1. Regarding the knowledge that there will always be abortions available for elite women (primarily, wealthy, educated, white women and wives and daughters of such men) and that powerful men will not need abortions

      "Moreover, meaningful democratic deliberation cannot take place when influential political actors know they will enjoy practical exemptions from constitutionally controversial policies." page 12

      2. "This investigation into twentieth-century abortion law in action reveals a political milieu quite different from that presupposed by previous commentaries on reproductive policy. The precise wording of abortion law on the books, in this universe, has little relationship to the total number of abortions performed at a given time and place. Rather, state decisions to legalize or criminalize abortion primarily affect the quality and cost of abortion available to poor women and women of color. Contrary to popular wisdom, regulations that do not ban abortion outright do not affect access to abortion services significantly. When abortion is legal, abortion rates are far more influenced by the location of abortion clinic than by the absence of public funding." page 13

      3. "The Constitution may not guarantee all women the right to choose whether to carry a pregnancy to term. Nevertheless, the equal protection clause forbids law enforcement officials from intentionally distributing the legal right to choose on the basis of wealth and race of the pregnant woman. Market societies such as ours do allocate many goods on the basis of one's ability to pay for them. Americans, however, have historically resisted suggestions that persons should be allowed to purchase exemptions from the criminal law." page 13

      4. "Indeed, much evidence indicates that "states have never mandated policies, statutes, or enforcement procedures that would display anything approaching a compelling interest in protecting all potential human life.

      Conventional attacks on legal abortion do not explain why communities so committed to the unborn never strictly enforced their statutory bans on abortion. Academic lawyers who maintain that restrictions on abortion are constitutional means of protecting fetal life ignore numerous studies that document how state officials before Roe routinely allowed many women to terminate a pregnancy, as long as the procedure was performed discreetly." page 22

      5. "Pro-life philosophers and their legal defenders also do not ponder why elected officials ostensibly concerned with protecting fetuses often adopt other policies that make abortions more frequent. Although moral and constitutional theorists may think the social interest in potential life distinguished bans on abortion from bans on contraception, conservative Americans reproductive policies usually combine both measures. The anti-abortion Reagan and Bush administrations ranked contraception last in their priorities for family planning services. Yet, as a means of preventing both unwanted pregnancies and abortions, contraception is six to seven times more effective than the natural family planning methods that were given first priority by recent Republican administrations. Many pro-life activists also oppose federal and state programs that increase access to contraceptives. The American Life League, for example, denounces all forms of birth control, even those that cannot be characterized as abortifacients. Not surprisingly, studies find that abortion rates are "far lower" in virtually every other developed country "than in the Unites States." Only in America, family planning researchers bemoan, have "abortion laws [not] been designed as part of comprehensive practices intended to reduce the demand for abortion by facilitating access to contraceptive methods, sex education and related services.

      Indeed, Americans seem uninterested in any measure other than restrictions on abortion that might prevent the death of unborn humans [ed. note - I don't like the term 'unborn humans']. Father Theodore Hesburgh, the former president of the University of Notre Dame, points out that "many candidates who agree with [the Catholic church's] position on abortion in this country advocate foreign policy positions that increase the likelihood that women in the Third World will seek abortion. State and national legislators who oppose legal abortions rarely play a significant role in domestic political struggles to retain and expand governmental programs that further fetal health by providing nutrition and nutritional information to pregnant women. Most critics of Roe never note that socially conservative officials who proclaim that fetal life trumps procreative choice apparently regard lower taxes of a balanced budget as an even higher social value. "Pro-life representatives," one survey found, "are reluctant to vote for higher federal spending for programs designed to prevent unwanted pregnancies or to assist pregnant women. " page 23 - 24

      6. "The conventional feminist defense of reproductive choice maintains that women's interests in abortion rights will be consistently discounted in public life as long as men disproportionately dominate the electoral and legislative processes. "Men don't get pregnant," pro-choice women proclaim, "they just pass the laws." This political imbalance is fundamentally undemocratic because one essential safeguard of democracy is that representatives must be subject to the laws they enact. But as feminist lawyers point out, "every restrictive abortion law has been passed by a legislature in which men constitute a numerical majority." Worse, they claim, "every restrictive abortion law by definition contains an unwritten clause exempting all men from its strictures." page 34

      7. "One possible reason why women do not overwhelmingly support abortion on demand is that they tend to be more religious and less educated than men, characteristics strongly associated with pro-life views." page 34

      8. "Nevertheless, by the mid-twentieth century, both proponents and opponents of abortion reform agreed on three central propositions. First, illegal abortionists were thriving. Criminologists found that abortion had become the third most lucrative criminal enterprise in the United States, surpassed only by gambling and narcotics. One investigator determined that some expert abortionists were performing as many as forty-five abortions a day and between four and five thousand abortions a year. Second, the omnipresence of illegal abortion had created a substantial maternal health crisis. Doctors and lawyers described criminal abortion as a "hidden social canker," "a festering social ill," and "one of the major medical and social problems of the nation." "Driving abortion underground," commentators pointed out, "the statutes have brought it about that abortion [is] performed by the women themselves, by incompetent midwives, or by doctors who, even though they may be skilled, must operate with a secrecy which precludes the subsequent attention to the safest performance of the procedure." Third, and most important, significant statutory restrictions on abortion were unenforceable. "All efforts to control the incidence of criminal abortion by legislation," public health specialists concluded, had "resulted in failure." A 1963 law review article noted that "our nation's abortion laws have admittedly kept legal abortions to a minimum, just as the eighteenth amendment virtually eliminated the legal consumption of liquor." Nevertheless, the author continued, "the abortion enactment have been no more successful in preventing abortion than the eighteenth amendment was in eradicating drinking." " pages 43 -44

      9. "Lacking cooperative witnesses and complainants, law enforcement agents could not easily shut down known practitioners of criminal abortion. Moreover, many police officers and prosecutors "share[d] the widespread belief that the abortionist is in fact performing a useful service" and preferred spending their scarce resources preventing what they and their communities regarded as real crimes. The few prosecutions that were instituted faced jurors unwilling to convict abortionists and judges unwilling to impose severe sentences. Anti-abortion advocates complained that "even the most outrageous abortionist" could not be convicted in a jury trial. One juror refused to convict a well-known abortionist because there was "nobody in Schuykill County that the doctor hasn't helped." Half the abortionists convicted in New York between 1925 and 1950 were sentenced only to probation. Dr. Milan Vuitch, a prominent physician-abortionist, was arrested sixteen times for openly running an abortion clinic in Washington, D.C. but never went to jail.

      Even abortionists convicted and sentenced to prison at trial often escaped legal sanction. Some appellate judges placed extraordinarily high burden of proof on the state to establish that insufficient medical grounds existed for the abortion. After pointing out that, "the defendant in this case was a doctor with substantial experience and background." the California court in People v. Ballard overturned a conviction for illegally performing an abortion because the jury was not told that "there is a presumption of necessity in the case of an abortion by a licensed physician." In times and places not noted for their solicitude for the due process rights of criminal suspects, a significant number of convictions for illegal abortion were reversed on appeal for constitutional "technicalities," most notably entrapment. Some executives used clemency t keep abortionists on the street. A New York campaign against illegal abortion during the first decade of the twentieth century came to a dismal conclusion when the only three abortionists convicted were immediately pardoned by the governor." page 45

      10. "Law enforcement officials did occasionally make considerable efforts to prevent rank amateurs from performing abortions that maimed their clientele. The police conducted serious criminal investigations after women died from abortions, and offending practitioners could expect to defend their conduct in court. From 1867 until at least 1940, Chicago official prosecuted abortionists who killed their patients, often relying "on dying declarations collected from women near death due to their illegal abortion." When patients survived their abortion, however, the county coroner permitted the operating physician to destroy all records of the procedure. The vast majority of convictions in New York for criminal abortion were obtained after complaints about botched procedures. Many abortionists attracted police attention only when they engaged in other criminal enterprises such as dealing drugs, issuing false death certificates, and selling black-market babies." page 46

      11. "Early constitutional attacks on abortion bans similarly emphasized the discriminatory application of such measures. The first academic defenses of legal abortion placed as much emphasis on how abortion law in action discriminated against poor persons as on how abortion bans violated privacy rights of all Americans." page 64

      12. "A University of Texas law professor recalls being told by Justice Powell that Roe "provided opportunities for the less affluent to enjoy the rights their more affluent sisters were already exercising." " page 64

      13. "Although pro-life activists repeatedly denounce Roe for promoting the slaughter of the unborn, actual abortion rates increased only slightly after legalization. The changes after 1970 in abortion laws on the books had a much greater impact on the classification of most abortions than on the total number of abortions performed. From 1970 to 1977, "illegal abortion was almost entirely replaced by legal procedures in the United States." Women who had "criminal" abortions in 1965 had "therapeutic" abortions in 1975. Poor women and women of color were the primary beneficiaries of this substitution, for after Roe their access to safe, legal, and relatively cheap abortions increased substantially. Much of the small increase in the total number of abortions that resulted from legalization occurred because lower-class women were finally able to afford safe abortions and because greater publicity made poor women and women of color aware that safe abortions were available." page 65

      14. "Legalization had little impact on the total number of abortions performed in the United States. Although after 1970 (and 1973) some women had abortions who would otherwise have given birth, demographers found that "a far more significant effect of liberalization of the abortion law has been the replacement of dangerous, discriminatory, undignified, and costly illegal abortions by the legal abortions performed under medical auspices." " page 66

      15. "Willard Cates of the CDC estimates that Roe lowered the price of an abortion form $500 to $150. Prices dropped by 90 percent in some regions of the country when obtaining an abortion in a specialized clinic became a legal option." page 67

      16. "Several features of future practice may exacerbate the inevitable discriminatory impact that recriminalization will have on legal abortion rates. Few women in the late twentieth and early twenty-first centuries will have legitimate medical indications for abortion. . . . By a process of elimination, therefore, a higher proportion of future abortions will be performed for psychiatric and other subjective indications. Abortion decisions in these circumstances will be medically complex and legally borderline, at best. hence, most physicians will again run whatever legal risks abortion presents only when their affluent and overwhelmingly white private patients request that their pregnancies be terminated.

      The existence of jurisdictional pockets where abortion on demand is legal will further aggravate disparities in class access to legal abortions. . . . .

      . . . No matter what the ultimate fate of Roe, a substantial number of pregnant women, perhaps a majority, will continue enjoying a de facto right to abortion on demand. These women who live in jurisdictions where abortion remains legal, be able to travel to jurisdictions where abortion remains legal, or have the resources and connections necessary to procure a safe, illegal abortion where they live. As Professor Luker observes, "the only real policy choice that confronts Americans is whether a significant portion of [unwanted] pregnancies will be ended legally or illegally." Put differently, the relevant political and constitutional decision that citizens of this country must soon make is not whether everyone or no one will enjoy abortion rights, but whether everyone or only some persons will enjoy abortion rights." page 75

      17. "Equality before the law is a fundamental constitutional principle. The persons responsible for the Fourteenth Amendment intended to prohibit certain forms of race discrimination, and they regarded racially biased enforcement of the criminal law as the paradigmatic violation of the equal protection clause. Reconstructionist Republicans also intended to prohibit certain kinds of discrimination against poor persons, and they regarded class0biased enforcement of the criminal law as an unconstitutional evil. hence, government officials may not constitutionally help establish or maintain an exclusive gray market that provides affluent white women with de facto immunities from statutory bans on abortion." page 76

      18. "Rather, justices who strike down maladministered bans on abortion simply remedy the unconstitutional inequalities that result when governing officials fail in practice to choose between pro-life and pro-choice policies.

      Fears that systemic application of equal choice principles across the entire criminal law might require abandoning every provision in the penal code overlook important distinctions between pre-Roe abortion law and other maladministered statutes. Even if societies must tolerate fairly high levels of discrimination in law enforcement practices, constitutional authorities should not sustain laws that most prominent persons violate with impunity. Official policies tat grant favored classes of citizens indulgences from the penal code remove the most powerful democratic safeguard against tyranny: governing officials can be trusted to protect fundamentally rights only when persons with the power to make the laws know that they, their families, and their leading supporters remain subject to whatever laws they make. Although the discriminatory enforcement of any laws is an unconstitutional evil, officials committed to democratic principles must make special efforts to ensure that no law remains on the books that might be repealed immediately if uniformly enforced." page 77

      19. "If "there can be no equal justice where the kind of appeal [trial] a man gets depends on the amount of money he has," then there can be no equal justice when decisions to arrest and prosecute persons suspected of criminal offenses depend on how much money they have or, in the case of abortion, how much money their clientele has. . . Of course, "[a]absolute equality is not required" in capitalist societies. Nevertheless, state policies that enable affluent persons to enjoy substantial advantages in the criminal process, either because they can afford counsel or because they are not arrested when they transgress statutory norms, are inconsistent with the language of the equal protection clause, the intentions of those responsible for that provision, the traditional American demand for general laws, and a distinguished line of judicial precedents requiring state officials to "weig[h] the interests of rich and poor criminals in equal scales." " page 83

      20. "Restrictions on abortion were unconstitutional as applied, equal choice maintains, because when state officials do not prevent doctors from providing abortion services to their affluent white private patients, the equal protection clause requires that state officials not prevent doctors from providing the same services to the general public. The exclusive gray market in safe abortion services violated the Fourteenth Amendment, in this view, by providing affluent white citizens with exactly the kind of special privileges Jacksonian Democrats and their Reconstruction descendants meant to abolish.

      Whether the Constitution requires state officials to help poor persons finance abortions is an entirely different question, one on which proponents of equal choice may disagrees. Elected officials respect equal choice principles when they allow market forces to determine who has access to abortion." page 84

      21. ". . . unwanted children burden most parents and communities. Though women are more severely burdened than men before and (almost always) after birth, few men benefit individually or as a group from laws that force women to carry their pregnancies to term. . . . surely unelected justices ought to pause before cheerfully substituting their considered judgment of what rights have been retained in the Constitution by the people for the people's considered judgment of their constitutional liberties." page 98 I disagree. Men do benefit as a group by limiting women's access to abortion by using control over women's reproductive choices as control over women's sexuality and hence over women's behavior.

      22. "That opponents of legal abortion are poorer and less educated than their pro-choice counterparts may be surprising in light of uncontested evidence that bans on abortion primarily burden the less affluent citizens. Nevertheless, studies uniformly conclude that "the same individuals who presumably incur the heaviest costs when abortion is legally prohibited also express the strongest verbal disapproval of legalized abortion." page 144

      23. "Obsessed with mobilizing the dispossessed, many of whom are pro-live, proponents of legal abortion have not recognized that their fundamental strategic problem is getting affluent Americans who support reproductive choice to convert those policy preferences into political actions." page 146

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