackmun, 9 March 198[3], Blackmun to Powell, 10 March 1983, Marshall to Powell, 14 March 1983, O’Connor Dissent, Print #1, 5 May 1983, Rehnquist to O’Connor, 5 May 1983, White to O’Connor, 6 May 1983, Burger to Powell, 9 June 1983, Marshall Boxes 314 and 315; Powell Print #1, Ashcroft, 4 March 1983, Blackmun to Powell, 4 March 1983, O’Connor to Powell, Rehnquist to Powell, and Stevens to Powell, 7 March 1983, O’Connor Print #1, 5 May 1983, Rehnquist to O’Connor, 5 May 1983, White to O’Connor, 6 May 1983, Blackmun Circulation #1, 17 May 1983, Brennan to Blackmun, 23 May 1983, Marshall to Blackmun, 25 May 1983, Stevens to Blackmun, 1 June 1983, Burger to Powell, 1 June 1983, Marshall Box 318. Warren Burger apparently cast no votes whatsoever at the December 16 conference.

72. City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 419–20, 421n, 427, 429n, 433–34, 453, 454, 457, 458, 459, Planned Parenthood Association of Kansas City v. Ashcroft, 462 U.S. 476, 485–86, 490, Simopoulos v. Virginia, 462 U.S. 506, 15 June 1983. Also see Bellotti v. Baird, 428 U.S. 132, 145, Maher v. Roe, 432 U.S. 464, 474; and Epstein and Kobylka, The Supreme Court and Legal Change, pp. 238–47. On Akron, also see 651 F.2d 1198 (6th Cir.); on Ashcroft, also see 483 F. Supp. 679 (E.D. Mo.), 655 F.2d 848 (8th Cir.), and 664 F.2d 687 (8th Cir.); Simopoulos affirmed 277 S.E.2d 194 (Va. Sup. Ct.). On Dr. Simopoulos, also see New York Times, 28 July 1984, p. 9; on the rarity of third-trimester abortions—only some two hundred a year—see Nancy K. Rhoden et al., “Late Abortion and Technological Advances in Fetal Viability,” Family Planning Perspectives 17 (July-August 1985): 160–164.

73. New York Times, 16 June 1983, pp. A1, B10, B11, 17 June 1983, pp. A16, A26, 19 June 1983, p. IV-7, 14 July 1983, p. A20; Time, 27 June 1983, pp. 14–15; Newsweek, 27 June 1983, pp. 62–63; Laura Fox, “The 1983 Abortion Decisions,” University of Richmond Law Review 18 (Fall 1983): 137–159, at 157; Nancy Ford, “The Evolution of a Constitutional Right to an Abortion,” Journal of Legal Medicine 4 (September 1983): 271–322, at 272. Also see John A. Robertson, “Procreative Liberty and the Control of Conception, Pregnancy, and Childbirth,” Virginia Law Review 69 (April 1983): 405–464; Curt S. Rush, “Genetic Screening, Eugenic Abortion, and Roe v. Wade: How Viable is Roe’s Viability Standard?,” Brooklyn Law Review 50 (Fall 1983): 113–142; and Leonard H. Glantz, “Limiting State Regulation of Reproductive Decisions,” American Journal of Public Health 74 (February 1984): 168–169.

74. New York Times, 14 January 1983, p. A27, 15 January 1983, pp. 4, 17, 22 January 1983, p. 33, 23 January 1983, pp. 18, IV-20, 20 April 1983, p. 12, 12 June 1983, p. 27, 28 June 1983, p. A14, 29 June 1983, pp. A1, A16, 1 July 1983, p. A22; U.S. Congress, Senate, Committee on the Judiciary, Legal Ramifications of the Human Life Amendment—Hearings Before the Subcommittee on the Constitution, 98th Cong., 1st sess., 28 February and 7 March 1983; Donald Granberg, “The U.S. Senate Votes to Uphold Roe Versus Wade,” Population Research and Policy Review 4 (June 1985): 115–131. Also see William Lasser, The Limits of Judicial Power (Chapel Hill: University of North Carolina Press, 1988), pp. 221–222; Marshall H. Medoff, “Constituencies, Ideology, and the Demand for Abortion Legislation,” Public Choice 60 (February 1989): 185–191; and George A. Chressanthis, “Ideology, Constituent Interests, and Senatorial Voting: The Case of Abortion,” Social Science Quarterly 72 (September 1991): 588–600.

75. New York v. Uplinger, 464 U.S. 812, 3 October 1983; New York Times, 4 October 1983, p. A24; “TF” [William “Terry” Fisher], “Bench Memorandum,” New York v. Uplinger, 16 January 1984, 7pp., Marshall Box 329; People v. Uplinger and People v. Butler, 447 N.E.2d 62, 460 N.Y.S.2d 514 (N.Y. Ct. App.), 23 February 1983 (reversing 449 N.Y.S.2d 916); People v. Onofre, 415 N.E.2d 936, 434 N.Y.S.2d 947, 949, 951, 954–55, 956–57, 960 (N.Y. Ct. App.), 18 December 1980 (affirming 424 N.Y.S.2d 566, 568, 24 January 1980), cert. denied., New York v. Onofre, 451 U.S. 987, 18 May 1981; State v. Saunders, 381 A.2d 333, 339, 340, 342 (N.J. Sup. Ct.), 13 December 1977; Commonwealth v. Bonadio, 415 A.2d 47, 50, 51, 52 (Pa. Sup. Ct.), 30 May 1980. On Uplinger, also see 444 N.Y.S.2d 373, 443 N.Y.S.2d 40, and 442 N.Y.S.2d 46; on Saunders, also see 361 A.2d 111 and 326 A.2d 84.

Also note State v. Santos, 413 A.2d 58, 68 (R.I. Sup. Ct.), 20 March 1980 (“we do not believe that the decision of an unmarried adult to engage in private consensual sexual activity is of such a fundamental nature or is so ‘implicit in the concept of ordered liberty’ to warrant its inclusion in the guarantee of personal privacy”); and Commonwealth v. Stowell, 449 N.E.2d 357, 360 (Mass. Sup. Jud. Ct.), 13 May 1983 (“Whatever the precise definition of the right of privacy and the scope of its protection of private sexual conduct, there is no fundamental personal privacy right implicit in the concept of ordered liberty barring the prosecution of consenting adults committing adultery in private”); see as well Anne W. Hulecki, Suffolk University Law Review 18 (1984): 83–90.

Law journal notes on the New York Court of Appeals decision in Onofre include Bennett Wolff, “Expanding the Right of Sexual Privacy,” Loyola Law Review 27 (Fall 1981): 1279–1300; Katheryn D. Katz, “Sexual Morality and the Constitution: People v. Onofre,” Albany Law Review 46 (Winter 1982): 311–362, at 312n (“Onofre is the first decision in which the right of the individual to engage in homosexual sexual acts was explicitly protected”); and Douglas E. Schwartz, Western New England Law Review 5 (Summer 1982): 75–102. Also note David A. J. Richards, “Homosexuality and the Constitutional Right to Privacy,” New York University Review of Law and Social Change 8 (1979): 311–316, at 314 (“There is no principled way to defend the earlier right to privacy cases and not extend the right to homosexuality, other than the circular and question-begging assumption that homosexuality, as such, is intrinsically immoral and unnatural”); and ABA Journal 66 (July 1980): 836.

Notes on Saunders include Lawrence M. Ross, Buffalo Law Review 27 (Spring 1978): 395–409; Roger B. Coven, Suffolk University Law Review 12 (Fall 1978): 1312–1328; and Kathryn J. Humphrey, Wayne Law Review 25 (July 1979): 1067–1084; on Bonadio, see Debra Barnhart, University of Pittsburgh Law Review 43 (Fall 1981): 253–284.

76. Gaylord v. Tacoma School District, 434 U.S. 879, 3 October 1977 (denying certiorari to 559 P.2d 1340 [Wash. Sup. Ct.]); Hollenbaugh v. Carnegie Free Library, 439 U.S. 1052, 1055, 1058, 11 December 1978 (denying certiorari to 578 F.2d 1374 [3d Cir.], 6 June 1978, which had summarily affirmed 436 F. Supp. 1328 [W.D. Pa.], 15 September 1977); Poe v. North Carolina, 445 U.S. 947, 31 March 1980 (dismissing the appeal of State v. Poe, 259 S.E.2d 304 [N.C. Sup. Ct.], 252 S.E.2d 843 [N.C. Ct. App.], for want of a substantial federal question); Whisenhunt v. Spradlin, 464 U.S. 965, 970–971, 7 November 1983 (denying certiorari to Shawgo v. Spradlin, 701 F.2d 470 [5th Cir.], 28 March 1983).

Also note Ratchford v. Gay Lib, 434 U.S. 1080, 21 February 1978 (Rehnquist, Blackmun, and Burger dissenting from denial of certiorari to 558 F.2d 848); on Hollenbaugh, also see 545 F.2d 382 (3d Cir.), 405 F. Supp. 629 (W.D. Pa.), and Susan M. Slaff, Western New England Law Review 4 (Summer 1981): 171–197.

77. Berg v. Claytor, 436 F. Supp. 76, 79 (D.D.C.), 27 May 1977; Thomas F. Coleman, “Procedure and Strategy in Gay Rights Litigation,” New York University Review of Law and Social Change 8 (1979): 317–323, at 319 and 323; Hicks v. Miranda, 422 U.S. 332; Dominick Veltri, “The Legal Arena: Progress for Gay Civil Rights,” Journal of Homosexuality 5 (Fall-Winter 1979–80): 25–34, at 30; Thomas C. Grey, “Eros, Civilization and the Burger Court,” Law and Contemporary Problems 43 (Summer 1980): 83–100, at 87 and 98. Also see Washington Post, 11 December 1979, p. A3; and Bruce C. Hafen, “The Constitutional Status of Marriage, Kinship, and Sexual Privacy,” Michigan Law Review 81 (January 1983): 463–574, at 538 (“a right of sexual freedom cannot reasonably be inferred from the procreative rights recognized by the Court”). But see Miller v. Rumsfeld, 647 F.2d 80, 84–85 (9th Cir.), 15 May 1981 (Norris, J., dissenting). On Vernon Berg, also see Mary Ann Humphrey, My Country, My Right to Serve (New York: HarperCollins, 1990), pp. 72–79.

78. Baker v. Wade, 553 F. Supp. 1121, 1133, 1134n, 1138, 1140, 1141, 1144 (N.D. Tex.), 17 August 1982. Also see Michael Ennis, “What Do These Rugged Texas He-Men Have in Common?,” Texas Monthly, June 1980, pp. 107–113, 209–226; and especially Thomas J. Coleman, Jr., “Disordered Liberty: Judicial Restraint on the Rights to Privacy and Equality in Bowers v. Hardwick and Baker v. Wade,” Thurgood Marshall Law Review 12 (Fall 1986): 81–108, at 84–88.

79. Brennan Print #1, 1 March 1984, Blackmun to Brennan, Rehnquist to Brennan, and O’Connor to Brennan, 1 March 1984, Brennan Print #2, 6 March 1984, Powell to Brennan, 6 March 1984, Marshall to Brennan, 7 March 1984, Rehnquist Circulation, 5pp., 8 March 1984 (withdrawn 15 March), White Print #1, 9 March 1984, O’Connor to White, 13 March 1984, Burger to White, and Rehnquist to White, 15 March 1984, White Print #2, 17 March 1984, Brennan Prints #s 3 and 4, 14 and 19 March 1984, Stevens to Brennan, and Stevens circulation, 21 May 1984; New York v. Uplinger, 467 U.S. 246, 247n, 249, 30 May 1984. Also see Edward T. Mulligan, “Griswold Revisited in Light of Uplinger,” New York University Review of Law & Social Change 13 (1984–85): 51–82, at 56–57, who inferred that “one or more of the majority who voted to dismiss Uplinger would likely have sided with their conservative brethren had they not been able to avoid the issue.”

Also note Roberts v. U.S. Jaycees, 468 U.S. 609, 617, 618, 619, 3 July 1984 (“certain intimate human relationships” implicate “a fundamental element of personal liberty” and “freedom of intimate association” such that the Court “must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State.” The “ability independently to define one’s identity that is central to any concept of liberty” includes “the creation and sustenance of a family—marriage … childbirth … the raising and education of children … and cohabitation with one’s relatives”).

80. Dronenburg v. Zech, 741 F.2d 1388, 1391, 1392, 1395, 1396, 1397 (D.C. Cir.), 17 August 1984; New York Times, 18 August 1984, pp. 1, 10, 23 August 1984, p. B8. On James L. Dronenburg, also see Humphrey, My Country, My Right to Serve, pp. 89–92.

Law journal notes on the Bork opinion include Katherine M. Allen, North Carolina Law Review 63 (April 1985): 749–766; Jeffrey M. Winn, Pace Law Review 5 (Summer 1985): 847–878; Richard C. McQuown, Capital University Law Review 14 (1985): 313–326; and Kelly Carbetta-Scandy, University of Cincinnati Law Review 54 (1986): 1055–1067. Also see Steven O. Ludd, “The Aftermath of Doe v. Commonwealth’s Attorney,” University of Dayton Law Review 10 (Spring 1985): 705–743, at 739–742; and Richard B. Saphire, “Gay Rights and the Constitution,” University of Dayton Law Review 10 (Spring 1985): 767–813. But note Arthur E. Brooks, William and Mary Law Review 26 (Summer 1985): 645–682, at 646 (“all sodomy should be subject to criminalization”), and Charles Rice, Legalizing Homosexual Conduct: The Role of the Supreme Court in the Gay Rights Movement (Cumberland, VA: Center for Judicial Studies, 1984), p. 21 (“The AIDS epidemic shows the wisdom of the common law position which was derived from the religious condemnation of homosexuality”).

81. Dronenburg v. Zech, 749 F.2d 1579, 1580, 1582, 1583 (D.C. Cir.), 15 November 1984. Also see Andrew B. Jones, “Dronenburg v. Zech: Judicial Restraint or Judicial Prejudice?,” Yale Law & Policy Review 3 (Fall 1984): 245–262; and Howard L. Pearlman, “Dronenburg v. Zech: Strict Construction or Abdication of Judicial Responsibility?,” Hastings Constitutional Law Quarterly 12 (Summer 1985): 669–697.

82. New York Times, 20 January 1984, p. A23, 24 January 1984, p. A8, 18 February 1984, p. 10, 25 June 1984, p. D13, 8 July 1984, p. 14, 8 September 1984, p. 8, 12 September 1984, p. B9, 13 September 1984, p. B16, 14 September 1984, pp. A1, A22, 15 September 1984, p. 29, 17 September 1984, p. B12, 20 September 1984, p. A31, 23 September 1984, p. 34, 24 September 1984, p. B3, 28 September 1984, p. A22, 6 October 1984, pp. 10, 26, 10 October 1984, p. A12, 14 October 1984, pp. 1, 30 and IV-3, 16 October 1984, pp. A1, B2, 17 October 1984, p. A24, 5 November 1984, p. B15, 20 November 1984, p. A14, 22 November 1984, p. A16, 25 November 1984, p. IV-2, 5 December 1984, p. A23, 6 December 1984, p. B20, 21 December 1984, p. A35, 26 December 1984, p. A20, 27 December 1984, p. A14, 29 December 1984, p. 5, 31 December 1984, p. A8, 1 January 1985, p. 6, 2 January 1985, p. A15, 3 January 1985, p. A17, 4 January 1985, p. A1, 7 January 1985, p. A12, 11 January 1985, p. A1, 17 January 1985, p. B5, 18 January 1985, p. A12, 19 January 1985, p. 22, 20 January 1985, p. 24, 21 January 1985, p. A10, 22 January 1985, p. A10. Also see Sidney and Daniel Callahan, Commonweal, 5 October 1984, pp. 520–523; Newsweek, 3 December 1984, p. 31, and 14 January 1985, pp. 20–29; Public Opinion, April-May 1985, pp. 25–28; Byrnes, Catholic Bishops in American Politics, pp. 114–126; George Gallup, Jr., and Jim Castelli, The People’s Religion (New York: Macmillan, 1989), pp. 167–179; and, on Pensacola, Dallas A. Blanchard and Terry J. Prewitt, Religious Violence and Abortion (Gainesville: University Press of Florida, 1993).

83. New York Times, 23 January 1985, pp. A1, A15 and A22, 25 January 1985, p. B8, 6 February 1985, p. A14, 16 February 1985, p. 46, 25 February 1985, p. A10, 5 March 1985, p. A1, 11 March 1985, p. A18, 13 March 1985, p. A18, 24 March 1985, p. 29, 16 April 1985, p. D27, 17 April 1985, p. A16, 21 April 1985, p. 32, 24 April 1985, p. A16, 25 April 1985, p. A23, 22 May 1985, p. A18, 26 May 1985, p. IV-5, 18 June 1985, p. A14, 3 July 1985, p. A19, 13 July 1985, p. 42; U.S. Congress, House of Representatives, Committee on the Judiciary, Abortion Clinic Violence—Oversight Hearings Before the Subcommittee on Civil and Constitutional Rights, 99th Cong., 1st sess., 6 and 12 March and 3 April 1985, pp. 52–53; Joseph M. Scheidler, Closed: 99 Ways to Stop Abortion (San Francisco: Ignatius Press, 1985); Wall Street Journal, 16 April 1985, pp. 1, 21; Blanchard and Prewitt, Religious Violence and Abortion, pp. 150–151, 165–172.

Also see Patricia Donovan, Family Planning Perspectives 17 (January-February 1985): 5–9; New Republic, 25 February 1985; Newsweek, 25 March 1985, p. 16; U.S. Congress, Senate, Committee on the Judiciary, Abortion Funding Restriction Act—Hearings Before the Subcommittee on the Constitution, 99th Cong., 1st sess., 2 April and 22 July 1985; Amanda Spake, Ms., July 1985, pp. 88–92, 112–14; and Marjorie R. Hershey, “Direct Action and the Abortion Issue,” in Allan J. Cigler and Burdett A. Loomis, eds., Interest Group Politics, 2nd ed. (Washington: CQ Press, 1986), pp. 27–45.

Also note Randall A. Lake, “The Metaethical Framework of Anti-Abortion Rhetoric,” Signs 11 (Spring 1986): 478–499; Rosalind P. Petchesky, “Fetal Images: The Power of Visual Culture in the Politics of Reproduction,” Feminist Studies 13 (Summer 1987): 263–292; James W. Prescott, “The Abortion of The Silent Scream,” The Humanist, September-October 1986, pp. 10–17, 28; Michael P. Thompson, “The Facts of Life: Rhetorical Dimensions of the ProLife Movement in America” (unpublished Ph.D. dissertation, Rensselaer Polytechnic Institute, 1985); and especially Celeste M. Condit, Decoding Abortion Rhetoric (Urbana: University of Illinois Press, 1990), p. 87 (“if The Silent Scream had really been silent, it would have had no rhetorical impact”).

On clinic violence, also see David C. Nice, “Abortion Clinic Bombings as Political Violence,” American Journal of Political Science 32 (February 1988): 178–195; Michele Wilson and John Lynxwiler, “Abortion Clinic Violence as Terrorism,” Terrorism 11 (1988): 263–273; and David A. Grimes et al., “An Epidemic of Antiabortion Violence in the United States,” American Journal of Obstetrics and Gynecology 165 (November 1991): 1263–1268, reporting a total of 110 building attacks from 1977 to 1988, with an annual peak of 29 in 1984.

84. Board of Education of Oklahoma City v. National Gay Task Force, 470 U.S. 903, 26 March 1985 (affirming 729 F.2d 1270 [10th Cir.]); Rowland v. Mad River Local School District, 470 U.S. 1009, 1016, 25 February 1985 (denying certiorari to 730 F.2d 444 [6th Cir.]); Stevens per curiam circulation (dismissing the appeal and denying certiorari), 10 January 1985, Thornburgh v. ACOG, #84–495, Rehnquist to Stevens, 10 January 1985, Blackmun to Stevens, and Brennan to Stevens, 14 February 1985, Marshall to Stevens, 19 February 1985, Rehnquist dissent circulation, 10 April 1985, Burger to Rehnquist, and O’Connor to Rehnquist, 10 April 1985, Marshall Box 382; Thornburgh v. ACOG, 471 U.S. 1014, 15 April 1985; New York Times, 16 April 1985, p. A23; Diamond v. Charles, 471 U.S. 1115, 20 May 1985; New York Times, 21 May 1985, p. A25, 15 July 1985, p. A1, 16 July 1985, p. A8, 18 July 1985, pp. A18, A22, 25 July 1985, p. A23. Also see City of North Muskegon v. Briggs, 473 U.S. 909, 1 July 1985 (White, Burger, and Rehnquist dissenting from denial of certiorari to 746 F.2d 1475 [6th Cir.], 2 October 1984, a summary affirmance of 563 F. Supp. 585 [W.D. Mich.], 5 May 1983).

On Justice Powell’s prostate surgery and subsequent hospitalization, see New York Times, 5 January 1985, p. 6, 16 March 1985, p. 28, 18 March 1985, p. A15, and 26 March 1985, p. A17. The Oklahoma City case, with Laurence H. Tribe representing the National Gay Task Force, was argued on 14 January, during Powell’s absence.

85. Dallas Morning News, 13 March 1983, p. A40; Baker v. Wade, 743 F.2d 236 (5th Cir.), 21 September 1984; Baker v. Wade, 106 F.R.D. 526 (N.D. Tex.), 1 July 1985; Doe v. Duling, 603 F. Supp. 960, 966, 967, 968 (E.D. Va.), 27 February 1985. On Baker v. Wade, also see Thomas J. Coleman, Jr., Thurgood Marshall Law Review 12 (Fall 1986): 81–108, at 97–98.

86. Hardwick v. Bowers, 760 F.2d. 1202, 21 May 1985; Louis Levenson et al., “Complaint,” Hardwick et al. v. Bowers et al., U.S.D.C. N.D. Ga., #C83–273, 14 February 1983; Art Harris, “The Unintended Battle of Michael Hardwick,” Washington Post, 21 August 1986, pp. C1, C4; Richard Laermer, “Michael Hardwick: The Man Behind the Georgia Sodomy Case,” The Advocate, 2 September 1986, pp. 38–41, 110; Hardwick in Bill Moyers’s “In Search of the Constitution—For the People,” PBS, 1987; Hardwick in Peter Irons, The Courage of Their Convictions (New York: Free Press, 1988), pp. 379–403; Stephen J. Schnably, “Beyond Griswold: Foucauldian and Republican Approaches to Privacy,” Connecticut Law Review 23 (Summer 1991): 861–954, at 865n; and Anne B. Goldstein, “History, Homosexuality, and Political Values: Searching for the Hidden Determinants of Bowers v. Hardwick,” Yale Law Journal 97 (May 1988): 1073–1103. Also see Yao Apasu-Gbotsu et al., “Survey on the Constitutional Right to Privacy in the Context of Homosexual Activity,” University of Miami Law Review 40 (January 1986): 521–657, at 523 (“the facts of Hardwick present the ‘purest’ right to privacy case the Supreme Court could hear”). On Frank M. Johnson, Jr., see Jack Bass, Taming the Storm (New York: Doubleday, 1993), esp. pp. 423–427.

87. Robert H. Hall, “Order,” Hardwick v. Bowers, #C83–273, 15 April 1983; Hardwick v. Bowers, 760 F.2d 1202, 1211, 1212 (11th Cir.), 21 May 1985, 765 F.2d 1123, 13 June 1985 (rehearing en banc denied without opinion); National Law Journal, 17 June 1985, p. 10; Michael E. Hobbs, “Petition for Writ of Certiorari,” Bowers v. Hardwick, U.S.S.C., O.T. 1985, #140, 25 July 1985; Wilde, “Brief of Respondents in Opposition,” Bowers v. Hardwick, 18pp., 12 September 1985, pp. 9 and 11. Law journal notes on the appellate decision include Elisa L. Fuller, University of Miami Law Review 39 (September 1985): 973–995; Journal of Family Law 24 (1985–86): 348–352; Leslie Denny, Oklahoma Law Review 39 (Summer 1986): 233–256; and especially Robert Glazier, “Bowers v. Hardwick: The Extension of the Right to Privacy to Private Consensual Homosexual Conduct,” Nova Law Journal 10 (Fall 1985): 175–215.

88. Michael E. Hobbs, “Brief of Petitioner in Reply,” Bowers v. Hardwick, U.S.S.C., O.T. 1985, #140, 8 October 1985, p. 1; Baker v. Wade, 769 F.2d 289, 292 (5th Cir.), 26 August 1985; Baker v. Wade, 774 F.2d 1285, 1286–87, 23 October 1985. Also see generally Kenneth R. Wing, American Journal of Public Health 76 (February 1986): 201–204; and Karen A. Corti, “Beyond Dronenburg: Rethinking the Right to Privacy,” Vermont Law Review 11 (Spring 1986): 299–342.

89. Marshall Docket Book, Marshall Box 543; White Circulation, 17 October 1985, Rehnquist to White, 17 October 1985, Brennan to White, 17 October 1985, Brennan, “Memorandum to the Conference,” 23 October 1985, Burger, “Memorandum to the Conference,” 24 October 1985, Marshall Box 393; Bowers v. Hardwick, 474 U.S. 943, 4 November 1985; New York Times, 5 November 1985, p. A25.

90. New York Times, 11 August 1985, p. 22, 18 August 1985, p. 35, 22 August 1985, p. A12, 26 August 1985, p. B6, 1 September 1985, p. 29, 4 September 1985, p. A20, 19 September 1985, p. A32, 3 October 1985, p. B7, 18 October 1985, p. B2, 20 October 1985, p. 48, 22 October 1985, p. A21, 6 November 1985, pp. A22, B4, 7 November 1985, p. B11; “DR” [Daniel Richman], “Bench Memorandum,” Thornburgh v. ACOG, October 1985, 13pp., Marshall Box 375; Brennan to Burger, 12 November 1985 (Thornburgh), Marshall Box 382; Brennan to Burger, 20 November 1985 (Diamond), Marshall Box 387; Mark E. Rust, “The Abortion Cases,” ABA Journal, February 1986, pp. 50–53; Patricia Donovan, “Letting the People Decide: How the Antiabortion Referenda Fared,” Family Planning Perspectives 18 (May-June 1986): 127–128, 144.

Also see George Scialabba, “The Trouble with Roe v. Wade,” Village Voice, 16 July 1985, pp. 25–26; Stephen L. Carter, Wall Street Journal, 21 August 1985; Jan Jarvis, “The Question of Abortion,” Dallas Morning News Magazine, 6 October 1985, pp. 8–12; ABA Journal, January 1986, p. 42; Dawn E. Johnsen, “The Creation of Fetal Rights: Conflicts with Women’s Constitutional Rights to Liberty, Privacy, and Equal Protection,” Yale Law Journal 95 (January 1986): 599–625; and Daniel Callahan, “How Technology Is Reframing the Abortion Debate,” Hastings Center Report 16 (February 1986): 33–42.

91. New York Times, 5 December 1985, p. A18, 9 December 1985, p. B9, 11 December 1985, p. B8, 12 December 1985, p. B10, 31 December 1985, p. 6, 1 January 1986, p. 6, 17 January 1986, p. A12, 23 January 1986, p. D25, 24 January 1986, p. D19, 25 January 1986, p. 7, 23 February 1986, p. IV-22, 10 March 1986, p. B4, 27 March 1986, p. A18; Warren M. Hern, “The Politics of Choice: Abortion as Insurrection,” in W. Penn Handwerker, ed., Births and Power (Boulder, CO: Westview Press, 1990), pp. 127–145; Blanchard and Prewitt, Religious Violence and Abortion, p. 283.

92. Doe v. Duling, 782 F.2d 1202 (4th Cir.), 7 February 1986; Tribe et al., “Brief for Respondent,” Bowers v. Hardwick, U.S.S.C., O.T. 1985, #140, 36pp., 31 January 1986, pp. 9, 11–12; “DR” [Daniel Richman], “Bench Memorandum,” Bowers v. Hardwick, March 1986, p. 3, Marshall Box 376; Transcript of Oral Argument, Bowers v. Hardwick, 31 March 1986; New York Times, 1 April 1986, p. A24, 25 May 1993, pp. A1, A16. Also see Newsweek, 7 April 1986, p. 74; David Robinson, Jr., “Sodomy and the Supreme Court,” Commentary 82 (October 1986): 57–61; Christopher J. Cherry, “The Hard Road to Hardwick: The Constitutional Challenge to Sodomy Statutes” (unpublished M.A. thesis, University of Virginia, 1989), pp. 17–24; Andrea Sachs, “Laurence Tribe,” Constitution 3 (Spring-Summer 1991): 24–32; Lynne N. Henderson, “Legality and Empathy,” Michigan Law Review 85 (June 1987): 1574–1653, at 1639–45 (“Hardwick never appeared in the briefs or arguments as a human being”); and Stephen J. Schnably, “Beyond Griswold: Foucauldian and Republican Approaches to Privacy,” Connecticut Law Review 23 (Summer 1991): 861–954, 869n, who notes that “It is striking … that the Brief for Respondent filed in Bowers … never refers to Hardwick as gay, and refers only obliquely … to the fact that his sexual partner was another man.… The brief’s reticence presumably reflects a tactical decision to do everything possible to present the case as one involving sexual privacy rather than gay rights.”

93. Marshall Docket Book, Marshall Box 543; Robinson v. California, 370 U.S. 660; Brennan to Burger, 4 April 1986, Marshall Box 378; Powell, “Memorandum to the Conference,” 8 April 1986, Stevens to Powell, 8 April 1986, Burger to White, 9 April 1986, White Print #1, 21 April 1986, Blackmun to White, 21 April 1986, Marshall to White, 22 April 1986, Powell to White, 22 April 1986, Rehnquist to White, 23 April 1986, White Prints #2 and 3, 28 April and 20 May 1986, Marshall Box 393. Also see Schwartz, The Ascent of Pragmatism, pp. 314–319; and additional notes.

94. Diamond v. Charles, 476 U.S. 54, 30 April 1986 (dismissing the appeal of Charles v. Daley, 749 F.2d 452 [7th Cir.], for want of jurisdiction); New York Times, 22 April 1986, p. A20, 1 May 1986, p. B8; Thornburgh v. ACOG, 476 U.S. 747, 759, 764, 772, 778, 782, 785, 790, 792, 814, 11 June 1986 (affirming 737 F.2d 283 [3d Cir.]); New York Times, 12 June 1986, pp. A1, A10, A11, 16 June 1986, p. B8, 17 June 1986, p. A26. Also see Epstein and Kobylka, The Supreme Court and Legal Change, pp. 252–60.

On Diamond, also see Charles v. Carey, 627 F.2d 772 (7th Cir.), 1980; Charles v. Carey, 579 F. Supp. 377 and 579 F. Supp. 464 (N.D. Ill.), 1983; Blackmun Print #1, 14 February 1986, Marshall to Blackmun, 14 February 1986, Brennan to Blackmun, and Stevens to Blackmun, 18 February 1986, Powell to Blackmun, and O’Connor to Blackmun, 25 February 1986, O’Connor Concurrence #1, 10 April 1986, White to Blackmun, 15 April 1986, Rehnquist to O’Connor, 16 April 1986, Burger to O’Connor, 24 April 1986, Marshall Box 387.

On Thornburgh, also see New York Times, 12 June 1982, p. 9, 10 December 1982, p. 16; 552 F. Supp. 791 (E.D. Pa.); Blackmun to Marshall, 7 February 1986, Blackmun to Brennan, Marshall and Powell, 10 February 1986, Brennan to Blackmun, 10 and 11 February 1986, Blackmun Print #1, 11 February 1986, Marshall to Blackmun, Powell to Blackmun, and Stevens to Blackmun, 12 February 1986, White to Blackmun, and O’Connor to Blackmun, 18 February 1986, White Print #1, 12 March 1986, Rehnquist to White, 12 March and 14 April 1986, O’Connor to Blackmun, 14 March 1986, Stevens Print #1, 30 April 1986, O’Connor Print #1, 6 May 1986, Rehnquist to O’Connor, 7 May 1986, Burger Print #1, 29 May 1986, Marshall Box 382; Harvard Law Review 100 (November 1986): 200–210; Leonard H. Glantz, “Abortion and the Supreme Court: Why Legislative Motive Matters,” American Journal of Public Health 76 (December 1986): 1452–1455; Harold H. Koh, “Rebalancing the Medical Triad: Justice Blackmun’s Contributions to Law and Medicine,” American Journal of Law & Medicine 13 (Summer-Fall 1987): 315–334, at 328–329 (noting that Blackmun’s more recent abortion opinions “no longer champion a physician’s discretion for its own sake” and that Blackmun’s “Thornburgh opinion reflects a considered determination to shift Roe’s emphasis toward the autonomy of the individual, and not the doctor”); and Rhonda Copelon, “Losing the Negative Right of Privacy,” New York University Review of Law and Social Change 18 (1990–91): 15–50, at 42–43.

Law review notes on Thornburgh include Jason H. Brown, Suffolk University Law Review 21 (Fall 1987): 877–889; Mary E. Quinn, Creighton Law Review 20 (1987): 917–948; and Ann E. Fulks, Journal of Family Law 26 (1988): 771–792; see as well Dennis J. Horan et al., “Two Ships Passing in the Night: An Interpretivist Review of the White-Stevens Colloquy on Roe v. Wade,” St. Louis University Public Law Review 6 (1987): 229–311. Also note John A. Robertson, “Embryos, Families, and Procreative Liberty: The Legal Structure of the New Reproduction,” Southern California Law Review 59 (July 1986): 939–1041; Norma J. Wikler, “Society’s Response to the New Reproductive Technologies,” Southern California Law Review 59 (July 1986): 1043–1057; Gary B. Gertler, “Brain Birth: A Proposal for Defining When a Fetus Is Entitled to Human Life Status,” Southern California Law Review 59 (July 1986): 1061–1078; and A. S. Cohan, “No Legal Impediment: Access to Abortion in the United States,” Journal of American Studies 20 (August 1986): 189–205.

95. New York Times, 18 June 1986, pp. 1, 30, 31; O’Connor to White, 19 June 1986, Powell Prints #1 and #2, 19 and 23 June 1986, Burger Print #1, 22 June 1986, Blackmun Print #1, 23 June 1986, Stevens to Blackmun, 23 June 1986, Stevens Print #1, 24 June 1986, Marshall to Blackmun, Marshall to Stevens, Brennan to Blackmun, Burger to White, and Blackmun to Burger, 24 June 1986, Powell Print #3, 25 June 1986, White Print #4, 25 June 1986, Brennan to Stevens, 28 June 1986, Marshall Box 393.

96. Bowers v. Hardwick, 478 U.S. 186, 190–91, 194, 196, 197, 198, 199, 200, 203n, 208, 214, 216, 218, 219, 30 June 1986. White’s internal quotations are from Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977), and Palko v. Connecticut, 302 U.S. 319, 325 (1937); Blackmun’s reference is to Katz v. United States, 389 U.S. 347 (1967). Also note O’Connor v. Donaldson, 422 U.S. 563, 575, 26 June 1975 (“Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty”).

97. New York Times, 1 July 1986, pp. A1, A19, 2 July 1986, p. A30, 10 July 1986, p. A23; Washington Post, 2 July 1986, pp. A1, A8, 3 July 1986, p. A23; Brest, Los Angeles Times, 13 July 1986, p. V-2; Gewirtz, New York Times, 8 July 1986, p. A21; Thomas J. Maroney, “Bowers v. Hardwick: A Case Study in Federalism, Legal Procedure and Constitutional Interpretation,” Syracuse Law Review 38 (1987): 1223–1250, at 1244; Thomas B. Stoddard, “Bowers v. Hardwick: Precedent by Personal Predilection,” University of Chicago Law Review 54 (Spring 1987): 648–656, at 649; The New Republic, 28 July 1986, p. 4; Newsweek, 14 July 1986, pp. 36–38; Daniel O. Conkle, “The Second Death of Substantive Due Process,” Indiana Law Journal 62 (Spring 1987): 215–242, at 235; Charles Colson, Christianity Today, 19 September 1986, p. 72; Abby R. Rubenfeld, “Lessons Learned: A Reflection Upon Bowers v. Hardwick,” Nova Law Review 11 (Fall 1986): 59–70, at 65.

Also see Time, 14 July 1986, pp. 23–24, 21 July 1986, pp. 12–22; U.S. News & World Report, 14 July 1986, p. 18; Gerald Gillerman, Boston Bar Journal 30 (September-October 1986): 4–10, at 4 (“whether or not you are a criminal depends not on what you do, but who you are”); also note Legal Times, 21 July 1986, pp. 5, 12; America, 9 August 1986, p. 41; Richard J. Neuhaus, National Review, 15 August 1986, p. 40; David R. Carlin, Jr., Commonweal, 12 September 1986, pp. 456–457; Robert J. Bresler, USA Today 115 (November 1986): 6–7; and Alida Brill, Nobody’s Business: Paradoxes of Privacy (Reading, MA: Addison-Wesley, 1990), p. 125. On poll results, also see Tom W. Smith, “The Polls—The Sexual Revolution?,” Public Opinion Quarterly 54 (Fall 1990): 415–435, at 424.

Law journal notes critical of the Bowers majority include Ali Khan, San Diego Law Review 23 (September-October 1986): 957–977; Harvard Law Review 100 (November 1986): 210–220; Mark F. Kohler, Connecticut Law Review 19 (Fall 1986): 129–142; Gary S. Caplan, Journal of Criminal Law & Criminology 77 (Fall 1986): 894–930; Jo Marie Escobar, Western State University Law Review 14 (Fall 1986): 309–323; Loren George, Southern University Law Review 12 (1986): 307–317; James J. Bromberek, John Marshall Law Review 20 (Winter 1986–87): 325–342; Jim Gibb, Capital University Law Review 16 (Winter 1986–87): 301–323; Shaun A. Roberts, University of Dayton Law Review 12 (Winter 1986–87): 429–440; Angelina M. Massari, Washington University Journal of Urban and Contemporary Law 31 (Winter 1987): 403–417; Rahel E. Kent, Whittier Law Review 9 (1987): 115–149; Bruce A. Wilson, Creighton Law Review 20 (1987): 833–866; Margaret J. Siderides, University of Bridgeport Law Review 8 (1987): 229–253; Shelley R. Wieck, South Dakota Law Review 32 (1987): 323–343; Randi Maurer, Loyola of Los Angeles Law Review 20 (April 1987): 1013–1054; Roger D. Strode, Jr., Marquette Law Review 70 (Spring 1987): 599–611; Donna L. Smith, Tulsa Law Journal 22 (Spring 1987): 373–397; John A. Gordon, Boston College Law Review 28 (July 1987): 691–721; Daniel J. Langin, Iowa Law Review 72 (July 1987): 1443–1460; Michael Hedeen, Southern Illinois University Law Journal 11 (Summer 1987): 1305–1325; Richard G. Duplantier, Loyola Law Review 33 (Summer 1987): 483–498; Orene Bryant, Toledo Law Review 18 (Summer 1987): 835–870; Shari A. Levitan, Suffolk University Law Review 21 (Fall 1987): 853–876; Paul L. Alpert, New York Law School Journal of Human Rights 5 (Fall 1987): 129–162; John R. Hamilton, Kentucky Law Journal 76 (Fall 1987): 301–324; Joseph R. Thornton, North Carolina Law Review 65 (October 1987): 1100–1123; Robin S. Foreman, Wake Forest Law Review 22 (1987): 629–647; Yvonne L. Tharpes, Howard Law Journal 30 (1987): 537–549, at 547 (“Erotophobia permeates the Bowers opinions and effectively ignores the reality that anal and oral sexual practices are nearly universal modes of sexual expression in America”); Serena L. Nowell, Howard Law Journal 30 (1987): 551–565; Michael R. Engelman, Journal of Family Law 26 (1987–88): 373–393; Nancy S. Cameron, Gonzaga Law Review 22 (1987–88): 577–603; Mark J. Kappelhoff, American University Law Review 37 (Winter 1988): 487–512; Joan B. Dressler, North Carolina Central Law Journal 17 (1988): 100–118; George W. M. Thomas, Syracuse Law Review 39 (1988): 875–896; Caroline W. Ferree, Denver University Law Review 64 (1988): 599–612; and Mitchell L. Pearl, New York University Law Review 63 (April 1988): 154–190. Note as well Christopher W. Weller, Cumberland Law Review 16 (1986): 555–592; Paul L. Alpern, Harvard Journal of Law & Public Policy 10 (Winter 1987): 213–227; Julia K. Sullens, Tulane Law Review 61 (March 1987): 907–929; Missouri Law Review 52 (Spring 1987): 467–484; Daniel L. Pulter, Oklahoma City University Law Review 12 (Fall 1987): 865–905; and Richard J. Wittbrodt, Pepperdine Law Review 14 (1987): 313–335.

Also see especially Jeffrey W. Soderberg, “Bowers v. Hardwick: The Supreme Court Redefines Fundamental Rights Analysis,” Villanova Law Review 32 (February 1987): 221–258; also note Annamay T. Sheppard, “Private Passion, Public Outrage: Thoughts on Bowers v. Hardwick,” Rutgers Law Review 40 (Winter 1988): 521–559; Sylvia A. Law, “Homosexuality and the Social Meaning of Gender,” Wisconsin Law Review 1988: 187–235, at 187 (“the disapprobation of homosexual behavior is a reaction to the violation of gender norms, rather than simply scorn for the violation of norms of sexual behavior”); Janet Self, “Bowers v. Hardwick: A Study of Aggression,” Human Rights Quarterly 10 (August 1988): 395–432; Norman Vieira, “Hardwick and the Right of Privacy,” University of Chicago Law Review 55 (Fall 1988): 1181–1191; Claude Millman, “Sodomy Statutes and the Eighth Amendment,” Columbia Journal of Law and Social Problems 21 (1988): 267–307; Andrew Koppelman, “The Miscegenation Analogy: Sodomy Law as Sex Discrimination,” Yale Law Journal 98 (November 1988): 145–164, at 147 (“sodomy laws discriminate on the basis of sex—for example, permitting men, but not women, to have sex with women—in order to impose traditional sex roles”); J. Drew Page, “Cruel and Unusual Punishment and Sodomy Statutes,” University of Chicago Law Review 56 (Winter 1989): 367–396; A. S. Cohan, “The State in the Bedroom: What Some Adults May Not Do Privately After Hardwick v. Bowers,” Journal of American Studies 23 (April 1989): 41–62; “Sexual Orientation and the Law,” Harvard Law Review 102 (May 1989): 1508–1671; Judith W. DeCew, “Constitutional Privacy, Judicial Interpretation, and Bowers v. Hardwick,” Social Theory and Practice 15 (Fall 1989): 285–303; Stephen Macedo, The New Right v. The Constitution, 2nd ed. (Washington, DC: Cato Institute, 1988), pp. 69–74; Macedo, Liberal Virtues (New York: Oxford University Press, 1990), pp. 192–197; Sheldon Leader, “The Right to Privacy, the Enforcement of Morals, and the Judicial Function: An Argument,” Current Legal Problems 43 (1990): 115–134; and “Constitutional Barriers to Civil and Criminal Restrictions on Pre- and Extramarital Sex,” Harvard Law Review 104 (May 1991): 1660–1680, at 1660 (“Sex is undoubtedly the world’s oldest recreational activity”).

98. David Robinson, Jr., “Sodomy and the Supreme Court,” Commentary 82 (October 1986): 57–61, at 60; James J. Knicely, “The Thornburgh and Bowers Cases,” Mississippi Law Journal 56 (August 1986): 267–323, at 270–271; Fried, Order and Law (New York: Simon & Schuster, 1991), pp. 82–83; Fein, “Griswold v. Connecticut: Wayward Decision-Making in the Supreme Court,” Ohio Northern University Law Review 16 (1989): 551–559, at 559. Also see Alan J. Wertjes, Washington University Law Quarterly 64 (1986): 1233–1250; Walter Berns, Taking the Constitution Seriously (New York: Simon & Schuster, 1987), p. 226; Mary Jane Morrison, “Constitutional Reasoning for Rights,” Missouri Law Review 54 (Winter 1989): 29–73, at 69 (“The proper question in Bowers is whether Georgia constitutionally may criminalize all sodomy; and the proper answer is that Georgia may”); Earl M. Maltz, Brigham Young University Law Review 1989: 59–93; and Gerard V. Bradley, Wake Forest Law Review 25 (1990): 501–546.

99. Washington Post, 13 July 1986, pp. A1, A8; White, “Memorandum to the Conference-Holds for Bowers,” 25 June 1986, Marshall Box 378; Baker v. Wade, 478 U.S. 1022, 7 July 1986; State v. Walsh, 713 S.W.2d 508, 510, 511, 512–13 (Mo. Sup. Ct.), 15 July 1986; Tribe et al., “Petition for Rehearing,” Bowers v. Hardwick, U.S.S.C., O.T. 1985, #140, 24 July 1986, pp. 2, 7, 9–10; Bowers v. Hardwick, 478 U.S. 1039, 11 September 1986; Oklahoma v. Post, 479 U.S. 890, 14 October 1986 (denying certiorari to Post v. State, 717 P.2d. 1151, 14 April 1986, and 715 P.2d 1105, 26 February 1986 [Okla. Ct. Crim. App.]); Lambeth v. State, 354 S.E.2d 144 (Ga. Sup. Ct.), 9 April 1987; Gordon v. State, 360 S.E. 2d 253 (Ga. Sup. Ct.), 24 September 1987; Washington Post, 26 October 1990, p. A3; New York Law Journal, 26 October 1990, p. 1, 20 November 1990, p. 2; National Law Journal, 5 November 1990, p. 3. Also see Tribe and Michael C. Dorf, On Reading the Constitution, p. 117 (Bowers was “egregiously wrong”); and Tribe, “Contrasting Constitutional Visions,” Harvard Civil Rights–Civil Liberties Law Review 22 (Winter 1987): 95–109, at 104–106.

Regarding Oklahoma, also see Hinkle v. State, 771 P.2d 232 (Okla. Ct. Crim. App.), 20 March 1989, reaffirming Post despite the intervening ruling in Bowers. On Georgia, also see Atlanta Constitution, 28 August 1989, p. A8, 1 September 1989, p. C3; Wall Street Journal, 6 September 1989, p. B7; and Playboy, February 1990, p. 44, concerning the incarceration and release of one James D. Moseley, who had served nineteen months of a two-and-a-half-year prison sentence after being convicted of performing oral sex on his wife. Concerning Michael Hardwick, also see Atlanta Constitution, 8 September 1986, p. A7; and Miami Herald, 17 December 1990, pp. C1, C2. On other post-Bowers legal prospects, see Nan Feyler, “The Use of the State Constitutional Right to Privacy to Defeat State Sodomy Statutes,” New York University Review of Law and Social Change 14 (1986): 973–994; Washington Post, 4 February 1987, p. A16; David C. Nice, “State Deregulation of Intimate Behavior,” Social Science Quarterly 69 (March 1988): 203–211; Regina O. Matthews, “The Louisiana Constitution’s Declaration of Rights: Post-Hardwick Protection for Sexual Privacy?,” Tulane Law Review 62 (March 1988): 767–812; and Juli A. Morris, “Challenging Sodomy Statutes: State Constitutional Protections for Sexual Privacy,” Indiana Law Journal 66 (Spring 1991): 609–624.

100. Bill Moyers, “In Search of the Constitution: Mr. Justice Blackmun,” PBS, 26 April 1987; New York Times, 18 September 1986, pp. 1, 26, 11 June 1986, p. A21, 14 June 1986, p. 27, 15 June 1986, p. 21, 13 July 1986, p. 33, 15 October 1986, p. B36, 30 October 1986, pp. A30, B7, 12 November 1986, p. B3, 13 November 1986, p. B10, 4 December 1986, p. A32, 5 December 1986, p. A16, 15 December 1986, p. B3, 16 December 1986, p. B4, 19 December 1986, p. B3, 21 January 1987, p. A24, 22 January 1987, p. A27, 23 January 1987, p. A10, 26 January 1987, p. A22, 19 February 1987, p. B4, 20 February 1987, p. B3, 23 February 1987, p. A1, 25 February 1987, p. B1, 8 April 1987, p. D31, 7 May 1987, p. B1, 19 May 1987, p. B8, 13 June 1987, p. 31, 5 August 1987, p. B2, 3 September 1987, p. B1; Blackmun, “Memorandum to the Conference,” 24 June 1986, Marshall Box 378; Scalia, “Memorandum to the Conference,” 26 March 1987, and Stevens to Scalia, 26 March 1987, Marshall Box 407; Hartigan v. Zbaraz, 479 U.S. 881, 14 October 1986, 480 U.S. 944, 30 March 1987, 481 U.S. 1008, 7 April 1987. Also see SHARE v. Bering, 479 U.S. 1050 (dismissing a petition seeking review of Bering v. SHARE, 721 P.2d 918 [Wash. Sup. Ct.] for want of jurisdiction), Powell to Rehnquist, 9 January 1987, Marshall Box 407, and Bonny E. Sweeney, Case Western Reserve Law Review 38 (1988): 698–728; also note Turner v. Safley, 482 U.S. 78, 95–97, 1 June 1987.

Also see generally Elizabeth Fee and Ruth Finkelstein, “Abortion: The Politics of Necessity and Choice,” Feminist Studies 12 (Summer 1986): 361–373, at 372 (“we must stop framing the abortion argument in terms of an individual right to privacy”); Harper’s, July 1986, pp. 35–43; Christianity & Crisis, 14 July 1986, pp. 232–250; Carol Joffe, “Abortion and Antifeminism,” Politics and Society 15 (1986–87): 207–212; Sharon E. Rush, University of Florida Law Review 39 (Winter 1987): 55–111; Janice Steinschneider, Harvard Women’s Law Journal 10 (Spring 1987): 284–294; and Marvin N. Olasky, “Abortion Rights: Anatomy of a Negative Campaign,” Public Relations Review 13 (Fall 1987): 12–23.

101. New York Times, 27 June 1987, p. 1, 8 July 1987, pp. A1, A20, 13 July 1987, p. A12, 14 July 1987, p. A22, 9 August 1987, p. 25, 13 September 1987, p. IV-7, 14 September 1987, p. B9, 15 September 1987, p. A21, 19 September 1987, p. 10, 22 September 1987, p. A1; Washington Post, 19 July 1987, pp. C6, C7, 5 August 1987, p. A20; Michael Pertschuk and Wendy Schaetzel, The People Rising: The Campaign Against the Bork Nomination (New York: Thunder’s Mouth Press, 1989), pp. 135–137, 144, 257–258; Ethan Bronner, Battle for Justice (New York: W. W. Norton & Co., 1989), pp. 152, 159, 221–22, 266–70; U.S. Congress, Senate, Committee on the Judiciary, Hearings on the Nomination of Robert H. Bork, 100th Cong., 1st sess., 15–30 September 1987, pp. 184–85, 265, 1176, 3547–49, 3789, 3896–3910, 4455; Mark Gitenstein, Matters of Principle (New York: Simon & Schuster, 1992), pp. 105 and 112–117; Bork, The Tempting of America (New York: Free Press, 1989), pp. 120, 250. Also see Time, 21 September 1987, pp. 14–15.

On public opinion polls concerning the right to privacy, also see Louis Harris et al., The Dimensions of Privacy: A National Opinion Research Survey of Attitudes Toward Privacy (Stevens Point, WI: Sentry Insurance, April 1979), p. 15 (When more than 1,500 respondents were asked: “The United States was founded on the belief that the rights to life, liberty, and the pursuit of happiness were fundamental for both the individual and a just society. Do you think we should or should not add today the right of privacy to this list?” in December 1978, 76 percent chose “should,” 17 percent said “should not,” and 7 percent had no opinion); and National Law Journal, 26 February 1990, pp. 1, 36–37 (73 percent of 805 respondents to a January 1990 survey believe that the Constitution guarantees a right of privacy; 51 percent believe it is written in the Constitution, and only 41 percent can name even one member of the Supreme Court).

102. U.S. Congress, Senate, Congressional Record, 9 October 1987, pp. 14011–12; Gitenstein, Matters of Principle, p. 322; Frank Michelman, “Law’s Republic,” Yale Law Journal 97 (July 1988): 1493–1537, at 1533–34; Sanford Levinson, “Constitutional Rhetoric and the Ninth Amendment,” Chicago-Kent Law Review 64 (1988): 131–161, at 135; Lackland H. Bloom, Jr., “The Legacy of Griswold,” Ohio Northern University Law Review 16 (1989): 511–544, at 543; Gary McDowell, “Congress and the Courts,” The Public Interest, Summer 1990, pp. 89–101, at 100. The internal quotation is from West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943).

Also see Lilian R. BeVier, “What Privacy Is Not,” Harvard Journal of Law & Public Policy 12 (Winter 1989): 99–103, at 102 (“by calling the abortion right a right of privacy, the Court has appropriated, or rather misappropriated, much of the good will that the word ‘privacy’ itself has quite legitimately accumulated”); Glenn H. Reynolds, “Sex, Lies and Jurisprudence: Robert Bork, Griswold and the Philosophy of Original Understanding,” Georgia Law Review 24 (Summer 1990): 1045–1113, at 1105 (Griswold “is in fact a rather popular opinion—so popular that when word went out that Robert Bork was against it, his fate was largely sealed”); and Harry H. Wellington, Interpreting the Constitution (New Haven: Yale University Press, 1990), p. 121 (“the hearings suggest strong political approval of the principle advanced in Griswold”).

On Griswold’s influence overseas, see Mary McGee v. Attorney General, 1974 Irish Reports 284, 326–28, 335–36 (Supreme Court of Ireland), 19 December 1974; also see Robert A. Burt, “Privacy and Contraception in the American and Irish Constitutions,” St. Louis University Public Law Review 7 (1988): 287–296. Non-American legal decisions that have favorably cited Roe include Paton v. United Kingdom, 3 E.H.R.R. 408, 415 (European Commission of Human Rights), 1980; The Queen v. Bayliss and Culleon, 9 Qld Lawyer Reps. 8, 10, 49, 54–56 (Queensland, Australia), 1986; and Morgenthaler v. Her Majesty, The Queen, 1 S.C.R. 30, 40 D.L.R. 4th 385 (Supreme Court of Canada), 28 January 1988. Also see New York Times, 29 January 1988, p. A3.

103. Bork, The Tempting of America, pp. 112, 116, 158–59. Also see Dallas Morning News, 10 July 1989, p. A13; David A. Kaplan, “Is Roe Good Law?,” Newsweek, 27 April 1992, pp. 49–51 (criticizing Blackmun’s “sloppy use of legal doctrine” and concluding that “Roe is a lousy opinion,” “almost devoid of the things we expect from our judges”); and Elizabeth Mensch and Alan Freeman, The Politics of Virtue (Durham, NC: Duke University Press, 1993), p. 126 (Roe “may be fairly characterized as a mistake for three combined reasons: it was legally problematic at best, sociologically inaccurate, and politically disastrous”).

104. New York Times, 30 October 1987, p. A1, 1 November 1987, p. IV-7, 4 November 1987, p. B32, 8 November 1987, p. A1, 12 November 1987, p. A1, 15 December 1987, p. B16, 21 January 1988, p. A18, 23 January 1988, p. 50; Legal Times, 23 November 1987, p. 1; Blackmun, “Memorandum to the Conference,” 7 December 1987, and Rehnquist, “Memorandum to the Conference,” 8 December 1987, Marshall Box 439; Hartigan v. Zbaraz, 484 U.S. 171, 14 December 1987; U.S. Congress, Senate, Committee on the Judiciary, Hearings on the Nomination of Anthony M. Kennedy, 100th Cong., 1st sess., 14–16 December 1987, pp. 88, 121, 164–65, 166, 233; Ethan Bronner, Battle For Justice (New York: W. W. Norton & Co., 1989), pp. 328–338. Also see Sallie Tisdale, Harper’s, October 1987, pp. 66–70.

105. New York Times, 4 February 1988, pp. A1, A18, 19 February 1988, p. A10, 3 May 1988, p. B1, 4 May 1988, p. B2, 5 May 1988, p. B3, 8 May 1988, p. 28, 10 May 1988, p. A20, 20 July 1988, p. A19, 30 July 1988, 7 August 1988, p. 20, 13 August 1988, p. 6, 26 August 1988, p. A12, 29 August 1988, p. A15, 31 August 1988, p. A14, 10 September 1988, p. 6, 14 September 1988, p. A24; U.S. Congress, Senate, Committee on the Judiciary, Report—Nomination of Anthony M. Kennedy to Be an Associate Justice of the United States Supreme Court, 100th Cong., 2nd sess., #100–13, 1 February 1988, pp. 18–19, 51, 58–59; Charles Fager, “Fetal Distraction,” The New Republic, 30 May 1988, pp. 21–22; Washington Post, 14 September 1988; U.S. News & World Report, 3 October 1988, pp. 23–31. Also see Stephen F. Rohde, Los Angeles Lawyer, March 1988, pp. 45–53; Ernest A. Braun, Los Angeles Lawyer, June 1988, pp. 27–28; Paul Reidinger, ABA Journal, July 1988, pp. 66–70; and Julie Hairston and Molly McGuire’s articles on “Operation Rescue” in Southern Exposure, Summer 1990, pp. 15–18.

Also note Justice Kennedy’s opinion for the Court in United States Catholic Conference v. Abortion Rights Mobilization, 487 U.S. 72, 20 June 1988 (reversing and remanding 824 F.2d 156), with only Marshall, J., dissenting, plus Abortion Rights Mobilization v. United States Catholic Conference, 495 U.S. 918, 30 April 1990 (denying certiorari to 885 F.2d 1020, 6 September 1989). See as well 544 F. Supp. 471 (1982) and 603 F. Supp. 970 (1985); New York Times, 27 September 1987, p. 52, 8 December 1987, p. A21, 19 April 1988, p. A23, 21 June 1988, p. A17, 29 July 1988, p. A27, 7 September 1989, p. B3, 1 May 1990, p. A18.

106. New York Times, 5 October 1988, p. A22, 27 October 1988, p. A27, 30 October 1988, p. 26, 11 November 1988, p. A20, 14 November 1988, p. B10, 24 December 1988, p. 8, 26 December 1988, p. 12, 10 January 1989, p. B5; Patricia Donovan, “The 1988 Abortion Referenda,” Family Planning Perspectives 21 (September-October 1989): 218–223; Washington Post, 11 November 1988, pp. A1, A4, 10 January 1989, pp. A1, A5; “PE” [Paul Englemayer], Webster v. Reproductive Health Services, 29 December 1988, 2pp., Marshall Box 454; Webster Docket Sheet, Marshall Box 554; Webster v. Reproductive Health Services, 488 U.S. 1003, 9 January 1989. Marshall’s docket sheet does not indicate any votes for Justices Scalia and Kennedy regarding Webster at the January 6 conference.

107. New York Times, 15 January 1989, pp. 25, IV-28, 21 January 1989, p. A26, 22 January 1989, p. 21, 24 January 1989, p. A1, 31 January 1989, p. A22, 21 March 1989, p. A19, 26 March 1989, p. 19, 5 April 1989, p. A23, 6 April 1989, p. B10, 9 April 1989, pp. 28, IV-24, 10 April 1989, pp. A1, A17, B6, 11 April 1989, p. A20, 16 April 1989, p. 28, 18 April 1989, p. C1, 19 April 1989, p. A23, 21 April 1989, p. B5, 26 April 1989, pp. A1, A25, 2 July 1989, p. 14; William C. Bryson et al., “Brief for the United States as Amicus Curiae Supporting Appellants,” Webster v. Reproductive Health Services, #88–605, 23 February 1989, pp. 1, 5–6, 12; William L. Webster et al., “Brief for Appellants,” Webster v. Reproductive Health Services, #88–605, 23 February 1989, pp. 9, 14, 17; Roger K. Evans et al., “Brief for Appellees,” Webster v. Reproductive Health Services, #88–605, 30 March 1989, p. 2; Time, 1 May 1989, pp. 20–28; Sylvia A. Law et al., “Brief of 281 American Historians as Amicus Curiae Supporting Appellees,” Webster v. Reproductive Health Services, #88–605, 31pp., 30 March 1989; Law, “Conversations Between Historians and the Constitution,” The Public Historian 12 (Summer 1990): 11–17; Stevens to Rehnquist, 17 April 1989, Marshall Box 480; Webster et al., “Appellants’ Reply Brief,” Webster v. Reproductive Health Services, #88–605, 20 April 1989, p. 5. On the origins of the Missouri statute, see Cynthia Gorney, “Taking Aim at Roe v. Wade,” Washington Post Magazine, 9 April 1989, pp. 18–26, 42–44; on the amicus briefs, see Kathryn Kolbert, Women’s Rights Law Reporter 11 (1989): 153–162; Family Planning Perspectives 21 (May-June 1989): 134–136; and especially Susan Behuniak-Long, “Friendly Fire: Amici Curiae and Webster v. Reproductive Health Services,” Judicature 74 (February-March 1991): 261–270. Also note Ruth Colker, “Feminist Litigation: An Oxymoron?—A Study of the Briefs Filed in William L. Webster v. Reproductive Health Services,” and Sarah E. Burns, “Notes from the Field: A Reply to Professor Colker,” Harvard Women’s Law Journal 13 (Spring 1990): 137–188 and 189–206. On the historians’ brief in particular, also see the articles by James C. Mohr (pp. 19–26), Estelle B. Freedman (pp. 27–32), and others in The Public Historian 12 (Summer 1990); as well as Gerard V. Bradley, “Academic Integrity Betrayed,” First Things, August-September 1990, pp. 10–11. Also note Roy M. Mersky and Gary R. Hartman, A Documentary History of the Legal Aspects of Abortion in the United States: Webster v. Reproductive Health Services (Littleton, CO: Fred B. Rothman and Co., 1990), 8 vols.

Also see Mary Ann Glendon, The New Republic, 20 February 1989, pp. 19–20; Ms., April 1989, pp. 87–95; Dawn Johnsen and Marcy Wilder, “Will Roe v. Wade Survive the Rehnquist Court?” Nova Law Review 13 (Spring 1989): 457–469; James Bopp, Jr. and Richard E. Coleson, “The Right to Abortion: Anomalous, Absolute, and Ripe for Reversal,” B.Y.U. Journal of Public Law 3 (1989): 181–355; Bopp, “Will There Be a Constitutional Right to Abortion After the Reconsideration of Roe v. Wade?,” Journal of Contemporary Law 15 (1989): 131–173; Commonweal, 5 May 1989, pp. 259–60, 267–69; Henry Reske, ABA Journal, May 1989, pp. 60–64; and Walter Dellinger, The New Republic, 8 May 1989, pp. 11–12.

On public opinion in the late 1980s, also see Jacqueline Scott, “Conflicting Beliefs About Abortion: Legal Approval and Moral Doubts,” Social Psychology Quarterly 52 (December 1989): 319–326; and Elizabeth A. Cook et al., “Generational Differences in Attitudes Toward Abortion,” American Politics Quarterly 21 (January 1993): 31–53; also note Jacqueline Scott and Howard Schuman, “Attitude Strength and Social Action in the Abortion Dispute,” American Sociological Review 53 (October 1988): 785–793; and Robert Lerner et al., “Abortion and Social Change in America,” Society, January-February 1990, pp. 8–15.

108. Transcript of Oral Argument, Webster v. Reproductive Health Services, 26 April 1989, pp. 11–12, 15–17; New York Times, 26 April 1989, pp. A24, A25, 27 April 1989, pp. A1, B14, 28 April 1989, pp. A38, B12, 30 April 1989, p. IV-25, 16 May 1989, p. A20; Washington Post, 27 April 1989, pp. A1, A14; Ronald Dworkin, “The Great Abortion Case,” New York Review of Books, 29 June 1989, pp. 49–53; Rhonda Copelon and Kathryn Kolbert, Ms., July-August 1989, pp. 42–44; Marian Faux, Crusaders (New York: Carol Publishing Group, 1990), esp. pp. 52–61. Also see Newsweek, 1 May 1989, pp. 28–37.

109. Marshall Docket Sheet, Marshall Box 554; Rehnquist Print #1, 25 May 1989, 23pp., p. 23, Blackmun to Rehnquist, 26 May 1989, Brennan to Rehnquist, Marshall to Rehnquist, White to Rehnquist, Kennedy to Rehnquist, and Stevens to Rehnquist, 30 May 1989, Rehnquist Print #2, 6 June 1989, Blackmun Print #1, 21 June 1989, pp. 1–2, 26, Brennan to Blackmun, and Marshall to Blackmun, 21 June 1989, O’Connor typescript circulation, 22 June 1989, Stevens to O’Connor, 22 and 23 June 1989, O’Connor Print #1, 23 June 1989, Marshall to O’Connor, and Blackmun to O’Connor, 26 June 1989, Stevens Circulation #1, and Scalia Print #1, 26 June 1989, Rehnquist, “Memorandum to the Conference,” and Rehnquist Print #4, 27 June 1989, Stevens to Rehnquist, 27 June 1989, Blackmun Print #2, 28 June 1989 (with earlier references to “majority” now changed to “plurality”), Marshall Box 480. Also see Los Angeles Times, 13 December 1992, p. A1; Washington Post, 23 May 1993, pp. A1, A21, and New York Times, 24 May 1993, p. A10.

110. Webster v. Reproductive Health Services, 492 U.S. 490, 509, 511, 517, 518, 519, 520, 525–26, 530, 531, 532, 535, 536n, 538, 547n, 556, 557n, 560 (reversing 851 F.2d 1071 [8th Cir.]), 3 July 1989. Also see 662 F. Supp. 407 and 655 F. Supp. 1300 (W.D. Mo.), 1987, as well as Epstein and Kobylka, The Supreme Court and Legal Change, pp. 265–292, and Savage, Turning Right, pp. 227–228, 260–272, and 288–298.

111. New York Times, 30 June 1989, p. A8, 3 July 1989, pp. A8, A10, 4 July 1989, pp. 1, 10, 11, and 28, 5 July 1989, p. A1, A17, A18, and A21, 6 July 1989, p. A21, 9 July 1989, p. IV-1; Washington Post, 4 July 1989, pp. A1, A6, A7; Time, 17 July 1989, p. 96; Bopp and Richard E. Coleson, “What Does Webster Mean?,” University of Pennsylvania Law Review 138 (November 1989): 157–177, at 157–58; Susan R. Estrich and Kathleen M. Sullivan, “Abortion Politics: Writing for an Audience of One,” University of Pennsylvania Law Review 138 (November 1989): 119–155, at 119–20 and 123; Daniel A. Farber, “Abortion After Webster,” Constitutional Commentary 6 (Summer 1989): 225–230, at 225–27; Walter Dellinger and Gene B. Sperling, “Abortion and the Supreme Court: The Retreat from Roe v. Wade,” University of Pennsylvania Law Review 138 (November 1989): 83–118, at 83 and 98n.

Also see especially Kathryn Kolbert, “The Webster Amicus Curiae Briefs: Did the Amici Effort Make a Difference?” American Journal of Law and Medicine 15 (1989): 153–168; Susan Behuniak-Long, “Friendly Fire: Amici Curiae and Webster v. Reproductive Health Services,” Judicature 74 (February-March 1991): 261–270, at 270; Ronald Dworkin, “The Future of Abortion,” New York Review of Books, 28 September 1989, pp. 47–51; Paul D. Simmons, “Religious Liberty and the Abortion Debate,” Journal of Church and State 32 (Summer 1990): 567–584; and a four-part Los Angeles Times series, 1–4 July 1990, pp. A1ff.; note as well James R. Kelly, America, 19 August 1989, pp. 79–83; William Saletan, The New Republic, 18–25 September 1989, pp. 18–20; John Robertson, “The Future of Early Abortion,” ABA Journal, October 1989, pp. 72–75; Mary Anne Warren, “The Abortion Struggle in America,” Bioethics 3 (October 1989): 320–332; George J. Annas, New England Journal of Medicine 321 (26 October 1989): 1200–1203; Frances Olsen, “Unraveling Compromise,” Harvard Law Review 103 (November 1989): 105–135; Leonard A. Cole, “The End of the Abortion Debate,” University of Pennsylvania Law Review 138 (November 1989): 217–223; Christopher A. Crain, “Judicial Restraint and the Non-Decision in Webster v. Reproductive Health Services,” Harvard Journal of Law & Public Policy 13 (Winter 1990): 263–318; Kevin W. Saunders, “Privacy and Social Contract: A Defense of Judicial Activism in Privacy Cases,” Arizona Law Review 33 (1991): 811–857; Karen L. Bell, “Toward a New Analysis of the Abortion Debate,” Arizona Law Review 33 (1991): 907–935; and Donald P. Judges, Hard Choices, Lost Voices (Chicago: Ivan R. Dee, 1993), pp. 190–199.

112. Rehnquist, “Memorandum to the Conference,” 28 June 1989, Marshall Box 463; Hodgson v. Minnesota, 492 U.S. 917, Ohio v. Akron Center for Reproductive Health, 492 U.S. 916, and Turnock v. Ragsdale, 492 U.S. 916, 3 July 1989; New York Times, 25 June 1989, p. 20, 6 July 1989, p. A16, 8 July 1989, p. 7, 9 July 1989, p. 19, 16 July 1989, p. A1, 21 July 1989, p. A6, 26 July 1989, p. A12, 31 July 1989, p. A8, 3 August 1989, p. A18, 12 August 1989, p. 6, 13 August 1989, p. 23, 25 August 1989, p. A1, 29 September 1989, pp. A1, A13, 6 October 1989, p. A15, 7 October 1989, p. 9, 11 October 1989, p. A1, 12 October 1989, pp. A1, A22, A23, 13 October 1989, p. A1, 14 October 1989, p. 1, 15 October 1989, pp. 24, 29, IV-1, 16 October 1989, p. A18, 22 October 1989, p. 32, 26 October 1989, p. A20, 29 October 1989, p. A1, 7 November 1989, p. A16, 8 November 1989, p. A18, 9 November 1989, p. B14, 10 November 1989, p. A1, 13 November 1989, p. A14; In re T.W., 551 So.2d 1186 (Fla. Sup. Ct.), 5 October 1989 (affirming 543 So.2d 837); Washington Post, 6 October 1989, pp. A1, A9, 7 October 1989, p. A6.

On the 1980 Florida privacy amendment and In re T. W., also see Gerald B. Cope, Jr., “To Be Let Alone: Florida’s Proposed Right of Privacy,” Florida State University Law Review 6 (Summer 1978): 671–773; John M. Devlin, “State Constitutional Autonomy Rights in an Age of Federal Retrenchment,” Emerging Issues in State Constitutional Law 3 (1990): 195–246, at 224–26; Martha M. Ezzard, Denver University Law Review 67 (1990): 401–419; Daniel R. Gordon, “One Privacy Provision, Two Privacy Protections: The Right to Privacy in Florida After Roe v. Wade,” Wisconsin Women’s Law Journal 5 (1990): 81–122; and Rebecca M. Salokar, “The First Test of Webster’s Effect: The Florida Church,” in Timothy A. Byrnes and Mary C. Segers, eds., The Catholic Church and the Politics of Abortion (Boulder, CO: Westview Press, 1992), pp. 48–70. On Congress, also see James L. Regens and Brad Lockerbie, “Making Choices About Choice: House Support for Abortion Funding,” Social Science Research 22 (March 1993): 24–32; on New Jersey, also see Mary C. Segers, Commonweal, 12 January 1990, pp. 10–13; and Segers, “Abortion Politics Post-Webster: The New Jersey Bishops,” in Byrnes and Segers, eds., The Catholic Church and the Politics of Abortion, pp. 27–47.

Also generally see Jack Fowler, National Review, 4 August 1989, pp. 35–36; Commonweal, 11 August 1989, pp. 425–428; Morton Kondracke, The New Republic, 28 August 1989, pp. 17–19; Barbara Barnett, Southern Exposure, Summer 1990, pp. 20–23; and especially Glen Halva-Neubauer, “Abortion Policy in the Post-Webster Age,” Publius 20 (Summer 1990): 27–44; Alissa Rubin, “Interest Groups and Abortion Politics in the Post-Webster Era,” in Allan J. Cigler and Burdett A. Loomis, eds., Interest Group Politics, 3rd ed. (Washington, DC: CQ Press, 1991), pp. 239–255; and Glen Halva-Neubauer, “Legislative Agenda-Setting in the States: The Case of Abortion Policy” (unpublished Ph.D. dissertation, University of Minnesota, 1992). Also note Ruth Ann Strickland and Marcia L. Whicker, “Political and Socioeconomic Indicators of State Restrictiveness Toward Abortion,” Policy Studies Journal 20 (Winter 1992): 598–617; Carolyn L. Cooke, “Holding the Line: A View of Evolving Abortion Policy” (unpublished Ph.D. dissertation, Indiana University, 1992); Marilyn A. Yale, “Abortion in State Level Electoral Politics: A Content Analysis of Press Coverage During Four Gubernatorial Campaigns” (unpublished Ph.D. dissertation, University of Houston, 1992); and Malcolm L. Goggin, “Understanding the New Politics of Abortion,” and Michael B. Berkman and Robert E. O’Connor, “Do Women Legislators Matter? Female Legislators and State Abortion Policy,” American Politics Quarterly 21 (January 1993): 4–30 and 102–124.

113. New York Times, 20 September 1989, p. A16, 3 October 1989, p. A19, 4 October 1989, p. B24, 17 October 1989, p. A17, 25 October 1989, p. A1, 8 November 1989, p. A18, 15 November 1989, p. A19, 19 November 1989, p. 38, 23 November 1989, p. A1, 24 November 1989, p. A1, 30 November 1989, pp. A1, B16, 3 December 1989, p. IV-4, 7 December 1989, p. A34; Stevens to Rehnquist, 28 August 1989, Marshall Box 463; Turnock v. Ragsdale, 493 U.S. 802, 2 October 1989 (Stevens not participating), Turnock v. Ragsdale, 493 U.S. 987, 1 December 1989 (granting motion to defer any further proceedings); “GP” [Gregory Priest], “Bench Memorandum,” Ohio v. Akron Center, 27 November 1989, 6pp., Marshall Box 483; Alexander Wohl, “The Abortion Cases,” ABA Journal, February 1990, pp. 68–71; O’Connor, “Memorandum to the Conference,” 4 December 1989, Marshall Box 492; Stevens to Rehnquist (2), 7 December 1989, Marshall Boxes 498 and 500; O’Connor to Rehnquist (2), 8 December 1989, Marshall Boxes 498 and 500; Rehnquist, “Memorandum to the Conference,” 8 December 1989, and Rehnquist to O’Connor, 8 December 1989, Marshall Box 492; Brennan to Marshall, Blackmun, and Stevens, 11 December 1989, and Blackmun to Brennan, 11 December 1989, Marshall Box 498. Also see Washington Post, 23 May 1993, p. A21.

On the 1989 passage of the Pennsylvania statute, also see Thomas J. O’Hara, “The Abortion Control Act of 1989: The Pennsylvania Catholics,” in Byrnes and Segers, eds., The Catholic Church and the Politics of Abortion, pp. 87–104. On Illinois, see the earlier Eighth Circuit decision in Ragsdale v. Turnock, 841 F.2d 1358, as well as MaryAnne Borrelli, “The Consistent Life Ethic in State Politics: Joseph Cardinal Bernardin and the Abortion Issue in Illinois,” in Byrnes and Segers, eds., The Catholic Church and the Politics of Abortion, pp. 71–86.

On earlier action in the Minnesota case, see 648 F. Supp. 756, 479 U.S. 1102 (denying certiorari), 827 F.2d 1191, 835 F.2d 1546, and 853 F.2d 1452; Rachel N. Pine, “Speculation and Reality: The Role of Facts in Judicial Protection of Fundamental Rights,” University of Pennsylvania Law Review 136 (January 1988): 655–727; and New York Times, 28 August 1987, p. A1, 9 August 1988, p. A1; on earlier action in the Ohio case, see 633 F. Supp. 1123, 854 F.2d 852, and New York Times, 13 August 1988, p. 6.

On lower federal court abortion behavior, see Steve Alumbaugh and C. K. Rowland, “The Links Between Platform-Based Appointment Criteria and Trial Judges’ Abortion Judgments,” Judicature 74 (October-November 1990): 153–162, at 162 (“the Reagan appointees were much more resistant to abortion rights than were the appointees of his predecessors” while “Carter’s appointees were much more supportive of abortion claims than were the appointees of other presidents”).

114. New York Times, 12 January 1990, p. A18, 23 January 1990, p. A18, 29 January 1990, p. A17, 7 February 1990, p. A25, 10 March 1990, p. 8, 16 March 1990, p. A1, 20 March 1990, p. A14, 21 March 1990, p. A24, 22 March 1990, p. A1, 23 March 1990, p. A12, 25 March 1990, p. 29, 26 March 1990, p. B8, 27 March 1990, p. A24, 30 March 1990, p. A12, 31 March 1990, p. 1, 1 April 1990, p. IV-5, 2 April 1990, p. A14, 3 April 1990, p. A18, 6 April 1990, p. A1, 18 April 1990, p. A14, 19 April 1990, p. A25, 22 April 1990, p. 30, 27 April 1990, p. A10, 28 April 1990, pp. 1, 28, 29 April 1990, pp. 1, 26, 31 July 1990, p. A12, 5 August 1990, p. 24, 24 August 1990, p. A12, 25 August 1990, p. 8, 22 September 1990, p. 8; Guam Society of Obstetricians and Gynecologists v. Ada, 776 F. Supp. 1422, 23 August 1990; Planned Parenthood of Southeastern Pennsylvania v. Casey, 744 F. Supp. 1323, 24 August 1990; New Haven Register, 18 April 1990, 28 April 1990, and 1 May 1990; Connecticut General Statute 19A-602 (1991).

On the Connecticut events, also see Paul Baumann, Commonweal, 15 June 1990, pp. 373–375; Spencer M. Clapp, “Leading the Nation After Webster: Connecticut’s Abortion Law,” in Byrnes and Segers, eds., The Catholic Church and the Politics of Abortion, pp. 118–136; Barbara Hinkson Craig and David M. O’Brien, Abortion and American Politics (Chatham, NJ: Chatham House, 1993), pp. 284–292; and Eugene P. Falco, “Connecticut as a Model in an Era Without Roe” (unpublished paper, University of Connecticut Law School, Spring 1992); as well as New York Times, 4 April 1991, p. B3 (identifying Senator Upson as the only vocal opponent of Connecticut’s repeal of its criminal adultery law) and New York Times, 18 April 1991, p. B6, and 23 April 1991, pp. B1, B4 (concerning Connecticut’s adoption of a “gay rights” bill [as distinct from sodomy law repeal] due to what the measure’s chief sponsor said was “the tacit support of the state’s Roman Catholic church”).

Also generally see Frances Kissling, “Ending the Abortion War,” and James R. Kelly, “Beyond Slogans,” Christian Century, 21 February 1990, pp. 180–84 and 184–86; U.S. Congress, Senate, Committee on Labor and Human Resources, Hearings—Freedom of Choice Act of 1989, 101st Cong., 2nd sess., 27 March and 23 May 1990; and especially Sue Hertz, Caught in the Crossfire: A Year on Abortion’s Front Line (New York: Prentice Hall, 1991).

115. Jonathan B. Imber, “Abortion Policy and Medical Practice,” Society, July-August 1990, pp. 27–34, at 33; New York Times, 8 January 1990, pp. A1, B8, 8 September 1991, p. 18, 15 March 1992, pp. 1, 18, 12 May 1993, p. A18, 19 June 1993, pp. 23–24; Washington Post, 1 May 1991, p. A16, 20 April 1993, p. H7; Time, 4 May 1992, pp. 26–32; Chronicle of Higher Education, 6 May 1992, pp. A39, A40; Wall Street Journal, 12 March 1993, pp. B1, B6; Warren Hern, New York Times, 13 March 1993, p. 21; Harold J. Morowitz and James S. Trefil, The Facts of Life: Science and the Abortion Controversy (New York: Oxford University Press, 1992), pp. 19, 116, 119, 133, 146. Also see Rivers Singleton, Jr., “Paradigms of Science/Society Interaction: The Abortion Controversy,” Perspectives in Biology and Medicine 32 (Winter 1989): 174–193; New York Times, 18 February 1989, p. 29, 25 November 1992, p. A21; Lawrence Lader, RU 486 (Reading, MA: Addison-Wesley, 1991); and Kim M. Blankenship et al., “Reproductive Technologies and the U.S. Courts,” Gender & Society 7 (March 1993): 8–31.

116. Kennedy Akron Center Print #1, 11 January 1990, Marshall to Kennedy, 12 January 1990, Brennan to Kennedy, Blackmun to Kennedy, White to Kennedy, and Stevens to Kennedy, 16 January 1990, Rehnquist to Kennedy, 18 January 1990, Scalia to Kennedy, 23 January 1990, Stevens Concurrence #1, 7 February 1990, O’Connor to Kennedy, 19 March 1990, Marshall Box 498; Stevens Hodgson Print #1, 7 February 1990, Marshall to Stevens, 12 February 1990, Kennedy to Stevens, 28 February 1990, Marshall Print #1, 13 March 1990, Kennedy Print #1, 6 June 1990, Rehnquist to Kennedy, and White to Kennedy, 6 June 1990, O’Connor, “Memorandum to the Conference,” and O’Connor Print #1, 11 June 1990, Stevens, “Memorandum to the Conference,” and Stevens Print #4, 11 June 1990, Brennan to Stevens, 13 June 1990, Kennedy, “Memorandum to the Conference,” and Stevens to Kennedy, 13 June 1990, Brennan to Marshall, 13 June 1990, Brennan to Stevens, 14 June 1990, Stevens, “Memorandum to the Conference,” and Stevens Print #5, 15 June 1990, Marshall to Stevens, 15 June 1990, Stevens to Marshall, 18 June 1990, Stevens to Blackmun, 18 June 1990, Marshall to Stevens, 18 June 1990, Blackmun to Stevens, 18 June 1990, Blackmun to Brennan, Marshall (and Stevens), 18 June 1990 (“the three of us should be together as much as possible”), Brennan to Blackmun, 18 June 1990 (“I am in wholehearted agreement … especially now that Sandra has agreed to invalidate at least part of an abortion law”), Stevens to Marshall and Blackmun, 19 June 1990, Kennedy Print #2, and Scalia Print #1, 20 June 1990, Scalia to Kennedy, Brennan to Marshall, and Blackmun to Marshall, 20 June 1990, Marshall Boxes 499 and 500; Kennedy Akron Center Print #3, Scalia Print #1, and Blackmun Print #1, 19 June 1990, Stevens to Kennedy, 19 June 1990, Brennan to Blackmun, 19 June 1990, Marshall to Blackmun, 20 June 1990, Marshall Box 498.

117. Hodgson v. Minnesota, 497 U.S. 417, 110 Sup. Ct. 2926, 111 L.Ed. 2d 344, 370, 379, 25 June 1990; Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 110 Sup. Ct. 2972, 111 L.Ed.2d 405, 424, 25 June 1990; New York Times, 26 June 1990, pp. A1, A20, 27 June 1990, p. A14; Time, 9 July 1990, pp. 22–27. Also see Anita L. Allen, National Law Journal, 13 August 1990, pp. S8, S14; David J. Zampa, Notre Dame Law Review 65 (1990): 731–780; Savage, Turning Right, pp. 307–313, 342–345; and Judges, Hard Choices, pp. 200–206.

118. New York Times, 10 June 1990, p. 29, 15 June 1990, p. A13, 18 June 1990, p. A18, 24 June 1990, p. 23, 25 June 1990, p. A1, 27 June 1990, p. A14, 28 June 1990, p. A18, 7 July 1990, p. 10, 8 July 1990, p. 10, 9 July 1990, p. A1, 10 July 1990, p. A17, 13 July 1990, p. A9, 21 July 1990, p. A1, 24 July 1990, p. A1, 25 July 1990, p. A1, 28 July 1990, p. A1, 1 August 1990, p. A12, 14 September 1990, p. A1, 19 September 1990, p. A24, 3 October 1990, p. A1, 9 October 1990, pp. A1, A22, 21 October 1990, p. 24, 8 November 1990, p. B10; U.S. Congress, Senate, Committee on the Judiciary, Hearings on the Nomination of David H. Souter, 101st Cong., 2nd sess., 13–19 September 1990, pp. 54, 268–69, 277, and 910–11.

On Louisiana, also see Christine Day, “Abortion and Religious Coalitions: The Case of Louisiana,” in Byrnes and Segers, eds., The Catholic Church and the Politics of Abortion, pp. 105–117. On David Souter, also see Jeff Rosen, The New Republic, 24 September 1990, pp. 20–24; and U.S. Congress, Senate, Committee on the Judiciary, Report—Nomination of David H. Souter to Be an Associate Justice of the United States Supreme Court, 101st Cong., 2nd sess., #101–32, 1 October 1990. More generally, also note Fred Siegel, “Nothing in Moderation,” Atlantic, May 1990, pp. 108, 110; Walter Dellinger, “Should We Compromise on Abortion?” The American Prospect, Summer 1990, pp. 30–37; and Margaret L. McConnell, “Living with Roe v. Wade,” Commentary, November 1990, pp. 34–38, at 36 (“casting abortion as a right takes the weight of morality out of the balance. For, by definition, a right is something one need not feel guilty exercising”).

119. New York Times, 30 January 1988, p. 1, 2 February 1988, p. A12, 7 February 1988, p. IV-7, 14 August 1988, p. 24, 3 November 1989, p. B1, 30 May 1990, p. B6, 9 September 1990, p. 29, 31 October 1990, p. A1; Rust v. Sullivan, 495 U.S. 956, 29 May 1990; “SB” [Scott Brewer], “Bench Memorandum,” Rust v. Sullivan, 24 October 1990, 10pp., Marshall Box 513; Marshall Docket Sheet, Marshall Box 558; Marshall, “Memorandum to the Conference,” 7 November 1990, Rehnquist Print #1, 13 December 1990, Marshall to Rehnquist, 13 December 1990, White to Rehnquist, and Blackmun to Rehnquist, 14 December 1990, Stevens to Rehnquist, 18 December 1990, O’Connor to Rehnquist, 17 January 1991, Scalia to Rehnquist, 7 February 1991, Blackmun Print #1, 7 February 1991, Stevens to Blackmun, 8 February 1991, Marshall to Blackmun, 11 February 1991, White to Rehnquist, 13 February 1991, O’Connor Print #1, 13 February 1991, Kennedy to Rehnquist, 19 February 1991, Rehnquist Print #4, 20 February 1991, White to Rehnquist, 20 February 1991, Scalia to Rehnquist, 22 February 1991, Rehnquist to Souter, 29 April 1991, Stevens Print #1, 3 May 1991, Stevens to Blackmun, 8 May 1991, Souter to Rehnquist, 9 May 1991, Marshall Box 530.

For the lower court decisions in Rust, see 690 F. Supp. 1261 and 889 F.2d. 401 (2d Cir.); for the different holdings in the two other circuits, see Massachusetts v. Secretary of Health and Human Services, 899 F.2d 53 (1st Cir.), and Planned Parenthood Federation of America v. Sullivan, 913 F.2d 1492 (10th Cir.).

120. Rust v. Sullivan, 111 Sup. Ct. 1759, 114 L.Ed.2d 233, 255, 260, 261, 270, 23 May 1991; Washington Post, 24 May 1991, pp. A1, A18; New York Times, 24 May 1991, pp. A1, A18, 25 May 1991, p. A23, 26 May 1991, p. IV-1, 31 May 1991, p. A31, 25 June 1991, p. A23, 26 June 1991, p. A1. Also see Savage, Turning Right, pp. 383–388, 409–412; and Judges, Hard Choices, pp. 207–211.

121. U.S. Army v. Watkins, 111 Sup. Ct. 384, 5 November 1990; Watkins v. U.S. Army, 541 F. Supp. 249 (W.D. Wash.), 18 May 1982; Watkins v. U.S. Army, 551 F. Supp. 212 (W.D. Wash.), 5 October 1982; Watkins v. U.S. Army, 721 F.2d 687 (9th Cir.), 9 December 1983; Watkins v. U.S. Army, 837 F.2d 1428, 1453, 1457 (9th Cir.), 10 February 1988; Watkins v. U.S. Army, 847 F.2d 1329 and 847 F.2d 1362 (9th Cir.), 8 June 1988; Watkins v. U.S. Army, 875 F.2d 699 (9th Cir.), 3 May 1989.

Ben-Shalom v. Stone, 494 U.S. 1004 (cert. denied), 26 February 1990; Ben-Shalom v. Alexander, 489 F. Supp. 964 (E.D. Wis.), 20 May 1980; Ben-Shalom v. Secretary of the Army, 826 F.2d 722 (7th Cir.), 18 August 1987; Ben-Shalom v. Marsh, 690 F. Supp. 774 (E.D. Wis.), 3 August 1988; Ben-Shalom v. Marsh, 703 F. Supp. 1372 (E.D. Wis.), 10 January 1989; Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir.), 7 August 1989.

Concurring in the en banc ruling in Watkins on expressly constitutional grounds, Circuit Judge William A. Norris, acknowledging the influence of a recent article by University of Chicago law professor Cass 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), commented with regard to Bowers that “It is perfectly consistent to say that homosexual sodomy is not a practice so deeply-rooted in our traditions as to merit due process protection, and at the same time to say, for example, that because homosexuals have historically been subject to invidious discrimination, laws which burden homosexuals as a class should be subjected to heightened scrutiny under the equal protection clause. Indeed, the two propositions may be complementary: In all probability, homosexuality is not considered a deeply-rooted part of our traditions precisely because homosexuals have historically been subjected to invidious discrimination.” 875 F.2d at 719. Circuit Judge Harlington Wood, however, writing on behalf of the Ben-Shalom panel, cited Bowers in explicitly rejecting Norris’s contention: “If homosexual conduct may constitutionally be criminalized, then homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny for equal protection purposes.” 881 F.2d at 464.

On Perry Watkins, also see Army Times, 1 December 1971, p. 58; Newsweek, 22 February 1988, p. 55; The New Republic, 7 March 1988, p. 9; New York Times, 4 May 1989, pp. A1, A22, 6 November 1990, p. A16, 31 January 1991, p. C19; and Humphrey, My Country, My Right to Serve, pp. 248–257.

On Miriam Ben-Shalom, also see 807 F.2d 982 (Fed. Cir.), 1986; New York Times, 10 August 1989, p. A14, 27 February 1990, pp. A1, A18; and Humphrey, My Country, pp. 187–193.

Also see generally Rodrick W. Lewis, Nebraska Law Review 68 (1989): 851–866; New York Times, 25 October 1989, p. A24, 21 December 1990, p. B6; John C. Hayes, “The Tradition of Prejudice Versus the Principle of Equality: Homosexuals and Heightened Equal Protection Scrutiny After Bowers v. Hardwick,” Boston College Law Review 31 (March 1990): 375–475; Arthur Leonard, The Nation, 2 July 1990, pp. 12–15; Steffan v. Cheney, 780 F. Supp. 1 (D.D.C.), 9 December 1991; and Thomas B. Stoddard, “Lesbian and Gay Rights Litigation Before A Hostile Federal Judiciary: Extracting Benefit From Peril,” Harvard Civil Rights–Civil Liberties Law Review 27 (Summer 1992): 555–573.

122. Parrillo v. Parrillo, 554 A.2d 1043 (R.I. Sup. Ct.), 7 March 1989; New York Times, 12 March 1989, p. 27; Boston Globe, 10 May 1989, pp. 49, 53; Parrillo v. Parrillo, 493 U.S. 954 (cert. denied), 6 November 1989; Schochet v. State, 541 A.2d 183, 188–89, 194–95, 197 (Md. Ct. Spec. App.), 19 May 1988; Mark Cohen, Baltimore Magazine, September 1989, pp. 9–10; Washington Post, 28 April 1990, pp. B1, B3; Schochet v. State, 580 A.2d 176, 183 (Md. Ct. App.), 9 October 1990.

123. State v. Morales, 826 S.W.2d 201, 204 (Tex. Ct. App.), 11 March 1992; 35 Tex. Sup. Ct. J. 1117; Commonwealth v. Wasson, 842 S.W.2d 487, 491, 502, 512, 514, 518 (Ky. Sup. Ct.), 24 September 1992; New York Times, 25 September 1992, p. A13. See also Commonwealth v. Wasson, 785 S.W.2d 67 (Ky. Ct. App.), 1990; Harvard Law Review 106 (April 1993): 1370–1375; Shirley A. Wiegand and Sara Farr, “Part of the Moving Stream: State Constitutional Law, Sodomy, and Beyond,” Kentucky Law Journal 81 (1993): 449–482; note as well Thomas P. Lewis, “Commonwealth v. Wasson: Invalidating Kentucky’s Sodomy Statute,” and John C. Roach, “Rule of Men,” Kentucky Law Journal 81 (1993): 423–448 and 483–510.

124. New York Times, 21 January 1991, p. Al8, 23 January 1991, p. A16, 17 February 1991, p. 28, 26 February 1991, p. A21, 15 May 1991, p. A22, 5 June 1991, p. A18, 6 June 1991, p. A21, 15 June 1991, p. 9, 19 June 1991, p. A1, 20 June 1991, pp. A1, A18, 21 June 1991, p. A11, 30 July 1991, p. A16, 3 August 1991, p. 8, 4 August 1991, p. 20, 6 August 1991, p. A14, 7 August 1991, p. A10, 8 August 1991, p. A16, 9 August 1991, p. A1, 10 August 1991, p. 6, 11 August 1991, p. 16, 12 August 1991, p. A1, 13 August 1991, p. A13, 14 August 1991, p. A16, 18 August 1991, p. 23, 20 August 1991, p. A20, 21 August 1991, p. A20, 22 August 1991, p. A22, 25 August 1991, p. 26, 26 August 1991, p. A14, 27 August 1991, p. A17, 28 August 1991, p. A14, 30 August 1991, p. A19, 31 August 1991, p. 10, 8 September 1991, p. 18; Marshall Docket Sheet (#90–985), Marshall Box 562; Kennedy, “Memorandum to the Conference,” 19 February 1991, Marshall Box 524; Bray v. Alexandria Women’s Health Clinic, 111 Sup. Ct. 1070, 25 February 1991.

For the lower court decisions in Bray, see National Organization for Women v. Operation Rescue, 726 F. Supp. 1483 (E.D. Va.), 1989, and National Organization of Women v. Operation Rescue, 914 F.2d 582 (4th Cir.), 1990. On Louisiana, also see Ruth Colker, “Reflections on Abortion: A Roll of the Dice in Louisiana,” SMU Law Review 46 (Summer 1992): 47–55.

Also generally see Jeff Rosen, The New Republic, 1 July 1991, pp. 19–20; Ronald Dworkin, New York Review of Books, 18 July 1991, pp. 23–28; The New Republic, 7 October 1991, pp. 7–8; and Susan Faludi, Backlash (New York: Crown Publishers, 1991), pp. 400–402.

125. New York Times, 28 June 1991, p. A1, 2 July 1991, p. A1, 3 July 1991, p. A1, 11 September 1991, p. A1, 12 September 1991, p. A1, 14 September 1991, p. 7, 20 September 1991, p. A17, 16 October 1991, p. A1; Washington Post, 4 July 1991, p. A12. The object of Thomas’s praise was Lewis E. Lehrman. See Lehrman, “The Right to Life and the Restoration of the American Republic,” National Review, 29 August 1986, pp. 25–28, and Lehrman, “Natural Right and the Right to Life,” American Spectator, April 1987, pp. 21–23.

126. New York Times, 17 October 1991, pp. A1, A20, 22 October 1991, p. A1, 8 November 1991, p. A1, 22 November 1991, p. A16, 10 December 1991, p. A29, 13 December 1991, p. B12, 18 December 1991, p. A28, 29 December 1991, p. 17, 22 January 1992, pp. A1, A17, 23 January 1992, pp. A1, A18, 24 January 1992, p. A12, 5 March 1992, p. A16, 6 April 1992, pp. A1, B8, 7 April 1992, p. A25, 17 April 1992, p. A13; Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir.), 21 October 1991; Washington Post, 15 December 1991, p. A14, 22 January 1992, pp. A1, A4, 26 January 1992, pp. A8, A9, 31 March 1992, p. A15, 6 April 1992, pp. A1, A20, 7 April 1992, p. A22, 17 April 1992, pp. A1, A10; Planned Parenthood v. Casey, 112 Sup. Ct. 931, 21 January 1992, 112 Sup. Ct. 1554, 30 March 1992; Wall Street Journal, 22 January 1992, p. A16, 15 April 1992, p. A22; Guam Society of Obstetricians and Gynecologists v. Ada, 962 F.2d 1366 (9th Cir.), 16 April 1992.

127. Transcript of Oral Argument, Planned Parenthood of Southeastern Pennsylvania v. Casey, 22 April 1992, pp. 1, 2, 3, 8, 14, 18; New York Times, 20 April 1992, pp. A1, B11, 23 April 1992, pp. A1, B10, B11, 24 April 1992, pp. A1, A17, B7, 27 April 1992, p. A14; Washington Post, 22 April 1992, pp. A1, A7, A19, 23 April 1992, pp. A1, A12, A13; Newsweek, 27 April 1992, pp. 44–47. Also see Leon Friedman, ed., The Supreme Court Confronts Abortion (New York: Farrar, Straus & Giroux, 1993), pp. 311–338.

128. The New Republic, 18 May 1992, p. 7; Bray v. Alexandria Women’s Health Clinic, 112 Sup. Ct. 2935, 8 June 1992; New York Times, 9 June 1992, pp. A1, A21; Washington Post, 9 June 1992, pp. A1, A6.

Also see generally Mark Clements, “Should Abortion Remain Legal?,” Parade Magazine, 17 May 1992, pp. 4–5; Katha Pollitt, The Nation, 25 May 1992, pp. 718–726; and New York Times, 19 June 1992, p. A16.

129. Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 Sup. Ct. 2791, 120 L.Ed.2d 674, 693, 694, 695, 697, 698, 699, 701–02, 703, 704, 708–09, 710, 711–12, 714–15, 719–20, 721, 29 June 1992. Regarding the composition of the trio opinion in Casey, see especially David G. Savage, Los Angeles Times, 13 December 1992, p. A1, and Paul M. Barrett, Wall Street Journal, 2 February 1993, pp. A1, A6. Also note Legal Times, 6 July 1992, p. 21; Richard C. Reuben, Los Angeles Daily Journal, 21 August 1992, p. 1; Rowland Evans and Robert Novak, New York Post, 4 September 1992, p. 25; Linda Greenhouse, New York Times, 25 October 1992, pp. 1, 31; Richard C. Reuben, “Man in the Middle,” and Terry Carter, “Crossing the Rubicon,” California Lawyer 12 (October 1992): 35–40 and 103–104; and Terry Eastland, “The Tempting of Justice Kennedy,” American Spectator, February 1993, pp. 32–37. The best present indications are that Justice Kennedy, after indicating at the April 24 Casey conference that he would join a Rehnquist majority to uphold the Pennsylvania regulations but not to void Roe, subsequently decided, following the circulation of a first draft of Rehnquist’s ostensible majority opinion, that he would instead join with Souter and O’Connor in their separate statement. When the joint opinion was first distributed, Savage reports “Rehnquist and Scalia were stunned. So, too, was Blackmun.” Carter, visiting with Kennedy the morning of Casey’s announcement, quotes the justice as wistfully observing that “Sometimes you don’t know whether you’re Caesar about to cross the Rubicon, or Captain Queeg cutting your own tow line,” just a few moments before the decision was announced.

130. Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 Sup. Ct. 2791, 120 L.Ed.2d 674, 758, 763, 764, 765, 772, 773, 29 June 1992.

131. Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 Sup. Ct. 2791, 120 L.Ed.2d 674, 782, 785, 786, 787, 788–89, 790, 792, 797, 29 June 1992.

132. Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 Sup. Ct. 2791, 120 L.Ed.2d 674, 738, 744, 746, 747, 748, 756, 758, 29 June 1992.

133. New York Times, 30 June 1992, pp. A1, A15–A18, A22, 1 July 1992, pp. A1, A12, A17, 3 July 1992, pp. A1, A16; Washington Post, 30 June 1992, pp. A1, A9–A10, A18; Wall Street Journal, 30 June 1992, pp. A1, A4; Dworkin, “The Center Holds!,” New York Review of Books, 13 August 1992, pp. 29–33; Bork, New York Times, 8 July 1992, p. A19; The New Republic, 27 July 1992, p. 7.

Also see Garrow, “A Landmark Decision,” Dissent 39 (Fall 1992): 427–429; Anita L. Allen, “Autonomy’s Magic Wand: Abortion and Constitutional Interpretation,” Boston University Law Review 72 (September 1992): 683–698; Center for Reproductive Law and Policy, An Analysis of Planned Parenthood v. Casey, November 1992, 12pp.; Wendy K. Mariner, “The Supreme Court, Abortion, and the Jurisprudence of Class,” American Journal of Public Health 82 (November 1992): 1556–62; Kathleen M. Sullivan, “Foreword: The Justices of Rules and Standards,” Harvard Law Review 106 (November 1992): 24–123, at 27–34; Harvard Law Review 106 (November 1992): 201–210; Charles Krauthammer, Washington Post, 4 December 1992, p. A31; Sylvia A. Law, “Abortion Compromise: Inevitable and Impossible,” University of Illinois Law Review 1992: 921–941, at 926–932; Earl M. Maltz, “Abortion, Precedent, and the Constitution,” Notre Dame Law Review 68 (1992): 11–32; Teresa L. Scott, “Burying the Dead: The Case Against Reviving Pre-Roe and Pre-Casey Abortion Statutes in a Post-Casey World,” New York University Review of Law and Social Change 19 (1992): 355–389; David Capper, “Judging the United States Supreme Court: An Outsider’s View of the Right of Privacy,” University of Detroit Mercy Law Review 69 (1992): 545–579, at 562–565; Michael J. Gerhardt, “The Pressure of Precedent: A Critique of the Conservative Approaches to Stare Decisis in Abortion Cases,” Constitutional Commentary 10 (Winter 1993): 67–86; Martha A. Field, “Abortion Law Today,” Journal of Legal Medicine 14 (March 1993): 3–24; Janet Benshoof, “Planned Parenthood v. Casey,” Journal of the American Medical Association 269 (5 May 1993): 2249–2257; Ronald Dworkin, Life’s Dominion (New York: Alfred A. Knopf, 1993), p. 169; and Judges, Hard Choices, pp. 224–252.

134. Ada v. Guam Society of Obstetricians and Gynecologists, 113 Sup. Ct. 633, 30 November 1992; New York Times, 1 December 1992, pp. A1, A22; Washington Post, 1 December 1992, pp. A1, A9; Wall Street Journal, 1 December 1992, p. A2. Also note Jane L. v. Bangerter, 809 F. Supp. 865 (D. Utah), 17 December 1992.

135. Barnes v. Moore, 113 Sup. Ct. 656, 7 December 1992, denying certiorari to 970 F.2d 12 (5th Cir.), 17 August 1992; New York Times, 13 October 1992, p. A14, 8 December 1992, p. A22; Washington Post, 8 December 1992, pp. A1, A15. Also see Barnes v. Mississippi, 992 F.2d 1335 (5th Cir.), 26 May 1993 (upholding a parental consent law), cert. denied, 510 U.S. 976, 15 November 1993, and New York Times, 30 May 1993, p. 28.

136. Edwards v. Sojourner T., 113 Sup. Ct. 1414, 8 March 1993, denying certiorari to Sojourner T. v. Edwards, 974 F.2d 27 (5th Cir.), 22 September 1992; New York Times, 23 September 1992, p. A25, 23 December 1992, p. B6, 9 March 1993, p. A13; Washington Post, 9 March 1993, p. A8; Fargo Women’s Health Organization v. Sinner, 819 F. Supp. 862 (D.N.D.), 19 February 1993; Fargo Women’s Health Organization v. Schafer, 819 F. Supp. 865 (D.N.D.), 9 March 1993; Fargo Women’s Health Organization v. Schafer, 113 Sup. Ct. 1668, 2 April 1993; New York Times, 3 April 1993, p. 8. Justice O’Connor, in a brief comment in the Fargo case joined only by Justice Souter, reiterated that “a law restricting abortions constitutes an undue burden, and hence is invalid, if, ‘in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.’”

137. Bray v. Alexandria Women’s Health Clinic, 113 Sup. Ct. 753, 122 L.Ed. 34, 94, 101, 13 January 1993; New York Times, 7 October 1992, p. A14, 13 January 1993, p. A21, 14 January 1993, pp. A1, D24–D25; Washington Post, 7 October 1992, p. A14, 14 January 1993, pp. A1, A10. Also see NOW v. Scheidler, 968 F.2d 612 (7th Cir.), 29 June 1992, cert. granted, 113 Sup. Ct. 2958, 14 June 1993; see as well New York Times, 20 January 1993, p. A16, 15 June 1993, p. A22; and Washington University Law Quarterly 71 (Spring 1993): 175–187.

138. New York Times, 23 January 1993, pp. 1, 10, 6 March 1993, p. 6, 11 March 1993, pp. A1, B10, 12 March 1993, pp. A1, A17, A28–A29, 13 March 1993, p. 6, 14 March 1993, p. 24, 19 March 1993, p. A12, 30 March 1993, p. A21, 20 August 1993, p. A12, 21 August 1993, p. 5, 22 August 1993, p. 29, 24 August 1993, p. A10, 28 August 1993, pp., 1, 8, 29 August 1993, p. 24, 5 September 1993, p. 31; Washington Post, 23 January 1993, pp. A1, A9, 11 March 1993, pp. A1, A4, 12 March 1993, pp. A1, A4, 13 March 1993, pp. A20, A21, B1, B5, 15 March 1993, p. A11, 8 April 1993, pp. A1, A16, A17; 24 August 1993, p. A4, 5 September 1993, p. A31, Dallas Morning News, 13 March 1993, pp. A29, A32, A33, 19 March 1993, pp. A29, A33, 20 March 1993, pp. A33, A34, 25 March 1993, pp. A31, A36, 7 July 1993, pp. A1, A25; Newsday, 25 March 1993, p. 95; Karen Houppert, “John Burt’s Holy War,” Village Voice, 6 April 1993, pp. 27–31. With some understatement, Price added that “I have never been treated this way by supporters of abortion.” On the earlier Pensacola terrorism, see Blanchard and Prewitt, Religious Violence and Abortion, passim.

EPILOGUE

1. This author first voiced this interpretation in the immediate aftermath of the Lowney and Nichols murders. See Garrow, “A Deadly, Dying Fringe,” New York Times, 6 January 1995, p. A27. Also see New York Times, 12 September 1993, p. 31, and 30 September 1993, p. A16.

General 1993 and later treatments of the abortion issue whose particular contributions are not otherwise specifically noted below include Jane B. Wishner, ed., Abortion and the States: Political Change and Future Regulation (Chicago: American Bar Association, 1993) [a volume whose contributions were already well dated by the time of its publication]; Malcolm L. Goggin, ed., Understanding the New Politics of Abortion (Newbury Park, CA: Sage Publications, 1993); Ruth Colker, Pregnant Men: Practice, Theory, and the Law (Bloomington: Indiana University Press, 1994); Neal Devins, ed., Federal Abortion Politics: A Documentary History, 3 vols. (New York: Garland Publishing, 1995); Ian Shapiro, ed., Abortion: The Supreme Court Decisions (Indianapolis: Hackett Publishing Co., 1995); Barbara M. Yarnold, Abortion Politics in the Federal Courts (Westport, CT: Praeger, 1995) [a slim volume whose content actually predates the 1992 Casey decision]; Jenni Parrish, ed., Abortion Law in the United States, 3 vols. (New York: Garland Publishing, 1995) [an unremarkable collection of reprints); Karen O’Connor, No Neutral Ground? Abortion Politics in an Age of Absolutes (Boulder, CO: Westview Press, 1996); Marianne Githens and Dorothy M. Stetson, eds., Abortion Politics (New York: Routledge, 1996) [a mostly comparative volume]; Neal Devins, Shaping Constitutional Values: Elected Government, the Supreme Court, and the Abortion Debate (Baltimore: Johns Hopkins University Press, 1996); Mark A. Graber, Rethinking Abortion: Equal Choice, the Constitution, and Reproductive Politics (Princeton: Princeton University Press, 1996); Janet Hadley, Abortion: Between Freedom and Necessity (Philadelphia: Temple University Press, 1996); Eileen L. McDonagh, Breaking the Abortion Deadlock: From Choice to Consent (New York: Oxford University Press, 1996) [an original and highly provocative perspective that received much less attention than it might have]; Raymond Tatalovich, The Politics of Abortion in the United States and Canada (Armonk, NY: M. E. Sharpe, 1997); and Alison M. Jaggar, “Regendering the U.S. Abortion Debate,” Journal of Social Philosophy 28 (Spring 1997): 127–140.

A small relatively modest number of post-1993 books and articles make substantive contributions to one or more chapters of the earlier history. With regard to the pre-Griswold era, Janet Farrell Brodie’s Contraception and Abortion in Nineteenth-Century America (Ithaca: Cornell University Press, 1994) is an important work; valuable too, and previously uncited, is Simone M. Caron, “Race, Class, and Reproduction: The Evolution of Reproductive Policy in the United States, 1800–1989” (unpublished Ph.D. dissertation, Clark University, 1989). Also note Carole R. McCann, Birth Control Politics in the United States, 1916–1945 (Ithaca: Cornell University Press, 1994) [neither Morris Ernst nor Dorothy Kenyon merit even a mention]; James W. Reed, “The Birth Control Movement Before Roe v. Wade,” Journal of Policy History 7 (1995): 22–52; and, autobiographically, Bill Baird, “The Politics of God, Government, and Sex: A Thirty-one-Year Crusade,” Saint Louis University Public Law Review 13 (1993): 139–182. Also see Beth Bailey’s excellent study of Lawrence, Kansas: “Prescribing the Pill: Politics, Culture, and the Sexual Revolution in America’s Heartland,” Journal of Social History 30 (Summer 1997): 827–856. Doctrinal treatments of Griswold-related privacy and liberty themes are Sheldon Gelman, “‘Life’ and ‘Liberty’: Their Original Meaning, Historical Antecedents, and Current Significance in the Debate Over Abortion Rights,” Minnesota Law Review 78 (February 1994): 585–698; Jeffrey L. Johnson, “Constitutional Privacy,” Law and Philosophy 13 (May 1994): 161–193; David Helscher, “Griswold v. Connecticut and the Unenumerated Right of Privacy,” Northern Illinois University Law Review 15 (Fall 1994): 33–61; and William C. Heffernan, “Privacy Rights,” Suffolk University Law Review 29 (Fall 1995): 737–808. Less valuable are Patricia Boling, “Privacy as Autonomy vs. Privacy as Familial Attachment,” Policy Studies Review 13 (Spring-Summer 1994): 91–100; and Judith Wagner DeCew, In Pursuit of Privacy (Ithaca: Cornell University Press, 1997); also note the previously uncited William E. Coyle, “The Ninth Amendment and The Right to Privacy: The Griswold Case” (unpublished Ph.D. dissertation, Florida State University, 1966).

Regarding the early abortion era, Wolf v. Colorado, 338 U.S. 25 (1949) is a well-known citation for its holding “incorporating” the Fourth Amendment’s prohibition of unreasonable searches or seizures against state governments; previously uncited is the fact that the two defendants, Julius A. Wolf and A. H. Montgomery, had been sentenced to twelve to eighteen months imprisonment for conspiracy to commit abortion: Wolf v. People, 187 P.2d 926 and 928 (Col.S.Ct.), 3 and 24 November 1947. Also to be noted, concerning Liberty and Sexuality’s discussion of the American Law Institute’s 1959 consideration of abortion law reform (pp. 277 and 829 n.18 above), are the Proceedings of the 36th Annual Meeting (Philadelphia: American Law Institute, 1960), pp. 252–282.

The most notable post-1993 book concerning the pre-Roe era is Leslie J. Reagan’s excellent When Abortion Was a Crime: Women, Medicine, and the Law in the United States, 1867–1973 (Berkeley: University of California Press, 1997) [reviewed by this author in the Journal of American History, December 1997, pp. 1091–1092]. Also see Reagan’s “Linking Midwives and Abortion in the Progressive Era,” Bulletin of the History of Medicine 69 (Winter 1995): 569–598, and Rickie Solinger, “Extreme Danger: Women Abortionists and Their Clients Before Roe v. Wade,” in Joanne Meyerowitz, ed., Not June Cleaver: Women and Gender in Postwar America, 1945–1960 (Philadelphia: Temple University Press, 1994), pp. 335–357. Highly disappointing is Solinger’s The Abortionist: A Woman Against the Law (New York: Free Press, 1994), concerning Portland’s Ruth Barnett Bush; see Regina Morantz Sanchez’s evaluation in the New York Times Book Review, 6 November 1994, p. 29. Leslie Reagan’s work underscores how many mainstream physicians quietly provided illegal abortions to needy women; it also conclusively disproves the claim voiced by antiabortion activist Clarke D. Forsythe that “abortion laws can be successfully enforced, and abortion can be contained.” See Forsythe, “The Effective Enforcement of Abortion Law Before Roe v. Wade,” in Brad Stetson, ed., The Silent Subject: Reflections on the Unborn in American Culture (Westport, CT: Praeger, 1996), pp. 179–227, at 206. Also simply note Kathryn Ann Farr, “Shaping Policy Through Litigation: Abortion Law in the United States,” Crime & Delinquency 39 (April 1993): 167–183, and Mark A. Graber, “The Ghost of Abortion Past: Pre-Roe Abortion Law in Action,” Virginia Journal of Social Policy and the Law 1 (Spring 1994): 309–381. Rosemary A. Nossiff, “Abortion Policy in New York and Pennsylvania, 1965–1972” (unpublished Ph.D. dissertation, Cornell University, 1994), is enriched by interviews with a number of New York political participants. Poorly informed in the extreme is Christopher Z. Mooney and Mei-Hsien Lee, “Legislating Morality in the American States: The Case of Pre-Roe Abortion Regulation Reform,” American Journal of Political Science 38 (August 1995): 599–627. Forthcoming work by Gene Burns promises to be of vastly superior quality and will also address Mississippi’s 1966 addition of a rape exception, noted above here at p. 852 n.50; see also Jackson Clarion-Ledger, 10 March 1966, pp. A1, A16, and 19 May 1966, p. A18.

Two previously uncited films, Dorothy Fadiman, When Abortion Was Illegal: Untold Stories (Santa Monica: Direct Cinema, 1992), and Daniel Friedman and Sharon Grimberg, Back Alley Detroit: Abortion Before Roe v. Wade (New York: Filmakers Library, 1992), offer brief portraits of the earlier era. Also note Fadiman’s two subsequent sequels, From Danger to Dignity: The Fight for Safe Abortion (Menlo Park: Concentric Media, 1995) and The Fragile Promise of Choice: Abortion in the United States Today (Menlo Park: Concentric Media, 1996). Carole Joffe’s invaluable Doctors of Conscience: The Struggle to Provide Abortion Before and After Roe v. Wade (Boston: Beacon Press, 1995) would be even more valuable were not most of the physician’s identities—excepting Jane Hodgson—masked by pseudonyms. Knowledgeable readers will recognize “David Bennett” (pp. 86–95) as Curtis Boyd; see Curtis Boyd, “The Morality of Abortion: The Making of a Feminist Physician,” Saint Louis University Public Law Review 13 (1993): 303–314. Also see Joffe, “The Unending Struggle for Legal Abortion: Conversations With Jane Hodgson,” Journal of the American Medical Women’s Association 49 (September-October 1994): 160–163, and Hodgson’s own wonderfully autobiographical “The Twentieth-Century Gender Battle,” in Rickie Solinger, ed., Abortion Wars (Berkeley: University of California Press, 1998), pp. 290–306. Chicago’s unique abortion organization is detailed in Charles R. King, “Calling Jane: The Life and Death of a Women’s Illegal Abortion Service,” Women & Health 20 (1993): 75–93, and in Laura Kaplan, The Story of Jane: The Legendary Underground Feminist Abortion Service (New York: Pantheon Books, 1996), which unfortunately suffers badly both from the use of pseudonyms and the absence of any footnotes.

Lawrence Lader adds some further autobiographical reflections in A Private Matter: RU486 and the Abortion Crisis (Amherst, NY: Prometheus Books, 1995), as does Bernard Nathanson in The Hand of God (Washington, D.C.: Regnery Publishing, 1996). When the hardback edition of this book appeared, Roy Lucas told me, “I’m horrified at myself when I relive and rethink some of my abusive behavior toward Sarah [Weddington] and Margie [Hames]. I think I got really, really carried away over the fear of losing that hospitalization requirement issue [in Doe v. Bolton] that they were so totally disinterested in and seemingly unprepared on and I guess in retrospect looking back on it I sure should have had an awful lot more tact back in those days.” Lucas to Garrow, 8 January 1994. Also see Rhett Lucas, “New Painting Surfaces for a New Age,” American Artist, February 1995, pp. 52–55. Useful commentary on the female attorneys who litigated Abele v. Markle appears in Amy Kesselman’s essay, “Women versus Connecticut,” in Rickie Solinger, ed., Abortion Wars (Berkeley: University of California Press, 1998), pp. 42–67.

Regarding events inside the Supreme Court, note John C. Jeffries, Jr.’s Justice Lewis F. Powell, Jr. (New York: Charles Scribner’s Sons, 1994) [stating at p. 341 that Powell “later said privately that the abortion opinions were ‘the worst opinions I ever joined’”], but not all particulars can be relied upon, e.g., the claim (p. 356) that the abortion issue “barely surfaced” during the 1972 presidential campaign. Jeffries’s book contains a significant discussion of Bowers v. Hardwick (pp. 511–530), but likewise errs (pp. 520 and 527) in failing to note Hardwick’s jailing, claiming, “He had not been punished at all.”

Thurgood Marshall clerk Mark Tushnet, in a modest volume entitled Abortion (New York: Facts on File, 1996), addresses his authorship of Marshall’s 12 December 1972 letter by saying (p. viii) that “Marshall, after learning that Justices William Brennan and Potter Stewart had been expressing some concern about Justice Harry Blackmun’s proposed opinion, decided to send Blackmun a letter saying that he agreed with what he understood to be their concerns.” Tushnet adds (p. 71) that the letter “had been discussed with Justice Brennan’s law clerks”; Tushnet also was questioned about the Marshall letter by Representative Henry Hyde in U.S. Congress, House of Representatives, Committee on the Judiciary, Origins and Scope of Roe v. Wade—Hearings Before the Subcommittee on the Constitution, 104th Cong., 2nd sess., 22 April 1996, pp. 119–120.

Byron White clerk Richard Hoffman, in an unprecedented interview with CNN for “Roe Versus Wade Plus 25,” a 22 January 1998 broadcast, described a heated personal exchange between himself and the justice: “We were standing by his fireplace and standing right next to each other … and we went at it. I just felt … that it was a question of personal liberty of the woman … and he felt there was no constitutional warrant to do what the court was doing.… We were kind of screaming at each other.”

Harry Blackmun OT 1971 clerk George Frampton, in an interview on that same CNN broadcast, attributed Warren Burger’s vote in Roe to Blackmun’s influence: “In the end, Justice Blackmun, who really worked on the chief justice to do this, ended up swaying the chief justice rather than vice versa, and it may be simply that the chief justice did not want to be on the wrong side of history.”

Harry Blackmun clerk Randall P. Bezanson discusses his OT 1972 experience in “Self-Reliance,” North Dakota Law Review 71 (1995): 29–40; also note Bezanson’s “Emancipation as Freedom in Roe v. Wade,” Dickinson Law Review 97 (Spring 1993): 485–512, at 511 (“Freedom is what Justice Blackmun had in mind in Roe”). Last, with particular reference to William J. Brennan’s role, see my own essay, “Reproductive Rights and Liberties: The Long Road to Roe,” in E. Joshua Rosenkranz and Bernard Schwartz, eds., Reason and Passion: Justice Brennan’s Enduring Influence (New York: W. W. Norton & Co., 1997), pp. 105–116.

Two impressive books for younger readers make much of Liberty and Sexuality’s story available to secondary school students: Leonard A. Stevens, The Case of Roe v. Wade (New York: G. P. Putnam’s Sons, 1996), and Nancy Tompkins, Roe v. Wade (Danbury, CT: Franklin Watts, 1996). Anyone tempted to make use of Peter Irons’s May It Please the Court: Arguments on Abortion (New York: New Press, 1995) had best beware; see Edward Lazarus, “Electronic Hash,” Atlantic Monthly, October 1994, pp. 36–41, and Lazarus, Los Angeles Times Book Review, 10 August 1997, p. 12.

Regarding post-Roe events, Jack E. Rossotti et al., “Nonlegal Advice: The Amicus Briefs and Webster v. Reproductive Health Services,” Judicature 81 (November-December 1997): 118–121, is helpful; Edward Lazarus’s Closed Chambers (New York: Times Books, 1998), pp. 459–486, presents the most comprehensively suggestive history of Casey.

Concerning Liberty and Sexuality itself, out of some sixty-odd book reviews a number are worth noting because of the reviewers’ own expertise: Kristin Luker, New York Times Book Review, 20 February 1994, pp. 7–8; Linda Gordon, Los Angeles Times Book Review, 27 February 1994, pp. 3, 13; Marian Faux, Newsday, 23 January 1994, pp. 35, 40; Suzanna Sherry, Washington Post Book World, 13 February 1994, p. 4; Sheila Kuehl, California Lawyer (January 1994): 64–65; Anita L. Allen, Christian Science Monitor, 4 April 1994, p. 15; Jeffrey Rosen, Atlantic Monthly, May 1994, pp. 121–127; Kathleen M. Sullivan, New Republic, 23 May 1994, pp. 42–46; Simon Heller, The Lancet, 18 June 1994, pp. 1555–1556; Leslie F. Goldstein, Constitution (Spring 1994): 95–96; R. Alta Charo, Family Planning Perspectives (July-August 1994): 181–182; Gerald N. Rosenberg, Contemporary Sociology (September 1994): 656–658; Laura Kalman, Reviews in American History (December 1994): 725–731; Donald T. Critchlow, Journal of American History (March 1995): 1662–1663, Neal Devins, Michigan Law Review (May 1995): 1433–1459; Robin West, Law and History Review (Fall 1995): 433–437; Mark Tushnet, Journal of Interdisciplinary History (Autumn 1995): 356–357; and James C. Mohr, Journal of Women’s History (Spring 1996): 172–184.

Reviews that fundamentally disagree with Liberty and Sexuality’s evaluation of Griswold and Roe range from the professional (James R. Kelly, America, 31 December 1994, pp. 26–27) to the hostile (Alan Freeman and Elizabeth Mensch, Commonweal, 21 October 1994, pp. 19–23) to the hilarious (Robert A. Destro, Human Life Review [Summer 1994]: 28–48). Also see Michael M. Uhlmann, First Things (August-September 1994): 52–55; Brenan Nierman, Perspectives in Political Science (Winter 1995): 43–44; and Robert J. McKeever, Society (September-October 1996): 81–83.

2. National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 262 (24 January 1994). Also see NOW, Inc. v. Scheidler, 25 F.3d 1053 (7th Cir.), 16 May 1994, cert. denied sub nom. Scheidler v. Delaware Women’s Health Organization, 513 U.S. 1058, 12 December 1994; NOW, Inc. v. Scheidler, 897 F.Supp. 1047 (N.D. Ill.), 25 July 1995; NOW, Inc. v. Scheidler, 172 F.R.D. 351, 363 (N.D. Ill.), 31 March 1997; New York Times, 9 December 1993, p. A18, 25 January 1994, pp. A1, A17, 30 January 1994, p. IV-4, 13 December 1994, p. B11, 21 April 1998, pp. A1, A15; Chicago Daily Law Bulletin, 17 April 1997, p. 3; and Chicago Tribune, 21 April 1998, p. 1. Similarly note Libertad v. Welch, 53 F.3d 428 (1st Cir.), 28 April 1995, and Susan L. Ronn, “‘FACE’-ing RICO: A Remedy for Antiabortion Violence?” Seattle University Law Review 18 (Winter 1995): 357–387.

3. New York Times, 21 February 1994, p. A10, 22 February 1994, p. A17, 28 February 1994, p. A13, 1 March 1994, p. A20, 2 March 1994, p. A13, 3 March 1994, p. A14, 4 March 1994, p. A20, 5 March 1994, p. 6, 6 March 1994, p. 20, and 7 March 1994, p. A15. Also see Craig Vetter, “Death at the Clinic Door,” Playboy, July 1994, pp. 108ff.

4. New York Times, 26 March 1994, p. 7, 27 April 1994, p. A12, 18 June 1995, pp. 1, 18, 9 September 1995, p. 7; Washington Post, 26 April 1994, p. A6, 25 October 1994, p. A15, 1 April 1997, p. A4. Also see Peter Korn, “The Mysterious Violence of Shelley Shannon,” Self, March 1997, pp. 98, 103–104, and James Risen and Judy Thomas, Wrath of Angels: The American Abortion War (New York: HarperCollins, 1998), chap. 14; note as well Barbara Radford and Gina Shaw, “Antiabortion Violence: Causes and Effects,” Women’s Health Issues 3 (Fall 1993): 144–151; and Susan G. Mezey et al., “Keeping Abortion Clinics Open,” Policy Studies Review 13 (Spring-Summer 1994): 111–126.

5. New York Times, 16 September 1993, p. A18, 17 November 1993, p. A16, 19 November 1993, p. A16, 6 May 1994, p. A20, 13 May 1994, pp. A1, A22, 25 May 1994, p. B8, 26 May 1994, p. A20, 27 May 1994, p. A18, and 11 June 1994, pp. 1, 9. Also see Deborah R. McFarlane, “U.S. Abortion Policy Since Roe v. Wade,” American Journal of Gynecologic Health 7 (July-August 1993): 17–25. With regard to the interpretation of the 1871 statute at issue in Bray, also see National Abortion Federation v. Operation Rescue, 8 F.3d 680 (9th Cir.), 29 October 1993, and New York Times, 30 October 1993, p. 8.

6. New York Times, 29 September 1993, p. A19, 9 November 1993, p. A15, 25 December 1993, pp. 1, 10, 26 December 1993, p. 23, 28 December 1993, p. D18, 5 January 1994, pp. A1, A12, 7 January 1994, p. A16, 10 January 1994, p. A13, 19 January 1994, p. A12, 26 March 1994, p. 7, 1 April 1994, p. A20, 3 April 1994, p. 15, 7 May 1994, pp. 1, 10, 19 August 1994, p. A18, and 16 September 1994, p. A12; Washington Post, 19 October 1993, p. A4, and 25 December 1993, pp. A1, A7.

On the federal court litigation, see Hern v. Beye, 1994 WL 192366 (D. Col.), 12 May 1994, affirmed 57 F.3d 906 (10th Cir.), 8 June 1995, cert. denied sub nom. Weil v. Hern, 516 U.S. 1011, 4 December 1995; Planned Parenthood Affiliates of Michigan v. Engler, 860 F.Supp. 406 (W.D. Mich.), 18 July 1994, affirmed 73 F.3d 634 (6th Cir.), 16 January 1996; Planned Parenthood of Missoula v. Blouke, 858 F.Supp. 137 (D. Mont.), 19 July 1994; Little Rock Family Planning Services v. Dalton, 860 F.Supp. 609 (E.D. Ark.), 25 July 1994, affirmed 60 F.3d 497 (8th Cir.), 25 July 1995, judgment reversed in part, Dalton v. Little Rock Family Planning Services, 516 US. 474, 18 March 1996; Orr v. Nelson, 902 F.Supp. 1019 and 874 F.Supp. 998, (D. Neb.), 4 November 1994 and 25 January 1995, affirmed 60 F.3d 497 (8th Cir.), 25 July 1995, cert. denied, 516 U.S. 1074, 16 January 1996; and Hope Medical Group for Women v. Edwards, 860 F.Supp. 1149 (E.D. La.), 28 July 1994, application for stay denied, 512 U.S. 1301 (Scalia, Circuit Justice), 17 August 1994, affirmed 63 F.3d 418 (5th Cir.), 11 September 1995, cert. denied sub nom. Foster v. Hope Medical Group for Women, 517 U.S. 1104, 25 March 1996. Also see the subsequent similar rulings in Elizabeth Blackwell Health Center for Women v. Knoll, 1994 WL 512365 (E.D. Pa.), 15 September 1994, affirmed, 61 F.3d 170 (3rd Cir.), 25 July 1995, cert. denied, 516 U.S. 1093, 22 January 1996, Planned Parenthood v. Wright, 1994 WL 750638 (N.D. Ill.), 6 December 1994, Stangler v. Shalala, 1994 WL 764104 (W.D. Mo.), 28 December 1994, Fargo Women’s Health Organization v. Wessman, 1995 WL 465830 (D. N.D.), 15 March 1995, and Utah Women’s Clinic v. Graham, 892 F.Supp. 1379 (D. Ut.), 20 June 1995. Per Dalton, also note Unborn Child Amendment Committee v. Ward, 943 S.W.2d 591 (Ark.S.Ct.), 5 May 1997, Knowlton v. Ward, 889 S.W2d 721 (Ark.S.Ct.), 5 December 1994, and Unborn Child Amendment Committee v. Ward, 883 S.W.2d 817 (Ark.S.Ct.), 3 October 1994.

Also see, for two state constitutionally based holdings prohibiting state authorities in West Virginia and Minnesota from refusing to provide Medicaid funds for medically necessary abortions, Women’s Health Center of West Virginia v. Panepinto, 446 S.E.2d 658 (W.Va.S.Ct.), 17 December 1993 [noted in Washington Post, 18 December 1993, p. A11], and the even broader Women of the State of Minnesota v. Gomez, 542 N.W.2d 17, 31 (Minn.S.Ct.), 15 December 1995 (“the right of privacy under our constitution protects not simply the right to an abortion, but rather it protects the woman’s decision to abort; any legislation infringing on the decision-making process, then, violates this fundamental right”). Also note the Idaho outcome reported in Roe v. Harris, 917 P.2d 403 (Id.S.Ct.), 21 May 1996. For a contrary Michigan state constitutional holding, reversing an affirmative trial court ruling, see Mahaffey v. Attorney General, 564 N.W.2d 104 (Mich.Ct.Apps.), 14 March 1997; for a contrary North Carolina holding, see Rosie J. v. North Carolina Department of Human Resources, 491 S.E.2d 535 (N.C.S.Ct.), 3 October 1997. Also see Linda M. Vanzi, “Freedom at Home: State Constitutions and Medicaid Funding for Abortions,” New Mexico Law Review 26 (Summer 1996): 433–454.

7. On Blackmun’s April 6 announcement, Breyer’s May 13 nomination, and Breyer’s 87–9 Senate approval on July 29, see New York Times, 7 April 1994, p. A1, 10 April 1994, p. IV-3, 14 May 1994, p. 1, and 30 July 1994, p. 1. Also see Garrow, “Blackmun’s Journey Toward Feminism,” Boston Globe, 10 April 1994, pp. 69, 72; Susie Blackmun, “Roe v. Wade: Its Impact Upon the Author and His Family,” Conscience 18 (Winter 1997–1998): 17–18; and Tony Mauro’s excellent profile, USA Today, 20 January 1998, p. A3. Breyer in his Senate confirmation hearing testimony, U.S. Congress, Senate, Committee on the Judiciary, Nomination of Stephen G. Breyer to be an Associate Justice of the Supreme Court of the United States—Hearings, 103rd Cong., 2nd sess., 12–15 July 1994, twice addressed Roe and Casey (pp. 138 and 268–269); he also briefly commented on his involvement with Griswold (pp. 200–201). On the Casey decision, also see my 1994 profile of David H. Souter, “Justice Souter: A Surprising Kind of Conservative,” New York Times Magazine, 25 September 1994, pp. 36–43ff., and my essay “From Brown to Casey: The U.S. Supreme Court and the Burdens of History,” in Austin Sarat, ed., Race, Law, and Culture (New York: Oxford University Press, 1997), pp. 74–88, which also appears in Neal Devins and Davison M. Douglas, eds., Redefining Equality (New York: Oxford University Press, 1997), pp. 205–217.

On White’s 1993 retirement and Ginsburg’s nomination and 96-to-3 confirmation by the Senate, see New York Times, 20 March 1993, p. 1, 15 June 1993, p. A1, and 4 August 1993, p. A1. Ginsburg addressed Roe and/or Casey at five different junctures during her three days of Senate confirmation hearing testimony; see U.S. Congress, Senate, Committee on the Judiciary, Nomination of Ruth Bader Ginsburg to be Associate Justice of the Supreme Court of the United States—Hearings, 103rd Cong., 1st sess., 20–23 July 1993, pp. 148–150, 207–208, 242–244, 270–274, and 302. Concerning her earlier criticisms of Blackmun’s opinions in Roe and Doe, also see Garrow, “History Lesson for the Judge: What Clinton’s Supreme Court Nominee Doesn’t Know About Roe,” Washington Post, 20 June 1993, p. C3, and Rosemary Nossiff, “Why Justice Ginsburg Is Wrong About States Expanding Abortion Rights,” PS 27 (June 1994): 227–231.

Also passing more permanently from the scene that summer was another major figure in Roe and Doe, Margie Pitts Hames, who died unexpectedly in Atlanta at age sixty. See Atlanta Journal-Constitution, 20 July 1994, p. A1, 21 July 1994, p. C6, 22 July 1994, p. A14, and New York Times, 22 July 1994, p. B18.

Worthwhile commentaries on the Casey decision that postdate the immediate surge of 1992–1993 responses include James Boyd White, Acts of Hope (Chicago: University of Chicago Press, 1994), pp. 153–183 [“this opinion enhances the dignity of the Court and the nation alike,” p. 179]; Tom R. Tyler and Gregory Mitchell, “Legitimacy and the Empowerment of Discretionary Legal Authority: The United States Supreme Court and Abortion Rights,” Duke Law Journal 43 (February 1994): 703–815; Alan Brownstein, “How Rights Are Infringed: The Role of Undue Burden Analysis in Constitutional Doctrine,” Hastings Law Journal 45 (April 1994): 867–959; Patricia A. Sullivan and Steven R. Goldzwig, “A Relational Approach to Moral Decision-making: The Majority Opinion in Planned Parenthood v. Casey,” Quarterly Journal of Speech 81 (May 1995): 167–190; Christina E. Wells, “Abortion Counseling as Vice Activity: The Free Speech Implications of Rust v. Sullivan and Planned Parenthood v. Casey,” Columbia Law Review 95 (November 1995): 1724–1764; Sarah Stroud, “Dworkin and Casey on Abortion,” Philosophy & Public Affairs 25 (Spring 1996): 140–170 (especially at pp. 166–169 concerning Casey’s all-but-forgotten invocation of “purpose” as well as “effect” in establishing its undue burden/substantial obstacle test); and Robert D. Goldstein, “Reading Casey: Structuring the Woman’s Decision-making Process,” William and Mary Bill of Rights Journal 4 (Summer 1996): 787–880.

Also note Kathryn Kolbert and David H. Gans, “Responding to Planned Parenthood v. Casey: Establishing Neutrality Principles in State Constitutional Law,” Temple Law Review 66 (Winter 1993): 1151–1170; Robin L. West, “The Nature of the Right to an Abortion,” Hastings Law Journal 45 (April 1994): 961–967; Anita L. Allen, “The Proposed Equal Protection Fix for Abortion Law,” Harvard Journal of Law & Public Policy 18 (Spring 1995): 419–455; and, from the other side of the street, Basile J. Uddo, “The Public Law of Abortion: A Constitutional and Statutory Review of the Present and Future Legal Landscape,” in R. Randall Rainey and Gerard Magill, eds., Abortion and Public Policy (Omaha: Creighton University Press, 1996), pp. 163–182 (especially at p. 179: “we may have seen all that Casey will allow in those provisions of the Pennsylvania law upheld.”)

Less notable are Gillian E. Metzger, “Unburdening the Undue Burden Standard: Orienting Casey in Constitutional Jurisprudence,” Columbia Law Review 94 (October 1994): 2025–2089; Valerie J. Pacer, “Salvaging the Undue Burden Standard—Is It a Lost Cause?” Washington University Law Quarterly 73 (Spring 1995): 295–332; Erin Daly, “Reconsidering Abortion Law: Liberty, Equality, and the New Rhetoric of Planned Parenthood v. Casey,” American University Law Review 45 (October 1995): 77–150; and John C. Ford, “The Casey Standard for Evaluating Facial Attacks on Abortion Statutes,” Michigan Law Review 95 (March 1997): 1443–1471.

Of little if any utility are Sullivan and Goldzwig, “Abortion and Undue Burdens: Justice Sandra Day O’Connor and Judicial Decision-making,” Women & Politics 16 (1996): 27–54, and Katherine E. Sheehan, “Toward a Jurisprudence of Doubt,” UCLA Women’s Law Journal 7 (Spring-Summer 1997): 201–262.

8. For the post-Supreme Court litigation, see Planned Parenthood of Southeastern Pennsylvania v. Casey, 978 F.2d 74 (3rd Cir.), 30 October 1992, on remand, 822 F.Supp. 227 (E.D. Pa.), 12 May 1993, reversed 14 F.3d 848, 861–62, 863 (3rd Cir.), 14 January 1994, application for stay denied, 510 U.S. 1309 (Souter, Circuit Justice), 7 February 1994. Also see New York Times, 15 January 1994, p. 22, 30 January 1994, p. 23, 8 February 1994, p. A10, 9 February 1994, p. A8, 17 February 1994, p. A18, 19 March 1994, p. 9, 22 March 1994, p. A12, 26 September 1994, p. A14; Pittsburgh Post-Gazette, 23 November 1994, p. A1, 24 May 1995 p. A1; and Secretary of the Commonwealth Yvette Kane’s letter in the Harrisburg Patriot, 2 June 1995, p. A10; the in-person requirement was mandated on 23 May 1995. Also note Susan B. Hansen, “What Didn’t Happen: The Implementation of the Casey Abortion Decision in Pennsylvania,” Comparative State Politics 14 (1993): 9–18, and Kathryn Kolbert and Andrea Miller, “Government in the Examining Room: Restrictions on the Provision of Abortion,” Journal of the American Medical Women’s Association 49 (September-October 1994): 153–155. On the North Dakota statute, see Fargo Women’s Health Organization v. Schafer, 18 F.3d 526 (8th Cir.), 10 February 1994, and New York Times, 11 February 1994, p. A11, and 15 March 1997, p. A21.

9. New York Times, 13 October 1993, p. A17, 18 February 1994, pp. A1, A18, 17 March 1994, p. A23, 23 March 1994, p. C12, 17 May 1994, pp. A1, A16, A18, 22 May 1994, p. IV-16, 23 May 1994, p. B6, and 2 June 1994, p. A21; Washington Post, 17 May 1994, p. A1. Also see more generally R. Alta Charo, “A Political History of RU-486,” in Kathi E. Hanna, ed., Biomedical Politics (Washington, D.C.: National Academy Press, 1991), pp. 43–93; Mary Ann Castle and Francine M. Coeytaux, “RU 486 Beyond the Controversy: Implications for Health Care Practice,” Journal of the American Medical Women’s Association 49 (September–October 1994): 156–159, 164; and Beverly Winikoff, “Acceptability of First-Trimester Medical Abortion,” in David T. Baird et al., eds., Modern Methods of Inducing Abortion (Oxford, U.K.: Blackwell Science, 1995), pp. 145–169. See as well John A. Robertson, Children of Choice: Freedom and the New Reproductive Technologies (Princeton: Princeton University Press, 1994), and Janet L. Dolgin, Defining the Family: Law, Technology, and Reproduction in an Uneasy Age (New York: New York University Press, 1997).

10. Madsen v. Women’s Health Center, 512 U.S. 753, 776. The prior lower court rulings are Operation Rescue v. Women’s Health Center, 626 So.2d 664 (Fla.S.Ct.), 28 October 1993, and the conflicting Cheffer v. McGregor, 6 F.3d 705 (11th Cir.), 20 October 1993. The subsequent rulings on remand are 644 So.2d 86 (Fla.S.Ct.), 20 October 1994, and 41 F.3d 1421, 1422 (11th Cir.), 14 December 1994. Also see New York Times, 22 January 1994, p. 6, 28 April 1994, pp. A1, A8, 29 April 1994, p. A7, and 1 July 1994, pp. A1, A17.

Other state court rulings from late 1993 and early 1994, prior to Madsen, that upheld similar antiobstruction injunctions and were also appealed to the High Court were Kaplan v. Prolife Action League of Greensboro, 431 S.E.2d 828 (N.C. Ct.Apps.), 20 July 1993, affirmed 436 S.E.2d 379 (N.C.S.Ct.), 7 October 1993, cert. denied sub nom. Winfield v. Kaplan, 512 U.S. 1253, 30 June 1994 (with Justices Scalia, Kennedy, and Thomas again dissenting); Feminist Women’s Health Center v. Blythe, 22 Cal.Rptr.2d 184 (Cal.App. 3 Dist.), 19 August 1993, vacated and remanded (for further consideration in light of Madsen) sub nom. Reali v. Feminist Women’s Health Center, 512 U.S. 1249, 30 June 1994, on remand, 39 Cal.Rptr.2d 189 (Cal.App. 3 Dist.), 8 March 1995, cert. denied, 516 U.S. 987, 27 November 1995; Murray v. Lawson, 642 A.2d 338 (N.J.S.Ct.), 6 April 1994, vacated and remanded (for further consideration in light of Madsen), 513 U.S. 802, 3 October 1994, modified on remand, 649 A.2d 1253 (N.J.S.Ct.), 1 December 1994, cert. denied, 515 U.S. 1110, 30 May 1995 (with Scalia concurring) [note also New York Times, 7 April 1994, p. B6, and 31 May 1995, p. B7]; Planned Parenthood Shasta-Diablo v. Williams, 851 P.2d 774 and 873 P.2d 1224 (Cal.S.Ct.), 13 May 1993 and 26 May 1994, vacated and remanded (for further consideration in light of Madsen), 513 U.S. 956, 31 October 1994, on remand, 898 P.2d 402 (Cal.S.Ct.), 31 July 1995, cert. denied, 117 S.Ct. 1285, 17 March 1997; and Planned Parenthood League of Massachusetts v. Blake, 631 N.E.2d 985 (Mass.S.J.Ct.), 11 April 1994, cert. denied, 513 U.S. 868, 3 October 1994. Also note the subsequent Commonwealth v. Blake, 654 N.E.2d 64 (Mass.Apps.Ct.), 23 August 1995. See as well State v. Loce, 630 A.2d 792 (N.J.Super.Ct. App.Div.), 30 June 1993, review denied, 636 A.2d 520 (N.J.S.Ct.), 21 October 1993, cert. denied sub nom. Love v. New Jersey, 510 U.S. 1165, 28 February 1994, and U.S. v. Terry, 17 F.3d 575 (2nd Cir.), 25 February 1994 (affirming 815 F.Supp. 728, 10 March 1993), cert. denied, 513 U.S. 946, 17 October 1994 [note also New York Times, 27 February 1994, p. 39, and 18 October 1994, p. A23]. Subsequent U.S. Supreme Court denials of review involving Madsen-like questions are Vittitow v. City of Upper Arlington, 43 F.3d 1100 (6th Cir.), 12 January 1995 [reversing 830 F.Supp. 1077 (S.D. Ohio), 19 August 1993], cert. denied, 515 U.S. 1121, 5 June 1995 [noted in New York Times, 6 June 1995, p. A16], and City of San Jose v. Superior Court, 38 Cal.Rptr.2d 205 (Cal.App. 6 Dist.), 15 February 1995, cert. denied sub nom. Thompson v. San Jose, 516 U.S. 932, 16 October 1995.

Also see Horizon Health Center v. Felicissimo, 638 A.2d 1260 (N.J.S.Ct.), 6 April 1994, on remand, 659 A.2d 1387 (N.J.Super. Ct.App.Div.), 5 July 1995, cert. denied, 667 A.2d 191 (N.J.S.Ct.), 18 October 1995, Robbinsdale Clinic v. Pro-Life Action Ministries, 515 N.W.2d 88 (Minn.Ct.Apps.), 19 April 1994, City of Missoula v. Asbury, 873 P.2d 936 (Mon.S.Ct.), 27 April 1994, and State v. Trewhella, 520 N.W.2d 291 (Wis.Ct.Apps.), 7 June 1994, review denied, 524 N.W.2d 141 (Wis.S.Ct.), 26 August 1994. Also note Women’s Health Care Services v. Operation Rescue, 24 F.3d 107 and 25 F.3d 1059 (10th Cir.), 11 May 1994, reversing and remanding U.S. District Judge Patrick F. Kelly’s 1991 orders regarding protests in Wichita, Kansas, in light of the January 1993 Supreme Court ruling in Bray. See as well U.S. v. Turner, 44 F.3d 900 (10th Cir.), 24 January 1995, cert. denied, 515 U.S. 1104, 30 May 1995, rehearing denied, 515 U.S. 1178, 11 August 1995.

11. New York Times, 7 June 1994, p. A14, 17 June 1994, p. A20, 26 June 1994, p. 19, 4 July 1994, p. 9, 8 July 1994, p. A18, 9 July 1994, p. 10, 23 September 1994, p. A16. On the Milwaukee protests, also see Verlyn Klinkenborg, “Violent Certainties,” Harper’s, January 1995, pp. 37–52, Hoover v. Wagner, 47 F.3d 845 (7th Cir.), 2 February 1995, State v. Baumann, 532 N.W.2d 144 (Wis.Ct.Apps.), 28 February 1995, and State v. Lescher, 1995 Wis.App. Lexis 960, 8 August 1995. FACE’s criminal provisions are codified at 18 U.S.C. 248(a) and (b).

Early cases affirming the constitutionality of FACE were American Life League v. Reno, 855 F.Supp. 137 (E.D.Va.), 16 June 1994, affirmed, 47 F.3d 642 (4th Cir.), cert. denied, 516 U.S. 809, 2 October 1995; Council for Life Coalition v. Reno, 856 F.Supp. 1422 (S.D. Cal.), 6 July 1994; Cheffer v. Reno, 1994 WL 644873 (M.D. Fla.), 26 July 1994, affirmed, 55 F.3d 1517 (11th Cir.); Cook v. Reno, 859 F.Supp. 1008 (W.D. La.), 5 August 1994, vacated and remanded, 74 F.3d 97 (5th Cir.), 6 February 1996; Riely v. Reno, 860 F.Supp. 693 (D. Ariz.), 12 August 1994; and U.S. v. Brock, 863 F.Supp. 851 (E.D. Wis.), 23 September 1994, affirmed sub nom. U.S. v. Soderna, 82 F.3d 1370 (7th Cir.), 30 April 1996, cert. denied sub nom. Hatch v. U.S., 117 S.Ct. 507, 2 December 1996. Also see Woodall v. Reno, 47 F.3d 656 (4th Cir.), 13 February 1995, cert. denied, 515 U.S. 1141, 19 June 1995 [noted in New York Times, 20 June 1995, p. B7]; U.S. v. Dinwiddie, 885 F.Supp. 1286 (W.D.Mo.), 21 March 1995, 885 F.Supp. 1299 (WD.Mo.), 12 April 1995, affirmed, 76 F.3d 913 (8th Cir.), 16 February 1996, cert. denied, 117 S.Ct. 613, 16 December 1996; U.S. v. Lucero, 895 F.Supp. 1419 and 141 (D. Kan.), 25 May 1995; U.S. v. White, 893 F.Supp. 1423 (C.D. Cal.), 23 June 1995; U.S. v. Wilson, 1994 WL 777319 (E.D.Wis.), 30 November 1994, 880 F.Supp. 621 (E.D.Wis.), 16 March 1995, reversed, 73 F.3d 675 (7th Cir.), 29 December 1995, cert. denied (also sub nom. Skott, Ketchum, Balint, and Stambaugh v. U.S.), 117 S.Ct. 46, 47, 7 October 1996.

An excellent law journal review of the cases is Kristine L. Sendek, “‘FACE’-ing the Constitution: The Battle Over the Freedom of Access to Clinic Entrances Shifts from Reproductive Health Facilities to the Federal Courts,” Catholic University Law Review 46 (Fall 1996): 165–241; also see Alan E. Brownstein, “Rules of Engagement for Cultural Wars: Regulating Conduct, Unprotected Speech, and Protected Expression in Anti-Abortion Protests,” U. C. Davis Law Review 29 (Spring 1996): 553–638, and “Section II,” 29 (Summer 1996): 1163–1216, Amy H. Nemko, “Saving FACE: Clinic Access Under A New Commerce Clause,” Yale Law Journal 106 (November 1996): 525–530; and Arianne K. Tepper, “In Your F.A.C.E.: Federal Enforcement of the Freedom of Access to Clinic Entrances Act of 1994,” Pace Law Review 17 (Spring 1997): 489–551.

12. New York Times, 30 July 1994, pp. 1, 26, 31 July 1994, p. 26, 1 August 1994, p. A10, 5 August 1994, p. A10, 6 August 1994, pp. 1, 6, 10 August 1994, p. A12, 18 August 1994, p. B11, 19 August 1994, p. A18; St. Louis Post-Dispatch, 31 July 1994, p. A1; Paul J. Hill, “Who Killed the Innocent—Michael Griffin or Dr. David Gunn,” Life Advocate, August 1993, pp. 40–43; Dallas Morning News, 30 January 1994, p. A18, 9 February 1994, pp. A1, A14; Washington Post, 26 April 1994, p. A6; Tom Junod, “The Abortionist,” GQ, February 1994, pp. 150–57, 190–92; Tom Bates, Rocky Mountain News, 28 November 1994, p. A28. On Hill, also see Craig Vetter, “The Christian Soldier,” Playboy, December 1994, pp. 54ff.

13. Michael Bray, “Abortion and the Disarmed Church,” unpublished paper, Evangelical Theological Society, 1993, pp. 1, 3; Bray, A Time to Kill (Portland, OR: Advocates for Life Publications, 1994), p. 172. Also note Cathy Ramey, In Defense of Others: A Biblical Analysis and Apologetic on the Use of Force to Save Lives (Portland, OR: Advocates for Life Publications, 1995) [32pp.]. On Bray, also see James Risen and Judy Thomas, Wrath of Angels: The American Abortion War (New York: HarperCollins, 1998), chap. 4, and James Moore, Very Special Agents (New York: Pocket Books, 1997), pp. 244–277; more generally also note Faye Ginsburg’s two related essays, “Saving America’s Souls: Operation Rescue’s Crusade Against Abortion,” in Martin E. Marty and R. Scott Appleby, eds., Fundamentalisms and the State (Chicago: University of Chicago Press, 1993), pp. 557–588, which reappears in updated form as “Rescuing the Nation” in Rickie Solinger, ed., Abortion Wars (Berkeley: University of California Press, 1998), pp. 227–250.

14. New York Times, 2 August 1994, p. A14, 4 August 1994, pp. A1, A14, 24 August 1994, p. 12, 26 August 1994, p. A22, 31 August 1994, p. B7; Washington Post, 13 August 1994, pp. A1, A10, 23 August 1994, p. B2; Norfolk Virginian-Pilot, 19 August 1994, p. A18; National Law Journal, 26 September 1994, p. A17; ABA Journal (December 1994): 26; Michael R. Hirsh, “Use of Force in Defense of Another: An Argument for Michael Griffin” (unpublished J.D./M.A. thesis, Regent University, 1993), pp. 7, 53. Also see Frederick Clarkson, Eternal Hostility (Monroe, ME: Common Courage Press, 1997), pp. 139–157.

15. New York Times, 13 August 1994, p. 6, 16 August 1994, p. A11, 18 September 1994, p. 44, 2 October 1994, p. 22, 3 October 1994, p. B11, 4 October 1994, p. A19, 5 October 1994, p. A18, 6 October 1994, p. A18, 7 October 1994, p. A24. U.S. v. Hill, 893 F.Supp. 1034, 1039, 1044, and 1048 (N.D. Fla.), 15, 16, and 28 September, and 7 October 1994, are four separate court rulings on preliminary matters relating to Hill’s federal criminal trial.

16. New York Times, 25 October 1994, p. A19, 26 October 1994, p. A18, 1 November 1994, p. A24, 3 November 1994, pp. A1, A27, 4 November 1994, p. A20, 14 November 1994, p. A12, 7 December 1994, p. A16, 22 December 1994, p. B11, 10 March 1995, p. A14, 24 September 1995, p. IV-7; Washington Post, 2 November 1994, p. A7, 7 December 1994, pp. A1, A20, 21 December 1994, p. A2; “In Defense of Another: The Paul Hill Brief,” Regent University Law Review 5 (Spring 1995): 31–82; Roger Parloff, American Lawyer (June 1995): 76ff.; Washington Times, 6 July 1995, p. A3, 2 June 1996, p. A1; Ft. Lauderdale Sun-Sentinel, 21 October 1995, p. A27; Orlando Sentinel, 1 June 1996, p. D1; Hill v. State, 656 So.2d 1271 and 688 So.2d 901 (Fla. S.Ct.), 22 June 1995 and 27 November 1996, cert. denied, 118 S. Ct. 265, 6 October 1997. Also see Charles E. Rice and John P. Tuskey, “The Legality and Morality of Using Deadly Force to Protect Unborn Children from Abortionists,” Regent University Law Review 5 (Spring 1995): 83–151.

17. New York Times, 10 October 1994, pp. A1, B12, 20 October 1994, p. A21, 28 October 1994, p. A28, 20 November 1994, p. 43, 30 January 1995, pp. A1, A11, 1 March 1995, p. B7, 31 August 1995, pp. A1, B12; Washington Post, 19 October 1994, pp. A1, A9.

18. Wyoming NARAL v. Karpan, 881 P.2d 281 (Wy.S.Ct.), 7 September 1994; Washington Post, 31 October 1994, p. A13, 5 December 1994, pp. A1, A14, 7 May 1995, p. C3; New York Times, 10 November 1994, p. B7; New Republic, 5 December 1994, pp. 10–11. On abortion’s role in national partisan politics, see Alan I. Abramowitz, “It’s Abortion, Stupid: Policy Voting in the 1992 Presidential Election,” Journal of Politics 57 (February 1995): 176–186; Mary C. Segers, “The Pro-Choice Movement Post-Casey,” in Segers and Timothy A. Byrnes, eds., Abortion Politics in American States (Armonk, NY: M. E. Sharpe, 1995), pp. 225–245; and Greg D. Adams, “Abortion: Evidence of an Issue Evolution,” American Journal of Political Science 41 (July 1997): 718–737.

19. New York Times, 31 December 1994, pp. 1, 8, 9, 1 January 1995, pp. 1, 17, 26, 2 January 1995, pp. 1, 10, 3 January 1995, p. A12, 4 January 1995, p. A16, 5 January 1995, p. A16, 6 January 1995, p. A12, 7 January 1995, p. 7.

20. New York Times, 9 January 1995, pp. A1, A16, 10 January 1995, p. A12, 14 January 1995, p. 12, 15 January 1995, p. 16, 17 January 1995, p. A10, 21 January 1995, p. 7, 22 January 1995, p. 14, 23 January 1995, pp. B1, B4, 24 January 1995, p. A12, 28 January 1995, pp. 9, 18, 4 February 1995, p. 18, 11 May 1995, p. A18, 25 July 1995, p. A9, 24 August 1995, p. B14, 15 February 1996, p. A14, 4 March 1996, p. A10, 16 March 1996, p. 6, 19 March 1996, p. A12, 30 November 1996, p. 9, 4 December 1996, p. A17; Washington Post, 17 January 1995, pp. A1, A8, 3 May 1995, p. D3, 26 July 1995, p. A2, 27 July 1995, p. A3, 29 July 1995, p. A14, 6 February 1996, p. A8, 17 March 1996, p. A18, 19 March 1996, pp. A1, A8, 30 November 1996, p. A3; Los Angeles Times, 24 January 1996, p. A7; Washington Times, 2 June 1996, p. A1.

21. State v. Ross, 889 P.2d 161 (Mon.S.Ct.), 24 January 1995; Washington Post, 19 January 1995, p. A12; New York Times, 1 March 1995, p. B7, 3 March 1995, p. A16; U.S. v. Lindgren, 883 F.Supp. 1321 (D. N.D.), 1 May 1995; Kirkeby v. Furness, 52 F.3d 772 (8th Cir.), 20 April. 1995, following remand, 92 F.3d 655 (8th Cir.), 8 August 1996; Habiger v. City of Fargo, 905 F.Supp. 709 (D. N.D.), 23 January 1995, affirmed, 80 F.3d 289 (8th Cir.), 4 April 1996, cert. denied, 117 S.Ct. 518, 2 December 1996; Veneklase v. City of Fargo, 904 F.Supp. 1038 D. N.D.), 17 February 1995, reversed and remanded, 78 F.3d 1264 (8th Cir.), 6 March 1996, cert. denied, 117 S.Ct. 178, 7 October 1996. Also similarly see Fischer v. City of St. Paul, 894 F.Supp. 1318 (D. Minn.), 9 August 1995. For a brief but excellent treatment of Fargo’s response to the protests, see Jon G. Lindgren [mayor of Fargo 1978–1994] and H. Elaine Lindgren [a FWHO clinic defense volunteer], “Social Change Within the ‘Establishment’: A City’s Response to National Antiabortion Protesters,” Journal of Applied Behavioral Science 31 (December 1995): 475–489.

Also see National Organization for Women v. Operation Rescue, 37 F.3d 646 (D.C. Cir.), 18 October 1994, on remand, 929 F.Supp. 461 (D. D.C.), 30 May 1996; New York State NOW v. Terry, 996 F.2d 1351 (2nd Cir.), 2 July 1993, vacated and remanded sub nom. Pearson v. Planned Parenthood Margaret Sanger Clinic, 512 U.S. 1249, 30 June 1994, 41 F.3d 794 (2nd Cir.), 2 December 1994, on remand, 952 F.Supp. 1033 (S.D. N.Y.), 17 January 1997; Roe v. Operation Rescue, 54 F.3d 133 (3rd Cir.), 18 April 1995, on remand, 1995 WL 464269 (E.D. Pa.), 31 July 1995; and Commonwealth v. Filos, 649 N.E.2d 1085 (Mass.S.J.Ct.), 16 May 1995.

22. Legal Times, 14 February 1994, p. 1; Wall Street Journal, 28 October 1994, p. B12; U.S. News & World Report, 14 November 1994, p. 67; Washington Post, 21 December 1994, p. B4; Trial, February 1995, pp. 12–13; Front Lines Research [PPFA], February 1995, pp. 10–11; Diane M. Gianelli, American Medical News, 6 February 1995, pp. 3, 22; Time, 13 March 1995, p. 65; New York Times, 9 April 1995, pp. 1, 30, 4 April 1996, p. B14, 24 September 1996, p. A18; Louisville Courier-Journal, 15 April 1995, p. A1, 11 December 1996, p. B5; Texas Lawyer, 22 April 1996, p. 1; Pittsburgh Post-Gazette, 14 January 1997, p. C4; Memphis Commercial-Appeal, 8 December 1996, p. B1. Also see Thomas R. Eller, “Informed Consent Civil Actions for Post-Abortion Psychological Trauma,” Notre Dame Law Review 71 (1996): 639–670, and Thomas W. Strahan, “Negligent Physical or Emotional Injury Related to Induced Abortion,” Regent University Law Review 9 (Fall 1997): 149–217.

More general post-1993 surveys of antiabortion activism are Dallas A. Blanchard, The Anti-Abortion Movement and the Rise of the Religious Right (New York: Twayne, 1994);James R. Kelly, “Seeking a Sociologically Correct Name for Abortion Opponents,” in Ted G. Jelen and Marthe A. Chandler, eds., Abortion Politics in the United States and Canada (Westport, CT: Praeger, 1994), pp. 15–40; Carol J. C. Maxwell, “Meaning and Motivation in Pro-Life Direct Action” (unpublished Ph.D. dissertation, Washington University, 1994); Keith Cassidy, “The Right to Life Movement: Sources, Development, and Strategies,” Journal of Policy History 7 (1995): 128–159; both Carol J. C. Maxwell’s and Mary C. Segers’s contributions to Ted G. Jelen, ed., Perspectives on the Politics of Abortion (Westport, CT: Praeger, 1995), pp. 1–20 and 87–130; J. Bryan Hehir, “The Church and Abortion in the 1990s: The Role of Institutional Leadership,” in R. Randall Rainey and Gerard Magill, eds., Abortion and Public Policy (Omaha: Creighton University Press, 1996), pp. 203–228; and Dallas A. Blanchard, The Anti-Abortion Movement: References and Resources (New York: G. K. Hall & Co., 1996). On the important but little-noted role of the Arthur S. DeMoss Foundation, see Mark Johnson, Richmond Times Dispatch, 13 June 1994, p. A1.

23. Memphis Commercial Appeal, 12 April 1994, p. A11, 16 April 1994, p. A16, 30 June 1994, p. B2; 8 December 1996, p. B1; New York Times, 23 April 1994, p. 7, 24 April 1994, p. 25, 30 September 1994, p. A19, 23 November 1994, p. B6, 6 February 1995, p. A15, 9 April 1995, pp. 1, 30; St. Petersburg Times, 8 June 1996, pp. B1, B3; Albany Times Union, 29 September 1996, p. D1, 11 February 1998, p. B1; Crutcher, Lime 5: Exploited By Choice (Denton, TX: Life Dynamics, 1996), pp. 114–115, 192, 280; Washington Times, 19 April 1996, p. A2; Omaha World Herald, 26 January 1997, p. B3.

On Warren Hern, see especially Hern, “Life on the Front Lines,” Women’s Health Issues 4 (Spring 1994): 48–54, and Steve Jackson’s lengthy and impressive profile in the weekly Denver newspaper Westword, 13 February 1997, as well as updates of 3 April 1997 and 15 May 1997. Also see Hern et al., “Outpatient Abortion for Fetal Anomaly and Fetal Death from 15–34 Menstrual Weeks’ Gestation,” Obstetrics & Gynecology 81 (February 1993): 301–306.

Also note the 1997 murder indictment of Dr. Bruce S. Steir, a California provider with a checkered career, following the death of abortion patient Sharon Hamptlon. Riverside Press-Enterprise, 19 December 1996, p. A1, 20 December 1996, p. A1, 23 October 1997, p. A1, 1 February 1998, p. A1, 4 February 1998, p. B1, 19 February 1998, p. B1.

24. New York Times, 12 September 1993, p. 31, 11 January 1995, p. C11, 15 February 1995, pp. A1, A14, 20 February 1995, pp. A1, B2, 14 October 1997, p. A17; Barbara R. Gottlieb, New England Journal of Medicine 332 (23 February 1995): 532–533; Diane Gianelli, American Medical News, 6 March 1995, p. 3; Dana Swartzberg, JAMA 274 (11 October 1995): 1107–1108; Mary Ann Castle et al., “Abortion Education for Residents,” Obstetrics & Gynecology 87 (April 1996): 626–629; Delia M. Rios, Oregonian, 4 May 1997, p. A1; and Ellen S. Lazarus’s very impressive “Politicizing Abortion: Personal Morality and Professional Responsibility of Residents Training in the United States,” Social Science and Medicine 44 (May 1997): 1417–1425.

Also see Carolyn Westhoff et al., “Residency Training in Contraception, Sterilization, and Abortion,” Obstetrics & Gynecology 81 (February 1993): 311–314; H. Trent McKay and Andrea P. McKay, “Abortion Training in Obstetrics and Gynecology Residency Programs,” Family Planning Perspectives 27 (May-June 1995): 112–115; New York Times Magazine, 18 January 1998, pp. 20–27ff.; and USA Today, 22 January 1998, pp. D1, D2. On Medical Students for Choice, see Carole Joffe et al., “The Crisis in Abortion Provision and Pro-Choice Medical Activism in the 1990s,” in Rickie Solinger, ed., Abortion Wars (Berkeley: University of California Press, 1998), pp. 320–333; on NARAL, also see National Journal, 5 March 1994, pp. 521–525.

25. Boston Globe, 1 November 1994, p. 1; Glenna Halvorson Boyd, “Surviving a Holy War: How Health Care Workers in U.S. Abortion Facilities Are Coping with Antiabortion Harassment” (unpublished Ph.D. dissertation, The Fielding Institute, 1990), p. 151; Diane Gianelli, American Medical News, 12 July 1993, pp. 3, 23, 25; Wendy Simonds, “At an Impasse: Inside an Abortion Clinic,” Current Research on Occupations and Professions 6 (1991): 99–115, at 114.

Also see Simonds’s equally excellent “Feminism on the Job: Confronting Opposition in Abortion Work,” in Myra Marx Ferree and Patricia Yancey Martin, eds., Feminist Organizations (Philadelphia: Temple University Press, 1995), pp. 248–260; and Simonds, Abortion at Work: Ideology and Practice in a Feminist Clinic (New Brunswick: Rutgers University Press, 1996). See as well Kathleen M. Roe, “Private Troubles and Public Issues: Providing Abortion Amid Competing Definitions,” Social Science and Medicine 29 (1989): 1191–1198; Warren M. Hern, “Proxemics: The Application of Theory to Conflict Arising from Antiabortion Demonstrations,” Population and Environment 12 (Summer 1991): 379–388; Patricia Lunneborg, Abortion: A Positive Decision (New York: Bergin & Garvey, 1992), pp. 177–194; Catherine Cozzarelli and Brenda Major’s commendably frank “The Effects of Anti-Abortion Demonstrators and Pro-Choice Escorts on Women’s Psychological Responses to Abortion,” Journal of Social and Clinical Psychology 13 (1994): 404–427; and Mark Donald’s profile of retiring clinic operator Charlotte Taft, Dallas Observer, 18–24 May 1995, pp. 21–30. Also simply note Suzanne T. Poppema, Why I Am an Abortion Doctor (Amherst, NY: Prometheus Books, 1996); Abigail Stewart and Sharon Gold-Steinberg, “Women’s Abortion Experiences as Sources of Political Mobilization,” in M. Brinton Lykes et al., eds., Myths About the Powerless (Philadelphia: Temple University Press, 1996), pp. 275–295; and Sumi Hoshiko, Our Choices: Women’s Personal Decisions About Abortion (New York: Haworth Press, 1993).

26. New York Times, 16 June 1994, pp. A1, D23, 24 December 1994, p. 7, 18 December 1995, p. B6, 22 March 1996, p. A14, 5 December 1997, p. A10; Washington Post, 3 October 1995, p. H6; Chicago Tribune, 16 January 1996, p. 1; Harrisburg Patriot, 30 June 1997, p. 1; Robert W. Brown and R. Todd Jewell, “The Impact of Provider Availability on Abortion Demand,” Contemporary Economic Policy 14 (April 1996): 95–106; Frances A. Althaus and Stanley K. Henshaw, “The Effects of Mandatory Delay Laws on Abortion Patients and Providers,” Family Planning Perspectives 26 (September-October 1994): 228–233; and Theodore Joyce et al., “The Impact of Mississippi’s Mandatory Delay Law on Abortions and Births,” JAMA 278 (27 August 1997): 653–658.

Also see Deborah Haas-Wilson, “The Economic Impact of State Restrictions on Abortion,” Journal of Policy Analysis and Management 12 (Summer 1993): 498–511; Stephan F. Gohmann and Robert L. Ohsfeldt, “Effects of Price and Availability on Abortion Demand,” Contemporary Policy Issues 11 (October 1993): 42–55; Rebecca M. Blank et al., State Abortion Rates: The Impact of Policies, Providers, Politics, Demographics and Economic Environment (Cambridge, MA: National Bureau of Economic Research, Working Paper #4853, September 1994); Jon F. Merz et al., “A Review of Abortion Policy: Legality, Medicaid Funding, and Parental Involvement,” Women’s Rights Law Reporter 17 (Winter 1995): 1–61; Phillip B. Levine et al., Roe v. Wade and American Fertility (Cambridge, MA: National Bureau of Economic Research, Working Paper #5615, June 1996); Henshaw and Kathryn Kost, “Abortion Patients in 1994–1995: Characteristics and Contraceptive Use,” Family Planning Perspectives 28 (July-August 1996): 140–147, 158; Kenneth J. Meier et al., “The Impact of State-Level Restrictions on Abortion,” Demography 33 (August 1996): 307–312; and Patricia Gober, “The Role of Access in Explaining State Abortion Rates,” Social Science and Medicine 44 (April 1997): 1003–1016.

27. Lisa Belkin, New York Times Magazine, 30 October 1994, pp. 47–51ff.; U.S. v. McMillan, 946 F.Supp. 1254 (S.D. Miss.), 22 November 1995; Tina Rosenberg, Rolling Stone, 27 June 1996, pp. 46–50, 67–68.

In his 1997 “vanity press” autobiography, Preparing for Secession … (New York: Vantage Press), McMillan voices an explicitly defeatist attitude, especially in light of FACE: “The faithful who have been arrested so many times have grown weary and have run out of the ability or willingness to be ‘hammered’ by jail time and fines (I have) … [W]e realize that the political change, which was one goal of the rescue movement, will not come” (p. 122). McMillan adds (p. 132), “The abortion debate is all but over in the United States.… [T]here will be a few abortion abolitionists willing to make greater sacrifices and to take great risks through the use of force and violence, but I believe it will not appreciably affect the abortion holocaust.”

28. Dallas Morning News, 6 September 1993, pp. A27, A32, 8 April 1994, pp. A21, A26, 20 April 1995, pp. A33, A35, 2 May 1995, p. A20, 11 October 1995, pp. A23, A27, 26 October 1995, pp. A1, A11, 5 February 1998, p. A27; New York Times, 7 May 1994, p. 10, 10 May 1994, pp. A1, A16, 11 June 1994, pp. 1, 9, 21 April 1995, p. A18, 26 October 1995, p. A16; American Lawyer, December 1995, p. 33; Austin American-Statesman, 17 January 1997, p. B2. Also see Cyr v. Tompkins, 1994 WL 110719 (Tex.Ct.Apps.), 30 March 1994, and Tompkins v. Cyr, 878 F.Supp. 911 (N.D.Tex.), 17 February 1995. On Lovejoy, see Lovejoy Specialty Hospital v. Advocates for Life, 855 P.2d 159 (Or.Ct.Apps.), 16 June 1993, review denied, 863 P.2d 1267 (Or.S.Ct.), cert. denied, 511 US. 1070, 2 May 1994, and Portland Oregonian, 3 May 1994, p. A1. Also see Peter Korn’s superbly done Lovejoy: A Year in the Life of an Abortion Clinic (New York: Atlantic Monthly Press, 1996). On the Houston case, also see Operation Rescue-National v. Planned Parenthood of Houston and Southeast Texas, 937 S.W.2d 60 (Tex.App.-Houston-14th), 19 December 1996.

29. Martin Haskell, “Dilation and Extraction for Late Second Trimester Abortion,” 13 September 1992, in Second Trimester Abortion: From Every Angle [Fall Risk Management Seminar, 9/13–14/92, Dallas, TX] (Washington: National Abortion Federation, 1992), pp. 27–33; American Medical News, 5 July 1993, pp. 3, 21, 22; Washington Post, 14 June 1995, p. A4, 22 June 1995, p. A10, 16 July 1995, p. C7; US. Congress, House of Representatives, Committee on the Judiciary, Partial-Birth Abortion: Hearing Before the Subcommittee on the Constitution, 104th Cong., 1st sess., 15 June 1995; New York Times, 16 June 1995, p. A19, 19 June 1995, pp. A1, A9, 2 July 1995, p. 22, 5 July 1995, p. A10; US. Congress, House of Representatives, Partial-Birth Abortion Ban Act of 1995—Report #104–267, 104th Cong., 1st sess., 27 September 1995.

30. Dallas Morning News, 31 March 1995, pp. A27, A32; New York Times, 28 July 1994, p. C9, 1 April 1995, p. 6, 11 August 1995, p. A12, 12 August 1995, pp. 1, 9; Washington Post, 16 April 1995, p. A3, 11 August 1995, pp. F1, F5; Helen Thorpe, Texas Monthly, July 1995, pp. 34–39; Debbie Nathan, Texas Observer, 29 September 1995, pp. 9–11, Debbie Nathan, “The Death of Jane Roe,” Village Voice, 30 April 1996, pp. 31–39; McCorvey with Andy Meisler, I Am Roe (New York: HarperCollins, 1994), p. 127. Neither I Am Roe nor McCorvey’s second as-told-to autobiography (McCorvey with Gary Thomas, Won By Love: Norma McCorvey Speaks Out Against Abortion [Nashville: Thomas Nelson, 1998]) ought to be relied upon for factual specifics. By far the best McCorvey profile is Meghan O’Hara and Ilene Findler’s 1998 television documentary, “Roe vs. Roe: Baptism by Fire”; also see New York Times, 28 January 1998, p. B5.

31. Naomi Wolf, “Our Bodies, Our Souls,” New Republic, 16 October 1995, pp. 26–35; New York Times, 18 August 1995, p. A17, 5 June 1996, p. A10, 18 June 1996, p. A23, 3 April 1997, p. A17; Los Angeles Times, 24 May 1996, p. E1; Washington Post, 28 July 1996, pp. C1, C4, 27 October 1996, p. A20; Bergen Record, 18 May 1997, p. R1. Regarding Wolf’s stance, also see James Q. Wilson, “On Abortion,” Commentary, January 1994, pp. 21ff.; George McKerma, “On Abortion: A Lincolnian Position,” Atlantic Monthly, September 1995, pp. 51ff.; and Noemie Emery, “Abortion and the Republican Party,” Weekly Standard, 25 December 1995, pp. 26–31. Concerning “common grounds’” origins in St. Louis, see James R. Kelly’s contribution in Mary C. Segers and Timothy A. Byrnes, eds., Abortion Politics in American States (Armonk, NY: M. E. Sharpe, 1995), pp. 205–224; St. Louis Post-Dispatch, 22 May 1997, p. A1; Cynthia Gorney, Articles of Faith (New York: Simon & Schuster, 1998); and Chicago Tribune, 25 January 1998, p. W1.

32. New York Times, 2 November 1995, pp. A1, B13, 6 November 1995, p. B7, 8 November 1995, p. D25, 9 November 1995, pp. A1, B15, 29 November 1995, p. A23; Washington Post, 2 November 1995, pp. A1, A12, 8 November 1995, p. A4, 9 November 1995, p. A5, 8 December 1995, pp. A1, A4; U.S. Congress, Senate, Committee on the Judiciary, The Partial-Birth Abortion Ban Act of 1995—Hearing, 104th Cong., 1st sess., 17 November 1995.

33. New York Times, 9 December 1995, p. 10, 28 February 1996, p. A13, 28 March 1996, pp. A1, B8, 11 April 1996, pp. A1, B10, 15 April 1996, p. B2, 21 April 1996, p. 35, 22 April 1996, pp. B3, B7; Alissa Rubin, New Republic, 4 March 1996, pp. 27ff.; US. Congress, House of Representatives, Committee on the Judiciary, Effects of Anesthesia During a Partial-Birth Abortion—Hearing Before the Subcommittee on the Constitution, 104th Cong., 2nd sess., 21 March 1996, esp. pp. 123–124; Washington Post, 28 March 1996, pp. A1, A11, 11 April 1996, pp. A1, A14, 12 April 1996, p. A6, 17 April 1996, p. A14.

34. Women’s Medical Professional Corp. v. Voinovich, 911 F. Supp. 1051, 1070, 1080–81 (S.D. Ohio), 13 December 1995; Dayton Daily News, 9 December 1995, p. B2.

35. Baton Rouge Advocate. 27 September 1995, p. A13, regarding Louisiana R.S.40.1299.35.6 (B)(1), which took effect on 25 September 1995; A Woman’s Choice-East Side Women’s Clinic v. Newman, 904 F.Supp. 1434, 1442, 1445–46, 1462 (S.D. Ind.), 9 November 1995; Salt Lake Tribune, 11 August 1996, p. B1, 20 October 1996, p. C1, regarding Utah Code 76–7–305(1)(a) [“in a face-to-face consultation”], which took effect 1 September 1996. On Indiana, also see A Woman’s Choice-East Side Women’s Clinic v. Newman, 671 N.E.2d 104 (Ind.S.Ct.), 7 August 1996; and 980 F.Supp. 972 (S.D.Ind.), 14 October 1997, where Judge Hamilton reluctantly allowed Indiana’s eighteen-hour waiting period requirement to take effect while continuing to enjoin the “in the presence” provision.

On May 24, 1997, Florida enacted the Woman’s Right to Know Act providing that a physician must “orally, in person” provide a woman with abortion information, but with no twenty-four-hour advance requirement. Enforcement was temporarily enjoined by Palm Beach County Circuit Judge Kathleen Kroll on July 2 and Kroll’s order was subsequently affirmed. St. Petersburg Times, 10 July 1997, p. B1, 19 February 1998, p. A1; Ft. Lauderdale Sun-Sentinel, 16 August 1997, p. B1; State v. Presidential Women’s Center, 1998 WL 64072 (Fla.App. 4 Dist.), 18 February 1998.

36. Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 29 April 1996, denying cert. to Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452 (8th Cir.), 31 August 1995, which affirmed 860 F.Supp. 1409 (D. S.D), 22 August 1994; New York Times, 1 September 1995, p. A20; Washington Post, 30 April 1996, p. A4, 2 May 1996, p. A28. See also Causeway Medical Suite v. Ieyoub, 109 F.3d 1096 (5th Cir.), 14 April 1997 (petition for rehearing en banc denied [with seven judges dissenting], 123 F.3d 849, 23 September 1997), cert. denied, 118 S.Ct. 357, 20 October 1997. The panel ruling, affirming 905 F.Supp. 360 (E.D. La.), 24 October 1995, expressly declined Justice Stevens’s invitation in light of the fact that the Louisiana parental notice provision at issue would be unconstitutional under either approach.

Also note Planned Parenthood of Southern Arizona v. Neely, 942 F.Supp. 1578, 1583 (D. Ariz.), 8 October 1996 [voiding a new Arizona parental consent statute because it “places an undue burden on a pregnant minor’s freedom to terminate her pregnancy”], 130 F.3d 400 (9th Cir.), 21 November 1997, Dallas Morning News, 13 December 1997, p. A42, 21 January 1998, p. D12; Planned Parenthood League of Massachusetts v. Attorney General, 677 N.E.2d 101 (Mass.S.J.Ct.), 18 March 1997 [a state constitutional holding voiding a statute requiring unmarried minors to seek consent from both parents], and the important California Supreme Court ruling in American Academy of Pediatrics v. Lungren, 940 P.2d 797 (Cal.S.Ct.), 5 August 1997, New York Times, 6 August 1997, p. A9. Also note Manning v. Hunt, 119 F.3d 254 and 86 F.3d 1151 (4th Cir.), 11 July 1997 and 22 May 1996; Planned Parenthood of the Blue Ridge v. Camblos, 116 F.3d 707 (4th Cir.), 30 June 1997, 125 F.3d 884 (4th Cir.), 20 October 1997; Washington Post, 25 June 1997, p. B1, 1 July 1997, pp. A1, A7, 3 March 1998, p. A1, 4 March 1998, p. B4; Washington Times, 2 July 1997, p. C3, 4 July 1997, p. C6; and Memphis Planned Parenthood v. Sundquist, 121 F.3d 708 (6th Cir.), 1 August 1997.

Concerning the debate about U.S. v. Salerno, 481 U.S. 739, 26 May 1987, see especially Michael C. Dorf, “Facial Challenges to State and Federal Statutes,” Stanford Law Review 46 (January 1994): 235–305, at 236–238 and 271–276; also see Sandra Lynne Tholen and Lisa Baird, “Con Law Is as Con Law Does: A Survey of Planned Parenthood v. Casey in the State and Federal Courts,” Loyola of Los Angeles Law Review 28 (April 1995): 971–1046, at 1005; and Ruth Burdick, “The Casey Undue Burden Standard: Problems Predicted and Encountered, and the Split Over the Salerno Test,” Hastings Constitutional Law Quarterly 23 (Spring 1996): 825–876.

Concerning parental-notice statutes and judicial bypass mechanisms, see Robert L. Ohsfeldt and Stephan F. Gohmann, “Do Parental Involvement Laws Reduce Adolescent Abortion Rates?” Contemporary Economic Policy 12 (April 1994): 65–76 [yes, by approximately 18 percent]; Suellyn Scarnecchia and Julie Kunce Field, “Judging Girls: Decision Making in Parental Consent to Abortion Cases,” Michigan Journal of Gender & Law 3 (1995): 75–113; Deborah Haas-Wilson, “The Impact of State Abortion Restrictions on Minors’ Demand for Abortions,” Journal of Human Resources 31 (Winter 1996): 140–158 [a 20 percent decrease]; Christine C. Sensibaugh and Elizabeth R. Allgeier, “Abortion and Judicial Bypass: Factors Considered by Ohio Juvenile Court Judges in Judicial Bypass Judgments: A Policy Capturing Approach,” Politics and the Life Sciences 15 (March 1996): 35–47; and Maggie O’Shaughnessy, “The Worst of Both Worlds? Parental Involvement Requirements and the Privacy Rights of Mature Minors,” Ohio State Law Journal 57 (1996): 1731–1765.

More practically, also see K Kaufmann’s impressively informative The Abortion Resource Handbook (New York: Simon & Schuster, 1997), pp. 38–78, which notes (p. 42), “The only states with parental involvement laws that do not have judicial or other bypass provisions are Idaho and Utah.” See, per H.L. v. Matheson (discussed above at pp. 637–638), Utah Code Annotated 76–7—304(2) [a doctor shall “notify, if possible, the parents or guardian of the woman upon whom the abortion is to be performed, if she is a minor”], and Idaho Code 18–609(6) [“if the pregnant patient is unmarried and under eighteen (18) years of age or unemancipated, the physician shall provide notice, if possible, of the pending abortion to the parents or legal guardian of the pregnant patient at least twenty-four (24) hours prior to the performance of the abortion”].

37. Leavitt v. Jane L., 518 U.S. 137, 17 June 1996, reversing and remanding Jane L. v. Bangerter, 61 F.3d 1493 (10th Cir.), 2 August 1995 (which had reviewed 809 F.Supp. 865, 17 December 1992). On remand, 102 F.3d 1112 (10th Cir.), 23 December 1996, the appellate panel explicitly relied upon the 8th Circuit application of Casey that Justice Scalia unsuccessfully had attacked in his exchange with Justice Stevens in the South Dakota case; the High Court’s subsequent 1997 declining of review was without comment: Leavitt v. Jane L., 117 S.Ct. 2453, 16 June 1997. Also see New York Times, 5 August 1996, p. 9, 17 June 1997, p. A18; Washington Post, 18 June 1996, pp. A1, A5, 20 June 1996, p. A26, 19 June 1997, p. A20; Salt Lake Tribune, 17 June 1997, p. A1. Note as well Utah Women’s Clinic v. Leavitt, 844 F.Supp. 1482 (D. Utah), 1 February 1994, affirmed, 75 F.3d 564 (10th Cir.), 22 November 1995, cert. denied, 116 S.Ct. 2551, 24 June 1996; Salt Lake Tribune, 25 June 1996, p. A6.

38. Romer v. Evans, 517 U.S. 620, 20 May 1996, affirming 882 P.2d 1335 Col.S.Ct.), 11 October 1994. Also see Evans v. Romer, 854 P.2d 1270 (Col.S.Ct.), 19 July 1993, cert. denied, 510 U.S. 959, 1 November 1993. See as well New York Times, 15 December 1993, p. A22, 12 October 1994, pp. A1, A13, 9 June 1995, p. A22, 21 May 1996, p. A1, 26 May 1996, p. IV-4; Washington Post, 19 December 1993, pp. A1, A28; and James W. Button et al., Private Lives, Public Conflicts: Battles Over Gay Rights in American Communities (Washington, D.C.: CQ Press, 1997). Also note Equality Foundation of Greater Cincinnati v. City of Cincinnati, 838 F.Supp. 1235 (S.D. Ohio), 19 November 1993, 860 F.Supp. 417 (S.D. Ohio), 9 August 1994, reversed, 54 F.3d 261 (6th Cir.), 12 May 1995, vacated and remanded for further consideration in light of Romer, 518 US. 1001, 17 June 1996, on remand, 128 F.3d 289 (6th Cir.), 23 October 1997, where the appellate panel unpersuasively sought to limit Romer, and 1998 WL 101701 (6th Cir.), 5 February 1998. See Washington Post, 24 October 1997, p. A3; also see New York Times, 12 February 1998, p. A1, concerning Maine.

39. 116 S.Ct. at 1629; Thomas C. Grey, “Bowers v. Hardwick Diminished,” University of Colorado Law Review 68 (Spring 1997): 373–386 at 373, 374; Louis Michael Seidman, “Romer’s Radicalism: The Unexpected Revival of Warren Court Activism,” 1996 Supreme Court Review (Chicago: University of Chicago Press, 1997), pp. 67–121, at 82. Also see this author’s discussion of Romer in a larger context: Garrow, “The Rehnquist Years,” New York Times Magazine, 6 October 1996, pp. 64–71, 82, 85, at 82.

Other commentaries on Romer include Andrew M. Jacobs, “Romer Wasn’t Built in a Day: The Subtle Transformation in Judicial Argument Over Gay Rights,” 1996 Wisconsin Law Review 893–969; Akhil R. Amar, “Attainder and Amendment 2: Romer’s Rightness,” Michigan Law Review 95 (October 1996): 203–235; Courtney G. Joslin, “Equal Protection and Anti-Gay Legislation: Dismantling the Legacy of Bowers v. Hardwick,” Harvard Civil Rights–Civil Liberties Law Review 32 (Winter 1997): 225–247; and Janet E. Halley, “Romer v. Hardwick,” University of Colorado Law Review 68 (Spring 1997): 429–452.

Pre-Romer commentaries now seem inescapably dated. See Andrew M. Jacobs, “The Rhetorical Construction of Rights: The Case of the Gay Rights Movement, 1969–1991,” Nebraska Law Review 72 (1993): 723–759; Patricia A. Cain, “Litigating for Lesbian and Gay Rights: A Legal History,” Virginia Law Review 79 (October 1993): 1551–1641; Janet E. Halley, “Reasoning About Sodomy: Act and Identity in and After Bowers v. Hardwick,” Virginia Law Review 79 (October 1993): 1721–1780; and Mary C. Dunlap, “Gay Men and Lesbians Down by Law in the 1990s USA: The Continuing Toll of Bowers v. Hardwick,” Golden Gate University Law Review 24 (Spring 1994): 1–39. An interestingly original critique of the Supreme Court’s handling of Bowers is Donald A. Dripps, “Bowers v. Hardwick and the Law of Standing: Noncases Make Bad Law,” Emory Law Journal 44 (Fall 1995): 1417–1449.

40. Seidman, “Romer’s Radicalism,” at 67–68 and 98.

41. State v. Morales, 869 S.W.2d 941 (Tex.S.Ct.), 12 January 1994. Also see City of Sherman v. Henry, 928 S.W2d 464 (Tex.S.Ct.), 8 July 1996, cert. denied, 117 S.Ct. 1098, 24 February 1997, concerning a negative personnel action against an adulterous police officer; similarly note Oliverson v. West Valley City, 875 F.Supp. 1465 (D. Utah), 10 January 1995.

42. State v. Baxley, 633 So.2d 142 and 656 So.2d 973 (La.S.Ct.), 28 February 1994 and 22 May 1995. Also see Evan Wolfson and Robert S. Mower, “When the Police Are in Our Bedrooms, Shouldn’t the Courts Go After Them? An Update on the Fight Against ‘Sodomy’ Laws,” Fordham Urban Law Journal 21 (Summer 1994): 997–1055.

43. Miller v. State, 636 So.2d 391 (Miss.S.Ct.), 14 April 1994.

44. State v. Lopes, 660 A.2d 707 (R.I. S.Ct.), 22 June 1995, cert. denied, 516 U.S. 1123, 20 February 1996; State v. Chiaradio, 660 A.2d 276 (R.I. S.Ct.), 30 June 1995. In June 1998 the Rhode Island legislature voted to repeal the state sodomy statute; see New York Times, 10 May 1998, p. 14; Providence Journal Bulletin, 3 June 1998, p. B1.

45. Sawatzky v. City of Oklahoma City, 906 P.2d 785 (Ok.Ct.Crim.Apps.), 21 November 1995, cert. denied, 517 U.S. 1156, 22 April 1996.

46. State v. Chiaradio, 660 A.2d 276, 277, 30 June 1995.

47. Campbell v. Sundquist, 926 S.W.2d 250, 266 (Tenn.Ct.Apps.), 26 January 1996 [“Application for Permission to Appeal Denied by Supreme Court, June 10, 1996”]. Also see Lesbian/Gay Law Notes (Summer 1996): 91–92.

48. Christensen v. State, 468 S.E.2d 188, 190, 192 (Ga.S.Ct.), 11 March 1996. Also see Fulton County Daily Report, 19 August 1997, pp. 1, 2, 16 October 1997, pp. 1, 4, 20 May 1998, p. 1, National Law Journal, 1 June 1998, p. A11, concerning the Georgia Supreme Court’s 1998 review of State v. Powell, a criminal case involving a five-year prison sentence for ostensibly consensual heterosexual cunnilingus.

49. Gryczan v. State, 942 P.2d 112, 125, 126 (Mon.S.Ct.), 2 July 1997; New York Times, 4 July 1997, p. A11. As of early 1998, cases challenging state sodomy laws were under way in Arkansas and Maryland, but a Kansas court refused to void that state’s same-sex-only sodomy law. Arkansas Democrat-Gazette, 30 May 1998, p. B6; Washington Post, 6 February 1998, p. D5; City of Topeka v. Movsovitz, #77, 372 (Kans.Ct.Apps.), 24 April 1998.

50. Baehr v. Lewin, 852 P.2d 44, 67 (Haw.S.Ct.), 5 May 1993, 875 P.2d 225, 27 May 1993; New York Times, 25 April 1994, pp. A1, B8, 6 March 1996, p. A13, 28 July 1996, p. 12, 4 December 1996, pp. A1, A26, 5 December 1996, p. B16, 25 January 1997, p. 8, 18 April 1997, p. A10, 1 May 1997, p. A14, 10 July 1997, p. A15; Baehr v. Miike, 910 P.2d 112 (Haw.S.Ct.), 23 January 1996; Paul M. Barrett’s superb Wall Street Journal story, 17 June 1996, p. A1; Washington Post, 10 September 1996, pp. A1, A4, 22 September 1996, p. A21, 4 December 1996, pp. A1, A22, 5 December 1996, p. A3; Baehr v. Miike, 23 Family Law Reporter 2001 (Haw.Cir.Ct.), 3 December 1996; Los Angeles Times, 7 July 1997, p. A3.

Also see Evan Wolfson, “Crossing the Threshold: Equal Marriage Rights for Lesbians and Gay Men and the Intra-Community Critique,” New York University Review of Law and Social Change 21 (1994–1995): 567–615; “In Sickness and in Health, In Hawaii and Where Else? Conflict of Laws and the Recognition of Same-Sex Marriages,” Harvard Law Review 109 (June 1996): 2038–2055; William N. Eskridge, Jr., The Case for Same-Sex Marriage (New York: Free Press, 1996); Mark Strasser, Legally Wed: Same-Sex Marriage and the Constitution (Ithaca: Cornell University Press, 1997); Evan Wolfson and Michael F. Melcher, “DOMA’s House Divided: An Argument Against the Defense of Marriage Act,” Federal Lawyer 44 (September 1997): 30–36; Anchorage Daily News, 28 February 1998, p. A1.

51. Washington Post, 28 November 1995, pp. B1, B3, 27 December 1995, pp. C1, C2, 25 January 1996, pp. A1, A15, 26 January 1996, pp. B1, B6, 24 February 1996, p. B3, 29 February 1996, p. B6, 27 March 1996, p. A22; New York Times, 26 January 1996, p. A12; Kansas City Star, 29 April 1996, p. B1; Norfolk Virginian-Pilot, 17 May 1996, p. B3, 5 November 1996, p. B3, 13 February 1997, p. B1, 22 February 1997, p. B7; Los Angeles Times, 26 January 1997, p. A20.

52. Oregonian, 17 May 1996, p. A1, 10 June 1996, p. B1, 26 January 1997, p. B1; New York Times, 27 October 1995, p. A21, 21 May 1996, p. A16; Planned Parenthood of the Columbia/Willamette v. American Coalition of Life Activists, 945 F.Supp. 1355 (D. Or.), 18 September 1996. The de Parrie ruling later was reversed. Hanzo v. de Parrie, 326 Ore. 525 (Or.Ct.Apps.), 18 February 1998. Also note Feminist Women’s Health Center v. Codispoti, 63 F.3d 863 (9th Cir.), 17 August 1995, and 69 F.3d 399 (9th Cir.), 7 November 1995. Also see Amy M. Sneirson, “No Place to Hide: Why State and Federal Enforcement of Stalking Laws May Be the Best Way to Protect Abortion Providers,” Washington University Law Quarterly 73 (Summer 1995): 635–664; and Christina Couch, “Wanted: Privacy Protection for Doctors Who Perform Abortions,” American University Journal of Gender and the Law 4 (Spring 1996): 361–414.

53. See People v. Terry, 45 F.3d 17 (2nd Cir.), 5 January 1995, and People v. Operation Rescue National, 80 F.3d 64 (2nd Cir.), 29 March 1996, cert. denied sub nom. Broderick v. U.S., 117 S.Ct. 85, 7 October 1996; Roe v. Operation Rescue, 54 F.3d 133 (3rd Cir.), 18 April 1995; U.S. v. Arena, 894 F. Supp. 580 and 918 F.Supp. 561 (N.D. N.Y.), 25 July 1995 and 19 March 1996; Douglas v. Brownell, 88 F.3d 1511 (8th Cir.), 9 July 1996; McKusick v. City of Melbourne, 96 F.3d 478 (11th Cir.), 27 September 1996; U.S. v. Unterburger, 97 F.3d 1413 (11th Cir.), 23 October 1996; cert. denied, 117 S.Ct. 2517, 27 June 1997; U.S. v. Roach, 947 F.Supp. 872 (E.D. Pa.), 29 November 1996; Planned Parenthood Association of Southeastern Pennsylvania v. Walton, 949 F.Supp. 290 (E.D. Pa.), 3 December 1996; and Terry v. Reno, 101 F.3d 1412 (D.C. Cir.), 10 December 1996, cert. denied, 117 S.Ct. 2431, 9 June 1997. Also see Washington Post, 18 March 1998, p. D1.

In state courts, see Planned Parenthood Association of San Mateo County v. Operation Rescue of California, 57 Cal.Rptr.2d 736 (Cal.App. 1 Dist.), 28 October 1996, cert. denied sub nom. Cochran v. Planned Parenthood Association of San Mateo County, 118 S.Ct. 54, 6 October 1997; and Commonwealth v. Manning, 673 N.E.2d 73 (Mass.Apps.Ct.), 22 November 1996, review denied, 676 N.E.2d 55 (Mass.S.J.Ct.), 27 January 1997. Also note Options v. Lawson, 670 A.2d 1081 (N.J.Super.Ct.App.Div.), 2 February 1996, and Kaplan v. Prolife Action League of Greensboro, 474 S.E.2d 408 and 475 S.E.2d 247 (N.C.Ct.Apps.), 3 and 17 September 1996, review denied, 485 S.E.2d 54 (N.C.S.Ct.), 10 April 1997.

54. New York Times, 14 March 1996, p. A17, 30 March 1996, pp. 1, 7, 1 April 1996, p. A12, 19 July 1996, p. A10, 20 July 1996, pp. 1, 7, 28 July 1996, p. IV-14, 12 September 1996, p. A17, 19 September 1996, pp. A1, B12; San Francisco Chronicle, 14 March 1996, p. A3; New York Magazine, 1 April 1996, pp. 37–41; Omaha World-Herald, 21 April 1996, p. A1; Washington Post, 19 July 1996, p. A2, 20 July 1996, pp. A1, A10, 19 September 1996, pp. A1, A9, 21 September 1996, pp. D1, D2.

In the medical literature, see Mitchell D. Creinin et al., “Acceptability of Medical Abortion with Methotrexate and Misoprostol,” Contraception 52 (July 1995): 41–44; Beverly Winikoff, “Acceptability of Medical Abortion in Early Pregnancy,” Family Planning Perspectives 27 (July-August 1995): 142–148, 185; Eric A. Schaff et al., “Combined Methotrexate and Misoprostol for Early Induced Abortion,” Archives of Family Medicine 4 (September 1995): 774–779; Mary Ann Castle et al., “Listening and Learning from Women About Mifepristone,” Women’s Health Issues 5 (Fall 1995): 130–138; Eric A. Schaffet al., “Methotrexate and Misoprostol for Early Abortion,” Family Medicine 28 (March 1996): 198–203; Schaff et al., “Methotrexate and Misoprostol When Surgical Abortion Fails,” Obstetrics & Gynecology 87 (March 1996): 450–452; Mitchell D. Creinin et al., “Methotrexate and Misoprostol for Early Abortion: A Multicenter Trial. I. Safety and Efficacy,” Contraception 53 (June 1996): 321–327; Creinin, “Oral Methotrexate and Vaginal Misoprostol for Early Abortion,” Contraception 54 (July 1996): 15–18; and Creinin and Anne E. Burke, “Methotrexate and Misoprostol for Early Abortion: A Multicenter Trial. Acceptability,” Contraception 54 (July 1996): 19–22. Creinin and Burke report in the latter piece that at one of their trial sites, George Tiller’s clinic in Kansas, recruits were difficult to come by: “when women were offered this alternative free of charge in Wichita, they still overwhelmingly chose to pay for a surgical procedure which requires fewer visits, has a higher success rate, and has less vaginal bleeding.”

On doctors’ interest in RU-486, see Roger A. Rosenblatt et al., “Abortions in Rural Idaho: Physicians’ Attitudes and Practices,” American Journal of Public Health 85 (October 1995): 1423–1425.

55. Washington Post, 13 September 1996, p. A3, 17 September 1996, pp. A1, A8 and H12-H14, H17, H19, 20 September 1996, pp. A1, A18, Warren Hern, 17 October 1996, p. A22; Ruth Padawer, Bergen Record, 15 September 1996, p. R1; New York Times, 19 September 1996, p. B12, 20 September 1996, pp. A1, A22. Also see Wendy Chavkin, American Journal of Public Health 86 (September 1996): 1204–1206.

56. New York Times, 27 September 1996, p. A20, 14 December 1996, pp. 1, 8, 10; Washington Post, 27 September 1996, pp. A4, D1, D2. Also see Garrow, “The Perils of Congress Imposing Its Medical Ideas,” Philadelphia Inquirer, 25 September 1996, p. A23. The official Senate vote was 57–41, but majority leader Trent Lott switched his vote from “yes” to “no” for purely procedural purposes, and one absentee also supported override, thus making for a “real” total of 59, 8 less than the 67 necessary.

57. New York Times, 14 August 1996, p. B6, 29 September 1996, p. 30, 6 November 1996, p. A16; Washington Post, 29 September 1996, p. A4.

58. New York Times, 1 November 1996, p. A20, 6 November 1996, p. A16, 25 January 1997, p. 6, 13 February 1997, p. A14; Los Angeles Times, 6 November 1996, p. D2; Washington Post, 12 January 1997, pp. A1, A18, A19, 13 February 1997, pp. A1, A15; Gayle Kirshenbaum, “The Stealth Operation to Market RU-486,” George, April 1997, pp. 112–115, 124–125.

59. New York Times, 17 January 1997, pp. A1, A9, 18 January 1997, p. 6, 20 January 1997, p. A9, 21 January 1997, p. A6, 23 January 1997, p. A8, 7 February 1997, p. A9. After anonymous letters claimed credit for the Atlanta bombing and for a second one at a gay Atlanta nightclub on behalf of the “Army of God,” reporter Judy Thomas asked Michael Bray whether any such organization existed. “Who would know? And who would tell you if he did?” Bray answered. “I would say it’s reasonable to suppose there’s an association of people out there.” Kansas City Star, 26 February 1997, p. A1.

60. Schenck v. Pro-Choice Network of Western New York, 117 S.Ct. 855, 19 February 1997, affirming in part and reversing in part 67 F.3d 377 (2nd Cir. en banc), 28 September 1995, which had reversed a two to one panel ruling, 67 F.3d 359 (2nd Cir.), 6 September 1994, which had in turn in large part reversed U.S. District Judge Richard J. Arcara’s rulings, 828 F.Supp. 1018, and 799 F.Supp. 1417 (N.D. N.Y.), 30 July 1993 and 14 February 1992; New York Times, 8 September 1994, p. B5, 20 February 1997, pp. A1, A16. Also note Pro-Choice Network v. Walker, 994 F.2d 989 (2nd Cir.), 26 May 1993, and Deborah A. Ellis and Yolanda S. Wu, “Of Buffer Zones and Broken Bones: Balancing Access to Abortion and Anti-Abortion Protestors’ First Amendment Rights in Schenck v. Pro-Choice Network,” Brooklyn Law Review 62 (Summer 1996): 547–583.

Also compare Hill v. Colorado, 117 S.Ct. 1077, 24 February 1997, vacating and remanding Hill v. City of Lakewood, 911 P.2d 670 (Col.Ct.Apps.), 13 July 1995, for further consideration in light of Schenck, on remand, Hill v. City of Lakewood, 949 P.2d 107 (Col.Ct. Apps.), 26 June 1997 [upholding an eight- as opposed to fifteen-foot personal distance statute], with Sabelko v. Phoenix, 117 S.Ct. 1077, 24 February 1997, vacating and remanding 68 F.3d 1169 (9th Cir.), 19 October 1995 [which had reversed 846 F.Supp. 810 (D. Ariz.), 11 February 1994], for further consideration in light of Schenck, on remand, 120 F.3d 161 (9th Cir.), 14 July 1997 [voiding an eight-foot personal distance ordinance]; New York Times, 25 February 1997, p. A12, 15 July 1997, p. A11. Also see Williams v. Planned Parenthood Shasta-Diablo, 117 S.Ct. 1285, 17 March 1997 (more fully detailed in note 10 above); New York Times, 18 March 1997, p. A14; People v. Conrad, 64 Cal.Rptr. 848 (Cal.Ct.App.1st), 15 May 1997; and, per Sabelko, Edwards v. City of Santa Barbara, 70 F.3d 1277 (9th Cir.), 22 November 1995, vacating and remanding 883 F.Supp. 1379 (C.D. Cal.), 14 March 1995.

61. See Planned Parenthood League of Massachusetts v. Bell, 677 N.E.2d 204 (Mass.S.J.Ct.), 18 March 1997 [affirming an injunction prohibiting Bell from coming within fifty feet of Planned Parenthood’s Brookline clinic]; U.S. v. Scott, 958 F.Supp. 761, 775 and 919 F.Supp. 76 (D. Conn.), 2 April 1997 and 18 March 1996 [enjoining Scott’s protests outside a Bridgeport clinic and noting Scott’s declaration to women patients, “You’ve had your dirty sex and now you have to pay for it”], U.S. v. Vazquez, 1998 WL 234725 (2nd Cir.), 12 May 1998; U.S. v. Weslin, 964 F.Supp. 83 (W.D. N.Y.), 6 May 1997; Stale v. Stambaugh, 570 N.W. 2d 63 (Wis.Ct.Apps.), 29 July 1997, review denied, 215 Wis. 2d 425 (Wis.S.Ct.) 20 November 1997; Lucero v. Trosch, 121 F.3d 591 (11th Cir.), 8 September 1997 [also see 928 F.Supp. 1124 and 904 F.Supp. 1336 (D.Ala.), 28 May 1996 and 1 November 1995]; Hoffman v. Hunt, 126 F. 3d 575 (4th Cir.), 19 September 1997 (cert. denied, 66 USLW 3755, 26 May 1998), reversing 923 F.Supp. 791 (W.D. N.C.), 1 April 1996 [also see (Raleigh) News and Observer, 8 June 1996, p. A3, and 845 F. Supp. 340 (W.D. N.C.), 22 February 1994]; and U.S. v. Bird, 124 F.3d 667 (5th Cir.), 24 September 1997, cert. denied 118 S.Ct. 1189, 9 March 1998.

Note too U.S. v. Lynch, 952 F.Supp. 167 (S.D. N.Y.), 10 January 1997 (review now pending in the Second Circuit Court of Appeals), 104 F.3d 357 (2nd Cir.), 11 December 1996, cert. denied, 117 S.Ct. 1436, 14 April 1997; New York Times, 31 October 1995, p. B4, 20 January 1997, p. A13, 22 January 1997, p. A18, 23 April 1997, p. B2; Washington Post, 8 February 1997, p. A20; New York Law Journal, 16 July 1997, p. 1, 10 September 1997, p. 1; also note Palmetto State Medical Center v. Operation Lifeline, 117 F.3d 142 (4th Cir.), 2 July 1997.

Also see Raney v. Aware Women Center, #97–1197-CV (M.D. Fla.), 3 December 1997; and Florida Today, 2 March 1997, p. A1, 7 October 1997, p. B1, 19 November 1997, p. B1.

62. Lambert v. Wicklund, 117 S.Ct. 1169, 31 March 1997, reversing and remanding Wicklund v. Salvagni, 93 F.3d 567, 16 August 1996, on remand, 112 F.3d 1040 (9th Cir.), 2 May 1997, and 979 F.Supp. 1285 (D. Mont.), 9 October 1997; New York Times, 23 December 1993, p. A12, 1 April 1997, p. A13, 17 June 1997, p. A11. State trial court judge Dorothy McCarter subsequently blocked the law on state constitutional grounds.

63. Mazurek v. Armstrong, 117 S.Ct. 1865, 1866, 1867, 16 June 1997 (the appellate ruling “is in consistent with our treatment of the physician-only requirement at issue in Casey” notwithstanding “the fact that an anti-abortion group drafted the Montana law. But that says nothing about the legislature’s purpose in passing it.”), reversing and remanding 94 F.3d 566 (9th Cir.), 27 August 1996, which had vacated and remanded 906 F.Supp. 561 (D. Mont.), 29 September 1995; Los Angeles Times, 17 June 1997, p. A10.

64. New York Times, 26 February 1997, p. A10, 27 February 1997, p. A11, 3 March 1997, pp. A1, A12, 9 March 1997, pp. IV-3, IV-15, 10 March 1997, p. A12; Bergen Record, 27 February 1997, p. A1; Washington Post, 27 February 1997, p. A4; American Medical News, 3 March 1997, p. 54; U.S. News and World Report, 10 March 1997, p. 19; USA Today, 11 March 1997, p. D1; New Republic, 24 March 1997, pp. 19ff.

65. Fitzsimmons memo, 4 April 1997, author’s files; U.S. Congress, Senate, Committee on the Judiciary, Partial-Birth Abortion: The Truth—Joint Hearing, 105th Cong., 1st sess., 11 March 1997, pp. 38, 49; New York Times, 12 March 1997, p. A12; Washington Post, 12 March 1997, p. A4; U.S. Congress, House of Representatives, Partial-Birth Abortion Ban Act of 1997—Report #105–24, 105th Cong., 1st sess., 14 March 1997.

66. Raja Mishra, Detroit Free Press, 15 April 1997, p. A1; New York Times, 5 May 1997, pp. A1, A11. Also see American Medical News, 5 May 1997, p. 5, and also note three Frank Rich columns, New York Times, 11 May 1997, p. IV-15, 25 May 1997, p. IV-11, 29 May 1997, p. A19.

67. New York Times, 21 March 1997, pp. A1, A14, 23 March 1997, p. 15, 9 May 1997, p. A14, 13 May 1997, p. A9, 17 May 1997, p. 7; Washington Post, 21 March 1997, p. A12, Tom Daschle, 2 May 1997, p. A19; Los Angeles Times, 2 April 1997, p. E1, 3 April 1997, p. E1.

68. New York Times, 14 May 1997, p. A14, 15 May 1997, p. A16, 16 May 1997, pp. A1, A13, William Safire, 18 May 1997, p. IV-17; Washington Post, 14 May 1997, pp. A1, A6, 15 May 1997, p. A11, 16 May 1997, pp. A1, A6, A7, 17 May 1997, p. A24, Robert D. Novak, 19 May 1997, p. A21; Albert R. Hunt, Wall Street Journal, 22 May 1997, p. A15; Ruth Padawer, Bergen Record, 18 May 1997, p. R1. On ACOG, see American Medical News, 3 March 1997, p. 3.

69. New York Times, 20 May 1997, pp. A1, A12, 21 May 1997, pp. A1, A12, A18, 25 June 1997, p. A11; Washington Post, 20 May 1997, pp. A1, A8, 21 May 1997, pp. A1, A4, 30 May 1997, p. A7, 30 June 1997, p. A19; Los Angeles Times, 20 May 1997, p. A1; 143 Congressional Record S4715; Modern Healthcare, 26 May 1997, p. 3; American Medical News, 26 May 1997, pp. 1, 25, 2 June 1997, p. 3, 7 July 1997, p. 3. On Santorum, see Joe Klein, “The Senator’s Dilemma,” New Yorker, 5 January 1998, pp. 30–35.

70. Katharine Q. Seelye, New York Times, 22 May 1997, p. A9, Seelye, New York Times, 25 May 1997, p. IV-5; New York Times, 24 May 1997, p. 19; Fred Barnes, Weekly Standard, 26 May 1997, p. 12; New Republic, 2 June 1997, p. 6; Garrow, “When ‘Compromise’ Means Caving In,” Washington Post, 1 June 1997, p. C3.

71. Oregonian, 23 May 1997, p. A1, 24 May 1997, p. C1; New York Times, 24 May 1997, p. 9, 11 February 1998, p. A20, 29 April 1998, p. A18; Seattle Times, 13 October 1997, p. B3; Spokane Spokesman-Review, 24 October 1997, p. B1; Rocky Mountain News, 15 November 1997, p. A48.

72. Washington Post, 11 June 1997, pp. A1, A20, 12 June 1997, p. A3; New York Times, 13 June 1997, p. A14, 2 July 1997, p. A12, 13 November 1997, p. A11, 30 April 1998, p. A20; Drug Topics, 7 July 1997, p. 8; Boston Globe Magazine, 23 November 1997, pp. 18ff.; Eric A. Schaff et al., “Vaginal Misoprostol Administered at Home After Mifepristone (RU486) for Abortion,” Journal of Family Practice 44 (April 1997): 353–360, at 358; David A. Grimes, “Medical Abortion in Early Pregnancy: A Review of the Evidence,” Obstetrics & Gynecology 89 (May 1997): 790–796, at 795.

Also especially see Mitchell D. Creinin et al., “Early Abortion: Surgical and Medical Options,” Current Problems in Obstetrics, Gynecology and Fertility 20 (January-February 1997): 6–32; F. Cadepond et al., “RU 486 (Mifepristone): Mechanisms of Action and Clinical Use,” Annual Review of Medicine 48 (1997): 129–156; Schaff et al., “Methotrexate: A Single Agent for Early Abortion,” Journal of Reproductive Medicine 42 (January 1997): 56–60; and Irving M. Spitz et al., “Early Pregnancy Termination with Mifepristone and Misoprostol in the United States,” New England Journal of Medicine 338 (30 April 1998): 1241–1247. Note also Susan J. Mackensie and Seonae Yeo, “Pregnancy Interruption Using Mifepristone (RU-486),” Journal of Nurse-Midwifery 42 (March-April 1997): 86–90, and Creinin et al., “Misoprostol for Medical Evacuation of Early Pregnancy Failure,” Obstetrics & Gynecology 89 (May 1997): 768–772; dated and of little utility is Gwendolyn Prothro, “RU 486 Examined: Impact of a New Technology on an Old Controversy,” University of Michigan Journal of Law Reform 30 (Summer 1997): 715–741.

73. New York Times, 9 October 1997, pp. A1, A13, 10 October 1997, p. A11, 11 October 1997, p. A9; Washington Post, 9 October 1997, p. A8; Los Angeles Times, 9 October 1997, p. A22, 11 October 1997, p. A22. One representative, New York Democrat Charles Rangel, mistakenly voted yes rather than no, thus making the “true” tally 295 to 133—virtually identical to the earlier March vote. Also lurking on 1998’s congressional horizon was S.1645, the Child Custody Protection Act, a bill introduced by Michigan Republican senator Spencer Abraham which would provide up to one year’s imprisonment for anyone who knowingly transported a woman under the age of eighteen across a state line so as to obtain an abortion in avoidance of a home-state parental involvement law. See Washington Times, 14 May 1998, p. A8; New York Time, 21 May 1998, p. A14, 29 May 1998, p. A18; Legal Times, 25 May 1998, pp. 1, 18–19; Los Angeles Times, 30 May 1998, p. A4.

74. Karlin v. Foust, 975 F.Supp. 1177 (W.D.Wis.), 20 June and 2 October 1997, concerning W.S.A. 253.10(3)(b) [a physician must “in person, orally inform”]; Wisconsin State Journal, 6 October 1996, p. A1, 20 June 1997, p. A1, 4 October 1997, p. A1, 6 February 1998, p. A1, 15 April 1998, p. B1; Milwaukee Journal Sentinel, 20 June 1997, p. 1, 4 October 1997, p. 5, 7 February 1998, p. 5, 24 April 1998, p. 2, 22 May 1998, p. 3, 31 May 1998, p. 1; Madison Capital Times, 6 February 1998, p. A2, 22 May 1998, p. A2; New York Times, 31 May 1998, p. 18. On Ohio, see Cincinnati Post, 15 September 1997, p. A10, 23 September 1997, p. A10, 18 April 1998, p. A1; Cleveland Plain Dealer, 15 January 1998, p. A1; Columbus Dispatch, 18 January 1998, p. C5, 5 February 1998, p. C9; Cincinnati Enquirer, 24 April 1998, p. D2.

Commenting on Casey, Judge Crabb noted (p. 1210) that “after the Supreme Courts recent decision in Armstrong [the Montana physician assistant case] the impermissible purpose prong of the undue burden test appears almost impossible to prove in the absence of a confession like that in Bangerter,” where the 10th Circuit Court of Appeals’ voiding of a restrictive Utah statute had just been left undisturbed by the High Court. See note 37 above. Concluding (p. 1229), “I am bound by the holding in Casey to find that most of the obstacles” created by Wisconsin “do not constitute undue burdens,” Judge Crabb observed that “so long as the state stops short of preventing women from obtaining abortions and clothes its laws with the veneer of ‘persuasion,’ Casey permits almost any effort by the state to influence what Roe protected and kept private.” For another decidedly pessimistic commentary on Casey’s “weak and confusing” undue burden standard, see Janet Benshoof, “Abortion Rights and Wrongs,” Nation, 14 October 1996, pp. 19–20; also see Kathryn Kolbert, National Law Journal, 26 January 1998, p. A21 (calling Casey a “Pyrrhic victory”). On restrictive state statutes more generally also see Kathryn Kolbert and Andrea Miller’s essay in Rickie Solinger, ed., Abortion Wars (Berkeley: University of California Press, 1998), pp. 95–110.

A Kansas twenty-four-hour waiting period statute took effect July 1, 1997, but did not mandate two in-person visits. Kansas City Star, 10 August 1997, p. B1; a similar Kentucky law was scheduled to take effect July 15, 1998. Louisville Courier-Journal, 16 April 1998, p. A1.

75. Washington v. Glucksberg, 117 S.Ct. 2258, and Vacco v. Quill, 117 S.Ct. 2293, 26 June 1997. Glucksberg reversed Compassion in Dying v. State of Washington, 79 F.3d 790 (9th Cir. en banc), 6 March 1996, which in turn had reversed 49 F.3d 586 (9th Cir.), 9 March 1995, which had reversed 850 F.Supp. 1454 (W.D.Wash.), 3 May 1994. Both the district judge, Barbara Rothstein, and U.S. Circuit Judge Stephen Reinhardt, writing for the en banc majority, had relied very heavily on Casey in striking down the Washington state antiassistance statute. Vacco reversed 80 F.3d 716 (2nd Cir.), 2 April 1996, which in turn had reversed Quill v. Koppell, 870 F.Supp. 78 (S.D. N.Y.), 15 December 1994.

Also see, regarding Oregon, Lee v. Harcleroad, 118 S.Ct. 328, 14 October 1997, denying cert. to Lee v. State of Oregon, 107 F.3d 1382 (9th Cir.), 27 February 1997, which had reversed 891 F.Supp. 1421 and 869 F.Supp. 1491 (D. Or.), 3 August 1995 and 27 December 1994.

My own commentaries on these cases include “The Justices’ Life or Death Choices,” New York Times, 7 April 1996, p. IV-6; “Nine Justices and a Funeral,” George, June 1997, pp. 56–63; “Letting the Public Decide About Assisted Suicide,” New York Times, 29 June 1997, p. IV-4; “The Oregon Trail,” New York Times, 6 November 1997, p. A27; and “A New View of Death,” Oregonian, 6 November 1997, p. D11.

76. See in general National Law Journal, 22 September 1997, p. A10; Time, 20 October 1997, p. 50; and Garrow, “The Reach of Roe,” Washington Post, 18 January 1998, pp. C1, C6.

On Ohio, see Women’s Medical Professional Corp. v. Voinovich, 130 F.3d 187 (6th Cir.), 18 November 1997, cert. denied, 118 S.Ct. 1347, 23 March 1998; New York Times, 19 November 1997, p. A16, 24 March 1998, p. A13; Cincinnati Enquirer, 6 December 1997, p. A1; Columbus Dispatch, 24 March 1998, p. A1.

On Georgia, see Midtown Hospital v. Miller, #97–1786 (N.D. Ga.), 27 June and 24 July 1997; Atlanta Constitution, 21 June 1997, p. D1, 1 July 1997, p. B1, 2 July 1997, p. B5; Fulton County Daily Report, 30 June 1997, pp. 1, 2, 28 July 1997, pp. 1, 5.

On Alabama, see Montgomery Advertiser, 8 August 1997, p. B1, 6 September 1997, p. B5, 3 December 1997, p. A11, 27 January 1998, p. A1; Summit Medical Associates v. James, 984 F. Supp. 1404 (M.D. Ala.), 26 January 1988, #1970713 (Ala.S.Ct.), 11 February 1998, 1998 WL 125776 (M.D.Ala.), 19 March 1998.

On Rhode Island, see Rhode Island Medical Society v. Pine, #97–416 (D. R.I.), 11 July 1997; Providence Journal-Bulletin, 12 July 1997, p. A1, 1 August 1997, p. B1, 3 April 1998, p. B1, 10 April 1998, p. B1.

On Louisiana, see Causeway Medical Suite v. Foster, #97–2211 (E.D. La.), 14 July 1997; New York Times, 30 June 1997, p. A12; New Orleans Times-Picayune, 16 July 1997, p. A4, 15 August 1997, p. A17; Baton Rouge Advocate, 22 August 1997, 18 September 1997, p. B9, 14 October 1997, p. B4; Baton Rouge Capital City Press, 18 October 1997, p. A13. In the second case, Okpalobi v. Foster, 981 F.Supp. 977 (E.D. La.), 7 January 1998, a temporary restraining order issued on August 14 was converted into a preliminary injunction early in 1998.

On Arizona, see Planned Parenthood of Southern Arizona v. Woods, 982 F. Supp. 1369 (D. Ariz.), 27 October 1997; USA Today, 22 September 1997, p. A10.

On Arkansas, see Little Rock Family Planning Services v. Jegley, #97–581 (E.D. Ark.), 31 July 1997; Arkansas Democrat-Gazette, 29 July 1997, p. B1, 13 September 1997, p. B7, 10 October 1997, p. B1, 5 November 1997, p. B2; Memphis Commercial Appeal, 1 August 1997, p. A12.

On Alaska, see Planned Parenthood of Alaska v. State, #97-06019 Civil (Super. Ct., 3rd Jud Dist.), 31 July 1997; and Anchorage Daily News, 13 August 1997, p. B2, 27 February 1998, p. A1, 14 March 1998, p. A1.

On Montana, see Intermountain Planned Parenthood v. State, #BDV 97-477, Mon. 1st Jud. Dist. Ct., 1 October 1997.

77. Evans v. Kelley, 977 F.Supp. 1283, 1311, 1318 (E.D. Mich.), 31 July 1997; New York Times, 1 August 1997, p. A20, 4 August 1997, p. A10.

78. Carhart v. Stenberg, 972 F.Supp. 507, 509, 525, 523, 531 (D. Neb.), 14 August 1997; Omaha World-Herald, 14 August 1997, p. 1, 15 August 1997, p. 1, 24 March 1998, p. 11, 25 March 1998, p. 19, 26 March 1998, p. 20.

79. On New Jersey, see Planned Parenthood of Central New Jersey v. Verniero, Civ. #97-6170 (D. N.J.), 24 December 1997; New York Times, 15 December 1997, p. A15, 16 December 1997, p. A17, 17 December 1997, pp. A18, A20, 23 February 1998, p. A10; New Jersey Law Journal, 22 December 1997, p. 6; Bergen Record, 25 December 1997, p. A1.

On Illinois, see Hope Clinic v. Ryan, 1998 WL 95222 (N.D. Ill.), 12 February 1998; Peoria Journal Star, 13 November 1997, p. A9; Chicago Tribune, 17 December 1997, p. 3, 13 February 1998, p. 1; Chicago Daily Law Bulletin, 16 April 1998, p. 5.

On Idaho, see Weyhrich v. Lance, #98–117 (D.Id.), 27 March 1998; Idaho Statesman, 14 March 1998, p. A1, 17 March 1998, p. A1.

On Wisconsin, see Wisconsin State Journal, 1 May 1998, p. C1, 6 May 1998, p. B3, 14 May 1998, p. A1, 15 May 1998, p. A1, 16 May 1998, p. A1, 19 May 1998, p. A1, 20 May 1998, p. A1, 27 May 1998, p. B1, 3 June 1998, p. C1, 5 June 1998, p. C1; Milwaukee Journal Sentinel, 14 May 1998, p. 3, 16 May 1998, p. 1, 21 May 1998, p. 1, 28 May 1998, p. 3, 5 June 1998, p. 5; Madison Capital Times, 14 May 1998, p. A1, 15 May 1998, p. A1, 18 May 1998, p. A1, 19 May 1998, p. A2, 20 May 1998, p. A2, 21 May 1998, p. A1, 22 May 1998, p. A12, 4 June 1998, p. A1; New York Times, 15 May 1998, p. A14, 16 May 1998, p. A26, 20 May 1998, p. A13; Washington Post, 15 May 1998, p. A1, 20 May 1998, p. D16; National Law Journal, 1 June 1998, p. A7.

Seven other states—Florida, Iowa, Kansas, Kentucky, Oklahoma, Virginia, and West Virginia, for a cumulative total of 28—also adopted partial birth ban laws during the first five months of 1998. Oklahoma’s took effect without judicial challenge, but cases attacking the Florida, Iowa, Kansas, Virginia, and West Virginia ones were quickly filed, and reproductive rights lawyers predicted that Kentucky’s would be challenged, too.

On Florida, see St. Petersburg Times, 4 April 1998, p. B5, and Orlando Sentinel, 2 June 1998, p. D1. On Iowa, see Des Moines Register, 5 March 1998, p. 4. On Kansas, see Kansas City Star, 28 April 1998, p. A1, 3 May 1998, p. A1, 4 May 1998, p. A2, 4 June 1998, p. A1. On Kentucky, see Louisville Courier-Journal, 16 April 1998, p. A1. On Oklahoma, see Daily Oklahoman, 9 April 1998, p. 1, 16 April 1998, p. 8. On Virginia, see Washington Post, 14 April 1998, pp. B1, B7, Richmond Times Dispatch, 22 May 1998, p. B1. On West Virginia, see Charleston Gazette, 9 April 1998, p. A1, 9 June 1998, p. A1.

80. New York Times, 30 January 1998, p. A1, 31 January 1998, p. A7, 3 February 1998, p. A10, 7 February 1998, p. A9, 15 February 1998, p. 14, 27 February 1998, p. A15, 28 February 1998, pp. A1, A8, 3 March 1998, p. A16, 11 March 1998, p. A10, 30 April 1998, p. A24, 6 May 1998, p. A16, 17 May 1998, p. 14; Washington Post, 30 January 1998, p. A1, 15 February 1998, p. A3. Dallas Blanchard observed that “as the movement weakens, it tends to get more and more violent.” Atlanta Journal Constitution, 30 January 1998, p. A11. Also see Christopher Swope, “Abortion,” Governing, May 1998, pp. 44–49.

81. For a stark example of the renewed focus on the fetus, see Sheryl Stolberg, New York Times, 11 January 1998, p. IV-3; with regard to sexuality, see Garrow, “Abortion and the Future,” Chicago Tribune, 21 January 1998, p. I-13. Also see Garrow, “All Over But the Legislating,” New York Times Book Review, 25 January 1998, pp. 14–16; Washington Post, 1 May 1998, p. E3.

82. As Janet Benshoof has correctly observed, in Casey “the Court codified into constitutional law the view that women seeking abortions are morally shallow and incapable of making decisions in their own best interests.” “Revisiting the Fundamentals,” Conscience 18 (Winter 1997–1998): 16–17.

83. With regard to zoning, see Planned Parenthood of Greater Iowa v. Atchison, 126 F.3d 1042 (8th Cir.), 25 September 1997, and New York Times, 15 February 1998, p. 15.

For the Alaska Supreme Court’s holding that the state constitution protects abortion as a fundamental right, see Valley Hospital Association v. Mat-Su Coalition for Choice, 948 P.2d 963 (Alas.S.Ct.), 21 November 1997, and New York Times, 15 February 1998, p. 15. Also see Anchorage Daily News, 27 February 1998, p. A1.

Far differently, in late 1997 the South Carolina Supreme Court, in reinstating a woman’s criminal child neglect conviction—and eight-year prison sentence—following the birth of a “crack”-affected baby, held by a three-to-two vote that the word “child” includes viable fetuses. Whitner v. State, 492 S.E.2d 777 (S.C.S.Ct.), 27 October 1997, cert. denied, 66 USLW 3754, 26 May 1998; New York Times, 30 October 1997, p. A17, 13 January 1998, pp. A1, A8, 27 May 1998, p. A18.

Also see Davis v. Fieker, 952 P. 2d 505 (Okla.S.Ct.), 23 December 1997, where Oklahoma’s highest court overlooked a glaring problem of standing and ordered the state board of health to begin enforcing several statutes, including one requiring that all post-first trimester abortions be performed in hospitals, that the state attorney general in 1984 had said were constitutionally unenforceable. Tulsa World, 26 December 1997, p. A1.

84. New York Times, 21 December 1997, pp. 1, 18; New York Times Magazine, 18 January 1998, pp. 20–27ff.

85. Robert J. Blendon et al., “The Public and the Controversy over Abortion,” Journal of the American Medical Association 270 (15 December 1993): 2871–2875, at 2872; Michael R. Welch et al., “Attitudes Toward Abortion Among U.S. Catholics: Another Case of Symbolic Politics?” Social Science Quarterly 76 (March 1995): 142–157, at 152; New York Times, 16 January 1998, pp. A1, A16; Everett C. Ladd and Karlyn H. Bowman, Public Opinion about Abortion: Twenty-five Years after Roe v. Wade (Washington, D.C.: AEI Press, 1997), p. 17. Also note Neil Nevitte et al., “The American Abortion Controversy: Lessons from Cross-National Evidence,” Politics and the Life Sciences 12 (February 1993): 19–30, at 25 (“support for legalizing abortion appears to be approximately 10 to 20 percept higher than support for abortion per se”); Matthew E. Wetstein, Abortion Rates in the United States: The Influence of Opinion and Policy (Albany: State University of New York Press, 1996), p. 73 (“Americans have come to hold stable views on abortion”); New York Times, 21 October 1997, pp. A1, A14, 17 January 1998, pp. A1, A7, 24 January 1998, p. A13; Garrow, “Abortion and the Future,” Chicago Tribune, 21 January 1998, p. I-13; Bergen Record, 6 March 1998, p. A3; Lydia K. Saad, Public Perspective, February/March 1998, pp. 7–11, and Orlando Sentinel, 15 March 1998, p. G1; Louisville Courier-Journal, 17 March 1998, p. A1; and a multi-part discussion in The Hotline, 17–20 March 1998.

Also see especially Christopher B. Wlezien and Malcolm L. Goggin, “The Courts, Interest Groups, and Public Opinion about Abortion,” Political Behavior 15 (December 1993): 381–405; Raymond J. Adamek, “Public Opinion and Roe v. Wade: Measurement Difficulties,” Public Opinion Quarterly 58 (Fall 1994): 409–418; Matthew E. Wetstein and Robert B. Albritton, “Effects of Public Opinion on Abortion Policies and Use in the American States,” Publius 25 (Fall 1995): 91–105; R. Michael Alvarez and John Brehm, “American Ambivalence Towards Abortion Policy …,” American Journal of Political Science 39 (November 1995): 1055–1082; and William Saletan, “Electoral Politics and Abortion,” in Rickie Solinger, ed., Abortion Wars (Berkeley: University of California Press, 1998), pp. 111–123.

Note also Bhavani Sitaraman, The Middleground: The American Public and the Abortion Debate (New York: Garland Publishing, 1994); Kimberly J. Cook, Divided Passions: Public Opinions on Abortion and the Death Penalty (Boston: Northeastern University Press, 1998); Robert E. O’Connor and Michael B. Berkman, “Religious Determinants of State Abortion Policy,” Social Science Quarterly 76 (June 1995): 447–459; and Matthew E. Wetstein, “The Abortion Rate Paradox: The Impact of National Policy Change on Abortion Rates,” Social Science Quarterly 76 (September 1995): 607–618.

86. Matt Trewhella, “Coming Home to Roost,” Life Advocate 12 (January-February 1998); USA Today, 17 November 1997, p. A17; New York Times, 21 October 1997, pp. A1, A14; Los Angeles Times, 17 November 1997, p. A5; Washington Post, 18 January 1998, p. A4.

87. Janet Benshoof, as quoted in the National Law Journal, 22 September 1997, p. A10. Frances Kissling rightly complains that “we no longer talk about rights.… We try to co-opt conservatives by stressing their buzz words.” Conscience 18 (Winter 1997–1998): 3.

88. Ms., January-February 1998, p. 77. Kissling also noted, “Now there is a lot more ambivalence and a lot more need for justification. When it is legal, then you can start to think about ‘Is it right?’” Washington Post, 22 January 1998, pp. A1, A8.

89. An impressively powerful articulation of just what is needed is given by Madison provider Elizabeth Karlin in Rickie Solinger, ed., Abortion Wars (Berkeley: University of California Press, 1998), pp. 273–289. Also see Patricia Lunneborg, Abortion: A Positive Decision (New York: Bergin & Garvey, 1992), p. x: “Abortion is not the lesser of two evils. Abortion is pro-family, prolife, moral, and good.”

On the Roe and Doe anniversary, see in general New York Times, 15 January 1998, p. A14, 23 January 1998, p. A11; U.S. News and World Report, 19 January 1998, pp. 20–32; and Wall Street Journal, 22 January 1998, p. A18.

AFTERWORD

1. Harold D. Lasswell, “The Threat to Privacy,” in R.M. MacIver, ed., Conflict of Loyalties (New York: Harper & Bros., 1952), pp. 121–140, at 134; John B. Young, “A Look at Privacy,” in Young, ed., Privacy (New York: John Wiley, 1978), pp. 1–10, at 1; Harper, “The Law and Sex Behavior,” Survey, April 1948, p. 117; Garrow conversations with Jean and Marvin Durning and Robert “Oldendorf.” Also note Oliver Wendell Holmes’s often-quoted observation that “The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do that the syllogism in determining the rules by which men should be governed.” The Common Law (Boston: Little, Brown & Co., 1881), p. 1.