Before Roe v. Wade

Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling

By Linda Greenhouse and Reva B. Siegel

[Available Here]

ACSblog recently caught up with Linda Greenhouse and Reva B. Siegel to ask them about their new book, "Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court Ruling." Linda Greenhouse is a Pulitzer-Prize-winning journalist and former New York Times Supreme Court correspondent and author of the biography "Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey." Greenhouse is a member of the ACS Board of Directors. Reva B. Siegel is the Nicholas deB. Katzenbach Professor of Law at Yale University and coeditor of the "The Constitution in 2020" and "Processes of Constitutional Decisionmaking." Siegel is faculty adviser to the ACS Chapter at Yale Law School.

ACSblog: What were you trying to capture with this book? Why the focus on the pre-Roe period?

Greenhouse and Siegel: A C-Span poll a few weeks ago found that of all those people who said they could name a Supreme Court decision, three-quarters named Roe v. Wade -- the runner-up, Brown v. Board of Education, was volunteered by only 9 percent of the respondents. After decades of conflict, Roe has come to stand for Supreme Court decisions. Yet few of us know much about the forces that led to Roe, or to conflict over the decision. The book explores how the abortion debate began-and acquired the partisan shape it has today.

The debates prompting liberalization of abortion in the 1960s started out looking little like our own. The public health community challenged bans on abortion as discriminating between the rich and the poor. It was not until the late 1960s that feminists began to argue that restrictions on abortion violated the constitutional rights of women.

It's natural to assume that opposition to abortion before Roe looked much as it does now - that conservative religious denominations were solidly opposed to decriminalizing abortion, for example, and that the Republican Party was identified with the anti-abortion cause. Yet neither of those assumptions is correct, as we demonstrate in the book. At the time the Court decided Roe, the Catholic church was isolated in its categorical opposition to abortion, while the evangelical Protestant denominations were open to "therapeutic" abortion reform; and considerably more Republicans than Democrats, although a majority of each, favored leaving the abortion decision up to a woman and her doctor without government involvement.

The documents we collected also show that, contrary to the commonly expressed view that it was the Supreme Court and its decision that unleashed a "backlash" against abortion reform, a vigorous counter-movement was forming well before Roe. In the late 1960s, as public support for liberalization surged, the Catholic Church helped organize an antiabortion movement to oppose liberalization in every state legislature and court considering abortion laws. Strategists for President Nixon's 1972 re-election then decided to denounce "permissive" abortion laws to attract Catholics from their longtime affiliation with the Democratic Party and court the support of a "silent majority." As the book shows, before the Court decided Roe, conservative architects of the "New Right" had already decided to use opposition to abortion as part of a strategy for party realignment that would come to fruition with the election of Ronald Reagan in 1980.

We each brought different perspectives to this project. As a law professor, Reva is interested in the ways that political conflict shapes constitutional development. In her work on democratic constitutionalism, Reva has analyzed social movement conflict and constitutional change in the areas of race, guns, and abortion. And Linda had been writing about abortion since her very earliest years as a journalist. In fact, one of the documents we reprint in the book is a magazine article she wrote for the New York Times that appeared in the magazine under the title: "Constitutional Question: Is There a Right to Abortion?" The date on the article was January 25, 1970.

Both of us, of course, interact with students on a daily basis, and it was clear to us that the current generation knows little about the period before Roe. So that was one motivation. Another was to engage the public interested in the abortion debate, from an unfamiliar perspective. We both learned a lot ourselves in the course of preparing the book, so it's clear that even people who lived through the period will find surprises here. It's a wonderfully rich period with much history yet to be written. We are hoping to encourage other scholars to focus "before Roe," as well.

ACSblog: This is a book of original source documents. Which of these did you find most revealing? [See the book's table of contents (pdf) for the kind of documents included in the authors' work.]

Greenhouse and Siegel: That's right; the book is neither a case study nor a conventional narrative. It's a source book, a collection of original documents - letters, legislative testimony, legal briefs, advocacy materials, and journalism of the period -more than 60 documents in all. We have annotated each document to place each one in context, and have added some analytical essays, but the basic point is to enable readers to encounter these sources for themselves. It's impossible to say which the "most" is revealing, because each document reveals a different piece of the picture.

For example, early in the book we include a first-person narrative by Sherri Chessen Finkbine, who in 1962 realized that early in a much-desired pregnancy, a drug she had been taking contained thalidomide, a substance little known in the United States that was causing babies all over Europe to be born without arms or legs. There was no place in the United States where she could get a legal abortion, and she and her husband had to go to Sweden to terminate the pregnancy. This highly publicized incident - it made the cover of Life Magazine - became the occasion for the first open national conversation about the wisdom of the 19th century laws then in place in every state that made abortion a crime. So this document is highly revealing of the world before Roe and of how a legal regime that had existed without challenge for many decades began to be placed under a public spotlight.

One of our favorite documents is a pamphlet from 1970 entitled "Sex and the Yale Student," written by a student committee under the guidance of a gynecologist at Yale's student health service, Dr. Philip M. Sarrel. The impetus for this pamphlet was the arrival that year of coeducation at Yale. While abortion was illegal in Connecticut at the time, this pamphlet offers strikingly explicit advice to students on how to handle an unwanted pregnancy. This document reveals the rapidly changing norms of sexual behavior - which of course were also part of the impetus for challenging the old laws - as well as the fact that well-off and well-connected women had options available to them that others did not.

We print an extensive excerpt from Handbook on Abortion, by J.C. Willke, M.D. and Barbara Willke. Dr. Willke, a leading strategist of the Right to Life movement, and his wife self-published this little book in 1971. It went on to sell millions of copies and became the Bible of the movement. Later editions are still in wide circulation but we are willing to bet that few in the abortion-rights camp have ever heard of it, let alone read it. Its explicitly secular arguments against legalizing abortion show how opponents of reform were reaching beyond their base in the Catholic Church to persuade, as Dr. Willke put it, others in "our pluralistic society."

From the Nixon Library, we have a document labeled by its author, Patrick Buchanan, as the "assault book," a strategy document outlining how the abortion issue could be used to attack George McGovern, the Democratic candidate in the 1972 election, in order to draw Catholic voters away from the Democrats. That McGovern in fact offered only tepid support for abortion rights, to the frustration of feminists at the Democratic National Convention, did not keep the Nixon campaign from successfully labeling the Democratic nominee the "triple-A" candidate - for "amnesty," "acid," and "abortion." This document reveals that it did not take the Supreme Court to make abortion an issue of high political salience and, eventually, a tool of party realignment.

ACSblog: Was it difficult acquiring some of the documents? What were the biggest challenges?

Greenhouse and Siegel: The Schlesinger Library on the History of Women in America, at the Radcliffe Institute for Advanced Study at Harvard, houses a collection of great depth, including the papers of Betty Friedan, NARAL, and lesser-known organizations that no longer exist. The Schlesinger's files from two such groups, the Society for Humane Abortion and the Association for the Study of Abortion, provided a number of documents and pointed us to others.

We did our best to reconstruct documents from an important pre-Roe case, Abele v. Markle, in which a number of Yale law students had participated. Abele struck down Connecticut's 19th century abortion ban, citing sex equality concerns decades earlier than the Supreme Court would. Many of the Abele litigation documents appear to have been lost or destroyed, but we were able to recover movement documents from an historian of the case, and from the basements of Yale alumni who had participated in it. Records of a state legislative hearing preserved the arguments of antiabortion advocates who swiftly reenacted Connecticut's abortion ban (which was then struck down in a case that was on appeal at the time of Roe). And Reva actually remembered a later edition of the "Sex at Yale" pamphlet from her days as a Yale undergraduate. The fabulous research librarian we worked with, Camilla Tubbs was able to dig it out for us.

And of course Justice Harry A. Blackmun's papers at the Library of Congress provided a trove of material. We weren't interested in reconstructing a detailed litigation history of Roe. But Justice Blackmun's Roe files contained several of the documents that we ended up including, to illustrate knowledge of the day that the justices and the public shared. Among these documents was a widely publicized report of George Gallup's 1972 poll results, showing a strong majority of the public in favor of decriminalizing abortion, and an article by Dr. Jane E. Hodgson, a St. Paul, Minn. obstetrician and gynecologist who defied Minnesota's law in 1970 by performing an abortion for a patient who had contracted German measles early in pregnancy. We also include a medical journal article by an acquaintance of Justice Blackmun's who strongly opposed abortion.

We were determined to provide a fair sample of anti-abortion material, and that proved a greater challenge. Americans United for Life, an important organization, declined to cooperate with us. So getting Dr. Willke's permission to excerpt his Handbook on Abortion was crucial. We also had access to legislative testimony, briefs, and other documents in the public domain. And the officials of various religious denominations proved willing to authorize reproductions of their public positions on abortion in the era of Roe, allowing us to show our readers how differently the various denominations viewed the liberalization of abortion.

Much of the material we used is copyrighted, so one challenge was obtaining the rights and another challenge was paying for them. There is no free lunch in the land of copyright. We also faced the problem of material that appeared in publications that are now defunct, or by copyright-owning authors whom we couldn't track down. To reflect the diverse views of African Americans we sought to print an excerpt from Shirley Chisholm's memoir and an article by Dick Gregory that had appeared in Ebony Magazine, but were unable to obtain permissions; we found other voices but continue to regret these particular omissions. Our oddest refusal came from Playboy. We wanted to print a letter that had appeared, with the writer's name withheld, in the Playboy Forum, a feature in the magazine. They told us that the magazine didn't own the copyright and that we would have to contact the author. But the author's name was withheld, we objected. Well, then you can't print it, Playboy said.

ACSblog: Who was your intended audience and who do you expect to benefit most from the book?

Greenhouse and Siegel: It's a book for a lay audience. We aimed to make the book accessible to college students, for use in a variety of courses. The book should also be of interest to law students. It doesn't offer a doctrinal history of privacy law or recapitulate ground in constitutional law case books. But it does offer a rich new perspective on the arguments for and against abortion rights-at a time when the argument for "choice" was an argument for change, and the antiabortion argument was a defense of the status quo.

We expect the book to be of interest to law students, to historians and theorists of backlash-and to any reader who wants a fresh perspective on abortion. Its exploration of the ways political conflict shapes constitutional interpretation is relevant to many questions now in debate-whether immigration, affirmative action or same sex marriage.

ACSblog: In this day and age, very little is written on the subject of abortion that is not contentious, how did you manage to avoid such conflict?

Greenhouse and Siegel: Our effort was to present, through original source documents, as complete a picture as we could of what various groups were saying and doing about abortion during the period the led up to Roe. Although we are both pro-choice, as we acknowledge in the introduction, our goal was not to advocate but to explain - or, more precisely, to empower readers to travel back to the pre-Roe days and come to their own conclusions. The documents we collected will speak to different readers in different ways, and that's fine with us. The only way in which we are trying to change minds is to dispel historical inaccuracies and misunderstandings about what actually occurred.

Red Families v. Blue Families

Legal Polarization and the Creation of Culture

By Naomi Cahn & June Carbone

[Available Here]

Released last week, a new study found that women over the age of 35 in the U.S. gave birth to more babies than did American teens -- a reversal of the situation 20 years ago.

Given our research into family formation, this doesn't surprise us. In Red Families v. Blue Families, we discuss which families are succeeding in the 21st Century. It is "blue" families, which invest in women as well as men, delay family formation until after young adults reach emotional maturity and financial independence, and view sexuality as a private matter, that have adapted to the new information economy. By contrast, the "red" family system is a traditional one that continues to preach abstinence, early marriage and more traditional gender roles. The religious backlash against the new values has locked red families into a war against modernity. The book also shows how cultural controversies over abortion, gay marriage and single motherhood are masking the country's real divisions, and then suggest practical steps to reshape the debate surrounding red and blue America.

Although we didn't start writing the book until after the 2004 election, our interest in family systems started almost a decade ago, when we became curious about evolutionary psychology. We quickly found that even a cursory look at the anthropological literature belied conservative claims that the family was somehow fixed and unchanging; indeed, serial monogamy seemed to be more common than long term fidelity. At the same time, some patterns seemed persistent enough to make us skeptical of the claims that family life was infinitely flexible. Children, for example, benefit from the commitment of more than one adult in almost every society.

Just as we were mulling over the potential implications for modern family law, the 2004 election occurred, with polls highlighting the role of moral values in President George W. Bush's reelection. We read with recognition the op-eds highlighting the higher teen pregnancy and divorce rates in the areas of the country ranking moral values at the top of voters' list of concerns. We thought we knew the answer. In "red" areas of the country, family life began at earlier ages -- and early marriage was a risk factor for divorce. The average ages of marriage and first birth are among the more significant factors that predict whether a state will vote red or blue.

Today, the average age of marriage has risen to over 25 for women, almost 28 for men. College-educated women, particularly those in urban areas and the coasts, have led the way. In this new world, families invest in both men and women's workforce opportunities, and emotional maturity and financial independence are the markers of responsible family formation. Social norms no longer punish non-marital sexuality, but contraception is essential, with abortion as the reluctant fallback. For those who adhere to the new rules, good things happen. College-educated women are the only group in society whose marriage rates have increased, and family income has increased. Their divorce rates have fallen partly because greater maturity is a protective factor, but even more because the successful have become even more likely to marry each other and to do so later in life.

Yet, the new family terms poses a crisis for everyone else. Divorce rates seemed to plateau in the nineties, but more sophisticated research shows that, for the college-educated, they fell in the nineties back to the levels of thirty years earlier while continuing to rise for everyone else. The well-paying blue collar jobs that supported early marriages in the fifties are gone, and self-supporting women have been become less willing to put up with violent, drunken or simply inconsiderate mates.

Today, family stability is a marker of region and class, and the more conservative and religious areas of the country are ready to fight back. They see the futures of their children and grandchildren at stake.

Even so, the emergence of family values as a divisive political issue was hardly a given. In the seventies, support for contraception was close to unanimous -- Congress passed the first federal family planning initiative in 1970 with a unanimous vote in the Senate, token opposition in the House, and the support of Republican President Richard Nixon. And both parties were divided on abortion. We argue that while the culture gap is real -- different families live different lives in different areas of the country -- culture clash is a political construct. The emergence of family values as political involves the coming together of several different trends. Those who feel threatened attribute greater importance to traditional values that they see under assault, and those who believe that moral values are a given -- fixed, eternal and divinely ordained -- are also drawn to more conservative and hierarchical leadership.

We hope the book will help move us beyond contemporary battles over moral values towards supporting families. Towards that end, we suggest three strategies:

Change the subject from abortion to contraception. The fact that teen births and abortion rise and fall in tandem provides compelling evidence that unintended pregnancy rates respond to the effectiveness of contraception, while a host of studies demonstrate that the U.S. in first in the developed world in unintended childbearing and the issue is a growing and increasingly class-based concern.

Change the subject from family to work. The essential next step for red and blue families alike is reconsideration of the relationship between work and family. For blue families, where human capital acquisition precedes family formation, the challenge is to structure the work place to fit in family. For red families, where family formation may come first, the challenge is to restructure the relationship to the workplace to make it easier to return to school, cycle in and out of the workplace, and care for sick children.

Move to the middle on family formation. One critical area where genuine convergence between the two models might ultimately transform the debate: can we persuade our prototypical red family to delay family formation to the mid-twenties and our prototypical blue family to start a bit earlier?

Last week, a federal district court in Massachusetts ruled that an ACLU challenge to the government's use of taxpayer dollars to impose religious doctrine on victims of human trafficking may go forward. The decision is a victory for women's health and for the basic constitutional principle that federal dollars cannot be used to favor one religious perspective over all others.

Since April 2006, the Department of Health and Human Services (HHS) has awarded the United States Conference of Catholic Bishops (USCCB) millions of dollars to make grants to organizations that provide direct services to trafficking victims. HHS did this knowing that USCCB prohibits, based on its religious beliefs, grantees from using any of the federal funds to provide or refer for contraceptive or abortion services. We brought a lawsuit on behalf of the members of the ACLU of Massachusetts who object to their tax dollars being used for religious purposes.

Shortly after we sued, the government asked that the court dismiss the case. The government argued that taxpayers couldn't bring the lawsuit. They argued that only, for example, a trafficking victim could raise an objection.

The government's request relied principally on the 2007 Supreme Court decision in Hein v. Freedom from Religion Foundation, which barred taxpayers from challenging the funding of regional conferences hosted by the Bush administration to promote its so-called "Faith-Based Initiative." Although that decision was quite narrow in scope and expressly refused to overturn decades of well-settled precedent, some advocates of government-sponsored religion have tried to use the Hein case - to varying degrees of success - to deny taxpayers their day in court. Fortunately, the federal court in Massachusetts rejected the government's arguments and allowed our lawsuit to proceed.

It has been the law of the land for over 40 years that taxpayers have a fundamental right to challenge governmental expenditures to support religion. In recognizing that right, the Supreme Court looked to the core of the First Amendment, explaining, "Our history vividly illustrates that one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general." Indeed, James Madison, the principal author of the First Amendment, believed that even a "three pence" tax to fund religious education would dangerously erode our precious religious liberty.

In last week's decision, Judge Richard Stearns eloquently noted the importance of allowing taxpayers to bring these legal challenges: "I have no present allegiance to either side of the debate [over taxpayer standing], only a firm conviction that the Establishment Clause is a vital part of the constitutional arrangement envisioned by the Framers, and perhaps a reason we have not been as riven by sectarian disputes as have many other societies. I also agree that a rule that has no enforcement mechanism is not a rule at all."

Constitutional rights lack meaning if they are virtually impossible to enforce. It is unlikely a trafficking victim or a cash-strapped nonprofit organization that provides services to trafficking victims would come forward to sue the federal government. So unless taxpayers can bring cases like these, the courthouse gates will effectively be shut to any challenges to government-funded religious doctrine.

Although these technical and esoteric legal issues may seem like academic exercises, there is a lot at stake. More than 14,000 individuals, predominantly women, are brought into the United States annually and exploited for their labor, including those in the commercial sex industry. Many trafficking victims experience extreme violence and sexual assault at the hands of their traffickers. Some become pregnant as a result of rape and some contract sexually transmitted infections, including HIV. Contraceptive and abortion services are critical care for many trafficking victims. Last week's court decision means that the ACLU can move forward with our challenge to ensure that these individuals receive the necessary care to safely rebuild their lives.

[Image via Ben McLeod.]

This week, March 23 marked the one-year anniversary since the bracing decision in Tummino v. Torti, in which Judge Edward R. Korman of the United States District Court for the Eastern District of New York ruled that the Food and Drug Administration (FDA) put politics over science and engaged in arbitrary and capricious decision-making when it placed age and point-of-sale restrictions on the over-the-counter status of Plan B, a form of emergency contraception.

Judge Korman ordered the FDA to reconsider limits on access to the drug. A year later, no progress has apparently been made to remove an unjustified age limit, or to relocate emergency contraception where it belongs -- out from behind pharmacy counters and next to the condoms and contraceptive jelly in a regular aisle.

Emergency contraception is a critical tool in preventing unwanted pregnancies and addressing the consequences of rape. Plan B has no known serious side effects or serious long-term health effects and scientists and medical experts agree that there are no medical grounds for denying women access to emergency contraception.

After Plan B became available by prescription in 1999, the Center for Reproductive Rights filed a Citizen's Petition in 2001, on behalf of over 70 medical and public health organizations, requesting it be made available over the counter (OTC). The manufacturer of the drug also applied for OTC status in 2003. That same year, after reviewing the scientific evidence, the FDA's expert Advisory Committee unanimously agreed that Plan B was safe for non-prescription settings, and voted 23 to 4 in favor of the switch to OTC status without any age or point-of-sale restrictions.

Despite this clear conclusion, for the first time in 10 years, the FDA did not follow the recommendation of its Advisory Committee and denied the manufacturer's application in 2004. Moreover, it delayed action on the Citizen's Petition for years - long after it was required by law to respond. In Tummino v. Torti, we challenged this delay and, when the FDA denied the petition in 2006, we amended our complaint to challenge the denial.

Meanwhile, less than two months after it denied the petition, our litigation and pressure from the court prompted the FDA to announce that it would allow OTC status for women 18 years of age and over.

This change was only a small breakthrough. In addition to the needless age distinction for OTC status, the FDA imposed intrusive and unjustified point-of-sale restrictions, requiring pharmacies to keep Plan B behind the counter and restrict non-prescription sales to individuals with government-issued proof of age.

Our lawsuit demonstrated that the FDA's decision to overrule its scientists and impose age and point-of-sale restrictions on Plan B departed sharply from its own policies and resulted from improper political influence from the Bush White House. According to Judge Korman, "political considerations, delays, and implausible justifications for decision-making," along with obvious departures from the agency's normal procedures, clearly demonstrated "a lack of good faith and reasoned agency decision-making."

Judge Korman ordered the FDA to immediately permit Plan B to be made available to 17-year-olds without a prescription, and to reconsider all the remaining restrictions on its sale. To comply, the FDA made EC available without a prescription to women 17 and older in July. But twelve months after the federal ruling, and despite requests for information and appeals to transparency, the FDA remains silent regarding its other unprecedented and unwarranted restrictions.

A core promise of the Obama administration was to restore the scientific integrity of federal agencies and to act quickly to remedy the obvious and lamentable politicization of agency decision-making by the prior administration. The FDA's continued inaction on this simple issue is therefore deeply disappointing. The agency already has sufficient scientific evidence on which it could base a reasoned decision to rescind the restrictions.

We expect the FDA to safeguard our nation's health by making decisions based on sound, well-documented science, not political or ideological imperatives. A federal court ruling has already demanded a response - and public health demands quick action. The agency should stop dragging its heels and make emergency contraception available over the counter to all women without restriction. With backtracking on access to abortion just this week encoded into the law in the healthcare reform bill, access to emergency contraception looks now more important than ever.

[Image via Wikimedia Commons.]

On Tuesday, the Supreme Court heard oral argument in McDonald v. City of Chicago, which raises the question whether the Second Amendment's guarantee of a right to bear arms applies to states and local governments. Going into argument, incorporation of the Second Amendment right seemed a given - after all, states already have to obey virtually every right in the Bill of Rights. The critical question was whether the Court would breathe new life into the Privileges or Immunities Clause, and honor the part of the Fourteenth Amendment's text that clearly protects substantive fundamental rights from state infringement.

The Privileges or Immunities Clause was intended to be the centerpiece of the Fourteenth Amendment, but it was written out of the Constitution by the Supreme Court in the 1873 Slaughter-House Cases. The decision has been regarded as one of the worst in the Court's history, and roundly condemned by the Amendment's framers in the 1870s, Justice Harlan in the early 20th century, and Justice Black in the 1940s. The overwhelming consensus among scholars across the ideological spectrum - reflected in a law professors' brief filed by CAC in McDonald - is that Slaughter-House obliterated the text and history of the Clause through a profoundly incorrect interpretation of the Constitution.

Unfortunately, the Privileges or Immunities Clause received a chilly reception from the Court on Tuesday, especially from those Justices who most profess to take the Constitution's text and history seriously. Justice Scalia belittled the Clause, accusing Alan Gura, McDonald's attorney, of "bucking for some place on some law school faculty" by advancing an argument that was "the darling of the professoriate." Scalia, supposedly the Court's chief originalist, wouldn't even consider the merits of the argument. Chief Justice Roberts, too, refused to follow the Constitution's text and history where it leads. He explicitly worried that the Privileges or Immunities Clause would allow for broad protections of substantive liberty; he preferred to rely on the Due Process Clause, since that text is about process, and does not easily lend itself to protecting substantive fundamental rights. While Roberts and Scalia were content to rely on substantive due process to protect gun rights, they seemed to want to reserve the opportunity to bash the doctrine in future cases involving rights they don't recognize. Other Justices were less overtly hostile, but none seemed willing to revive the Clause.

In light of its reception at the Court, was Gura too bold?

Of course, we don't know what the Court's opinion will ultimately say; it is quite possible that much of the privileges-or-immunities history Gura cited will form the basis for the Court's opinion, which would make the case a great victory for all who care about the Constitution's text and history even if the Court relies on the Due Process Clause. But even if the Court ignores text and history, pushing to revive the Privileges or Immunities Clause was the right decision.

First, if not now, when? The Second Amendment is the only substantive provision of the Bill of Rights not already incorporated against state action. There may never be a better chance to argue that the Clause protects substantive fundamental rights against state infringement.

Second, McDonald has been a teaching moment: thanks to terrific coverage in editorials and stories in the New York Times, Washington Post, and other papers, millions of people now know that protection of substantive fundamental rights was written into the clear text of the Constitution. Thanks to this coverage, debates about whether the Constitution protects fundamental rights will not be the same. Whatever the Court says in its opinion, Americans should remember that the Privileges or Immunities Clause was written to ensure all Americans enjoy broad protections of substantive liberty, including fundamental rights not enumerated in the Constitution. And the Justices certainly are now aware of the overwhelming scholarly consensus that the Clause has been long-mistreated by the Court.

Finally, Justices have pushed to revive the Privileges or Immunities Clause for over a century, and there is no reason to think McDonald will be the last word. It is possible that, in future cases, the Court's liberal Justices may find that the Clause's text and history is a powerful weapon. When the Court next considers the right to reproductive choice recognized in Roe or the right of sexual intimacy recognized in Lawrence, the text and history of the Privileges or Immunities Clause may be a powerful rejoinder to the arguments by Justice Scalia and others that protecting substantive fundamental rights through the Due Process Clause is "judicial usurpation." The Clause's text and history, which show that that the framers were concerned about ensuring that the newly freed slaves had rights as citizens to marry, decide whether to bear children, and control their family life, gives the Court's liberal Justices powerful ammunition to root protection of rights of heart and home directly in the Constitution's text and history.

[Image via Sam Ruaat.]

Activists hope to once again make Nebraska the battleground over whether the Supreme Court should reaffirm its 1973 decision in Roe v. Wade, recognizing a woman's right to an abortion. Just introduced in Nebraska's unicameral legislature is a bill acknowledged by advocates on both sides of the issue to be unconstitutional under the Court's present jurisprudence.

From the Omaha World-Herald: [links added]

The state has played a role on the national stage before, with a 1997 law banning the controversial late-term procedure known medically as intact dilation and extraction, or D&X.

The U.S. Supreme Court in 2000 overturned that Nebraska law, upholding its previous abortion decisions and dealing a setback to abortion opponents, who call the procedure "partial-birth" abortion.

Those opponents gained hope seven years later, when the justices on a more conservative Supreme Court upheld a federal ban on the D&X procedure.

Now abortion opponents are looking for opportunities to push the court even further in restricting abortion.

The law would ban abortions after 20 weeks, disregarding the question of viability, which occurs around the 24th week of pregnancy and was relied upon as a boundary for state regulation in the Supreme Court's 1992 Planned Parenthood v. Casey decision. In Casey, today's swing-vote Justice Anthony Kennedy co-wrote the majority opinion, joined by the liberal wing of the court. The Center for Reproductive Rights' Janet Crepps told the World Herald that this is reason for comfort to the pro-choice community, although Justice Kennedy joined the conservative wing of the Court in its two most recent decisions regarding reproductive rights.

At RHReality Check, Robin Marty sees the proposed legislation in Nebraska as part of a national push to set reproductive rights before the Roberts Court, which some observers see as marching American jurisprudence further to the right. Marty notes that legislation in Florida and Ohio is also pending which runs contrary to settled law on the issue.

[Image via Wolfgang Staudt.]

The jury deliberated for only 37 minutes before delivering their verdict: Scott Roeder is guilty of first degree murder for the slaying of former health care-provider Dr. George Tiller.

"The verdict came on the sixth day of Roeder's trial in a high-profile case that brought both national abortion-rights leaders and anti-abortion militants to Wichita to watch it unfold," according to the Kansas City Star. Trial-watchers were taken on a twisting road as a county judge initially determined that Roeder could present the defense that he was saving fetuses. This defense would have permitted the jury to assess a lesser, voluntary manslaughter charge. Yesterday, however, the judge reversed position, refusing to instruct the jury to consider manslaughter, leaving in tact the charge of first degree murder for slaying Tiller while he was serving as an usher at his church. The judge also permitted the jury to consider charges of aggravated assault for pointing the murder weapon at other church ushers.

After minimal consideration, the jury announced that they found Roeder guilty on all counts. Roeder's sentencing is scheduled for Tuesday, March 9, 2010. The prosecutions is seeking a sentence of 50 years without parole.

It's been thirty-seven years since the Supreme Court recognized a woman's constitutional right to abortion in Roe v. Wade, and in that time, without fail, a woman's ability to obtain an abortion has been under attack. Between stringent state laws, a lack of funding, and a severe shortage of abortion providers, abortion is virtually unattainable for significant numbers of women.

And it gets worse. The promise of affordable healthcare for all is quickly turning for women as federal lawmakers threaten to strip millions of the abortion coverage that they already have. And this past week, the judge presiding over the trial of the man accused in the shooting death of Kansas provider Dr. George Tiller essentially opened the door to a dangerously forgiving legal defense for those who commit violent acts-including murder-against doctors who provide abortion.

We expect judges to uphold the rule of law and make sure that its protections apply equally to everyone. But Judge Warren Wilbert (left) has stepped over that line. Last week, the judge indicated that he will allow the accused, Scott Roeder, to potentially avoid conviction on first-degree murder charges on the grounds that he honestly, albeit unreasonably, believed his actions - shooting Dr. Tiller at point blank range while he was serving as an usher at his church - were justified to prevent Dr. Tiller from performing abortions. After considering this evidence, the jury may have the option of convicting Roeder of voluntary manslaughter, a considerably less serious crime which also carries a significantly smaller penalty.

The fallout from such a ruling cannot be understated. If anti-choice extremists can justify murdering or physically harming abortion providers because they personally believe that abortion is wrong, then they would be, in effect, above the law. Take it from Reverend Don Spitz of Virginia, a member of the notoriously anti-choice group Army of God himself. He predicts that the judge's decision "may increase the number of people who may be willing to take that risk." As a result, abortion providers will fear for their lives even more than they already do because the laws that protect other citizens from violence do not apply with equal force to them.

Instead of a straightforward murder trial, Roeder's case will most certainly turn into a debate on the legitimacy of violence against abortion providers. Permitting this to occur in a judicial forum provides a patina of credibility that the misguided and illegal ideology that animates anti-abortion violence has not received before. In U.S. history, no other court has allowed these perpetrators to avoid a full conviction on the basis that their acts were necessary or justified.

Even more alarming then the potential miscarriage of justice that may occur if Dr. Tiller's assassin is acquitted of first degree murder while being convicted of only voluntary manslaughter is the broader signal that this ruling sends to those who might contemplate violent action against abortion providers - and to doctors, who now must feel like they have a target painted on their backs. Just because abortion is a divisive issue in which people (on both sides) hold deep moral and spiritual beliefs does not change the fact that violent acts intended to advance any cause are illegal. The law must not, and up to now has not, created special protections for those who commit crimes based on the sincerity of their beliefs.

As our investigative report last summer found, anti-choice forces have targeted abortion providers for decades - with appalling physical attacks, threats and intimidation - far too often with impunity. Abortion is the most stigmatized medical procedure in this country, while remaining legal and a core constitutional right, as well as a fundamental part of health care for women.

The effect of this deliberate campaign to shut down providers by any means at the disposal of organized anti-choice groups has been fewer doctors providing abortion and fewer women across the country who have safe and meaningful access to abortion services. It is incredibly important that this trial show that the lives of doctors who perform necessary, legal services will be protected by the full force of the law. No matter where you stand on abortion, the murder of doctors who provide a safe and legal medical service sought by one out of three American women is intolerable.

Allowing a voluntary manslaughter option negates the Supreme Court's constitutional protection of abortion rights and is an invitation to grotesque and self-serving vigilantism. The promise of Roe is increasingly in jeopardy as the numbers of abortion providers, under intolerable conditions of threats and harassment, rapidly decline. The government must aggressively protect these doctors who are defending women's rights, not expose them to further violence by weakening criminal penalties for pre-meditated murder.

Louis D. Brandeis

A Life

By Melvin I. Urofsky

[Available Here]

Louis Brandeis is rightly seen as the father of the modern constitutional right to privacy, but it is a long road from his initial statement on this matter to his great dissent in Olmstead v. United States (1928) to the doctrine that emerged following Griswold v. Connecticut (1965).

In 1890, Brandeis's law partner, Samuel D. Warren, complained about the intrusions that the press had made into his private life. Warren, the scion of a prominent paper manufacturing family, and his wife Mabel, the daughter of the U.S. senator from Delaware, were among the leaders of Boston's fashionable younger set, and reporters were always trying to get details on the parties at their house. He prevailed on Brandeis to work with him on an article, and the result was "The Right to Privacy," published in the Harvard Law Review in 1890.

It would become one of the most cited law review articles in American legal history, but today's readers would wonder what the two men were talking about. At the time, there was no constitutional right to privacy, and even if one could discern such a right in the Fourth or Ninth Amendments, the Bill of Rights did not apply to the states. Rather, Brandeis and Warren had to work with an emerging tort law, especially the unauthorized use of a person's likeness, such as photos or line drawings in advertisements with the implication that the person used or endorsed the product, and expanded on it. In essence, they suggested a new tort-a civil wrong-that allowed people to recover damages for unwarranted intrusion into their private affairs.

Interestingly enough, and in a prescient sentence, they wrote "instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the predictions that ‘what is whispered in the closet shall be proclaimed from the house-tops.'" Years later, in his files for the Olmstead case, Mr. Justice Brandeis had a newspaper clipping about a new device called "television" and wanted to include a warning against it, but his clerk dissuaded him.

The Warren and Brandeis article, according to Dean Roscoe Pound, did "nothing less than add a chapter to our law." Within a few years it was being widely quoted not only in other academic pieces but by the courts as well, as plaintiffs seeking damages for invasion of privacy began to win their suits, with arguments based on the article's premises.

Although Brandeis did not actively pursue this idea, he never abandoned the notion that a right to privacy constituted one of society's most prized liberties. In Olmstead he modernized the ideas of the law review article, and garbed the "right to be left alone" in constitutional armor. It would take nearly four decades before the Court converted his dissent into law, but in that time the idea caught on and grew.

Olmstead arose when the government, without a warrant, wiretapped a bootlegging operation, and on the basis of that information secured convictions. Chief Justice Taft wrote a mechanical opinion in which he claimed that since there had been no actual physical invasion of the premises there had been no violation of the Fourth Amendment. The normally conservative Pierce Butler shredded Taft's logic, and Oliver Wendell Holmes, Jr., in his typical Brahmin manner, sniffed at what he called "a dirty business."

Brandeis took the Fourth Amendment and enlarged it, not just to mean the absence of unauthorized physical invasion, but also the intrusion into an area in which people had expectations of privacy. As a result, it did not matter whether the intrusion had been physical or not-the sanctity of that space had been violated. The right to be let alone, as he put it, constituted the right most prized by civilized people.

Eventually the Court would catch up, and in the 1960s and 1970s a series of cases gave constitutional foundation to that prized right. At the same time conservatives, such as Robert Bork, argued that there was no right to privacy because the word is not mentioned in the Constitution. It is an argument that neither the American people nor a majority of bench and bar share.

Interestingly, in recent years we can see how influential the Brandeis argument has remained. In a recent Supreme Court case of a few years back, police used a heat sensor to pick up signatures of excessive heat in a house, a sign that someone might be growing marijuana behind their garden walls. On that evidence they secured a warrant and arrested Danny Kyllo for growing the weed. He appealed, arguing that the police needed a warrant to use the heat sensor, since it technologically invaded his home. The Supreme Court agreed, and in a very Brandeisian opinion written by none other than Justice Anton in Scalia.

Senate Majority Leader Harry Reid offered cutting remarks this week, criticizing unnamed senators who are obstructing President Obama's confirmation-level nominees. In that speech, Reid failed to specifically note the nomination of Dawn Johnsen to lead the Justice Department's Office of Legal Counsel (OLC), however, raising eyebrows at some progressive organizations calling for her confirmation.

"Nearly 40 organizations have called on Reid to schedule a vote on Dawn Johnsen," reports The Hill this morning. "Several members of this coalition are frustrated that Johnsen's nomination has languished in the Senate for nearly eight months despite Democrats' control of 60 seats."

Johnsen has drawn criticism from some chambers for her dedication to reproductive rights and for being among the first and most outspoken critics of the Bush torture program. Glenn Greenwald, characteristically tongue-in-cheek, frames the discussion another way: "Dawn Johnsen's belief in the rule of law disqualifies her from Senate confirmation."

Without Johnsen's confirmation, the OLC has not had an Assistant Attorney General at the helm since the Bush administration. During that spell, the OLC was the source of the infamous torture memos, supplying the "legal" framework for interrogation practices that many have concluded were in violation of domestic and international law. Many question whether the OLC departed from its purpose during that era, which is to provide objective legal advice to the Justice Department, rather than advocating for the administration's preferred approach.

"This is one of the most important offices in the Executive Branch and it is often described as the constitutional [conscience] of the Executive Branch, and to have it with out a Senate confirmed head undermines it," observed Georgetown Law Professor David Cole, author of Torture Memos: Rationalizing the Unthinkable.