Chapter 10

Once filed, Roe v. Wade no longer needed its plaintiff. And Jane Roe and Norma McCorvey had parted ways.

Norma was aloof from her suit. Her mind was on a baby that, wanted or not, had to be delivered. Jane, meantime, had landed in the friendly arms of Sarah Hughes and two Dallas federal court colleagues.

BACK IN MARCH, Fifth Circuit Judge John R. Brown had decided that a three-judge federal panel would hear the Roe and Doe cases together. A third case had then joined the docket, that of a doctor who’d been arrested for performing abortions just north of Dallas.

The hearing was slated for May 22. Coffee and Weddington were ready. They had amended their complaint as needed, filed briefs and affidavits, prepared for the courtroom. Jane Roe was in good hands.

The state’s case was in the hands of one of Wade’s attorneys, a Notre Dame graduate named John Tolle, who would work together with a lawyer from the office of the Texas AG named Jay Floyd.

Tolle handled cases concerning federal civil rights. (It was he who’d argued opposite Henry McCluskey over sodomy.) Readying now for Roe, the lawyer understood its potential importance not only because he was Catholic and “very much opposed to abortion,” he says, but because the case had been filed by Coffee, a lawyer he respected. “She thought she had a case,” he says. And so, Tolle did, too.

Tolle knew that the anonymous plaintiff was pregnant. The father of two found himself wondering about the baby not yet born, speaking of it to an older lawyer in the office named Wilson Johnston. “We knew that baby as Fetus Roe,” says Tolle. “That’s what we called it.”

The Roe hearing began at 2 p.m. on May 22, Coffee addressing, on the fourth floor of the Dallas federal courthouse, the procedural points of jurisdiction and standing; Jane Roe, she said, had the right to file suit. Weddington then moved on to the less arcane contention that the plaintiff also had the right to choose whether to have children. She spoke of privacy and precedent and personhood.

The lawyers representing Texas countered. Floyd argued that Jane Roe did not have standing. The abortion statutes at issue, he said, were aimed at doctors who performed abortions, not at women who wanted them. He added that as it was no doubt too late for the plaintiff to get an abortion, her suit was moot. His co-counsel Tolle then asserted that a fetus’s right to life was more important than a woman’s right to privacy. Neither side presented a witness.

The panel did not address the question of mootness. And weeks later, on June 17, it declared the abortion statutes in Texas unconstitutional. The right of a woman to have an abortion, it said, was embedded within the Ninth Amendment, within the right to privacy. Read the front page of the Dallas Morning News: “Texas Abortion Law Void.”

Coffee exulted. “Quite a victory,” she told the press.

It was, however, an incomplete victory. The panel had found that Mary and John Doe (who were not expecting a child and might never be) did not have standing. More, owing to sensitivity about federal-court interference in state processes, it had declined to order Texas not to enforce the very laws it deemed unconstitutional.

Coffee petitioned the judges to reconsider, telling of officials at a local hospital who, fearing the law, would not end the pregnancy of a girl of fifteen raped by her father. The ruling, though, remained, and Coffee readied to file an appeal. Tolle did too.

Tolle was soon off the case; the Texas AG was taking over. Yet Tolle still found himself thinking of what he had months before called “Fetus Roe.” And the day after the Roe ruling, Coffee told the press that her plaintiff was due to give birth in just a few weeks.

Norma had in fact already given birth. Her baby had been born early, two weeks before, at 6:51 a.m. on June 2.

THE ROE BABY was four months old when, in October 1970, Coffee filed her appeal. Coffee explained to Weddington what the abortion rights lawyer Roy Lucas had explained to her—that because the panel had found a state law unconstitutional while granting no injunction against enforcing it, they could appeal directly to the Supreme Court. This she did.

Back when Coffee filed Roe, she had not imagined her case could reach the Supreme Court. “Never in a million years!” she says. Even now, the odds were long. At least eight times, the Court had chosen not to review decisions involving anti-abortion laws.

The Court had, however, earlier that year, decided at last to address abortion. The case, United States v. Vuitch, concerned a DC law that banned abortion except when “the mother’s life or health” was at stake. On April 21, 1971, the Court ruled that health included mental health, and that the law was not unconstitutionally vague.

Still, it is one thing to challenge the vagueness of a law, and quite another to assert that a woman has a constitutional right to choose to have an abortion. And weeks later, on May 3, the Supreme Court agreed to hear Roe, coupling it with a similar case from Georgia, Doe v. Bolton. Coffee and Weddington exulted.

It was Coffee who had found their plaintiff and filed their suit and attached her name to it, Coffee who had conceived its legal grounding and presented half its oral argument and appealed the ruling to the Supreme Court. The lawyer would continue to bring other successful suits, too (including Johnston v. Luna, which would soon void a new state law requiring political candidates to pay a filing fee).

But if Coffee was brilliant, she was bedraggled. Several of her clients would express concern that she made a poor impression in court. Recalls Peggy Clewis, the secretary at her firm: “They were embarrassed.” And so, facing a second oral argument, the two lawyers decided that Weddington would present the whole of it. Optics mattered. “She was younger than I was,” says Coffee of Weddington. “She was blond, blue-eyed.” More, Weddington enjoyed the limelight as much as Coffee disliked it.

Weddington got to work. The previous spring, she’d hesitated to affix her name to Roe. But she now committed to it fully, working with her husband tirelessly through the summer on the legal brief the high court required—doing research in New York and DC, using both moot courts and mirrors to hone her arguments, the latter “to see,” she later noted, “how you were getting your message across.”

Coffee helped, of course. “Linda worked with me some,” Weddington later recalled. So did others—the activist Roy Lucas providing legal direction, an heiress named Ruth Bowers and an industrialist named Thomas Cabot footing many bills. Then there were the amici curiae, “friends of the court” who submitted briefs in support of every legal or medical or psychiatric or religious point that might serve the plaintiff.

That plaintiff was uninvolved, unseen by her lawyers in the year since Coffee had come to her apartment at 4706 San Jacinto with an affidavit to sign. Roe had left Norma behind.

That was fine with Weddington. Plaintiffs, she later wrote, were merely “vehicles for presenting larger issues.” But then, suddenly, Weddington needed Norma. Only Norma could decide who would represent her in court, and Lucas made clear that he intended to do so. “The clients in a case have the final say-so about who argues,” Weddington later explained. And so, as Norma recalled: “Sarah got in touch with me, for the first time in a long time.”

Weeks later, on December 13, 1971, it was Weddington who stood at a mahogany lectern in the Supreme Court. She was all of twenty-six. Looking up at the seven robed men looking down at her—their number depleted by two September retirements—Weddington suddenly wondered, she recalled, how best to return their gaze, how best to “respond in a personal way to their obviously sort of looking me over.” “Do I smile and wink? Or do I look demure?”

Weddington wore a suit, heels and pearls. The courtroom sketch artists took note. “She was rather attractive,” recalled the artist Betty Wells. Harry Blackmun agreed. So as to better recall the argument of every lawyer come before him, the justice jotted a quick physical description of him or her. As Weddington began now to speak of pregnancy and fetuses, of precedent and state interest, of the lengths women traveled to end their pregnancies, he made himself a note. Wrote Blackmun: “large blond hair, rather pretty, plump.”

Weddington was prepared and poised. Seated to her side at their counsel table—in a skirt and jacket and ribboned blouse that she could never quite tie—Coffee listened, another lawyer in a crowd that included supporters from Planned Parenthood and NARAL but not her parents. “Since I wasn’t arguing,” says Coffee, “they didn’t come.” That she was a spectator suited Coffee. Despite her uncomfortable clothing, she could relax, could take in the figures of Menes and Moses and Muhammad carved in marble above, take in the seven justices seated at the mahogany bench before her.

Of the seven, it was William Brennan whom Coffee most esteemed. He wrote, she says, “elegant opinions for the minority,” opinions most often in the service of individual rights that the justice supported with an expansive view of the Constitution and its Fourteenth Amendment.

It was that same amendment, with its ostensible guarantee of privacy, that Weddington had come to determine offered Roe its best chance. Before concluding her argument this Monday morning, she asserted the constitutional right of all people “to determine the course of their lives.”

As after every oral argument, Blackmun now graded the lawyer who made it. He was ungenerous: C+. Jay Floyd approached the bench.

To argue opposite a woman was a rare thing; Weddington was just the eighth in twelve months to argue before the Court. (The lawyers’ lounge did not even have a ladies’ room.) And representing Texas, his speech deliberate and drawled, Floyd began with a joke: “When a man argues against two beautiful ladies like this, they are going to have the last word.” No one laughed.

Floyd moved on. The plaintiff, he said, “is no longer pregnant.” As such, her case was moot. Justice Potter Stewart made clear that he disagreed, and Floyd, after assertions about maternal responsibility and fetal life, closed by saying that the Constitution did not address abortion. It was a matter, he said, for lawmakers, not judges. Blackmun gave Floyd a B, noting that he was “squarely built, nice looking.”

The judges convened three days later. Five of the seven determined that the Texas law was unconstitutional. Among them was Blackmun. Home in his living room, the junior justice confided to his wife and three daughters that he hoped the case might fall to him. “I remember him saying,” recalls his eldest daughter, Nancy, “ ‘I’d give my eyeteeth to write that opinion!’ ”

Blackmun did not say why he wanted to author Roe. But Nancy had a thought. As she would observe almost thirty years later in eulogizing her father: “Dad saw at close range what it was like for a woman alone in the world.”

Indeed, he had. Blackmun was a boy in St. Paul, Minnesota, when his aunt Annette was left alone to raise two children after her husband went to jail for embezzlement. He was a teenager at Harvard studying math and working odd jobs when he befriended one of the university maids everybody knew as “goodies.” (“She was a single mom,” says Nancy. “They were in touch the rest of her life.”) He was past forty when, after years of practicing copyright and tax law, he became counsel at the Mayo Clinic and observed the back-alley abortions that landed women at St. Mary’s Hospital. And he was a Minnesota judge nearing sixty when, in 1966, it was his own daughter undone by circumstance—Sally became pregnant while a sophomore in college. In short order, she dropped out of school, married, miscarried and divorced.

Blackmun had come to understand that law is not a theoretical science. At his confirmation hearing in May 1970, after President Richard Nixon nominated him to the Supreme Court, the judge was clear when asked if he viewed the Court “as the protector of our most basic liberties.” Yes, said Blackmun. His opinions revealed “in the treatment of little people, what I hope is a sensitivity to their problems.” The Senate confirmed the judge without opposition.

Come to DC, Blackmun remained his Midwestern Methodist self. He ate breakfast with his clerks, talking baseball over raisin toast and a scrambled egg. He wore patched sweaters, and told the uninitiated that he was “a lawyer in Washington.” At the close of every term, he and his wife Dottie drove back to Minnesota in his VW Bug.

Blackmun was the second Minnesotan on the Court; he’d grown up six blocks from Warren Burger, who’d been appointed Chief Justice the previous June. The two Republicans were dubbed the Minnesota Twins. And on December 17, days after discussing Roe (and its companion Doe) with their five colleagues, Burger assigned both cases to the friend he’d met in Sunday School back in 1914.

Blackmun was unsure why. Perhaps Burger had in mind his medical background. Or perhaps, as the clerks had it, he thought he could influence an old friend. “The insider speculation,” recalls George Frampton, a Blackmun clerk, “was that he would want to manipulate the opinion.”

Blackmun, sixty-three, started in on Roe that very day. “Would your well-stocked library have anything about the history of abortion?” he wrote a former colleague at the Mayo Clinic. “You can imagine why I ask.”

AMONG THOSE HANGING on the fortunes of Roe was Curtis Boyd, the Dallas doctor violating Texas law with nearly every abortion he performed.

Abortion consumed Boyd. Since performing his first almost four years before, it had driven him from his hometown, his best friend, his medical practice. And since reading, on the front page of the Dallas Morning News in the spring of 1970, that Roe was bound for the Supreme Court, he’d wondered if it would drive him further. For though a three-judge federal panel had found that women had a right to have an abortion and that doctors had a right to perform one, it had not enjoined Henry Wade from prosecuting those same people. The DA took note. “Apparently, we’re free to try them,” Wade had told the press, “so we’ll still do that.”

Boyd had phoned an attorney to ask what it all meant. The lawyer, recalls Boyd, was clear: “Don’t bet your safety on this.”

Up to that point, Boyd had been careful. He had kept no records, worked with just one partner, seen only patients screened by his referring clergy, relocated from town to city. And yet, he lived in fear. Says Boyd: “A police car would pull up behind me and my heart rate would accelerate.”

The following September, in 1971, the retirements of Justices Hugo Black and John Harlan II left Roe in the hands of a court that would carry four Nixon appointees. Certain that the court would vote Roe down, Boyd decided that it was time to move again. He knew where he would go.

Eight years before, the American Law Institute, a body of lawyers, professors and judges, had proposed legalizing, among others, abortions that it termed “therapeutic”—those that safeguarded the physical or mental well-being of the woman. Twelve states had since adopted all or part of the ALI proposal. One was New Mexico.

Boyd knew that other states had more liberal policies. (Alaska, Hawaii, New York and Washington had legalized all abortions performed by doctors in early pregnancy.) He knew that even in New Mexico, the majority of the abortions he performed would fall outside the law. But Boyd wished to work where the women of Texas could reach him, and New Mexico lay just to the west.

Boyd turned to his wife. He was no longer the man LaMerle had fallen for—a Baptist with cropped hair who aspired to doctor in his hometown. He now wished to use his medical degree for just one thing—ending the pregnancies of women unable to end them elsewhere. He told LaMerle that he could better do so out of state.

LaMerle listened. She respected her husband. She believed in his cause. But if he lived in fear of arrest, she feared most what his arrest would do to their kids. She beseeched him to return to general medicine. But come fall, Boyd drove west in a U-Haul loaded with the gear of his three procedure rooms: exam tables and lamps, curettes and cannulas. The family followed, settling with Boyd a few hundred miles west in an adobe house on a dirt road beside the Santa Fe River.

New Mexico law required that abortion be performed in a hospital. But Boyd wished to work only with his trusted aide, and Cox helped Boyd resettle their clinic into the home she rented in the Atalaya Hills. Soon after, she set off to the Albuquerque airport, there to gather the first of the women the clergy sent their way.

So as to find each other, Cox and the women had agreed to wear something red—a blouse or shoes or coat or flower in the hair. They then piled into the yellow Ford wagon with room for nine that Boyd had bought to transport his patients from airport to clinic.

The trip was sixty miles. The women spoke en route, telling of the diaphragms that had failed in Shreveport and San Antonio, of the grandfathers who had molested them in St. Louis and Denver, of the families of five in Houston and Oklahoma City that simply could not afford a sixth. And when, along Interstate 25, morning sickness took hold of a passenger, Cox gave her a basin and told her what awaited—the sedative and the pelvic exam and the doctor in the white coat who would end any pregnancy through its sixteenth week.

Boyd didn’t think of his work as the termination of something. He had come to see abortion, he says, as a means of fulfillment, of self-preservation. Still, one hemorrhage could land him in prison. And, says Cox, “he was meticulous.” He was lucky, too. When once a woman lied to him about the stage of her pregnancy and the doctor accidentally perforated her uterus, bringing down a piece of bowel, he rushed her to a hospital where a doctor he knew performed surgery and kept his secret. The woman recovered.

Such emergencies were rare. Nearly all who made the trek to Boyd flew home only hours later, no longer pregnant and thankful for the doctor who for $300 had let them resume their lives. “And then,” says Cox, “the women were gone forever.”

Months passed and Boyd did his work undisturbed. He was happy to have left Texas. He would keep his eye on Roe.

BLACKMUN LIKED TO WORK in his chambers, to look out at a favorite cherry tree from behind his mahogany desk in the southeast corner of the high court building. It was a soothing space, light blue walls rising about a cranberry rug. But the office had its distractions: a secretary, clerks, a phone. And often, the justice carried his colored pencils and perforated pads up two flights of marble steps to the library, where, of all the justices, only he worked.

The work was urgent; in the coming term, the Court would rule, for example, on the death penalty. And the hours were long; save for lunch and calisthenics in the afternoon, Blackmun took no breaks, returning home at 6:30 to continue working until Dottie rung a bell to call him for dinner.

Blackmun enjoyed his dinners at home. They were a time for the father “to throw some question out,” says daughter Nancy. And it was over dinner, toward the close of 1971—days before Lewis Powell and William Rehnquist joined the Court—that Blackmun asked his wife and three daughters about abortion. The four women, though, were of four minds, and the judge was exasperated. “You people don’t understand me at all!” Nancy recalls her father saying. He threw down his napkin.

It had been left to Blackmun to address the laws at stake in Roe and Doe, and the constitutional issues behind them. He returned to the library, reading of law and abortion in a green reclining chair, his loafered feet up. But the justice was uncertain where to find in the Constitution legal grounds for abortion, uncertain when in the course of a pregnancy those grounds might expire.

It was thus with self-doubt that, on May 18, 1972, Blackmun circulated a memo on Roe to his colleagues. Its seventeen pages did not address whether there was a constitutional right to abortion. They merely argued that the Texas abortion law was unconstitutionally vague, or, as Blackmun put it, “insufficiently informative to the physician to whom it purports to afford a measure of professional protection.” Blackmun called his memo “a first and tentative draft,” and added that he was “still flexible as to results.”

The justices were not impressed. They had wanted, as William Brennan now wrote to Blackmun, “a disposition of the core constitutional question.” And so, they made two decisions. First, Roe and Doe would be reargued in the fall (before a full complement of judges). Second, Blackmun would have another go at his memos.

Blackmun turned to a clerk for help. Recalls John Rich: “The Roe case came to me.”

Rich had come to the Court six months before, at the age of twenty-eight. Like the judge, the clerk had studied math at Harvard, devoting a subsequent year to philosophy. Law, though, had long been an interest; Rich wrote in high school about the Fourteenth Amendment, and in college about the Fifth. Eager to commit himself, in an era of civil rights, to something less abstract than math, he had applied to law school, studying at Yale and then Oxford before clerking for a judge whose work on the insanity defense Blackmun admired. Blackmun phoned Rich himself to offer a clerkship.

Back in December, Rich had helped Blackmun to ready for Roe, writing a bench memo that distilled the issues at play, chief among them whether the Texas abortion statutes were unconstitutional or vague. The clerk now typed up another memo, fourteen pages of suggestions small and large—a different word to describe the relationship of pregnancy to nonmootness (“justification”), a different justification for the Does’ lack of standing.

Blackmun had also to absorb the briefs filed by the opposing parties—one of which sought to humanize the fetus (that which “requires only nutrition and time to develop into one of us”), the other the woman who carried it (she whom the law forced “to serve as an incubator for months and then as an ostensibly willing mother”). There were other supporting briefs too, fifteen opinions submitted to the Court by a mix of doctors and lawyers and clergy.

For all that, Blackmun wished to know more. There was the history of abortion—medical, legal and otherwise. And there was the continuing matter of its constitutionality. And so, when John Rich completed his clerkship in July, the justice turned to another clerk.

His name was George Frampton. Like Rich, he was twenty-eight and left-leaning and from the Great Lakes, like Rich the son of a professor who had come to the Court with degrees from Harvard and Yale and interests that extended beyond the law. Having gotten his BA in physics and philosophy, and an MA in economic theory, Frampton had spent the two years since his JD far from the law—volunteering with Vista in inner-city New York, driving a cab, joining a peace initiative in the Middle East where he had lived with wife, Betsy, on a kibbutz in the Galilee amidst mushrooms and apples.

A law school classmate clerking for Blackmun had mentioned his fascinating friend. And when Frampton met the justice over tea, he overcame his hesitation to work for a judge he viewed as conservative. “Blackmun,” says Frampton, “was such a nice, modest, sweet, down-to-earth man.”

Frampton had been clerking for ten months when the justice turned to him for help on Roe. “ ‘You write the legal part and I’ll write the facts,’ ” Frampton recalls Blackmun telling him. With that, the justice drove to Minnesota.

Blackmun was off to the Mayo Clinic, the medical research center he had served as counsel. There, over a fortnight of reading in late July, he found answers, filling notepads with facts and citations that convinced him, among much else, that early-term abortions were safer than childbirth and that, as the journalist Linda Greenhouse summarized, “the criminalization of abortion was a relatively recent phenomenon.”

Back at the Court, Frampton was typing away on his IBM Selectric. Blackmun was still in Minnesota when the clerk finished his draft. He asked the justice’s secretary to lock it in a desk drawer out of reach of the incoming clerks. Says Frampton: “I didn’t want them to get their hands on it.”

Blackmun read the draft, ready to pencil in comments between the triple-spaced type. The draft made two fundamental claims: that the right to privacy did indeed encompass abortion, and that that right could be extended through the second trimester of pregnancy. Impressed, Blackmun put his pencil down. Says Frampton: “he took that with very few edits and sent it to be printed.”

Still, Blackmun continued his research, reading in late August of a Gallup poll about abortion and public opinion. The numbers were striking. Significant majorities of Republicans, Democrats and even Catholics agreed that “the decision to have an abortion should be made solely by a woman and her physician.” The judge filed away the article and readied for Roe. The case was to be reargued in six weeks.

ON OCTOBER 11, 1972, two years after appealing Roe to the Supreme Court, Coffee returned there.

Roe had not much changed her life. Having packed away the quill pens given her by the Court, she still worked in bankruptcy. She was still single, too, telling United Press International back in February that she dated “intelligent, educated men.” And while Coffee delighted in the prospect of seeing abortion legalized, her co-counsel delighted no less in being the one to argue for its legalization. Ten months after Weddington did so, her life had been upended. She had quit her job as a city attorney in Fort Worth after her boss objected to her returning to the Court to argue Roe a second time. “I could not bear the thought,” wrote Weddington, “of not being involved in the Supreme Court action.” But after opening a firm in Austin with her husband and running for state representative, her marriage had begun to falter. The election was upcoming as Weddington rose to argue Roe a second time.

As before, Weddington argued for the right of women to privacy. As before, the state argued that it had a compelling interest in preserving fetal life.

Both lawyers had studied the judicial inclinations of the nine men now seated before them, of the two Williams, Douglas and Brennan, for example, who had, respectively, authored Griswold and Eisenstadt v. Baird, a recent case about contraception that extended the right of privacy from married couples to individuals. But of the experiences that might have informed those inclinations, the lawyers knew nothing. The fight for abortion was grounded in privacy for good reason. Simply put, even though abortion touched millions of lives, it was bound up in sex and in shame. And on this Wednesday morning, those millions included not only Weddington, who’d had an abortion, but Justice Lewis Powell.

Powell was a lawyer in Virginia when a young messenger at his firm took his girlfriend to get an illegal abortion. The abortion killed her. The messenger had been charged with manslaughter, and went to Powell for help.

Powell had said nothing publicly of that experience—just as Weddington had said nothing of her abortion, and Blackmun had said nothing of the unwanted pregnancy in his family. And yet those experiences undoubtedly informed their thinking on abortion; the two Nixon appointees, like the minister’s daughter, were pro-choice. Personal experience opened eyes. As Oliver Wendell Holmes wrote in 1881: “The life of the law has not been logic: it has been experience.”

TWO DAYS AFTER LISTENING to Roe argued a second time, only Byron White and William Rehnquist were sided with Texas. Granted a 7–2 majority, Blackmun returned to the opinion that would shape the rest of his life.

It had been eleven months since Burger assigned him Roe. Blackmun had still not settled on when exactly in the course of a pregnancy abortion ought to tip from legal to illegal—on when, in other words, the interest of the state in the fetus would supersede the interests of the woman. He had settled temporarily on the end of the first trimester. But Justice Powell now suggested to him the end of the second trimester—the point at which a fetus could survive outside the womb. That point was known as viability.

It was Frampton who’d introduced the concept of viability to Blackmun. The clerk had read of it the previous year, he says, in at least two articles, one written by retired Supreme Court Justice Tom Clark, the other by a lawyer named Cyril Means. It had struck him as wise. “Viability seemed like the obvious mix of science and religion, or science and ethics,” says Frampton. He adds: “This court [was] not going to say that until the baby pops out and is given a name and is put in a bassinet, that baby has no rights.”

Frampton had left the Court in August. A month later, in September 1972, a district judge in Connecticut named Jon O. Newman had become the first to attach constitutional significance to viability. Blackmun became the second. “With respect to the State’s important and legitimate interest in potential life,” he wrote into his third and final draft of Roe, “the ‘compelling’ point is at viability.”

A watershed opinion had been written. Upon its release the next month, tens of millions of American women would have a constitutional right to end their pregnancies.

Blackmun situated that right within the right to privacy. He situated the right to privacy within the Fourteenth Amendment (not the Ninth, as the Texas court had thirty months before). And he situated his decision—Roe v. Wade, 410 U.S. 113—within millennia of jurisprudence, his opinion referencing sources from Plato to Parliament. Blackmun circulated the opinion to his fellow justices four days before Christmas. They were impressed, complimentary even in dissent.

Blackmun was mindful, however, that others might not be; his opinion would negate statutes in forty-six states and the District of Columbia. As he had jotted on a notepad two months before: “It will be an unsettled period for a while.”