1. Roe v. Wade, 93 S.Ct. 705 (1973). Roe invalidated old criminal statutes. Its companion case, Doe v. Bolton, 93 S.Ct. 739 (1973), invalidated laws creating a narrow therapeutic exception; both infringed the right to privacy. Here the common rubric “Roe” includes both decisions.

2. Roe v. Wade, 763.

3. Ely, John Hart, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” Yale Law Journal 82 (April 1973): 937.CrossRefGoogle ScholarPubMed

4. Testimony on S. 158, Human Life Bill, May 1981, in Butler, J. Douglas and Walbert, David F., Abortion, Medicine, and the Law, 3d ed. (New York, 1986), 542.Google Scholar

5. Webster v. Reproductive Health Services, 109 S.Ct. 3040 (1989), 3073–74.

6. Unenumerated rights are not in the text of the Bill of Rights, but they are said to be implicit in the enumerated rights or in the structure of government. Roe's constitutional basis is debated in Ronald Dworkin, “Unenumerated Rights: Whether and How Roe Should Be Overruled,” and Posner, Richard A., “Legal Reasoning from the Top Down and from the Bottom Up: The Question of Unenumerated Constitutional Rights,” in Stone, Geoffrey R., Epstein, Richard A., and Sunstein, Cass R., eds., The Bill of Rights in the Modern State (Chicago, 1992), 381–450.Google Scholar

7. Glendon, Mary Ann, Abortion and Divorce in Western Law (Cambridge, Mass., 1987), 2–20, 52–58.Google Scholar

8. Tribe, Laurence H., Abortion: The Clash of Absolutes (New York, 1990), 51–52, 73– 112Google Scholar. The gulf between the two sides is irreconcilable, but public opinion supports choice and privacy while rejecting “abortion on demand.” On the divisive nature of the issue, see Luker, Kristin, Abortion and the Politics of Motherhood (Berkeley and Los Angeles, 1984)Google Scholar; Ginsburg, Faye, Contested Lives: The Abortion Debate in an American Community (Berkeley and Los Angeles, 1989)Google Scholar; and Hunter, James Davison, Culture Wars: The Struggle to Define America (New York, 1991), 33–34, 42–51, 96–158Google Scholar. On public opinion, see Petchesky, Rosalind Pollack, Abortion and Woman's Choice: The State, Sexuality, and Reproductive Freedom, rev. ed. (Boston, 1990), xxvGoogle Scholar, and Dionne, E. J. Jr., “Poll Finds Ambivalence Persists on Abortion in U.S.,” New York Times, 3 August 1989.Google Scholar

9. Before reform, the moral debate was very bitter in Australia and England. Political and legal structure has sustained the controversy in the United States, but not in the parliamentary systems. See my forthcoming essay, “A Slightly Old-Fashioned Analysis of the Legalized Abortion Controversy.”

10. Offences Against the Person Act, 1861, 24 and 25 Vic, c. 100; Crimes Act, 1900, ss. 82–84 (N.S.W.); Crimes Act, 1958, ss. 65–66 (Victoria); Texas Penal Code, Arts. 1191 and 1196; Infant Life (Preservation) Act, 1929, 19 and 20 Geo. 5, c. 34.

11. Faux, Marian, Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision That Made Abortion Legal (New York, 1989), 33–38Google Scholar. In 1968 a Texas Medical Association study appeared that recommended reform to clarify the legal situation. The report included a survey of hospitals which reported that 81 abortions had been performed for fetal indications and one each for rape and incest, although all were, strictly speaking, illegal. See Appellants' Brief, Roe v. Wade (1973), in Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law 75, Philip B. Kurland and Gerhard Casper, eds. (Arlington, Va., 1975), 122.

12. R. v. Bourne [1939] 1 K.B. 687.

13. Peacock v. King (1911) 13 CLR, 619.

14. R. v. Trim (1943) Argus Law Reports, 236. The appeals court ruled that the claim was not credible enough even to be presented to the jury.

15. R. v. Newton, Criminal Law Review (1958), 469, and Havard, J. D. J., “Therapeutic Abortion,” Criminal Law Review (1958): 600–613Google Scholar. The patient had requested an interuterine injection of utus paste, which led to the infection that killed her.

16. Williams, Glanville, The Sanctity of Life and the Criminal Law (London, 1958), 155–60.Google Scholar

17. Alan F. Guttmacher, “The Genesis of Liberalized Abortion in New York: A Personal Insight,” in Butler and Walbert, Abortion, Medicine, and the Law, 230–32.

18. Williams, Glanville, “Legal and Illegal Abortion,” British Journal of Criminology 4 (October 1964): 562–63CrossRefGoogle Scholar. These practices were openly discussed in the British Medical Journal, which led Williams to conclude that the police had stopped prosecuting doctors who performed abortions for medical reasons. Lord Denning, Master of the Rolls (chief judge of the Court of Appeal), had told doctors in 1956 that abortion for fetal deformity was permissible, but he gave no legal reason. See British Medical Journal 2 (1956): 811.Google Scholar

19. Cited in Williams, Sanctity of Life, 162.

20. Clark, Tom C., “Religion, Morality and Abortion: A Constitutional Appraisal,” Loyola University Law Review 2 (1969): 6.Google Scholar

21. Appellants' Brief, Roe v. Wade, 102. Roe's poverty obviated the state's claiming that she might have traveled interstate for her abortion.

22. Amicus Brief, Roe v. Wade, in Landmark Briefs and Arguments of the Supreme Court of the United States, 344.

23. Williams, “Legal and Illegal Abortion,” 557.

24. Williams, Sanctity of Life, 212.

25. Jack Rosenthal, “Population Panel Warns Growth Must Be Slowed,” New York Times, 12 March 1972.

26. Appellants' Brief, Roe v. Wade, 123–26.

27. Poelker v. Doe 97 S.Ct. 2391 (1977), 2395 and 2398.

28. Clark, “Religion, Morality and Abortion,” 9–11.

29. Lader, Lawrence, Abortion (Indianapolis, 1966), 75–77.Google Scholar

30. Roe v. Wade, 715–21. Scholars and activists have debated the historical significance of abortion. Mohr's, JamesAbortion in America: The Origins and Evolution of National Policy, 1800–1900 (New York, 1978)Google Scholar argued that abortion was only criminalized in the nineteenth century when doctors wanted to protect morals and enhance their status. Joseph Dellapenna argued that abortion has always attracted serious legal penalties, in Dellapenna, “The History of Abortion: Technology, Morality, and Law,” University of Pittsburgh Law Review 40 (Spring 1979): 359–428Google Scholar. Whichever history is “correct,” it is surely significant that Williams set out these ideas fifteen years before Blackmun incorporated them into the Court's opinion in Roe v. Wade.

31. Williams in 1958 and Blackmun in 1973 discounted Jane Roe's argument (Appellants' Brief, Roe v. Wade, 103–23) that the criminal statutes were designed to protect the mother. New knowledge about the fetus encouraged laws to protect it.

32. In England the National Health Service performed 2,300 abortions in 1961 but 9,700 abortions in 1967. The number of private clinic abortions rose even more dramatically. See Greenwood, Victoria and Young, Jock, Abortion in Demand (London, 1976), 20–21.Google Scholar

33. Although it eventually became an ideological mainstay of “choice,” feminism played a small role in legalizing abortion. Friedan, Betty, The Feminine Mystique (London, 1963)Google Scholar criticized conventional views of women's role, but abortion was not explicitly on her agenda. Kate Millett alluded to the criminalization of abortion as a symptom of patriarchy. See Millett, , Feminist Politics (London: 1972), 44, 54Google Scholar. Germaine Greer ignored the issue. Family limitation was for her an unhealthy sign of modern capitalist values that had destroyed authentic sexuality in favor of consumption. See Greer, , The Female Eunuch (London, 1970), 232–38.Google Scholar

34. Hindell, Keith and Simms, Madeleine, “How the Abortion Lobby Worked,” Political Quarterly 39 (July 1968): 273.CrossRefGoogle Scholar

35. The doctor and hospital sought a declaratory judgment to protect themselves, but the court found no justiciable issue. See Faux, Roe v. Wade, 45–54, and Luker, Politics of Motherhood, 62–65.

36. Faux, Roe v. Wade, 59–65. The California statute did not, however, authorize abortion for fetal deformity.

37. Greenwood and Young, Abortion, 23–30.

38. Lewis, T. L. T., “The Abortion Act,” British Medical Journal 25 (1969): 241–42.CrossRefGoogle Scholar

39. Section 82A, Criminal Code Consolidation Act (S.A.).

40. R. v. Davidson [1969] V.R. 667.

41. Report of the Board of Inquiry into Allegations of Corruption in the Police Force in Connection with Illegal Abortion Practices in the State of Victoria, 31 August 1970.

42. The Australian, 7 March 1970 and 14 March 1970.

43. R. v. Wald [1971] 3 NSWDCR 25.

44. Frances McLean, “NSW Courts and the law on abortion,” Sydney Morning Herald, 30 October 1971.

45. Ibid.

46. “Word ‘unlawful’ is Vital—Defence,” Sydney Morning Herald, 21 October 1971.

47. R. v. Wald, 29.

48. “Doctors, Govt Will Study Abortion Hearing Verdict,” Sydney Morning Herald, 30 October 1971, and “Askin: No ‘Open Go’ on Abortion,” Sydney Morning Herald, 3 November 1971.

49. “QC Outlines Legal Test of Abortion,” Sydney Morning Herald, 10 October 1972.

50. “Abortion Doctor's Job—QC,” Sydney Morning Herald, 11 October 1972.

51. “Abortion Jury Can't Decide,” (Sydney) Daily Telegraph, 13 October 1972.

52. It's Nobody's Baby: Documented Facts About Abortion (Sydney, 1973), 25.Google Scholar

53. 85 S.Ct. 1678 (1965). In Griswold the Court struck down Connecticut's Comstockera law prohibiting the use of contraceptives. It infringed constitutionally protected privacy.

54. Roe v. Wade, 721–24. The American Public Health Association and the American Bar Association had both endorsed a similar policy.

55. Roe v. Wade, 726 and 728; R. v. Bourne, 693.

56. Blackmun read the medical literature before he wrote the decision. See Faux, Roe v. Wade, 276–88. Law journal articles had canvased extending the right of privacy to abortion. One author, Roy Lucas, had been active in litigating the abortion issue. See Lucas, , “Federal Constitutional Limitations on the Enforcement and Administration of State Abortion Laws,” North Carolina Law Review 46 (June 1968): 730–78Google Scholar, and Clark, “Religion, Morality and Abortion,” 7–9.

57. When Roe was decided, federal courts had struck down abortion laws in Connecticut, Georgia, Illinois, Kansas, New Jersey, and Wisconsin. The Connecticut legislature reenacted the statute, and the federal court again struck it down. Federal courts in Kentucky, Louisiana, North Carolina, Ohio, and Utah had upheld those states' statutes. State courts had also ruled both ways on claims of privacy invoked to invalidate criminal abortion laws.

58. Roe v. Wade, 733. Blackmun's opinion explained at length the traditional view that live birth was required for legal personhood. He addressed the issue because Texas had argued that the fetus enjoyed Fourteenth Amendment protection from conception. Lower courts upholding state statutes had accepted this argument. In rejecting that view, the Court's opinion stood on the common law that underpinned British and Australian decisions.

59. The only conviction of a licensed medical practitioner in New South Wales since 1971 occurred in 1981, when Dr. Smart, suffering from Parkinson's disease and near bankruptcy, botched a late-term abortion. “Doctor Put on Bond for Abortion Conviction,” The Australian, March 31 1981.

60. The best accounts of the convoluted process by which the decision was finally made are Woodward, Bob and Armstrong, Scott, The Brethren: Inside the Supreme Court (New York, 1981), 193–223, 271–84Google Scholar, and Faux, Roe v. Wade, 263–312. Woodward and Armstrong overemphasize the horse-trading process and quote clerks who decried the decision as social legislation. On the whole, though, the positions they attribute to the justices comport well with the public record.

61. Roe v. Wade, 756–62.

62. Roe v. Wade, 733–36.

63. Roe v. Wade, 755–56.

64. For a critique of the role accorded the medical profession, see Ginsberg, Ruth Bader, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade,” North Carolina law Review 63 (January 1985): 375–86.Google Scholar

65. Planned Parenthood of Central Missouri v. Danforth 96 S.Ct. 2831 (1976) and Colautti v. Franklin 99 S.Ct. 675 (1979).

66. Beal v. Doe 97 S.Ct. 2366 (1977); Maher v. Roe 97 S.Ct. 2376 (1977); Poelker v. Doe; Harris v. McRae 100 S.Ct. 2671 (1980)

67. For the repeal effort in Britain, see Keown, John, Abortion, Doctors, and the Law: Some Aspects of the Legal Regulation of Abortion in England from 1803 to 1982 (New York, 1988)CrossRefGoogle Scholar. On these issues generally, see my “Slightly Old-Fashioned Analysis”