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Testimony of
Karen O'Connor, Esq.
Professor of Government
American University


June 23, 2005
PRINTABLE VERSION

Prepared testimony of Professor Karen O’Connor
June 23, 2005

"The Consequences of Roe v. Wade and Doe v. Bolton"
Good afternoon Mr. Chairman, Members of the Subcommittee, and distinguished guests.

My name is Karen O’Connor, and I am a Professor of Government at American University and the founder and Director of its nonpartisan Women & Politics Institute. Prior to joining the faculty at American University, I taught at Emory University from 1977 to 1995 where I held
appointments in the Political Science Department and the Law School. At both institutions I have taught Women and the Law, Litigating for Constitutional Change, and American Politics. I am the author of No Neutral Ground: Abortion Politics in an Age of Absolutes (1995); American
Politics: Continuity and Change, the ninth edition (with Larry Sabato), the best selling American Politics college textbook in the United States; several books on women and politics; and over fifty articles and book chapters on various aspects of the law and the judicial process as its
relates to women and women’s rights. I am the past president of the Southern Political Science Association, the National Women’s Caucus for Political Science, the past chair of the American Political Science Association’s Organized Research Section on Law and the Courts, and the
president-elect of its Organized Section on Women and Politics Research.
I am honored to testify regarding the significant implications of Roe v. Wade and Doe v.
Bolton for American women and families. In 1979, I had the privilege to work with Margie
Pitts Hames, who argued Doe v. Bolton, the companion case to Roe v. Wade, in an ultimately
unsuccessful effort to invalidate the restrictions of the Hyde Amendment. I was seven months
pregnant at the time, and being called a “killer of unborn fetuses” by the court-appointed
guardian ad litem failed to deter me from my belief in the importance of Roe and its progeny.
Today I will address the legal significance of Roe v. Wade and Doe v. Bolton, their profound
consequences for women’s health and lives, and the necessity of preserving a woman’s right to
choose abortion.
Abortion Regulation Prior to Roe v. Wade and Doe v. Bolton
Abortion regulations and restrictions are not rooted in ancient theory or common law;
despite the commonality of abortion, no government, be it local, state, or national, attempted to
regulate the practice until well into the nineteenth century.1 As Justice Blackmun noted in Roe
v. Wade, “at common law, at the time of the adoption of our Constitution, and throughout the
major portion of the 19th century . . . a woman enjoyed a substantially broader right to terminate
a pregnancy than she does in most States today.”2 Indeed, in 1812 a Massachusetts Court found
that an abortion performed before “quickening,” defined as the time when a woman begins to
1 Abortion was legally practiced in ancient Greece and the Roman empire. See Roe, 410 U.S.
113,130 (1973). Likewise, under English common law, the basis for our legal system, abortion
was not criminalized. Id. at 132-133.
2 See Roe, 410 U.S. at 140-41.
2
feel movement in utero, usually between the 16th and 18th week of pregnancy, was not
punishable at law.3
The first abortion restrictions enacted in the United States were state statutory creations
that marked a shift away from common law. In 1821, Connecticut became the first state to
criminalize abortion after quickening. By 1840, only eight states had enacted statutory abortion
restrictions.4 Other states quickly followed suit; by 1910 every state except Kentucky had made
abortion a felony.5 Interestingly, despite this move toward regulating and criminalizing abortion,
an 1871 American Medical Association report found that 20% of all pregnancies were
deliberately terminated. 6
The federal government chose to utilize more indirect regulation of the practice of
abortion. In 1873, the U.S. Congress passed the Comstock Act, which prohibited the use of the
U.S. mails for distribution of “obscene” materials, including advertisements regarding abortion
and advertisement of devices to prevent pregnancy. The constitutionality of this Act was
repeatedly questioned through test case litigation. In U.S. v. One Package,7 the Second Circuit
declared the law unconstitutional. This decision, along with the hard work of Margaret Sanger
and the Planned Parenthood Federation of America, eventually led most states to change their
laws that had mirrored the Comstock Act.
Thus, by the late 1950s, only Connecticut and Massachusetts still retained extreme
contraceptive laws on their books. Finally, in Griswold v. Connecticut,8 the Supreme Court
concluded the U.S. Constitution contained a broad, fundamental right to privacy that
encompassed a married couple’s right to use birth control. Seven years later, the Court used the
same rationale in Eisenstadt v. Baird9 to strike down as unconstitutional a Massachusetts law that
allowed only married couples access to contraceptives.
3 See Commonwealth v. Bangs, 9 Mass. 387, 388 (1812). Moreover, “whether abortion of a
quick fetus was a felony at common law, or even a lesser crime, is still disputed.” Roe, 410 U.S.
at 134 (emphasis added).
4 See Roe, 410 U.S at 138-39.
5 Barbara Hinkson Craig and David M. O’Brien, ABORTION AND AMERICAN POLITICS 9 (1993).
6 Nancy E. McGlen and Karen O’Connor, WOMEN, POLITICS AND AMERICAN SOCIETY 207
(1998).
7 U.S. v. One Package, 86 F.2d 737 (2d Cir. 1936).
8 381 U.S. 479 (1965).
9 Eisenstadt v. Baird, 405 U.S. 438 (1972).
3
Abortion laws, too, came under reexamination. The American College of Obstetricians
and Gynecologists announced its belief that abortions should be decriminalized. And, in 1959
the American Law Institute (ALI) suggested changes in its model penal code that would
decriminalize abortion in three situations: (1) when the continuation of the pregnancy would
gravely impair the physical or mental health of the woman; (2) when the child might be born
with a grave physical or mental defect; and (3) when the pregnancy resulted from rape, incest or
other felonious sex.10 By the early 1970s, fourteen states liberalized their abortion statutes to
permit abortion in limited circumstances: when the woman’s health was in danger, when the
woman was the victim of rape or incest, or when there was a likelihood of a fetal abnormality.11
Still, only four states -- Alaska, Hawaii, New York, and Washington -- had decriminalized the
provision of abortion for any reason during the early stages of pregnancy. 12
Abortion “Options” Prior to Roe
The fact that abortion was illegal in all but a few states prior to Roe did not mean, however,
that women were not obtaining the procedure. Instead, the general unavailability of legal
abortions meant two things: (1) only a limited number of women -- generally the most affluent
women -- were able to obtain safe abortions, and (2) the vast majority of women who wanted to
terminate a pregnancy were left with only one “option”: obtaining illegal and dangerous abortion
procedures, commonly referred to as “back-alley abortions.”13
Options for a Few
As noted above, prior to Roe, most states allowed a woman to receive an abortion if she
could prove that her life would be endangered by continuing the pregnancy; a few states
permitted abortion in cases of rape or incest, or if an abortion was determined to be necessary to
preserve the woman’s health. Even in these limited circumstances, however, women often had
to navigate a complicated medical approval system. This often involved obtaining the approval
of a hospital committee, undergoing physical and mental evaluations, or obtaining law
enforcement certification of claims of sexual assault.14 A woman’s ability to successfully
complete this process often hinged on her economic status: generally, only more affluent, white
10 Karen O’Connor, NO NEUTRALGROUND 27 (1996).
11 Barbara Hinkson Craig and David M. O’Brien, ABORTION AND AMERICAN POLITICS 9-10
(1993).
12 Id. at 10.
13 Much of the discussion of the availability and incidence of abortion prior to Roe draws heavily
on Rachel Benson Gold, Alan Guttmacher Institute, Issues in Brief: Lessons From Before Roe:
Will Past be Prologue? (2003), available at http://www.agi-usa.org/pubs/ib_5-03.pdf.
14 Id.
4
women had the ability to pay for this review process, and had a relationship with a private
physician willing to facilitate the process.15
A limited number of women had another option: A few states, most notably New York,
repealed their abortion statutes in 1970. Because New York did not require that a woman be a
resident of the state in order to obtain the procedure, women from across the country traveled to
New York for safe, legal abortions.16 It is estimated that in 1972 alone, more than 100,000
women traveled to New York City to obtain legal abortion services.17 Of course, such travel and
lodging was time consuming and costly, and, in practice, was an option only for women of
financial means.
As a young woman growing up in New York State, I saw the dramatic consequences of
New York’s legalization of abortion. My high school graduating class of 1970, for example, was
the first one that any of us knew in our school history that did not have a student drop out for
pregnancy. Thus, no one in my class “had” to get married or go away to visit her aunt or other
relative to have a child, and return to school forever marked much as Hester Prynne had been in
another era.
Resort to the Back Alleys
However, as noted above, many women unable to afford or obtain a legal abortion were
desperate enough to take drastic measures to end an unplanned pregnancy. It is estimated that
anywhere from 200,000 to 1.2 million illegal or self-induced abortions were performed in the
1950s and 1960s.18
Illegal abortions, sometimes performed by lay people who did not have the proper
training, equipment, or methods of anesthesia or sanitation, were extremely dangerous and put
women at high risk of incomplete abortions, infection, and death. Estimates regarding the
number of death and infections resulting from illegal or self-induced abortion are, of course,
difficult to estimate given that many women, or their families in cases of the woman’s death,
were reluctant to attribute the infection or death to illegal abortion. Some estimate, however,
that 5,000 women a year died from illegal, unsafe abortions before Roe v. Wade. In 1965,
illegal abortion accounted for a reported 17 percent of all deaths due to pregnancy and
15 Id.
16 Other states that had repealed their abortion statutes, such as Alaska, Hawaii, and Washington,
required a woman to be a resident of the state for at least thirty days in order to obtain an
abortion procedure.
17 Rachel Benson Gold, Alan Guttmacher Institute, Issues in Brief: Lessons From Before Roe:
Will Past be Prologue? (2003), available at http://www.agi-usa.org/pubs/ib_5-03.pdf .
18 Id.
5
childbirth.19 These burdens fell disproportionately on women of color: from 1972 to 1974, the
mortality rate due to illegal abortions for non-white women was twelve times that for white
women.20 And, none of these numbers include the thousands of women who willingly endured
dangerous, invasive hysterectomies or tubal ligations to make certain that they would not have to
have abortions should they have additional pregnancies.
Roe v. Wade and Doe v. Bolton
In 1973, against a background of increasing litigation surrounding contraception and
abortion, the Supreme Court granted certiorari in the companion cases of Roe v. Wade and Doe
v. Bolton. Jane Roe, who we know today as Norma McCorvey, challenged a Texas abortion law
that prohibited abortions in all cases except to save a woman’s life. Unlike Roe, the statute at
issue in Doe v. Bolton was based on the Model Penal Code of the ALI. Doe’s lawyers, acting on
her behalf as well as several doctors, nurses, clergy, and social workers, alleged that the Georgia
law was an unconstitutional undue restriction of personal and marital privacy.
In a landmark 7 to 2 decision, the Supreme Court held that the “right of privacy . . . is
broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”21
The Court also recognized that the decision of whether to have a child is unique to every woman
and her life circumstances, and therefore must be a personal, individual decision.
The detriment that the State would impose upon the pregnant woman by denying
this choice altogether is apparent. Specific and direct harm medically diagnosable
even in early pregnancy may be involved. Maternity, or additional offspring, may
force upon the woman a distressful life and future. Psychological harm may be
imminent. Mental and physical health may be taxed by child care. There is also
the distress, for all concerned, associated with the unwanted child, and there is the
problem of bringing a child into a family already unable, psychologically and
otherwise, to care for it. In other cases, as in this one, the additional difficulties
and continuing stigma of unwed motherhood may be involved. All these are
factors the woman and her responsible physician necessarily will consider in
consultation.22
In invalidating the Texas and Georgia abortion laws, the Court effectively invalidated the
abortion laws of all but four states.23 However, even in recognizing the fundamental right to
19 Id.
20 Id.
21 Roe, 410 U.S. at 153.
22 Id. at 153.
23 Karen O’Connor, NO NEUTRALGROUND 46-47 (1996). Contrary to arguments that the Court
moved too fast, the Court actually followed the trend emerging in the states. As noted above, in
6
obtain an abortion, the Court also held that this right was not absolute. To this end, the Court
took a trimester approach toward to regulation of abortion, holding:
For the stage prior to approximately the end of the first trimester, the abortion
decision and its effectuation must be left to the medical judgment of the pregnant
woman's attending physician. For the stage subsequent to approximately the end
of the first trimester, the State, in promoting its interest in the health of the
mother, may, if it chooses, regulate the abortion procedure in ways that are
reasonably related to maternal health. For the stage subsequent to viability, the
State in promoting its interest in the potentiality of human life may, if it chooses,
regulate, and even proscribe, abortion except where it is necessary, in appropriate
medical judgment, for the preservation of the life or health of the mother.24
The right to privacy so central in Roe was well-recognized prior to that case, and has
been repeatedly affirmed since Roe. As the Roe Court itself stated, “In a line of decisions . . .
going back perhaps as far as [1891], the Court has recognized that a right of personal privacy, or
a guarantee of certain areas or zones of privacy, does exist under the Constitution.”25 Indeed,
prior to Roe, the Court explicitly recognized the fundamental nature of a woman’s right to
control her reproduction.26 The Court has also recognized the intensely personal nature of the
the 1960’s the states began reforming their abortion laws; at the time Roe was decided, 17 states
allowed abortion in at least some circumstances. Moreover, such a vital right must be
nationalized. Not to grant women fundamental rights guaranteed in one state, while allowing its
exercise to be labeled criminal in others, is akin to arguing that Jim Crow laws should be within
the purview of the states to allow or prohibit.
24 Roe, 410 U.S. at 164.
25 Roe, 410 U.S. at 152 (citing Stanley v. Georgia, 394 U.S. 557 (1969); Terry v. Ohio, 392 U.S.
1 (1968); Katz v. United States, 389 U.S. 347 (1967); Boyd v. United States, 116 U.S. 616
(1886), Olmstead v. United States, 277 U.S. 438 (1928) (Brandeis, J., dissenting); Griswold v.
Connecticut, 381 U.S. 479 (1965); Meyer v. Nebraska, 262 U.S. 390 (1923); Loving v. Virginia,
388 U.S. 1 (1967); Skinner v. Oklahoma, 316 U.S. 535 (1942); Eisenstadt v. Baird, 405 U.S 438
(1972); Prince v. Massachusetts, 321 U.S. 158 (1944); Pierce v. Society of Sisters, 268 U.S. 510
(1925)).
26 See Griswold v. Connecticut, 381 U.S. 479 (1965). In Griswold, the Court defined the right to
privacy as a fundamental freedom subject to exacting strict scrutiny by the Court. This right, the
Court held, could be found in the “penumbras emanating” from several specific guarantees in the
Bill of Rights and incorporated through the Fourteenth Amendment. Among these rights were
the First Amendment’s protection of association, the Third Amendment’s bar on the quartering
of soldiers in private homes in peacetime without consent, the Fourth Amendment’s protection
against unreasonable searches and seizures of homes and property, the Fifth Amendment’s
guarantee of freedom from self-incrimination, and the Ninth Amendment, which gives to all
citizens rights not enumerated specifically in the Constitution. The right to privacy, concluded
7
decision of whether to have children. In Eisenstadt v. Baird, affirming an unmarried individual’s
fundamental right to obtain contraception, the Court stated “if the right of privacy means
anything, it is the right of the individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a person as the decision whether
to bear or beget a child."27
A woman’s right to control her own body, articulated in Griswold, Eisenstadt, Roe, and
Dos remains just as fundamental today. The Supreme Court has repeatedly emphasized its
continued viability: “Roe is clearly in no jeopardy, since subsequent constitutional developments
have neither disturbed, nor do they threaten to diminish, the scope of recognized protection
accorded to the liberty relating to intimate relationships, the family, and decisions about whether
or not to beget or bear a child.”28 Moreover, the Court recently reaffirmed the fundamental right
codified in Roe, and recognized how central reproductive freedom is to the lives of women. In
Lawrence v. Texas, discussing the dimensions of the privacy right, the Court stated, “Roe
recognized the right of a woman to make certain fundamental decisions affecting her destiny and
confirmed once more that the protection of liberty under the Due Process Clause has a
substantive dimension of fundamental significance in defining the rights of the person.”29
Roe’s Implications for Women and Families
Roe’s implications for women were profound and wide-reaching. The most immediate
result, of course, was to rescue women from the back alleys, and provide access to safe, legal
abortion for women who chose it. Today, abortion is one of the safest and most commonly
performed medical procedures. In stark contrast to the soaring death rates from illegal abortions
prior to Roe, the current death rate from legal abortion at all stages of gestation is 0.6 per
100,000 procedures.30 Indeed, a woman's risk of death during pregnancy and childbirth is ten
times greater than the risk of death from legal abortion.
Moreover, Roe marked a new beginning in women’s ability to control their own fertility
and to choose whether or not to have children. Roe recognized that a woman deciding whether
to continue a pregnancy, and only that woman, must make the personal choice that is in keeping
with her own religious, philosophical, and moral beliefs. This freedom of choice led to
the Court, was so basic that the Framers saw no need to spell it out more clearly in the
Constitution.
27 405 U.S. 438, 453 (1972).
28 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 857 (1992).
29 Lawrence v. Texas, 539 U.S. 558, 555 (2003).
30 Lichtenberg ES, Grimes DA, Paul M. Abortion complications: Prevention and management. in
Paul M, Lichtenberg ES, Borgatta L. Grimes DA, Stubblefield PG. A CLINICIAN'S GUIDE TO
MEDICAL AND SURGICALABORTION 197-216. (1999).
8
increased freedom in other areas; as the Supreme Court noted in 1992, "the ability of women to
participate equally in the economic and social life of the Nation has been facilitated by their
ability to control their reproductive lives."31 Without this freedom, generations of women would
be relegated back to constant fear of pregnancy and its consequences. Fewer women would be
able to complete their educations, decide when they wished to have children, and how to order
their lives to best accommodate work and family. However, these basic, fundamental rights of
women have been under attack since the ink was dry on Roe and Doe.
Post-Roe Regulation and Access to Abortion
Within six months after Roe, 188 anti-abortion bills were introduced in 41 state
legislatures. State restrictions -- such as waiting periods, spousal and parental consent
requirements, and informed consent requirements -- slowly chipped away at Roe’s protections,
limiting abortion availability for all women. However, similar to the two-tiered system in place
prior to Roe,32 these restrictions fell most heavily on low-income women, especially young
women and women of color, who, despite the legality of abortion, often could not access such
services. For example, 33 states and the District of Columbia currently restrict low-income
women’s access to abortion; several federal laws, such as the Hyde Amendment, bar access to
abortion care for low-income women who rely on the federal government for their health care,
with exceptions only to preserve the woman’s life or if the pregnancy results from rape or
incest.33 Likewise, 44 states restrict young women’s access to abortion by mandating parental
notice or consent. 34
Battles over abortion continue to be waged in the states today. In 2004 alone, 714 antichoice
measures were considered in state legislatures, which is a 28 percent increase from just
one year earlier. Moreover, every state with a regular legislative session, except Maine,
considered anti-choice legislation in 2004: 130 of these legislative measures involved mandatory
counseling and mandatory delay requirements for women seeking abortion services; 89
legislative measures would permit individuals and/or corporations to refuse to provide abortion,
family planning, and other medical services; 45 legislative measures placed restrictions on young
women’s access to reproductive health services (including abortion and family planning); and
31 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 835 (1992).
32 Rachel Benson Gold, Alan Guttmacher Institute, Issues in Brief: Lessons From Before Roe:
Will Past be Prologue? (2003), available at http://www.agi-usa.org/pubs/ib_5-03.pdf.
33 NARAL, Who Decides: The Status of Women’s Reproductive Rights in the United States
(2005) available at http://www.naral.org/yourstate/whodecides/trends/issues_low_income.cfm.
34 NARAL, Who Decides: The Status of Women’s Reproductive Rights in the United States
(2005) available at
http://www.naral.org/yourstate/whodecides/trends/issues_young_women.cfm.
9
41 legislative measures were targeted regulations of abortion providers. Overall, 29 of these
anti-choice measures were enacted.35
In light of the ever-increasing number of abortion restrictions, it should be no surprise
that women continue to struggle with obtaining access to abortion in the United States. These
difficulties are compounded by the fact that eighty-seven percent of all U.S. counties have no
known abortion provider; in non-metropolitan areas, the figure rises to 97 percent.36 This
limited number of abortion facilities is largely attributable to a rapid decline in the number of
doctors providing the service. This decline, and thus women’s access to safe medical care, is at
least in part due to the fact that medical professionals who provide abortion care do so at risk to
their own personal safety --as well as that of their families and co-workers. Since 1977, there
have been more than 4400 incidents of violence at clinics providing abortions; seven clinic
workers, including three doctors, have been murdered.37 1998 saw the advent of a new form of
threats against abortion providers: from 1998 to 2005, clinics received more than 650 anthrax
threats.38 Abortion providers are continually stalked, their clinics are bombed, and their families
threatened. In addition to leading to a decreasing number of health professionals willing to
provide abortions, the violence and intimidation directly impedes women’s access to abortion:
there have been over 730 clinic blockades since 1977.39
Overturning Roe: A Return to the Back Alleys
Despite the severe restrictions placed on a woman’s right to choose whether or not to
have an abortion, and the ongoing anti-choice campaign to attack and undermine the Roe
decision itself, the central tenet of Roe remains: American women have the fundamental right to
choose to terminate a pregnancy.40 Women depend upon, and make life decisions based on, the
35 NARAL, Who Decides: The Status of Women’s Reproductive Rights in the United States
(2005) available at
http://www.naral.org/yourstate/whodecides/trends/2005_key_findings.cfm#risk.
36 NAF Factsheet: Access to Abortion (2003) available at
http://www.prochoice.org/pubs_research/publications/downloads/about_abortion/access_abortio
n.pdf.
37 NAF Violence and Disruption Statistics (2005), available at
http://www.prochoice.org/pubs_research/publications/downloads/about_abortion/violence_statist
ics.pdf
38 Id.
39 Id.
40 Casey, 505 U.S. at 845-46 (“After considering the fundamental constitutional questions
resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to
10
continued availability of abortion. As the Supreme Court so aptly stated in Planned Parenthood
v. Casey,
While [Roe v. Wade] has engendered disapproval, it has not been unworkable.
An entire generation has come of age free to assume Roe’s concept of liberty in
defining the capacity of women to act in society, and to make reproductive
decisions; no erosion of principle going to liberty or personal autonomy has left
Roe 's central holding a doctrinal remnant; Roe portends no developments at odds
with other precedent for the analysis of personal liberty . . . .41
Despite the fact that history demonstrates that the unavailability of legal, safe abortion
does not prevent abortion but only leads women to seek unsafe abortions, it is abundantly clear
that Roe’s protections are indeed in jeopardy. President Bush, who could appoint up to three
Supreme Court Justices over the next two years, has made known his intent to appoint Justices
hostile to Roe and a woman’s right to control her body.
What then, would happen if Roe were overturned? Contrary to assertions that bans on
abortion--including first trimester abortions--would occur in only a few states and take
considerable time to enact, it is probable that many states would revive and enact immediate
abortion bans. Moreover, in the absence of Roe, states would be given free reign to erode Roe;
one only need look at the number of state restrictions placed on abortion provision in 2004,
discussed supra, to know this is an all too real possibility.
The move toward criminalizing abortion could be immediate: four states (Alabama,
Delaware, Massachusetts, and Wisconsin) have abortion bans in place that have never been
declared unconstitutional or blocked by courts. Roe’s reversal could “trigger” these laws; that is,
state officials could immediately begin enforcing these bans the day Roe is overruled.42
Another 13 states have abortion bans on the books that have been blocked by courts as
unconstitutional. If Roe was overturned, officials in such states could immediately file suits
asking courts to set aside the orders that prevented enforcement of the laws. 43 And, in the
remaining states, legislators would be free to introduce and enact new severe restrictions or bans
on abortion.
Ultimately, abortion would likely remain legal in small number of states, but even in such
states women’s access would likely be severely restricted. This would create a daunting,
conclude this: the essential holding of Roe v. Wade should be retained and once again
reaffirmed.”).
41 Casey, 505 U.S at 860-61 (emphasis added).
42 Center for Reproductive Rights: What if Roe Fell? at 8-10 (2004), available at
http://www.reproductiverights.org/pdf/bo_whatifroefell.pdf.
43 Id. at 10.
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patchwork system of abortion statutes: a woman’s right to obtain an abortion would be entirely
dependent on the state in which she lived or her ability to travel to another state--assuming the
states that keep abortion legal would permit non-residents to obtain abortions in that state. For
those women who are able to navigate this patchwork system, the need to travel and the
increased demand for a dwindling number of abortion providers could lead to dangerous delays
in the provision of abortion care.
Even more frightening, however, is the plight that women who do not live in provider
states, and are unable to travel to those states, would face. In essence, overruling Roe would
force a return to the two-tier system of abortion access that was in place before 1973: women
with the financial ability to travel to other states may still be able to exercise their rights, whereas
low-income women (disproportionately women of color and young women) would not. We
would see a return to the days of back-alley and self-induced abortions; a return to the day where
women -- our daughters, our sisters, our mothers, and our wives -- sacrificed their health and
lives because they felt they were left with no other option. Re-criminalizing abortion, or so
severely restricting it so as to make it practically unavailable, will not end the practice of
abortion; it will end the practice of safe abortion.
In addition to the grave -- and unacceptable -- health risks women would face if forced to
return to the back alleys, overruling Roe would also signal a rollback of the autonomy and
equality women have achieved since Roe. Roe was not only a decision that legalized a medical
procedure and protected women’s health; it was -- and is -- a decision that gave a woman the
option to make the reproductive choices that were right for her health, her family, and her life.
Roe protects a woman’s bodily integrity, but, just as importantly, protects a woman’s
right to be responsible for the choices she makes and the options she chooses. A woman’s ability
to decide when and if she will have children will ultimately make her a better mother, if she
chooses to become one, and helps ensure that children are brought into families that are willing
and able to both financially and emotionally care for them. A woman’s ability to control her
own reproduction ensures that she can make the medical decisions central to her physical and
emotional well-being. And this autonomy allows women to make the choices we perhaps now
take for granted: whether and when to marry, whether and when to have children, and whether to
pursue educational opportunities or a professional career. As the Supreme Court stated in
upholding Roe’s central protection for a woman’s right to choose abortion,
the liberty of the woman is at stake in a sense unique to the human condition and
so unique to the law. The mother who carries a child to full term is subject to
anxieties, to physical constraints, to pain that only she must bear. That these
sacrifices have from the beginning of the human race been endured by woman
with a pride that ennobles her in the eyes of others and gives to the infant a bond
of love cannot alone be grounds for the State to insist she make the sacrifice. Her
suffering is too intimate and personal for the State to insist, without more, upon its
own vision of the woman's role, however dominant that vision has been in the
course of our history and our culture. The destiny of the woman must be shaped
12
to a large extent on her own conception of her spiritual imperatives and her place
in society. 44
Finally, because the constitutional protections enunciated in Roe underpin so many other
rights, Roe’s demise could open the door to encroachments on other fundamental rights grounded
in privacy. For example, access to birth control is dependent on the privacy right articulated in
Griswold and echoed in Roe. Contraception availability is crucial toward reducing unintended
pregnancies, reducing the number of abortions, and improving women's health. In addition,
improved access to contraception will allow more women to control the timing of their
pregnancies. This, in turn, helps reduce infant mortality, low birth weight, and maternal health
complications during pregnancy. Thus, undermining the privacy right will serve to endanger
women’s health and lives even beyond the abortion decision.
Conclusion
I am a mother and a sister. In addition, I have had the privilege to teach thousands of
students -- young men and women -- over the more than 25 years I have been teaching. Each of
these individuals has come of age in a era where his or her private decisions to have sex or
remain celibate, to use birth control or not, as well as to resort to a safe and legal abortion if
needed or to carry a pregnancy to term, were available options. This right has, for women in
particular, given them a power over their destinies that women who came before me did not
enjoy. The United States, I have always taught, is a land where rights once hard won, are not to
be taken for granted, but to be held precious. No right can be more important nor more
fundamental than a woman’s right to control her bodily integrity free from governmental
interference. As the Court itself has concluded, to do so could be disastrous.
Thank you for your attention and the opportunity to speak to you today.
44 Casey, 505 U.S. at 852.

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