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Roe v Wade: FULL Text (The Decision that wiped out an entire Generation 33 years ago today)
TouroLaw ^ | 1-22-73 | SCOTUS

Posted on 01/22/2006 9:27:01 AM PST by cgk

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The Dissent


Roe v. Wade

MR. JUSTICE BLACKMUN delivered the opinion of the Court.

MR. JUSTICE STEWART, concurring.


The Court's opinion brings to the decision of this troubling question both extensive historical fact and a wealth of legal scholarship. While the opinion thus commands my respect, I find myself nonetheless in fundamental disagreement with those parts of it that invalidate the Texas statute in question, and therefore dissent.


The Court's opinion decides that a State may impose virtually no restriction on the performance of abortions during the first trimester of pregnancy. Our previous decisions indicate that a necessary predicate for such an opinion is a plaintiff who was in her first trimester of pregnancy at some time during the pendency of her lawsuit. While a party may vindicate his own constitutional rights, he may not seek vindication for the rights of others. Moose Lodge v. Irvis, 407 U.S. 163 (1972); Sierra Club v. Morton, 405 U.S. 727 (1972). The Court's statement of facts in this case makes clear, however, that the record in no way indicates the presence of such a plaintiff. We know only that plaintiff Roe at the time of filing her complaint was a pregnant woman; for aught that appears in this record, she may have been in her last trimester of pregnancy as of the date the complaint was filed.

Nothing in the Court's opinion indicates that Texas might not constitutionally apply its proscription of abortion as written to a woman in that stage of pregnancy. Nonetheless, the Court uses her complaint against the Texas statute as a fulcrum for deciding that States may impose virtually no restrictions on medical abortions performed during the first trimester of pregnancy. In deciding such a hypothetical lawsuit, the Court departs from the longstanding admonition that it should never "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885). See also Ashwander v. TVA, 297 U.S. 288, 345 (1936) (Brandeis, J., concurring).


Even if there were a plaintiff in this case capable of litigating the issue which the Court decides, I would reach a conclusion opposite to that reached by the Court. I have difficulty in concluding, as the Court does, that the right of "privacy" is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not "private" in the ordinary usage of that word. Nor is the "privacy" that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States, 389 U.S. 347 (1967).

If the Court means by the term "privacy" no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of "liberty" protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of MR. JUSTICE STEWART in his concurring opinion that the "liberty," against deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955). The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother's life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the test stated in Williamson, supra. But the Court's sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court's opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.

The Court eschews the history of the Fourteenth Amendment in its reliance on the "compelling state interest" test. See Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 179 (1972) (dissenting opinion). But the Court adds a new wrinkle to this test by transposing it from the legal considerations associated with the Equal Protection Clause of the Fourteenth Amendment to this case arising under the Due Process Clause of the Fourteenth Amendment. Unless I misapprehend the consequences of this transplanting of the "compelling state interest test," the Court's opinion will accomplish the seemingly impossible feat of leaving this area of the law more confused than it found it.

While the Court's opinion quotes from the dissent of Mr. Justice Holmes in Lochner v. New York, 198 U.S. 45, 74 (1905), the result it reaches is more closely attuned to the majority opinion of Mr. Justice Peckham in that case. As in Lochner and similar cases applying substantive due process standards to economic and social welfare legislation, the adoption of the compelling state interest standard will inevitably require this Court to examine the legislative policies and pass on the wisdom of these policies in the very process of deciding whether a particular state interest put forward may or may not be "compelling." The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental," Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Even today, when society's views on abortion are changing, the very existence of the debate is evidence that the "right" to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. Conn. Stat., Tit. 20, §§ 14, 16. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. 1 While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. 2 Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and "has remained substantially unchanged to the present time." Ante, at 119.

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.


Even if one were to agree that the case that the Court decides were here, and that the enunciation of the substantive constitutional law in the Court's opinion were proper, the actual disposition of the case by the Court is still difficult to justify. The Texas statute is struck down in toto, even though the Court apparently concedes that at later periods of pregnancy Texas might impose these selfsame statutory limitations on abortion. My understanding of past practice is that a statute found to be invalid as applied to a particular plaintiff, but not unconstitutional as a whole, is not simply "struck down" but is, instead, declared unconstitutional as applied to the fact situation before the Court. Yick Wo v. Hopkins, 118 U.S. 356 (1886); Street v. New York, 394 U.S. 576 (1969).

For all of the foregoing reasons, I respectfully dissent.

---- Begin EndNotes ----

1 Jurisdictions having enacted abortion laws prior to the adoption of the Fourteenth Amendment in 1868:

1. Alabama -- Ala. Acts, c. 6, § 2 (1840).

2. Arizona -- Howell Code, c. 10, § 45 (1865).

3. Arkansas -- Ark. Rev. Stat., c. 44, div. III, Art. II, § 6 (1838).

4. California -- Cal. Sess. Laws, c. 99, § 45, p. 233 (1849-1850).

5. Colorado (Terr.) -- Colo. Gen. Laws of Terr. of Colo., 1st Sess., § 42, pp. 296-297 (1861).

6. Connecticut -- Conn. Stat., Tit. 20, §§ 14, 16 (1821). By 1868, this statute had been replaced by another abortion law. Conn. Pub. Acts, c. 71, §§ 1, 2, p. 65 (1860).

7. Florida -- Fla. Acts 1st Sess., c. 1637, subc. 3, §§ 10, 11, subc. 8, §§ 9, 10, 11 (1868), as amended, now Fla. Stat. Ann. §§ 782.09, 782.10, 797.01, 797.02, 782.16 (1965).

8. Georgia -- Ga. Pen. Code, 4th Div., § 20 (1833).

9. Kingdom of Hawaii -- Hawaii Pen. Code, c. 12, §§ 1, 2, 3 (1850).

10. Idaho (Terr.) -- Idaho (Terr.) Laws, Crimes and Punishments §§ 33, 34, 42, pp. 441, 443 (1863).

11. Illinois -- Ill. Rev. Criminal Code §§ 40, 41, 46, pp. 130, 131 (1827). By 1868, this statute had been replaced by a subsequent enactment. Ill. Pub. Laws §§ 1, 2, 3, p. 89 (1867).

12. Indiana -- Ind. Rev. Stat. §§ 1, 3, p. 224 (1838). By 1868 this statute had been superseded by a subsequent enactment. Ind. Laws, c. LXXXI, § 2 (1859).

13. Iowa (Terr.) -- Iowa (Terr.) Stat., 1st Legis., 1st Sess., § 18, p. 145 (1838). By 1868, this statute had been superseded by a subsequent enactment. Iowa (Terr.) Rev. Stat., c. 49, §§ 10, 13 (1843).

14. Kansas (Terr.) -- Kan. (Terr.) Stat., c. 48, §§ 9, 10, 39 (1855). By 1868, this statute had been superseded by a subsequent enactment. Kan. (Terr.) Laws, c. 28, §§ 9, 10, 37 (1859).

15. Louisiana -- La. Rev. Stat., Crimes and Offenses § 24, p. 138 (1856).

16. Maine -- Me. Rev. Stat., c. 160, §§ 11, 12, 13, 14 (1840).

17. Maryland -- Md. Laws, c. 179, § 2, p. 315 (1868).

18. Massachusetts -- Mass. Acts & Resolves, c. 27 (1845).

19. Michigan -- Mich. Rev. Stat., c. 153, §§ 32, 33, 34, p. 662 (1846).

20. Minnesota (Terr.) -- Minn. (Terr.) Rev. Stat., c. 100, §§ 10, 11, p. 493 (1851).

21. Mississippi -- Miss. Code, c. 64, §§ 8, 9, p. 958 (1848).

22. Missouri -- Mo. Rev. Stat., Art. II, §§ 9, 10, 36, pp. 168, 172 (1835).

23. Montana (Terr.) -- Mont. (Terr.) Laws, Criminal Practice Acts § 41, p. 184 (1864).

24. Nevada (Terr.) -- Nev. (Terr.) Laws, c. 28, § 42, p. 63 (1861).

25. New Hampshire -- N. H. Laws, c. 743, § 1, p. 708 (1848).

26. New Jersey -- N. J. Laws, p. 266 (1849).

27. New York -- N. Y. Rev. Stat., pt. 4, c. 1, Tit. 2, §§ 8, 9, pp. 12-13 (1828). By 1868, this statute had been superseded. N. Y. Laws, c. 260, §§ 1-6, pp. 285-286 (1845); N. Y. Laws, c. 22, § 1, p. 19 (1846).

28. Ohio -- Ohio Gen. Stat. §§ 111 (1), 112 (2), p. 252 (1841).

29. Oregon -- Ore. Gen. Laws, Crim. Code, c. 43, § 509, p. 528 (1845-1864).

30. Pennsylvania -- Pa. Laws No. 374, §§ 87, 88, 89 (1860).

31. Texas -- Tex. Gen. Stat. Dig., c. VII, Arts. 531-536, p. 524 (Oldham & White 1859).

32. Vermont -- Vt. Acts No. 33, § 1 (1846). By 1868, this statute had been amended. Vt. Acts No. 57, §§ 1, 3 (1867).

33. Virginia -- Va. Acts, Tit. II, c. 3, § 9, p. 96 (1848).

34. Washington (Terr.) -- Wash. (Terr.) Stats., c. II, §§ 37, 38, p. 81 (1854).

35. West Virginia -- See Va. Acts., Tit. II, c. 3, § 9, p. 96 (1848); W. Va. Const., Art. XI, par. 8 (1863).

36. Wisconsin -- Wis. Rev. Stat., c. 133, §§ 10, 11 (1849). By 1868, this statute had been superseded. Wis. Rev. Stat., c. 164, §§ 10, 11; c. 169, §§ 58, 59 (1858).

2 Abortion laws in effect in 1868 and still applicable as of August 1970: 1. Arizona (1865).

2. Connecticut (1860).

3. Florida (1868).

4. Idaho (1863).

5. Indiana (1838).

6. Iowa (1843).

7. Maine (1840).

8. Massachusetts (1845).

9. Michigan (1846).

10. Minnesota (1851).

11. Missouri (1835).

12. Montana (1864).

13. Nevada (1861).

14. New Hampshire (1848).

15. New Jersey (1849).

16. Ohio (1841).

17. Pennsylvania (1860).

18. Texas (1859).

19. Vermont (1867).

20. West Virginia (1863).

21. Wisconsin (1858).

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1 posted on 01/22/2006 9:27:10 AM PST by cgk
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To: 4lifeandliberty; AbsoluteGrace; afraidfortherepublic; Alamo-Girl; AlbionGirl; anniegetyourgun; ...

Pro-Life/Pro-Baby ping!

Please FReepmail me if you would like to be added to, or removed from, the Pro-Life/Pro-Baby ping list...

2 posted on 01/22/2006 9:28:49 AM PST by cgk (I don't see myself as a conservative. I see myself as a religious, right-wing, wacko extremist.)
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To: Sidebar Moderator; Lead Moderator; Jim Robinson

I respectfully submit that this thread should be left in Breaking News for the day, as today is the 33rd anniversary of this decision. This is the full text of the decision, and the dissent, of the case that to this day divides our country.

The Top 10 Greatest Quips from Ronald Reagan are in Breaking News at this time. Is this not equally important and worthy of discussion?

3 posted on 01/22/2006 9:32:38 AM PST by cgk (I don't see myself as a conservative. I see myself as a religious, right-wing, wacko extremist.)
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To: cgk

Sanctioning of women killing their own offspring does not bode well for Western Civilization.

4 posted on 01/22/2006 9:32:56 AM PST by ex-snook (God of the Universe, God of Creation, God of Love, thank you for life.)
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To: cgk

When the pro abortion justices stand before the judgment bar of God, will their pleas in their own behalf be nearly as wordy as we find in this thread. I'd say we are working on two generations of citizens. who were the answer to SS, and baby boomer retirement, but due to the necessity for manufactured female reproductive "rights" will never see the light of day. If you read Mark Steyn, you will know and understand the demographic implications of killing off two generations of your populace. It is a numbers game that we and every Christian, democratic nation on the face of the earth, are losing.

5 posted on 01/22/2006 9:49:55 AM PST by wita (
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To: 2nd amendment mama; A2J; Agitate; AliVeritas; Alouette; Annie03; aposiopetic; attagirl; Augie76; ...
Prolifers and Breakpoint fans, here's an excellent bookmarking oportunity.

6 posted on 01/22/2006 9:52:20 AM PST by Mr. Silverback (Given the subject matter, shouldn't Heath Ledger get a Best Actress nomination?--Rambette)
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To: cgk; Mr. Silverback

Bookmarking for reference. Thank you cgk for posting this!

7 posted on 01/22/2006 10:17:31 AM PST by 2nd amendment mama ( Self defense is a basic human right!)
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To: All
Abortion is not about saving women’s lives!

Total Abortions since 1973



Why the drop after 1960? (in deaths of women from illegal abortions)

The reasons were new and better antibiotics, better surgery and the establishment of intensive care units in hospitals. This was in the face of a rising population. Between 1967 and 1970 sixteen states legalized abortion. In most it was limited, only for rape, incest and severe fetal handicap (life of mother was legal in all states). There were two big exceptions — California in 1967, and New York in 1970 allowed abortion on demand. Now look at the chart carefully.


Abortion Statistics - Decision to Have an Abortion (U.S.)

· 25.5% of women deciding to have an abortion want to postpone childbearing

· 21.3% of women cannot afford a baby

· 14.1% of women have a relationship issue or their partner does not want a child

· 12.2% of women are too young (their parents or others object to the pregnancy)

· 10.8% of women feel a child will disrupt their education or career

· 7.9% of women want no (more) children

· 3.3% of women have an abortion due to a risk to fetal health

2.8% of women have an abortion due to a risk to maternal health


So how many women’s lives have been saved by abortion?

Only about 3% of abortions since 1972 were reported to be “due to a risk to maternal health.” A reasonable person would recognize that not all of those cases represent a lethal risk. But let’s say they did. That means that nearly 45 million fetuses were butchered to save the lives of about 1.3 million women. Or put another way; 35 babies are killed to save each woman.

Abortion was legal in all 50 states prior to Roe v. Wade in cases of danger to the life of the woman.

8 posted on 01/22/2006 10:31:47 AM PST by TigersEye (Are your parents Pro-Choice? I guess you got lucky! ... Is your spouse?)
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To: 2ndMostConservativeBrdMember; afraidfortherepublic; Alas; al_c; american colleen; annalex; ...

9 posted on 01/22/2006 10:56:25 AM PST by Coleus (IMHO, The IVF procedure is immoral & kills many embryos/children and should be outlawed)
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To: cgk
Pro-life bump.


"Our nation-wide policy of abortion on demand through all nine months of pregnancy was neither voted for by our people, nor enacted by our legislators--not a single state had such unrestricted abortion before the Supreme Court decreed it to be national policy in 1973. [It was] an act of raw judicial power"...

"Make no mistake, abortion-on-demand is not a right granted by the Constitution. Nowhere do the plain words of the Constitution even hint at a "right" so sweeping as to permit abortion up to the time the child is ready to be born."

"We cannot diminish the value of one category of human life--the unborn--without diminishing the value of all human life."

"Abraham Lincoln recognized that we could not survive as a free land when some men could decide that others were not fit to be free and should therefore be slaves. Likewise, we cannot survive as a free nation when some men decide that others are not fit to live and should be abandoned to abortion or infanticide. My Administration is dedicated to the preservation of America as a free land, and there is no cause more important for preserving that freedom than affirming the transcendent right to life of all human beings, the right without which no other rights have any meaning."

- President Ronald Reagan : "Abortion and the Conscience of a Nation", 1983

10 posted on 01/22/2006 11:13:49 AM PST by Reagan Man (Secure our borders;punish employers who hire illegals;stop all welfare to illegals)
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To: cgk


11 posted on 01/22/2006 11:14:25 AM PST by Guenevere
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To: Guenevere

This is interesting....

12 posted on 01/22/2006 11:17:14 AM PST by gman992
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To: gman992

Cold Hearted View

My Cold Hearted View of abortion says that it is really a self curing problem. In time, the problem will go away by itself. Those women who don’t have the time and don't want to take the trouble to raise a child have an abortion. They are removing their genes from the gene pool. As time passes, only mothers who want children and are willing to take care of them will remain in the population. Therefore, slowly, the defective genes are being systematically removed from the gene pool. 

As a sidebar, Rush was talking on his radio program awhile back that there have been about 40 million abortions since Roe v Wade. That makes me wonder: Could it be that the Liberals have also aborted themselves out of power? If only a small majority of the 40 million who were aborted were now alive and voting as Liberals, the Democrats would be in control of the US Presidency, the House, and the Senate!

Good Hunting... from Varmint Al

13 posted on 01/22/2006 11:28:50 AM PST by Varmint Al
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To: cgk

Great dissent. The court's majority ignored text, intent and history to impose their politically correct decision.

14 posted on 01/22/2006 11:31:24 AM PST by Mojave
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To: gman992

"In the 2008 election, 24,408,960 in the Voting Age Population will be missing because of abortions between 1973-90."

Very interesting indeed. And how many will be missing in 2012 (for people NEVER born between 1991-1994). Or 2016 (1995-1998). It just goes on and on, sadly.

15 posted on 01/22/2006 12:02:41 PM PST by jdm (WWW-WEBMASTER (My grandfather swears it's his email address))
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To: cgk
Wow. I had never actually looked at the details of the decision, but this thing reads more like a bill or some sort of declaration from God than anything else. You'd find stuff like this mentioned in Congress. What a totally arbitrary decision.

I also like how they declare that anti-abortion bills in the 19th century only existed to protect the mother, and that this revelation is reasoning enough to overturn said laws because the mother can now be protected. I thought they were supposed to decide the CONSTITUTIONALITY of the laws, not the PRACTICALITY. Maybe mothers were at less risk with abortion in the 1970s than the 1870s. Even so, who cares in the Constitutional scope? The fact that the anti-abortion legislations EXISTED in the first place- particularly so early in our country's existence, and without challenge- shows that anti-abortion legislation WAS seen as Constitutional, which should have been taken into consideration. It doesn't matter WHY a bill was enacted, it matters whether it is Constitutional. Policymakers are supposed to be considered with WHYs and HOWs, not judges.

Also interesting to note:

"With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother."

I cite the above passage because I think it's going to cause pro-choicers tremendous problems in the coming years as science improves. "Viability" is constantly being pushed up because of improvements in medicine and science, and mother's lives and health are at significantly less risk during pregnancy now. A case can eventually be made that states should have more power now to regulate abortion because "viability" and the "health/life" problem caused my pregnancy are significantly different from how they used to be.

Besides, if the court reasons that anti-abortion statutes should be banned because the mother's health/life is much less at risk by abortion procedures because of scientific improvements, then they should also reason that abortion is no longer necessary because the mother's health/life is much less at risk in most pregnancy situations nowadays because of scientific improvements.

But of course we're dealing with the Supreme Court here, so don't expect reason. And this comes from someone who really doesn't care whether abortion goes one way or another. Let the states decide as it used to be.

16 posted on 01/22/2006 12:15:03 PM PST by SunnyD1182
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To: cgk

Having been born after the Court decision was made, I have always been curious- what was the media reaction to this when it happened? Was it an outrage? And, what was the reaction in society, nationwide? Was the gravity of the decision realized immediately in private homes?

17 posted on 01/22/2006 12:44:57 PM PST by richmwill
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To: cgk

Some people have simply left their brain in the freezer. You don't have to be a rocket scientist to realize our Founding Fathers would never have tolerated such a thing as BARBARIC as abortion. Come on people, just stop wasting time, lives, and money by entertaing this idiocy!

18 posted on 01/22/2006 12:47:28 PM PST by Mrs. Darla Ruth Schwerin
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To: richmwill
what was the media reaction to this when it happened

If you look into this, you'll see that the media was complicit in lying to the American people about abortion. It was sold to America by the abortion lobby and the media using made-up surveys and other made-up "facts". Check out David Kupelian's book "The Marketing of Evil".

19 posted on 01/22/2006 12:51:24 PM PST by MichiganConservative (Government IS the problem.)
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To: MichiganConservative

I figured as much. Even though I had some doubts because it wasn't the "media of today", I was still picturing the "Greatest victory for women in years..." newscasts.

20 posted on 01/22/2006 1:27:45 PM PST by richmwill
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