Opinion of the Court
B
1
Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware. And although law review articles are not reticent about advocating new rights, the earliest article proposing a constitutional right to abortion that has come to our attention was published only a few years before Roe.[1]
Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.
- ↑ See R. Lucas, Federal Constitutional Limitations on the Enforcement and Administration of State Abortion Statutes, 46 N. C. L. Rev. 730 (1968); see also D. Garrow, Liberty and Sexuality 334–335 (1994) (stating that Mr. Lucas was "undeniably the first person to fully articulate on paper" the argument that "a woman's right to choose abortion was a fundamental individual freedom protected by the U. S. Constitution's guarantee of personal liberty").
Clause, U. S. Const. Art. IV, §2, as those "fundamental" rights "which have, at all time, been enjoyed by the citizens of the several states"); Amar 176 (relying on Corfield to interpret the Privileges or Immunities Clause); cf. McDonald, supra, at 819–820, 832, 854 (Thomas, J., concurring in part and concurring in the judgment) (reserving the question whether the Privileges or Immunities Clause protects "any rights besides those enumerated in the Constitution").
